J-A15002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    DAMON JOHNSON,

                             Appellant                No. 3007 EDA 2017


        Appeal from the Judgment of Sentence Entered August 11, 2017
             In the Court of Common Pleas of Philadelphia County
                          Criminal Division at No(s):
                           CP-51-CR-0003364-2016
                           CP-51-CR-0010937-2016
                           CP-51-CR-0013500-2009

BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 23, 2019

        Appellant, Damon Johnson, appeals from the judgment of sentence of

an aggregate term of 6-12 years’ incarceration, to be followed by 4 years’

probation, imposed after the trial court found him guilty at a non-jury trial of

resisting arrest, carrying a firearm without a license, carrying a firearm on the

streets of Philadelphia, person not to possess a firearm, simple assault,

recklessly endangering another person (REAP), and criminal mischief.1

Appellant challenges the sufficiency of the evidence supporting his conviction

and the trial court’s denying his motion to suppress the seized evidence. After

careful review, we affirm.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   See 18 Pa.C.S. §§ 5104, 6106, 6108, 6105, 2701, 2705, 3304, respectively.
J-A15002-19



     The trial court summarized the facts adduced at trial as follows:

     On January 28, 2016 at approximately 9:00 pm, Police Officer Paul
     Sulock and his partner, Police Officer Jeffrey Stauffer, were
     traveling northbound on Frankford Avenue, approaching Cambria,
     when they heard two gunshots north of their location. Officer
     Sulock continued northbound on Frankford Avenue toward the
     gunshots. Upon his arrival, within 30 seconds of hearing the
     gunshots, Officer Sulock observed a large crowd of people running
     in different directions while screaming. Officer Sulock was then
     flagged down by a female who told him “they are shooting out
     here,” to which he inquired as to the identity of the shooter. The
     female replied that she did not know and that she had only heard
     the shots.

     Within two minutes after speaking with the female, Officer Sulock
     drove eastbound on the 1900 block of Stella Street where he
     observed a light blue 2001 Grand Marquis traveling at a high rate
     of speed. The car was leaving Frankford Avenue, the area of the
     shooting, and heading westbound on Stella Street. The 1900
     block of Stella Street is approximately one block away from the
     scene of the shooting at 2900 Frankford Avenue. While Officer
     Sulock was driving eastbound, [Appellant] was driving westbound.
     However, Officer Sulock was able to record the license plate
     number and observed [Appellant] driving the car. Officer Sulock
     immediately made a U-turn and followed [Appellant]’s vehicle.
     After [Appellant] noticed he was being followed, he abruptly
     parked in front of 1945 or 1947 Stella Street, in a handicap
     parking space, on the north side of the street. Once parked,
     [Appellant] immediately left the vehicle, ran, and attempted to
     enter 1947 Stella Street. Officer Sulock stepped out of his vehicle
     to investigate [Appellant]’s behavior.

     As Officer Sulock approached [Appellant], [Appellant] bladed his
     body away from Officer Sulock, turning the left side of his body,
     while keeping his left hand in his waistband area. Officer Sulock
     asked [Appellant] what he was doing and requested to see [his]
     hands. [Appellant] responded by repeatedly claiming, “I live
     here.” However, Officer Sulock knew [Appellant]’s claim to be
     false as Officer Sulock was familiar with the area and knew the
     actual occupant of this residence to be an elderly Caucasian man.
     Further, Officer Sulock had never seen [Appellant] in the area of
     the home. During the conversation, [Appellant] stepped over a
     handicap ramp at 1947 Stella Street and continued to inch his way

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     eastbound. Officer Sulock asked, again, to see [Appellant]’s
     hands and [he] complied. Officer Sulock then placed [Appellant],
     with his hands up, against a wall.

     After [Appellant] was against the wall, Officer Sulock proceeded
     to ask him for the location of the keys to the vehicle and inquired
     further as to his behavior. [Appellant] responded to the questions
     by stating, “I was never in no vehicle. I don’t know what you’re
     talking about.” Officer Sulock noticed that [Appellant] was
     extremely nervous and smelled of gunshot powder. Officer Sulock
     then placed [Appellant] in the back of his police car for further
     investigation and retrieved the registration to the vehicle, which
     was hanging out of [Appellant]’s hoodie[’s] pocket.            While
     [Appellant] was in the police car, Officer Sulock walked to
     [Appellant]’s vehicle and noticed the vehicle was open. Officer
     Sulock began looking around the car with his flashlight. Officer
     Sulock found car keys on the driver’s side floorboard and a spent
     shell casing on the floorboard in the back, behind the driver’s seat.

     As Officer Sulock was looking around inside of the vehicle, he
     heard glass shatter. Officer Sulock looked toward his police car
     and observed his partner place both of his hands up in front of his
     face and both of [Appellant]’s feet leaping out of the back of the
     police car. After exiting the vehicle, [Appellant] began fleeing on
     foot, eastbound on Stella Street, then northbound on Braddock,
     and then westbound on Toronto. Officer Sulock placed a call over
     police radio to other officers in the area and immediately gave
     chase on foot. Officer Sulock was able to get [Appellant] on the
     ground, while [Appellant] was heading westbound on Toronto.
     Officer Sulock required the assistance of five or six other officers
     in order to handcuff [Appellant]’s hands behind his back and
     control him due to [his] resistance.

     After [Appellant] was under control, Officer Sulock sprinted back
     to [Appellant]’s vehicle and observed other officers around the car
     and noted the car doors were open and the trunk of the car was
     open. Officer Sulock then observed two handguns, a gold .45
     caliber firearm and a black High Point .9 mm handgun, in the trunk
     of the vehicle. After observing the two firearms, Officer Sulock
     contacted East Detectives and [Appellant] was arrested and
     transported to East Detectives while [Appellant]’s vehicle was held
     at the scene. At a later date, it was discovered that [Appellant]
     was not licensed to carry or possess a firearm.




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     Also, on January 28, 2016, at around 9:00 pm, Detective Dennis
     Dusak was involved in an investigation of shots fired at 2957
     Frankford Avenue. The scene was located near 2900 Frankford
     Avenue and Orleans Street. During his investigation, he observed
     a bullet hole in the front window of a residence at 2957 Frankford
     Avenue and spoke with the occupants of the residence, a mother
     and her 10-year-old child. Detective Dusak entered the residence
     and saw the bullet hole from inside the residence and noted there
     was also a bullet hole on the wall and on the other side of a kitchen
     cabinet. Detective Dusak also discovered a bullet projectile inside
     of the kitchen cabinet and submitted it to the Firearms
     Identification Unit. On a later date, Detective Dusak submitted
     two spent casings, discovered in front of 2033 East Orleans Street,
     on the highway, for a ballistic comparison with the bullet projectile
     he found at 2957 Frankford Avenue. The two locations where the
     casings and the bullet projectile were found were approximately
     one block away from each other. The casings were later identified
     as casings from a .45 and a .9 mm firearm.

     Once [Appellant] was arrested, Detective Randall Farward
     recovered: two .45 caliber fired cartridge casings (FCCs) at 2033
     East Orleans Street, two firearms from [Appellant]’s vehicle on
     Stella Street, a High Point .9 mm and a Model Star .45 caliber,
     one .9 mm shell casing from the rear driver’s seat of [Appellant]’s
     vehicle, [Appellant]’s DNA, and [his] clothing to submit to the
     chemical laboratory to have ballistic activity testing performed.
     During testing of [Appellant]’s clothing, gunshot residue was
     discovered on the front, right side of [his] hooded sweatshirt, left
     sleeve and cuff, and inside of the hooded sweatshirt’s pocket.

     The firearms recovered from [Appellant]’s vehicle were submitted
     for DNA testing. The results were inconclusive. However, the
     testing revealed that the .45 caliber firearm contained DNA from
     two individuals, at least one of wh[om] was a male. Police Officer
     Gregory Walsh, a firearms examiner, test fired both firearms
     found in [Appellant]’s vehicle and found both to be operable.
     Officer Walsh also tested the three FCCs and projectile recovered.
     Officer Walsh concluded that the .45 caliber FCCs recovered from
     2033 East Orleans Street, the shooting scene, were fired from the
     .45 caliber firearm recovered from [Appellant]’s trunk and the .9
     mm FCC found in [Appellant]’s vehicle was fired from the .9 Trim
     firearm found in [Appellant]’s trunk.

     [Appellant] testified at trial that he did not have a gun in his
     possession and that he did not know how the firearms got inside

                                     -4-
J-A15002-19


     the trunk of his vehicle on January 28, 2016. He further testified
     that he had no idea how the gun[]powder residue had gotten on
     his hooded sweatshirt the evening the incident occurred.
     [Appellant] testified that he believed he was arrested around 8:50
     pm, shortly after leaving his house for his night classes.
     [Appellant] also testified that he normally attended night classes
     from 4 pm until 10 pm on a daily basis.

     [Appellant] testified that he owned four vehicles, which he would
     lend to his friends and family, and that on the evening of January
     28, 2016, he had woken up late for school. [Appellant] testified
     to the [c]ourt that[,] on that date[,] he hopped into the vehicle
     outside of his house since it was already started. Then, he
     corrected himself and stated that he went outside and put the
     keys in the ignition of the vehicle since it had an automatic
     starter…. He then proceeded to drive down to the intersection of
     Emerald and Stella and noticed police officers at the intersection.
     [Appellant] continued driving onto the 1900 block of Stella Street
     to pick up his model for school. [Appellant] claimed that his model
     was Mr. John, a man who lives at a house with a handicap parking
     space in front of it. [Appellant] then parked in the handicap space
     because it was already dug out after it had snowed.

     [Appellant] claimed that the police officers were still at the
     intersection and watched him as he exited the vehicle and
     proceeded to 1947 Stella Street. [Appellant] knocked on the door
     to see if Mr. John wanted to come to [Appellant]’s school to model
     or if he wanted to reschedule. As [Appellant] was walking down
     the handicap ramp from Mr. John’s house, he noticed the police
     officers without headlights on and without any lights.          As
     [Appellant] walked down the ramp, he saw the two police officers
     with their guns pointed at him and he put his hands in the air.
     [Appellant] then claimed that the police officers handcuffed him
     and told him he was handcuffed for an investigation. The police
     officers had [Appellant] sit in the snow for a second and when
     [Appellant] stood back up, his pants fell down to his ankles.
     [Appellant] asked if one of the police officers would help him pull
     his pants back up but the officer refused.

     [Appellant] testified that he was placed in the back of the police
     car with his pants still down at his ankles. He explained that since
     he was handcuffed and his pants were down, he had to enter the
     vehicle by leaning back and jumping backwards in the seat. He
     then claimed that once the officer slammed the door[,] the window
     shattered. [Appellant] explained that he didn’t drive the vehicle

                                    -5-
J-A15002-19


       in question often, as it was usually loaned to friends and family.
       He stated that he only drove it on the day of the incident because
       of the snow. He stated that the car was already parked at his
       house when he left for school, but then he stated that it was
       dropped off to him by one of his brothers. [Appellant] claimed
       that he did not know where the key to the vehicle was, but was
       able to get a spare key from his house, even though he did not
       drive the car often. This [c]ourt found [Appellant]’s testimony to
       be entirely incredible due to the contradictory and illogical nature
       of [his] testimony.

Trial Court Opinion (TCO), 6/6/18, at 1-7.

       The Commonwealth charged Appellant with resisting arrest at CP-51-

CR-0003364-2016, and with the remaining, above-listed offenses at CP-51-

CR-0010937-2016.2 Appellant filed a motion to suppress the seized physical

evidence, which the trial court denied following a hearing on April 11, 2017.

Appellant’s non-jury trial was held on May 24, 2017, where he was convicted

of the offenses as stated above. On August 11, 2017, the trial court sentenced

Appellant to 5-10 years’ incarceration for person not to possess a firearm, a

concurrent 1-2 years’ incarceration for resisting arrest, and a consecutive term

of 1-2 years’ incarceration for carrying a firearm without a license. The court

imposed 4 years’ probation consecutive to Appellant’s incarceration for

carrying a firearm on the streets of Philadelphia, and concurrent terms of



____________________________________________


2 At CP-51-CR-0013500-2009, the trial court determined that Appellant had
violated his probation due to his new convictions at CP-51-CR-0003364-2016
and CP-51-CR-0010937-2016, and imposed a term of 6-12 months’
incarceration. However, Appellant does not raise any issues in the present
appeal that pertain to that matter.



                                           -6-
J-A15002-19



probation of 2 years’ each for simple assault and REAP. Appellant filed a timely

post-sentence motion, which the court denied on October 4, 2017.

       Appellant filed a pro se notice of appeal on September 5, 2017, which

this Court docketed as 3007 EDA 2017.3                Appellant was subsequently

appointed appellate counsel, who filed a second notice of appeal on November

3, 2017, and which this Court docketed at 3610 EDA 2017. On May 2, 2018,

Appellant filed a       timely, court-ordered Pa.R.A.P. 1925(b) statement.

Appellant petitioned to file a supplemental Rule 1925(b) statement, and with

permission of the trial court, Appellant filed a supplemental Rule 1925(b)

statement on May 14, 2018. The trial court issued its Rule 1925(a) opinion

on June 6, 2018. On August 7, 2018, the suppression court filed an additional

opinion per the trial court’s request.           On October 15, 2018, this Court

dismissed the appeal docketed at 3610 EDA 2017 as duplicative.

       Appellant now presents the following questions for our review:

          A. Did the trial court err when it found that there was sufficient
             evidence to prove, beyond a reasonable doubt, that
             [A]ppellant … was guilty of the criminal offenses of: simple
             assault…, [REAP]…, resisting arrest…, persons not to
             possess firearms…, firearms not to be carried without a


____________________________________________


3 Appellant filed a single notice of appeal with multiple lower court docket
numbers. Our Supreme Court made it clear in Commonwealth v. Walker,
185 A.3d 969 (Pa. 2018), that appellants are required to file separate notices
of appeal at each docket number implicated by an order resolving issues that
involve more than one trial court docket, regardless of whether a single
hearing or order addressed the issues at all implicated dockets. However, as
the instant appeal predates Walker, and the Court indicated that Walker
applies prospectively, we do not quash this appeal.

                                           -7-
J-A15002-19


            license …[,] and carrying firearms on public streets or public
            property in Philadelphia…?

         B. Did the trial court err when it denied Appellant’s Motion to
            Suppress Physical Evidence, pursuant to the Fourth and
            Fourteenth Amendments of the United States Constitution
            and Article I, Section 8 of the Pennsylvania Constitution, as
            on January 28, 2016, the Philadelphia Police did not have
            reasonable suspicion nor probable cause to stop Appellant…,
            search him and seize his clothing nor to search his Grand
            Marquis automobile and seize two firearms from the trunk
            of this automobile?

Appellant’s Brief at 2.

      In the first question presented for our review, Appellant raises six

distinct sufficiency issues. In the “Argument” section of his brief, Appellant

discusses five of the six issues in a single section, without any subheadings to

distinguish them. See id. at 32-40.

      The Rules of Appellate Procedure clearly dictate that:

      The argument shall be divided into as many parts as there are
      questions to be argued; and shall have at the head of each part--
      in distinctive type or in type distinctively displayed--the particular
      point treated therein, followed by such discussion and citation of
      authorities as are deemed pertinent.

Pa.R.A.P. 2119(a).

      Appellant has failed to comply with Rule 2119(a). However, we decline

to find waiver in this instance, as we are able to ascertain the nature of

Appellant’s sufficiency claims.

      Our standard of review of sufficiency claims is well-settled:
            A claim challenging the sufficiency of the evidence is a
      question of law. Evidence will be deemed sufficient to support the
      verdict when it establishes each material element of the crime
      charged and the commission thereof by the accused, beyond a
      reasonable doubt. Where the evidence offered to support the

                                      -8-
J-A15002-19


      verdict is in contradiction to the physical facts, in contravention to
      human experience and the laws of nature, then the evidence is
      insufficient as a matter of law. When reviewing a sufficiency
      claim[,] the court is required to view the evidence in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

                               Firearm offenses

      Appellant argues that:

      The only evidence adduced at trial with regard to the [firearm
      offenses] is that [Appellant] constructively possessed two firearms
      - a .9 millimeter handgun and a .45 caliber handgun, that were
      found in the trunk of his automobile.               None of the
      Commonwealth’s witnesses actually saw [Appellant] in possession
      of these firearms - i.e., they were not on his person. There was,
      however, testimony at trial that other persons had access to
      [Appellant’s] automobile.

Appellant’s Brief at 37-38. Thus, Appellant challenges only the sufficiency of

the evidence supporting his possession of the seized firearms, an element

common to each of the firearm offenses. As Appellant acknowledges, even

though he “was not in physical possession of the contraband, the

Commonwealth” could “establish that he had constructive possession of the

seized items to support his convictions.” Commonwealth v. Kinard, 95 A.3d

279, 292 (Pa. Super. 2014).

      Constructive possession is a legal fiction, a pragmatic construct to
      deal with the realities of criminal law enforcement. Constructive
      possession is an inference arising from a set of facts that
      possession of the contraband was more likely than not. We have
      defined constructive possession as conscious dominion.          We
      subsequently defined conscious dominion as the power to control
      the contraband and the intent to exercise that control. To aid

                                      -9-
J-A15002-19


        application, we have held that constructive possession may be
        established by the totality of the circumstances.

Id. (cleaned up).

        Appellant is not entitled to relief. The only testimony that other persons

had access to his vehicle was his own, and the trial court determined that

Appellant was not credible “because there were conflicting facts in his

testimony and much of the testimony did not makes sense.”              TCO at 8.

Furthermore, Appellant simply fails to acknowledge the circumstantial

evidence supporting his constructive possession of the seized firearms; police

observed him fleeing from the scene of the shooting, and gunshot residue was

ultimately discovered on his clothing. It was reasonable, therefore, for the

trial court to conclude that Appellant had used one of the firearms discovered

in the trunk of his vehicle during the shooting.        Thus, it was sufficiently

demonstrated that Appellant had both the power to control the weapons and

the intent to exercise that control.      For these reasons, we conclude that

Appellant has failed to show that the evidence was insufficient to support that

he constructively possessed the firearms; thus, the evidence was sufficient to

support his convictions for carrying a firearm without a license, carrying a

firearm on the streets of Philadelphia, and person not to possess a firearm.

                           Simple Assault and REAP

        Next, Appellant asserts that the evidence was insufficient to support his

conviction for simple assault and REAP. In this regard, Appellant contends

that:



                                      - 10 -
J-A15002-19


        The only evidence adduced at trial with regard to the criminal
        offenses of [s]imple [a]ssault … and [REAP] … is circumstantial,
        mostly ballistic and forensic in nature, relating to a shooting that
        occurred prior to [Appellant’s] being arrested. None of the
        Commonwealth’s witnesses actually saw [Appellant] shooting at
        or into a residence located at 2957 Frankford Avenue or anywhere
        else in that area. After a careful reading of the trial testimony, it
        is clear that this circumstantial evidence is insufficient to prove
        these criminal offenses beyond a reasonable doubt.

Appellant’s Brief at 33.

        Thus,   Appellant     does   not   appear   to   challenge   any   specifically

enumerated element of the crimes of simple assault or REAP, nor does he

dispute that a shooting occurred. Instead, he only contests the sufficiency of

the evidence supporting his identity as the shooter, an implicit element of

every crime. However, it is axiomatic that the “Commonwealth may sustain

its burden of proving every element of the crime beyond a reasonable doubt

by     means    of   wholly   circumstantial    evidence.”     Commonwealth         v.

Hutchinson, 947 A.2d 800, 806 (Pa. Super. 2008). Furthermore, “[f]light

does indicate consciousness of guilt, and a trial court may consider this as

evidence, along with other proof, from which guilt may be inferred.”

Commonwealth v. Hargrave, 745 A.2d 20, 23 (Pa. Super. 2000) (cleaned

up).

        The trial court found:

        In this case, the … court considered [Appellant]’s flight as a factor
        along with the other evidence. Here, [Appellant] was observed
        driving his car at a high rate of speed, shortly after the gunshots
        were heard. [Appellant] exhibited evasive measures when he
        parked in a handicap space and went up to the house and falsely
        claimed he lived there. Once apprehended by police officers in
        the police vehicle, [Appellant] used force to break the glass and


                                           - 11 -
J-A15002-19


      flee while Officer Sulock was searching [Appellant]’s vehicle. In
      order to re-apprehend and restrain [Appellant], Officer Sulock
      required the assistance of an additional five or six police officers.

      Police officers found two firearms in the trunk of [Appellant]’s
      vehicle. One of the firearms found in [his] vehicle was matched
      to the ballistics from the bullet found in the house located at 2957
      Frankford Avenue and the two FCCs found on 2033 East Orleans
      Street matched the .45 caliber firearm recovered from the trunk
      of [his] vehicle. Gunpowder residue was later found, through the
      use of chemical testing, on [Appellant]’s hooded sweatshirt worn
      the night of the shooting and [Appellant] smelled strongly of
      gunpowder [on] the night of the incident.

      These facts, although circumstantial, are more than sufficient
      evidence to support the simple assault and [REAP] convictions
      beyond a reasonable doubt. The [c]ourt concluded all of this
      circumstantial evidence[,] the recovery of the firearms from
      [Appellant]’s vehicle, ballistics evidence, evasive behavior, flight,
      and the incredible testimony of [Appellant], left no reasonable
      doubt that [he] was one of the shooters. Therefore, the
      circumstantial evidence taken as a whole, supports the conviction
      on the charges of simple assault and REAP.

TCO at 9-10.

      We agree with the trial court. The evidence was more than sufficient to

convict Appellant of simple assault and REAP.

                               Resisting Arrest

      In Appellant’s statement of the questions presented, he challenges the

sufficiency of the evidence supporting his conviction for resisting arrest.

However, nowhere in the Argument section of his brief does he develop that

claim. Accordingly, we deem this issue waived. See In re Est. of Whitley,

50 A.3d 203, 209–10 (Pa. Super. 2012) (cleaned up) (“The argument portion

of an appellate brief must include a pertinent discussion of the particular point

raised along with discussion and citation of pertinent authorities. This Court


                                     - 12 -
J-A15002-19



will not consider the merits of an argument which fails to cite relevant case or

statutory authority. Failure to cite relevant legal authority constitutes waiver

of the claim on appeal.”).

                                     Suppression

       Appellant next argues that the trial court should have granted his motion

to suppress the seized physical evidence.4

       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.    Because the Commonwealth prevailed before the
       suppression court, we may consider only the evidence of the
       Commonwealth 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 suppression court’s factual findings are
       supported by the record, we are bound by these findings and may
       reverse only if the court’s legal conclusions are erroneous. Where
       … the appeal of the determination of the suppression court turns
       on allegations of legal error, the suppression court’s legal
       conclusions are not binding on an appellate court, whose duty it
       is to determine if the suppression court properly applied the law
       to the facts. Thus, the conclusions of law of the courts below are
       subject to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783–84 (Pa. Super. 2012)

(cleaned up).

       Valid citizen/police interactions which constitute seizures
       generally fall within two categories, distinguished according to the
       degree of restraint upon a citizen’s liberty: the investigative
____________________________________________


4 Appellant sought suppression of the two firearms discovered in the trunk of
his vehicle, as well at his clothing, which, when tested, revealed the presence
of gunshot residue.




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J-A15002-19


        detention or Terry[5] stop, which subjects an individual to a stop
        and a period of detention but is not so coercive as to constitute
        the functional equivalent of an arrest; and a custodial detention
        or arrest, the more restrictive form of permissible encounters. To
        maintain constitutional validity, an investigative detention must
        be supported by a reasonable and articulable suspicion that the
        person seized is engaged in criminal activity and may continue
        only so long as is necessary to confirm or dispel such suspicion;
        … whereas, a custodial detention is legal only if based on probable
        cause.

Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000) (cleaned up,

footnotes omitted). Probable cause “exists where the facts and circumstances

within the officer’s knowledge are sufficient to warrant a person of reasonable

caution in the belief that an offense has been or is being committed.”

Commonwealth v. Evans, 685 A.2d 535, 537 (Pa. 1996) (cleaned up).

        Here, Appellant contends that Officer Sulock 1) lacked reasonable

suspicion to frisk him for weapons; 2) lacked reasonable suspicion to place

Appellant in the back of his patrol vehicle after failing to discover a weapon

during the frisk; 3) lacked probable cause to search his vehicle; and 4) lacked

probable cause to seize and then search his clothing for gunshot residue.

        The suppression court determined that the initial frisk was justified

based on the following facts:

        After hearing gunfire, the police herein returned to Frankford
        Avenue and Orleans Street, a high crime area, one which they had
        just left ten minutes prior thereto after investigating a
        disturbance, and upon doing so, the police learned that some men
        had been firing guns there. The police then began patrolling in
        the area and a couple of minutes later, a couple of blocks from
        Frankford Avenue and Orleans Street, they saw a vehicle turning
____________________________________________


5   See Terry v. Ohio, 392 U.S. 1 (1968).

                                          - 14 -
J-A15002-19


     off of Frankford Avenue at a high rate of speed in a direction away
     from the site of the shooting. They made a U-turn and followed
     the vehicle, which was being driven by Appellant who, of his own
     volition, pulled his car over to the curb without signaling and
     stopped in a handicapped parking spot. Appellant then exited the
     vehicle and proceeded up to a residence.

     Officer Sulock asked Appellant what he was doing and Appellant,
     who appeared to be very nervous and was standing sideways to
     the officer with his hands hidden from the officer’s view, said he
     lived at the residence. Appellant then began walking away from
     the officer after repeating that he lived at the residence. Officer
     Sulock stopped Appellant from leaving.

     At the moment the officer stopped Appellant, the officer had the
     legal right to do so to investigate if he had anything to do with the
     recent gun fire. As noted above, the officer observed Appellant
     driving at a high rate of speed away from the site where guns had
     been fired just minutes before. Appellant, who was visibly
     nervous, then refused to show his hands to the officer and tried
     to leave the area despite having told the officer that he lived in
     the residence he just walked up to after exiting the car. The
     totality of the circumstances, including Appellant’s nervousness,
     refusal to show his hands, his attempt to leave, and the high rate
     [of speed] and direction that Appellant was driving combined to
     give the police the right to investigate Appellant as he attempted
     to walk away from the officers for possible involvement in the
     shooting at Frankford and Orleans. Reasonable suspicion does not
     require certainty that crime is afoot. In Commonwealth v.
     Rogers, 578 Pa. 127, 849 A.2d 1185 (2004), the Supreme Court
     stated:

        Of course, one can conceive of innocent explanations for
        each one of these facts. Yet, as noted supra, reasonable
        suspicion does not require that the activity in question must
        be unquestionably criminal before an officer may investigate
        further. […] Rather, the test is what it purports to be—it
        requires a suspicion of criminal conduct that is reasonably
        based upon the facts of the matter. The facts of the matter
        sub judice give rise to just such a suspicion. [The a]ppellant
        was unusually agitated; the paperwork for his vehicle was
        out of order in several key respects; his answers regarding
        the location he had just departed were vague; and, most
        importantly, the backseat of his car contained products that
        Trooper Banovsky knew, via his extensive professional

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        experience, are commonly used in the packaging of illegal
        narcotics. These facts, taken in their totality, lead to a
        conclusion that Trooper Banovsky had reasonable suspicion
        to suspect that criminal activity was afoot. Thus, [the
        a]ppellant’s first claim for relief fails.

     Rogers, 849 A.2d at 1190.

     In addition, evasive behavior is relevant in determining whether
     reasonable suspicion exists. Illinois v. Wardlow, 528 U.S. 119
     (2000); accord Commonwealth v. Freeman, 757 A.2d 903,
     908 (Pa. 2000) (“nervous, evasive behavior such as flight is a
     pertinent factor in determining reasonable suspicion”). See also
     Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000)
     (stating that the expectation of criminal activity in a given area
     and nervous or evasive behavior are factors). 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. In
     Interest of 0.J., 958 A.2d 561 (Pa. Super. 2008) (en banc)….
     Likewise, although presence in a high crime area or flight alone
     does    not   form     the  basis   for   reasonable     suspicion,
     Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999), a
     combination of these factors can be sufficient. Terry v. Ohio,
     392 U.S. 1, 22 (1968); Zhahir, 751 A.2d at 1157 (suspicious
     conduct corroborates anonymous tip).

     In Appellant’s case, the combination of these and the other factors
     set forth above provided the officers with reasonable suspicion
     that Appellant was involved in criminal activity.

Suppression Opinion, 8/7/18, 6-7.

     We agree with the suppression court’s analysis, and its conclusion that

Officer Sulock possessed a reasonable suspicion that Appellant had been

involved in the shooting based on the circumstances observed by the officer.

Furthermore, because Appellant was seen fleeing from the location of the

shooting in a vehicle, we disagree that the reasonable suspicion possessed by



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the officer had dissipated once the frisk failed to uncover a weapon. It was

reasonable for the officer to detain Appellant temporarily in the patrol vehicle

while he continued to investigate by searching Appellant’s vehicle from the

outside with his flashlight. No additional level of suspicion was required to

justify that limited investigation of Appellant’s vehicle. See Commonwealth

v. Milyak, 493 A.2d 1346, 1348 (Pa. 1985) (holding that “no search triggering

the protection of the Fourth Amendment is conducted where an officer

observes the plainly viewable interior of a vehicle[,]” even when that search

is aided with a flashlight).

      We also agree with the suppression court’s analysis and conclusion

regarding the subsequent search of Appellant’s vehicle:

      With regard to the search of the car, under the facts and
      circumstances present herein, the police did not violate the law
      because they had sufficient probable cause to search the vehicle.
      Warrantless searches of cars and their occupants can be made
      only when there is independent probable cause to believe that
      weapons, contraband, or criminal evidence will be found therein.
      Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (plurality)
      (reaffirming ruling in Commonwealth v. Smith, 304 A.2d 456,
      458 (Pa. 1973), that probable cause is necessary and sufficient to
      justify the search or seizure of an automobile in a public place);
      Commonwealth v. Runyan, 160 A.3d 831, 837 (Pa. Super.
      2017). Probable cause exists where the facts and circumstances
      within the officer’s knowledge are sufficient to warrant a prudent
      individual in believing that an offense was committed and that the
      defendant has committed it. Commonwealth v. Dennis, 612
      A.2d 1014, 1015-16 (Pa. Super. 1992)….

      Upon stopping Appellant for investigation, Officer Sulock went
      over to the vehicle Appellant had just exited and with the aid of a
      flashlight observed a fired cartridge case behind the driver’s seat.
      The use of a flashlight did not constitute a search. See … Milyak[,



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J-A15002-19


      supra]…; Commonwealth v. Bentley, 419 A.2d 85 (Pa. Super.
      1980).

      Appellant then broke out of the police car he had been placed in
      and fled. The combination of these circumstances along with the
      evidence that Appellant had been driving the vehicle at a high rate
      of speed away from the site where there had been gun fire,
      Appellant’s flight from the vehicle, and Appellant’s blatant lie that
      he had not been driving the car, provided the police with probable
      cause to believe that the car contained contraband and justified
      their search of it. Thus, it is respectfully suggested that relief be
      denied with respect to this claim.

Suppression Court Opinion at 8-9. On this basis, we conclude that the search

of Appellant’s vehicle was also lawful.

      Finally, Appellant contends that the seizure and subsequent search of

his clothing for gunshot residue was unlawful, but he provides no separate

analysis for that claim in the Argument section of his brief. Accordingly, we

deem that aspect of his suppression claim waived. See Whitley, supra.         In

any event, had Appellant not waived this claim, we would agree with the

suppression court that the seizure and search of Appellant’s clothing was

justified as a search incident to arrest. “Police may constitutionally seize a

prisoner’s clothing following arrest and detention without obtaining a search

warrant.” Commonwealth v. Hall, 554 A.2d 919, 921 (Pa. Super. 1989).

      Accordingly, we ascertain no error in the suppression court’s denial of

Appellant’s motion to suppress the seized physical evidence.

      Judgment of sentence affirmed.




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J-A15002-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2019




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