J-S95043-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
             v.                            :
                                           :
MICHAEL J. HICKS,                          :
                                           :
                     Appellant             :           No. 510 EDA 2016

            Appeal from the Judgment of Sentence January 11, 2016
                in the Court of Common Pleas of Lehigh County,
               Criminal Division, No(s): CP-39-CR-0005692-2014

BEFORE: STABILE, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED MARCH 29, 2017

        Michael J. Hicks (“Hicks”) appeals from the judgment of sentence

entered following his conviction of driving under the influence of alcohol

(“DUI”)—high rate of alcohol (second offense).1 We affirm.

        The suppression court briefly summarized the facts underlying Hicks’s

arrest as follows:

               On June 28, 2014, at approximately 2:30 [a.m.], members
        of the Allentown Police Department [] were dispatched to the
        Pace Mart[,] located at 640 N. 7th Street in Allentown,
        Pennsylvania[,] for a male with a firearm. The male, later
        identified as … [Hicks], was observed with the firearm by a city
        camera operator. The camera operator advised officers that
        [Hicks] showed the firearm to another patron, put the firearm in
        his waistband, covered it with his shirt, and walked inside the
        Pace Mart. [Hicks] eventually got back into his vehicle and
        began to drive away. Based on the information provided, police
        stopped [Hicks’s] vehicle.

             Officer Ryan Alles [(“Officer Alles”)] approached [Hicks]
        and observed him moving his hands to his waistband. As such,

1
    See 75 Pa.C.S.A. § 3802(b).
J-S95043-16


      [Officer] Alles drew his weapon and ordered [Hicks] to keep his
      hands up.      Officer Kyle Pammer [(“Officer Pammer”)] held
      [Hicks’s] arms while [Officer] Alles removed the firearm from a
      holster on [Hicks’s] person, [Hicks] was removed from the
      vehicle for safety reasons and handcuffed. Officers smelled the
      odor of an alcoholic beverage coming from [Hicks]. During a
      search of [Hicks’s] person, a small bag of green leafy vegetable
      matter was found in [Hicks’s] pocket. The substance field tested
      positive for marijuana.

Trial Court Order, 9/18/15, at 1-2 n.1.

      Police arrested Hicks and charged him with the above-described DUI

charge, as well as with one count each of disorderly conduct, DUI—general

impairment (second offense), and possession of a small amount of

marijuana.2 Hicks filed a pretrial suppression Motion and a Motion for writ of

habeas corpus as to the charge of disorderly conduct. The suppression court

denied the suppression Motion, granted Hicks’s Motion for habeas corpus

relief, and dismissed the charge of disorderly conduct. Following a non-jury

trial, the trial court convicted Hicks of DUI—high rate of alcohol (second

offense), and acquitted him of the remaining charges. Thereafter, the trial

court sentenced Hicks to 30 days to six months in jail and to pay a fine.

Hicks filed a timely Notice of Appeal, followed by a court-ordered Pa.R.A.P.

1925(b) Concise Statement of matters complained of on appeal.

      Hicks presents the following claims for our review:

      A. Whether the suppression court erred in failing to grant
      [Hicks’s] request for suppression of evidence by erroneously
      applying the “reasonable suspicion” standard?

2
 See 18 Pa.C.S.A. § 5503(a)(4); 75 Pa.C.S.A. § 3802(a)(1); 35 P.S. § 780-
113(a)(31).


                                 -2-
J-S95043-16



      B. Whether the suppression court erred in finding that police
      had sufficient reasonable suspicion to warrant the seizure of
      [Hicks]?

Brief for Appellant at 4. As Hicks’s claims are related, we will address them

together.

      Hicks first claims that the suppression court applied the wrong

standard in denying his suppression Motion. Id. at 9. Hicks asserts that the

suppression court erred in determining whether police had “reasonable

suspicion” of criminal activity, rather than probable cause. Id. Hicks argues

that “he was subjected to an illegal custodial detention[,]” unsupported by

the required probable cause. Id. at 9, 13. According to Hicks, the police

pole camera showed that four or five marked police cruisers, with their lights

flashing, surrounded his vehicle. Id. at 12. Hicks states that Officer Alles

approached Hicks with his gun drawn and pointed at Hicks.         Id.   Hicks

contends that the officers did not inform him of the reason for the vehicle

stop, or inquire as to whether he had a permit to carry a firearm. Id. Hicks

states that he was taken from his vehicle, handcuffed, frisked and placed

into a police vehicle. Id. Under these circumstances, Hicks asserts, he was

subjected to a custodial detention or an arrest, which was not supported by

the requisite probable cause. Id. at 13.

      In his second claim, Hicks argues that the officers lacked reasonable

suspicion to justify his “seizure.” Id. at 15. Hicks contends that he lawfully




                                 -3-
J-S95043-16


possessed his weapon, and there were no indications that criminal activity

was afoot. Id. at 16.

      Our “standard of review in addressing a challenge to the denial of a

suppression motion is limited to determining whether the suppression court’s

factual findings are supported by the record and whether the legal

conclusions drawn from those facts are correct.”         Commonwealth v.

Mason, 130 A.3d 148, 151 (Pa. Super. 2015) (citation omitted).          “[O]ur

scope of review is limited to the factual findings and legal conclusions of the

suppression court.”     In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation

omitted).    “We may consider only the Commonwealth’s evidence and so

much of the evidence for the defense as remains uncontradicted when read

in the context of the record as a whole.” Commonwealth v. Williams, 125

A.3d 425, 431 (Pa. Super. 2015) (citation omitted). “Once a defendant files

a motion to suppress, the Commonwealth has the burden of proving that the

evidence in question was lawfully obtained without violating the defendant’s

rights.”    Commonwealth v. Fleet, 114 A.3d 840, 844 (Pa. Super. 2015)

(citation omitted).

      As this Court has explained,

      [t]he Fourth Amendment of the Federal Constitution provides,
      “[t]he right of the people to be secure in their persons, houses,
      papers, and effects, against unreasonable searches and seizures,
      shall not be violated ….” U.S. Const. amend. IV. Likewise,
      Article I, Section 8 of the Pennsylvania Constitution states,
      “[t]he people shall be secure in their persons, houses, papers
      and possessions from unreasonable searches and seizures . . .”
      Pa. Const. Art. I, § 8. Under Pennsylvania law, there are three


                                  -4-
J-S95043-16


     levels of encounter that aid courts in conducting search and
     seizure analyses.

         The first of these is a “mere encounter” (or request for
         information) which need not be supported by any level of
         suspicion, but carries no official compulsion to stop or
         respond. The second, an “investigative detention” must
         be supported by reasonable suspicion; it subjects a
         suspect to a stop and period of detention, but does not
         involve such coercive conditions as to constitute the
         functional equivalent of arrest.    Finally, an arrest or
         “custodial detention” must be supported by probable
         cause.

     Commonwealth v. Williams, 73 A.3d 609, 613 (Pa. Super.
     2013) (citation omitted), appeal denied, 624 Pa. 690, 87 A.3d
     320 (Pa. 2014).

     …

      “The Fourth Amendment permits brief investigative stops
     … when a law enforcement officer has a particularized and
     objective basis for suspecting the particular person stopped of
     criminal activity.” Navarette v. California, 134 S. Ct. 1683,
     1687, 188 L. Ed. 2d 680 (2014). It is axiomatic that to establish
     reasonable suspicion, an officer “must be able to articulate
     something more than an inchoate and unparticularized suspicion
     or hunch.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.
     Ct. 1581, 104 L. Ed. 2d 1 (1989) (internal quotation marks and
     citations omitted). Unlike the other amendments pertaining to
     criminal proceedings, the Fourth Amendment is unique as it has
     standards built into its text, i.e.[,] reasonableness and probable
     cause. See generally U.S. Const. amend. IV…..

Commonwealth v. Carter, 105 A.3d 765, 768-69 (Pa. Super. 2014) (en

banc); accord, Mason, 130 A.3d at 152.

     Consequently,

     [a]n officer who lacks the level of information required for
     probable cause to arrest need not “simply shrug his shoulders
     and allow a crime to occur or a criminal to escape.” Adams v.
     Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 32 L. Ed. 2d 612


                                -5-
J-S95043-16


      (1972). Where an officer reasonably suspects that criminal
      activity is afoot, the officer may temporarily freeze the status
      quo by preventing the suspect from leaving the scene in order to
      ascertain his identity and gather additional information. Terry
      v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868
      (1968). The officer may also conduct a quick frisk for weapons if
      he reasonably fears that the person with whom he is dealing
      may be armed and dangerous. Id. The question of whether
      reasonable suspicion existed at the time of an investigatory
      detention must be answered by examining the totality of the
      circumstances to determine whether there was a particularized
      and objective basis for suspecting the individual stopped of
      criminal activity. United States v. Cortez, 449 U.S. 411, 417,
      66 L. Ed. 2d 621, 101 S. Ct. 690 (1981). There is no ready test
      for determining reasonableness other than by balancing the need
      to search or seize against the invasion to which the search or
      seizure entails. Terry, 392 U.S. at 21. Police are generally
      justified in stopping an individual when relying on information
      transmitted by a valid police bulletin.      United States v.
      Hensley, 469 U.S. 221, 232, 83 L. Ed. 2d 604, 105 S. Ct. 675
      (1985).

In the Interest of D.M., 727 A.2d 556, 557-58 (Pa. 1999).

      Finally, the United States Supreme Court has explained that “the right

to make an arrest or investigatory stop necessarily carries with it the right to

use some degree of physical coercion or threat thereof to effect it[.]”

Graham v. Connor, 490 U.S. 386, 396 (1989). When police officers make

an investigative stop, they may take such steps as are “reasonably

necessary to protect their personal safety and to maintain the status quo

during the course of the stop.” Hensley, 469 U.S. at 235. In evaluating the

reasonableness of the officer’s use of force, we “judge from the perspective

of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Graham, 490 U.S. at 443.



                                  -6-
J-S95043-16


     At the suppression hearing, Officer Pammer, an eight-year veteran of

the Allentown Police Department, testified that at about 3:00 a.m., he and

his partner, Officer Michael Mancini (“Officer Mancini”) received a radio

dispatch regarding “an individual at the Pace Market Gulf station … that was

brandishing a firearm.” N.T., 7/14/15, at 6. Officer Pammer described the

location as a “high crime neighborhood,” and explained that the police

department has received calls regarding drug dealing, people with weapons

and loitering at that location. Id. at 7. According to Officer Pammer, the

radio dispatch informed all units “that a male in a white shirt was

brandishing a firearm towards another male at the Pace Mart and that he

was driving, I believe it was a silver Chevy.” Id. at 7-8. Officer Pammer

described what next transpired as follows:

     Myself and Officer Mancini[,] including several other officers that
     were available at that time[,] proceeding to that location. As we
     were pulling up to the location, I observed that Officer Alles was
     the first officer to be on location. He was at the rear of …
     [Hicks’s] vehicle, which was a silver Chevy Impala. It was
     occupied by one male[,] who was [Hicks]. He was at the gas
     pumps, [Hicks] was in the vehicle and it was running.

Id. at 8.   Officer Pammer stated that he and the other officers were in

uniform, and were driving marked police units. Id. Officer Pammer testified

as to what he observed as follows:

     When I first arrived, … Officer Alles … began running up towards
     the vehicle, [and] about halfway up towards the vehicle[,] I
     observed that he did unholster his weapon due to the nature of
     the call. … I heard him yelling verbal commands, I couldn’t make
     them out because we were still a distance away. He went up to



                                 -7-
J-S95043-16


      the … driver’s side of the door and appeared to be giving
      commands to [Hicks].

      …

      I started approaching[] Officer Alles and the vehicle. Officer
      Alles was giving verbal commands to show us his hands. I saw
      that [] Hicks was moving his hands around in the car. I got up
      to Officer Alles, he advised me that [Hicks] had a gun on him.
      Officer Alles still had his weapon out at the time. I grabbed both
      of [Hicks’s] hands and held on to him while Officer Alles removed
      the firearm from the right side of [] Hicks.

      …

      [Hicks] was removed from the vehicle after the gun was
      removed safely. I could smell, upon talking to him, he smelled
      like alcohol. Officer Alles put handcuffs on him and then[,] while
      I was there[,] Officer Mancini started a pat[-]down of the outer
      garments of [] Hicks for any other weapons. … Officer Mancini
      removed a baggie of suspected marijuana from [] Hicks’s front
      right pocket.

      …

      We confirmed that [Hicks] did have a concealed carry permit
      through Lehigh County.

Id. at 9-11.

      Contrary to Hicks’s assertions, we discern no error or abuse of

discretion by the suppression court in its application of the “reasonable

suspicion” standard. Here, police stopped Hicks based upon a radio dispatch

regarding a man brandishing a firearm. “[P]ossession of a concealed firearm

in public is sufficient to create a reasonable suspicion that the individual may

be dangerous, such that an officer can approach the individual and briefly

detain him in order to investigate whether the person is properly licensed.”



                                  -8-
J-S95043-16


Mason, 130 A.3d at 153 (quoting Commonwealth v. Robinson, 600 A.2d

957, 959 (Pa. Super. 1991)); see also In the Interest of D.M., 727 A.2d

at 558 (stating that “[p]olice are generally justified in stopping an individual

when relying on information transmitted by a valid police bulletin”). Thus,

the trial court properly ascertained whether officers had a reasonable

suspicion that Hicks possessed a concealed firearm in public.     See Mason,

130 A.3d at 153.

      Viewed in a light most favorable to the Commonwealth, the totality of

the circumstances further established that the officers’ actions in removing

Hicks from the vehicle and securing him were supported by reasonable

suspicion, and reasonably necessary to “freeze the status quo[,]” prevent

Hicks from leaving the scene “in order to ascertain his identity and gather

additional information[,]” and to protect the officers’ personal safety. See

Hensley, 469 U.S. at 235; D.M., 727 A.2d at 557.           As set forth above,

officers received a radio dispatch about a man in a white shirt brandishing a

weapon to another man at the Pace Mart. N.T., 7/14/15, at 7. The dispatch

indicated that the man was driving a silver Chevrolet Impala.         Id. at 8.

Upon arriving at the Pace Mart, Officer Pammer observed Officer Alles

approaching Hicks, who was in a silver Chevrolet Impala located at the gas

pumps. Id. When Officer Pammer approached the vehicle, he heard Officer

Alles give Hicks commands to “show us his hands[,]” but Hicks “was moving

his hands around in the car.”      Id. at 10.    Officer Alles advised Officer



                                  -9-
J-S95043-16


Pammer that Hicks still possessed a gun.          Id.   Upon Officer Pammer

restraining Hicks’s hands, Officer Alles removed the weapon from Hicks,

after which Hicks was removed from the vehicle. Id. At that time, Officer

Pammer noticed an odor of alcohol on Hicks. Id. at 10-11. Accordingly, we

discern no error or abuse of discretion by the suppression court in the

standard it applied or in its conclusion that the stop was supported by the

requisite reasonable suspicion of criminal activity.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/29/2017




                                  - 10 -
