J-S13036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JAMES FALLIGAN

                             Appellant                 No. 475 EDA 2016


           Appeal from the Judgment of Sentence December 12, 2013
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s):CP-51-CR-0005376-2012

BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 07, 2017

        Appellant, James Falligan, appeals nunc pro tunc from the judgment of

sentence entered in the Philadelphia County Court of Common Pleas.

Appellant claims he was entitled to the suppression of a firearm he was seen

discarding because he abandoned the firearm during an unlawful police

pursuit. We affirm.

        The trial court summarized the factual background to this appeal as

follows:

           On March 7, 2012 at approximately 10:40 p.m., while on
           tactical response on routine patrol in a high crime area,
           Officer [Anthony] Comitilo and his partner Officer [Alfred]
           Glacken responded to a gun robbery at a laundromat in
           the 200 Block of Grange Street in Philadelphia. Officer
           Comitilo had been assigned to this area for ten years and
           testified that he responded to gun crimes “four or five
           times a week in that general area.” Through radio, the

*
    Former Justice specially assigned to the Superior Court.
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         officers received information that the offender was “a black
         male wearing all black [with a] black hoodie.” The officers
         were traveling east on Grange Street and surveying the
         area for offenders when they saw [Appellant]. [Appellant]
         was traveling north on Howard Street crossing Grange
         Street in front of the officers. [Appellant] was within one
         block of the robbery. Officer Comitilo first saw [Appellant]
         at a distance of “about one-hundred feet.” Officer Comitilo
         testified that Defendant “matched the description to a ‘T’.”
         In a marked SUV and in full uniform the officers
         accelerated to catch up to [Appellant] to get a better look
         at him. The officers were traveling at a speed of ten miles
         per hour and accelerated to thirty miles per hour. The
         speed limit on Grange Street was 25 miles per hour. The
         officers did not activate their light and sirens at any time.
         When the officers were forty to fifty feet away, [Appellant]
         began to walk faster and then ran. [Appellant] turned into
         an alleyway and the officers briefly lost sight of him. After
         the officers turned into the alleyway, Officer Comitilo saw
         [Appellant] enter a “recessed alleyway in the back yards of
         residential homes.”[ ] At this point, Officer Comitilo saw a
         gun in [Appellant’s] hand. [Appellant] threw the gun
         behind a door lying in the alleyway. The officers used their
         spotlight on [Appellant], who pulled out his cell phone and
         walked back to the officers.         [Appellant] said to the
         officers: “. . . it’s just my phone, it’s just my phone.”
         Officer Comitilo testified that Officer Glacken recovered the
         gun from behind the door. The gun recovered was a
         Taurus handgun with the serial number NWD54843.

Trial Ct. Op., 6/13/16, at 1-3 (footnote omitted).

      Appellant was charged with violations of the Uniform Firearms Act.

Appellant filed an omnibus pretrial motion on June 21, 2012, seeking, inter

alia, the suppression of the firearm. The trial court convened a suppression

hearing on August 23, 2013, at which Officer Comitilo testified. The court

initially ordered that the firearm be suppressed, but vacated that order after

the Commonwealth filed a motion for reconsideration. Following a hearing



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on the Commonwealth’s motion, the court denied Appellant’s motion to

suppress on August 23, 2013.

      The trial court set forth the subsequent procedural history as follows:

         On October 24, 2013, [Appellant] was found guilty of all
         charges. On December 12, 2013, the [c]ourt sentenced
         [Appellant] to two and one half to five years [of
         imprisonment] on Possession of a Firearm under 18
         [Pa.C.S.] § 6105(a)(1), a felony of the second degree,
         three years reporting probation on Firearms Not to be
         Carried Without a License, under 18 [Pa.C.S.] §
         6106(a)(1), a felony of the third degree, and no further
         penalty on Carrying Firearms on the Public Streets of
         Philadelphia under 18 [Pa.C.S.] § 6108, a misdemeanor of
         the first degree.

         On May 28, 2014, [Appellant] filed a Petition under the
         Post-Conviction Relief Act[, 42 Pa.C.S. §§ 9541-9546]. On
         February 8, 2016, after an evidentiary hearing, the [c]ourt
         reinstated [Appellant’s] direct appeal rights. On February
         9, 2016, [Appellant] filed a Notice of Appeal. On February
         29, 2016, [Appellant] filed a Statement of Errors
         Complained of on Appeal . . . .

Id. at 1-2.

      Appellant presents the following question for review:

         Did the trial court err when it denied [Appellant’s] pre-trial
         motion to suppress physical evidence allegedly abandoned
         by [Appellant] after [Appellant] was seized by police as the
         arresting officers did not have reasonable suspicion to
         stop, detain or search [Appellant] at the time that that
         officers began pursuing [Appellant]?

Appellant’s Brief at 5. Appellant contends that the officers seized him when

they accelerated toward him in a marked police vehicle. Further, Appellant

argues that he was seized without reasonable suspicion.         Appellant thus

claims that he was entitled to suppression of the firearm because his


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abandonment of the firearm was coerced by an illegal seizure. No relief is

due.

       The principles governing our review are as follows:

         Our standard of review when assessing a challenge to the
         denial of a motion to suppress is well-established. Review
         is limited to whether the record supports the suppression
         court’s factual findings and whether the legal conclusions
         drawn from those facts are correct. Where the record
         supports the factual findings of the suppression court, we
         are bound by those findings and reverse only if the court’s
         legal conclusions are erroneous. When the appeal of the
         determination of the suppression court turns on allegations
         of legal error, the legal conclusions of the suppression
         court are not binding on the appellate court, which must
         determine if the law was properly applied to the facts.

         An interaction between police officers and a citizen can be
         classified using three categories to measure the degree of
         intrusion on a case-by-case basis.

            Traditionally, this Court has recognized three
            categories of encounters between citizens and the
            police.    These categories include (1) a mere
            encounter, (2) an investigative detention, and (3)
            custodial detentions. The first of these, 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 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.

         When a police officer temporarily detains an individual by
         means of physical force or a show of authority, an
         investigative detention has occurred.    An investigative
         detention constitutes a seizure of a person and activates
         the protections of the Fourth Amendment and the


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        requirements of Terry v. Ohio, 392 U.S. 1, 5 [ ] (1968).
        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 officer’s 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. Baldwin, 147 A.3d 1200, 1202-03 (Pa. Super. 2016)

(some citations omitted).

     Moreover,

        due to heightened privacy considerations in Pennsylvania,
        a police officer’s pursuit of a person fleeing the officer was
        a seizure for purposes of Article 1, Section 8 of the
        Pennsylvania Constitution. Thus, under [Commonwealth
        v. Matos, 672 A.2d 769, 771 (Pa. 1996)], any contraband
        discarded during the pursuit was abandoned by coercion
        and “the officer must demonstrate either probable cause to
        make the seizure or reasonable suspicion to stop and
        frisk.”

Commonwealth v. Cook, 735 A.2d 673, 675 (Pa. 1999) (some citations

omitted).

     Following our review, we agree with the trial court that Appellant was

not seized by the officers when they approached him. Officer Comitilo was

traveling east on Grange Street, when he observed Appellant walking north


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on Howard Street, crossing Grange Street. Officer Comitilo accelerated his

marked police SUV and closed the distance to Appellant from one hundred

feet to forty feet. The officer then turned onto Howard Street and observed

Appellant turn west into an alleyway. The officer turned his vehicle into the

alleyway, at which time Appellant was approximately forty feet in front of

the officer and had a gun in his hand. Appellant then ducked behind a door

and reemerged carrying his cellphone.           Throughout this interaction,

however, the officers did not activate their emergency lights, engage the

siren, honk the horn, or call out to Appellant. Although we appreciate that

being followed by a police vehicle may be unnerving to a reasonable person,

we discern no merit to Appellant’s initial contention that he was seized when

the officer accelerated toward him and began to follow him. See Baldwin,

147 A.3d at 1202-03. Because we conclude that the interaction was a mere

encounter, we need not determine whether there was reasonable suspicion

supporting the officer’s decision to follow Appellant into the alleyway.   See

id.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/7/2017




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