J-S10002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

LEE A. A. VAUGHN,

                            Appellant                  No. 2075 EDA 2013


               Appeal from the Judgment of Sentence July 9, 2013
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0002641-2013


BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED MARCH 11, 2015

        Appellant, Lee A. A. Vaughn, appeals from the judgment of sentence

imposed following his bench trial conviction of knowing and intentional

possession of a controlled substance. Specifically, he challenges the denial

of his motion for suppression. We affirm.

        The suppression court provides the factual history of this case:

              On the morning of December 18, 2012, at around 10:55
        a.m., Police Officer Robert Gutierrez was on duty in the area of
        5000 Old York Road.         Officer Gutierrez described the area
        around 5000 Old York Road as a high crime area, where a lot of
        drugs are sold, and a lot of robberies and thefts take place.
        Officer Gutierrez based his opinion on six years of experience
        within the district. Officer Gutierrez received a radio call that at
        5010 Old York Road there was a report of a person screaming
        and a male beating a female. The radio call described a black
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       male wearing a black jacket. When Officer Gutierrez received
       the radio call, he was a few blocks away from 5010 Old York
       Road, and arrived within two minutes.

              When Officer Gutierrez arrived at 5010 Old York Road, he
       observed [Appellant] less than fifteen feet away from the
       address, on the highway.         Officer Gutierrez observed that
       [Appellant] matched the clothing description of the radio call.
       Officer Gutierrez stopped [Appellant] and asked him for
       identification. After Officer Gutierrez stopped [Appellant] he
       observed another young black male matching the description of
       the radio call. Officer Gutierrez then frisked [Appellant] to
       ensure he didn’t have any weapons before placing him in the
       police car. When Officer Gutierrez frisked [Appellant], he felt a
       large plastic bag in [Appellant]’s right-hand pocket. After Officer
       Gutierrez felt the plastic bag, [Appellant] freely admitted,
       without questioning, “I have a little marijuana on me.” After
       detaining [Appellant], a witness pointed to a second black male
       and identified him as the person who assaulted the female.

(Trial Court Opinion, 6/02/14, at 1-2) (record citations omitted).

       The police ran Appellant’s identification information and determined

that there was an outstanding scofflaw warrant for him for unpaid moving

violations.    The black bag Officer Gutierrez retrieved when he frisked

Appellant contained forty small Ziploc bags each holding a green leafy

substance later determined to be marijuana.        (See N.T. Motion Hearing,

6/03/13, at 10-12). Appellant moved for suppression, which the trial court

denied, finding reasonable suspicion and probable cause.1 (See id. at 27-

28).


____________________________________________


1
  At the motion hearing, Appellant rested without presenting any evidence.
(See N.T. Motion, 6/03/13, at 19).



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        At a waiver trial, the Commonwealth withdrew the felony charge of

possession with intent to deliver and proceeded solely on the misdemeanor

charge of knowing and intentional possession. The court convicted Appellant

and sentenced him to not less than three nor more than twenty-one months’

incarceration, followed by two years of reporting probation.2 (See N.T. Trial,

7/09/13, at 12). This timely appeal followed.3

        Appellant raises a single question for our review:

              Did not the trial court err in denying [A]ppellant’s motion
        to suppress physical evidence, where police officers, responding
        to a radio call from an unknown source, lacked reasonable
        suspicion justifying any detention or frisk of [A]ppellant, who
        matched only a very general description and whose behavior
        offered no independent or corroborating indicia of criminality and
        no reason to believe that he was armed?

(Appellant’s Brief, at 3).4

        Appellant argues that the police subjected him to an unsupported,

improper and unnecessary preemptive detention and search. (See id. at 8).

He maintains that the subsequent discovery of the marijuana was the fruit of

an illegal search. (See id.). We disagree.

              We review the denial of a suppression motion as follows:

____________________________________________


2
    Appellant waived a pre-sentence investigation report.
3
 Appellant filed a statement of errors on September 4, 2013. See Pa.R.A.P.
1925(b). The trial court filed its opinion on June 2, 2014. See Pa.R.A.P.
1925(a).
4
    The Commonwealth did not file a brief in this appeal.



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        Our standard of review in addressing a challenge to a trial
        court’s denial of a suppression motion is limited to
        determining whether the factual findings are supported by
        the record and whether the legal conclusions drawn from
        those facts are correct.

        [W]e may 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 court erred in reaching its legal
        conclusions based upon the facts.

     Further, [i]t is within the suppression court’s sole province as
     fact finder to pass on the credibility of witnesses and the weight
     to be given their testimony.

           Both the Fourth Amendment to the United States
     Constitution and Article I, § 8 of the Pennsylvania Constitution
     protect the people from unreasonable searches and seizures.
     Not every search must be conducted pursuant to a warrant, for
     the Fourth Amendment bars only unreasonable searches and
     seizures. While a search is generally not reasonable unless
     executed pursuant to a warrant, the Supreme Court of the
     United States and [the Pennsylvania Supreme Court] have
     recognized exceptions to the warrant requirement.

               The reasonableness of a seizure that is less intrusive
        than a traditional arrest depends upon a three-pronged
        balancing test derived from Brown v. Texas, 443 U.S. 47,
        99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), in which the
        reviewing [c]ourt weighs “the gravity of the public
        concerns served by the seizure, the degree to which the
        seizure advances the public interest, and the severity of
        the interference with individual liberty.” Id. at 50[.] To
        be deemed reasonable under this standard, such a seizure
        must ordinarily be supported by reasonable suspicion,
        based upon objective facts, that the individual is involved
        in criminal activity.

Commonwealth v. Gillespie, 103 A.3d 115, 118 (Pa. Super. 2014) (most

citations and internal quotation marks omitted).

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      To establish reasonable suspicion, the officer must articulate
      specific observations which, in conjunction with reasonable
      inferences derived from those observations, led him to
      reasonably conclude, in light of his experience, that criminal
      activity was afoot and that the person he stopped was involved
      in that activity. To determine whether the officer had reasonable
      suspicion, the totality of the circumstances must be considered.
      In this regard, we 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. Caban, 60 A.3d 120, 128 (Pa. Super. 2012), appeal

denied, 79 A.3d 1097 (Pa. 2013) (citations and internal quotation marks

omitted).

      When considering the totality of the circumstances to establish
      reasonable suspicion that criminal activity was afoot, we need
      not limit our inquiry to only those facts that clearly and
      unmistakably indicate criminal conduct.      Instead, even a
      combination of innocent facts, when taken together, may
      warrant further investigation by the police officer.

Id. at 129 (emphasis added) (citation and internal quotation marks

omitted).

      Here, Appellant maintains that the police lacked reasonable suspicion

because he matched only a very general description, and there were no

corroborating indicia of criminality. (See Appellant’s Brief, at 9-20).

      The trial court decided that the police had reasonable suspicion for a

frisk. (See N.T. Motion Hearing, 6/03/13, at 27; Trial Ct. Op., at 5). We

agree.

      Officer Gutierrez, an experienced six year veteran of the police force

with personal knowledge that he was in a high crime area, responded


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within two minutes to a radio call of a violent assault (“male beating on a

female”). (Id. at 8). At the reported location of the ongoing assault, Officer

Gutierrez came upon Appellant, fifteen feet away, wearing a black leather

jacket which matched the clothing description on the flash report (“black

male in a black jacket”). (Id. at 23). When Officer Gutierrez conducted a

weapons frisk and detected a bulge during the pat down, Appellant

spontaneously volunteered that he was carrying marijuana. (See id. at 10;

Trial Ct. Op., at 4).

      We conclude that the trial court properly decided that in the totality of

circumstances Officer Gutierrez had reasonable suspicion to stop Appellant,

standing feet away from the location of an assault reported two minutes

earlier, in a high crime area, and to conduct an outer clothing pat down for a

concealed weapon before placing Appellant in the police car.             When

Appellant spontaneously admitted marijuana possession, Officer Gutierrez

had probable cause to arrest him. (See Trial Ct. Op., at 6).

      As the trial court aptly notes, “[t]here is no reason why an officer,

rightfully but forcibly confronting a person suspected of a serious crime,

should have to ask one question and take the risk that the answer might be

a bullet.”   (Trial Ct. Op., at 5) (quoting Terry v. Ohio, 392 U.S. 1, 33

(1968) (Harlan, J., concurring)).

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2015




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