J-S43013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

CURTIS FISHER,

                           Appellant                  No. 2224 EDA 2014


             Appeal from the Judgment of Sentence of July 3, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009380-2013

BEFORE: GANTMAN, P.J., PANELLA AND OLSON, JJ.

MEMORANDUM BY OLSON, J.:                            FILED AUGUST 19, 2015

        Appellant, Curtis Fisher, appeals from the judgment of sentence

entered on July 3, 2014. We affirm.

        The factual background of this case is as follows.   On July 2, 2013,

Officer Dave Palma and Officer Waltman,1 as part of their normal routine,

viewed photographs of males wanted for violent offenses prior to beginning

their shift.    At approximately 8:25 p.m., Officers Palma and Waltman

observed Appellant in the 2400 block of Elkhart Street.          Officer Palma

believed Appellant resembled Steven Giddings, an individual wanted on

homicide charges.

        When Officers Palma and Waltman approached Appellant, he stated

“What? You all coming for me? I didn’t do nothing. What you want with


1
    Officer Waltman’s given name does not appear in the certified record.
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me?” Appellant began to retreat by walking backwards. Officer Palma then

noticed a bulge in Appellant’s pants pocket which resembled a firearm.

Officers Palma and Waltman ordered Appellant to stop. Eventually, he did

surrender himself and laid on the ground. Although Appellant resisted their

attempts at frisking him, Officers Palma and Waltman recovered a firearm

and marijuana from Appellant’s person.

        The relevant procedural history of this case is as follows. On August 1,

2013, Appellant was charged via criminal information with possession of a

firearm by a prohibited person,2 carrying a firearm without a license,3

carrying a firearm on the streets of Philadelphia,4 resisting arrest,5

possession of marijuana,6 and possession of drug paraphernalia.7             On

September 4, 2013, Appellant filed his omnibus pretrial motion, which

included a suppression motion. On January 2, 2014, a suppression hearing

was held. At the conclusion of that hearing, the suppression court denied

Appellant’s suppression motion. On April 21, 2014, Appellant proceeded to a

stipulated bench trial. He was found guilty of possession of a firearm by a


2
    18 Pa.C.S.A. § 6105(a)(1).
3
    18 Pa.C.S.A. § 6106(a)(1).
4
    18 Pa.C.S.A. § 6108.
5
    18 Pa.C.S.A. § 5104.
6
    35 P.S. § 780-113(a)(31).
7
    35 P.S. § 780-113(a)(32).


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prohibited person. The remaining charges were nolle prossed. On July 3,

2014, Appellant was sentenced to three to six years’ imprisonment.        This

timely appeal followed.8

      Appellant presents one issue for our review:

      Where [Appellant] was detained and searched solely on the basis
      of a wanted poster which depicted someone else and evidence of
      a bulge in his pockets, [was] such detention and search []
      unsupported by reasonable suspicion or probable cause in
      violation of the Fourth and Fourteenth Amendments to the
      United States Constitution and Article I, Section 8 of the
      Pennsylvania Constitution and therefore should not the gun and
      other physical evidence subsequently seized by police have been
      suppressed?

Appellant’s Brief at 3.

      Our “standard of review in addressing a challenge to the denial of a

suppression motion is limited to determining whether the suppression court’s

factual findings are supported by the record and whether the legal

conclusions drawn from those facts are correct.”         Commonwealth v.

Garibay, 106 A.3d 136, 138 (Pa. Super. 2014) (citation omitted). “[O]ur

scope of review is limited to the factual findings and legal conclusions of the

suppression court.”       In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation

omitted).   “We may consider only the Commonwealth’s evidence and so

much of the evidence for the defense as remains uncontradicted when read

8
  On July 30, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On September 18, 2014, Appellant filed his concise
statement. On October 30, 2014, the trial court issued its Rule 1925(a)
opinion. Appellant’s lone issue on appeal was included in his concise
statement.


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in the context of the record as a whole.” Commonwealth v. Gary, 91 A.3d

102, 106 (Pa. 2014) (citation omitted).

      “Both the Fourth Amendment to the United States Constitution and

Article I, § 8 of the Pennsylvania Constitution protect citizens from

unreasonable searches and seizures.” Commonwealth v. Perel, 107 A.3d

185, 198 (Pa. Super. 2014) (citation omitted). “To safeguard these rights,

courts require police to articulate the basis for their interaction with citizens

in three increasingly intrusive situations.” Commonwealth v. Clemens, 66

A.3d 373, 378 (Pa. Super. 2013) (internal alterations, quotation marks, and

citation omitted).

      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. Ranson, 103 A.3d 73, 76-77 (Pa. Super. 2014)

(internal alteration, quotation marks, and citation omitted). The burden is

on the Commonwealth to prove, by a preponderance of the evidence, that

the evidence seized from Appellee was legally obtained. Commonwealth v.

Enimpah, 106 A.3d 695, 701 (Pa. 2014).

      We agree with the trial court that the interaction between Appellant

and the police officers was a mere encounter prior to Officer Palma



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observing a bulge in Appellant’s pocket.        The police officers were merely

walking towards Appellant when he began speaking and they observed the

bulge in his pocket.    Prior to this observation, Appellant was under no

obligation to stop or to speak with the officers.        Thus, it was a mere

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

Super. 2011) (citations omitted) (“Both the United States and Pennsylvania

Supreme Courts have held that the approach of a police officer followed by

questioning does not constitute a seizure.”).

      Appellant’s reliance on United States v. Hensley, 469 U.S. 221

(1985), is inapposite. In Hensley, the Supreme Court of the United States

addressed a situation in which an investigative detention was conducted

merely for the purposes of investing a completed crime. Appellant’s reliance

on   Commonwealth        v.   Queen,    639      A.2d   443   (Pa.   1994)   and

Commonwealth v. Stevenson, 832 A.2d 1123 (Pa. Super. 2003), is

similarly inapposite. Queen and Stevenson addressed when police officers

may rely on a fellow officer’s information to provide reasonable suspicion for

an investigative detention.    In this case, as discussed above, no such

investigative detention occurred until the police officers viewed the bulge in

Appellant’s pocket. Prior to that time, the interaction between Appellant and

the police officers was a mere encounter.

      Once Officer Palma viewed the bulge in Appellant’s pocket, he had

reasonable suspicion to perform an investigative detention of Appellant and



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perform a protective frisk pursuant to Terry v. Ohio, 392 U.S. 1 (1968).

Commonwealth v. Hall, 929 A.2d 1202, 1207 (Pa. Super. 2007), citing

Commonwealth v. Stevenson, 894 A.2d 759, 769 (Pa. Super. 2006)

(“When a police officer observes a concealed weapon upon a person in the

public     sphere,   an    investigatory   stop   is   a   reasonable    response.”);

Commonwealth          v.    E.M.,   735    A.2d   654,     660   (Pa.   1999),   citing

Commonwealth v. Hicks, 253 A.2d 276, 279 (Pa. 1969) (officer had

probable cause to frisk individual for weapons upon observing bulge that he

believed to be a firearm); Commonwealth v. Jackson, 519 A.2d 427, 431

(Pa. Super. 1986), citing       Commonwealth v. Carter, 483 A.2d 495, 497

(Pa. Super. 1984) (police had reasonable suspicion for frisk when they

observed “presence of suspicious bulges in a suspect’s clothing”). Therefore,

the entire interaction between the police officers and Appellant was lawful.

Accordingly, the suppression court properly denied Appellant’s suppression

motion.

         Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/19/2015




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