J-A31013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                      v.

TION LEWIS,

                            Appellant                    No. 348 MDA 2014


            Appeal from the Judgment of Sentence February 18, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0004156-2013


BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY BOWES, J.:                         FILED NOVEMBER 18, 2014

         Tion Lewis appeals from the aggregate judgment of sentence of five to

ten years incarceration imposed by the trial court after it found Appellant

guilty of persons not to possess a firearm, carrying a firearm without a

license, possession        of a small amount of marijuana, possession of

oxycodone, and two counts of possession with intent to deliver. We reverse.

         On July 27, 2013, at approximately 3:00 a.m., Harrisburg Police

received an anonymous tip that a bearded black male in a T-shirt and blue

capri pants was brandishing a black handgun by Sixth and Schuylkill Streets.

Police     consider   the    area   an   extremely    high-crime   neighborhood.

Corporal Thomas McGarrity responded to that location and did not find

anyone matching that description. Accordingly, Corporal McGarrity began to

leave the area to respond to another call. While driving on Maclay Street,
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which also intersected with Sixth Street, the officer observed Appellant

stepping onto a sidewalk. Corporal McGarrity noted that Appellant matched

the description from the anonymous caller and asked for backup. He then

watched Appellant enter an Exxon gas station.             According to Corporal

McGarrity, that gas station was a hub for violence and he had responded to

multiple robberies at that location. Further, he testified that there had been

shootings at that gas station. Two additional officers arrived.

       The officers entered the gas station while Appellant was at the counter

making a purchase.         The three officers surrounded Appellant.     Corporal

McGarrity, with his hand on his sidearm, inquired if Appellant was armed.

Appellant answered negatively.           Based on Appellant’s speech and eyes,

Corporal McGarrity believed Appellant was intoxicated and directed Appellant

to place his hands on the counter. Appellant appeared to reach with his left

hand toward his waist and Corporal McGarrity ordered Appellant to put his

hands on the counter.             Appellant complied, and Corporal McGarrity

conducted a pat-down search.1              Corporal McGarrity immediately felt a

firearm in Appellant’s waistband on Appellant’s left side. After the recovery

of the firearm, a .45 caliber Bersa pistol, a further police search of Appellant

yielded crack cocaine, twenty-nine antipsychotic pills, one oxycodone pill,

and eight grams of marijuana.
____________________________________________


1
   The record contains a video recording of the interaction inside the gas
station.



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      Appellant filed a motion to suppress, which the trial court denied. The

parties then proceeded to a stipulated bench trial. The court found Appellant

guilty of the aforementioned charges and sentenced Appellant on that same

date to five to ten years incarceration. This timely appeal ensued. Appellant

filed and served a Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal and the trial court authored its opinion. Appellant’s sole issue

on appeal is “[w]hether the [t]rial [c]ourt erred in denying Appellant’s

[m]otion to [s]uppress [e]vidence where police lacked reasonable suspicion

to conduct an investigative detention, or legitimate fear for officer safety to

conduct a Terry frisk, in violation of Article I, Section 8 of the Pennsylvania

Constitution and the Fourth Amendment to the United States Constitution?”

Appellant’s brief at 5.

      In evaluating a suppression ruling, we consider the evidence of the

Commonwealth, as the prevailing party below, and any evidence of the

defendant that is uncontradicted when examined in the context of the

suppression record.        Commonwealth v. Sanders, 42 A.3d 325, 330

(Pa.Super. 2012).         This Court is bound by the factual findings of the

suppression court where the record supports those findings and may only

reverse when the legal conclusions drawn from those facts are in error. Id.

      Appellant first maintains that an anonymous tip is insufficient to

warrant an investigatory stop.          In this respect, Appellant relies on

Commonwealth        v.     Hawkins,   692    A.2d   1068   (Pa.   1997)   (OAJC),


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Commonwealth           v.   Kue,    692    A.2d     1076    (Pa.    1997)   (OAJC),     and

Commonwealth v. Jackson, 698 A.2d 571 (Pa. 1997), as well as Florida

v. J.L., 529 U.S. 266 (2000). The plurality decisions in Hawkins and Kue

were decided on the same date with the votes of the justices involved being

identical.

       In    Hawkins,       Philadelphia   police    received      information   from    an

anonymous source that a black male wearing a blue hat, black jeans, and a

gold or brownish coat was at Sydenham and York Streets with a gun.2 Police

arrived within three minutes to that precise location and observed Hawkins.

Hawkins matched the description given. Accordingly, the officer stopped and

frisked Hawkins, “finding a .22 caliber revolver in his waistband.” Hawkins,

supra at 1069. The Hawkins plurality3 ruled the stop illegal. The plurality

opined that when police “respond to an anonymous call that a particular

person at a specified location is engaged in criminal activity, and upon

arriving at the location see a person matching the description but nothing

more, they have no certain knowledge except that the caller accurately

described someone at a particular location.”               Id. at 1070.     The Hawkins

____________________________________________


2
  The Pennsylvania Supreme Court decision does not reference the time of
day that the stop occurred.         However, this Court’s unpublished
memorandum set forth that the stop occurred at approximately 8:40 p.m.
3
  Chief Justice Flaherty authored the lead opinion and was joined by Justices
Cappy and Zappala. Justice Nigro concurred in result and Justice Newman
authored a dissenting opinion joined by Justice Castille.



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Court also found that the officer “had no independent reason to believe that

the suspect may have been involved in criminal activity.” Id. at 1071.

      Similarly, in Kue, police received an anonymous tip at 2:30 a.m. that

“an Asian male was ‘armed with a gun’ at the intersection of Second and

Olney Streets in Philadelphia.” Kue, supra at 1077. The tip described the

individual as wearing a striped shirt. The responding officer arrived at the

scene within three minutes and saw four Asian men, one of whom was

wearing a striped shirt.   Kue, the defendant, was not the individual in the

striped shirt. The officer witnessed the men speak quickly to each other and

look in different direction.   He then stopped and frisked each man.           The

search of Kue revealed a .25 caliber firearm in his waistband.

      Utilizing the same rationale as the Hawkins plurality, the Kue

plurality ruled that the stop and frisk was illegal. Specifically, it held that “in

order for police to act on an anonymous tip, the Terry requirement of

reasonable suspicion of criminal activity must still be satisfied and must be

independent of the telephone tip itself.” Id. at 1078. Since “there was no

independent reason to believe that criminal conduct was afoot,” the officer

“had no reason to search anyone[.]” Id.

      While the Hawkins and Kue decisions were pluralities, the High Court

reached   a   majority   consensus    in   Jackson,    supra.      Therein,   “[a]t

approximately 10:23 p.m., a Philadelphia police officer received a police

radio report of a man in a green jacket carrying a gun. Other than the


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location, no additional details were provided.”     Jackson, supra at 572.

Within two minutes of receiving the call, police arrived at the corner of

Snyder and Seventh Street where the person was alleged to be located. The

defendant was the only individual in a green jacket. There was no evidence

that he acted suspiciously. However, the officer stopped the defendant and

searched him. While the defendant was being searched, a small key box fell

next to him. The box held fourteen packets of cocaine.

      The majority ruled that the case was factually indistinguishable from

Hawkins. It reasoned that the fact that the police were able to corroborate

the location of the suspect and his wearing of a green jacket was insufficient

to warrant a Terry stop. The Jackson Court rejected the Commonwealth’s

argument “that the degree of danger to the police and the public from armed

criminals is so great that if an anonymous caller provides a physical

description of the individual, an accurate location and an allegation that the

individual is armed, a Terry stop is justified.” Id. at 575. Instead, it ruled,

“[t]he danger to the police and public from firearms was already factored

into the balance when the requirement of reasonable suspicion was

articulated in Terry.” Id.

      Consistent with our High Court’s expression in Jackson, the United

States Supreme Court in J.L. ruled that an anonymous tip that a person is

carrying a gun is, without additional evidence, insufficient to uphold a police

officer’s stop and frisk.   In J.L., police received an anonymous tip that “a


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young black male standing at a particular bus stop and wearing a plaid shirt

was carrying a gun.”       J.L., supra at 1377.    Two officers responded and

observed three black males in the area. J.L, a juvenile, was wearing a plaid

shirt. “Apart from the tip, the officers had no reason to suspect any of the

three of illegal conduct. The officers did not see a firearm, and J.L. made no

threatening or otherwise unusual movements.”         Id. Despite not observing

any suspicious behavior, one officer directed J.L. to place his hands up,

frisked him, and found a gun.         The Supreme Court rejected creating a

firearm exception to Terry, and ruled that the stop and search violated the

Fourth Amendment.

         Appellant contends that this matter is indistinguishable from the above

referenced cases.      He maintains that police received an anonymous tip

regarding a black male wearing a t-shirt and blue capri pants carrying a

firearm on Sixth and Schuylkill Streets in Harrisburg. Police did not locate

an individual matching that description in that specific area. While traveling

to another call, Corporal McGarrity identified Appellant as a person fitting the

description outlined in the anonymous tip. Appellant was not doing anything

illegal or suspicious. Corporal McGarrity did not observe a bulge or firearm

in Appellant’s possession and merely saw him enter an Exxon convenience

store.     Accordingly, Appellant submits that the conduct of the officers,

surrounding him at the counter, preventing his ability to leave the store, and

asking him if he was carrying a gun, was an unlawful investigative detention.


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      The Commonwealth rejoins that the anonymous tip, combined with the

high crime area, the time of the interdiction, and Appellant’s hand

movement toward his waist area supported the investigative detention. It

asserts that this matter is akin to In re D.M, 781 A.2d 1161 (Pa. 2001).

There, Philadelphia police received an anonymous tip that there was a man

with a gun at 28th and Cecil B. Moore Avenues.         The description of the

person with a gun was “a black male, wearing a white t-shirt, blue jeans and

white sneakers.”    Id. at 1162.     The officer, who was one block from the

area, promptly arrived and saw the defendant, who matched the description.

The officer approached alone and asked the juvenile to approach him.

Instead, the juvenile fled. Additional police arrived and stopped the juvenile.

A subsequent frisk revealed a .32 caliber handgun.          The Pennsylvania

Supreme Court initially ruled that the stop was unlawful, but the United

States Supreme Court vacated that decision.

      On remand, the Pennsylvania Supreme Court ruled the stop was

lawful.   It held that unprovoked flight in a high crime area is sufficient to

justify a stop under the Fourth Amendment.           In doing so, the Court

specifically noted that the anonymous tip accurately describing the juvenile

and setting forth that he was carrying a gun “was insufficient to support a

finding of reasonable suspicion.” Id. at 1164. This latter scenario is at issue

herein.    Appellant did not flee.    Furthermore, Appellant made no hand

movement until after he was subject to the investigatory detention.


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      In addition, the Commonwealth posits that this Court’s decision in

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

supports the suppression court’s ruling.     In Foglia, Philadelphia police

received an anonymous call at approximately 2:40 a.m. that a person was

“standing on the corner of ‘A’ and Westmoreland dressed in dark clothing,

black clothing, carrying a firearm.”   Foglia, supra at 359.    Two officers

arrived in the area in less than a minute and one-half and observed Foglia

dressed entirely in black and another individual in a dark gray suit.   After

seeing the officers approach, Foglia began to walk away from the police

looking back several times, grabbing around his waist area, before sitting

behind two women on some steps.        This author, writing for the majority,

concluded that these evasive actions in combination with the tip were

enough to establish reasonable suspicion.     However, Appellant made no

attempt to avoid police and did not make furtive movements prior to his

seizure.

      The Commonwealth also denigrates our Supreme Court’s decision in

Hawkins by contending that the Supreme Court therein did not detail the

circumstances of the stop, including the time of day of the stop. It reasons

that the Hawkins decision is dated and was insensitive and “downright out

of touch with reality in this day and age.” Commonwealth’s brief at 15 n.2.

Finally, the Commonwealth argues that this matter is distinguishable from

J.L., supra, because there was more than a reliable anonymous tip.


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Specifically, it suggests that presence in a high crime area at 3:00 a.m. in

combination with the anonymous tip was sufficient to warrant a stop. We

disagree and find Jackson and J.L. dispositive.

      We begin by noting that in evaluating interaction between law

enforcement and other citizens, Pennsylvania courts look to whether the

interaction is a mere encounter, an investigatory detention, or a custodial

detention, i.e., an arrest.   The latter is not in question herein.     A mere

encounter does not require police to have any level of suspicion that the

person is engaged in wrongdoing.      Commonwealth v. Downey, 39 A.3d

401, 405 (Pa.Super. 2012). At the same time, such an encounter does not

carry any official compulsion for the party to stop or respond.         Id.   An

investigative detention, however, subjects an individual to a stop and short

period of detention. Id. This seizure does not involve actions that are so

coercive as to comprise the equivalent of an arrest.       Id.   To conduct an

investigative detention, police must have reasonable suspicion of criminal

activity. Id.

      “[T]his standard is met ‘if the police officer's reasonable and articulable

belief that criminal activity was afoot is linked with his observation of

suspicious or irregular behavior on behalf of the particular defendant

stopped.’”      Commonwealth v. Kearney, 601 A.2d 346, 348 (Pa.Super.

1992). It is well-settled that “[m]ere presence near a high crime area or in

the vicinity of a recently reported crime, is not enough to warrant a Terry


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stop.”     Id.   Rather, police “must observe irregular behavior before he

initiates a stop and, concurrently to his observation, he must hold a belief

that criminal activity is afoot.”   Id.   We consider what level of interaction

occurred under a totality of the circumstances test.       Commonwealth v.

Williams, 73 A.3d 609, 615-616 (Pa.Super. 2013).           This standard is an

objective one, and looks to the reasonable belief of the citizen and not the

subjective view of law enforcement. Commonwealth v. Lyles, 54 A.3d 76,

83 (Pa.Super. 2012). “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.”             Id. at 79-80.

Accordingly, we look to whether “in view of all surrounding circumstances, a

reasonable person would have believed that he was free to leave.”        Id. at

79.

         The suppression court found that Appellant was not subject to an

investigative detention when police surrounded him, asked him if he had a

gun, and directed him to put his hands on the counter. Instead, it ruled that

Appellant’s investigative detention began after he reached for his waist area.

We find this legal conclusion to be in error.     Here, we hold that Appellant

was subject to an investigative detention when three police officers

surrounded him at a convenience store counter, with one officer having his

hand on his weapon, prevented him from exiting, questioned whether he

was carrying a firearm, and ordered him to put his hands on the counter.


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No reasonable person under this situation would feel free to leave. Indeed,

the video of the interdiction demonstrates that it was impossible for

Appellant to leave because two of the officers standing behind him were

blocking the doorway.

      Thus, for the investigative detention to be lawful, the officers must

have developed reasonable suspicion prior to their actions. We agree with

Appellant that the anonymous tip in combination with the high crime area

and time of day is insufficient because the officers did not observe Appellant

engage in any irregular or suspicious behavior. Rather, the officers simply

observed him walk into a gas station convenience store. Hence, this case is

easily distinguishable from D.M. where the suspect fled from police.

Further, Appellant’s actions prior to the stop were not akin to the suspicious

behavior in Foglia.     Absent articulable facts that Appellant himself was

engaged in suspicious conduct, our case law dictates that the stop was

illegal and the suppression court’s legal conclusion to the contrary was error.

See Jackson, supra; Kue, supra; Hawkins, supra; J.L., supra. All the

fruits of the illegal seizure must be suppressed.




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       Judgment of sentence reversed. Appellant’s petition for permission to

amend is denied as moot.4 Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2014




____________________________________________


4
   Appellant requested to argue that his underlying sentence is illegal
because it was based on a mandatory minimum statute, which has
subsequently been deemed unconstitutional.          Since we are reversing
Appellant’s conviction, his sentencing issue is moot.



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