J-S13014-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    VINCENT WALKER,

                             Appellant                No. 992 MDA 2019


              Appeal from the Judgment of Sentence May 31, 2019
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002005-2018

BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 11, 2020

        Appellant, Vincent Walker, appeals from his judgment of sentence of 66

months’ to 15 years’ imprisonment for persons not to possess firearms and

carrying a firearm without a license.1 Appellant argues that the trial court

erred by denying his motion to suppress because the two arresting officers

lacked reasonable suspicion to stop and search him. We affirm.

        The trial court accurately summarized the evidence adduced during the

suppression hearing as follows:

        The only witness called was Officer Tyler Auerbeck of the
        Harrisburg Police Bureau. Office Auerbeck testified that on March
        30, 2018, he was dispatched to 346 South 14th Street in
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 6105 and 6106, respectively.
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       Harrisburg.2 A caller, Casey Miller, had stated that there were
       multiple males in that area fighting and throwing liquor bottles
       and rocks. Officer Auerbeck did not speak to Ms. Miller herself;
       rather, he received the information from a dispatcher. Officer
       Auerbeck and Officer Pucciarello (who drove separately in
       response to the call) both arrived in police vehicles and parked in
       the area of 14th and Swatara Streets with only their headlights
       on. Officer Auerbeck observed five or six males congregating in
       the area and, as soon as he and Officer Pucciarello pulled up, the
       men started to disburse in separate directions.

       When asked about the area, Officer Auerbeck testified that it was
       a residential neighborhood, and he had responded numerous
       times in the past to the same location for calls involving drugs,
       weapons, firearms, assaults, and robberies. He confirmed that it
       was a high-crime area. When Officer Auerbeck got out of his car,
       he started walking towards the intersection at 14th and Swatara
       Streets with Office Pucciarello walking behind him. When Officer
       Auerbeck first noticed [Appellant], he was walking in the officers’
       direction. At that time, [Appellant] was about fifteen (15) feet
       away and Officer Auerbeck said to him, “hey look—got to talk to
       you real quick.” [Appellant] responded by putting his head down,
       turning away from the officers, and put his hands in his front
       pockets. At that point, both officers told [Appellant] to “show us
       your hands; talk to us.” Officer Auerbeck testified that they
       wanted to talk to [Appellant] about the call he received about the
       fighting and rock-throwing, as he typically gets calls in that area
       to investigate disorderly conduct of a fighting nature. Next,
       Officer Auerbeck again asked [Appellant] to stop, and informed
       him that it is an investigation. [Appellant] continued to walk, and
       the officer asked him to stop again. At this point, [Appellant was]
       approximately five (5) feet away, and he walked past the officers.
       He was wearing a hoodie, his hands were still in his pockets, and
       he quickened his pace.         Officer Auerbeck was not sure if
       [Appellant] had a weapon on him, but was concerned about
       [Appellant]’s movements, as he continued walking and did not
       stop.



____________________________________________


2The suppression hearing transcript reflects that the dispatch took place at
approximately 1:40 a.m., and that Officer Auerbeck was a couple of blocks
away from the scene when he received the dispatch.

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      Eventually [Appellant] took off running, and Officer Auerbeck
      engaged in a short foot pursuit. Officer Auerbeck gained control
      of [Appellant] by grabbing his back and left arm and eventually
      pinning him; Officer Pucciarello assisted Officer Auerbeck in taking
      [Appellant] to the ground. The officers struggled to get to his
      hands, as [Appellant] kept pulling away; eventually he was
      apprehended and cuffed. [Appellant] was searched by the officers
      for contraband. Numerous rocks were found in his hooded
      jacket/jeans pocket, along with a small baggie of marijuana and
      a silver H&R caliber revolver pistol. The revolver was loaded.

      On cross-examination, Officer Auerbeck established that the only
      description that he received from dispatch was that that the
      individuals involved in the disturbance were possibly dark-
      skinned, and there was no description of clothing. It was also
      confirmed that Officer Auerbeck was not able to make contact with
      Ms. Miller, the woman who made the call complaining of the
      disturbance.

Trial Court Opinion, 8/30/19, at 1-3.

      After the trial court denied Appellant’s motion to suppress, he proceeded

to a bench trial and was convicted of the aforementioned firearms offenses.

The court imposed sentence on the same day, and this timely appeal followed.

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

      Appellant raises a single issue in this appeal:

      Whether the trial court erred in failing to suppress evidence,
      including the firearm found in Appellant’s possession, where
      Appellant was seized by police without reasonable suspicion and
      subsequently searched in violation of the Fourth Amendment to
      the United States Constitution and Article I, Section 8 of the
      Pennsylvania Constitution?

Appellant’s Brief at 5.

      When addressing an appeal from the trial court’s denial of a motion to

suppress evidence:


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      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.     Because the Commonwealth prevailed before the
      suppression court, we may consider only the evidence of the
      Commonwealth 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 suppression court’s factual findings are
      supported by the record, we are bound by these findings and may
      reverse only if the court’s legal conclusions are erroneous. Where
      . . . the appeal of the determination of the suppression court turns
      on allegations of legal error, the suppression court’s legal
      conclusions are not binding on an appellate court, whose duty it
      is to determine if the suppression court properly applied the law
      to the facts. Thus, the conclusions of law of the courts below are
      subject to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012).

      The Fourth Amendment to the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution protect the people from

unreasonable searches and seizures. Commonwealth v. Lyles, 97 A.3d 298,

302 (Pa. 2014). Lyles explained:

      Jurisprudence arising under both charters has led to the
      development of three categories of interactions between citizens
      and police. The first, a “mere encounter,” does not require any
      level of suspicion or carry any official compulsion to stop and
      respond. The second, an “investigatory detention,” permits the
      temporary detention of an individual if supported by reasonable
      suspicion. The third is an arrest or custodial detention, which
      must be supported by probable cause.

Id. Since there is no dispute that the arresting officers in this case conducted

an investigatory detention, we focus our attention on the standards for

reasonable suspicion.




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       Police may briefly detain a person for an investigatory detention if they

have    an    objectively   reasonable   suspicion    that   crime    is   afoot.

Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011).                   Reasonable

suspicion

       is a less demanding standard than probable cause not only in the
       sense that reasonable suspicion can be established with
       information that is different in quantity or content than that
       required to establish probable cause, but also in the sense that
       reasonable suspicion can arise from information that is less
       reliable than that required to show probable cause.

Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014).

“Reasonable suspicion must be based on specific and articulable facts, and it

must be assessed based upon the totality of the circumstances viewed through

the eyes of a trained police officer.” Commonwealth v. Williams, 980 A.2d

667, 672 (Pa. Super. 2009). The totality of the circumstances element does

not permit “divide and conquer” analysis in which the officer examines each

individual factor in isolation. Commonwealth v. Carter, 105 A.3d 765, 772

(Pa. Super. 2014). Facts that may appear innocent in isolation may, when

viewed together, warrant further investigation in the eyes of a trained officer.

Id. Courts “must give due weight to the specific reasonable inferences the

police officer is entitled to draw from the facts in light of his experience.”

Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011).                   Reasonable

suspicion does not require that the activity in question be unquestionably

criminal before an officer may investigate further. Davis, 102 A.3d at 1000.




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      Federal jurisprudence sets forth the reasonableness standard for Article

I, Section 8 of the Pennsylvania Constitution. Commonwealth v. Brown,

996 A.2d 473, 476 (Pa. 2010).           “Both constitutions provide equivalent

protections for purposes of an investigative detention analysis.” Id.

      Viewed together, multiple facts gave the officers reasonable suspicion

to detain Appellant for an investigatory detention. The police received a report

at nighttime from an identified caller, Casey Miller, that multiple males at 346

South 14th Street were fighting and throwing rocks and bottles. The fact that

a disclosed caller gave the tip enhanced its reliability, because a disclosed

caller places herself at risk of prosecution for filing a false claim if the tip is

untrue,   whereas      an   anonymous   source   faces   no   such   risk.   See,

Commonwealth v. Barber, 889 A.2d 587, 593 (Pa. Super. 2005); see also

United States v. Vandergroen, —F.3d—, 2020 WL 3737376, *3 (9th Cir.,

July 7, 2020) (bar employee who provided tip to police that he saw man with

gun in the bar was “undoubtedly reliable,” where informant “provided his

name and employment position, making him a known, and therefore more

reliable, witness”).    Officer Auerbeck was several blocks away when he

received a radio dispatch about the incident, and he drove to the scene, which

was a high-crime area. Officer Pucciarello drove to the scene as well in a

separate patrol vehicle. Upon their arrival, the officers observed five or six

males congregating at the scene, a fact consistent with Miller’s tip, who

dispersed upon the officers’ arrival.      As the officers walked towards the


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intersection, Appellant walked towards them, and Officer Auerbeck said, “hey

look—got to talk to you real quick.” Instead of stopping, Appellant reacted

suspiciously by putting his head down, turning away, and placing his hands in

his pockets. Both officers directed Appellant to “show us your hands [and]

talk to us,” but he quickened his pace and walked past the officers with his

hands in his pockets. He then began running, and the officers apprehended

him after a struggle. In short, the tip from a disclosed caller, the officers’

observations at the scene consistent with this tip, the high-crime nature of

this location, and Appellant’s nervous and evasive behavior collectively

created     reasonable   suspicion   that   criminal   activity   was    afoot.

Commonwealth v. McCoy, 154 A.3d 813, 819 (Pa. Super. 2017)

(defendant’s evasive and suspicious behavior in a high crime area on a

particularly cold winter night, along with his unprovoked flight, gave officers

reasonable suspicion that criminal activity was afoot, justifying investigatory

stop); Commonwealth v. Washington, 51 A.3d 895, 898 (Pa. Super. 2012)

(“nervous, evasive behavior and headlong flight all provoke suspicion of

criminal behavior in the context of response to police presence”).

      For these reasons, the trial court properly denied Appellant’s motion to

suppress.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/11/2020




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