J-A26025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

DAVID EMANUEL COLLINS, JR.

                        Appellee                   No. 2248 MDA 2013


            Appeal from the Order Entered December 2, 2013
            In the Court of Common Pleas of Lycoming County
           Criminal Division at No(s): CP-41-CR-0000144-2013

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

TIMOTHY D. EILAND

                        Appellee                    No. 88 MDA 2014


              Appeal from the Order Entered January 9, 2014
            In the Court of Common Pleas of Lycoming County
           Criminal Division at No(s): CP-41-CR-0000341-2013


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                      FILED DECEMBER 16, 2014

     In this consolidated appeal, the Commonwealth challenges the

December 2, 2013 order granting Appellee, David Emanuel Collins, Jr.’s

(Collins), motion to reconsider and suppressing all physical evidence from a

December 2012 traffic stop and the January 9, 2014 order granting

Appellee, Timothy D. Eiland’s (Eiland), motion to suppress based on the
J-A26025-14



same December 2012 traffic stop.1              After careful review, we reverse and

remand for proceedings in accordance with this memorandum.

       We summarize the relevant undisputed facts and procedural history of

these cases as follows. On December 3, 2012, at 2:11 p.m., a 911 dispatch

announced a robbery had just occurred at M&T Bank, located at 2001 West

Fourth Street in Williamsport, Pennsylvania.          The initial dispatch described

the suspect as a black male, six feet tall, wearing a dark sweatshirt and a ski

mask, running west away from the bank. N.T., 5/17/13, at 18, 24, 27. The

description was updated to include that the suspect was in his twenties, had

a thin build, was wearing white gloves and carrying a grey bag. Id. at 27,

35, 42. The height of the suspect was described as 5’7” to 5’10”. Id. at 27.

       Sergeant Christopher Kriner, wearing plain clothes, responded to the

dispatch and stationed himself at the intersection of Funston Avenue and

West Fourth Street, across the street from the bank, in an unmarked Ford

Crown Victoria police car.       Id. at 19, 22, 40-41.      At 2:24 p.m., Sergeant

Kriner observed a white Chrysler 300M, with a Tennessee license plate,

driving east on West Fourth Street, passing the bank.            Id. at 20-21.   He

observed three black males in the vehicle, appearing to be in their twenties,

and wearing dark colored clothing.             Id. at 21, 24.   As the car passed


____________________________________________


1
  We have jurisdiction to address this interlocutory appeal because the
Commonwealth has certified that the order substantially handicaps and
terminates its prosecution. See Pa.R.A.P. 311(d).



                                           -2-
J-A26025-14



between the bank and Sergeant Kriner, the backseat passenger ducked

down. Id. at 23. At approximately 2:28 p.m., after determining the vehicle

was a rental car, Sergeant Kriner initiated a traffic stop. Id. at 24-25, 41,

45.

       Immediately upon making contact with the vehicle, Sergeant Kriner

detected a strong odor of marijuana, and the occupants were ultimately

searched and found to be in possession of contraband.2 The Commonwealth

charged both Collins and Eiland with numerous counts of possession with

intent to deliver a controlled substance, possession of a controlled substance

by person not registered, possession of drug paraphernalia, criminal

conspiracy, receiving stolen property, possession of firearm prohibited, and

firearms    not   to   be    carried    without   a   license.3   Additionally,   the

Commonwealth charged Collins with one count of possession of controlled

____________________________________________


2
  Specifically, Collins was taken into custody on an outstanding assault
warrant from Philadelphia. A search incident to arrest revealed Collins was
in possession of a small plastic bag containing marijuana. At the prison,
Collins discarded a plastic grocery bag containing 93 zip lock bags with
heroin. Eiland was found to be in possession of $7,285.00. A search of the
vehicle recovered two 0.40 semi-automatic handguns, one of which had
been reported stolen, approximately 1,200 small zip lock bags containing
heroin wrapped in blue glassine packets, three bags containing loose heroin,
187 small zip lock bags containing cocaine, and a bag of crack cocaine.
There was also paraphernalia recovered including rubber bands, unused blue
glassine packets, unused small zip lock bags, a scale, and a mixer.
3
  35 P.S. §§ 780-113(a)(30), (a)(16), (a)(32), 18 Pa.C.S.A. §§ 903(c),
3925(a), 6105(a)(1), and 6106(a)(1), respectively.




                                           -3-
J-A26025-14



substance contraband by inmate prohibited and possession of a small

amount of marijuana for personal use.4

        On March 15, 2013, Collins filed a motion to suppress all evidence

from the vehicle stop, alleging Sergeant Kriner lacked reasonable suspicion

to effectuate the stop. Following a hearing on May 17, 2013, both parties

filed briefs for the trial court to consider. Thereafter, on July 29, 2013, the

trial court filed an opinion denying Collins’ motion to suppress. Collins filed a

motion to reconsider on August 29, 2013, which was argued on September

25, 2013.     On October 17, 2013, while the decision on Collins’ motion to

reconsider was pending, Collins’ and Eiland’s cases were consolidated for

trial. The court issued an opinion and order on December 2, 2013 granting

Collins’ motion for reconsideration and suppressing all physical evidence

resulting from the vehicle stop. Eiland then filed a motion to suppress on

December 23, 2013.         The trial court filed an order, relying on the opinion

and order of December 2, 2013 on Collins’ motion to reconsider, and




____________________________________________


4
    18 Pa.C.S.A. §§ 5123(a)(2) and 780-113(a)(31)(i), respectively.



                                           -4-
J-A26025-14



suppressed all evidence on January 9, 2014.5      The Commonwealth timely

appealed.6

       On appeal, the Commonwealth raises the following issues for our

review.

              I. Whether the trial court erred by misapplying the
              law in granting Appellee’s [Collins’] [m]otion for
              [r]econsideration?

              I[I.] Whether the trial court erred by granting
              Appellee’s [Eliand’s] [m]otion for [e]ntry of an
              [o]rder of [s]uppression, which, relied on the
              erroneous factual findings and legal conclusions of
              Judge Lovecchio’s December 2, 2013 Opinion and
              Order?

Commonwealth’s Brief at 9.

____________________________________________


5
  The December 2, 2013 order suppressing the evidence in Collins’ case was
issued by Judge Marc Lovecchio. Judge Richard Gray was assigned the
motion to suppress, filed on behalf of Eiland. Because the two cases were
consolidated for trial and involved the same vehicle stop, Judge Gray applied
the doctrine of coordinate jurisdiction in suppressing the evidence. See Trial
Court Opinion, 3/10/14, at 5-8.
6
  The Commonwealth filed its notice of appeal from the order in Collins’ case
on December 18, 2013. The Commonwealth mistakenly appealed from the
order of December 16, 2013, which denied the Commonwealth’s motion for
reconsideration.    Pursuant to Pennsylvania Rule of Criminal Procedure
1926(b)(2), the Commonwealth has filed a stipulation of the correct date in
the trial court and a copy of the stipulation has been certified and
transmitted as a supplemental record. Additionally, the Commonwealth filed
its notice of appeal from the order in Eiland’s case on January 13, 2014. On
April 4, 2014, the appeals were consolidated by this Court. See Pa.R.A.P.
513 (permitting consolidation of appeals where the same question is
involved in two or more appeals in different cases).             Finally, the
Commonwealth and the trial court have complied with Pa.R.A.P. 1925.



                                           -5-
J-A26025-14


      Our review of a trial court’s grant of a motion to suppress is well-

established.

            When     the   Commonwealth         appeals   from    a
      suppression order, this Court may consider only the
      evidence from the defendant’s witnesses together with the
      evidence of the prosecution that, when read in the context
      of the record as a whole, remains uncontradicted. In our
      review, we are not bound by the suppression court’s
      conclusions of law, and we must determine if the
      suppression court properly applied the law to the facts.
      We defer to the suppression court’s findings of fact
      because, as the finder of fact, it is the suppression court’s
      prerogative to pass on the credibility of the witnesses and
      the weight to be given to their testimony.

Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014)

(internal citations omitted).   “Our review of the application of the law to the

facts is plenary.” Commonwealth v. Washington, 51 A.3d 895, 897 (Pa.

Super. 2012) (citation omitted).

      In the instant case, the Commonwealth argues that the trial court

misapplied the law regarding Collins’ motion to suppress when it concluded

that the vehicle stop was not supported by reasonable suspicion, and by

extension, that the adoption of that conclusion in Eiland’s case was also

error. Commonwealth Brief at 15-39. Appellees counter that the totality of

the circumstances did not give rise to reasonable suspicion that one of the

occupants of the vehicle was involved in the robbery, rendering the

investigatory detention unlawful and the suppression proper. Collins’ Brief

at 5; see also Eiland’s Brief at 8.




                                      -6-
J-A26025-14


       The Fourth Amendment of the Federal Constitution provides, “[t]he

right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated

….” U.S. Const. amend. IV. The Pennsylvania Constitution also protects this

interest by ensuring, “[t]he people shall be secure in their persons, houses,

papers and possessions from unreasonable searches and seizures ….”                   Pa.

Const. Art. I, § 8.     It is firmly established that “an investigative detention

must    be   supported     by   reasonable     suspicion[.]”   Commonwealth           v.

Williams, 73 A.3d 609, 613 (Pa. Super. 2013) (quotation marks and

citation omitted), appeal denied, 87 A.3d 320 (Pa. 2014).             In order to be

constitutional,   “an    investigative   detention   must      be   supported   by    a

reasonable and articulable suspicion that the person seized is engaged in

criminal activity and may continue only so long as is necessary to confirm or

dispel such suspicion[.]” Id.

             The determination of whether an officer had
             reasonable suspicion that criminality was afoot so as
             to justify an investigatory detention is an objective
             one, which must be considered in light of the totality
             of the circumstances. In assessing the totality of the
             circumstances, a court must give weight to the
             inferences that a police officer may draw
             through training and experience.           Also, the
             totality of the circumstances test does not limit our
             inquiry to an examination of only those facts that
             clearly indicate criminal conduct. Rather, even a
             combination of innocent facts, when taken together,
             may warrant further investigation by the police
             officer.




                                         -7-
J-A26025-14


Commonwealth v. Davis, ---A.3d---, 2014 WL 5140282, *3 (Pa. Super.

2014) (emphasis added).

     With these principles in mind, we turn to the merits of the

Commonwealth’s claim.     In challenging the December 2, 2013 order, the

Commonwealth contends the trial court’s analysis is flawed because Collins’

physical description matched the description of the robbery suspect closely

enough to permit an investigatory detention, the trial court erroneously

weighed the testimony in light of its own experience rather than in light of

Sergeant Kriner’s training and experience, and the trial court improperly

applied this Court’s decision in Washington. Commonwealth’s Brief at 17,

26, 28. Because the trial court’s decision to suppress the evidence relied on

our decision in Washington, we will address this argument first. See Trial

Court Opinion, 12/2/13, at 3-4; Trial Court Opinion, 3/5/14, at 4.

     In Washington, police were traveling in an unmarked car in a high

crime area. Washington, supra at 899. Testimony revealed the police car

was approaching a group of individuals two houses away when the suspect

fled, but there was no indication that the suspect looked in the direction of

the unmarked police car before he ran. Id.

     The trial court in Washington found that a determination of

reasonable suspicion was “clear” because there was unprovoked flight in a

high crime area. See id. at 897. In reversing the trial court’s finding, this

Court concluded that flight in a high crime area does not justify reasonable


                                    -8-
J-A26025-14


suspicion when the suspect’s flight was not in response to police presence or

confrontation.     Id. at 898-899, discussing Commonwealth v. Jefferson,

853 A.2d 404 (Pa. Super. 2004); In the Interest of D.M., 781 A.2d 1161

(2001); and Illinois v. Wardlow, 528 U.S. 119 (2000) (concluding the

necessary element to support reasonable suspicion in a high crime area was

the suspect fleeing in response to police presence). Id. “[N]ervous, evasive

behavior and headlong flight all provoke suspicion of criminal behavior in the

context of response to police presence.” Id. at 898.7

       Instantly, the Commonwealth argues Washington is not controlling

because “there are many strong indications that Collins was aware of a

police presence and was responding.” Commonwealth Brief at 31-32. In the

alternative, the Commonwealth argues the evasive movement by Collins is

relevant to the reasonable suspicion analysis even if Collins was not aware

Sergeant Kriner was a police officer. Id. at 33. We agree that Washington

is distinguishable.

       Washington involved flight in a high crime area where police

presence was predicated on a report of gunshots being fired at the location

____________________________________________


7
   This Court has since discussed the relevancy of unprovoked flight in
response to police presence in an area that is not designated as “high crime”
under a reasonable suspicion standard in Commonwealth v. Walls, 53
A.3d 889, 894 (Pa. Super. 2012) (concluding unprovoked flight in an area
not described as high crime, combined with suspect’s proximity to the
location and description given in the flash gives rise to a reasonable
suspicion of criminal activity).



                                           -9-
J-A26025-14


days before the encounter at issue.                 In such a case, a defendant’s

knowledge of the presence of police is a necessary prerequisite to

reasonable suspicion of criminal activity afoot based on such flight.

Instantly, the evasive behavior by Collins occurred near the site of, and

within only a few minutes of, a known bank robbery, where the presence of

police and witnesses would likely be surmised by a guilty party.                        We

conclude, in these circumstances, Collins’ act of ducking while the vehicle

passed the bank is relevant to a finding of reasonable suspicion.                 For the

reasons set forth below, we agree the trial court legally erred when it failed

to   consider    Collins’   evasive   movements        under    the    totality   of    the

circumstances.

      At   the   suppression     hearing      Sergeant    Kriner,     testified   for   the

Commonwealth.        Sergeant Kriner testified he has been a police officer for

approximately     13    years,   he   is    responsible   for   supervising       criminal

investigations, and he has investigated cases involving robberies, drug

incidents, sexual assaults, and thefts. N.T., 5/17/2013, at 9-10. During the

Commonwealth’s direct examination, Sergeant Kriner explained his decision

to initiate the vehicle stop as follows.

            Q. What drew your attention to the vehicle?

            A. … [T]he fact that the back seat passenger had
            ducked down, and the occupants, they fit the
            physical description of the bank robber.

            Q. What do you mean he ducked down?


                                           - 10 -
J-A26025-14


            A. He literally ducked down, when he passed by me
            and the bank he ducked down so I couldn’t see him.

            Q. All right so what – did you follow the vehicle?

            A. Yes.

            Q. All right. When you first saw the vehicle driving,
            where was it in relation to the bank? How far away
            from the bank, or how close to the bank?

            A. It -- it was close. The bank was within sight of
            me, a stone’s throw away and it -- it went between
            where I was parked and the bank. They were both
            within the same block.

                                      …

            Q. Okay. And … in your own words, why did you
            stop this vehicle?

            A. Because I thought they were the bank robbers.

N.T., 5/17/2013, at 23-25. Sergeant Kriner also testified the vehicle had a

Tennessee license plate. Id. at 24. Testimony further revealed his decision

to stop the vehicle was made after he determined the vehicle was a rental

and with consideration given to the description of the suspect, the

passenger’s evasive movement, and the direction the vehicle was traveling

in relation to where the suspect fled. Id. at 33, 38.

      At the hearing on Collins’ motion to reconsider, no new evidence was

presented, but counsel for Collins advanced the argument that this Court’s

decision in Washington effectively rendered Sergeant Kriner’s observation

of Collins ducking down irrelevant to his determination of reasonable

suspicion because Sergeant Kriner’s testimony did not establish Collins

                                    - 11 -
J-A26025-14


ducked down in response to police presence.        See N.T., 9/25/13, at 3-4.

Indeed, in granting Collins’ motion and suppressing the evidence, the trial

court agreed, “[t]here is nothing in the record to indicate that [Collins] saw

[Sergeant] Kriner or realized that he was a police officer.”           Trial Court

Opinion, 12/2/2013, at 4.    The trial court further found, “[w]hen ‘ducking

down’ is removed from the equation, the portion of the description that

[Collins] met was vague and general.”         Id. at 4-5.   In its Rule 1925(a)

opinion, the trial court observed that after reviewing our decision in

Washington, the trial court’s perception of other factors in the reasonable

suspicion analysis changed. See Trial Court Opinion, 3/5/14, at 4. “Without

any evidence that [Collins] saw [Sergeant] Kriner and realized he was a

police officer, the direction of travel no longer represented flight from a

crime scene, but simply a visitor leaving town.”        Id.    For the reasons

described above, we deem the trial court’s application of the holding in

Washington inapt, and we agree with the Commonwealth that the trial

court’s failure to consider the evasive movements of Collins, under the

totality of the circumstances present in this case, was legal error.

      The uncontradicted facts in the instant case reveal the vehicle was

driving from the direction of the suspect’s flight, and Collins ducked down as

he passed between Sergeant Kriner’s location and the location of the bank

that had been robbed minutes before.           As the trial court aptly noted,

“[r]easonable suspicion … is based on the totality of the circumstances.”


                                     - 12 -
J-A26025-14


Trial Court Opinion, 3/5/14, at 6. We cannot agree, that under the totality

of the circumstances in this case, traveling away from the bank “no longer

represented flight from a crime scene” as the trial court suggests. See id.

at 4. Rather, the totality of the circumstances in the instant case includes

the observation of an out-of state vehicle traveling away from the precise

location where a bank robbery occurred, with occupants matching the

general physical description of the robbery suspect, one of whom ducked

down upon passing the bank.      See generally N.T., 5/17/13, at 39.         In

rejecting Sergeant Kriner’s conclusion that Collins ducked down to avoid

being seen by police, the trial court found, “[t]here is nothing in the record

to show that [Collins] saw anyone to be hiding from.” Trial Court Opinion,

3/5/14 at 4. The trial court further conjectured, “[Collins] simply could have

been trying to retrieve something he dropped or lying down on the backseat

to take a nap during the long drive back to Tennessee.” Id. at 4-5. While

these are possible innocent inferences, a combination of innocent facts,

when viewed together, may warrant further police investigation. See Davis,

supra.   Further, regardless of police presence, the testimony established

Collins was observed traveling from the crime scene and ducking down

while passing the bank where the robbery occurred.           Sergeant Kriner

reasonably inferred this action was to avoid detection at the crime scene.

      The Commonwealth also advances the argument that the trial judge

improperly substituted his own professional experience in assessing the


                                    - 13 -
J-A26025-14


circumstances    described   in   Sergeant    Kriner’s   testimony   instead   of

objectively assessing the circumstances as viewed by a veteran police

officer. See Commonwealth Brief at 27. In Davis, this Court, reversing a

trial court’s order granting suppression, held the trial court erred as a matter

of law when it failed to appropriately consider the police officer’s inferences,

under the totality of the circumstances, in light of his training and

experience. Davis, supra at *3. In reversing the trial court we observed,

“[t]he incident ending in Appellee’s arrest did not occur in a vacuum, and the

facts of the incident did not occur in isolation.” Id. In response to the trial

court’s alternative interpretation of the factors that gave rise to the police

officer’s reasonable suspicion, we noted “[p]otential innocent explanations

for Appellee’s conduct do not negate the reasonableness of [the police

officer]’s reasonable suspicion ….” Id.

      At the suppression hearing, Sergeant Kriner also articulated the

relevancy of the Tennessee rental vehicle in his determination of reasonable

suspicion. “The vehicle had an out-of-state registration on it. I have known

of incidences where banks were robbed by people from out-of-state.             It

happens I would say rather frequently, especially with serial bank robbers,

they go from one state to another and rob banks.”         N.T., 5/17/13, at 41.

Further, despite the suspect fleeing on foot, Sergeant Kriner explained,

“[t]here’s [sic] instances where people have been waiting in cars for bank

robbers, so they’ll run to the vehicle and someone will drive them away.”


                                     - 14 -
J-A26025-14


Id. at 42.    The trial court unequivocally stated the testimony of Sergeant

Kriner regarding the occurrence of bank robberies committed by persons

from out-of-state was not considered in the original decision on the

suppression motion because the trial court did not find it “particularly

weighty.”    Trial Court Opinion, 12/2/13, at 4.     The trial court further

observed, “[a]lthough serial bank robberies may frequently involve out of

state perpetrators, the court cannot recall in either its experience on the

bench or in private practice of any bank robberies in Lycoming County that

were committed by out-of-state offenders.” Id. (emphasis added).

     Accepting, as we must, the trial court’s findings of fact that the

evidence did not establish Collins was aware of a specific police officer’s

presence when he ducked down, the failure of the trial court to give weight

to the inferences that Sergeant Kriner drew through his training and

experience was an error of law. See Hudson, supra; see Davis, supra.

In this case, Collins matched the description in age, race, and clothing, the

vehicle was traveling in the direction from which the banker robber fled,

minutes after the bank robbery was dispatched, and Sergeant Kriner

considered the additional factor that the vehicle was a rental car from a

different state. See N.T., 5/17/13, at 23-25, 33, 38. Each articulated factor

did not occur in a vacuum, and Sergeant Kriner determined, in light of his

training and experience, that there was reasonable suspicion the occupants

were involved in the bank robbery.     See Davis supra.     Accordingly, we


                                   - 15 -
J-A26025-14


conclude Sergeant Kriner had a reasonable and articulable suspicion that

criminal activity was afoot. Concluding that it was error for the trial court to

disregard the totality of the circumstances and fail to give weight to the

inferences drawn in light of Sergeant Kriner’s training and experience, we

need not address whether the physical description of the suspect was

sufficient alone to establish reasonable suspicion.

      Based on the foregoing, we conclude that the trial court erred as a

matter of law in its December 2, 2013 order when it granted Collins’ motion

to reconsider and suppressed the evidence derived from the traffic stop.

Accordingly, because Eiland’s motion to suppress adopted the findings of fact

and conclusions of law of the December 2, 2013 order, we conclude the trial

court erred as a matter of law in granting the January 9, 2014 order.

Therefore, the trial court’s orders of December 2, 2013 and January 9, 2014

are reversed, and the case is remanded for further proceedings, consistent

with this memorandum.




                                     - 16 -
J-A26025-14


         Orders reversed. Case remanded. Jurisdiction relinquished.

         Judge Bowes joins the memorandum.

         Judge Jenkins files a concurring memorandum in which Judge Bowes

joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2014




                                     - 17 -
