J-S60029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellant

                    v.

ISAIAH TUCKER

                         Appellee                     No. 158 EDA 2015


                 Appeal from the Order December 11, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0007736-2014


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                      FILED NOVEMBER 30, 2015

      The Commonwealth of Pennsylvania appeals from the order, entered in

the Court of Common Pleas of Philadelphia County, that granted Isaiah

Tucker’s motion to suppress evidence. Upon careful review, we affirm.

      The Honorable William J. Mazzola set forth the facts of this case as

follows:

      [O]n the date in question, at about 10:30 p.m., [Officer Anzideo]
      and [Officer Parker] were in full uniform in a marked car in the
      area of the 1800 block of South 27th Street, “or in that general
      direction,” responding to a radio call of reported gunshots at 27 th
      and Snyder, which they received when they were on Moore
      Street approaching 27th.       They turned left and proceeded
      southbound on 27th, where they, apparently immediately,
      observed [Tucker] riding a bicycle northbound coming toward
      them on the passenger side from the area of the shooting which
      was two blocks further ahead. He was riding slow, cut across
      the front of their car and had his left hand, which side of him
      was facing them, on the handlebar and his right hand “down
      towards his side. It wasn’t, like, moving. It was just kind of,
      like, staying there stationary tucked to the side.” They stopped
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        the car and got out, [Officer Anzideo] got right in front of
        [Tucker’s] bike and asked what his name was and [Officer
        Parker] got behind his bike, at which point [Tucker] “just
        became real, like hyper and saying, ‘I’ll give you my ID, don’t
        touch me. I don’t want you touching me. I’ll give you my ID.’
        and [Tucker] started reaching for his pocket.” [Officer Parker]
        “started conducing a frisk where he was going to reach,”
        immediately felt a gun, screamed “Gun,” and [Tucker] jumped
        off the bike, and then started “to wrestle a little bit for [Officer
        Parker] to—place [Tucker] in custody.” When asked why they
        approached [Tucker] in the way that they did, [Officer Anzideo]
        replied “[t]here was a . . . report of a shooting moments prior to
        that, and we were heading right to that. [Tucker] was coming
        from that direction. We had a feeling that he could’ve been
        involved in the shooting” and “[t]here was nobody else on the
        street.” [Officer Parker] stated that no other information about
        the shooting had been sent in the radio call, and when asked
        what he meant when he said [Tucker] was acting hyper said
        “[h]e was just reiterating that he didn’t want to be touched and
        that he was going to get the ID, like, real loud . . . constantly
        repeating himself.” And when asked “Did he appear to be
        panicky?” said “Slightly nervous in that way.” When asked if he
        would classify the 1800 block of South 27th Street as a high-
        crime area, [he] stated “Yes. It’s between the Wilson Park
        Projects and a known – 27th and Tasker, which is a known street
        corner for high gun violence. They’re literally a block apart.” He
        stated that he did not know [Tucker] before that date and that
        they recovered a gun from him which he then identified.

Trial Court Opinion, 3/23/15, at 2-3 (citations omitted).

        Tucker was arrested on June 18, 2014 and charged with receiving

stolen property,1 possession of a firearm while prohibited,2 without a

license,3 and in public,4 and resisting arrest.5    Tucker subsequently filed a
____________________________________________


1
    18 Pa.C.S. § 3925(a).
2
    18 Pa.C.S. § 6105(a)(1).
3
    18 Pa.C.S. § 6106(a)(1).
(Footnote Continued Next Page)


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motion to suppress the physical evidence obtained by Officers Anzideo and

Parker on July 29, 2014. The court granted Tucker’s motion on December

11, 2014.

        This timely appeal followed, in which the Commonwealth presents a

single issue for our determination:

        Where an experienced police officer responding to a radio call of
        shots fired saw defendant riding his bike away from the location
        of the shooting less than two blocks from it, in a high crime
        area; defendant, who had his right hand tucked at his side, rode
        his bike across the street in front of the officer’s marked car,
        turning his right side away from the police car; and defendant
        became “hyper” and reached for his pocket when the police
        asked for his name, did the lower court err in finding that the
        police lacked reasonable suspicion to stop and frisk him?

Commonwealth’s Brief, at 4.

        When the Commonwealth appeals from a suppression order, our

responsibility is as follows: “we follow a clearly defined standard of review

and consider only the evidence from the defendant’s witnesses together with

the evidence of the prosecution that, when read in the context of the entire

record, remains uncontradicted.” Commonwealth v. Dales, 820 A.2d 807,

812 (Pa. Super. 2003) (quoting Commonwealth v. Nester, 709 A.2d 879,

880–81 (Pa. 1998)). “We are bound by the lower court’s findings of fact if

they are supported in the record, but we must examine any legal conclusions
                       _______________________
(Footnote Continued)


4
    18 Pa.C.S. § 6108.
5
    18 Pa.C.S. § 5104.



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drawn from those facts.”    Id. (quoting Commonwealth v. Pickron, 634

A.2d 1093, 1096 (Pa. 1993)). We may reverse a suppression ruling only if

the legal conclusions drawn from the facts are in error. Commonwealth v.

Fulton, 921 A.2d 1239, 1243 (Pa. Super. 2007).

      As a threshold matter, we must examine further the Commonwealth’s

contention that the arresting officer’s initial interaction with Tucker was a

“mere encounter” and not, as the lower court concluded, a detention.

      The Supreme Court of Pennsylvania has identified three distinct

categories of interactions between citizens and the police. Commonwealth

v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995).

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

Id. (internal citations omitted). The line between a “mere encounter” and

an “investigative detention” is “not subject to a precise definition” and thus

“[e]ach factual situation must be examined to determine if force was used to

restrain the citizen in some way.”     Commonwealth v. Jones, 378 A.2d

835, 839 (Pa. 1977).

      If a citizen approached by a police officer is ordered to stop or is
      physically restrained, obviously a “stop” occurs. Equally obvious
      is a situation where a police officer approaches a citizen and
      addresses questions to him, the citizen attempts to leave, and


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      the officer orders him to remain or physically restrains him; here
      too a “stop” occurs. A more difficult situation arises where no
      order or physical restraint is involved and the citizen does not
      attempt to walk away. This situation is more difficult because a
      police officer in uniform must be considered as showing authority
      and thus exercising some force simply because he is in uniform,
      a symbol of authority, when he approaches a citizen and
      addresses questions to him.

                                      ...

      Thus, to determine when a “stop” has occurred in the more
      difficult situation all of the circumstances which may in any way
      evidence a show of authority or exercise of force including such
      subtle factors as the demeanor of the police officer, the location
      of the confrontation, the manner of expression used by the
      officer in addressing the citizen, and the content of the
      interrogatories or statements must be examined. Once this
      factual examination has been made, the pivotal inquiry is
      whether, considering all of the facts and circumstances
      evidencing an exercise of force, “a reasonable man, innocent of
      any crime, would have thought [he was being restrained] had he
      been in the defendant's shoes.”

Id. at 839-40.

      Here, the trial court concluded that the officer’s interaction with Tucker

was best characterized as an “investigative detention” as opposed to a

“mere encounter.” Although the officers gave no verbal order to “stop,” the

exercise of force upon Tucker was clearly established when one uniformed

officer stopped his bicycle by standing in its path, while a second uniformed

officer took a position behind the bicycle after it stopped. See Jones, 378

A.2d at 839.     Based on our review of the record, we find that this legal

conclusion was not drawn in error. Fulton, 921 A.2d at 1243.

      Having agreed with the trial court’s determination that Tucker’s initial

interaction with the arresting officers was an investigative detention, and not


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a mere encounter, we next consider whether the seizure was warranted

under the circumstances.          Both Article I, Section 8, of the Pennsylvania

Constitution6 and the Fourth Amendment of the United States Constitution7

protect citizens from unwarranted seizures by law enforcement officials.

Pennsylvania courts “have recognized only two instances where police may

‘seize’ an individual[;] both require an appropriate showing of antecedent

justification: first, an arrest based upon probable cause; second, a ‘stop and

frisk’   based   upon     reasonable     suspicion   that   criminality   was   afoot.”

Commonwealth v. Melendez, 676 A.2d 226, 228 (Pa. 1996) (internal

citations omitted).




____________________________________________


6
    Article I, Section 8, of the Pennsylvania Constitution states:

         The people shall be secure in their persons, houses, papers and
         possessions from unreasonable searches and seizures, and no
         warrant to search any place or to seize any person or things
         shall issue without describing them as nearly as may be, nor
         without probable cause, supported by oath or affirmation
         subscribed to by the affiant.
7
    The 4th Amendment of the United States Constitution states:

         The right of the people to be secure in their persons, houses,
         papers, and effects, against unreasonable searches and seizures,
         shall not be violated, and no Warrants shall issue, but upon
         probable cause, supported by Oath or affirmation, and
         particularly describing the place to be searched, and the persons
         or things to be seized.



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        A brief detention of a citizen for investigatory purposes, commonly

referred to as a “Terry stop,”8 may be found reasonable where the police

officer points to specific and articulable facts, “which in conjunction with

rational    inferences     deriving     therefrom”   warrant   the    initial   stop.

Commonwealth v. Arch, 654 A.2d 1141, 1143 (Pa. Super. 1995) (quoting

Commonwealth v. Prengle, 437 A.2d 992, 994 (Pa. Super. 1981)). “This

standard may be met if the police officer observes unusual and suspicious

conduct on the part of the individual seized which leads him reasonably to

conclude that criminal activity may be afoot.”          Arch, 654 A.2d at 1144

(internal citations omitted).          “Conversely, an officer’s observations of

irregular behavior without a concurrent belief that crime is afoot also renders

a stop unreasonable.” Commonwealth v. Espada, 528 A.2d 968, 970 (Pa.

Super. 1987).

        A police officer “need not personally observe the suspicious conduct . .

. and may rely upon information received over the police radio to justify the

initial stop.” Arch, 654 A.2d at 1144. When the suspicious conduct has not

been personally observed, the specificity of the description of the suspect is

viewed as a major factor in justifying the Terry stop.               Id.; see also

Commonwealth v. Jackson, 519 A.2d 427, 431 (Pa. Super. 1986) (finding

“vague description” of perpetrator insufficient, in itself, to justify stop and


____________________________________________


8
    See generally Terry v. Ohio, 392 U.S. 1 (1968).



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frisk).      However, the officer’s conclusion cannot be based upon an

“unparticularized suspicion” or “hunch.”      Arch, 654 A.2d at 1144 (quoting

Terry, 392 U.S. at 27).

          Here, Officers Anzideo and Parker initiated an investigative detention

based upon their observation of Tucker slowly riding a bicycle with “his left

hand on the handlebar, and his right hand [down] towards his side.” N.T.

Suppression Hearing, 12/11/14, at 7-8.         As the officers approached the

bicycle, Tucker apparently moved to pass the oncoming vehicle on the

driver’s side. Id. Officer Anzideo testified that “[t]here was a shooting, a

report of a shooting moments prior to that, and we were heading right to

that.      He was coming from that direction.     We had a feeling that he

could’ve been involved in the shooting.” Id. at 9-10 (emphasis added).

          On appeal, the Commonwealth argues that the totality of the

circumstances was sufficient to show reasonable suspicion.         See Brief of

Appellant, at 10.      In particular, the Commonwealth notes that the officers

stopped Tucker “at night in a high crime area, less than two blocks from

where shots fired had just been reported.” Id. In support of this argument,

the Commonwealth highlights two decisions, Commonwealth v. Zhahir,

751 A.2d 1153, 1156 (Pa. 2000), and Commonwealth v. Hughes, 908

A.2d 924, 927 (Pa. Super. 2006).

          In Hughes, the defendant challenged his conviction for driving under

the influence, claiming that his arrest was illegal. Hughes, 908 A.2d at 927.

The arresting Pennsylvania State Trooper initially stopped the defendant

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after following his vehicle for less than a mile and observing the vehicle

swerving across the divided line at least twice. Id. Based on his nine years

of experience with the Pennsylvania State Police, the trooper testified that

“[s]werving in and out of a lane of traffic was a violation indicative of a DUI

offense.” Id. at 928. Based on the totality of the circumstances, this Court

found that the defendant’s traffic violations provided an “adequate basis for

reasonable suspicion justifying the initial traffic stop” and affirmed the

judgment of sentence. Id. at 928-29.

      In Zhahir, the Supreme Court of Pennsylvania adopted the plain feel

doctrine and held that the seizure of crack cocaine from the defendant’s

jacket pocket occurred during the course of a lawful weapons frisk following

an investigatory detention. Zhahir, 751 A.2d at 1163. The origin and basis

for the investigatory detention was a tip provided by the officers’ captain

that “a male, wearing a green jacket and blue jeans, was selling narcotics at

60th and Lansdowne Avenue in Philadelphia.”      Id. at 1155. Acting on this

tip, the officers confirmed the location and description of the defendant.

Upon seeing the officers, the defendant entered a Chinese restaurant and

“appeared to throw something on the floor with his left hand.”      Id.   After

driving past the restaurant, the officers turned their vehicle around and

observed the defendant “exiting the restaurant and looking both ways.

When the officers pulled in front of the restaurant, [defendant] had his back

to them and was bending over to retrieve something from the floor in the

same area where previously he appeared to have discarded an item.” Id. at

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1156.     At that point, one of the officers got out of the vehicle and

approached the defendant. Id.

        In considering whether the stop and frisk were warranted, the Court

evaluated the totality of the circumstances. The Court reasoned that:

        Such suspicious conduct in an area associated with criminal
        activity provided independent corroboration of the essential
        allegation of the information and, thus, suggested that
        criminality may have been afoot. Of additional consequence,
        [the officer] was confronted with an individual whose actions
        appeared to be consistent with retrieval of a weapon from his
        pocket. In light of the totality of this information, the officers
        were justified in conducting an investigative detention.

Id. at 553-54.      In light of this finding, the Court reviewed the officer’s

decision to frisk and seize the contraband before affirming the defendant’s

conviction. Id. at 555.

        In Hughes, the totality of the circumstances analysis was informed by

the trooper’s observation of repeated traffic violations.      In Zhahir, the

Court’s decision was supported by the visual corroboration of reported drug

activity and a series of suspicious activities observed by the officers prior to

initiating the investigative detention.        In this case, however, no such

opportunity for corroboration or observation existed.      Instead, the officers

responded to a reported shooting with no suspect description. The officers

immediately stopped Tucker based on nothing more than the fact that he

changed his path to pass the officers’ car on the driver’s side rather than the

passenger’s side. When asked why he and his partner initially approached

Tucker, Officer Anzideo acknowledged the report of a shooting and a


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“feeling that [Tucker] could’ve been involved in the shooting.”              N.T.

Suppression   Hearing,     12/11/14,    at      9-10   (emphasis   added).   This

“unparticularized suspicion” or “hunch” is insufficient to show reasonable

suspicion. Arch, 654 A.2d at 1144 (quoting Terry, 392 U.S. at 27).

      In sum, Officer Anzideo’s rationale for detaining Tucker would apply

equally to any person on the street in a high crime area in the wake of a

reported shooting.      Moreover, Tucker’s arguably suspicious activity (i.e.

acting “hyper” and reaching for his pocket, ostensibly to produce his “ID”)

occurred after he was detained by the Officers. This activity is irrelevant to

the totality of the circumstances analysis because “[s]uch a subsequent

observation cannot provide grounds for the antecedent Terry stop.”

Espada, 528 A.2d at 971 (citing Terry, 392 U.S. at 17).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2015




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