J-S67026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
            v.                           :
                                         :
                                         :
LOUIS TOOLE,                             :
                                         :
                  Appellant              :         No. 2763 EDA 2016

          Appeal from the Judgment of Sentence August 17, 2016
           in the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0004407-2015

BEFORE:    GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY MUSMANNO, J.:                     FILED DECEMBER 29, 2017

     Louis Toole (“Toole”) appeals from the judgment of sentence imposed

following his convictions of aggravated assault, possession of a firearm

prohibited, firearms not to be carried without a license, possession of an

instrument of crime, simple assault, recklessly endangering another person,

and resisting arrest. See 18 Pa.C.S.A. §§ 2702(a); 6105(a)(1); 6106(a)(1);

907(a); 2701(a); 2705; 5104. We affirm.

     The trial court set forth the relevant underlying facts as follows:

     On April 12, 2015, at about 5:45 p.m., Philadelphia Police Officer
     Matthew Lally [(“Officer Lally”)] was on routine patrol in the
     3500 block of North 21st Street when he observed a car turn
     onto the 2000 block of Tioga Street, a one[-]way street with
     parking on both sides of the street, where its operator partially
     pulled into a parking spot that left the rear of the vehicle sticking
     partly into the highway on 21st Street to a degree that required
     cars traveling on Tioga Street to turn to go around it, in violation
     of the law. Officer Lally observed [Toole] exit the vehicle and go
     up onto the porch of a residence on Tioga Street. Officer Lally
     circled the block[,] and when he returned to Tioga Street the car
____________________________________
* Former Justice specially assigned to the Superior Court.
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     [Toole] was driving was still parked in the same spot with its tail
     still partially sticking into 21st Street.

     Upon seeing the car in the same location, Officer Lally exited his
     patrol car and began walking up to [Toole], who was sitting on
     the porch of the residence the officer [had] earlier observed him
     proceed onto. As Officer Lally climbed the stairs leading onto
     the porch[, Toole] stood up and the officer asked him why he
     had parked the car in the manner in which he did[,] and whose
     car it was. [Toole], who appeared to be talking on his cell
     phone[,] responded that it was not his house, that he was
     waiting to pick up a friend, and that he had a “good” license[,] at
     which time the officer asked him for identification. A female
     then walked out of the residence and [Toole] asked her to tell
     Officer Lally that she knew him so [that] Officer Lally would
     leave him alone. The female, however, said in so many words
     that she did not know him.

     After the female indicated that she did not know [Toole], Officer
     Lally asked [Toole] his name. When [Toole] went into his right
     pants’ pocket[,] Officer Lally observed the handle of a handgun
     sticking out of the waistband of [Toole’s] pants. He then asked
     [Toole] if, in fact, it was a firearm[,] at which point [Toole]
     pushed past Officer Lally to flee. Officer Lally grabbed [Toole] by
     the collar and as the officer attempted to handcuff [Toole],
     [Toole] threw a punch at the officer that missed …. The two
     men began to wrestle and they tumbled down some steps onto
     the pavement into a parked car[,] where [Toole] attempted to
     retrieve the gun in his waistband as the two men continued to
     wrestle.   When [Toole] pulled the gun from his waistband,
     Officer Lally got off of [Toole’s] back, drew his weapon, and
     ordered [Toole] to drop the handgun. [Toole] immediately threw
     his gun under a car and stood up when Officer Lally again
     attempted to handcuff [Toole], who continued to struggle[,] and
     prevented the officer from doing so.

     During the affray with [Toole], Officer Lally called for back-up
     officers[,] who arrived approximately five to seven minutes after
     Officer Lally called for them. [Toole] was then placed in custody.
     Police recovered the firearm [Toole] discarded, which testing
     showed was operable[,] and two containers from [Toole] that
     contained alleged PCP.




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      In addition thereto, evidence was presented indicating that
      [Toole] did not have a license to possess a firearm and had a
      prior conviction that made him ineligible to possess a firearm.

Trial Court Opinion, 2/14/17, at 2-4 (citations and footnote omitted).

      Toole was charged with numerous crimes.         Toole filed a Motion to

Suppress the evidence.     Following a hearing, the trial court denied the

Motion to Suppress.    Toole waived his right to a jury trial, and the case

proceeded to a bench trial before the Honorable Jeffrey P. Minehart. Judge

Minehart found Toole guilty of the above-mentioned crimes. On August 17,

2016, Judge Minehart sentenced Toole to an aggregate sentence of four to

eight years in prison, to be followed by ten years’ probation.

      Toole filed a timely Notice of Appeal, and a court-ordered Pennsylvania

Rule of Appellate Procedure 1925(b) Concise Statement.

      On appeal, Toole raises the following question for our review: “Did the

[trial] court commit error by denying [Toole’s] Motion to Suppress evidence

obtained by a seizure performed without reasonable suspicion?”       Brief for

Appellant at 2 (some capitalization omitted).

            In reviewing the denial of a motion to suppress, our
      responsibility is to determine whether the record supports the
      suppression court’s factual findings and legitimacy of the
      inferences and legal conclusions drawn from those findings. If
      the suppression court held for the prosecution, we consider only
      the evidence of the prosecution’s witnesses and so much of the
      evidence for the defense as, fairly read in the context of the
      record as a whole, remains uncontradicted. When the factual
      findings of the suppression court are supported by the evidence,
      the appellate court may reverse if there is an error in the legal
      conclusions drawn from those factual findings.


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Commonwealth v. Arnold, 932 A.2d 143, 145 (Pa. Super. 2007) (citation

omitted).

     Toole contends that the trial court erred in denying his Motion to

Suppress because the evidence was obtained as the result of an unlawful

investigative detention. Brief for Appellant at 6. Toole argues that Officer

Lally’s actions of approaching Toole in front of a residence, asking another

individual whether she knew Toole, and asking for Toole’s identification

demonstrate that Toole was subject to an investigative detention. Id. at 9.

Toole asserts that Officer Lally lacked reasonable suspicion that Toole was

engaging in criminal activity prior to approaching Toole.          Id. at 9-10; see

also id. at 9 (claiming that Officer Lally was merely searching for evidence

of criminal activity when he approached Toole). Toole further asserts that

his mere presence in front of a residence did not evince a criminal motive.

Id. at 10.      Toole claims that because the detention was not supported by

reasonable suspicion, all of the evidence collected following the interaction,

including the firearm, should be suppressed. Id.

     “The Fourth Amendment of the Federal Constitution and Article I,

Section     8   of   the   Pennsylvania   Constitution   protect   individuals   from

unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012).          There are three categories of interactions

between police and a citizen:



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       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 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. Downey, 39 A.3d 401, 405 (Pa. Super. 2012) (citation

omitted).

              In determining whether an interaction should be
       considered a mere encounter or an investigative detention, the
       focus of our inquiry is on whether a seizure of the person has
       occurred. Within this context, our courts employ the following
       objective standard to discern whether a person has been seized:
       [w]hether, under all the circumstances surrounding the incident
       at issue, a reasonable person would believe he was free to leave.
       Thus, a seizure does not occur simply because a police officer
       approaches an individual and asks a few questions.

Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa. Super. 2010)

(citations, brackets, quotation marks, and ellipses omitted).1

       On April 12, 2015, Officer Lally, in full uniform and while on routine

patrol in the 3500 block of 21st Street in Philadelphia, observed a vehicle,

driven by Toole, make a quick left turn onto West Tioga Street and park his
____________________________________________


1  This Court has set forth a non-exclusive list of factors to determine
whether a seizure has occurred, including “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. Collins, 950
A.2d 1041, 1047 n.6 (Pa. Super. 2008) (en banc).




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vehicle.    N.T., 4/19/16, at 5-6.    The front of the vehicle was blocking the

sidewalk entrance, and the back of the vehicle was sticking out onto 21st

Street. Id. at 6, 18; see also id. at 7-8 (wherein Officer Lally noted that

cars travelling on 21st Street had to go around the parked vehicle). Officer

Lally observed Toole exit the vehicle, walk up to a house and sit on a porch.

Id. at 6, 8, 17, 19, 21. After going around the block, Officer Lally parked his

vehicle and approached Toole, who was talking on his phone. Id. at 6, 8-9;

see also id. at 8, 10 (wherein Officer Lally indicated that did not turn on his

lights or siren at any point).     Officer Lally asked Toole why he parked his

vehicle in that manner. Id. at 9, 25. Toole replied that he was waiting for a

friend.    Id. at 9, 25, 27, 28.     During the interaction, a female exited the

residence, and Toole asked her to tell Officer Lally that she knew Toole. Id.

at 9, 29. The female stated that she did not know Toole. Id. At that point,

Officer Lally asked Toole for identification. Id. at 9, 11-13, 30; see also id.

at 10 (stating that Officer Lally did not draw his firearm during this

encounter).    As Toole reached into his right pocket to retrieve his wallet,

Officer Lally observed a firearm sticking out of the front of his waistband.

See id. Officer Lally then asked Toole if he had a firearm in his waist, after

which Toole pushed past Officer Lally.        Id. at 13, 36-37.   As Officer Lally

grabbed Toole and attempted to handcuff him, both fell down the stairs. Id.

at 13, 37, 38. After wrestling with Toole, Officer Lally drew his firearm and




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ordered Toole to drop his firearm.             Id. at 14, 16, 38-41. Toole threw his

firearm under a parked vehicle. Id. at 14, 42.

       Upon our review of the record, we conclude that Officer Lally’s initial

encounter with Toole was a “mere encounter.” Here, after observing Toole

park his vehicle such that the rear of the vehicle was sticking out into the

intersection,2 and get out of the vehicle, Officer Lally parked his vehicle and

approached Toole. Officer Lally merely asked Toole why he had parked his

vehicle in such a manner. See Commonwealth v. Downey, 39 A.3d 401,

405 (Pa. Super. 2012) (noting that initial encounter where officer asked to

talk to the appellant was a mere encounter); see also Commonwealth v.

Blair, 860 A.2d 567, 573 (Pa. Super. 2004) (stating that initial encounter

was a “mere encounter” when the officer, responding to a report of a

domestic dispute and aware that domestic disputes are volatile, approached

a vehicle parked directly in front of the address in question and spoke to the

occupants).     There is no evidence that Officer Lally blocked or restricted

Toole’s movement. See Downey, 39 A.3d at 405. Indeed, Toole continued

to talk on the phone while Officer Lally asked him questions.                   See
____________________________________________


2 The trial court notes that Toole violated Motor Vehicle Code sections 3351,
Stopping Standing and parking outside business and residence districts, and
3354(b), Additional parking regulations – one-way highways, by illegally
parking his vehicle. See Trial Court Opinion, 2/14/17, at 5-6. The evidence
of record however does not demonstrate that Toole violated either of these
specific statutes.     Based upon the evidence, Toole violated section
3353(a)(1)(iii), which prohibits the parking of a vehicle within an
intersection.



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

that “[a] mere encounter can be any formal or informal interaction between

an officer and a citizen, but will normally be an inquiry by the officer of a

citizen.   The hallmark of this interaction is that it carries no official

compulsion to stop or respond.”).       Officer Lally’s subsequent request for

identification from Toole, without any other action, does not demonstrate

that the encounter escalated into an investigative detention.              See

Commonwealth v. Au, 42 A.3d 1002, 1008-09 (Pa. 2012) (holding that the

officer’s request for identification after approaching a parked vehicle did not,

by itself, transform the encounter into an investigatory detention where

officer did not “activate the emergency lights on his vehicle; position his

vehicle so as to block the car that [a]ppellee was seated in from exiting the

parking lot; brandish his weapon; make an intimidating movement or

overwhelming show of force; make a threat or a command; or speak in an

authoritative tone.”) (internal citations omitted); see also Commonwealth

v. Lyles, 97 A.3d 298, 303 (Pa. 2014) (noting that “a seizure does not occur

where officers merely approach a person in public and question the

individual or request to see identification.”).

      Moreover, the fact that Officer Lally, upon seeing the handle of a

firearm, asked Toole whether he possessed a firearm did not constitute a

seizure.   See Commonwealth v. Coleman, 19 A.3d 1111, 1116 (Pa.

Super. 2011) (noting that an officer’s interaction with the defendant where


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officer asked defendant whether he had a gun was a mere encounter);

accord Commonwealth v. Young, 162 A.3d 524, 529 (Pa. Super. 2017).

Based upon Toole’s ongoing violation of the Motor Vehicle Code,3 and Officer

Lally’s actions, we conclude that the initial interaction was a mere encounter

that did not require any level of suspicion. See Commonwealth v. Moore,

11 A.3d 538, 540-41 (Pa. Super. 2010) (holding that a police officer’s

request to move out of a doorway constituted a mere encounter, as the

officer did not act in a threatening or coercive manner); see also

Commonwealth v. Newsome, 170 A.3d 1151, 1155-56 (Pa. Super. 2017)

(concluding that an officer’s initial interaction with defendant was a mere

encounter where the officer was responding to an anonymous call that

individuals were passing around a firearm, arrived at the scene in full

uniform and a marked police vehicle, did not brandish a weapon, asked to

speak to the defendant, who initially refused, and asked defendant to stop

two or three times).

       Moreover, when Officer Lally grabbed and attempted to handcuff

Toole, as Toole tried to leave the scene, the interaction escalated to a

custodial detention. Nevertheless, Officer Lally had probable cause to arrest

Toole based upon his observation of a firearm in Philadelphia.           See
____________________________________________


3We further acknowledge that because there was an ongoing violation of the
Motor Vehicle Code based upon Toole’s parking of his vehicle, Officer Lally
had the right to conduct an investigative detention of Toole. See, e.g.,
Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015)



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Commonwealth v. Taggart, 997 A.2d 1189, 1196 (Pa. Super. 2010)

(noting that “an officer’s observation of an individual carrying a handgun on

public streets in the city of Philadelphia gives rise to probable cause for an

arrest under [section] 6108.”); see also Commonwealth v. Canning, 587

A.2d 330, 332 (Pa. Super. 1991) (noting that “[o]nce probable cause is

established, it does not dissipate simply because the suspect is not charged

with the particular crime which led to the finding of probable cause.”).4

Thus, based upon the foregoing, the trial court properly denied Toole’s

Motion to Suppress.        See Newsome, 170 A.3d at 1156 (concluding that

defendant’s motion to suppress should have been denied where initial

encounter was a mere encounter and the officer properly arrested defendant

after observing defendant reach into his waistband, remove a firearm, and

discard it).

       Judgment of sentence affirmed.




____________________________________________


4 While Toole does not raise an argument regarding the forced abandonment
of the firearm on appeal, the trial court noted in its Opinion that such a claim
would be without merit. See Trial Court Opinion, 2/14/17, at 10-11.
Specifically, the trial court pointed out that Officer Lally’s actions were legal
and Toole voluntarily discarded the firearm.                   See id. (citing
Commonwealth v. Byrd, 987 A.2d 786, 791 (Pa. Super. 2009)).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/17




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