J-S04039-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                 Appellee,                :
                                          :
                   v.                     :
                                          :
DAVON TERRELL WYATT,                      :
                                          :
                 Appellant                :      No. 545 WDA 2015


           Appeal from the Judgment of Sentence March 5, 2015,
            in the Court of Common Pleas of Allegheny County,
           Criminal Division, at No(s): CP-02-CR-0016452-2014.


COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                 Appellee,                :
                                          :
                   v.                     :
                                          :
DAVON TERRELL WYATT,                      :
                                          :
                 Appellant                :      No. 831 WDA 2015


           Appeal from the Judgment of Sentence March 5, 2015,
            in the Court of Common Pleas of Allegheny County,
           Criminal Division, at No(s): CP-02-CR-0007362-2014.

BEFORE: BOWES, OLSON, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                       FILED MAY 04, 2016

     Davon Terrell Wyatt (Appellant) appeals from the judgments of

sentence imposed following his convictions for persons not to possess a



* Senior Judge assigned to the Superior Court.
J-S04039-16


firearm, possession of a firearm without a license, tampering with physical

evidence, escape, and disorderly conduct. We affirm.

      The trial court aptly summarized the relevant factual and procedural

history of this matter as follows.

             On May 20, 2014, Detective Sergeant Mark Steele of the
      City of McKeesport police department and his partner, Detective
      Sergeant Adam Alfer, were working a crime suppression detail in
      McKeesport, Allegheny County. They were patrolling the 600
      block of Sixth Street, near the McKeesport Towers apartment
      complex, in an unmarked police vehicle. At 10:58 P.M., as the
      officers drove toward the corner of Sixth and Huey Streets,
      Detective Steele noticed three males standing under a tree. This
      raised his suspicion because there had recently been several
      robberies in the area, and the men were standing with two men
      facing the third man, who had his hood pulled entirely over his
      head, obscuring his face. Detective Steele stopped and parked
      his vehicle at the corner of Sixth and Huey Streets to approach
      the males and determine if everything was okay. As he exited
      his vehicle, Detective Steele called for back-up because there
      were three men and only two officers.

            Upon approaching the males, Detective Steele recognized
      one of the men as James Wilson, whom he knew from working in
      the area, which made his suspicion level decrease. In response
      to Detective Steele’s question, James Wilson told Detective
      Steele that everything was okay. This exchange occurred as the
      second police car arrived with two more officers, including
      Sergeant Michael Rydzak.

             As the second patrol vehicle arrived on the scene and the
      officers opened the vehicles doors, Appellant walked backwards
      and grabbed for the front of his waistband. As Appellant backed
      up, Detective Steele asked him if he was okay. In response,
      Appellant ran between the two police vehicles and fled on foot
      through an adjacent parking lot.

            Detective Steele and Sergeant Rydzak pursued Appellant
      on foot through the parking lot of the apartment complex, during
      which Appellant was never more than 25-30 feet ahead of
      Detective Steele. The foot pursuit lasted for one and a half to

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J-S04039-16


     two minutes over the course of several blocks. As Detective
     Steele was pursuing Appellant, Allegheny County District
     Attorney Detective Peter Gerbach, who had responded to the call
     for back-up, drove his unmarked police vehicle to the end of the
     block and cut off Appellant’s path of travel. With Detective
     Gerbach’s arrival, Appellant removed a silver firearm from his
     waistband with his right arm and threw it over the fence that
     was part of the local YMCA grounds. After throwing the firearm,
     Appellant turned and ran back towards Detective Steele.
     Detective Steele ordered Appellant to the ground, and
     [Appellant] complied. Appellant was detained and placed into a
     squad car. Sergeant Rydzak went behind the fence of the YMCA
     parking lot and recovered the firearm. The firearm was still
     warm to the touch, and was depressing the grass in an
     otherwise overgrown area about 10-15 feet from the edge of the
     parking lot where Appellant abruptly ended his flight.

                                  ***

           Appellant was charged by criminal information (CC
     201407362) with one count each of: persons not to possess a
     firearm, carrying a firearm without a license, tampering with
     physical evidence, escape, and disorderly conduct.

          Appellant filed a suppression motion on August 20, 2014.
     A suppression hearing was held on December 10, 2014, after
     which the [trial court] denied the motion.

           The persons not to possess a firearm charge was severed
     from the remaining charges and assigned a new CC number (CC
     201416452). Appellant proceeded to a jury trial on that charge
     on December 16-17, 2014. At the conclusion of the trial,
     Appellant was found guilty of persons not to possess a firearm.

          On March 5, 2015, Appellant pled guilty to the remaining
     charges at 201407362. Appellant was sentenced … as follows:

           CC 201416452 count one: persons not to possess a
     firearm - four to eight [years’] incarceration;

           CC 201407362 count two: carrying a firearm without a
     license - two and a half to five [years’] incarceration, to run
     concurrent to the period of incarceration imposed at CC
     201416452.

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              On April 2, 2015, Appellant filed a timely notice of appeal
        at CC 201416452.

               On May 14, 2015, Appellant petitioned the Pennsylvania
        Superior Court to amend the notice of appeal to include both CC
        201416452 and CC 201407362. This petition was denied and
        Appellant was ordered to file an appeal nunc pro tunc with the
        [trial court].

              On May 15, 2015, Appellant filed an appeal nunc pro tunc
        at CC 201407362 with the [trial court], which the [trial court]
        granted on May 19, 2015.

        On May 26, 2015, Appellant filed a second appeal at CC
        201407362. On June 4, 2015, Appellant filed a motion for
        consolidation at CC 201407362 and CC 201416452 with the
        Superior Court, which was granted on June 16, 2015. [Both
        Appellant and the trial court complied with Pa.R.A.P. 1925.]

Trial   Court   Opinion,   8/26/2015,   at    2-7   (footnotes   and   unnecessary

capitalization omitted).

        On appeal, Appellant asks this Court to consider whether the trial court

erred in denying his motion to suppress. Appellant’s Brief at 6. Specifically,

Appellant claims that his seizure by police was not supported by the

requisite level of suspicion and all evidence obtained following the illegal

seizure should have been suppressed. Id. at 14. We consider Appellant’s

claim mindful of the following standard of review.

        Our analysis of this question begins with the presumption that
        where a motion to suppress has been filed, the burden is on the
        Commonwealth to establish by a preponderance of the evidence
        that the challenged evidence is admissible. If the trial court
        denies the motion, we must determine whether the record
        supports the trial court’s factual findings and whether the legal
        conclusions drawn therefrom are free from error. In so doing, we
        may consider only the evidence of the prosecution and so much

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J-S04039-16


      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 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. Bowmaster, 101 A.3d 789, 792 (Pa. Super. 2014)

(citations and quotations omitted).

      Appellant contends that no reasonable person would have felt free to

leave under the circumstances of his encounter with police; thus, he was

subject to an illegal investigatory detention. Appellant’s Brief at 24.

            Article I, § 8 of the Pennsylvania Constitution and the
      Fourth Amendment to the United States Constitution both
      protect the people from unreasonable searches and seizures.
      Jurisprudence arising under both charters has led to the
      development of three categories of interactions between citizens
      and police. The first, a “mere encounter,” does not require any
      level of suspicion or carry any official compulsion to stop or
      respond. The second, an “investigative detention,” permits the
      temporary detention of an individual if supported by reasonable
      suspicion. The third is an arrest or custodial detention, which
      must be supported by probable cause.

            In evaluating the level of interaction, courts conduct an
      objective examination of the totality of the surrounding
      circumstances. We are bound by the suppression court’s factual
      findings, if supported by the record; however, the question
      presented—whether a seizure occurred—is a pure question of
      law subject to plenary review.

Commonwealth v. Lyles, 97 A.3d 298, 302-03 (Pa. 2014) (citations and

quotations omitted).

      “To determine whether a mere encounter rises to the level of an

investigatory detention, we must discern whether, as a matter of law, the



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J-S04039-16


police conducted a seizure of the person involved.” Commonwealth v.

Reppert, 814 A.2d 1196, 1201 (Pa. Super. 2002).

      To decide whether a seizure has occurred, a court must consider
      all the circumstances surrounding the encounter to determine
      whether the demeanor and conduct of the police would have
      communicated to a reasonable person that he or she was not
      free to decline the officer’s request or otherwise terminate the
      encounter. Thus, the focal point of our inquiry must be whether,
      considering the circumstances surrounding the incident, a
      reasonable [person] innocent of any crime, would have thought
      he was being restrained had he been in the defendant’s shoes.

Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657, 664-65 (Pa.

Super. 2015) (citation omitted).

      Instantly, the trial court concluded that the initial interaction between

the officers and Appellant was a mere encounter.          Trial Court Opinion,

8/26/2015, at 8-9.     This conclusion is supported by the record, which

indicates that Detective Steele and his partner, concerned about recent

robberies in the area, exited their vehicle to speak with Appellant and two

other men standing near the rear door to a senior citizens’ home. N.T.,

12/10/2014, at 9, 20. The detectives were wearing shirts which identified

themselves as police officers and had their badges displayed. Id. at 8.

Detective Steele testified that, although he was initially concerned because

of Appellant’s attire and location in proximity to the other men, his

“suspicion level went down” because he recognized one of the men. Id. at

19-20.   The detectives spoke with the men, asking if everything was “ok”

while noting the recent string of robberies. Id. at 23.


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J-S04039-16


        However, once backup arrived, Detective Steele testified that the

situation became more tense.      When the second police car pulled up, and

before those officers exited their vehicle, Appellant began to back away. Id.

at 10, 21.     Detective Steele asked if Appellant was ok, at which point

Appellant grabbed his waistband, turned, and ran. Id. at 10, 21-23. Based

on the totality of the circumstances, the trial court concluded that the

previous mere encounter had escalated to an investigative detention once

Appellant grabbed his waistband and fled the scene and officers gave chase.

Trial Court Opinion, 8/26/2015, at 9. We agree.

        It is well-established that “unprovoked flight in a high crime area is

sufficient to create a reasonable suspicion to justify a Terry[1] stop under the

Fourth Amendment.” In re D.M., 781 A.2d 1161, 1164 (Pa. 2001). In this

case, Appellant’s unprovoked flight, coupled with his grabbing at his

waistband and backing away from officers, provided sufficient reasonable

suspicion to justify an investigatory stop. Accordingly, based on the totality

of the circumstances, we find no error in the trial court’s denial of Appellant’s

suppression motion.

        Judgments of sentence affirmed.

        Judge Bowes joins.

        Judge Olson concurs in the result.




1
    Terry v. Ohio, 392 U.S. 1 (1968).
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J-S04039-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/4/2016




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