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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE SUPERIOR COURT OF
PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA

Appe||ee

JAISON JONES

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Appellant No. 519 WDA 2015

Appeal from the Judgment of Sentence January 28, 2015
In the Court of Common Pleas of A||egheny County
Criminal Division at No(s): CP-02-CR-0000442-2014

BEFORE: LAzARus, J., oLsoN, J., and PLATr, J.*
MEMoRANDuM BY LAzARus, J.: FILED ocToBER 24, 2016

Jaison Jones files this appeal nunc pro tunc from the judgment of
sentence entered on January 28, 2015 in the Court of Common Pleas of
A||egheny County. After careful review, we affirm.

The trial court made the following factual findings:

I find that Officer Desaro was employed as a City of
Pittsburgh police officer on patrol and on duty at
approximately 2:30 a.m. on December 21, 2013
near the 6600 block of Frankstown Avenue near
Finley Street in the City of Pittsburgh.

I find also that earlier that morning, a specific time
unknown but within a relatively short time based on
the testimony prior to that 2:30 encounter, Officer
Desaro received a be-on-the-lool<-out-call, a BOLO
call if you will, regarding a red Mercedes and a red

 

* Retired Senior Judge assigned to the Superior Court.

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Dodge automobile that [were] involved where one of
the occupants of the vehicle was apparently in
possession of a firearm involved in an incident on the
Northside area of the City of Pittsburgh. A
description was given as a red Mercedes and a red
Dodge. The operator of the Mercedes was described
as a black male, heavy set, attired in a t-shirt.

I also find that Officer Desaro at approximately the
time of the stop which was around 2:30 a.m., the
21St of December, observed a red Mercedes in the
area of Finley Street and the 6600 block of
Frankstown which I believe is the Serentiy or which
[is] now known as the Serenity Club. He notices a
red Mercedes and based upon the information he
received earlier on the BOLO he followed it, did not
activate his lights or effectuate any type of a stop.
The vehicle apparently pulled over on its own volition
on Finley Street. I also find that as Officer Desaro
approached the vehicle, the driver who emerged
from the red Mercedes matched the description that
was given earlier that night in the BOLO with the
information that the operator wore a white t-shirt, he
was a heavy set black male and that a firearm was
involved in whatever type of incident it was or which
occurred earlier that evening on the Northside which
caused the Officer to have apprehension about his
own safety as he approached the vehicle. For his
safety, as Officer Desaro testified, he drew his
weapon and he directed the driver of the vehicle
after he had gotten out voluntarily to the ground
where he was secured and effectively restrained.
Officer Desaro and Officer Nino who subsequently
had arrived at the scene and approached the red
Mercedes after securing the defendant and observed
a handgun on the passenger seat of the vehicle in
plain view which was subsequently recovered and
found to be fully loaded.

The information again in the BOLO was corroborated
by Officer David Head who heard the BOLO earlier in
the evening while engaged in a private off-duty
assignment with the City at a club in the Strip
District . . . . in private duty capacity providing

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security at the Travelers Club on Hamilton Avenue.
It was some time shortly after 2 o'clocl< in the
morning when Officer Head placed another alert on
the police radio that he observed what may be the
vehicle described earlier on the Northside in the area
of the Hamilton Avenue location at 2500 Hamilton
Avenue. It matched the description of a heavy set
black male, white t-shirt, red Mercedes and he
broadcast that information.

N.T. Suppression Hearing, 7/17/14, at 51-54.

Jones was charged with one count each of person not to possess a
firearm, carrying a firearm without a license, and the summary offense of
driving while operating a suspended license.1 On April 30, 2014, Jones filed
a motion to suppress physical evidence. The trial court denied the motion
after a hearing on July 17, 2014. Jones proceeded to a non-jury trial on
November 21, 2014, where the trial court found him guilty on each count.2
On January 28, 2015, the trial court sentenced Jones to an aggregate
sentence of not less than two years to not more than four years'
incarceration.

Jones failed to file post-sentence motions or a notice of appeal. Jones
then filed a petition for allowance of appeal nunc pro tunc on March 11,
2015. The Honorable Kevin G. Sasinoski granted Jones' petition in an order

filed on March 23, 2015. Jones subsequently filed a notice of appeal and a

 

1 18 Pa.C.S. § 6105(a)(1); 18 Pa.C.S. § 6106(a)(1); and 75 Pa.C.S. § 1543,
respectively.

2 Jones waived his right to a jury trial and proceeded with a bench trial in
front of the Honorable Kevin G. Sasinosl<i. See Docket Entry No. 37.

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concise statement of errors. Judge Sasinoski filed a Pa.R.A.P 1925(a)
opinion on April1, 2016.

On appeal, Jones challenges the trial court's denial of his pretrial
suppression motion, and asks this Court to review the following issues,

which we have simplified for brevity:

1. Did the trial court err in denying Jones' motion
to suppress the firearm recovered from the
passenger seat of the red Mercedes because
recovery of the firearm was a result of Jones'
unlawful detention, and did Jones' detention rise to
the level of an unlawful arrest?

2. Did the trial court err in denying Jones' motion
to suppress the firearm recovered from the
passenger seat of the red Mercedes because the
police did not have a valid warrant to search the
vehicle, and the search did not fall into the plain
view exception to the search warrant requirement?
3. Did the trial court improperly admit into
evidence Jones' statements made to police regarding
the firearm because the statements were the direct
result of an illegal arrest?

See generally Appellant's Brief, at 7.

Initially, we note our standard of review of the denial of a suppression
motion. When reviewing an order denying a motion to suppress evidence, we
must determine whether the factual findings of the trial court are supported by
the evidence of record. Commonwealth v. ]ackson, 678 A.2d 798, 800 (Pa.

Super. 1996). In making this determination, this Court may only consider the

evidence of the Commonwealth's witnesses, and so much of the witnesses for

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the defendant, as fairly read in the context of the record as a whole, which
remains uncontradicted. Id. Additionally, it is exclusively within the province
of the trial court to determine the credibility of the witnesses and the weight to
be accorded their testimony. Commonwealth v. Fitzpatrick, 666 A.2d 323,
325 (Pa. Super. 1996). If the evidence supports the findings of the trial court,
we are bound by such findings and may reverse only if the legal conclusions
drawn therefrom are erroneous. Id.

To begin, we conclude that the factual findings of the trial court are
supported by the evidence of record. Therefore, our review is limited to
determining whether the trial court's legal conclusions were made in error.
See ]ackson, supra.

Jones argues that when Officer Desaro detained him with handcuffs,
his detention amounted to an unlawful arrest because “he was ordered to
the ground by police who had their guns drawn. He was immediately
handcuffed. He did not believe he was free to leave nor was he objectively
free to leave.” Appellant's Brief, at 16. On the other hand, the
Commonwealth argues that Jones was subject to an investigative detention
to allow Officer Desaro to obtain more information. See Commonwealth v.
Rosas, 875 A.2d. 341, 347 (Pa. Super. 2005) (explaining that “an
investigative detention, which must be supported by reasonable suspicion,
subjects a person to a stop and period of detention in order for the law

enforcement officer to obtain more information”).

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We have held consistently that the Fourth
Amendment does not require a policeman who lacks
the precise level of information necessary for
probable cause to arrest to simply shrug his
shoulders and allow a crime to occur or a criminal to
escape. On the contrary, Terry v. Ohio and its
progeny recognize that the essence of good police
work is for the police to adopt an intermediate
response where they observe a suspect engaging in
unusual and suspicious behavior. A brief stop of a
suspicious individual, in order to determine his
identity or to maintain the status quo momentarily
while obtaining more information, may be reasonable
in light of facts known to the officer at the time.

Rosas, 875 A.2d at 347 (citing Commonwealth v. Bryant, 866
A.2d 1143, 1146 (Pa. Super. 2005)).

Regarding the stop, a police officer may, short of an
arrest, conduct an investigative detention if he has a
reasonable suspicion, based upon specific and
articulable facts, that criminality is afoot. The
fundamental inquiry is an objective one, namely,
whether the facts available to the officer at the
moment of the [intrusion] warrant a man of
reasonable caution in the belief that the action taken
was appropriate. This assessment, like that
applicable to the determination of probable cause,
requires an evaluation of the totality of the
circumstances, with a lesser showing needed to
demonstrate reasonable suspicion in terms of both
quantity or content and reliability.

Id. at 347 (citing Commonwealth. v. Zhahir, 751 A.2d 1153, 1156-57
(Pa. 2000)).

Since the sole justification for a Terry search is the
protection of the police and others nearby, such a
protective search must be strictly “limited to that
which is necessary for the discovery of weapons
which might be used to harm the officer or others
nearby.” Thus, the purpose of this limited search is

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not to discover evidence, but to allow the officer to

pursue his investigation without fear of violence. If

the protective search goes beyond what is necessary

to determine if the suspect is armed, it is no longer

valid under Terry and its fruits will be suppressed.
Commonwealth v. Guillespie, 745 A.2d 654, 657-58 (Pa. 2000) (citing
Terry v. Ohio, 392 U.S. 1, 26 (1968)).

We find that the totality of the circumstances supported Officer
Desaro's brief detention of Jones, and that this detention did not rise to the
level of an unlawful arrest.

Officer Desaro testified that

[a]s I got out of the patrol vehicle, I [drew] my
firearm on [Jones] knowing that this car possibly had
a firearm. I drew my firearm on him and told him to
turn around and to get on the ground, which he

complied, at which time I handcuffed him and
detained him to figure out what was going on.

N.T. Suppression Hearing, 7/17/14, at 29-30.

The trial court was satisfied that Officer Desaro “briefly detained
[Jones] for the officers' safety." Trial Court Opinion, 4/1/16, at 5. We
agree. Although Jones admits that handcuffs alone are not dispositive of
whether an unlawful arrest has occurred, Jones argues that “ordering [him]
to the ground, added to the fact that police had their guns drawn, added to
the fact that they immediately handcuffed him, transformed the encounter
into an arrest." Appellant's Brief, at 16. Based on the facts and
circumstances of this case, however, it was reasonable that Officer Desaro

was concerned about his safety, the safety of his fellow officers, and the

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presence of a firearm. Almost immediately after Jones was detained, a
firearm was found in plain view on the passenger seat of Jones' red
Mercedes.

Additionally, we are satisfied that the BOLO transmission provided
Officer Desaro with reasonable suspicion to believe that criminal activity may
have been afoot. We do note, however, that there is a discrepancy between
the 9-1-1 operator's comments and testimony regarding the BOLO
transmission. Specifically, the 9-1-1 operator's comments about the
anonymous tip indicated that “two males pulled up in a red Mercedes and a
red Dodge Charger. The male that was in the Mercedes was a black male
between 29 to 35 years old with a white t-shirt, heavy set and got out of the
car and was carrying a gun.”3 N.T. Suppression Hearing, 7/17/14, at 14
(emphasis added). Officer Head testified, however, that the BOLO
transmission gave “a description of two vehicles involving guns and someone
waving a gun outside a Mercedes chasing a Dodge Charger." Id. at 7

(emphasis added).4 Officer Head further explained on cross-examination

 

3 The 9-1-1 transcript, marked as the Commonwealth's Exhibit No. 1, was
entered into evidence. See N.T. Suppression Hearing, 7/17/14, at 20. The
9-1-1 operator's comments also noted “the male was out yelling for
someone but caller can't tell who.” Id. at 16.

4 Officer Head clarified that the BOLO transmission described the Mercedes
as . . a red Mercedes C 300." Id. at 18.

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that the comments in the 9-1-1 report were not necessarily “what came over
the air." Id. at 18.

The trial court credited Officer Head's testimony regarding the
contents of the BOLO. Trial Court Opinion, 4/1/16, at 3. Based on the
content of the BOLO transmission, Officer Head's radio transmission about a
red Mercedes driving in his area with a driver matching Jones' description,
and Officer Desaro's independent observation of the red Mercedes shortly
after hearing Officer Head's radio transmission, Officer Desaro had the
reasonable suspicion necessary to conduct a brief investigatory stop of
Jones.

Jones directs this Court's attention to Commonwealth v. ]ackson,
which held that an anonymous tip containing information about a man
wearing a green jacket and carrying a gun was insufficient to justify a Terry
stop. Commonwealth v. ]ackson, 698 A.2d 571, 576 (Pa. 1997). In
]ackson, a Philadelphia officer received a police radio report of a man
wearing a green jacket and carrying a gun at a specific location.
Approximately two minutes after the report was broadcast, an officer
responded to the specific location and searched the appellant, who was
wearing a green jacket, for weapons. During his search of appellant, the
officer found only a small key box containing fourteen packets of cocaine.

Id. at 572.

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]ackson is distinguishable from the case before us, however, because
Officer Desaro verified the anonymous tip when he observed a loaded gun,
in plain view, on the passenger seat of the red Mercedes. Additionally,
Officer Desaro relied on a BOLO transmission that indicated criminal activity
may have been afoot. In light of the facts available to Officer Desaro at the
time, he was justified in briefly detaining Jones because he had reason to
believe that Jones may have been involved in a criminal incident with a red
Dodge Charger and armed with a firearm. See Guillespie, supra. We
conclude that, based on Officer Head's testimony about the information
transmitted in the BOLO message and Officer Desaro's purpose in conducting
the investigatory detention and pat-down, the trial court did not err in
concluding that Officer Desaro had the reasonable suspicion to conduct a
brief investigatory detention.

We next turn our attention to whether Officer Desaro and Officer Nino
unlawfully seized the firearm from Jones' vehicle.

Our Supreme Court has expressly recognized that
incriminating objects plainly viewable [in the] interior
of a vehicle are in plain view and, therefore, subject
to seizure without a warrant. This doctrine rests on
the principle that an individual cannot have a
reasonable expectation of privacy in an object that is
in plain view. In determining whether the
incriminating nature of an object [is] immediately
apparent to the police officer, we look to the totality
of the circumstances. An officer can never be one
hundred percent certain that a substance in plain

view is incriminating, but his belief must be
supported by probable cause.

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Commonwealth v. Turner, 982 A.2d. 90, 92 (Pa. Super. 2009) (internal
citations omitted).

We agree with the trial court's conclusion that the recovery of the gun
falls within the plain view exception to the search warrant requirement. It is
clear from the testimony of Officer Desaro and Officer Nino that both officers
observed the firearm sitting, in plain view, on the passenger seat of the red
Mercedes. Officer Desaro testified that “[t]here were rounds in the
magazine," and that he believed “there was one in the chamber.” N.T.
Suppression Hearing, 7/17/14, at 30. Likewise, Officer Nino testified, “I
walked up after [Jones] was in cuffs, me and Officer Desaro walked up to the
passenger side and there was a firearm laying on the passenger seat." Id.
at 36.

Although Jones admits that the gun may have been in plain view,
Jones argues that the plain view exception to the search warrant
requirement does not apply because “the gun was not contraband."
Appellant's Brief, at 49. Although it is undisputed that individuals under
certain circumstances can legally own firearms, the facts of this case,
including both the content of the BOLO transmission and Officer Desaro's
independent observation of Jones and the red Mercedes, provided Officer
Desaro with probable cause to believe that the firearm was involved in
criminal activity. Therefore, we conclude that the trial court did not err in
denying Jones' suppression motion based on the trial court's factual findings

and the legal conclusions drawn therefrom. Fitzpatrick, supra.

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Finally, Jones argues that the trial court erred when it failed to
suppress Jones' conflicting statements made to police about the firearm
because the statements followed an unlawful arrest and were involuntary.
Appellant's Brief, at 49. As noted above, we have concluded that the brief
detention of Jones did not rise to the level of an unlawful arrest.
Furthermore, Jones failed to raise a timely objection to the admission of his
statements at the suppression hearing, at trial, or in a post-trial motion.
Therefore, any claim that Jones may have had regarding the admission of
those statements has been waived. Pa.R.A.P. 302(a) (“Issues not raised in
the lower court are waived and cannot be raised for the first time on
appeal.”); Commonwealth v. Cooper, 710 A.2d 76, 81 (Pa. Super. 1998).

Judgment of sentence affirmed.

Judgment Entered.

 

J seph D. Seletyn, Es .
Prothonotary

Date: 10/24/2016

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