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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: R.J., A MINOR                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: R.J., A MINOR

                                                      No. 1567 EDA 2015


                Appeal from the Dispositional Order May 27, 2015
              In the Court of Common Pleas of Philadelphia County
               Juvenile Division at No(s): CP-51-JV-0000948-2015


BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                        FILED FEBRUARY 19, 2016

        Appellant R.J., a minor, appeals from the dispositional order entered in

the Philadelphia County Court of Common Pleas following his adjudication of

delinquency for possession of a firearm by a minor1 and carrying a firearm

on public streets in Philadelphia.2 After careful review, we affirm.

        On April 29, 2015, at approximately 7:30 p.m., Officer Kennedy and

Officer McCarthy responded to a radio call that a black male in camouflaged

clothing had fired a gun near Kozy’s Bar by 51st Street and Haverford

Avenue.      Suppression Hearing N.T., 5/18/2015, at 3-4.          The officers

observed three males in a breezeway between houses near Kozy’s Bar, one

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1
    18 Pa.C.S. § 6110.1(a).
2
    18 Pa.C.S. § 6108.
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of whom was wearing camouflaged pants. Id. at 4. When the police officers

introduced themselves as such, one of the three males fled, leaving

Appellant and the male wearing the camouflaged pants standing shoulder to

shoulder in the breezeway. Id. The police then observed a silver gun on

the ground approximately one foot away from the man with the camouflaged

pants.    Id.   At this point, the officers frisked both males, detaining them

with handcuffs so that they would not lunge at the gun. Id. While frisking

Appellant, Officer Kennedy felt a hard metal object, which was a firearm.

Id. at 5. Appellant was arrested and charged with possession of a firearm

with manufacturer number altered,3 firearms not to be carried without a

license,4 possession of a firearm by a minor, and carrying a firearm on public

streets in Philadelphia.

        On May 5, 2015, Appellant filed a motion to suppress all physical

evidence on the basis that his stop, frisk, and arrest were illegal as police

lacked reasonable suspicion to detain him and lacked probable cause to

arrest him.     On May 18, 2015, the court conducted a hearing and denied

Appellant’s motion. Following a bench trial, the court found Appellant guilty

of possession of a firearm by a minor and carrying a firearm on public

streets in Philadelphia and acquitted Appellant of the other charges.


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3
    18 Pa.C.S. § 6110.2(a).
4
    18 Pa.C.S. § 6106(a)(1).



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        On May 27, 2015, Appellant filed a timely notice of appeal.       Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

        Appellant raises the following issue for our review:

           DID NOT THE [TRIAL] COURT ERR IN DENYING
           [APPELLANT’S]  MOTION   TO   SUPPRESS   PHYSICAL
           EVIDENCE WHEN AN OFFICER ILLEGALLY DETAINED AND
           SEIZED [APPELLANT] ON LESS THAN PROBABLE CAUSE
           OR    REASONABLE   SUSPICION    BASED   ON    AN
           UNSUBSTANTIATED AND UNCORROBORATED ANONYMOUS
           TIP?

Appellant’s Brief at 3.

        Appellant argues police illegally detained and arrested him. He claims

that the anonymous tip the officers received did not provide reasonable

suspicion for a Terry5 stop.             Appellant avers that when the officers

handcuffed him, they were placing him under the functional equivalent of

arrest for which they lacked probable cause. Appellant concludes the court

erred in denying his motion to suppress. We disagree.

        When addressing a challenge to a trial court’s denial of a suppression

motion, our standard of review is “whether the factual findings are

supported by the record and whether the legal conclusions drawn from these

facts are correct.”       Commonwealth v. Hawkins, 45 A.3d 1123, 1126

(Pa.Super.2012), appeal denied, 53 A.3d 756 (Pa.2012) (internal citation

omitted). Further:
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5
    Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).



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          [w]hen reviewing the rulings of a suppression court, we
          must consider only the evidence of the prosecution and so
          much of the evidence for the defense as remains
          uncontradicted when read in the context of the record as a
          whole. Where the record supports the findings of the
          suppression court, we are bound by those facts and may
          reverse only if the legal conclusions drawn therefrom are
          in error.

Id. (citations and internal quotation marks omitted).      Additionally, when

reviewing the suppression court’s rulings, we consider only the suppression

record.   In re L.J., 79 A.3d 1073, 1085 (Pa.2013) (“it is inappropriate to

consider trial evidence as a matter of course, because it is simply not part of

the suppression record, absent a finding that such evidence was unavailable

during the suppression hearing.”).

      Pennsylvania recognizes three types of interactions between police

officers and citizens.   Commonwealth v. Stevenson, 832 A.2d 1123,

1126-27, (Pa.Super.2003). “Interaction between citizens and police officers,

under search and seizure law, is varied and requires different levels of

justification depending upon the nature of the interaction and whether or not

the citizen is detained.” Id.

          The first category, a mere encounter or request for
          information, does not need to be supported by any level of
          suspicion, and does not carry any official compulsion to
          stop or respond. The second category, an investigative
          detention, derives from [Terry, supra.] and its progeny:
          such a detention is lawful if supported by reasonable
          suspicion because, although it subjects a suspect to a stop
          and a period of detention, it does not involve such coercive
          conditions as to constitute the functional equivalent of an
          arrest.    The final category, the arrest or custodial
          detention, must be supported by probable cause.

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Commonwealth v. Gonzalez, 979 A.2d 879, 884 (Pa.Super.2009) (quoting

Commonwealth v. Moyer, 954 A.2d 659, 663 (Pa.Super.2008) (en banc)

(quoting Commonwealth v. Smith, 836 A.2d 5, 10 (Pa.2003))).

        A “mere encounter” can be any formal or informal
        interaction between an officer and a citizen, but will
        normally be an inquiry by the officer of a citizen. The
        hallmark of this interaction is that it carries no official
        compulsion to stop or respond.

        In contrast, an “investigative detention,” by implication,
        carries an official compulsion to stop and respond, but the
        detention is temporary, unless it results in the formation of
        probable cause for arrest, and does not possess the
        coercive conditions consistent with a formal arrest. Since
        this interaction has elements of official compulsion it
        requires “reasonable suspicion” of unlawful activity. In
        further contrast, a custodial detention occurs when the
        nature, duration and conditions of an investigative
        detention become so coercive as to be, practically
        speaking, the functional equivalent of an arrest.

Stevenson, 832 A.2d at 1127-29.

     We analyze whether a “mere encounter” has risen to the level of an

“investigative detention” under the following standard:

        To guide the crucial inquiry as to whether or not a seizure
        has been effected, the United States Supreme Court has
        devised an objective test entailing a determination of
        whether, in view of all surrounding circumstances, a
        reasonable person would have believed that he was free to
        leave.   In evaluating the circumstances, the focus is
        directed toward whether, by means of physical force or
        show of authority, the citizen-subject’s movement has in
        some way been restrained. In making this determination,
        courts must apply the totality-of-the-circumstances
        approach, with no single factor dictating the ultimate
        conclusion as to whether a seizure has occurred.


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Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.Super.2012), appeal

denied, 50 A.3d 124 (Pa.2012) (quoting Commonwealth v. Coleman, 19

A.3d 1111, 1116 (Pa.Super.2011)).

      “Police must have reasonable suspicion that a person seized is

engaged in unlawful activity before subjecting that person to an investigative

detention.”      Commonwealth v. Goldsborough, 31 A.3d 299, 306

(Pa.Super.2011),    appeal   denied,    49   A.3d     442    (Pa.2012)   (quoting

Commonwealth v. Cottman, 764 A.2d 595 (Pa.Super.2000)).

        Reasonable suspicion exists only where the officer is able
        to articulate specific observations which, in conjunction
        with    reasonable     inferences  derived    from    those
        observations, led him reasonably to conclude, in light of
        his experience, that criminal activity was afoot and that
        the person he stopped was involved in that activity.
        Therefore, the fundamental inquiry of a reviewing court
        must be an objective one, namely, whether the facts
        available to the officer at the moment of intrusion warrant
        a [person] of reasonable caution in the belief that the
        action taken was appropriate.

Id.   (quoting    Commonwealth         v.    Jones,    874     A.2d   108,   116

(Pa.Super.2005) (internal citations and quotation marks omitted)).

      Police must have probable cause that a person is engaged in criminal

activity before subjecting that person to an arrest or “custodial detention.”

Goldsborough, 31 A.3d at 306.

        Probable cause is made out when the facts and
        circumstances which are within the knowledge of the
        officer at the time of the arrest, and of which he has
        reasonably trustworthy information, are sufficient to
        warrant a [person] of reasonable caution in the belief that
        the suspect has committed or is committing a crime. The

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         question we ask is not whether the officer’s belief was
         correct or more likely true than false. Rather, we require
         only a probability, and not a prima facie showing, of
         criminal activity. In determining whether probable cause
         exists, we apply a totality of the circumstances test.

Id. (quoting Commonwealth v. Williams, 2 A.3d 611 (Pa.Super.2010) (en

banc), appeal denied, 19 A.3d 1051 (Pa.2011)) (internal citations and

quotation marks omitted) (emphasis in original).

         The key difference between an investigative detention and
         a custodial one is that the latter involves such coercive
         conditions as to constitute the functional equivalent of an
         arrest. In determining whether an encounter with the
         police is custodial, the standard is an objective one, with
         due consideration given to the reasonable impression
         conveyed to the person interrogated rather than the
         strictly subjective view of the troopers or the person being
         seized and must be determined with reference to the
         totality of the circumstances.

Commonwealth v. Pakacki, 901 A.2d 983, 987-88 (Pa.2006) (internal

citations omitted).

         The court considers the totality of the circumstances to
         determine if an encounter is investigatory or custodial, but
         the following factors are specifically considered: the basis
         for the detention; the duration; the location; whether the
         suspect was transported against his will, how far, and why;
         whether restraints were used; the show, threat or use of
         force; and the methods of investigation used to confirm or
         dispel suspicions.

Goldsborough, 31 A.3d at 306 (quoting Commonwealth v. Teeter, 961

A.2d 890, 899 (Pa.Super.2008)).

      Here, the interaction between the police officers and Appellant began

as a mere encounter. The officers responded to a radio call about a shooting


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and a black male suspect who was dressed in camouflage. The officers saw

three men in a breezeway close to the reported scene, one of whom was

wearing camouflaged pants. They announced that they were police officers.

At this point, this was a mere encounter because the officers did not stop

Appellant or his companions.

       Then, one of the three men ran without provocation. At this point, the

officers approached Appellant and his camouflaged companion and observed

a silver gun on the ground a foot away from the duo.         The police officers

then had reasonable suspicion to suspect that Appellant could be involved in

illegal gun activity.     At this point, the officers detained Appellant and his

comrade with handcuffs to frisk them.6 This was a reasonable measure for

officer safety considering the close proximity of the gun. It was at this point

that the frisk revealed Appellant’s gun. The police now had probable cause

to arrest Appellant.

       Thus, we find the suppression court’s factual findings are supported by

the record of the suppression court and the legal conclusions drawn

therefrom are correct. See Hawkins, supra.

       Dispositional order affirmed.



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6
 “We, of course, do not hold that every time the police place an individual in
handcuffs that individual has been arrested.” Commonwealth v. Carter,
643 A.2d 61, 68 (Pa.1994).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2016




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