J. A10031/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                       Appellant       :
                                       :
                  v.                   :         No. 1225 EDA 2016
                                       :
NAIM NEWSOME                           :


                  Appeal from the Order, March 21, 2016,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0010217-2015


BEFORE: DUBOW, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED AUGUST 03, 2017

     The Commonwealth appeals1 from the March 21, 2016 order granting

the omnibus pre-trial suppression motion filed by appellee, Naim Newsome.

After careful review, we reverse the suppression order and remand for

proceedings consistent with this memorandum.

     The relevant facts and procedural history of this case, as gleaned from

the certified record, are as follows. On the evening of September 22, 2015,

Lieutenant Robert Brockenbrough, a 23-year veteran of the Philadelphia

Police Department, responded to an anonymous radio call that a group of

five to seven males was gathered outside the 2000 block of Croskey Street



1
  The Commonwealth certified, pursuant to Pa.R.A.P. 311(d), that the trial
court’s March 21, 2016 order will terminate or substantially handicap the
prosecution.
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in Philadelphia and passing around a gun. (Notes of testimony, 3/17/16 at

4-6, 10.)2      When Lieutenant Brockenbrough arrived at the scene, he

observed a group of men huddled together and two of the individuals leave

the group and walk to the other side of the street. (Id. at 6-7.) One of the

men, who was later identified as appellee, began to walk southbound down

Croskey Street. (Id.) Lieutenant Brockenbrough exited his marked police

vehicle and asked appellee “to come here” so he could talk to him, but

appellee refused and continued walking down Croskey Street.       (Id. at 8-9,

18.) At that point, Lieutenant Brockenbrough was in the process of radioing

officers in an approaching police wagon to stop appellee, when he observed

appellee reach into his waistband, remove an object that looked like a

handgun, and place it in a nearby flowerpot.               (Id. at 9-10, 20.)

Lieutenant Brockenbrough testified that he was approximately 8 to 10 feet

away from appellee at this point.    (Id. at 10.)   One of the officers in the

police wagon, Officer Muhammad, subsequently recovered the firearm. (Id.

at 9.)

         Lieutenant Brockenbrough testified that he approached appellee and

the other individuals on the evening in question, in part, because he believed

that they were in violation of Philadelphia’s 10:30 p.m. curfew. (Id. at 9,

11,      18.)      Lieutenant   Brockenbrough       also    acknowledged   on



2
 The record reflects that the transcript of the March 17, 2016 suppression
hearing is incorrectly dated March 21, 2016.


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cross-examination that he did not observe a bulge or weapon on appellee’s

person and did not see him make any suspicious movements as he was

following him down the street. (Id. at 17-19.)

        Appellee was subsequently arrested and charged with unlawful

possession of a firearm, firearms not to be carried without a license, and

carrying a firearm on public streets or public property in Philadelphia. 3 On

October 30, 2015, appellee filed an omnibus pre-trial motion to suppress

the firearm, contending that Lieutenant Brockenbrough lacked reasonable

suspicion to stop or question him and that this stop constituted an unlawful

seizure.    (See “Omnibus Pre-Trial Motion,” 10/30/15 at 2-3, ¶ II.)               On

March 17,     2016,   the   trial   court    conducted   a   hearing   on   appellee’s

suppression motion. Following the hearing, the trial court granted appellee’s

suppression motion on March 21, 2016.             The record reflects that the trial

court did not make any findings of fact or author an opinion in support of its

March 21, 2016 order. However, the trial court did note that “there wasn’t a

credibility issue[]” with respect to testimony of Lieutenant Brockenbrough,

who was the only witness who testified at the suppression hearing. (See

notes of testimony, 3/21/16 at 3.) This timely appeal followed.4



3
    18 Pa.C.S.A. §§ 6105, 6106, and 6108, respectively.
4
   Although not ordered to do so, the Commonwealth filed a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b), that same day. The trial court did not file a Rule 1925(a)
opinion, and Judge Brown is no longer on the bench.


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      The Commonwealth raises the following issue for our review:

            Where a police officer investigating a report of a
            group of men with a gun asked [appellee] to stop to
            talk, and [appellee] declined to do so, but discarded
            a gun as he walked away, did the [trial] court err in
            concluding that the officer had “seized” [appellee]
            before he produced the gun?

Commonwealth’s brief at 4.

      Our standard of review in addressing a trial court’s order granting a

suppression motion is well settled.

            When     the   Commonwealth       appeals   from     a
            suppression order, we follow a clearly defined
            standard of review and consider only the evidence
            from the defendant’s witnesses together with the
            evidence of the prosecution that, when read in the
            context of the entire record, remains uncontradicted.
            The suppression court’s findings of fact bind an
            appellate court if the record supports those findings.
            The suppression court’s conclusions of law, however,
            are not binding on an appellate court, whose duty is
            to determine if the suppression court properly
            applied the law to the facts.

            Our standard of review is restricted to establishing
            whether the record supports the suppression court’s
            factual findings; however, we maintain de novo
            review    over   the  suppression    court’s    legal
            conclusions.

Commonwealth v. Korn, 139 A.3d 249, 253-254 (Pa.Super. 2016)

(internal citations and quotation marks omitted), appeal denied, 159 A.3d

933 (Pa. 2016).

      “Both the Fourth Amendment of the United States Constitution and

Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals



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freedom from unreasonable searches and seizures.”           Commonwealth v.

Bostick, 958 A.2d 543, 550 (Pa.Super. 2008), appeal denied, 987 A.2d

158 (Pa. 2009) (citation and internal quotation marks omitted). “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 to the extent those

interactions compromise individual liberty.”     Commonwealth v. Reppert,

814 A.2d 1196, 1201 (Pa.Super. 2002) (citation omitted).           Courts in this

Commonwealth have recognized three types of interactions between

members of the public and the police: a mere encounter, an investigative

detention, and a custodial detention.

            A mere encounter between police and a citizen need
            not be supported by any level of suspicion, and
            carr[ies] no official compulsion on the part of the
            citizen to stop or to respond. An investigatory stop,
            which subjects a suspect to a stop and a period of
            detention . . . requires a reasonable suspicion that
            criminal activity is afoot. A custodial search is an
            arrest and must be supported by probable cause.

Commonwealth v. Kendall, 976 A.2d 503, 506 n.2 (Pa.Super. 2009)

(citations and internal quotation marks omitted).

      “Reasonable suspicion is a less stringent standard than probable cause

necessary   to   effectuate   a   warrantless   arrest,   and   depends   on   the

information possessed by police and its degree of reliability in the totality of

the circumstances.”    Commonwealth v. Brown, 996 A.2d 473, 477 (Pa.

2010).   An appellate court must give weight “to the specific, reasonable


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inferences drawn from the facts in light of the officer’s experience and

acknowledge that innocent facts, when considered collectively, may permit

the investigative detention.” Id. (citation omitted). We are mindful of the

fact that,

             the totality of the circumstances test does not limit
             our inquiry to an examination of only those facts that
             clearly indicate criminal conduct. Rather, even a
             combination of innocent facts, when taken together,
             may warrant further investigation by the police
             officer.

Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa.Super. 2006) (citations

and internal quotations omitted).

      In this matter, the Commonwealth argues that the trial court

improperly suppressed the firearm in question based on the erroneous

assumption that Lieutenant Brockenbrough “seized” appellee when he

approached him and asked him to stop and talk. (Commonwealth’s brief at

9.)   In support of this contention, the Commonwealth maintains that

“[b]ecause [Lieutenant Brockenbrough] did not brandish his weapon, use an

authoritative tone, or otherwise indicate [appellee] was not free to leave, his

mere use of the word ‘stop’ did not amount to a seizure.” (Id. at 5, 10-12.)

      Courts in this Commonwealth have long recognized that “in assessing

the lawfulness of citizen/police encounters, a central, threshold issue is

whether or not the citizen-subject has been seized.”      Commonwealth v.

Williams, 73 A.3d 609, 613 (Pa.Super. 2013) (citation and brackets

omitted), appeal denied, 87 A.3d 320 (Pa. 2014).


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            To guide the crucial inquiry as to whether or not a
            seizure has been effected, the United States
            Supreme Court has devised an objective test
            entailing a determination of whether, in view of all
            surrounding circumstances, a reasonable person
            would have believed that he was free to leave. 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.

Id. at 613-614 (citations omitted).

      The Pennsylvania Supreme Court has instructed this court to view “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.” Commonwealth v. Parker,            A.3d     , 2017 WL 1548932,

*4 (Pa.Super. May 1, 2017), citing Commonwealth v. Mendenhall, 715

A.2d 1117, 1119 (Pa. 1998).      This court has also set forth the following

non-exclusive list of factors:

            the 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.

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

2008) (en banc) (citation omitted).




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      Instantly, in granting appellee’s suppression motion, the trial court

evidently found that Lieutenant Brockenbrough’s interaction with appellee

constituted an unlawful “seizure,” or at minimum an unconstitutional

investigative detention. The trial court placed the following reasoning on the

record in support of its March 21, 2016 order:

             THE COURT: Well, I guess basically I find that
             [Lieutenant Brockenbrough] . . . did not have
             probable cause or reasonable suspicion to have
             stopped [appellee] when he stopped him based on
             an anonymous radio call that was made about five
             males passing around a gun.

Notes of testimony, 3/21/16 at 3. For the following reasons, we disagree.

      Our    review   of   the   record   in     this   matter   reveals   that

Lieutenant Brockenbrough’s initial interaction with appellee was a mere

encounter that developed into a lawful investigative detention only after he

observed appellee discard the firearm at issue. On the evening in question,

Lieutenant Brockenbrough responded to an anonymous radio call that

several individuals were passing around a firearm in an area in Philadelphia

known for shootings. (Notes of testimony, 3/17/16 at 5-6.) Upon arriving

at the scene, Lieutenant Brockenbrough exited his police vehicle and “asked”

appellee “to come here” so he could talk to him, but appellee refused and

continued walking down the street. (Id. at 8-9.) Lieutenant Brockenbrough

testified that he approached appellee to both investigate the radio call and

because he believed appellee to be in violation of Philadelphia’s curfew. (Id.

at 9, 11.)


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     Although Lieutenant Brockenbrough was in full uniform at the time of

this encounter and arrived to the scene in a marked police vehicle, he did

not engage the vehicle’s siren or lights. (Id. at 8.) Additionally, there was

no evidence suggesting Lieutenant Brockenbrough brandished his weapon or

engaged in an overwhelming show of force. Lieutenant Brockenbrough did

not tell appellee that he was not free to leave, nor was there any evidence

presented that he positioned himself in a manner that obstructed appellee’s

ability to continue walking down Croskey Street.       (Id. at 9.)     Although

Lieutenant Brockenbrough acknowledged on cross-examination that he

“asked [appellee] to stop” two or three times, there was no evidence that

Lieutenant Brockenbrough threatened any consequences for non-compliance

or used an authoritative tone.     (Id. at 19.)    Moreover, appellee felt no

compulsion to stop and told Lieutenant Brockenbrough as much as he

continued to walk away.        (Id. at 9, 18-19.)          Only thereafter did

Lieutenant Brockenbrough    make     an   arrest   after   observing   appellee

voluntarily discard a firearm as he continued walking down the street. (Id.

at 9-10.)

     Based on the foregoing, the totality of the circumstances presented in

this case fails to support a conclusion that appellee had been seized during

his initial encounter with Lieutenant Brockenbrough.        Although it is well

settled in this Commonwealth that an anonymous call by itself does not

provide reasonable suspicion or probable cause sufficient to support a



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seizure, see, e.g., Commonwealth v. Ranson, 103 A.3d 73, 78 (Pa.Super.

2014), appeal denied, 117 A.3d 296 (Pa. 2015), it would amount to a

dereliction of a police officer’s duties if he failed to investigate a report of

individuals passing around a firearm in an area known for shootings.

Clearly, Lieutenant Brockenbrough’s request of appellee that he “come here”

so he could talk to him was not a substantial impairment on appellee’s

liberty of movement, particularly considering Lieutenant Brockenbrough’s

legitimate concerns for the safety of the community and his sound belief that

appellee may have been in violation of Philadelphia’s curfew.

      Accordingly, we conclude that the trial court erred in granting

appellee’s omnibus pre-trial motion to suppress the firearm in question.

      Order reversed.     Case remanded for further proceedings consistent

with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/3/2017




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