J-S23024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
    RASHEED RULEY                         :
                                          :
                    Appellant             :   No. 832 EDA 2016

        Appeal from the Judgment of Sentence Dated February 16, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006092-2015


BEFORE: OLSON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                              FILED JUNE 08, 2017

        Appellant, Rasheed Ruley, appeals from the judgment of sentence

imposed after the trial court convicted him of violating the Uniform Firearms

Act by illegally possessing a firearm, possessing a firearm without a license,

and carrying a firearm on the streets of Philadelphia.1 We affirm.

        The trial court summarized the underlying facts as follows:

              A motion-to-suppress hearing was conducted before this
        court on November 16, 2015. The following facts were proved at
        the hearing: Police Officer Miguel Hernandez and his partner,
        Police Officer Cartagena (first name not given), were in full
        uniform, in a marked vehicle, in the area of Litchfield Street
        responding to a report of a person with a gun. The flash
        information they received was “a black male, dark complexion,
        blue jean jacket, light blue shirt, blue jeans, armed with a
        firearm ran into the location on 57th and Florence area.”
        Approximately one to two minutes elapsed from the time the
        flash information was received until they arrived at 5615

1
    18 Pa.C.S. §§ 6105, 6106 and 6108.
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      Litchfield Street. When [they] observed [Appellant], he matched
      the exact description contained in the flash information. Officer
      Hernandez exited his vehicle and approached [Appellant].
      [Appellant], who looked at Officer Hernandez approaching,
      grabbed a baby stroller he had with him and began to walk with
      the stroller; Officer Hernandez could not recall if he had asked
      [Appellant] to stop. As [Appellant] grabbed the stroller, Officer
      Hernandez observed the butt of a black handgun inside the left
      side of [Appellant’s] unbuttoned denim jacket.            Officer
      Hernandez signaled his partner in Spanish, who had also exited
      their patrol car, that [Appellant] had a gun. [Appellant] was
      stopped and [had] a loaded, black 9 mm Ruger pistol, Model C9.
      After the gun was recovered, [Appellant] was placed in handcuffs
      and without being asked a question, stated that he had found
      the gun in an empty lot the day before. (N.T. 11/16/15, pp. 5-
      14). [Appellant] was not licensed to carry a firearm. (N.T.
      11/16/15, p. 15). Following argument, the motion to suppress
      was denied.

Trial Court Opinion, 8/3/16, at 2 (footnote omitted).

      Appellant proceeded to a bench trial and was convicted of the

aforementioned firearms offenses.    The trial court deferred sentencing for

the completion of a pre-sentence report.    On February 16, 2016, the trial

court sentenced Appellant to an aggregate two to four years’ incarceration.

Appellant filed this timely appeal in which he presents a single issue for our

review:

            Did not the lower court err by denying [A]ppellant’s motion
      to suppress physical evidence where [A]ppellant was subjected
      to an illegal stop based solely on an anonymous tip, where the
      stop was unsupported by reasonable suspicion or probable cause
      in violation of the Fourth and Fourteenth Amendments of the
      United States Constitution and Article I, § 8 of the Pennsylvania
      Constitution, and where any statement made by [A]ppellant
      while he was in custody was the fruit of the illegal police
      conduct?

Appellant’s Brief at 3.


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      Appellant argues that he was stopped illegally because the police

lacked reasonable suspicion.       See generally, Appellant’s Brief at 7-19.

Appellant specifically contends that the stop was illegal because it was based

on an anonymous tip and “because he matched a generic clothing

description given over police radio from an unknown source” about someone

at a “different location.”   Id.   Appellant claims that when he was seen by

Officers Hernandez and Cartagena, he was pushing the baby stroller, and

that it was only after he “was stopped by police did the officer observe the

firearm.” Id. at 7.

      Conversely, the Commonwealth argues that the police saw Appellant’s

gun prior to initiating the stop of Appellant. Commonwealth Brief at 1. The

Commonwealth references the trial court’s recitation of Officer Hernandez’s

testimony that he saw the gun on the inside of Appellant’s unbuttoned jacket

and then arrested him. Id. at 5. The Commonwealth states that Appellant

“rightly concedes in his brief that he grabbed the stroller before the

investigatory detention took place, but wrongly concludes that Officer

Hernandez did not see the gun until after the stop. His argument violates

the standard of review by reading the record in his favor and seeking to

overturn the suppression court’s credibility determination crediting Officer

Hernandez’s testimony.” Id.

      At the outset, we recite our standard of review:

      In addressing a challenge to a trial court’s denial of a
      suppression motion, we are limited to determining whether the


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      factual findings are supported by the record and whether the
      legal conclusions drawn from those facts are correct. Since the
      Commonwealth prevailed in 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 record
      supports the factual findings of the trial court, we are bound by
      those facts and may reverse only if the legal conclusions drawn
      therefrom are in error.

Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)

(citation omitted), appeal denied, 102 A.3d 985 (Pa. 2014). In addition,

our scope of review is confined to the suppression court record. In re L.J.,

79 A.3d 1073, 1080 (Pa. 2013).

      Officer Hernandez testified that he received a report of a “black male,

dark complexion, blue jean jacket, light blue shirt, blue jeans, armed with a

firearm” in the area of 54th and Florence. N.T., 11/16/15, at 5-7. When he

arrived at 5615 Litchfield Street within “one or two minutes” of receiving the

report, he saw Appellant “matching the exact” description. Id. at 8. This

testimony refutes Appellant’s argument that he matched a “generic”

description of clothing. As to Appellant’s argument that he was stopped at a

different location “that was neither 57th nor Florence,” we may take judicial

notice that 5615 Litchfield Street in Philadelphia is located within a few

blocks of 57th Street and Florence Avenue.2



2
 An appellate court may take judicial notice of a fact to the same extent as
a trial court. Commonwealth v. Mitchell, 554 A.2d 542, 548 n13 (Pa.
Super. 1989) (taking judicial notice that the southeast corner of 40th and



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      Appellant correctly argues that the anonymous tip was insufficient to

justify an investigative detention of Appellant. See Florida v. J.L., 529 U.S.

266, 120 S. Ct. 1375, 1376, 146 L. Ed. 2d 254 (2000) (anonymous tip that a

young black male standing at a particular bus stop and wearing a plaid shirt

was carrying a gun, without more, was insufficient to justify a stop by the

police where, aside from the tip, the officers had no reason to suspect illegal

conduct, and the officers did not see a firearm or observe any unusual

movements); see also Commonwealth v. Jackson, 698 A.2d 571 (Pa.

1997) (holding that police lacked reasonable suspicion to conduct a stop and

frisk pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889

(1968), based solely on an anonymous tip that a person matching the



Spruce Streets is located within geographical boundaries discussed in that
case). Further:

      “The doctrine of judicial notice is intended to avoid the necessity
      for the formal introduction of evidence in certain cases when
      there is no real need for it, where a fact is so well established as
      to be a matter of common knowledge.” Albert Appeal, 372 Pa.
      13, 20, 92 A.2d 663, 666 (1952); See Commonwealth ex rel.
      Duff v. Keenan, 347 Pa. 574, 582–83, 33 A.2d 244, 249 (1943)
      (“so well known as to be incontestable.”). Included in the
      subjects appropriate for judicial notice is the county in which a
      town or city is located, [s]ee Emert v. Larami Corp., 414 Pa.
      396, 200 A.2d 901 (1964); Commonwealth v. Kaiser, 184 Pa.
      493, 39 A. 299 (1898), and the location of roads and highways.
      See Schmidt v. Allegheny County, 303 Pa. 560, 154 A. 803
      (1931); Commonwealth v. Ball, 277 Pa. 301, 121 A. 191
      (1923).

Commonwealth v. Varner, 401 A.2d 1235, 1236 (Pa. Super. 1979)
(citations omitted).



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suspect's description is carrying a gun).   But the detention here was not

based exclusively on the anonymous tip.

      The court determined that Officer Hernandez saw Appellant’s gun

when he encountered Appellant, and that it was not until Officer Hernandez

saw the gun that Appellant was legally detained. The trial court stated:

      Clearly [Appellant] in the instant case was not subjected to a
      non-custodial investigative detention when Officer Hernandez
      first approached him; this was a mere encounter that quickly
      escalated to an investigatory stop simply because [Appellant’s]
      jacket inadvertently moved forward as he grabbed the baby
      stroller he had with him, unintentionally exposing the butt of a
      black handgun inside the left side of his unbuttoned denim jacket
      to Officer Hernandez.      (N.T. 11/16/15, pp. 5-9).       . . .
      [Appellant] was not subjected to a “stop and frisk” prior to
      Officer Hernandez seeing the gun. Officer Hernandez could not
      recall if he had asked [Appellant] to stop, but even assuming he
      had, his interaction with [Appellant] up to that point was still
      only a mere encounter; [Appellant] was not frisked.

Trial Court Opinion, 8/3/16, at 6-7. Contrary to Appellant’s argument, the

trial court clearly found that the police did not detain Appellant until after

they saw his gun and that it was their view of the gun that justified the

detention.

      In analyzing police-citizen interactions, we look to the nature of the

exchange between the officer and the citizen, which fall into one of three

categories:

      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 a reasonable suspicion; it subjects a suspect to a stop and a
      period of detention, but does not involve such coercive


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      conditions as to constitute the functional equivalent of an arrest.
      Finally, an arrest or “custodial detention” must be supported by
      probable cause.

Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)

(citation omitted).   When examining whether police contact constitutes a

mere encounter or an investigatory detention, we employ the following

precepts:

      To determine whether a mere encounter rises to the level of an
      investigatory detention, we must discern whether, as a matter of
      law, the police conducted a seizure of the person involved. To
      decide whether a seizure has occurred, a court must consider all
      the circumstances surrounding the encounter to determine
      whether the demeanor and conduct of the police would have
      communicated to a reasonable person that he or she was not
      free to decline the officers’ request or otherwise terminate the
      encounter. Thus, the focal point of our inquiry must be whether,
      considering the circumstances surrounding the incident, a
      reasonable person innocent of any crime, would have thought he
      was being restrained had he been in the defendant’s shoes.

Commonwealth v. Collins, 950 A.2d 1041, 1046–47 (Pa. Super. 2008)

(citation omitted) (holding that interaction between the petitioner and police

was a mere encounter where the petitioner was approached in his parked

car, in a public parking lot, by an officer with his police vehicle headlights

activated).

      “‘No constitutional provision prohibits police officers from
      approaching a citizen in public to make inquiries of them.’
      However, ‘if the police action becomes too intrusive, a mere
      encounter may escalate into an investigatory [detention] or
      seizure.’” Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa.
      Super. 2000) (quoting Commonwealth v. Boswell, 554 Pa.
      275, 283–84, 721 A.2d 336, 339–40 (1998) (plurality)). “The
      term ‘mere encounter’ refers to certain non-coercive interactions
      with the police that do not rise to the level of a seizure of the


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      person under the fourth amendment.”          Commonwealth v.
      Peters, 434 Pa. Super. 268, 642 A.2d 1126, 1129 (1994)
      (quoting Commonwealth v. Bennett, 412 Pa. Super. 603, 604
      A.2d 276, 280 (1992)).        For example, a mere encounter
      transpires when an officer approaches a citizen on a public street
      for the purpose of making inquiries. Id. (quoting Bennett, 604
      A.2d at 280).

             In contrast, “[a]n investigative detention occurs when a
      police officer temporarily detains an individual by means of
      physical force or a show of authority for investigative purposes.”
      Commonwealth v. Smith, 904 A.2d 30, 35 (Pa. Super. 2006)
      (quoting Commonwealth v. Barber, 889 A.2d 587, 592 (Pa.
      Super. 2005)). In other words, in view of all the circumstances,
      if a reasonable person would have believed that he was not free
      to leave, then the interaction constitutes an investigatory
      detention.      See Peters, 642 A.2d at 1129 (quoting
      Commonwealth v. Harper, 416 Pa. Super. 608, 611 A.2d
      1211, 1215 (1992)); Hill, 874 A.2d at 1218–19 (quoting
      Commonwealth v. Johonoson, 844 A.2d 556, 562 (Pa. Super.
      2004)). An investigatory detention triggers the constitutional
      protection of the Fourth Amendment to the United States
      Constitution, Article I, Section 8 of the Pennsylvania
      Constitution, and the prerequisites for such a detention [].

Commonwealth v. Cauley, 10 A.3d 321, 325–26 (Pa. Super. 2010).

      On direct examination by the Commonwealth, Officer Hernandez

recounted his interaction with Appellant as follows:

      Q:    After you observed [Appellant], did you do anything?

      A:    I exited my vehicle. I began to approach [Appellant]. At
            that time he looked at me. He was with a baby stroller
            and I believe two other young children. He immediately
            looked at me and grabbed the baby stroller and attempted
            to walk forward with the stroller. And at that time I
            stopped him.

      Q:    Can you describe his body language? Besides looking at
            you, did you observe him do anything else with his body?




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     A:   Just a quick reaction. Kind of tensed and grabbing the
          baby’s stroller and attempted to walk away.

     Q.   As he attempted to walk away, did you say anything to
          him?

     A.   I believe I said, Stop, or you know, How you doing.         I
          didn’t want to startle him or cause any kind of conflict.

     Q.   Why didn’t you want to startle him?

     A.   In case he had a weapon or the gun.

     Q.   At some point did you exit your patrol vehicle?

     A.   I did at that point.

     Q.   When you approached [Appellant], were you able to make
          any observations about his person?

     A.   He was bladed towards me, Your Honor, as I approached.
          As he went to grab the stroller – he had a blue denim
          jacket, which wasn’t buttoned up. I observed he had a
          black handgun inside the left side of [his] jacket. As he
          leaned forward to hold onto the baby’s stroller, that’s when
          the jacket – the weight of the gun actually pulled the
          jacket forward and that’s when I seen the handgun. The
          butt of the gun was sticking out.

     Q.   Approximately how far away or how close were you to
          [Appellant] when you were able to observe the firearm?

     A.   About a foot away.

     Q.   After you observed the firearm, did you do anything next?

     A.   My partner exited the vehicle, also. We both gave each
          other eye contact. I signaled to my partner, you know, in
          Spanish that [Appellant] had a weapon.

     Q.   What did you say?

     A.   (Witness speaks in Spanish).



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     Q.    Is that language you two use often?

     A.    Normally when we don’t want to startle anybody, we do it
           as easy as possible to catch the person off guard.

     Q.    Did you recover the firearm?

     A.    I did.

N.T., 11/16/15, at 8-10.

     In light of this testimony, the trial court correctly rejected Appellant’s

claim that he was illegally detained. The court explained:

           It would seem to me that with the information from the
     flash and seeing someone that identically matches the flash that
     you could stop to have a conversation with someone like that
     and it may start off by a mere encounter.          The officer’s
     testimony was clear. He didn’t recall if he said stop. It might
     have been that he didn’t want to startle him because there were
     kids there. But when [Appellant] reached forward to grab the
     coach, is when the coat moved forward and he actually saw the
     weapon.

           So, you know, the mere [encounter] escalates to an
     investigatory stop, which at that second, would have been
     probable cause. The officer didn’t touch him. He didn’t question
     him. He didn’t do any of the indicia that normally comes along
     with an illegal confiscation of a weapon.

           I understand [Appellant’s] position is – just the flash and
     the mere stopping of this individual is what violates the
     Constitution, but an officer is allowed to, in a mere encounter
     setting, ask questions and [Appellant] is not compelled to stop
     and answer them. However, the officer’s testimony was clear.
     Within that first initial contact with [Appellant] moving forward
     and his jacket comes forward, the gun was clear. And for that
     reason, I don’t think that his Constitutional rights were violated
     and I would deny the motion to suppress.

Id. at 18-19.




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     We find no error in the trial court’s application of the law to the facts

presented at the suppression hearing.       According to Officer Hernandez’s

uncontradicted testimony, when he approached and called to Appellant,

Appellant began to walk away. Appellant thus demonstrated his belief that

he was free to leave.     It was not until Officer Hernandez observed the

firearm that the interaction became an investigatory detention. Therefore,

we conclude that the trial court did not err in denying Appellant’s

suppression motion.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/8/2017




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