J-S27030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

KENNETH FIELDS

                            Appellant                     No. 1926 EDA 2014


         Appeal from the Judgment of Sentence entered June 25, 2014
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0011614-2012


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                                  FILED JULY 28, 2015

        Appellant Kenneth Fields appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County (trial court),

after Appellant was convicted of possession with intent to deliver a

controlled     substance    (PWID),     intentional   possession   of   a   controlled

substance, and evidence tampering.1 Upon review, we vacate and remand.

         The facts underlying this case are undisputed. As summarized by the

trial court:

              On the evening of August 28, 2012, a gunman shot a
        victim near the intersection of 52nd Street and Girard Avenue in
        a high-crime area of Southwest Philadelphia. Fortunately, a
        surveillance camera captured video of the gunman as he
        committed the shooting. From this video, authorities extracted
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30), (16), and 18 Pa.C.S.A. § 4910(1).
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     several low-resolution photographs of the gunman, disseminated
     those photographs to certain police officers, and instructed those
     officers to search and patrol the intersection and its general
     vicinity.

           Uniformed Philadelphia Police Officer Darnell Jessie and his
     partner searched and patrolled the area on August 31, 2012 at
     approximately 12:40 a.m. and observed as [Appellant] walked
     through a dark field near the intersection where the shooting
     occurred. Believing that [Appellant] resembled the gunman in
     the photograph, Officer Jessie and his partner approached
     [Appellant] and requested his identification.

           After [Appellant] produced his identification, Officer Jessie
     and his partner returned to their vehicle to determine whether
     authorities had issued any arrest warrant for [Appellant]. While
     he stood at the vehicle, Officer Jessie observed that [Appellant]
     “was trying to reach his hands back into his pocket.” This
     sudden movement alarmed Officer Jessie because [Appellant]
     already retrieved his identification from his pocket. Fearing that
     [Appellant] may retrieve a firearm, Officer Jessie approached
     [Appellant] and initiated a brief “safety pat frisk” of [Appellant’s]
     outer garments.

           Upon commencing the frisk, Officer Jessie felt objects in
     the pocket of [Appellant’s] outer garment and immediately
     recognized that the objects were consistent with the feel and
     texture of packaged crack cocaine. Officer Jessie testified that
     his familiarity with this type of packaging was based upon his
     prior participation in numerous arrests of persons in possession
     of similarly packaged crack cocaine. However, Officer Jessie did
     not have the opportunity to conduct a thorough investigation:
     immediately after Officer Jessie felt the packaged crack cocaine,
     [Appellant] fled on foot.

           During the ensuing pursuit, Officer Jessie never lost sight
     of [Appellant]. He observed as [Appellant] crossed 52nd Street
     and Girard Avenue, stopped at a sewer grate, reached into his
     pocket, retrieved “some items” from the pocket, and threw those
     items into the sewer. Immediately thereafter, [Appellant] raised
     his hands and lay on the ground. [Appellant] volunteered that
     he fled because he was on probation and had “weed” in his
     possession. Officer Jessie then arrested [Appellant].

           After placing [Appellant] in handcuffs, Officer Jessie
     returned to the sewer where he had observed [Appellant]
     discarding his items. When he peered into the sewer, Officer
     Jessie saw a clear plastic bag that contained several packets of
     crack cocaine. Officer Jessie retrieved the plastic bag and its
     contents, and he placed the packaged crack cocaine on a
     property receipt.




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Trial Court Opinion, 10/2/14, at 2-3. Thereafter, Appellant was charged with

PWID, intentional possession of a controlled substance, and evidence

tampering in connection with his possession of crack cocaine. Appellant filed

a motion to suppress the seized crack cocaine. Following a hearing, the trial

court denied Appellant’s suppression motion on March 21, 2014.

      On April 25, 2014, the trial court found Appellant guilty of the charged

offenses and on June 25, 2014, the trial court sentenced Appellant to 11½ to

23 months’ imprisonment, followed by five years of reporting probation.

Appellant timely appealed to this Court.     Upon the trial court’s direction,

Appellant filed a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal, arguing only that the trial court erred in denying his motion to

suppress.   In response, the trial court issued a Pa.R.A.P. 1925(a) opinion,

concluding it did not err in denying Appellant’s suppression motion.

      On appeal, Appellant raises five issues for our review:

      I. Whether Appellant’s interactions with police rose from a mere
      encounter to an investigatory detention when [p]olice retained
      Appellant’s identification for the purpose of a warrant search?

      II. Whether there was a reasonable suspicion to stop [A]ppellant
      based on alleged resemblance to a suspected shooter?

      III. Whether Appellant’s furtive movements alone supported a
      finding of reasonable suspicion to frisk for weapons?

      IV. Whether the search of Appellant went beyond the bounds of
      a frisk for weapons?

      V. Whether any contraband recovered by police[] was the
      product of forced abandonment, and was the fruit of a seizure,
      not supported by probable cause, and should be suppressed?


Appellant’s Brief at 3.


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      In reviewing appeals from an order denying suppression, our standard

of review is limited to determining

      whether [the trial court’s] factual findings are supported by the
      record and whether [its] legal conclusions drawn from those
      facts are correct. When reviewing the rulings of a [trial] court,
      the appellate court considers 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. When the record supports the findings of the [trial]
      court, we are bound by those facts and may reverse only if the
      legal conclusions drawn therefrom are in error.

Commonwealth v. Griffin, 2015 PA Super 117, __ A.3d __, 2015 WL

2193891, at *2 (filed May 12, 2015). Our scope of review is limited to the

evidence presented at the suppression hearing. In the interest of L.J., 79

A.3d 1073, 1088-89 (Pa. 2013).

      Appellant first argues the trial court erred in concluding that his

interaction   with   Officer   Jessie   escalated   from   mere   encounter   to

investigatory detention when Officer Jessie took Appellant’s identification to

the police cruiser for purposes of checking for outstanding warrants.         We

agree.

      Article I, Section 8 of the Pennsylvania Constitution and the Fourth

Amendment to the United States Constitution protect the people from

unreasonable searches and seizures.        Commonwealth v. Lyles, 97 A.3d

298, 302 (Pa. 2014) (citation omitted). The Lyles Court explained:

      Jurisprudence arising under both charters has led to the
      development of three categories of interactions between citizens
      and police. The first, a “mere encounter,” does not require any
      level of suspicion or carry any official compulsion to stop and
      respond. The second, an “investigatory detention,” permits the
      temporary detention of an individual if supported by reasonable
      suspicion. The third is an arrest or custodial detention, which
      must be supported by probable cause.

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            In evaluating the level of interaction, courts conduct an
      objective examination of the totality of the surrounding
      circumstances. . . . The totality-of-the-circumstances test is
      ultimately centered on whether the suspect has in some way
      been restrained by physical force or show of coercive authority.
      Under this test, no single factor controls the ultimate conclusion
      as to whether a seizure occurred—to guide the inquiry, the
      United States Supreme Court and [our Supreme] Court have
      employed an objective test entailing a determination of whether
      a reasonable person would have felt free to leave or otherwise
      terminate the encounter. What constitutes a restraint on liberty
      prompting a person to conclude that he is not free to leave will
      vary, not only with the particular police conduct at issue, but
      also with the setting in which the conduct occurs.

             [Our Supreme] Court and the United States Supreme
      Court have repeatedly held a seizure does not occur where
      officers merely approach a person in public and question the
      individual or request to see identification. Officers may request
      identification or question an individual so long as the officers do
      not convey a message that compliance with their requests is
      required. Although police may request a person’s identification,
      such individual still maintains the right to ignore the police and
      go about his business.

Id. at 302-03 (internal citations and quotation marks omitted). The Court

further explained that “a request for identification does not in and of itself

elevate what would otherwise be a mere encounter into an investigative

detention.” Id. at 304 (emphasis in original). Despite this general principle,

however, “an encounter involving a request could rise to a detention when

coupled with circumstances of restraint of liberty, physical force, show of

authority, or some level of coercion beyond the officer’s mere employment,

conveying a demand for compliance or that there will be tangible

consequences from a refusal.”        Id.   A mere encounter escalates to

investigatory detention when a police officer takes and maintains possession

of an individual’s identification card to check whether the individual has any

outstanding warrants. Commonwealth v. Hudson, 995 A.2d 1253, 1258-



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59 (Pa. Super. 2010); see also Lyles, 97 A.3d at 306 (noting that the

police officer’s interaction with appellant did not rise to investigatory

detention where “[t]he officer did not question appellant further while he

was   holding   the   identification,   and   he   did    not    use   appellant’s

information to run a background check”) (emphasis added).

      In Hudson, a police officer observed appellant outside of a corner

grocery store with an adult male. The officer drove past the store several

times over the course of an hour and saw appellant go inside the store

whenever appellant noticed the police cruiser.       On his third drive-by, the

officer approached appellant as he was walking down a street with another

man. Following a brief conversion, the officer asked the two men whether

they had identification.    They did.     Appellant and his male companion

provided their Pennsylvania identification cards.        Upon receipt, the officer

took their identification cards to the police cruiser to run a warrant and

scofflaw check.   Ultimately, it turned out that appellant had a scofflaw

warrant for a summary harassment charge. The officer arrested appellant

and, incident to the arrest, searched appellant’s person and discovered

drugs and cash.

      Based on these facts, the Hudson Court concluded the officer

“effectuated an investigative detention at the time that [the officer] took and

maintained possession of [appellant’s] identification.”         995 A.2d at 1259.

The Hudson Court also concluded that the officer did not have reasonable

suspicion to detain appellant for investigation because the officer at best

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“observed [appellant] meeting with three men and walking into and out of a

grocery store, all of which are lawful activities.”       Id.     Accordingly, the

Hudson Court held that the officer’s investigative detention of appellant was

constitutionally infirm and, as a result, overruled the trial court’s denial of

appellant’s motion to suppress the seized evidence. In so doing, this Court,

inter alia, vacated appellant’s judgment of sentence.

      In light of Hudson, we are constrained to agree with Appellant that

his interaction with the police escalated to an investigative detention when

Officer Jessie took Appellant’s identification to the police cruiser to search for

outstanding warrants. At the suppression hearing, Officer Jessie testified, “I

then took that [identification] from [Appellant], walked back to the patrol

vehicle to give my partner [the identification] to see if there are no

outstanding warrants.” N.T. Suppression, 3/21/14, at 11. Accordingly, the

trial court erred in concluding that Appellant’s interaction with the police

amounted to a mere encounter.

      Our inquiry, however, does not terminate here.         Because the police

detained Appellant for investigatory purposes, we must determine whether

the police had reasonable suspicion for so doing.               It is settled that

reasonable suspicion necessary for investigative detentions

      is a less demanding standard than probable cause not only in the
      sense that reasonable suspicion can be established with
      information that is different in quantity or content than that
      required to establish probable cause, but also in the sense that
      reasonable suspicion can arise from information that is less
      reliable than that required to show probable cause.



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Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014) (citations

omitted).   “In order to justify an investigative detention, the police must

have reasonable suspicion that criminal activity is afoot.         Reasonable

suspicion must be based on specific and articulable facts, and it must be

assessed based upon the totality of the circumstances viewed through the

eyes of a trained police officer.”   Commonwealth v. Williams, 980 A.2d

667, 672 (Pa. Super. 2009) (citation omitted), appeal denied, 990 A.2d

730 (Pa. 2010).       Thus, “[t]he 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.” Commonwealth v. Holmes, 14

A.3d 89, 96 (Pa. 2011) (emphasis added). 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. Id. at 95.

      In the case sub judice, the facts from the suppression hearing indicate

that the police were searching for a gunman who shot someone near the

intersection of 52nd Street and Girard Avenue, a high-crime neighborhood, in

Southwest Philadelphia on August 28, 2012. Officer Jessie and his partner

were provided a low-resolution picture of the gunman taken from a

surveillance video.     N.T. Suppression, 3/21/14, at 8-9.      Officer Jessie

testified that, on August 31, 2012, at 12:40 a.m., three days later, in the

dark of the night, he spotted Appellant walking through an unlit field, one

block from the site of the shooting.       Id. at 8-9.   Officer Jessie further

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testified that, believing Appellant resembled the gunman, he approached

Appellant to investigate. Id. at 10. On cross-examination, however, Officer

Jessie acknowledged that, at the time of arrest, Appellant had “serious male-

pattern balding” and “a very short mustache” and the gunman in the low-

resolution picture had a “full set of hair” and “a large beard.” Id. at 16-18.

Thus, given the totality of the circumstances here, we cannot conclude

Officer Jessie objectively had reasonable suspicion to detain Appellant for

purposes of investigating the shooting. Officer Jessie’s belief that Appellant

resembled the person in the low-resolution photo was not reasonable.

Accordingly, we conclude the trial court erred in denying Appellant’s motion

to suppress the crack cocaine. We vacate Appellant’s judgment of sentence

and remand the matter to the trial court for further proceedings, including a

new trial or discharge of Appellant.2

       Judgment      of   sentence     vacated.   Case   remanded   for   further

proceedings. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2015
____________________________________________


2
  Based on the outcome of this case, we need not address Appellant’s
remaining arguments.



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