J-A13008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 DAVID N. CHAU                           :
                                         :
                      Appellant          :   No. 1437 EDA 2017

         Appeal from the Judgment of Sentence December 14, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0009672-2014


BEFORE:    SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.:                      FILED NOVEMBER 14, 2019

      Appellant, David N. Chau, appeals from the judgment of sentence

entered December 14, 2016, in the Court of Common Pleas of Philadelphia

County.   We conclude that under controlling precedent, the police lacked

reasonable suspicion to detain Appellant. Accordingly, we reverse the trial

court’s order denying Appellant’s motion to suppress, and we vacate the

judgment of sentence.

      The trial court summarized the factual and procedural history of this

case as follows:

            [Appellant] was arrested and was charged with inter alia,
      Firearms not to be Carried Without a License1, Carrying Firearms
      on Public Streets or Public Property in Philadelphia2, and Person
      not to Possess or Control a Firearm3 for events that occurred on
      August 10, 2014, at or near the 800 block of Granite Street in the
      City and County of Philadelphia.

            118    Pa. [C.S.A.] § 6106
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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           218   Pa. C.S.A. § 6108

           318   Pa. C.S.A. § 6105

            A motion-to-suppress hearing was conducted before this
     [c]ourt on March 24, 2015. The following facts were proved at
     the hearing: Police Officer Ned Felici and his partner, Police Officer
     Holland (first name not given), were in full uniform, in a marked
     vehicle, in the area of Granite Street responding to a report of a
     person with a gun. The flash information they received was “an
     Asian male in a black and red jacket in possession of a firearm
     with a black male in a grey shirt on the 800 block of Granite
     Street.” The officers proceeded to the location and pulled up mid-
     block (where Trotter Street breaks up Granite Street). Officer
     Felici observed [Appellant], who matched the exact description
     contained in the flash information. Officer Felici exited his vehicle
     and pulled his weapon; [Appellant], who had looked at Officer
     Felici exiting his vehicle, began to turn and walk eastbound on
     Granite Street. Fearing for his own safety as he could not see
     [Appellant’s] right hand in his pocket, Officer Felici asked
     [Appellant] to show him his hands. As Officer Felici is telling
     [Appellant] to show his hands, [Appellant] steps off the curb
     between two parked cars and starts to raise his left hand. As he
     is doing this, Officer Felici hears a large metal object hit the
     ground and [Appellant] then raises his right hand. Officer Felici
     automatically believed it was a gun that was dropped and placed
     [Appellant] in handcuffs. Officer Felici looked in the area between
     the two cars, and where [Appellant’s] right foot would have been,
     Officer Felici found a gun. [Appellant] was placed into custody.
     The entire encounter took place within a matter of seconds.
     Following argument, the motion to suppress was denied.

           [Appellant] proceeded to trial and on March 26, 2015, a
     mistrial was declared due to a hung jury. Following numerous
     continuances, a second jury was empaneled and trial commenced
     on September 13, 2016. At the conclusion of trial, [Appellant]
     was found guilty of firearms not to be carried without a license
     and carrying firearms on public streets or public property in
     Philadelphia.   After the jury exited the courtroom, Counsel
     stipulated that there was a predicate offense charge of robbery
     that [Appellant] was previously convicted of and this [c]ourt found
     [Appellant] guilty of person not to possess or control a firearm.
     Sentencing was deferred pending the completion of a pre-

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      sentence report. On December 14, 2016, this [c]ourt sentenced
      [Appellant] to an aggregate term of eight and one-half (8 1/2) to
      seventeen (17) years of incarceration followed by five (5) years
      of probation.4

                  4 [Appellant] was sentenced to [a] term of five
            (5) to ten (10) years of incarceration on the charge of
            person not to possess or control a firearm; three and
            one-half (31/2) to seven (7) years of incarceration on
            the charge of firearms not to be carried without a
            license; followed by five (5) years of probation on the
            charge[] of carrying firearms on public streets or
            public property in Philadelphia.

            Thereafter [Appellant] filed a motion for Modification of
      Sentence which was denied by operation of law on April 21, 2017.
      A timely Notice of Appeal to the Superior Court was filed on May
      5, 2017. On May 11, 2017, this [c]ourt filed an Order requesting
      [Appellant] to file a Statement of Matters Complained of on Appeal
      pursuant to PA. R.A.P. Rule 1925 (b).         On June 1, 2017,
      [Appellant] filed a Request for Extension of Time to File a
      Supplemental Statement of Errors Upon Receipt of all Notes of
      Testimony which was granted. Following the receipt of the notes
      of testimony, on September 10, 2018, a statement was filed on
      behalf of [Appellant].

Trial Court Opinion, 10/3/18, at 1-3 (internal citations omitted).    The trial

court filed its opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant presents the following issue for our review: “Did not the lower

court err by denying suppression of the physical evidence obtained after the

police, acting on an anonymous tip, improperly seized [Appellant] in the

absence of reasonable suspicion or probable cause, resulting in the forced

abandonment of a gun?” Appellant’s Brief at 3. Specifically, Appellant argues

that “[he] was seized by the police without reasonable suspicion or probable

cause, which seizure resulted in the forced abandonment of a handgun.


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Consequently, the [trial] court improperly denied suppression of that

handgun.” Id. at 13.

      “When reviewing the propriety of a suppression order, an appellate court

is required to determine whether the record supports the suppression court’s

factual findings and whether the inferences and legal conclusions drawn by

the suppression court from those findings are appropriate.” Commonwealth

v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en banc).           “Where the

Commonwealth prevailed on the suppression motion, we consider only the

evidence of the prosecution and so much of the defense that remains

uncontradicted.” Commonwealth v. Cooper, 994 A.2d 589, 591 (Pa. Super.

2010).

      With respect to factual findings, we are mindful that it is the sole
      province of the suppression court to weigh the credibility of the
      witnesses. Further, the suppression court judge is entitled to
      believe all, part or none of the evidence presented.

Commonwealth v. Swartz, 787 A.2d 1021, 1023 (Pa. Super. 2001) (en

banc).   To the extent that the suppression court’s factual findings are

supported by the record, “we are bound by those facts and will only reverse if

the legal conclusions are in error.” Cooper, 994 A.2d at 591. As an appellate

court, it is our duty “to determine if the suppression court properly applied the

law to the facts.” Commonwealth v. Maldonado, 14 A.3d 907, 910 (Pa.

Super. 2011) (citation omitted).      Moreover, our scope of review from a

suppression ruling is limited to the evidentiary record that was created at the

suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

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      This Court has stated the following with regard to interactions between

police officers and the public:

             The investigation of possible criminal activity invariably
      brings police officers in contact with members of the public.
      Depending on the circumstances, a police-citizen encounter may
      implicate the liberty and privacy interests of the citizen as
      embodied in both the federal constitution, see U.S. Const. art. IV,
      and our state constitution, see Pa. Const. art. I, § 8.3. The law
      recognizes three distinct levels of interaction between police
      officers and citizens: (1) a mere encounter; (2) an investigative
      detention, often described as a Terry stop, see Terry v. Ohio,
      392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); and (3) a
      custodial detention.

Commonwealth v. Mackey, 177 A.3d 221, 226-227 (Pa. Super. 2017)

(internal citations and footnote omitted).

             A mere encounter can be any formal or informal interaction
      between an officer and a citizen, but will normally be an inquiry
      by the officer of a citizen. The hallmark of this interaction is that
      it carries no official compulsion to stop or respond, and therefore
      need not be justified by any level of police suspicion.

           In contrast, an ‘investigative detention’ ... carries an official
      compulsion to stop and respond .... Since this interaction has
      elements of official compulsion it requires reasonable suspicion of
      unlawful activity. [. . . .]

            Finally, a custodial detention occurs when the nature,
      duration and conditions of an investigative detention become so
      coercive as to be, practically speaking, the functional equivalent
      of an arrest. This level of interaction requires that the police have
      probable cause to believe that the person so detained has
      committed or is committing a crime.

Id. at 227.

      Determining [the point of detention] with precision is crucial to
      the constitutional analysis because the police must have
      reasonable suspicion at the moment of detention; information


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      developed after a police-citizen encounter moves from
      consensual to coercive cannot be used to justify the detention.

Mackey, 177 A.3d at 228 (internal footnote omitted) (emphasis in original).

            An investigative detention constitutes a seizure of a person
      and activates the protections of the Fourth Amendment. To
      determine whether and when a seizure has occurred, we employ
      an objective test entailing a determination of whether, in view of
      all surrounding circumstances, a reasonable person would have
      believed that he was free to leave.            In evaluating the
      circumstances, the focus is directed toward whether, by means of
      physical force or show of authority, the citizen-subject’s
      movement has in some way been restrained .... In making this
      determination,    courts    must    apply    the   totality-of-the-
      circumstances approach, with no single factor dictating the
      ultimate conclusion as to whether a seizure has occurred.

Id. at 228 (internal citations and quotations omitted).

      Here, the testimony provided at the suppression hearing is crucial to the

determination of when the detention occurred. Officer Felici testified for the

Commonwealth and provided the following testimony.         At the time of the

incident, Officer Felici was patrolling with his partner, Officer Holland, in

uniform and in a marked police car. N.T., 3/24/15, at 13. While patrolling,

the officers received a call via police radio regarding a person with a gun on

the 800 block of Granite Street. Id. at 14-15. The flash information indicated

that the individual with the gun was an Asian male wearing a black and red

sweat suit and accompanied by a black male. Id. at 14. After receiving the

call, the officers proceeded to the 800 block of Granite Street. Id. at 14. The

area was known as a high crime area where Office Felici had made arrests in

the past for crimes of aggravated assault, guns, and narcotics. Id. at 15.


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      Officer Felici testified that once they arrived at the 800 block of Granite

Street, they pulled up to the intersection of Trotter and Granite Streets, and

on the corner, he observed Appellant wearing a black and red sweat suit. N.T.,

3/24/15, at 16.    Officer Felici explained that upon arriving, he exited the

vehicle and pulled out his weapon due to the report that Appellant had a

weapon. Id. at 16-17. Upon Officer Felici exiting the vehicle and drawing his

weapon, Appellant started to turn and walk in the opposite direction. Id. at

17, 28.   While Appellant was walking away, Officer Felici told Appellant to

show his hands because the officer could see only Appellant’s left hand. Id.

at 18. Appellant stepped off of the curb and stood between two parked cars.

Id. at 18. Officer Felici testified that the above-referenced series of events

occurred very quickly, taking only “seconds.” Id. at 18.

      While Appellant was standing between the parked cars, Officer Felici

again told Appellant to raise his hands. N.T., 3/24/15, at 19. Appellant raised

his left hand, but Officer Felici still could not see Appellant’s right hand. Id.

at 19. Officer Felici testified that he heard a large metal object hit the ground,

and Appellant then raised his right hand above his head. Id. at 20. Upon

hearing the metal object hit the ground, and based on his personal experience,

Officer Felici believed the object to be a gun. Id. at 20. After placing Appellant

in custody, Officer Felici found a gun on the street between the two parked

cars where Appellant had been standing. Id. at 21.




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      The trial court found Officer Felici’s testimony to be credible and

explained its decision denying the suppression motion as follows:

            I’m denying the motion. I find the officer credible. I find
      the following facts [. . . .] This is a complete match of a radio call
      description detailed in sorts: Asian with black male as well as
      the notable coloring of the sweat suit referred to by the officer,
      which matches the information. They were responding in uniform
      in a marked vehicle. They are responding to a neighborhood that
      has been afflicted with a high crime area. There is a good reason
      for concern due to the nature of the call.

            [Appellant’s] response to viewing a marked vehicle and or
      police officers in uniform is to attempt to exit the area. His
      movement in response to the officers’ direction to simply show his
      hands so that he didn’t have to be concerned about his own safety,
      was to refuse that. The clank was a recognizable sound, a
      dropping of a firearm, when [sic] raises the height of concern for
      that officer as well as it should to any reasonable human being.
      And as such, he had every right in the world to temporarily detain
      him and retrieve the firearm. Voluntarily abandonment, motion is
      denied.

N.T., 3/24/15, at 36-37 (emphasis in original).

      In its Pa.R.A.P. 1925(a) opinion, the trial court further stated that the

following facts were proven at the hearing:

      Officer Felici observed [Appellant], who matched the exact
      description contained in the flash information. Officer Felici exited
      his vehicle and pulled his weapon; [Appellant] who had looked at
      Officer Felici exiting his vehicle, began to turn and walk eastbound
      on Granite Street.

Trial Court Opinion, 10/3/18, at 2.

      Thus, the trial court determined that Officer Felici had his weapon drawn

when he exited the vehicle, and this factual determination was supported by




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the evidence presented at the suppression hearing.1 Despite this, the trial

court concluded that the initial interaction was a mere encounter, and that the

interaction did not rise to the level of an investigative detention until the officer

heard the clank of the gun as Appellant dropped it to the ground. Id. at 8-

12. This was error. Based on the facts as found by the trial court, Appellant

would not have felt free to walk away from the officers when Officer Felici

drew his gun, and Appellant was subjected to an investigative detention at

that point. Mackey, 177 A.3d at 228. Thus, we conclude that Appellant was

seized at the time that Officer Felici exited the vehicle with his gun drawn.

Accordingly, the officers were required to have reasonable suspicion to

support that detention. Id. at 227.

       Our Supreme Court recently emphasized that reasonable suspicion

means the officer must reasonably suspect that an individual is committing or

has committed a criminal offense. Commonwealth v. Hicks, 208 A.3d 916,

933 (Pa. 2019). The Court stated that “a police officer may [not] infer criminal

activity merely from an individual’s possession of a concealed firearm in

public.” Id. at 936. Thus, the fact that a person is carrying a firearm cannot

form by itself a “particularized and objective basis for suspecting the particular



____________________________________________


1 We note that the trial court also stated that “Officer Felici pulled his weapon
in response to [Appellant’s] starting to turn to walk away and because Officer
Felici could only see [Appellant’s] left hand; he had put the right hand in his
pocket.” Trial Court Opinion, 10/3/18, at 8. However, this statement is not
supported by the record.

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person stopped of criminal activity.” Id. at 939 (citing U.S. v. Cortez, 449

U.S. 411, 417-418 (1981)).       Furthermore, this Court has held that an

anonymous tip describing a person with a gun in a particular location, even if

the tip accurately describes the person in a high crime area, is not enough to

constitute reasonable suspicion.      Mackey, 177 A.3d at 231-232 (an

anonymous tip that a particular person in a particular location is carrying a

firearm does not, by itself, establish reasonable suspicion for an investigative

detention.)

      As noted, Appellant was seized when Officer Felici exited his vehicle with

his gun drawn in order to engage Appellant. The only information Officer Felici

had at the time of that seizure was an anonymous tip that described Appellant

in a high crime area and indicated he had a gun.       Pursuant to Hicks and

Mackey, this information alone was insufficient to establish reasonable

suspicion. Accordingly, Officer Felici’s seizure of Appellant was unlawful.

      Furthermore, this unlawful activity caused Appellant to abandon the

gun. Because Appellant’s abandonment of the firearm resulted from illegal

police conduct, the gun should have been suppressed. See Commonwealth

v. Byrd, 987 A.2d 786, 791 (Pa. Super. 2009) (stating “Although abandoned

property may normally be obtained and used for evidentiary purposes by the

police, such property may not be utilized where the abandonment is coerced

by unlawful police action.”). As a result, we are compelled to conclude that

the trial court erred in denying Appellant’s motion to suppress this physical


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evidence. On this basis, we reverse the order denying Appellant’s suppression

motion, and we vacate the judgment of sentence and remand for further

proceedings.

     Order denying motion to suppress reversed.       Judgment of sentence

vacated. Case remanded for further proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/19




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