J. A29002/15

                             2015 PA Super 268


COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
JOSEPH MASON,                           :         No. 1528 WDA 2014
                                        :
                       Appellant        :


           Appeal from the Judgment of Sentence, April 7, 2014,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0009052-2013


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.


OPINION BY FORD ELLIOTT, P.J.E.:               FILED DECEMBER 22, 2015

     Joseph Mason appeals from the April 7, 2014 judgment of sentence

following his conviction of violations of the Uniform Firearms Act: persons

not to possess firearms, carrying a firearm without a license, and possession

or distribution of marijuana or hashish.1 We affirm.

     The trial court provided the following relevant facts:

                  Briefly, the evidence presented at trial
           established that in the evening hours of May 26,
           2013, Pittsburgh Police Officer Brendan Flicker and
           his partner Officer Opsenica, were on a routine foot
           patrol near the intersection of Frankstown Avenue
           and Putnam Street in the Larimer section of the City
           of Pittsburgh, an area known for open-air drug sales.
           The two officers passed a red Chrysler with an Ohio
           license plate and observed the butt of a black and


1
  18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 35 P.S. § 780-113(a)(31),
respectively.
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             silver semi-automatic firearm through the car
             window. The officers returned to their vehicle and
             waited for the car to leave.       Shortly thereafter,
             Officer Dustin Rummel radioed that he was traveling
             behind the vehicle, which had left its parking space
             without being seen by Officers Flicker and Opsenica.
             Officer Rummel followed the red Chrysler for a time,
             then the pursuit was assumed by Officer Gregory
             Livesey, who observed the vehicle attempt to park
             against the flow of traffic without a turn signal and
             initiated a traffic stop.      When Officer Livesey
             activated his patrol vehicle lights, the Defendant
             jumped out of the vehicle and ran. It was noted that
             the Defendant’s hands were by the center of his
             waistband while he was running. Officer Livesey and
             other officers followed, and the Defendant ducked
             between two houses. Immediately a shot was heard
             and the Defendant emerged saying “You shot me”.
             Shortly thereafter, a thermal imaging camera was
             used to locate the weapon, which was still hot from
             having recently been fired. A gunshot residue test
             performed on the Defendant’s clothing revealed
             particles characteristic of gunshot residue on his left
             cuff.

Trial court opinion, 1/7/15 at 2. Appellant was arrested and charged with

persons not to possess firearms, carrying a firearm without a license,

recklessly   endangering    another   person,   escape,   and   possession   or

distribution of marijuana or hashish. On November 12, 2013, appellant filed

a motion to suppress evidence with the trial court in which he sought to

prevent the Commonwealth from introducing any evidence seized as a result

of the traffic stop of the red Chrysler. (Docket #7.) The trial court held a

hearing on March 26, 2014, and appellant’s motion was denied.          At the

conclusion of a non-jury trial on April 7, 2014, appellant was convicted of

persons not to possess firearms, carrying a firearm without a license, and


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possession or distribution of marijuana or hashish.      He was acquitted of

recklessly endangering another person and escape.2 Immediately following

the trial, appellant was sentenced to not less than two nor more than ten

years’ imprisonment.

      On April 17, 2014, appellant filed a post-sentence motion which was

denied by the trial court by operation of law on August 20, 2014. Appellant

filed a notice of appeal on September 19, 2014. On September 26, 2014,

the trial court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied

with the trial court’s order on October 16, 2014, and the trial court filed an

opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issue for our review:

            Whether the trial court erred in not suppressing the
            gun and drug evidence when the testimony of the
            police officers manifestly failed to establish
            reasonable suspicion or probable cause to believe
            that the red Chrysler, in which Mr. Mason was a
            passenger, had committed a violation of the Motor
            Vehicle Code, or reasonable suspicion to believe that
            Mr. Mason was involved in criminal activity?

Appellant’s brief at 4.

      In cases involving a review of the denial of a defendant’s suppression

motion, we are subject to the following standard of review:


2
  18 Pa.C.S.A. §§2705 and 5121(a), respectively. Appellant was also
charged with tamper with/fabricate physical evidence, which was not held
over for court at the preliminary hearing. 18 Pa.C.S.A. § 49810(1); notes of
testimony, 7/1/13 at 64.


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            [An appellate court’s] 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, [the appellate court] is bound by [those]
            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 [] plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa.Super. 2015),

quoting Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal

citations and quotation marks omitted).

      In the instant appeal, appellant alleges that the trial court erred in

denying his motion to suppress the gun and drug evidence because the

“testimony of the police officers manifestly failed to establish reasonable

suspicion or probable cause to believe that the red Chrysler, in which

[appellant] was a passenger, had committed a violation of the Motor Vehicle

Code.” (Appellant’s brief at 17.) The trial court found, as a matter of fact,

that, “the police were going to stop this car because they saw a gun and

they followed it.”   (Notes of testimony, 3/26/14 at 39-40.)   Regardless of


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whether the police observed a violation of Motor Vehicle Code, they still had

reasonable suspicion to conduct a valid stop of the red Chrysler.

            The 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 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,
            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
            (2014). It is axiomatic that to establish reasonable


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            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 (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. However, as the Supreme Court long
            recognized, Terry v. Ohio, 392 U.S. 1 (1968) is an
            exception to the textual standard of probable cause.
            Florida v. Royer, 460 U.S. 491, 498 (1983). A
            suppression court is required to “take[] into account
            the totality of the circumstances—the whole picture.”
            Navarette, supra (internal quotation marks and
            citation omitted).       When conducting a Terry
            analysis, it is incumbent on the suppression court to
            inquire, based on all of the circumstances known to
            the officer ex ante, whether an objective basis for
            the seizure was present. Adams v. Williams, 407
            U.S. 143, 146 (1972). In addition, an officer may
            conduct a limited search, i.e. a pat-down of the
            person stopped, if the officer possesses reasonable
            suspicion that the person stopped may be armed and
            dangerous. United States v. Place, 462 U.S. 696,
            702 (1972).

Commonwealth v. Carter, 105 A.3d 765, 768-769 (Pa.Super. 2014)

(en banc), appeal denied, 117 A.3d 295 (Pa. 2015) (citations formatted).

      This court has previously stated that, “possession 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.”   Commonwealth v. Robinson, 600 A.2d 957, 959

(Pa.Super. 1991), citing     Commonwealth v. Mears, 424               A.2d 533



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(Pa.Super. 1981), and Commonwealth v. Lagana, 537 A.2d 1351 (Pa.

1988); see also Commonwealth v. Stevenson, 894 A.2d 759, 772

(Pa.Super. 2006).

      We agree with the Commonwealth that the facts in Robinson are

analogous to the case sub judice.            In Robinson, the defendant was

personally observed by a police officer bending over into a van with a

firearm on his waistband. Robinson, 600 A.2d at 959. After making this

observation, the officer drove down the street, discussed the situation with

her partner, and then stopped Robinson’s van. Id. at 959. In Robinson,

there was no indication that the defendant violated the Motor Vehicle Code

before being stopped by the police.

      Appellant      argues   that   both    Robinson    and    Stevenson     are

distinguishable from the instant case because the defendants in those cases

were observed by police officers with firearms on their person, while the gun

in this case was originally observed in an unoccupied car.        The statute at

question,   18    Pa.C.S.A.     §    6106,   indicates   that   the   cases   are

indistinguishable:

            any person who carries a firearm in any vehicle
            or any person who carries a firearm concealed on
            or about his person, except in his place of abode
            or fixed place of business, without a valid and
            lawfully issued license under this chapter commits a
            felony of the third degree. [Emphasis added.]

      The statute does not enumerate any differences between an individual

who is concealing a firearm on his person and one who is carrying a firearm


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in his vehicle. The language of the statute, coupled with this court’s decision

in Robinson, establishes the reasonable suspicion that was required for the

police to stop the red Chrysler, regardless of whether a violation of the Motor

Vehicle Code was observed.       In the instant case, the police are able to

“articulate something more than an inchoate and unparticularized suspicion

or hunch,” as contemplated by the United States Supreme Court in

Sokolow. The officers personally observed the butt end of a firearm in an

unoccupied vehicle parked in an area that, according to Officer Flicker’s

testimony, was known for open-air drug transactions and homicides. (Notes

of testimony, 3/26/14 at 4.) Much like the officers in Robinson, the officers

in the present case had a reasonable suspicion that appellant may be

dangerous; and by stopping the red Chrysler, the officers were properly

conducting an investigatory detention.

       We find that by denying appellant’s motion to suppress evidence, the

trial court did not err. The trial court made the following factual finding on

the record: “I find as a matter of fact [the police] were going to stop the car

because they had seen a gun in plain view in a high crime area.” (Id. at

40.)   The record, through the testimony of Officer Flicker, supports this

finding.   (See id. at 4.)   We further find that the trial court reached the

correct conclusion of law based upon the court’s factual findings.        See

Jones, 121 A.3d at 526.

       Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2015




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