J-S77014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEFFREY AURSBY

                            Appellant                No. 3082 EDA 2013


      Appeal from the Judgment of Sentence entered September 12, 2013
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0002749-2012


BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                       FILED FEBRUARY 19, 2015

        Jeffrey Aursby appeals from the judgment of sentence entered for his

convictions of violating the Uniform Firearms Act (VUFA). He argues the trial

court erred in denying his motion to suppress, because police officers lacked

reasonable suspicion to perform an investigative detention of him.         We

affirm.

        On January 12, 2012, Philadelphia Police Officer Leon Telesford and his

partner were on routine patrol at 24th and Indiana Streets in a marked

police vehicle.1    Officer Telesford was assigned to that area because of a


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 Unless otherwise noted, we take this summary from the Trial Court Rule
1925(a) Opinion, 6/20/14, at 1-3.
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recent string of robberies and shootings. He regarded the area as a “very

dangerous, high-crime, high-narcotics area.”    See also N.T. Suppression,

7/15/13, at 14-15.

      At about 11:43 p.m., Officer Telesford saw a man, later identified as

Appellant, walking near the 3000 block of 24th Street. Appellant was closely

following a second man walking northbound. Appellant was walking faster

than the second man, and closed the gap between them to about one car-

length. Appellant was also reaching for his waistband. Officer Telesford had

arrested numerous people for illegally carrying handguns. In his experience,

those people often carried their weapons in their waistbands. Based on his

experience and training, and the above circumstances, Officer Telesford

believed Appellant was about to rob the second man.

      The officers pulled next to Appellant in the police car with the

emergency lights and siren off.      Before the officers stepped outside,

Appellant looked at the officers, and took off running.    In response, the

officers yelled, “Police! Stop! Let me see your hands!”    Appellant did not

comply, so the officers got out of their car and followed him on foot

westbound, down Indiana Street. When Officer Telesford was within a few

feet of Appellant, he discarded a handgun.     Officer Telesford apprehended

Appellant, and his partner retrieved the handgun approximately five feet

from the point of detention.

      Appellant moved to suppress the evidence of his apprehension and

subsequent arrest. The trial court denied the motion. After a waiver trial,

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the court convicted Appellant of three VUFA2 and sentenced him to 5 to 10

years in prison. This appeal followed.

       On appeal, Appellant contends the stop was illegal.     He argues that

touching his waistband while walking behind another person at 11:30 p.m. is

insufficient reasonable suspicion of criminal activity to justify the officers’

subsequent attempt to stop him. He further contends his abandonment of

the firearm was the result of police coercion.

       Where a trial court denies a motion to suppress,

       we must determine whether the record supports the trial court’s
       factual findings and whether the legal conclusions drawn
       therefrom are free from error. In so doing, we may consider
       only the evidence of the prosecution and so much of the
       evidence for the defense as remains uncontradicted when read in
       the context of the record as a whole.[3] Where the record
       supports the findings of the suppression court, we are bound by
       those facts and may reverse only if the court erred in reaching
       its legal conclusions based upon the facts.

Commonwealth v. Bowmaster, 101 A.3d 789, 792 (Pa. Super. 2014)

(quotation omitted).


____________________________________________


2
   18 Pa.C.S.A. §§ 6105 (persons not to possess firearms), 6106 (carrying a
firearm without a license), and 6108 (carrying a firearm on public property
or streets in Philadelphia).
3
   Our Supreme Court has clarified that the scope of appellate review is
limited to the evidence produced at the suppression hearing—not the entire
record. In the Interest of L.J., 79 A.3d 1079 (Pa. 2013). The decision in
L.J is not retroactive. Id. at 1088-89. The suppression hearing in this case
occurred on July 15, 2013, and L.J. was decided on October 30, 2013.
Therefore, it does not apply here.



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        “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.”

Commonwealth v. Carter, --- A.3d ---, 2014 PA Super 265, 2014 WL

6756271, at *3, 2014 Pa. Super. LEXIS 4539, at *8 (filed Dec. 2, 2014) (en

banc) (quoting Navarette v. California, 134 S. Ct. 1683, 1687 (2014)).

Reasonable suspicion is judged based on the totality of the circumstances.

In the Interest of D.M. (D.M. II), 781 A.2d 1161, 1163 (Pa. 2001).

Under the Fourth Amendment and Article I, § 8 of the Pennsylvania

Constitution, unprovoked flight in a high-crime area is sufficient reasonable

suspicion to justify a Terry4 stop, i.e., an investigative detention.             See

Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000); D.M. II, 781 A.2d at

1164, 1165 n.2 (applying Wardlow and declining to adopt greater state

constitutional rights).

        Under   the   totality   of the        circumstances, Officer   Telesford had

reasonable suspicion to perform an investigative detention of Appellant.

Officer Telesford was on patrol in a marked police car in a neighborhood

known for violent crime and drug trafficking.             In fact, he was specifically

tasked to patrol that area because of a recent string of violent crimes. It

was almost midnight, and Officer Telesford saw Appellant walking down the

____________________________________________


4
    Terry v. Ohio, 392 U.S. 1 (1968).



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street, making movements that looked to Officer Telesford like a robbery

was about to occur.       Officer Telesford positioned his police car next to

Appellant with the lights and sirens off. Appellant immediately fled before

the officers could say anything to him.

      Indeed, prior to Appellant’s flight, police officers made less of a

showing of authority than in Wardlow. In Wardlow, police were driving in

a four-car caravan through a neighborhood known for drug trafficking,

prompting Wardlow to flee—an action, which, according to the Supreme

Court of the United States, constituted reasonable suspicion to stop.    See

Wardlow, 528 U.S. at 121-22, 124.

      Appellant misses the point in attempting to minimize the suspicious

nature of his behavior.        Terry does not require police to observe

unquestionably criminal behavior before they may perform an investigative

detention.     Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super.

2014) (quoting Commonwealth v. Rogers, 849 A.2d 1185, 1190 (Pa.

2004)).      Potential innocent explanations for Appellant’s behavior do not

negate reasonable suspicion. Id.

      Appellant argues that “intrusive police conduct prompted by nothing

more substantial than an individual’s decision to depart when approached by

the police[] has traditionally been recognized in Pennsylvania as unlawful.”

Appellant’s Brief at 15 (citing Commonwealth v. DeWitt, 608 A.2d 1030

(Pa. 1992); Commonwealth v. Barnett, 398 A.2d 1019 (Pa. 1979); and

Commonwealth v. Jeffries, 311 A.2d 914 (Pa. 1973)). Those three cases

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generally held that flight alone did not constitute reasonable suspicion

under the Fourth Amendment. DeWitt, 608 A.2d at 1033-34; Barnett, 398

A.2d at 1021; Jeffries, 311 A.2d at 916.         Wardlow, however, holds that

unprovoked    flight   from   police   in    a   high-crime   area   constitutes

reasonable suspicion.    Wardlow, 528 U.S. at 124-25.           To the extent

Appellant attempts to rely upon DeWitt, Barnett, and Jeffries, his reliance

is misplaced. None of those cases involved flight from a high-crime area, as

here. See DeWitt, 608 A.2d at 302 (noting stop occurred in a parking lot of

a church which had complained to police about suspicious vehicles, but not

noting whether stop occurred in high-crime area); Barnett, 398 A.2d at 213

(listing facts found by suppression court, which did not include whether area

of police stop was a high-crime area); Jeffries, 311 A.2d at 325-26 (holding

defendant’s “simply walking on a public street in Pittsburgh in broad

daylight,” quickening his pace upon seeing a police officer, and then running

after the officer gave chase was insufficient reasonable suspicion to stop).

      In sum, the trial court did not err in denying Appellant’s motion to

suppress.    The arresting officer noticed Appellant acting suspiciously in a

high-crime area at night, and Appellant fled unprompted when he saw the

police officers’ marked vehicle. Under the totality of the circumstances, the

officers possessed reasonable suspicion of criminal activity. We affirm the

judgment of sentence.

      Judgment of sentence affirmed.

      Judge Jenkins joins the Memorandum.

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     Judge Strassburger files a Concurring Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2015




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