J-S24014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

BYRON TAYLOR

                            Appellee                 No. 2398 EDA 2014


                      Appeal from the Order July 15, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002142-2014


BEFORE: GANTMAN, P.J., ALLEN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                            FILED MAY 22, 2015

       Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Philadelphia County Court of Common Pleas, which granted

the motion to suppress of Appellee, Byron Taylor. We affirm.

       In its opinion, the trial court fully set forth the facts and procedural

history of this case. Therefore, we have no reason to restate them.1

       The Commonwealth raises the following issue for our review:

          WHERE POLICE SAW TWO MEN, [APPELLEE] AND
          KENNETH THOMAS, ARGUING LATE AT NIGHT IN A HIGH
          CRIME AREA OF FREQUENT ROBBERIES, AND MR. THOMAS
          WAS WAIVING HIS HANDS IN THE AIR, AGITATED AND
          VISIBLY UPSET; AND UPON THE APPROACH OF THE
          POLICE [APPELLEE] WALKED AWAY, AND MR. THOMAS
____________________________________________


1
  We observe, however, that the correct date of the order appealed from is
July 15, 2014.
J-S24014-15


        TOLD THEM THAT HE DID NOT KNOW [APPELLEE], AND
        THAT [APPELLEE] HAD BEEN FOLLOWING HIM AND
        “MESSING WITH” HIM, DID THE [TRIAL] COURT ERR IN
        SUPPRESSING [APPELLEE’S] GUN ON THE GROUND THAT
        THE POLICE LACKED AN ARTICULABLE REASON TO STOP
        HIM FOR INVESTIGATION?

(Commonwealth’s Brief at 4).

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Charles J.

Cunningham, III, we conclude the Commonwealth’s issue merits no relief.

The trial court opinion comprehensively discusses and properly disposes of

the question presented. See Trial Court Opinion, filed December 1, 2014, at

4-7 (finding: uncontroverted testimony of Officer Santiago established

Officer Doorley grabbed Appellee to talk to him; reasonable person in

Appellee’s position would not believe he was free to leave when physically

restrained by uniformed police officer; when police grabbed Appellee, he was

subject to investigative detention requiring reasonable suspicion that

Appellee was involved in criminal activity; genesis of investigation was

Officer Santiago’s observation of Appellee and another man arguing on

street in high-crime area; Appellee and other man were not, however,

involved in physical fight or otherwise engaged in behavior indicative of

criminal activity; when police approached, Appellee and other man simply

walked away; further investigation by officers failed to uncover evidence

that criminal activity was afoot; other man stated Appellee was “messing

with” him, but no testimony was offered regarding any criminal behavior;

                                   -2-
J-S24014-15


Officer Santiago’s observations of Appellee’s appearance and behavior during

subsequent stop of Appellee are irrelevant to determination of whether

reasonable    suspicion   existed    to   initiate   stop;   other   surrounding

circumstances—including late hour of night, lack of bars on block where

Appellee was standing, and Appellee’s act of walking up steps to enter his

residence when police approached him—failed to give rise, alone or in

aggregate, to reasonable suspicion; court properly suppressed evidence

recovered from Appellee’s person during unlawful stop).         Accordingly, we

affirm on the basis of the trial court opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2015




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                   FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
               COURT OF COMMON PLEAS, CRIMINAL TRIAL DIVISION

                                                                                    CP-51-CR-0002142-2014 Comm. v. Taylor, Byron
                                                                                                     Opinion



COMMONWEALTH OF PENNSYLVANIA
                                                              2398 EDA 2014                 If 7228458911
                                                                                        111 II II 1111111111111111
                v.
                                                              CP-51-CR-0002142-2014
BYRON TAYLOR

                                                                                         Ffl~D
                                               OPINION                                   DEC O J. 2014
                                                                                   . Crlmin.al /-\µ,..;, , .         .
STATEMENT OF THE CASE
                                                                                 First Jud1c1al Dismc1 ui (;;M

        The Commonwealth is appealing the Court's order of July 14, 2014, granting

Defendant's motion to suppress physical evidence. The Commonwealth complains that the

Court erred in finding that the police lacked reasonable suspicion to stop Defendant. This

complaint is without merit.


PROCEDURAL HISTORY

        On February 10, 2014, Defendant was arrested and charged with various offenses' related

to his alleged illegal possession of a firearm. On May 1, 2014, Defendant filed a motion to

suppress all physical and testimonial evidence gathered by the police pursuant to Defendant's

arrest. On June 20, 2014, the Court held a hearing on Defendant's motion. At this hearing

Defendant's counsel argued only for the suppression of a firearm recovered from Defendant's

person, stating that there was in fact no testimonial evidence to suppress. (N.T. 6/20/14 pgs. 4-5)


1
 Possession of a Firearm by a Prohibited Person pursuant to 18 Pa.C.S.A. § 610S(a)(l); Altering or
Obliterating Marks of Identification pursuant to 18 Pa.C.S.A. § 6117(a); Firearms not to be Carried
Without a License pursuant to 18 Pa.C.S.A. § 6106(a)(l); Carrying Firearms on Public Streets in
Philadelphia pursuant to 18 Pa.C.S.A. § 6108.
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At the conclusion of this hearing the Court granted Defendant's motion. On July 15, 2014, the

Court heard and granted the Commonwealth's motion to reconsider and vacated its earlier order.

However, at the conclusion of this hearing the Court again granted Defendant's motion to

suppress.'     On August 14, 2014, the Commonwealth               filed this timely interlocutory appeal,

certifying that the Court's order of July 15, 2014, terminated or substantially handicapped the

prosecution.    Also, on August 14, 2014, the Commonwealth filed a "Statement of Errors

Complained of on Appeal" pursuant to Pa.R.A.P.                1925(b).    The Commonwealth          raises the

following issue on appeal:

        Where police saw two men, defendant and Kenneth Thomas, arguing late at night in a
        high crime area of frequent robberies, and Mr. Thomas was waiving his hands in the air,
        agitated, and visibly upset; and upon approach of the police defendant walked away, and
        Mr. Thomas told them that he did not know defendant, and that defendant had been
        following him and "messing with" him, did the lower court err in suppressing defendant's
        gun on the ground that the police lacked an articulable reason to stop him for
        investigation?


FINDINGS OF FACT

        At the suppression hearing held on June 20, 2014, the Court heard testimony from

Philadelphia Police Officer Juan Santiago regarding the circumstances of Defendant's arrest and

the recovery of the firearm from his person that gave rise to that arrest. On February 10, 2014, at

approximately 12:22 a.m. Officer Santiago and a partner, Officer Doorley, were on routine patrol

in a marked police car in the area of 5700 Market Street in the City of Philadelphia when Officer

Santiago observed Defendant and another man (hereinafter "the other man") having what Officer

Santiago believed to be an argument (N.T. 6/20/14 pgs. 9-10) Officer Santiago testified that he


2The
     Court's original written order of 7/15/14 reflected that the Commonwealth's motion for reconsideration had
been denied. However, at a subsequent hearing on 7/31/14 the Court ordered that the docket should reflect that
on 7/15/14 the Commonwealth's motion to reconsider had been granted, that the Court's 6/20/14 order granting
Defendant's motion to suppress was vacated, and that the Court again heard and granted Defendant's motion to
suppress on 7/15/14. (N.T. 7/31/14 pgs. 5-6)

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believed the men were having an argument because the two were facing one another, making

"serious faces", and because the other man was very animated and making "hand gestures."

Officer Santiago also testified that the men were in a "high crime area" and that there were no

open business establishments on the block. (N.T. 6/20/14 pgs. 10-11, 17-18)

       Upon witnessing this apparent argument, the officers made a U-turn in their patrol car

and circled around to approach the two men. Officer Santiago testified that when Defendant and

the other man saw the officers approaching they walked away in opposite directions.              The

officers then approached the other man and asked him "what's going on, what happened [?]"

The other man told the officers that he did not know Defendant and that Defendant had been

following him and "messing with" him.        Officer Santiago testified that the other man looked

"worried and agitated."     After ascertaining the other man's identity the officers released him.

(N.T. 6/20/14 pgs. 11-12)

       The officers then surveyed the area in their police car in an attempt to find Defendant.

About a block away the officers encountered Defendant, who was coming down from a porch on

the west side of the street and crossing to the other side. Officer Santiago testified that when

Officer Doorley exited the vehicle and approached Defendant he "immediately" began to walk

up the steps to a residence. This residence was later ascertained to be Defendant's own home.

(N.T. 6/20/14 pgs 13, 19, 28)

       Officer Santiago testified that when Defendant began to walk up the steps Officer

Doorley "grabs him to talk to him." He further testified that Defendant "bladed" the right side of

his body away from Officer Doorley. While Officer Doorley was holding onto Defendant from

the left Officer Santiago approached from the right. Officer Santiago noticed that the right side

of Defendant's pants were "sagging" as if burdened by a heavy object and he reached out to feel


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Defendant's pocket. Officer Santiago testified that he could tell by feeling the pocket that there

was a handgun inside. Officer Santiago reached into the pocket and found a loaded pistol. (N.T.

6/20/14 pgs. 13-14, 18-19)


DISCUSSION OF THE ISSUE RAISED


I.      THE COURT PROPERLY            SUPPRESSED       PHYSICAL EVIDENCE

       RECOVERED        FROM THE DEFENDANT BECAUSE THE POLICE LACKED

       THE REASONABLE          SUSPICION OF CRIMINAL ACTIVITY NECESSARY TO

       INITIATE AN INVESTIGATORY             STOP.

       When the Commonwealth appeals the grant of a suppression motion the reviewing court

must consider "only the evidence presented by the defendant and so much of the evidence for the

prosecution which, when read in the context of the record as a whole, remains uncontradicted."

Commonwealth v. Pizarro, 723 A.2d 675, 676-677 (Pa. Super. 1998) (citing Commonwealth v.

Mendenhall, 552 Pa. 484, 486, 715 A.2d 1117, 1118 (1998)). If the evidence supports the

suppression court's findings of fact, the reviewing court should reverse only if the legal

conclusions drawn from the evidence are erroneous. Id.

       Where a defendant has made a motion to suppress evidence, the burden is on the

Commonwealth to prove by a preponderance of the evidence that the challenged evidence was

not obtained in violation of the defendant's rights. Commonwealth v. Wallace, 42 A.3d 1040,

1047-1048 (Pa. 2012) For constitutional purposes there are three well established categories of

interactions between police officers and a criminal suspect: (1) a "mere encounter", which does

not need to be supported by any level of suspicion, (2) an "investigative detention", which must

be supported by "reasonable suspicion", and (3) an arrest, which must be supported by "probable



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"reasonable suspicion" that Defendant was involved in criminal activity based on specific and

articulable facts. McClease, 750 A.2d at 325

        Applying the standard explained above, the Court correctly concluded that the

Commonwealth failed to meet its burden of showing that the police officers who stopped

Defendant articulated sufficient facts to justify a reasonable suspicion that defendant was

engaged in criminal activity. The genesis of the investigation was Officer Santiago's observation

of Defendant and another man arguing in what Officer Santiago identified as a "high crime

area." However, the two were not involved in a physical fight or otherwise engaging in behavior

indicative of criminal activity. When the police approached to investigate, the two men simply

walked away. The Superior Court has said that "an individual's act of merely walking away from

police officers in a 'high crime area' is manifestly insufficient to justify an investigative

detention of that individual." Commonwealth v. Key, 789 A.2d 282, 289-290 (Pa. Super. 2001)

Further investigation by the officers failed to uncover evidence that criminal activity was afoot.

When the police interviewed the other man he reported that Defendant was "messing with him"

but no testimony regarding criminal behavior was offered. Officer Santiago proffered other

apparently suspicious circumstances justifying the seizure of Defendant: it was late at night,

there were no bars in the area', and when officers encountered Defendant for a second time he

was crossing the street and, upon seeing the officers, walked up the steps to enter a building.

The Court finds that none of the circumstances, alone or in the aggregate, gave rise to reasonable

suspicion.

         It must be noted that Defendant's action in turning his body away from Officer Doorley

after being stopped, and Officer Santiago's observation that Defendant's pants were "sagging" as

3 The Court  notes that Officer Santiago testified on cross-examination that he was unsure whether there were bars
 near the area where Defendant and the other man were, although he did testify there were none on the exact
 block where the men were standing. (N.T. 6/20/14, pgs. 12, 38-39)

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    if weighed down by a gun, are not relevant to the determination of whether reasonable suspicion

    existed to initiate the stop. Defendant was stopped for investigation prior to the occurrence of

    these events and reasonable suspicion did not exist to justify the initial stop.



    CONCLUSION

           Because the police lacked reasonable suspicion to stop Defendant, the Court properly

    granted Defendant's motion to suppress evidence recovered from Defendant's person.




    December 1, 2014




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