J-S19013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JOAN VAZQUEZ                               :
                                               :
                      Appellant                :   No. 3618 EDA 2017
                                               :

           Appeal from the Judgment of Sentence September 3, 2015
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0001754-2011

BEFORE:      SHOGAN, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY SHOGAN, J.:                             FILED OCTOBER 05, 2018

       Mr. Joan Vazquez (“Appellant”) appeals from the judgment of sentence

entered on September 3, 2015, following his conviction by jury of Possession

of a Firearm without a License, Possession of a Firearm on a Public Street in

Philadelphia, and Possessing an Instrument of Crime.1 After careful review,

we affirm.

       The trial court set forth the following factual history, which is supported

by our review of the record:

             On January 22, 2011, at about 6:30 p.m., Philadelphia
       Highway     Patrolman     Joseph   Rapone     and    his  partner,
       Officer Postowski, responded to the area of “A” and Westmoreland
       Streets in Philadelphia in response to a radio call. Upon arrival,
       Officer Rapone saw Appellant and other males running from
       police. Officer Rapone testified that the group all appeared to be
       attempting to elude pursuing officers.       Appellant looked in
       Officer Rapone’s direction and immediately threw his hands up in
____________________________________________


1   18 Pa.C.S. §§ 6106, 6108, and 907, respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      the air. Officer Rapone drew his weapon and patted down
      Appellant for his safety. During the pat-down, Officer Rapone felt
      a hard object that he immediately recognized as a firearm as well
      [as a] second hard object, which prompted him to order Appellant
      to the ground.

            Upon being ordered to lie down, Appellant spun around and
      fled down Westmoreland Street to “A” Street and then onto Willard
      Street. While fleeing, Appellant was tugging on his waistband
      area. He eventually turned onto Kip Street, discarding a handgun
      before running onto the porch of a residence where he then
      discarded a gun magazine loaded with live rounds.

            Officer Rapone proceeded to the porch and placed Appellant
      under arrest. A search incident to arrest revealed Appellant was
      wearing a bulletproof vest which he said he was wearing because
      the area was dangerous and people were out to get him.
      Officer Rapone recovered the gun, a loaded forty-five caliber
      semi-automatic handgun, and the magazine. These items along
      with the bulletproof vest were placed on property receipts.
      Appellant did not have a valid license to possess a firearm.

           An examination of the firearm revealed that it was operable.
      There were a total of twenty-one live rounds, sixteen of which
      were full metal jacket rounds and five hollow points, all of which
      were capable of being fired in the firearm Appellant discarded.

Trial Court Opinion, 7/21/16, at 2–3 (citations omitted).

      Prior to trial, Appellant moved to suppress physical evidence, and the

court heard arguments on that motion on August 16, 2012. On September 18,

2012, the court denied Appellant’s motion and set forth the following findings

of fact:

            [Number 1.] On January 22nd, 2011, police officers received
      multiple calls that persons with guns wearing leather jackets and
      blue jeans were in a high crime area on or about Westmoreland
      and 8th Streets in the City and County of Philadelphia. These
      anonymous tips included information that the males were involved
      in shooting an 8-year-old that day. That’s one.



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           Number 2. The information was revealed to the officer over
     his radio.

           Number     3.   Police  Officers  Rapone     and    also
     [Officer Postowski] were on duty in a marked patrol car on or
     about 8th and Westmoreland Streets at approximately 6:28 p.m.

           Number 4. Approximately 30 seconds after receipt of one of
     those     flash  information    calls,   Officer  Rapone    and
     Officer [Postowski] saw [Appellant] in between parked cars.

            Number 5. [Officer Postowski] watched two other police
     officers in pursuit of another male running eastbound on
     Westmoreland Street.

            Number 6. [Appellant] matched the description of the
     individual involved in the shooting earlier that day.

           Number    7.   From    approximately    25    feet   away,
     Officer Rapone saw [Appellant] dipping and diving, end of quote,
     and trying to hide in between cars on Westmoreland Street to
     evade being seen by the other officers, so the officer described.
     [Appellant] was sunk down and then raised his shoulders in an
     attempt to hide, then looked at the officers, according to the
     testimony.

            Number 8. Suspicion of [Appellant] -- suspicion of
     [Appellant] based on his conduct, in combination with [Appellant]
     fitting the radio call, Officer Rapone approached [Appellant] with
     his gun drawn.

           Number 9. As soon as [Appellant] saw Officer Rapone turn,
     he put his hands up and said, “It’s not me,” end quote.
     Information for his safety (sic) based on the radio call that persons
     with a gun had been involved in a shooting earlier that day, were
     in the area.

           Number [10]. The officer felt what he believed to be a gun
     in [Appellant]’s pocket and another metal object.




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          Number [11]. Officer Rapone instructed [Appellant] to get
     down on the ground. Instead, [Appellant] fled.

          Number [12]. Officer Rapone pursued [Appellant] for 30
     seconds and then lost sight of [Appellant].

          Number [13]. During the foot chase, Officer Rapone
     observed [Appellant] discard a firearm on Willow Street.

         Number [14]. Officer Rapone also saw [Appellant] throw a
     magazine with ten .45 caliber bullets to the ground.

          Number [15]. Eventually [Appellant] stopped running
     because other officers were in the area. Officer Rapone arrested
     [Appellant] and found him to be wearing a bulletproof vest.

            Number [16]. For all the reasons stated, I deny the motion
     to suppress because under the totality of the circumstances, the
     officer had reasonable suspicion and probable cause.
     Officer Rapone had probable suspicion [sic] to approach
     [Appellant] and to conduct a patdown for his own safety. The
     radio description was of males in leather jackets and blue jeans.
     [Appellant] still fit the description and, furthermore, [Appellant]
     acted suspiciously by trying to hide from other police officers in
     between cars. Moreover, after Officer Rapone felt a gun and
     another metal object in [Appellant]’s pants during the patdown,
     [Appellant] was told to go to the ground, but he ran instead.
     Therefore, Officer Rapone had probable cause. . . .

Notes of Testimony (“N.T.”) (Findings of Fact), 9/18/12, at 4–6.
     Following his trial and conviction on May 21, 2015, the trial court

sentenced Appellant to incarceration for a term of three to seven years on the

possession-without-a-license conviction, a consecutive term of incarceration

for two to five years on the possession-of-a-firearm-on-a-public-street

conviction, and five years of probation on the possessing-an-instrument-of-

crime conviction. N.T. (Sentencing), 9/3/15, at 31. Appellant filed a timely

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post sentence motion, which the trial court denied after counsel for Appellant

repeatedly failed to appear.       Post Sentence Motion Order, 10/21/15.

Ultimately, Appellant’s right to appeal was reinstated nunc pro tunc. The trial

court ordered Appellant to file a Pa.R.A.P. 1925(b) Concise Statement of

Errors Complained of on Appeal. Order, 10/7/17. Appellant and the trial court

complied with Pa.R.A.P. 1925. Appellant presents a single question for our

review:

      Whether the suppression hearing court erred in its conclusion of
      law that the arresting officer lawfully subjected Appellant to a stop
      and frisk based on a reasonable suspicion where, as found by the
      court, the officer first approached and detained Appellant at
      gunpoint before subjecting him to a “pat down” – and thus
      effectuated an arrest of Appellant without probable cause?

Appellant’s Brief at 2.

      In support of his appeal, Appellant essentially makes two arguments.

First, Appellant contends that the suppression court erred when it found that

Officer Rapone had reasonable suspicion to detain Appellant. Appellant’s Brief

at 15–18. Second, Appellant argues that if reasonable suspicion did exist, the

suppression court erred because Officer Rapone did not engage in a stop and

frisk, but rather, “a full-blown arrest” when he approached Appellant with his

weapon drawn. Id. at 18.

            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.

           We may consider only the evidence of the prosecution and
      so much of the evidence for the defense as remains
      uncontradicted when read in the context of the record as a whole.

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      Where the record supports the findings of the suppression court,
      we are bound by those facts and may reverse only if the court
      erred in reaching its legal conclusions based upon the facts.
      Commonwealth v. Williams, 2008 PA Super 6, 941 A.2d 14,
      26–27 (Pa. Super. 2008) (en banc) (citations, quotations, and
      quotation marks omitted).

            Moreover, it is within the lower court’s province to pass on
      the credibility of witnesses and determine the weight to be given
      to their testimony. See Commonwealth v. Clemens, 2013 PA
      Super 85, 66 A.3d 373, 378 (Pa. Super. 2013).

Commonwealth v. Williams, 176 A.3d 298, 315 (Pa. Super. 2018).

      Appellant   relies   upon      Florida   v. J.L.,   529   U.S.   266   (2000),

Commonwealth v. Jackson, 698 A.2d 571 (Pa. 1997), Commonwealth v.

Hawkins, 692 A.2d 1068 (Pa. 1997), and Commonwealth v. Kue, 692 A.2d

1076 (Pa. 1997) in support of his argument that the suppression court erred

when it found the arresting officer had reasonable suspicion to stop Appellant.

Appellant’s Brief at 15–18. Each of these cases is readily distinguishable from

the instant case. Indeed, in each case upon which Appellant relies, the court

specifically noted that the defendant was not acting suspiciously and the stop

was based entirely on an anonymous tip or radio report. See J.L., 529 U.S.

at 266 (“Apart from the tip, the officers had no reason to suspect any of the

three of illegal conduct”); Jackson, 698 A.2d at 572 (“There is no contention

that the appellant was acting suspiciously”); Hawkins, 692 A.2d at 1071

(“Here, no facts were offered which supported the suspicion created by the

anonymous call.”); Kue, 692 A.2d at 1077 (“[The arresting officer] saw no

indication of criminal activity”).




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       In the instant case, the suppression court expressly found that Appellant

matched the description of an individual involved in the shooting of a child

earlier that day and that Appellant was acting suspiciously by “dipping and

diving” and trying to evade police by hiding between cars. N.T. (Findings of

Fact), 9/18/12, at 4–6. Thus, Appellant’s reliance on those cases is misplaced,

and Appellant has failed to show that the suppression court erred when it

denied his motion to suppress for lack of reasonable suspicion.

       Appellant also argues that even if this Court were to find that Hawkins,

Jackson, and Kue do not apply, the suppression court erred because

Officer Rapone did not stop and frisk Appellant, but rather effectuated a “full-

blown arrest” because Officer Rapone had drawn his weapon and pointed it at

Appellant.   Appellant’s Brief at 18.   Appellant’s Brief at 18.   Contrary to

Appellant’s assertion, the fact that Officer Rapone drew a gun on Appellant

does not turn an investigatory stop into an arrest.        Commonwealth v.

Johnson, 849 A.2d 1236, 1237–1239(Pa. Super. 2004) (finding no arrest

where multiple police officers approached defendant in his car with guns

drawn); Commonwealth v. Dennis, 433 A.2d 79, 80 n.5 (Pa. Super. 1981)

(“Likewise, it cannot be said that whenever police draw weapons the resulting

seizure must be deemed an arrest rather than a stop…”) (quoting 3 Wayne F.

LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 9.2, at

30);   Commonwealth v. Ferraro, 352 A.2d 548, 551 (Pa. Super. 1975)

(“Moreover, we do not believe that simply because [the officer] withdrew his




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service revolver while directing [the] appellant to alight from the Lincoln

turned this investigatory stop into an arrest.”).

      For all of the reasons set forth above, judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/18




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