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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DAVON L. SMITH,

                         Appellant                    No. 1388 WDA 2015


       Appeal from the Judgment of Sentence Entered July 24, 2015
               In the Court of Common Pleas of Blair County
           Criminal Division at No(s): CP-07-CR-0002611-2013


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

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 09, 2016

      Appellant, Davon L. Smith, appeals from the judgment of sentence of

5½ to 11 years’ incarceration, imposed after he was convicted of two

violations of the Uniform Firearms Act, 18 Pa.C.S. §§ 6101-6127. Appellant

solely challenges the trial court’s denial of his pretrial motion to suppress the

gun found in his possession after he was stopped and frisked by police.

After careful review, we affirm.

      In November of 2013, Appellant was arrested and charged with

possession of a firearm by a person prohibited, 18 Pa.C.S. § 6105(a)(1), and

carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(1). Prior to his

trial, Appellant filed a motion to suppress the gun recovered by police after

they stopped and frisked him.        A suppression hearing was conducted on

October 14, 2014, after which the court denied Appellant’s motion and his
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case proceeded to a jury trial. On May 1, 2015, the jury convicted Appellant

of both firearm offenses. On July 24, 2015, he was sentenced to the term of

imprisonment stated above.

      Appellant filed a timely notice of appeal, and also timely complied with

the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Herein, he presents one question for our review:

      1. Whether the [t]rial [c]ourt erred by denying Appellant’s
      [m]otion to [s]uppress where the evidence tended to show that
      the testimony of Patrolman Miksich was not credible in relation
      to the [c]ourt’s justification for the Terry [s]top, namely that the
      patrolman had seen a gun[?]

Appellant’s Brief at 4.

      It is well-settled that,

      [o]ur standard of review in addressing a challenge to the denial
      of a suppression motion is limited to determining whether the
      suppression court's factual findings are supported by the record
      and whether the legal conclusions drawn from those facts are
      correct. Because the Commonwealth prevailed before the
      suppression court, we may consider only the evidence of the
      Commonwealth and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record
      as a whole. Where the suppression court's factual findings are
      supported by the record, we are bound by these findings and
      may reverse only if the court's legal conclusions are erroneous.
      Where … the appeal of the determination of the suppression
      court turns on allegations of legal error, the suppression court's
      legal conclusions are not binding on an appellate court, whose
      duty it is to determine if the suppression court properly applied
      the law to the facts. Thus, the conclusions of law of the courts
      below are subject to our plenary review.




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Commonwealth v. McAdoo, 46 A.3d 781, 783–84 (Pa. Super. 2012)

(quoting Commonwealth v. Hoppert, 39 A.3d 358, 361–62 (Pa. Super.

2012) (citation omitted)).

       Before addressing Appellant’s argument, we set forth the suppression

court’s summary of the evidence presented at the suppression hearing, as

follows:

             On November 23, 2013, at 3:00 a.m., Officer Stephen
       Miksich and Officer Vasil were dispatched to the 25th Street and
       4th Avenue area of Altoona regarding a complaint of four white
       males attempting to break into vehicles. Officer Miksich was
       familiar with this area as he had responded to crimes of violence
       in that area several times. The officers patrolled 20th Street and
       4th Avenue looking for anyone on foot after the caller reported
       that he had chased the suspect[s] to that area. Officer Miksich
       approached a person in the area who had a hood up; this person
       was later recognized to be [Appellant]….[1] [Appellant] is a black
       male.

              Officer Miksich attempted to engage [Appellant] in
       conversation based on their “good rapport.”[2] [Appellant] put
       his head down and placed his hand into his right pocket and
       walked away;[3] when [Appellant] removed his hand from his
       pocket, Officer Miksich observed the butt of a handgun from his
       position approximately five feet away. Officer Miksich was aware
____________________________________________


1
  Officer Miksich testified that he previously knew Appellant, who went by
the nickname, “Flip,” and that “normally [Appellant would] stop and talk to
both [Officer Vasil] and [Officer Miksich] anytime [they saw] him….” N.T.
Hearing, 10/14/14, at 6. Officer Miksich stated that the officers had “a
pretty good rapport with [Appellant].” Id.
2
 Specifically, Officer Miksich testified that when he exited the police vehicle,
he said to Appellant, “hey, Flip, what’s going on?” N.T. Hearing at 6.
3
 At that point, Officer Miksich stated, “Flip, what are you doing?”         N.T.
Hearing at 6. Appellant then removed his hand from his pocket. Id.



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        of [Appellant’s] criminal history which prohibited [Appellant]
        from possessing a firearm.

             The officers detained [Appellant by grasping his hands] …,
        conducted a pat-down search, and retrieved a loaded Smith and
        Wesson 380 handgun.

Suppression Court Opinion (SCO), 12/1/14, at 1-2 (citations to the record

omitted).

        Based on this evidence, the suppression court first concluded that “the

officers’ contact with [Appellant] began as a voluntary encounter and

evolved to a Terry[4] stop and frisk based on the attendant facts.” Id. at 3.

In explaining its determination that the interaction began as a mere

encounter, the court noted the following facts:

        Officer Miksich testified that both officers had a “pretty good
        rapport” with [Appellant] and [Appellant] would voluntarily
        speak to them anytime [Appellant] saw them. Based on the
        totality of the circumstances, including [Appellant’s] prior
        cooperation with the officers, neither the officers’ approach in a
        marked unit nor Officer Miksich’s questions to [Appellant] of
        “what’s going on?” and “what are you doing?” had escalated the
        contact to that of a Terry stop.

Id. at 3-4 (citations to the record omitted).

        The court did not go on to expressly state at what point the encounter

became a ‘Terry stop,’ i.e., a detention “for investigative purposes” that

must be supported by “a reasonable suspicion that criminal activity is afoot.”

Commonwealth v. Griffin, 954 A.2d 648, 651 (Pa. Super. 2008) (citation

omitted).     However, we conclude that Appellant was detained when the
____________________________________________


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



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officers grasped his hands after Officer Miksich observed the weapon in

Appellant’s pocket. See N.T. Hearing at 6-7 (Officer Miksich’s testifying that

after he believed he saw “the butt of a firearm or a handgun,” he “told

[Officer] Vasil that [he] believe[d] … [they] were able to detain [Appellant’s]

hands, and at that time [Officer Miksich] retrieved … a black Smith and

Wesson handgun”).          Clearly, the officers’ grabbing Appellant’s hands

“carrie[d] an official compulsion to stop and respond,” thus constituting an

investigative detention.    Commonwealth v. DeHart, 745 A.2d 633, 636

(Pa. Super. 2000).

      In regard to whether the officers had reasonable suspicion to justify

the Terry stop of Appellant, the suppression court first acknowledged that

Appellant’s “act of walking away from Officer Miksich with his hand in his

right jacket pocket by itself cannot demonstrate that criminal activity was

afoot.” SCO at 4 (citing Commonwealth v. Reppert, 814 A.2d 1196, 1206

(Pa. Super. 2002) (“A police officer's observation of a citizen's nervous

demeanor and furtive movements, without more, establishes nothing more

than a ‘hunch,’ employing speculation about the citizen's motive in the place

of fact.”)). However, the court went on to conclude that,

      Officer Miksich possessed reasonable suspicion of criminal
      activity after he observed a handgun in [Appellant’s] pocket and
      knew that [Appellant] was prohibited from possessing a firearm.
      Although Officer Miksich’s report is inadequate in failing to note
      the observation of a gun, the [c]ourt finds his testimony
      credible. Therefore, Officer Miksich’s observation[,] combined
      with the knowledge that [Appellant’s] prior criminal convictions
      prohibited him from possessing a firearm[,] provided the
      requisite level of suspicion to justify the Terry stop.

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Id. at 4 (citations to the record omitted).

      On appeal, Appellant initially presents a rather confusing challenge to

the court’s determination that his interaction with the officers only escalated

into an investigative detention after Officer Miksich observed the gun in

Appellant’s pocket. Essentially, Appellant relies on his own testimony at the

suppression hearing to assert that the officers were in the midst of patting

him down before the gun was visible and, thus, their Terry stop was not

supported by reasonable suspicion.      See Appellant’s Brief at 16-17; see

also N.T. Hearing at 19-21 (Appellant’s testifying about how the stop and

frisk occurred).   Additionally, Appellant argues that the suppression court

should have wholly disbelieved Officer Miksich’s testimony that he observed

a gun in Appellant’s pocket because the officer failed to mention this fact in

his Incident Report.

      Both of Appellant’s arguments ask this Court to overturn credibility

determinations by the suppression court, which we cannot do. Clearly, the

court heard Officer Miksich’s version of the incident, as well as Appellant’s

differing account, and chose to believe Officer Miksich. The court was also

well aware that Officer Miksich did not include, in his Incident Report, the

fact that he observed a gun in Appellant’s pocket. Indeed, the court asked

the officer why he omitted that fact, and the officer replied, “I don’t have an

answer for that.” N.T. Hearing at 16. It is apparent from the record that

the suppression court considered Officer Miksich’s failure in this regard, yet

nevertheless chose to credit his testimony regarding the encounter with

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Appellant, including that the officer observed a gun prior to detaining

Appellant.   It was within the sole province of the court to make these

credibility determinations.   See Commonwealth v. Elmobdy, 823 A.2d

180, 183 (Pa. Super. 2003) (“It is within the suppression court’s sole

province as factfinder to pass on the credibility of witnesses and the weight

to be given their testimony.”) (citation omitted). Based on Officer Miksich’s

testimony, we ascertain no legal error in the suppression court’s conclusion

that the officer possessed reasonable suspicion to conduct a Terry stop and

frisk of Appellant.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2016




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