J-S22003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RASHAAD FITZGERALD

                            Appellant                No. 1778 WDA 2013


            Appeal from the Judgment of Sentence October 3, 2013
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0008834-2011


BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, J.                                  FILED MAY 27, 2015

        Appellant, Rashaad Fitzgerald, appeals from the judgment of sentence

entered on October 3, 2013, in the Court of Common Pleas of Allegheny

County. We affirm.

        Officer Lance Hoyson of the Pittsburgh Police Department was on

routine patrol in a marked police wagon when he received a 911 call for

“some type of domestic dispute.” N.T., Suppression Hearing, 9/4/13, at 5.

Officer Hoyson explained that “[t]he caller indicated that a male, a young

black male, wearing blue jeans and no shirt, it sounded as if it were a

robbery. They said he pulled a gun on a female then took her purse.” Id.

The caller also stated that the assailant was “dragging her down the street.”
____________________________________________



    Retired Senior Judge assigned to the Superior Court.
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Id. Officer Hoyson and his partner arrived at the scene within 30 seconds of

the call. See id.

      Upon arriving at the scene, Officer Hoyson observed a young black

male, later identified as Fitzgerald, wearing blue jeans and a shirt and saw a

young female in conversation with the male. See id., at 6. The male held a

purse. See id. Officer Hoyson noted that “[w]hen they observed us, their

interaction, their demeanor changed, and their interaction became very

awkward. They slowly stepped away from each other.” Id. Officer Hoyson

believed that these were the individuals from the 911 call.    See id., at 7.

He then “pointed at the male, and … ordered him to drop the purse.” Id.

The suspect “immediately turned and began running[.]” Id.

      Officer Hoyson chased Fitzgerald on foot. See id. During the chase,

Officer Hoyson observed him “remove[ ] a black and silver firearm from the

purse[.]” Id., at 8-9. Fitzgerald continued running and Officer Hoyson lost

sight of him.   See id., at 9.    Officer Hoyson continued the pursuit and

shortly thereafter watched as another officer took Fitzgerald into custody.

Police, using a canine, later recovered the purse with a firearm “sticking out

of [the] purse.” Id., at 21.

      Prior to trial, Fitzgerald moved to suppress evidence of the handgun,

arguing that the police lacked reasonable suspicion to stop him.      After a

hearing, the suppression court found that the police possessed reasonable

suspicion for the stop. Thus, it denied the suppression motion.


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      After a waiver trial on stipulated facts, the trial court found Fitzgerald

guilty of persons not to possess firearms, 18 Pa.C.S.A. § 6105, and firearms

not to be carried without a license, 18 Pa.C.S.A. § 6106. After sentencing,

this timely appeal followed.

      We begin with Fitzgerald’s suppression issue.       Fitzgerald maintains

that the police’s interaction with him was unlawful and that, as such, the

suppression court erred in failing to suppress the firearm. We disagree.

      Our standard of review when an appellant appeals the denial of a

suppression motion is as follows.

      [W]e are 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 the
      evidence of the witnesses offered by the prosecution, as verdict
      winner, and only so much of the defense evidence that remains
      uncontradicted when read in the context of the record as a
      whole. We are bound by facts supported by the record and may
      reverse only if the legal conclusions reached by the court below
      were erroneous.

Commonwealth v. McAliley, 919 A.2d 272, 275-276 (Pa. Super. 2007)

(citation omitted).

      The   record    supports   the   suppression   court’s   factual   findings.

Accordingly, we turn to an examination of the suppression court’s legal

conclusions.   The court concluded that the stop was lawful as the police

possessed reasonable suspicion to conduct an investigative detention.

      Of the three types of police interactions with citizens, just one is

pertinent to the disposition of this case: the investigative detention,



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otherwise known as a Terry1 stop.              An investigative detention, or Terry

stop, “subjects a suspect to a stop and a period of detention, but does not

involve such coercive conditions as to constitute an arrest, requires a

reasonable suspicion that criminal activity is afoot.”         Commonwealth v.

Fuller, 940 A.2d 476, 479 (Pa. Super. 2007) (citing Terry). To determine

“whether an interaction rises to the level of an investigative detention, the

court must examine all the circumstances and determine whether police

action would have made a reasonable person believe he was not free to go

and was subject to the officer’s orders.” Id. (internal quotation marks and

citation omitted).

        “[T]o establish grounds for reasonable suspicion, the officer must

articulate specific observations which, in conjunction with reasonable

inferences derived from those observations, led him reasonably to conclude,

in light of his experience, that criminal activity was afoot and that the person

he stopped was involved in that activity.”           Commonwealth v. Reppert,

814 A.2d 1196, 1204 (Pa. Super. 2002) (en banc); see also Florida v.

Royer, 460 U.S. 491, 498 (1983) (“Terry created a limited exception to this

general rule: certain seizures are justifiable under the Fourth Amendment if

there is articulable suspicion that a person has committed or is about to

commit a crime.”).

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



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      “Therefore, the fundamental inquiry of a reviewing court must be 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.”       Reppert, 814 A.2d at 1204

(internal quotation marks and citation omitted; brackets in original). “[T]he

court must be guided by common sense concerns that give preference to the

safety of the police officer during an encounter with a suspect where

circumstances indicate that the suspect may have, or may be reaching for, a

weapon.” Commonwealth v. Stevenson, 894 A.2d 759, 772 (Pa. Super.

2006) (emphasis omitted).

      Here, the police received an anonymous tip from a 911 caller. When

      analyzing an anonymous tip, we must determine whether under
      the totality of the circumstances the informant’s tip established
      the necessary reasonable suspicion that criminal activity was
      afoot. [Both] quantity and quality of information are considered
      when assessing the totality of the circumstances. If information
      has a low degree of reliability, then more information is required
      to establish reasonable suspicion.

Commonwealth v. Ranson, 103 A.3d 73, 78 (Pa. Super. 2014) (internal

citations omitted; brackets in original).

      An examination of the totality of the circumstances reveals that the

police had reasonable suspicion to conduct an investigative detention. The

officers received a 911 call of an armed suspect assaulting a woman. The

police arrived at the location a mere 30 seconds after the call to find a male

and female fitting the description given by the caller. The only difference in


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the description was de minimis—the male the police observed was wearing a

shirt.    Importantly, however, the man was holding a woman’s purse.        Not

only that, but the demeanor between the two suddenly changed with the

arrival of the police. The police, having corroborated the major details of the

911 call, had ample authority to investigate the matter further.

         Once lawfully ordered to stop, Fitzgerald fled and discarded a firearm,

which the police officers recovered. In Commonwealth v. Matos, 543 Pa.

449, 672 A.2d 769 (1996), our Supreme Court held that “contraband

discarded by a person fleeing a police officer are the fruits of an illegal

‘seizure’ where the police officer possessed neither ‘probable cause’ to arrest

the individual nor reasonable suspicion to stop the individual and conduct a

Terry frisk.”     Id., at 770 (footnote added).    The pursuit and subsequent

stop in this case comports with the dictates of Matos as the police

possessed reasonable suspicion.        As such, the contraband discarded by

Fitzgerald was voluntarily abandoned.        Therefore, the suppression court

committed no error in denying the suppression motion.

         Fitzgerald next maintains that the evidence was insufficient to sustain

the convictions as it failed to establish his awareness that the purse

contained a firearm. Again, we disagree.

         “The standard we apply in reviewing the sufficiency of the evidence is

whether viewing all the evidence admitted at trial in the light most favorable

to the verdict winner, there is sufficient evidence to enable the fact-finder to


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find   every    element   of   the   crime   beyond   a   reasonable   doubt.”

Commonwealth v. O’Brien, 939 A.2d 912, 913 (Pa. Super. 2007) (citation

omitted).

       Officer Hoyson testified that he watched Fitzgerald pull the firearm out

of the purse and hold it in his hand while he ran.          At that point, he

possessed the firearm. The trial court credited Officer Hoyson’s testimony.

       In any event, Fitzgerald fled immediately after he ordered him to drop

the purse. “Flight 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) (citation and internal quotation marks omitted). The other proof from

which guilt may be inferred in this case is the 911 call that indicated that

Fitzgerald was armed, the sudden change in his demeanor when the police

arrived, and the fact that he was holding a woman’s purse. It is eminently

reasonable to infer that Fitzgerald secreted the firearm in the purse at the

culmination of the robbery.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2015

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