J-S59008-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

JAMARIO RAKEEM MARTIN,

                           Appellant                 No. 1616 WDA 2014


          Appeal from the Judgment of Sentence September 3, 2014
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0003382-2013


BEFORE: BOWES, DONOHUE, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED FEBRUARY 16, 2016

       Jamario Rakeem Martin appeals from the judgment of sentence of five

to ten years incarceration to be followed by two years probation after a jury

found him guilty of carrying a firearm without a license, person not to

possess a firearm, resisting arrest, flight to avoid apprehension, and

disorderly conduct.    Counsel has filed a second petition to withdraw from

representation and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), after

we remanded for either a compliant Anders brief or a merits brief

addressing the issue of the lawfulness of Appellant’s arrest. We now affirm

and grant counsel’s petition to withdraw.




*
    Former Justice specially assigned to the Superior Court.
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      In our prior memorandum, we delineated the salient facts and

procedural history as follows.

            On August 26, 2013, at approximately 11:15 p.m., officers
      of the Erie Police Department were looking for a wanted person,
      Ronnie Washington, in the high-crime area of 330 East 3rd
      Street, City of Erie, Pennsylvania. Officers had a description of
      Washington as a black male, wearing a white t-shirt and grey
      sweatpants.

             While officers were standing on the sidewalk at 326 East
       rd
      3 , they observed an individual wearing a white t-shirt in front
      of 340 East 3rd. After the individual saw the police, he ran
      behind the house. The officers followed and observed three
      individuals, including [Appellant,] in the well-lighted backyard.
      [Appellant], who wore a red t-shirt and tan pants, began
      reaching into his waistband several times.            Based upon
      [Appellant’s] evasive behavior and high crime area, along with
      fearing for their safety, police instructed him to stop and show
      his hands. [Appellant], appearing “panicky”, refused to comply,
      positioned himself behind the other two compliant individuals,
      and continued to reach into his waistband. Police continued to
      instruct him to show his hands. [Appellant] then fled, discarded
      an item from his pants (later identified as a firearm), and
      continued to run until he was apprehended and placed into
      custody. [Appellant] struggled with police during his arrest.
      Police recovered the firearm in front of 334 East 3rd Street.

            After his arrest, police became aware that [Appellant] had
      a prior firearms conviction and did not have a valid license to
      carry a firearm.

      Trial Court Opinion, 4/30/14, at 1-2.

            Appellant filed an omnibus pre-trial motion, which included
      both a writ of habeas corpus and a suppression motion.
      Appellant contested both the Commonwealth’s prima facie
      evidence and whether he was lawfully stopped and arrested.
      With respect to the latter contention, Appellant averred that he
      was illegally arrested when police approached him in the
      backyard and, drawing their weapons, directed him to put his
      hands in the air. He submitted that police lacked probable cause

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     to detain him and that his subsequent discarding of his weapon
     while fleeing from police should have been suppressed.

           The trial court ruled that the initial encounter with
     Appellant was a mere encounter.        It continued that once
     Appellant acted suspiciously in a high-crime area at night by
     reaching into his waistband, police had reasonable suspicion to
     conduct an investigatory detention. Once Appellant fled and
     threw his weapon away, police had probable cause to arrest
     Appellant.   The court also held that the Commonwealth’s
     evidence was sufficient to establish a prima facie case of the
     charges alleged.

            Appellant proceeded to a jury trial.       The jury found
     Appellant guilty of the aforementioned offenses. Appellant had
     prior adult convictions and juvenile adjudications that precluded
     him from possessing a firearm. The court sentenced Appellant
     on September 3, 2014, to five to ten years imprisonment for the
     person not to possess a firearm offense and a consecutive period
     of two years probation for the resisting arrest count. The court
     imposed no further sentence for the remaining charges. This
     timely appeal ensued. The sentencing court directed Appellant
     to file and serve a Pa.R.A.P. 1925(b) concise statement of errors
     complained of on appeal. Counsel complied, and the sentencing
     court indicated that the pre-trial opinion authored by the trial
     judge adequately addressed Appellant’s issues. Similarly, the
     trial judge issued a Rule 1925(a) order setting forth that the
     reasons for the denial of Appellant’s suppression and habeas
     claims could be found in its April 30, 2014 opinion.

Commonwealth v. Martin, 1616 WDA 2014 (unpublished memorandum)

(filed November 9, 2015) (footnotes omitted).

     Appellant’s counsel filed a petition to withdraw and an accompanying

Anders brief that raised two separate questions: a suppression claim and an

issue relative to the prima facie case developed at Appellant’s preliminary

hearing. However, counsel only addressed the prima facie case position. We

agreed that Appellant’s position that the Commonwealth failed to establish a

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prima facie case against him was frivolous, but remanded for the preparation

of either a merits brief or a compliant Anders brief relative to the

suppression issue.

       Counsel again contends that there are no non-frivolous issues to be

reviewed and sets forth two separate issues:

      A. Whether the Appellant was subject to an illegal arrest in
         violation of his constitutional rights pursuant to the Fourth
         Amendment.

      B. Whether the Appellant’s conviction, based on his arrest and
         subsequently discovered evidence was in error due to the fact
         that the police lacked probable cause to arrest the Appellant
         and the Commonwealth ultimately failed to establish a prima
         facie case.

Anders brief at 3.

      Again, we reiterate that we do not consider the merits of claims raised

in an Anders brief without first reviewing a request to withdraw.

Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc).

Counsel must meet three procedural requirements in order to withdraw: 1)

petition for leave to withdraw and state that, after making a conscientious

examination of the record, counsel has concluded that the appeal is

frivolous; 2) provide a copy of the Anders brief to the defendant; and 3)

inform the defendant that he has the right to retain private counsel or raise,

pro se, additional arguments that the defendant deems worthy of the court’s

attention. Id.




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        Counsel’s second petition to withdraw provides that she made a

conscientious review of the record and concluded that the appeal is wholly

frivolous.     Counsel advised Appellant for a second time that she was

withdrawing and furnished him with copies of both the petition to withdraw

and Anders brief.       Further, counsel instructed Appellant that he has the

right to retain new counsel and reiterated that he can proceed pro se and

raise any issues he believes this Court should consider.                 Thus, we find

counsel has adequately complied with the procedural requirements of

Anders.

        We    now   consider   whether    counsel’s     Anders    brief        meets   the

substantive elements of Santiago. Pursuant to Santiago, an Anders brief

must:

        (1) provide a summary of the procedural history and facts, with
        citations to the record; (2) refer to anything in the record that
        counsel believes arguably supports the appeal; (3) set forth
        counsel's conclusion that the appeal is frivolous; and (4) state
        counsel's reasons for concluding that the appeal is frivolous.
        Counsel should articulate the relevant facts of record, controlling
        case law, and/or statutes on point that have led to the
        conclusion that the appeal is frivolous.

Santiago, supra at 361.

        Counsel included a factual background of the case and cited to the

record.      She concludes that Appellant’s appeal is frivolous and sets forth

case law that holds that his issues would not entitle him to relief.                   We

previously     addressed   Appellant’s    second      claim,   finding    it    frivolous.



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Therefore, we address Appellant’s suppression issue. Appellant claimed that

he was illegally arrested without probable cause.       Counsel concludes that

police did not initially arrest Appellant but were involved in an investigative

detention.   Appellant then fled and discarded his gun.     In counsel’s view,

Appellant was not subjected to an illegal arrest.

      In reviewing “a court order denying a suppression motion, we consider

the factual findings of the suppression court and whether they are supported

by record evidence.”    Commonwealth v. Coleman, 2015 PA Super 258,

*7. “We consider only the evidence of the Commonwealth’s witnesses and

testimony of the defendant’s witnesses that are not contradicted by the

suppression record.” Id. We are bound by the suppression court’s factual

findings so long as they are supported by the record. Id. This Court will

only reverse where the legal conclusions based on the court’s factual

findings are erroneous. Id.          Thus, “we are not bound by the legal

determinations of the suppression court.” Id.

      We begin by noting that, in evaluating interaction between law

enforcement and other citizens, Pennsylvania courts look to whether the

interaction is a mere encounter, an investigatory detention, or a custodial

detention, i.e., an arrest.   A mere encounter does not require police to have

any level of suspicion        that   the    person is engaged in wrongdoing.

Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.Super. 2012). At the

same time, such an encounter does not carry any official compulsion for the

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party to stop or respond. Id. An investigative detention, on the other hand,

subjects an individual to a stop and a short period of detention.               Id.

However, to conduct an investigative detention, police must have reasonable

suspicion of criminal activity. Id.

         “[T]his standard is met ‘if the police officer's reasonable and articulable

belief that criminal activity was afoot is linked with his observation of

suspicious or irregular behavior on behalf of the particular defendant

stopped.’”       Commonwealth v. Kearney, 601 A.2d 346, 348 (Pa.Super.

1992). It is well-settled that “[m]ere presence near a high crime area or in

the vicinity of a recently reported crime, is not enough to warrant a Terry

stop.”     Id.    Rather, police “must observe irregular behavior before he

initiates a stop and, concurrently to his observation, he must hold a belief

that criminal activity is afoot.” Id.

         We consider what level of interaction occurred under a totality of the

circumstances test.      Commonwealth v. Williams, 73 A.3d 609, 615-616

(Pa.Super. 2013).        This standard is an objective one, and looks to the

reasonable belief of the citizen and not the subjective view of law

enforcement. Commonwealth v. Lyles, 54 A.3d 76, 83 (Pa.Super. 2012).

“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 79-80. Accordingly, we look to




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whether “in view of all surrounding circumstances, a reasonable person

would have believed that he was free to leave.” Id. at 79.

      It is also well-settled that “even a combination of innocent facts, when

taken together, may warrant further investigation[.]”      Commonwealth v.

Kemp, 961 A.2d 1247, 1255 (Pa.Super. 2008) (en banc); see also

Commonwealth v. Cook, 735 A.2d 673, 676 (Pa. 1999).             As this Court

cogently stated in Commonwealth v. Riley, 715 A.2d 1131, 1135

(Pa.Super. 1998), “Merely because a suspect's activity may be consistent

with innocent behavior does not alone make detention and limited

investigation illegal. . . .   Rather, we view the circumstances through the

eyes of a trained officer, not an ordinary citizen.”

      Instantly, police were given a description of an individual named

Ronnie Washington as a black male in grey sweatpants and a white t-shirt.

While looking for this individual in a high crime area after 11:00 p.m.,

officers saw a person they believed matched that description.            That

individual ran behind a house after seeing police. The officer followed him

and encountered Appellant and several other individuals.

      Appellant was wearing a red shirt and tan pants. Upon seeing police,

however, he reached into his waistband on multiple occasions.       Based on

these facts, police, with their weapons drawn, demanded that he stop and

show his hands. Appellant did not comply, positioned himself behind two of

the other individuals, and continued to reach into his waistband.       Police

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again demanded that he show his hands.             Instead, Appellant fled and

discarded his weapon.

      The suppression court found that when police first approached

Appellant it was a mere encounter.       However, it ruled that this encounter

eventually ripened into an investigative detention after they saw him reach

into his waistband several times in a high crime area late at night. Police at

that point instructed Appellant to raise his hands. Since Appellant refused

and continued to reach into his waistband before fleeing and discarding the

weapon, the court found that police had probable cause to arrest Appellant.

      We agree.    In a high crime area, late at night, Appellant’s repeated

reaching into his waistband after seeing police justified a brief investigative

detention.    Appellant’s refusal to desist from reaching into his waistband

warranted police in demanding that he raise his hands and the drawing of

their weapons. Commonwealth v. Coleman, 19 A.3d 1111, 1116-1117

(Pa. Super. 2011) (“the fact that Officer Fisher told Appellant to take his

hands out of his pockets did not turn the encounter into a seizure.          This

Court has stated that ‘if during a mere encounter, an individual on his own

accord, puts his hands in his pocket, thereby creating a potential danger to

the safety of a police officer, the officer may justifiably reach for his side arm

and order the individual to stop and take his hand out of his pocket.’”).

Appellant’s subsequent flight was not unlawfully provoked and he abandoned

his weapon.     The suppression court did not err.       We add that we have

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reviewed the certified record and find no other preserved issues or non-

waivable claims that might be advanced that are meritorious.1 Accordingly,

we agree that Appellant’s appeal is wholly frivolous.

       Petition of Emily M. Merksi, Esq., to withdraw is granted. Judgment of

sentence affirmed.

       Judge Donohue did not participate in this decision.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/16/2016




____________________________________________


1
   Appellant did object to the dismissal of a juror during trial, who it was
determined had lied regarding various interactions with police. Appellant did
not raise this issue in his Rule 1925(b) statement. In addition, we are
cognizant that Appellant agreed to proceed with eleven jurors.



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