J-A21020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DERRICK ROBINSON

                            Appellant                 No. 2116 EDA 2014


              Appeal from the Judgment of Sentence July 22, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011534-2013


BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                            FILED AUGUST 12, 2015

        Appellant, Derrick Robinson, appeals from the July 22, 2014 judgment

of sentence of two and one-half to five years’ imprisonment, followed by five

years’ probation, imposed following his convictions for persons not to

possess firearms, firearms not to be carried without a license, and carrying

firearms on public streets in Philadelphia.1 After careful review, we affirm.

        The trial court has summarized the factual history of this case as

follows.

                    On August 28, 2013, at about 12:43 a.m.,
              Philadelphia Police Officer Christopher Clair and his
              partner were on bike patrol when they observed
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 6105, 6106, and 6108, respecetively.
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          Appellant in the 3900 block of Market Street in
          Philadelphia. Prior thereto, Officer Clair had contact
          with [] Appellant at or about 7:45 p.m.[,] while
          dispersing an unruly crowd engaged in some sort of
          dispute. Officer Clair recalled that during the earlier
          encounter, Appellant was more vocal than the other
          persons involved in the incident, and had been
          wearing a distinctive orange and blue shirt.

                 When Officer Clair again saw Appellant in the
          early morning of the 28th, he and his partner had
          just received priority radio call to search for a person
          wearing blue jeans and an orange shirt with blue
          stripes who, allegedly, was waving a gun in the air.
          Officer Clair recalled that earlier that evening
          Appellant had been wearing a shirt that matched the
          description of the shirt described in the radio call
          worn by the man waving the gun.

                 Upon observing Appellant in the early morning
          hours of August 28th, Appellant was in a courtyard
          situated behind townhouses near 40th Street. The
          officers rode to a spot approximately five feet from
          Appellant and requested that he remove his hands
          from his pocket. Appellant asked, “Why?” and then
          said, “No[,]” at which time Officer Clair began
          dismounting from his bike. As the officer climbed off
          his bike, Appellant fled northbound through the
          courtyard. Office Clair pursued Appellant, who was
          clutching his pocket as he ran.

                 When Appellant reached Market Street, he
          turned east and discarded an object over a four[-
          ]foot wall into a yard. Officer Clair testified that the
          abandoned object made a “clinking” sound when it
          hit the ground. Appellant was apprehended shortly
          thereafter at which time Officer Clair and his partner
          escorted Appellant to the spot where he was
          observed discarding the object. Once there, Officer
          Clair’s partner located a gun in the yard into which
          Appellant was observed throwing the object. The
          officers did not recover the weapon but instead
          contacted Southwest Detectives who secured the
          scene and seized the weapon.

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                    Subsequent testing of the weapon revealed it
              to be operable. In addition, Appellant did not have a
              license to carry the weapon and was ineligible to
              possess a firearm because of a prior felony
              conviction.

Trial Court Opinion, 11/17/14, at 2-3.

        On September 19, 2013, by criminal information, the Commonwealth

charged Appellant with the aforementioned offenses as well as possession of

a small amount of marijuana.2              On April 23, 2014, Appellant filed an

omnibus pre-trial motion seeking suppression of physical evidence based on,

inter alia, a lack of reasonable suspicion.         Appellant’s Omnibus Pre-Trial

Motion, 4/23/14, at 1. On May 27, 2014, the trial court held a hearing on

Appellant’s motion, and at the conclusion of the hearing, denied said motion.

N.T., 5/27/14, at 26. Appellant proceeded immediately to a bench trial, and

the trial court found him guilty of persons not to possess firearms, firearms

not to be carried without a license, and carrying firearms on public streets in

Philadelphia.    Id. at 33.      The Commonwealth nolle prossed the marijuana

charge. Id.       On July 22, 2014, the trial court sentenced Appellant to two

and one-half to five years’ imprisonment, followed by five years’ probation.3

____________________________________________


2
    35 P.S. § 780-113(a)(31).
3
  Specifically, the trial court sentenced Appellant to two and one-half to five
years’ imprisonment for firearms not to be carried without a license and a
consecutive five years’ probation for persons not to possess firearms. Trial
Court Order, 7/22/14 at 1. The trial court imposed no further penalty on
(Footnote Continued Next Page)


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J-A21020-15


No post-sentence motions were filed.              Appellant filed a timely notice of

appeal on July 23, 2014.4

      On appeal, Appellant raises the following sole issue for our review.

                   Did not the trial court err in denying the
             motion to suppress physical evidence, insofar as
             [A]ppellant   was    stopped  without  reasonable
             suspicion and, therefore, any abandonment of
             physical items was coerced?

Appellant’s Brief at 3.

      When reviewing a challenge to a trial court’s denial of a suppression

motion, we adhere to the following well-established standard of review.

             We may consider only the Commonwealth’s evidence
             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 record supports
             the factual findings of the trial court, we are bound
             by those facts and may reverse only if the legal
             conclusions drawn therefrom are in error.          An
             appellate court, of course, is not bound by the
             suppression court’s conclusions of law.

Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted).

      Appellant argues that the initial encounter between Officer Clair and

Appellant constituted a seizure, requiring reasonable suspicion, because

Officer Clair ordered him to take his hands out of his pockets, and “[w]hen

                       _______________________
(Footnote Continued)

Appellant’s conviction for carrying firearms on public streets in Philadelphia.
Id.
4
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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J-A21020-15


police officers give orders to civilians, it is apt to leave a reasonable person

to feel that he is not free to leave or disobey.” Appellant’s Brief at 8.    He

further argues the trial court erred in denying his motion to suppress

because Appellant was not observed engaging in illegal or suspicious

conduct, and “the only justification [to stop Appellant] was an anonymous

call implicating someone wearing a shirt the same colors as [Appellant’s].”

Id. The Commonwealth counters that “Appellant’s encounter with police …

escalated [to an investigative detention] only after he ignored Officer Clair’s

request to take his hands out of his pockets and ran.” Commonwealth Brief

at 9 (italics in original).   For the reasons that follow, we agree with the

Commonwealth.

      The Fourth Amendment of the United States Constitution guarantees

that, “[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. Similarly, the Pennsylvania Constitution

assures citizens of our Commonwealth that “[t]he people shall be secure in

their persons, houses, papers and possessions from unreasonable searches

and seizures….” Pa. Const. art. I, § 8. Further, “[t]he reasonableness of a

governmental intrusion varies with the degree of privacy legitimately

expected and the nature of the governmental intrusion.” Commonwealth

v. Fleet, 114 A.3d 840, 844 (Pa. Super. 2015) (citation omitted).




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J-A21020-15


Interactions between law enforcement and citizens fall into one of the

following three categories.

            The first of these is a “mere encounter” (or request
            for information) which need not be supported by any
            level of suspicion, but carries no official compulsion
            to stop or respond. The second, an “investigative
            detention” must be supported by a reasonable
            suspicion; it subjects a suspect to a stop and a
            period of detention, but does not involve such
            coercive conditions as to constitute the functional
            equivalent of an arrest.       Finally, an arrest or
            “custodial detention” must be supported by probable
            cause.

Id.   (citation omitted).   When assessing whether an interaction escalates

from a mere encounter to an investigative detention, we employ the

following standard.

            To guide the crucial inquiry as to whether or not a
            seizure has been effected, the United States
            Supreme Court has devised 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.

Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012) (citation

omitted), appeal denied, 65 A.3d 413 (Pa. 2013).        Moreover, when this

Court evaluates whether an investigative detention is constitutional, the

following principles guide our decision.

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J-A21020-15


             A police officer may detain an individual in order to
             conduct an investigation if that officer reasonably
             suspects that the individual is engaging in criminal
             conduct. This standard, less stringent than probable
             cause, is commonly known as reasonable suspicion.
             In order to determine whether the police officer had
             reasonable     suspicion,    the     totality of  the
             circumstances must be considered. In making this
             determination, we must give due weight to the
             specific reasonable inferences the police officer is
             entitled to draw from the facts in light of his
             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.

Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014), appeal

denied, --- A.3d ---, 2015 WL 3938036 (Pa. 2015), citing Commonwealth

v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en banc), appeal denied,

990 A.2d 727 (Pa. 2010).

      At the suppression hearing, the only evidence proffered by the

Commonwealth was the testimony of Officer Clair, and Appellant did not

submit any evidence. Officer Clair testified that he had been a Philadelphia

police officer for approximately 17 years, during which time he has made

hundreds of arrests. N.T., 5/27/14, at 7. His testimony further established

that the area where he encountered Appellant is known for drug activity and

shootings.    Id.   He testified, specifically regarding his interactions with

Appellant, as follows.

             [The Commonwealth]:


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J-A21020-15


                Q. [W]hy were you there patrolling that day?

          [Officer Clair]:

                A. Well, that day we were specifically in that
          area … for an occurring rash of armed robbery, point
          of gun.

                Q. [On August 27, 2013], did you actually go
          to that location earlier that day?

                A. Earlier that day during our routine patrol in
          that area, I did have an interaction with [Appellant].
          There was a disorderly crowd that were yelling at
          each other. We dispersed the crowd and gave them
          warnings, and I actually wrote the paperwork on it.

                Q. And after that incident, did everybody
          disperse?

                A. At that time, yes, they did.

                 Q. Okay. That was approximately 7:45 p.m.;
          is that right?

                A. That is correct.

                Q. [Y]ou ended up going back to the location
          at approximately 12:43 [a.m.]; is that right?

                A. I did, yes.

                Q. All right. Why did you go back there?

                 A. We were surveying the area for a person
          with a gun, and that person with the gun was
          wearing an orange shirt with blue stripes on it. I do
          recall from earlier in the night, five hours prior to the
          incident in which I had the interaction with
          [Appellant], that he was wearing an orange shirt
          with blue stripes on it. Actually, Your Honor, he’s
          wearing that same shirt right now.

                                      …

                                      -8-
J-A21020-15



                Q. Now, when you went to that location and
          saw this [Appellant], what happened then?

                                    …

                 [The Commonwealth]: Oh.         Let the record
          reflect that [Appellant] is actually wearing the same
          orange and blue-striped shirt.

                [The trial court]: So noted.

                                    …

                A. At that time[,] I observed the male in the
          courtyard. … It’s three different courtyards, I believe
          [describing the area Appellant was observed].

                So in the first courtyard closest to 40th Street,
          I, along with my partner, [], we’re on bikes. I
          approached this male, he has his hands in his
          pocket, Your Honor. I asked him to remove his
          hands from his pocket, at which time I believe he
          said “why” and “no.” So I was getting off my bike.
          As I was getting off my bike, he ran northbound
          through the courtyard. I mounted my bike and gave
          pursuit following him approximately ten feet behind
          him the whole entire time while my partner went
          down a small driveway, which would be mirroring
          me.

                So [Appellant] makes the right--he makes a
          right again on foot going eastbound all along the
          3900 block of Market Street. The whole entire time,
          as I’m on my bike, with his right hand he’s clinching
          his pocket. At one point[,] he pulls out an unknown
          black object and he discards it behind two of the
          townhouses into the common yard area over a small
          wall. … I hear a clinking sound like metal on metal.
          Continued to pursue the male to the front of that
          property, which is another courtyard.       …    [M]y
          partner meets [Appellant] in the front as I get him
          from behind.


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J-A21020-15


                 At that point[,] we immediately take him into
           custody, and I walk him back onto 3900 Market
           Street. And I observed in my presence, my partner
           went immediately into … where I heard the clinking
           sound, which was later identified as a gun, in my
           presence he recovered, but, yet, did not touch and
           contacted Southwest Detectives for them to recover
           it.

                Q. Officer, you said he was holding his pocket
           as he was running. Was that the same pocket his
           hand was in when you were outside?

                A. Outside, yeah. Initially, he had his hands in
           both pockets, Your Honor, and he refused to take
           them out.

                  Q. [D]id you talk to him multiple times or you
           just talked to him that one time?

                A. I initially gave him the order to remove his
           hands for my safety, unaware if he had any
           weapons. As soon as he said, “why” and “no,” and I
           dismounted my bike, he took off, Your Honor.

Id. at 7-11.

      In Commonwealth v. Coleman, 19 A.3d 1111 (Pa. Super. 2011),

this Court analyzed the nature of a police-citizen encounter under similar

circumstances.    In Coleman, a police officer responded to a report of a

robbery in progress by two black males wearing green, hooded jackets under

black coats.     Coleman, supra at 1114.       The radio call indicated the

suspects had a gun and knife. Id. The officer observed the appellant, who

was a black male and fit the clothing description, and asked if he had a gun.

Id.   The appellant responded that he did not have a gun, but he was

observed by the officer “fumbling” with his hands in his pocket.    Id.   The

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J-A21020-15


officer then asked the appellant to raise his hands, but the appellant would

not comply and continued to keep his hands in his pockets. Id. When the

appellant failed to comply with the officer’s request, the officer then brought

the appellant to his police van, while appellant resisted, and a struggle

ensued. Id.

      In concluding the initial interaction between the appellant and police

officer was a mere encounter, this Court noted that, “[b]oth the United

States and Pennsylvania Supreme Courts have held that both the approach

of a police officer followed by questioning does not constitute a seizure.” Id.

at 1116 (citations omitted). We further concluded, “the fact that [the police

officer] told [the a]ppellant to take his hands out of his pockets did not turn

the encounter into a seizure.” Id. at 1117.        Therefore, the seizure of the

appellant in that case did not occur until the police officer tried to move the

appellant to the police car. Id.

      Herein,   the   evidence     establishes   that   when   Officer   Clair   first

approached Appellant, he asked Appellant to remove his hands for safety.

N.T., 5/27/14, at 11.   Upon Appellant’s refusal, Officer Clair dismounted his

bike, and Appellant fled. Id. Under the totality of the circumstances, at this

point, we conclude Appellant was not subjected to an investigative

detention, but was engaged in a mere encounter with Officer Clair.               See

McAdoo, supra; Coleman, supra.




                                       - 11 -
J-A21020-15


        Following this brief encounter where Appellant refused to remove his

hands from his pockets, Appellant fled, and Officer Clair pursued.      N.T.,

5/27/14, at 9. Therefore, at this point, a seizure occurred. See Ranson,

supra at 77 (observing “pursuit by police constitutes a seizure under the law

of this Commonwealth”).           However, the uncontradicted evidence at the

suppression hearing established that at the time of the police pursuit of

Appellant, he was present in an area known for drug and gun activity at

approximately 12:43 a.m., he matched the distinctive clothing description of

a report of someone waving a gun, he had refused to remove his hands from

his pockets, and he fled in response to police presence. N.T., 5/27/14, at 7-

9. Further, while fleeing, Appellant was “clinching his pocket area.” Id. at

12.    Under the totality of the circumstances, upon Appellant’s flight, we

conclude there was reasonable suspicion to believe Appellant was engaged in

criminal conduct.      See Ranson, supra; see also In re D.M., 781 A.2d

1161, 1164 (Pa. 2001) (discussing the relevancy of flight in determining if

reasonable suspicion exists and noting, “it is evident that unprovoked flight

in a high crime area is sufficient to justify a Terry[5] stop under the Fourth

Amendment[]”); cf. Commonwealth v. Washington, 51 A.3d 895, 898-

899 (Pa. Super. 2012) (reviewing cases where the defendants “clearly … fled

from individuals who were recognized as police” and concluding the “crucial

____________________________________________


5
    Terry v. Ohio, 392 U.S. 1 (1968).



                                          - 12 -
J-A21020-15


element” when evaluating flight in a high crime area creating a nexus

between running and criminal activity is that the defendant was “knowingly

running from police[]”).

      Accordingly, we reject both Appellant’s argument that when Officer

Clair first approached Appellant, he was subjected to an investigative

detention without reasonable suspicion and Appellant’s argument that Officer

Clair’s only justification for stopping Appellant was an “anonymous radio

call.” Appellant’s Brief at 8. The totality of the circumstances demonstrate

that the police officers had reasonable suspicion to believe Appellant was

engaged in criminal activity when they began their pursuit of Appellant, and

we conclude the trial court did not err in denying Appellant’s motion to

suppress.   See Ranson, supra.     Therefore, we affirm the July 22, 2014

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2015




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