J-A28003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JESUS G. LEON

                            Appellant                 No. 2391 EDA 2013


             Appeal from the Judgment of Sentence August 8, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006059-2013


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                     FILED DECEMBER 30, 2014

        Appellant, Jesus G. Leon, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

bench trial convictions for carrying a firearm without a license, carrying a

firearm on public streets in Philadelphia, and possession of a small amount

of marijuana.1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On December 4, 2012, at approximately 5:23 p.m., Philadelphia Police

Officer George Soto and his partner, Officer Ryan, received a radio report

regarding an armed Hispanic male near the intersection of Fairhill Street and

Allegheny Avenue.        The report described the suspect as wearing a black
____________________________________________


1
    18 Pa.C.S.A. §§ 6106, 6108, 35 P.S. 780-113(a)(31), respectively.
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jacket, orange shirt, blue jeans, and orange and blue sneakers.            Fairhill

Street and Allegheny Avenue is a high crime area, where Officer Soto had

made previous arrests for firearms offenses.

       When the officers arrived at the scene, they observed Appellant

wearing a black leather jacket, orange shirt, blue jeans, and orange and blue

sneakers. Appellant’s hands were in his pockets. The officers exited their

vehicle with their weapons drawn and made eye contact with Appellant, who

kept his hands in his pockets.         The officers ordered Appellant to show his

hands.2     Appellant took a few steps backwards, and the officers again

ordered him to show his hands.           At that point, Appellant turned and fled.

During his flight, Appellant discarded his jacket and a silver object.        The

officers recovered the jacket and the silver object, which was a firearm.

Inside the jacket, the officers found a wallet containing Appellant’s debit

card, driver’s license, and Access card.

       Police apprehended Appellant in February 2013.               A search of

Appellant’s person incident to arrest yielded a small amount of marijuana.

On May 17, 2013, the Commonwealth filed a criminal information charging

Appellant with carrying a firearm without a license, carrying a firearm on
____________________________________________


2
   At the suppression hearing, Officer Soto testified, “I had to make
sure…[Appellant] was going to show us his hands, because Officer John
Pawlowski was murdered on Broad and Olney by a male armed with a
revolver.” (N.T. Suppression Hearing at 13). Officer Soto was referring to a
2010 homicide in Philadelphia, where the shooter killed a police officer with a
firearm concealed in the shooter’s pocket. (Id. at 14).



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public streets in Philadelphia, and possession of a small amount of

marijuana.    At a July 19, 2013 hearing, the parties litigated a motion to

suppress all evidence obtained by the Commonwealth. Appellant argued the

officers did not possess reasonable suspicion to support an investigative

detention.    At the conclusion of the hearing, the court denied the

suppression motion. Appellant filed a motion to reconsider the suppression

ruling on July 23, 2013, which the court denied on August 1, 2013.

Following a bench trial, the court found Appellant guilty of all charges. On

August 8, 2013, the court sentenced Appellant to an aggregate term of six

(6) to twenty-three (23) months’ imprisonment, followed by three (3) years’

probation. Appellant did not file post-sentence motions.

     Appellant timely filed a notice of appeal on August 13, 2013.       On

September 23, 2013, the court ordered Appellant to file a concise statement

of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant

filed a Rule 1925(b) statement on October 23, 2013.

     Appellant raises one issue for our review:

        DID NOT THE TRIAL COURT ERR IN DENYING APPELLANT’S
        MOTION TO SUPPRESS PHYSICAL EVIDENCE, WHERE THE
        INVESTIGATING OFFICERS, ACTING ON AN ANONYMOUS
        POLICE RADIO CALL, LACKED REASONABLE SUSPICION
        OR PROBABLE CAUSE JUSTIFYING THE DETENTION,
        ARREST, FRISK OR SEARCH OF APPELLANT, WHERE
        APPELLANT’S FLIGHT AND THE RECOVERY OF A FIREARM
        AND MARIJUANA WERE THE FRUIT OF AN INITIAL
        UNLAWFUL STOP, AND WHERE THEIR RECOVERY AND USE
        AT TRIAL THEREFORE VIOLATED THE FOURTH AND
        FOURTEENTH AMENDMENTS TO THE UNITED STATES


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         CONSTITUTION AND ARTICLE I, SECTION 8 OF THE
         PENNSYLVANIA CONSTITUTION?

(Appellant’s Brief at 3).

      We examine this issue subject to the following principles:

         Our standard of review in addressing a challenge to a trial
         court’s denial of a suppression motion is limited to
         determining whether the factual findings are supported by
         the record and whether the legal conclusions drawn from
         those facts are correct.

            [W]e may consider 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. Where the record
            supports the findings of the suppression court, we
            are bound by those facts and may reverse only if the
            court erred in reaching its legal conclusions based
            upon the facts.

Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en

banc) (internal citations and quotation marks omitted).

      On appeal, Appellant contends an anonymous tip alone cannot support

an investigative detention without additional evidence to corroborate the

allegations of criminal conduct.   Appellant asserts the officers initiated an

investigative detention based solely on the fact that Appellant’s appearance

and location matched the information from the radio report.         Appellant

insists the officers did not have additional evidence to corroborate the

allegations of criminal activity. Further, Appellant avers his flight from the

scene did not amount to indicia of criminal activity to support reasonable

suspicion, because the flight occurred after the police had initiated the


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investigative detention.   Under these circumstances, Appellant argues the

contraband recovered by the officers was the product of an illegal detention.

Appellant concludes the officers lacked reasonable suspicion to support the

investigative detention, and the court should have granted his suppression

motion on this basis. We disagree.

      Contacts between the police and citizenry fall within three general

classifications:

         The first [level of interaction] 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 to 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.

Commonwealth v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal

denied, 583 Pa. 668, 876 A.2d 392 (2005) (quoting Commonwealth v.

Phinn, 761 A.2d 176, 181 (Pa.Super. 2000)).

      Police must have reasonable suspicion that a person to be seized is

engaged in unlawful activity before subjecting that person to an investigative

detention. Commonwealth v. Cottman, 764 A.2d 595 (Pa.Super. 2000).

         An investigative detention, unlike a mere encounter,
         constitutes a seizure of a person and thus activates the
         protections of Article 1, Section 8 of the Pennsylvania
         Constitution. To institute an investigative detention, an
         officer must have at least a reasonable suspicion that
         criminal activity is afoot. Reasonable suspicion requires a
         finding that based on the available facts, a person of

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           reasonable caution    would   believe   the   intrusion   was
           appropriate.

                                   *     *   *

           Reasonable suspicion exists only where the officer is able
           to articulate specific observations which, in conjunction
           with    reasonable     inferences  derived    from    those
           observations, led him reasonably to conclude, in light of
           his experience, that criminal activity was afoot and that
           the person he stopped was involved in that activity.
           Therefore, the fundamental inquiry of a reviewing court
           must be an objective one, namely, whether the facts
           available to the officer at the moment of intrusion warrant
           a [person] of reasonable caution in the belief that the
           action taken was appropriate.

Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005) (internal

citations omitted).

      “[T]he question of whether reasonable suspicion existed at the time of

an investigatory detention must be answered by examining the totality of

the circumstances to determine whether there was a particularized and

objective basis for suspecting the individual stopped of criminal activity.”

Cottman, supra at 598-99 (quoting Commonwealth v. Beasley, 761 A.2d

621, 625 (Pa.Super. 2000), appeal denied, 565 Pa. 662, 775 A.2d 801

(2001)).

           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. Young, 904 A.2d 947, 957 (Pa.Super. 2006), appeal

denied, 591 Pa. 664, 916 A.2d 633 (2006) (quoting Commonwealth v.

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Conrad, 892 A.2d 826, 829 (Pa.Super. 2006), appeal denied, 588 Pa. 747,

902 A.2d 1239 (2006)) (internal quotation marks omitted).

      “While a tip can be a factor [in determining whether reasonable

suspicion existed], an anonymous tip alone is insufficient as a basis for

reasonable suspicion.”   Commonwealth v. Leonard, 951 A.2d 393, 397

(Pa.Super. 2008) (quoting In re M.D., 781 A.2d 192, 197 (Pa.Super.

2001)).    “Because an anonymous tip typically carries a low degree of

reliability, more information is usually required before investigating officers

develop the reasonable suspicion needed to support an investigatory stop of

a suspect.” Commonwealth v. Fell, 901 A.2d 542, 545 (Pa.Super. 2006).

“However, if the person described by the tipster engages in other suspicious

behavior…reasonable suspicion justifying an investigatory detention is

present.” Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa.Super. 2009)

(en banc), appeal denied, 605 Pa. 694, 990 A.2d 727 (2010).

          [W]hether the defendant was located in a high crime area
          similarly supports the existence of reasonable suspicion.
          Finally, if a suspect engages in hand movements that
          police know, based on their experience, are associated
          with the secreting of a weapon, those movements will
          buttress the legitimacy of a protective weapons search of
          the location where the hand movements occurred.

Id. at 361(internal citations omitted).    Thus, a combination of factors can

coalesce to form the basis for reasonable suspicion, where one factor alone

might fail. Commonwealth v. Gray, 784 A.2d 137 (Pa.Super. 2001).

      Instantly, the anonymous tip via radio report of an armed male


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contained a high degree of specificity. The report described a Hispanic male

wearing a black jacket, orange shirt, blue jeans, and orange and blue

sneakers.    The report also provided the exact location of the suspect at

Fairhill Street and Allegheny Avenue, which the officer knew was a high

crime area. When police arrived at the scene, they observed Appellant, who

matched the exact description of the suspect.      Officer Soto, a four-year

veteran officer who had made firearms arrests in that area, observed

Appellant concealing his hands in his pockets.    In light of his experience,

Officer Soto reasonably inferred Appellant could be secreting a firearm in his

pockets.    Thus, the officer commenced an investigative detention and

ordered Appellant to show his hands.

      Here, the specificity of the information in the tip, which the officers

corroborated, combined with Appellant’s presence in a high crime area and

Appellant’s concealment of his hands, provided the reasonable suspicion

necessary to initiate the investigative detention. See Foglia, supra; Gray,

supra.      Therefore, the record supports the court’s decision to deny

Appellant’s suppression motion.    See Williams, supra.      Accordingly, we

affirm the judgment of sentence.

      Judgment of sentence affirmed.

      Judge Jenkins joins this memorandum.

      Judge Wecht files a dissenting memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2014




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