J-A19041-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :      IN THE SUPERIOR COURT OF
                                             :            PENNSYLVANIA
              v.                             :
                                             :
ANTONIO GRAY,                                :
                                             :
                    Appellant                :           No. 2668 EDA 2016

              Appeal from the Judgment of Sentence April 29, 2016
              in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): MC-51-CR-0004803-2016

BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED SEPTEMBER 21, 2017

        Antonio Gray (“Gray”) appeals from the judgment of sentence entered

in the Philadelphia Municipal Court, as confirmed by the Philadelphia Court of

Common Pleas following the denial of his Petition for writ of certiorari.1 We

vacate the Order of the common pleas court, reverse Gray’s judgment of

sentence, and discharge Gray.



1
    An appellant convicted in the municipal court has two appellate options:

        Pennsylvania Rule of Criminal Procedure 1006(1)(a) provides
        that a defendant convicted in Philadelphia Municipal Court has
        the right to request either a trial de novo or file a petition for a
        writ of certiorari with the Philadelphia Court of Common Pleas.
        This Court has held that when a defendant files a petition for a
        writ of certiorari, the Philadelphia Court of Common Pleas sits as
        an appellate court.

Commonwealth v. Coleman, 19 A.3d 1111, 1118-19 (Pa. Super. 2011)
(citations omitted). A petition for writ of certiorari asks the common pleas
court to review the record made in the municipal court. Commonwealth v.
Williams, 125 A.3d 425, 431 (Pa. Super. 2015).
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      During the suppression hearing, the municipal court set forth, on the

record, its findings of fact as follows:

      The events bring[ing] us here today occurred [on] February 18,
      2015[, at] 8:15 [p.m.,] on the 5500 block of North 5th [Street] in
      Philadelphia. It’s there [that Philadelphia Police] Officer [Victor]
      Rodriguez [(“Officer Rodriguez”)] and his partner were [in] full
      uniform, [in a] marked patrol vehicle. [The officers] observed
      [Gray] standing on the street. They went back around the block.
      [Gray] was still standing there. And then after [the officers] saw
      [Gray] look in the direction of their vehicle, they saw him start to
      walk away. And Officer Rodriguez described in detail [that] at
      the time that [Gray] was walking away, Officer Rodriguez … saw
      a black object in [Gray’s] right hand, and he explained [that] he
      believed that could possibly be a firearm.

      [Officer Rodriguez] stopped [Gray]. [Gray] complied. [Officer
      Rodriguez] asked [Gray] if he had a weapon. [Gray] is alleged
      to say, [“]All I have is crack, I’m a user.[”] Based on that,
      Officer Rodriguez placed [Gray] under arrest, and [a] search
      incident to arrest [revealed] the black pouch[,] which contained
      alleged crack.

N.T. (Suppression), 4/29/16, at 15-16.2

      Gray was charged with possession of a controlled substance and

possession with intent to deliver a controlled substance.3     Gray litigated a




2
  The municipal court additionally asked the prosecutor and Gray’s counsel
whether they wanted to suggest any additions or modifications to its findings
of fact, to which both replied in the negative. See N.T. (Suppression),
4/29/16, at 16.
3
  The Commonwealth subsequently withdrew the charge of possession with
intent to deliver a controlled substance.



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Motion to suppress in the municipal court,4 asserting that the recovered

cocaine and his statement to Officer Rodriguez was the result of a stop that

was unsupported by reasonable suspicion or probable cause. The municipal

court denied Gray’s Motion to suppress, and the case immediately proceeded

to a stipulated bench trial in the municipal court.      Gray was convicted of

possession of a controlled substance, after which the municipal court

sentenced him to one year of reporting probation.

      On May 20, 2016, Gray filed a Petition for writ of certiorari in the

common pleas court, challenging the denial of his Motion to suppress.

Following a hearing, the common pleas court denied Gray’s Petition for writ

of certiorari. Gray subsequently filed a timely Notice of Appeal and a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on

appeal.

      On appeal, Gray raises the following issue for our review: “Did not the

[common pleas] court err in denying the [M]otion to suppress the statement

and narcotics taken from [] Gray, where he was stopped without reasonable

suspicion that criminal activity was afoot[,] and the evidence subsequently

recovered should have been suppressed as the fruits of the illegal stop?”

Brief for Appellant at 3.



4
   Philadelphia Rule of Criminal Procedure 630 allows a defendant or his
attorney to make an application to suppress evidence in the municipal court,
either in writing prior to trial, or orally at the time of trial. Phila. Co. Crim.
Div. R. 630(A), (B).


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           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.

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

omitted).

     Gray asserts that the municipal court erred in denying his Motion to

suppress the cocaine, and his statement to Officer Rodriguez, because the

stop was not supported by reasonable suspicion.     Brief for Appellant at 8.

Gray claims that the objective facts possessed by Officer Rodriguez at the

time of the stop (i.e., his observation of Gray standing on the same corner

for several minutes, Gray’s movement away from the corner, and Gray’s

placement of a black object in his pocket) did not give rise to reasonable

suspicion of criminal activity. Id. at 9-10. Additionally, Gray asserts that

despite the fact that there had been recent robberies in the area, the record

is silent regarding whether weapons had been used in the robberies,

whether Gray matched the description of any suspect, or whether any

robbery suspects had been apprehended.      Id. at 10.   Gray contends that

Officer Rodriguez “did not describe what he saw in [Gray’s] hand from

twenty feet away[,]” and never testified that the object looked like a gun.



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Id. Gray also claims that the municipal court did not make a factual finding

that Gray intentionally turned his body in an attempt to conceal the object.

Id.

      There are three categories of interactions between police and a citizen

evaluated pursuant to Article I, Section 8 of the Pennsylvania Constitution:

      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 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).

      Here, the municipal court determined that Gray was subjected to an

investigative detention.5   See N.T. (Suppression), 4/29/16, at 16, 17, 19.

When evaluating the legality of investigative detentions, Pennsylvania has

adopted the holding of Terry v. Ohio, 392 U.S. 1 (1968), wherein the


5
  In its brief, the Commonwealth argues that the interaction between Gray
and Officer Rodriguez was a mere encounter, rather than an investigative
detention. See Commonwealth’s Brief at 5-8. However, the Commonwealth
did not argue during the suppression hearing that the interaction was a mere
encounter. Additionally, during the suppression hearing, the municipal court
asked the prosecutor and Gray’s counsel whether they agreed that “in order
to stop [Gray] for investigation, we’re talking about reasonable suspicion,
not probable cause[,]” and the Commonwealth replied in the affirmative.
N.T. (Suppression), 4/29/16, at 17; see also id. at 18, 20 (wherein the
Commonwealth provided argument regarding the factors weighing in favor
of a finding of reasonable suspicion).


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United States Supreme Court held that police may conduct an investigatory

detention if they have reasonable suspicion that criminal activity is afoot.

      In deciding whether reasonable suspicion exists for an
      investigatory detention, the fundamental inquiry is an objective
      one, namely, whether the facts available to the officer at the
      moment of the intrusion warrant a man of reasonable caution in
      the belief that the action taken was appropriate.            This
      assessment, like that applicable to the determination of probable
      cause, requires an evaluation of the totality of the
      circumstances, with a lesser showing needed to demonstrate
      reasonable suspicion in terms of both quantity or content and
      reliability. Among the factors to be considered in establishing a
      basis for reasonable suspicion are tips, the reliability of the
      informants, time, location, and suspicious activity, including
      flight.

Commonwealth v. Gray, 784 A.2d 137, 141-42 (Pa. Super. 2001)

(citations and paragraph break omitted).

      During the suppression hearing, Officer Rodriguez testified that on

February 18, 2016, at approximately 8:15 p.m., he was on duty in the area

of 5500 North 5th Street in Philadelphia. See N.T. (Suppression), 4/29/16,

at 8. According to Officer Rodriguez, he and his partner were in a marked

patrol vehicle, in full uniform, and it was dark at that time. See id. at 13.

Officer Rodriguez stated that he was in the area because several robberies

had occurred within the preceding few days. See id. at 10.

      Officer Rodriguez testified that, while he was driving southbound on 5th

Street, he observed Gray standing on the corner, and “he wasn’t doing

anything.” See id. at 9. Officer Rodriguez testified that when he circled the

block a few minutes later, Gray was still at the same corner.          See id.



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According to Officer Rodriguez, Gray then walked eastbound on Tabor Road,

away from 5th Street, before turning around and ultimately walking north on

5th Street. See id. Officer Rodriguez testified that he noticed a black object

in Gray’s right hand. See id. at 9, 11. Officer Rodriguez also testified that,

from his position about 20 feet away from Gray, he observed Gray put the

item in his pocket. See id. at 9, 15.

      At that time, Officer Rodriguez “stopped [Gray] for investigation.” Id.

at 9; see also id. at 10 (wherein Officer Rodriguez testified that he was

investigating Gray for possibly carrying a firearm).     According to Officer

Rodriguez, he believed the black object could be a firearm because Gray was

walking away from the corner when he placed the object in his pocket, and

Gray had turned away from Officer Rodriguez’s view. See id. at 10.

      Following the suppression hearing, the municipal court determined

that the detention was supported by reasonable suspicion.            See N.T.

(Suppression), 4/29/16, at 19-20; see also id. at 17-19 (wherein the

municipal court considered the factors weighing in favor of reasonable

suspicion). The municipal court determined that the following factors weigh

in favor of reasonable suspicion: flight, although not headlong flight; Officer

Rodriguez’s observation of a black object in Gray’s hand, and his belief that

the object could be a gun; and recent robberies in the area (though the

court noted that this was not a substantial factor). See id. at 17-19. Upon




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review, we conclude that the totality of the circumstances fail to substantiate

a reasonable suspicion that Gray was engaging in criminal activity.

      When Officer Rodriguez first observed Gray, he was merely standing

on the street corner, and by Officer Rodriguez’s own admission, Gray “wasn’t

doing anything.” See id. at 9. Despite a recent history of burglaries in the

surrounding blocks, Gray’s presence in that area, without more, does not

establish his involvement in criminal activity.       See In re D.M., 781 A.2d

1161, 1163 (Pa. Super. 2001) (noting that mere presence in a high crime

area alone is insufficient to establish reasonable suspicion).       The evidence

presented at the suppression hearing also established that Gray walked

away from the corner, rather than running or fleeing. See Commonwealth

v. Key, 789 A.2d 282, 290 (Pa. Super. 2001) (stating that “[a]n individual’s

act of merely walking away from police officers in a ‘high crime area’ is

manifestly   insufficient   to   justify   an   investigative   detention   of   that

individual.”); see also In re J.G., 860 A.2d 185, 189 (Pa. Super. 2004)

(concluding that juvenile’s presence in a “high drug area,” and his decision

to walk away from police as they approached in their vehicles, rather than

running away or turning into headlong flight, did not provide reasonable

suspicion to justify an investigatory stop).        Moreover, despite being only

about 20 feet away from Gray at the time, Officer Rodriguez did not testify

that the unidentified object looked like a firearm. Rather, Officer Rodriguez’s

belief was based on the fact that Gray walked away from the corner and



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turned around, out of Officer Rodriguez’s view.      See Commonwealth v.

Martinez, 588 A.2d 513, 516-17 (Pa. Super. 1991) (concluding that stop

was not supported by reasonable suspicion where defendant was seen on a

street corner after midnight; she walked away after looking in the direction

of the unmarked police vehicle; and her jacket appeared to have a “bulge” in

it).   Additionally, there was no evidence presented at the suppression

hearing to suggest that Officer Rodriguez had reason to believe that Gray

was otherwise engaged in illegal activity. See N.T. (Suppression), 4/29/16,

at 21 (wherein the municipal court stated that “[t]he officer didn’t have

anything. … There’s nothing else to suggest [Gray was] armed and

dangerous[.]”).    Based upon the foregoing, we conclude that Gray was

subjected to an illegal detention, without the requisite reasonable suspicion.

       Further, because Gray did not make the incriminating statement until

after he was illegally detained (and he would not have made the statement

independent of being stopped by Officer Rodriguez), the statement is a

product of the initial illegality.   See Commonwealth v. Wood, 833 A.2d

740, 746 (Pa. Super. 2003) (en banc) (concluding that the defendant’s

incriminating statement, which was made only after she had been detained

without reasonable suspicion, was illegally obtained).       Accordingly, the

municipal court erred in failing to suppress Gray’s statement, as well as the

narcotics obtained during the subsequent search, as fruits of the illegal stop.

We therefore reverse the Order of the common pleas court denying Gray’s



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Petition for writ of certiorari, reverse Gray’s judgment of sentence, and

discharge Gray.6

     Order vacated. Judgment of sentence reversed. Gray discharged.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/21/2017




6
  Without Gray’s statement and the narcotics seized by Officer Rodriguez
during the stop, there is no evidence supporting Gray’s convictions.


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