J-S14006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                 Appellant       :
                                 :
                                 :
              v.                 :
                                 :
                                 :
     HAROLD COST                 :             No. 1567 EDA 2017
                                 :

                  Appeal from the Order Entered April 20, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009310-2015


BEFORE:      OTT, J., McLAUGHLIN, J., and RANSOM, J.

MEMORANDUM BY OTT, J.:                                 FILED JUNE 11, 2018

        The Commonwealth appeals from the order entered April 20, 2017, in

the Philadelphia County Court of Common Pleas, which granted Harold Cost’s

pretrial motion to suppress evidence recovered during an illegal search.1   On

appeal, the Commonwealth contends the trial court erred in categorizing the

police interaction with Cost as a seizure, rather than a mere encounter, and,

therefore, erred in suppressing a firearm recovered from Cost’s backpack. For

the reasons below, we reverse the order of the trial court, and remand for

further proceedings.

____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1 The Commonwealth has properly certified in its notice of appeal that “this
order terminates or substantially handicaps the prosecution” pursuant to
Pa.R.A.P. 311(d). Notice of Appeal, 5/10/2017.
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       The trial court summarized the testimony presented during the

suppression hearing as follows:

              Police Officer Nigel Agront testified that he was patrolling
       with [Detective] Kevin Bradley on August 19, 2015 in a high crime
       area in Philadelphia when his partner saw [Cost] and three other
       males and suspected “there was something going on back
       there[.]” The men were in an alleyway designed for automobile
       traffic with driveways exiting on to it and two of the [men] were
       later identified to live on that block. The police officers turned
       their vehicle around, got out at the mouth of the alley, announced
       “police” and approached the four males from either side of the
       vehicle. They were wearing plain clothes with visible badges
       around their neck, and outer carrier and the word “Police” was
       written across their backs. The police officers asked the men for
       their identification and they complied. As [Cost] started to
       remove a backpack from his shoulder, Officer Agront asked if
       there was something in there that he should know about and
       [Cost] responded that there was a gun.

Trial Court Opinion, 7/10/2017, at 1-2 (record citations omitted).

       Cost was arrested and charged with three firearms offenses.2          On

December 3, 2015, he filed a pretrial motion to suppress the evidence

recovered during the search of his backpack.             The court conducted a

suppression hearing on April 20, 2017, and, at the conclusion of the hearing,

granted Cost’s motion to suppress.             This timely Commonwealth appeal

followed.3

____________________________________________


2 See 18 Pa.C.S. §§ 6105 (persons not to possess firearms), 6106 (firearms
not to be carried without a license), and 6108 (carrying firearms on public
streets in Philadelphia).

3 The Commonwealth filed a concise statement of errors complained of on
appeal on the same day as its notice of appeal. The appeal was initially



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       The Commonwealth’s sole claim on appeal is the trial court erred by

suppressing the handgun recovered from Cost’s backpack as the product of

an unlawful seizure.4 See Commonwealth’s Brief at 7. Our standard of review

of a trial court’s order granting a defendant’s motion to suppress evidence is

well established:

       When the Commonwealth appeals from a suppression order, we
       follow a clearly defined standard of review and consider only the
       evidence from the defendant’s witnesses together with the
       evidence of the prosecution that, when read in the context of the
       entire record, remains uncontradicted. The suppression court’s
       findings of fact bind an appellate court if the record supports those
       findings. The suppression court’s conclusions of law, however, are
       not binding on an appellate court, whose duty is to determine if
       the suppression court properly applied the law to the facts.
____________________________________________


dismissed by this Court when the Commonwealth failed to file a brief. See
Order, 11/15/2017. However, on November 29, 2017, this Court reinstated
the appeal after the Commonwealth filed a motion for reconsideration.

4 We note Cost contends that this claim is waived because it was not preserved
in the Commonwealth’s Rule 1925(b) concise statement. See Cost’s Brief at
15. We disagree. The Rule provides, in relevant part, “[e]ach error identified
in the Statement will be deemed to include every subsidiary issue contained
therein which was raised in the trial court[.]” Pa.R.A.P. 1925(b)(4)(v). Here,
the Commonwealth framed its concise statement as follows:

       Whether the lower court erred in suppress[ing] defendant’s gun
       where police investigating a nighttime shooting in a nearby park
       approached a group of men and asked if they had anything of
       which they should be aware; and then asked defendant, who was
       holding a backpack that he put on the ground, whether he had
       anything in the backpack of which they should be aware, and
       defendant said he had a gun in the backpack.

Statement of Errors Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b),
5/10/2017. Although the Commonwealth did not specifically state the court
erred in determining Cost was subject to an illegal seizure, that claim was
certainly implied. Therefore, we decline to find the issue waived.

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     Commonwealth v. Miller, 2012 PA Super 251, 56 A.3d 1276,
     1278-79 (Pa. Super. 2012) (citations omitted). “Our standard of
     review is restricted to establishing whether the record supports
     the suppression court’s factual findings; however, we maintain de
     novo review over the suppression court’s legal conclusions.”
     Commonwealth v. Brown, 606 Pa. 198, 996 A.2d 473, 476
     (2010) (citation omitted).

Commonwealth v. Korn, 139 A.3d 249, 252-253 (Pa. Super. 2016), appeal

denied, 159 A.3d 933 (Pa. 2016).

     In determining whether a police officer’s interaction with a citizen was

proper, we must bear in mind the following:

            Article I, § 8 of the Pennsylvania Constitution and the Fourth
     Amendment to the United States Constitution both protect the
     people from unreasonable searches and seizures. 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 or respond. The second, an
     “investigative 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.

           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 this 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. “[W]hat
     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.”


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             This 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.’”

Commonwealth v. Lyles, 97 A.3d 298, 302–303 (Pa. 2014) (internal

citations omitted).

      In the present case, the trial court found the officers’ interaction with

Cost and his companions “escalated into an investigative detention.”       Trial

Court Opinion, 7/10/2017, at 3. The court provided the following explanation,

in toto, for its ruling:

      [W]hen Officer Agront asked [Cost] about what was in the bag he
      was carrying, there was no doubt that the stop had escalated into
      an investigative detention and such a question was designed to
      potentially incriminate [Cost].   Therefore, as there was no
      reasonable suspicion of criminal activity, an unconstitutional
      warrantless search had been conducted and the gun was
      inadmissible as evidence against [Cost].

Id.
      The Commonwealth insists, however, the court erred as a matter of law,

because the officers’ actions herein constituted a mere encounter, in which no

seizure of Cost occurred. See Commonwealth’s Brief at 11-12. Upon our

review of the record, the parties’ briefs, the relevant case law, we are

compelled to agree.

      In Commonwealth v. Au, 42 A.3d 1002, 1007 (Pa. 2012), the

Pennsylvania Supreme Court held that an officer’s request for identification


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does not escalate a mere encounter into a seizure. In that case, the officer

was on routine patrol in the early morning hours when he noticed a car parked

in the lot of a closed business. See id. at 1003. Because this was “unusual,”

the officer decided to investigate and positioned his vehicle so that his lights

illuminated the passenger side of the parked vehicle. Id. He did not activate

his emergency lights or block the vehicle’s egress. The officer approached the

passenger and noticed there were six individuals in the car. He asked “what’s

going on” and they replied they were “hanging out.” Id. He then asked them

if they were all over the age of 18, at which time the back passengers replied

they were not. At that point, the officer asked the passenger for identification,

and when the passenger opened the glove box, the officer saw two baggies of

marijuana. See id. at 1003-1004.

      The Supreme Court concluded that the officer’s actions did not rise to

the level of a seizure of the passenger. See id. at 1008. It emphasized the

officer did not activate his emergency lights, block the car from leaving,

brandish his firearm, make a command or threat, or “make an intimidating

movement or show of force.” Id. Therefore, the Court found the officer’s

request for identification, alone, was not “the sort of escalatory factor upon

which a determination of a seizure may be founded for Fourth Amendment

purposes.” Id.

      Later, in Lyles, supra, the Supreme Court explained the limitation of

its holding in Au:


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      Au holds that, in assessing the totality of the circumstances, a
      request for identification does not in and of itself elevate what
      would otherwise be a mere encounter into an investigative
      detention. Au's limited premise is nothing new—it merely
      supported and reaffirmed well-settled principles allowing officers
      to request identification without any level of suspicion, and holding
      that a request alone does not constitute an investigative detention
      or seizure. Notwithstanding that general principle, an encounter
      involving a request for identification 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.

      That is, Au does not [] create a bright-line rule that requests for
      identification never contribute to a detention analysis. Au simply
      holds there is no opposite bright-line rule that such requests
      automatically constitute detention. Although cases involving
      similar or comparable seizure determinations may serve as
      guideposts, a suppression court must independently employ the
      totality-of-the-circumstances test in determining whether a
      seizure occurred.

Lyles, supra, 97 A.3d at 304–305.

      In Lyles, the Supreme Court concluded no seizure occurred when two

officers approached two men sitting on the steps of a vacant building, and

asked them their reason for being there.      See id. at 300. The defendant

stated his grandmother lived on the block, and one of the officers asked for

the defendant’s identification.   While the officer began writing down that

information, he noticed the defendant place his hand in his pocket, and turned

his body away from the officer’s view. The officer told him to take his hand

out of his pocket, which the defendant did, but then reached in again. After

the defendant ignored the officer’s third request, the officer frisked the

defendant and recovered drugs. See id.        In concluding the interaction did



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not escalate to a seizure of the defendant, the Supreme Court emphasized,

“there is no impropriety in the officers’ approaching the men, nor in asking for

their reason for loitering there.” Id. at 305. Moreover, the Court found the

officer’s request for the defendant’s identification, absent a demand or

“manifestation of authority,” was not per se coercive. Id. at 306. Accordingly,

the Court held the interaction was a mere encounter.

      This Court has outlined the following non-exclusive list of factors to

consider in determining whether an officer’s encounter with a citizen rose to

the level of an investigatory detention:

      the number of officers present during the interaction; whether the
      officer informs the citizen they are suspected of criminal activity;
      the officer’s demeanor and tone of voice; the location and timing
      of the interaction; the visible presence of weapons on the officer;
      and the questions asked.

Commonwealth v. Parker, 161 A.3d 357, 363 (Pa. Super. 2017) (quotation

omitted) (finding evidence recovered during stop should be suppressed when

two officers confronted suspect involved in prior drug deal to confirm his

identification, and “falsely stated” he was part of a disturbance at a nearby

restaurant; court stated, “The presence of two officers, along with [the]

suggestion that Appellant was suspected of criminal activity, gave rise to an

investigative detention, because a reasonable person in Appellant’s positon

would not have felt free to leave.”).

      With this background in mind, we consider the facts of the present case.

Officers Agront and Bradley were on routine patrol when they approached Cost




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and his three companions as they were exiting the alleyway.5 The officers did

not activate the lights or siren on their vehicle before they stopped. See id.

at 13.    Because they were dressed in plain clothes, the officers identified

themselves, but did not direct the men to stop. See N.T., 4/20/2017, at 12,

25. Although the officers were positioned on either side of the men (because

they exited the vehicle from different sides),6 Officer Agront testified they did

not block the men’s exit from the alley, and “people were actually walking

past us across the sidewalk.” Id. at 51. With regard to the questioning and

request for identification, Officer Agront testified the entire encounter lasted

“[m]aybe less than a minute[.]” Id. at 47. He explained:

        [I]t’s all, like, a simultaneous thing.

              I’m asking, you know, if you live back there?

              No.

              You got ID?

              Yeah.


____________________________________________


5 The Commonwealth insists the officers were on alert after receiving a “radio
call for gunshots” in the area. Commonwealth’s Brief at 8. We decline to rely
on that fact in our analysis because the trial court did not rely upon it in its
opinion, and it was not uncontradicted. See Korn, supra. Indeed, although
Detective Bradley testified that they had received a call for gunshots five to
ten minutes before their encounter with Cost, Officer Agront did not recall any
radio call. See N.T., 4/20/2007, at 10, 56. Furthermore, the parties
stipulated that there was “no mention of a radio call” in the arrest memo. Id.
at 58.

6   See N.T., 4/20/2017, at 31-32.



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            You guys – they give us their IDs.

            You guys got something on you that I need to know about?

             At which point, I don’t know if I was running the person or
      if Officer Bradley was running the IDs. So he could have been
      running IDs and I could have been asking the questions. You
      know, anything on you I need to know about? They said no.

            Now, I’m watching Mr. Cost take off his backpack. And I
      say, you have anything in that backpack I need to know about?
      He said a gun.

            So it’s – I’m going to say less than a minute.

Id. at 47-48.    There is no indication in the testimony presented at the

suppression hearing that the officers physically restrained Cost or his

companions, or presented themselves in a coercive or aggressive manner that

“convey[ed] a demand for compliance or [indicated] that there will be tangible

consequences from a refusal.” Lyles, supra, 97 A.3d at 354. Indeed, in

considering the factors listed in Parker, supra, we note here while there were

two officers involved in the encounter, they were questioning four men. The

officers did not inform the men they were suspected of any criminal activity,

nor does the record suggest their demeanor or tone of voice was threatening.

The officers posed innocuous questions to the men while on a public street,

and did not display their weapons.     Accordingly, under the totality of the

circumstances, we find the incident was a mere encounter.

      In his brief, however, Cost emphasizes that the officers: (1) positioned

themselves “at the mouth of the alleyway in the ‘interview stance’” as they

questioned the men; (2) admitted they were acting on pure speculation that

there “might be something going on” in the alley; and (3) continued to


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question Cost while they “retained control of [his] identification.” Cost’s Brief

at 8, 13. He insists that these additional factors elevated the mere encounter

to an investigative detention.

       We find, however, Cost has mischaracterized the testimony. First, we

note the trial court did not make a factual finding that the officers positioned

themselves in a way that blocked Cost’s travel, or took an “interview stance”

which conveyed their authority.          While there was testimony regarding this

“interview stance” during the hearing, it clearly was not significant to the trial

court’s ruling, as the court did not even mention it in its opinion.7 Second,

the fact that the officers may have been acting upon pure speculation when

they questioned Cost is irrelevant since the incident, at all times, remained a

mere encounter. Indeed, even if the officers subjectively believed Cost was

not free to leave,8 so long as that belief was not expressed to Cost, “the



____________________________________________


7 Defense counsel presented several questions to Officer Agront regarding the
“interview stance” that the police are trained to take when questioning
suspects in the field. N.T., 4/20/2017, at 31. Counsel asked the officer if he
was taught, “blade your body, gun away from the person that you receive as
your threat when you interview them to talk to them[,]” to which the officer
responded, “That’s fair.” Id. As noted above, the court did not even mention
the “interview stance” in its opinion, and we fail to see how such body
positioning would have conveyed to Cost that he would suffer “tangible
consequences” if he refused to answer the officers’ questions. Lyles, supra,
97 A.3d at 304.

8However, Officer Agront testified Cost “did not have to answer” his questions,
and “did not have to produce the ID,” but rather, “[h]e could have walked off
at any time.” N.T., 4/20/2017, at 35.


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officer’s subjective views are as immaterial to the objective standard[.]”

Lyles, supra, 97 A.3d at 307 n.6.

      Finally, Cost makes much of the fact that the officers continued to

question him while they retained his identification, and ran a background

check. He emphasizes the following language in Lyles:

            Moreover, we do not find the officer’s brief recording of the
      card’s information raised the encounter to an investigative
      detention. Quickly jotting down the information, as opposed to
      attempting to memorize it, did not restrain appellant’s freedom of
      movement. The 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. He took
      no additional steps that would suggest detention or restrict
      appellant’s freedom of movement. What delayed this interaction
      was not the officer’s writing but appellant’s worrisome refusal to
      keep his hands in sight.

Lyles, supra, 97 A.3d at 306–307 (footnote omitted). Cost insists: “To the

contrary, instantly, the officers did question Mr. Cost further while holding his

identification and they did use his information to run a background check.”

Cost’s Brief at 12 (emphasis in original).

      We find, however, this dicta in Lyles is not controlling under the facts

of the present case. Here, Officer Agront testified the entire encounter lasted

less than one minute. See N.T., 4/20/2017, at 47. While one officer checked

the men’s identifications, the other simply asked if they had anything on them

the officers needed to know about, and if Cost had anything in his backpack.

As noted above, there was no coercive atmosphere or implied demand for

compliance “beyond the officers’ mere employment.” Lyles, supra, 97 A.3d



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at 304. Therefore, we find the encounter did not elevate to an investigatory

detention and unlawful seizure.

      Accordingly, because we conclude the trial court erred in determining

the police interaction with Cost constituted a seizure and in suppressing the

firearm recovered from his backpack, we reverse the order on appeal.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

      Judge McLaughlin joins this memorandum.

      Judge Ransom notes dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/18




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