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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: M.A., A MINOR,          :      IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                                            :
                                            :
                                            :
APPEAL OF: M.A., A MINOR,                   :
                                            :      No. 2530 EDA 2013


               Appeal from the Dispositional Order August 1, 2013
              In the Court of Common Pleas of Philadelphia County
                Juvenile Division No(s).: CP-51-JV-0000604-2013

BEFORE: GANTMAN, P.J., JENKINS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 03, 2014

        Appellant, M.A., appeals from the dispositional order entered in the

Philadelphia County Court of Common Pleas following a dispositional hearing

and a finding of delinquency for two violations of the Uniform Firearms Act,

specifically carrying a firearm without a license 1 and possession of a firearm

by a minor.2 Appellant contends the police lacked reasonable suspicion to

stop him and seize the firearm. We affirm.

        We state the facts as set forth by the juvenile court.

              On February 13, 2013[,] at approximately 8:16PM,
           Philadelphia Police Officer Brian McCarthy . . . responded
           to a radio call for gunshots in the area of 43rd Street and

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6106.
2
    18 Pa.C.S. § 6110.1.
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       Fairmount Avenue. Officer McCarthy approached the area
       of 43rd and Wallace Streets, which is one block away from
       43rd and Fairmount Avenue. . . . It took Officer McCarthy
       approximately one minute to arrive at 43rd and Wallace
       Streets. At the time, Officer McCarthy had worked in the
       area of 43rd and Wallace Streets for approximately six
       years. Officer McCarthy described the area as a “very high
       crime area, with lots of narcotics, shootings [and]
       robberies.”

          When Officer McCarthy arrived at 43rd and Wallace
       Street, he observed three black males walking away from
       the area where gunfire had been reported one minute
       prior.   Said males matched the descriptions of the
       perpetrators of previous gunpoint robberies in said area.
       Officer McCarthy had received a packet of “flash
       information” describing five different robberies all in the
       same area within the preceding week, committed by black
       males wearing hoodies and black jackets.             Officer
       McCarthy was travelling in a marked police vehicle.

           As Officer McCarthy exited his vehicle [and before he
       could say anything,] the three males ran. One male ran
       westbound on Wallace Street. Officer McCarthy pursued
       [Appellant] and another male, as they ran eastbound on
       Wallace Street. . . . Officer McCarthy continued to pursue
       [Appellant] into an alleyway.         The officer followed
       [Appellant] through said alleyway, which led to an open
       field. While running, [Appellant] turned and discarded a
       silver gun from his waistband. Officer McCarthy clearly
       observed [Appellant] pull the silver firearm from his right,
       front waistband.     [Appellant] continued to run for a
       distance of ten feet and then stopped, at which point
       Officer McCarthy was able to apprehend [Appellant].
       Officer McCarthy then recovered the firearm, a .380 caliber
       semiautomatic handgun loaded with five rounds and one
       round in the chamber, and placed said firearm on Property
       Receipt number 3080538.        Upon arresting [Appellant],
       Officer McCarthy recovered an Apple-stamped plastic bag,
       containing six live rounds, and he placed said items on
       Property Receipt number 3057206. At the time of the
       arrest, [Appellant] was dressed in a dark blue jacket, blue
       hoodie, and black pants.


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            Officer McCarthy stopped [Appellant] because [he] was
         walking away from the area of gunfire and also because
         [Appellant] matched the description of the perpetrator of a
         previous robbery or robberies. While the descriptions of
         the perpetrators in each crime varied, most of the
         descriptions referenced black males in dark hoodies.
         There was no height description as part of the descriptions
         of the perpetrators. The other male that was walking with
         [Appellant] was wearing a black, puffy jacket, which also
         matched the description of one of the robbers. Officer
         McCarthy conceded that the males of said vicinity generally
         wear dark clothing, puffy jackets, and hoodies. However,
         Officer McCarthy explained that he stopped [Appellant]
         based on the area, the clothing, and the number of males
         that were with [Appellant] in the group, in light of the flash
         information. The males ran as soon as Officer McCarthy
         opened his car door, prior to Officer McCarthy saying a
         word.

             The parties stipulated that the firearm recovered was
         submitted to the Firearm Identification Unit and
         determined to be operable. [Appellant] never produced a
         license to carry a firearm. The Commonwealth presented
         a Certificate of Non-Licensure for [Appellant].

Juvenile Ct. Op., 1/13/14, at 2-4 (unpaginated) (citations omitted).      The

record does not explicitly state whether Officer McCarthy ordered Appellant

and the other male to stop during the pursuit. Given that Appellant stopped

running after ten feet, we may presume Officer McCarthy commanded

Appellant to stop. See id. at 3 (noting that Appellant stopped running while

in alleyway or open field).

      On May 23, 2013, Appellant moved to suppress the gun, reasoning

that the police lacked a basis to stop him.      The court denied Appellant’s

motion and subsequently found Appellant delinquent. On August 1, 2013,

the court placed Appellant on probation pursuant to a Youth Violence

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Reduction Partnership, with home schooling subject to global positioning

system monitoring and house restrictions.

      Appellant timely appealed, and on September 19, 2013, the court

ordered Appellant to comply with Pa.R.A.P. 1925(b) within twenty-one days.

On Friday, October 11, 2013, Appellant filed his Rule 1925(b) statement one

day past the deadline.3 In his Rule 1925(b) statement, Appellant alleged the

police lacked probable cause to stop him thus making any resulting seizure

“fruit of the poisonous tree.”     Appellant’s Pa.R.A.P. 1925(b) Statement,

10/11/13 (emphasis added).

      In his brief, Appellant raises the following issue:

         Whether the suppression court erred in finding that the
         police had reasonable suspicion to stop, investigate
         [Appellant], and that the unprovoked flight of [Appellant]
         gave the officer authority to chase and arrest [Appellant
         and] to seize[ ] the firearm he discarded during the chase?

Appellant’s Brief at 1 (emphasis added).4 Appellant argues that the police

had no description of the perpetrators of the gunfire that night and only a

clothing description of the perpetrators of the prior robberies. He posits that

the clothing description could not establish probable cause or justify an



3
   We decline to find waiver, however.       See Pa.R.A.P. 1925(c)(3);
Commonwealth v. Britt, 83 A.3d 198, 203 (Pa. Super. 2013) (holding
untimely filing of Rule 1925(b) statement by counsel is per se ineffective
assistance of counsel).
4
  Although “probable cause” is materially different than “reasonable
suspicion,” we decline to find waiver.


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investigatory stop. Appellant maintains there was no reasonable suspicion

justifying his seizure. He opines his seizure occurred as soon as he fled the

police.   Appellant suggests that the firearm should have been suppressed

because the police lacked probable cause or reasonable suspicion under

Article I, § 8 of the Pennsylvania Constitution and the Fourth Amendment of

the United States Constitution. We hold Appellant is due no relief.

              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. Where the prosecution prevailed in
          the suppression court, we may consider only the
          Commonwealth’s evidence 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 factual findings of the trial court, we are
          bound by those facts and may reverse only if the legal
          conclusions drawn therefrom are in error.

In re J.E., 937 A.2d 421, 425 (Pa. 2007) (citations omitted). In evaluating

the legal conclusion drawn by the suppression court, this Court may also

consider uncontradicted testimony from the suppression hearing not

included in the suppression court’s findings of fact.5   Commonwealth v.

Mendenhall, 715 A.2d 1117, 1119 n.1 (Pa. 1998).


5
   We acknowledge the holding of In re L.J., 79 A.3d 1073 (Pa. 2013), that
after October 30, 2013, the scope of review for a suppression issue is limited
to the record available to the suppression court. Id. at 1085, 1089 (stating
holding applies to “all litigation commenced Commonwealth-wide after the
filing of this decision”). Because the instant delinquent petition was filed
prior to October 30, 2013, In re L.J. does not apply.


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         Both the Fourth Amendment of the United States
       Constitution and Article 1 Section 8 of the Pennsylvania
       Constitution protect citizens from unreasonable, searches
       and seizures. The Fourth Amendment to the United States
       Constitution provides that:

               The right of the people to be secure in their
               persons, houses, papers, and effects, against
               unreasonable searches and seizures, shall not
               be violated, and no warrants shall issue, but
               upon probable cause, supported by oath or
               affirmation, and particularly describing the place
               to be searched, and the persons or things to be
               seized.

       U.S. Const. Amend. IV.          The Pennsylvania Constitution
       provides:

               The people shall be secure in their persons,
               houses,    papers    and      possessions from
               unreasonable searches and seizures, and no
               warrant to search any place or to seize any
               person or things shall issue without describing
               them as nearly as may be, nor without probable
               cause, supported by oath or affirmation
               subscribed to by the affiant.

       Pa. Const. Art. I, § 8. Warrantless searches and seizures
       are therefore unreasonable per se, unless conducted
       pursuant to a specifically established and well-delineated
       exception to the warrant requirement.

                                   *    *    *

          The Pennsylvania Supreme Court has been vigilant in
       the protection of the right to privacy guaranteed by Article
       I, Section 8 of our state Constitution.        On repeated
       occasions, the Court has admonished that:

               The seriousness of criminal activity under
               investigation, whether it is the sale of drugs or
               the commission of a violent crime, can never be
               used as justification for ignoring or abandoning
               the constitutional right of every individual in this

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               Commonwealth to be free from intrusions upon
               his or her personal liberty absent probable
               cause.

        Commonwealth v. Polo, 563 Pa. 218, 226, 759 A.2d
        372, 376 (quoting Commonwealth v. Matos, 543 Pa.
        449, 672 A.2d 769, 775-76 (1996)).

        To secure the right of citizens to be free from such
        intrusions, courts in Pennsylvania require law enforcement
        officers to demonstrate ascending levels of suspicion to
        justify their interactions with citizens as those interactions
        become more intrusive.

Commonwealth v. Ayala, 791 A.2d 1202, 1207-08 (Pa. Super. 2002) (per

curiam) (punctuation marks and some citations omitted).

           Initially we note that Fourth Amendment jurisprudence
        has led to the development of three categories of
        interactions between citizens and the police. 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. Ellis, 662 A.2d 1043, 1047 (Pa. 1995) (citations and

footnote omitted).

     The Pennsylvania Supreme Court has established the objective

Jones/Mendenhall6 standard “in determining whether the conduct of the

police amounts to a seizure or whether there is simply a mere encounter

6
 United States v. Mendenhall, 446 U.S. 544 (1980); Commonwealth v.
Jones, 378 A.2d 835, 839 (Pa. 1977).

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between citizen and police officer.”    Commonwealth v. Matos, 672 A.2d

769, 774 (Pa. 1996).

         In [Commonwealth v. Hicks, 253 A.2d 276 (Pa. 1969)],
         this Court adopted the United States Supreme Court’s
         decision in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20
         L. Ed. 2d 889 (1968), which permits a police officer to
         effect a precautionary seizure where the police have a
         reasonable suspicion that criminal activity is afoot. Terry,
         and by analogy Hicks, recognized that there are some
         instances in which an individual may not be arrested, but
         will still be considered to be “seized.” In Jones, this Court
         adopted an objective standard for determining what
         amount of force constitutes the initiation of a Terry stop:
         whether a reasonable person innocent of any crime, would
         have thought he was being restrained had he been in the
         defendant’s shoes. This case, which preceded the United
         States Supreme Court’s decision in . . . Mendenhall, . . .
         was a precursor to the so-called “Mendenhall” test
         posited by the United States Supreme Court: “a person
         has been ‘seized’ within the meaning of the Fourth
         Amendment only if, in view of all the circumstances
         surrounding the incident, a reasonable person would have
         believed he was not free to leave.”

            The Jones/Mendenhall standard has since been
         consistently followed in Pennsylvania in determining
         whether the conduct of the police amounts to a seizure or
         whether there is simply a mere encounter between citizen
         and police officer.

Matos, 672 A.2d at 773-74 (punctuation and some citations omitted).

      The Pennsylvania Supreme Court provided further guidance in applying

this “totality of the circumstances” test:

         In evaluating the circumstances, the focus is directed
         toward whether, by means of physical force or show of
         authority, the citizen-subject’s movement has in some way
         been restrained. In making this determination, courts
         must apply the totality-of-the-circumstances approach,


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         with no single factor dictating the ultimate conclusion as to
         whether a seizure has occurred.

Commonwealth v. Strickler, 757 A.2d 884, 890 (Pa. 2000) (footnotes and

some    citations   omitted).   Factors    examined   in   this   totality-of-the-

circumstances approach include “all circumstances evidencing a show of

authority or exercise of force, including the demeanor of the police officer,

the manner of expression used by the officer in addressing the citizen, and

the content of the interrogatories or statements.” Mendenhall, 715 A.2d at

1119.7 This Court also set forth a non-exclusive list of factors:

         [T]he 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. Otherwise inoffensive contact between a member
         of the public and the police cannot, as a matter of law,
         amount to a seizure of that person.

Commonwealth v. Collins, 950 A.2d 1041, 1047 n.6 (Pa. Super. 2008)

(en banc) (citation omitted).

       No Fourth Amendment violation occurs “[a]s long as the person to

whom questions are put remains free to disregard the questions and walk

away, [as] there has been no intrusion upon that person’s liberty or privacy

as would under the Constitution require some particularized and objective


7
 The defendant in the Pennsylvania Supreme Court Mendenhall case has
no connection to the defendant in the United States Supreme Court
Mendenhall case.


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justification.” Commonwealth v. Peters, 642 A.2d 1126, 1129 (Pa. Super.

1994). Following that precept, our courts have held that “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) (citation omitted).8        For example, a plainclothes officer

displaying a badge, accompanied by a request to step aside for a

conversation, generally does not, without more, constitute a seizure.

Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984).9

        In contrast, “[i]f a citizen approached by a police officer is ordered to

stop or is physically restrained, obviously a ‘stop’ occurs.” Jones, 378 A.2d


8
    In Cooper, this Court examined whether

           the police’s actions, upon approaching [the defendant],
           rose to the level of an investigative detention. . . . The
           evidence presented at the suppression motion suggests
           only that the officer exited his vehicle and approached [the
           defendant] with the intention of asking him questions.
           There was no evidence presented that the officer drew his
           weapon or commanded [the defendant] to remain in place
           before [the defendant] made his movements[, “belat[ing]
           his body backwards towards his left side and reach[ing] for
           his pocket.”]. Accordingly, we conclude that the officer
           subjected [the defendant] to only a mere encounter prior
           to frisking him.

Cooper, 994 A.2d at 592.
9
  In Rodriguez, plainclothes officers at an airport approached a suspect,
who “saw them approaching and then attempted to move away but was
mainly running in place, and an officer then displayed his badge and asked if
they could talk, to which defendant agreed[.]” 4 Wayne R. LaFave, Search
and Seizure § 9.4(a) n.18 (5th ed. 2012) (summarizing Rodriguez, supra).


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at 839.     In In re D.M., 781 A.2d 1161 (Pa. 2001), our Supreme Court

stated that the “pursuit of [a defendant] by police officers amount[s] to a

seizure. Thus, the officer must demonstrate either probable cause to make

the seizure or reasonable suspicion to stop and frisk.” Id. at 1164 (citation

and footnote omitted). The In re D.M. Court addressed the propriety of a

seizure when the police approached a suspect matching a description given

via a radio call, and the suspect fled in response to a police directive to

approach.      Id. at 1162.   The Court concluded that “flight was clearly

relevant in determining whether the police demonstrated reasonable

suspicion to justify a Terry stop under the totality of the circumstances.”

Id. at 1165.

      In sum, the question of “whether the police needed some level of

requisite cause at the time they initially approached” the defendant is

“governed by the type of encounter that the police initiated when they

approached” the defendant.      Id. at 1164 (emphases added).        The critical

inquiry is what type of encounter the police initiated at the time they initially

approached the defendant.         See id.      After identifying the type of

encounter—e.g., mere encounter, investigative detention, or custodial

detention—this Court must then determine whether the police had the

requisite cause for that encounter, respectively, e.g., no suspicion required,

reasonable suspicion that criminal activity was afoot, or probable cause for

an arrest. See Ellis, 662 A.2d at 1047; Jones, 378 A.2d at 839 n.4.


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        Instantly, the record substantiates the juvenile court’s determination

that Appellant was walking with two males in a high crime area around 8:00

p.m.    Juvenile Ct. Op. at 2-3.   Officer McCarthy, while driving a marked

police vehicle, approached the three males. Id. At this juncture, no seizure

occurred; Officer McCarthy did not command the three males to remain

stationary or draw his weapon. Cf. Rodriguez, 469 U.S. at 5-6; Cooper,

994 A.2d at 592. There was no “official compulsion to stop or to respond.”

Ellis, 662 A.2d at 1047.     Under these facts, had Officer McCarthy begun

questioning the males, they would have remained free to walk away. See

Cooper, 994 A.2d at 592; Peters, 642 A.2d at 1129. Unlike the facts in

Rodriguez, however, Officer McCarthy did not say anything, because upon

seeing Officer McCarthy exit the vehicle, all three males fled: one male fled

westbound and Appellant and the third male fled eastbound. See Juvenile

Ct. Op. at 3.

        Officer McCarthy immediately pursued Appellant and the third male

east.    Although the record does not explicitly indicate whether Officer

McCarthy ordered Appellant and the other male to stop, it is implied. See

id. at 3.     At the moment when Officer McCarthy initiated pursuit, and

presumably commanded Appellant to stop, a seizure occurred. See In re

D.M., 781 A.2d at 1164; Matos, 672 A.2d at 771; Jones, 378 A.2d at 839.

Thus, under the totality of the circumstances and an objective standard of

review, these facts establish a show of authority or exercise of force such


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that a reasonable, innocent person in Appellant’s position would have

thought he was being restrained.         See Strickler, 757 A.2d at 890;

Mendenhall, 715 A.2d at 1119-20; Matos, 672 A.2d at 774.              At this

juncture, this interaction was not “inoffensive conduct between a member of

the public and the police” such that no seizure occurred. See Collins, 950

A.2d at 1047 n.6. Because the interaction at this point in time progressed

beyond a mere encounter to an investigative detention, see In re D.M., 781

A.2d at 1164, we examine whether the police had reasonable suspicion that

criminal activity was afoot. See Ellis, 662 A.2d at 1047; Jones, 378 A.2d

at 839.

      When evaluating the existence of reasonable suspicion,

          the reviewing Court weighs the gravity of the public
          concerns served by the seizure, the degree to which the
          seizure advances the public interest, and the severity of
          the interference with individual liberty. To be deemed
          reasonable under this standard, such a seizure must
          ordinarily be supported by reasonable suspicion, based
          upon objective facts, that the individual is involved in
          criminal activity.

Commonwealth v. Beaman, 880 A.2d 578, 582 (Pa. 2005) (citations and

some quotation marks omitted). Absent individualized suspicion justifying a

seizure, we examine whether the investigative detention fell within the

limited   circumstances    for   a    suspicionless   search   and    seizure.

Commonwealth v. Mistler, 912 A.2d 1265, 1271 (Pa. 2006).

      Instantly, the juvenile court held that Officer McCarthy had reasonable

suspicion that Appellant was engaged in criminal activity. Juvenile Ct. Op. at

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5-6.   Officer McCarthy responded to a radio call of gunshots at 43rd and

Wallace Streets, a high crime area, within a minute of the call.            Id.

Appellant and the other males wore clothing similar to the perpetrators of

five recent robberies in the area.   Id.      Upon seeing Officer McCarthy exit

from a marked police vehicle and before he even said anything, Appellant,

similar to the defendant in In re D.M., fled. Id.; see In re D.M., 781 A.2d

at 1162. Each fact, on its own, does not necessarily give rise to reasonable

suspicion of criminal activity. See Strickler, 757 A.2d at 890. Viewed as a

whole, however, these facts substantiate the juvenile court’s holding that

reasonable suspicion of criminal activity was afoot. See Beaman, 880 A.2d

at 582; see also In re J.E., 937 A.2d at 425 (holding appellate court bound

by trial court’s finding of facts supported by record and conducting de novo

review of legal conclusions drawn therefrom).

       Because the uncontradicted record supports the factual determinations

of the juvenile court and we discern no error of law, we affirm the

dispositional order.   See In re J.E., 937 A.2d at 425; Mendenhall, 715

A.2d at 1119 n.1. Under these facts, the police had the requisite level of

reasonable suspicion to justify Appellant’s investigative detention pursuant

to Article I, Section 8 of the Pennsylvania Constitution and the Fourth

Amendment of the United States Constitution.          See Ayala, 791 A.2d at

1208; In re D.M., 781 A.2d at 1164.                Accordingly, we affirm the

dispositional order.


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     Dispositional order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/3/2014




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