J-A29030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellant

                        v.

    RONDON REYES,

                             Appellee                No. 2441 EDA 2016


                      Appeal from the Order June 28, 2016
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-001300-2015


BEFORE: LAZARUS, J., PLATT, J.,* and STRASSBURGER, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 05, 2018

        The Commonwealth appeals as of right from the order granting the

defense motion to suppress the handgun confiscated from Appellee, Rondon

Reyes, after police on surveillance in a high crime area observed him retrieving

it from a car and carrying it inside his waistband on a street in Philadelphia.1

The court granted suppression, concluding that the police only had reasonable

suspicion to stop and frisk. Under controlling authority, we conclude that the

police had probable cause to arrest. Accordingly, we vacate and remand.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   See Pa.R.A.P. 311(d).
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        We derive the facts of this case from the suppression court’s opinion and

our independent review of the certified record.              (See Suppression Court

Opinion, 2/28/17).       Defense counsel candidly conceded that there was no

dispute about the facts. (See N.T. Hearing, 6/21/16, at 30).

        On December 7, 2015 around 1:23 p.m., Philadelphia Police Officer

Michael Golembieski and his partner Officer Graziano were conducting

surveillance from the third floor of an old school building near the 2000 block

of Rush Street in Philadelphia.2               Officer Golembieski testified that the

neighborhood was “a high-crime, high shooting area. A lot of narcotics, a lot

of shootings.” (Id. at 11).

        The police observed Appellee standing around with three companions

about fifty to seventy-five feet away on the same side of the street below,

near a Pontiac Grand Prix. Officer Golembieski saw Appellee reach into the

Grand Prix and retrieve a black handgun, place it into the left side of his

waistband, and cover it up with his shirt.

        The two officers ran down to the street, and approached Appellee and

his companions with their guns drawn. While Officer Graziano had the other

three stand against a wall for a weapons pat down, Officer Golembieski

ordered Appellee to lie face down on the ground, handcuffed him, and


____________________________________________


2   Officer Graziano’s first name is not readily apparent in the record before us.




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retrieved the handgun, a Glock 23 .40 caliber semi-automatic pistol.3 (See

id. at 14).

       Officer Golembieski testified that while Appellee was handcuffed, he

said, “he should have blasted us, and he didn’t even get to use the gun yet.”

(Id. at 15). The police determined that Appellee was not licensed to carry a

firearm. They also confirmed that the handgun was stolen. (See id. at 18).

       Appellee was arrested and charged with violation of 18 Pa.C.S.A.

§ 6105 (persons not to possess, use, manufacture, control, sell or transfer

firearms); 18 Pa.C.S.A. § 6106 (firearms not to be carried without a license);

and 18 Pa.C.S.A. § 6108 (carrying firearms on public streets or public property

in Philadelphia). Appellee filed the instant motion to suppress which, after

hearings, the suppression court granted. This timely appeal followed.4

       The Commonwealth raises one question on appeal:

             Did the [suppression] court err in suppressing the gun
       recovered from [Appellee] minutes after a police officer saw him
       holding it on the street?

(Commonwealth’s Brief, at 4).



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3Officer Graziano apparently found no weapons on the other three men. In
any event, they are not involved in this appeal.

4The Commonwealth voluntarily filed a statement of errors on July 25, 2016.
The suppression court filed an opinion on February 28, 2017. See Pa.R.A.P.
1925.




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       The Commonwealth argues that seeing Appellee retrieve, conceal and

carry a firearm on the street in Philadelphia gave the police probable cause to

arrest him for a violation of section 6108.5 (See Commonwealth’s Brief, at

10, 12, 14). Under controlling authority, we agree.

       Our standard and scope of review are well-settled.

             It is unquestionably the province of the suppression court to
       make findings of fact and conclusions of law as to whether
       evidence was obtained in violation of an accused’s constitutional
       rights. The standard of review which governs a ruling on a motion
       to suppress is well-settled. An appellate court must first ascertain
       whether the record supports the factual findings of the
       suppression court, and then determine the reasonableness of the
       inferences and legal conclusions drawn therefrom. In reviewing
       an appeal taken by the Commonwealth from a suppression order,

          we must consider only the evidence of the defendant’s
          witnesses and so much of the Commonwealth evidence that,
          read in the context of the record as a whole, remains
          uncontradicted. Furthermore, our scope of appellate review
          is limited primarily to questions of law. We are bound by
          the suppression court’s findings of fact if those findings are
          supported by the record. Factual findings wholly lacking in
          evidence, however, may be rejected.
____________________________________________


5Section 6108, carrying firearms on public streets or public property in
Philadelphia, provides that:

               No person shall carry a firearm, rifle or shotgun at any time
       upon the public streets or upon any public property in a city of the
       first class unless:

              (1) such person is licensed to carry a firearm; or

              (2) such person is exempt from licensing under section
       6106(b) of this title (relating to firearms not to be carried without
       a license).

18 Pa.C.S.A. § 6108.

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            The bench mark of propriety for a warrantless arrest is the
     existence of probable cause. Probable cause to effectuate an
     arrest exists when the facts and circumstances within the
     knowledge of the arresting officer are reasonably trustworthy and
     sufficient to justify a person of reasonable caution in believing that
     the arrestee has committed an offense.            In addressing the
     existence of probable cause, courts must focus on the
     circumstances as seen through the eyes of the trained police
     officer, taking into consideration that probable cause does not
     involve certainties, but rather “the factual and practical
     considerations of everyday life on which reasonable and prudent
     men act.”

           The court must base its probable cause determination on a
     common-sense non-technical analysis, and must employ the
     viewpoint of the police officer, not that of the average citizen.
     Probable cause for a warrantless arrest requires only the
     probability, and not a prima facie showing, of criminal
     activity. Moreover, probable cause for a warrantless arrest
     exists when criminality is one reasonable inference; it need
     not be the only, or even the most likely, inference.

Commonwealth v. Romero, 673 A.2d 374, 376–77 (Pa. Super. 1996)

(citations omitted; emphases added).

     The United States Supreme Court has recently explained:

           The Fourth Amendment protects “[t]he right of the people
     to be secure in their persons, houses, papers, and effects, against
     unreasonable searches and seizures.”        Because arrests are
     “seizures” of “persons,” they must be reasonable under the
     circumstances. See Payton v. New York, 445 U.S. 573, 585,
     100 S. Ct. 1371, 63 L.Ed.2d 639 (1980). A warrantless arrest is
     reasonable if the officer has probable cause to believe that the
     suspect committed a crime in the officer’s presence. Atwater v.
     Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 149 L.Ed.2d 549
     (2001).

           To determine whether an officer had probable cause for an
     arrest, “we examine the events leading up to the arrest, and then
     decide ‘whether these historical facts, viewed from the standpoint
     of an objectively reasonable police officer, amount to’ probable

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     cause.” Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795,
     157 L.Ed.2d 769 (2003) (quoting Ornelas v. United States, 517
     U.S. 690, 696, 116 S. Ct. 1657, 134 L.Ed.2d 911 (1996)).
     Because probable cause “deals with probabilities and depends on
     the totality of the circumstances,” 540 U.S., at 371, it is “a fluid
     concept” that is “not readily, or even usefully, reduced to a neat
     set of legal rules,” Illinois v. Gates, 462 U.S. 213, 232, 103 S.
     Ct. 2317, 76 L.Ed.2d 527 (1983). It “requires only a probability
     or substantial chance of criminal activity, not an actual showing of
     such activity.” Id., at 243–244, n. 13 (1983). Probable cause “is
     not a high bar.” Kaley v. United States, 571 U.S. ––––, ––––
     [(2014) (slip op., at 18)].

D.C. v. Wesby, No. 15-1485, 2018 WL 491521, at *6 (U.S. filed Jan. 22,

2018).

            The Fourth Amendment of the Federal Constitution
     provides, “[t]he right of the people to be secure in their persons,
     houses, papers, and effects, against unreasonable searches and
     seizures, shall not be violated . . .” U.S. Const. amend. IV.
     Likewise, Article I, Section 8 of the Pennsylvania Constitution
     states, “[t]he people shall be secure in their persons, houses,
     papers and possessions from unreasonable searches and seizures
     . . .” Pa. Const. Art. I, § 8. Under Pennsylvania law, there are
     three levels of encounter that aid courts in conducting search and
     seizure analyses.

                The first of these is a “mere encounter” (or request
         for information) which need not be supported by any level
         of suspicion, but carries no official compulsion to stop or
         respond. The second, an “investigative detention” must be
         supported by reasonable suspicion; it subjects a suspect to
         a stop and period of detention, but does not involve such
         coercive conditions as to constitute the functional equivalent
         of arrest. Finally, an arrest or “custodial detention” must be
         supported by probable cause.

Commonwealth v. Mason, 130 A.3d 148, 152 (Pa. Super. 2015), appeal

denied, 138 A.3d 3 (Pa. 2016) (case citation omitted). Finally, our standard

of review on questions of law involving suppression is de novo.             See


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Commonwealth v. Smith, ___ A.3d ____, 2017 WL 6615821, 877 WDA

2017 (Pa. Super. filed Dec. 28, 2017).

       Here, the Commonwealth argues that in the totality of circumstances

the police had probable cause to arrest Appellee based on their observation of

his retrieving and concealing on his person a firearm on the streets of

Philadelphia, in apparent (and, it turns out, actual) violation of section 6108.

(See Commonwealth’s Brief, at 9-16); see also 18 Pa.C.S.A. § 6108.6 Citing

Romero, supra at 377, the Commonwealth maintains that this police

observation of Appellee in visible possession of a firearm was a sufficient basis

for the trained police officer reasonably to infer that Appellee was acting in

violation of the statutory prohibition against carrying a firearm on public

streets or on public property in Philadelphia under section 6108.          (See

Commonwealth’s Brief, at 15).7

       The suppression court posits that caselaw decided after Romero does

not support the Commonwealth’s argument. (See Suppression Ct. Op., at 7).


____________________________________________


6 Appellee does not claim either of the statutory exceptions. He does not
dispute that he was not licensed. In fact, it appears that he was ineligible for
a license based on a prior conviction. Nor does he claim any of the exemptions
enumerated at section 6106(b). See 18 Pa.C.S.A. § 6108.

7 We observe that, because Appellee chose not to present any independent
evidence (other than through cross-examination, and the offer of character
witnesses), there is no evidence of Appellee/defendant’s witnesses to be
considered, and the Commonwealth’s evidence, read in the context of the
record as a whole, remains uncontradicted.



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However, the only two cases cited by the court in support of this proposition

both originated in Allegheny County, where section 6108 does not apply. 8

Both cases involved review under a reasonable suspicion standard. It bears

noting that both cases upheld the denial of suppression.

       The suppression court refers repeatedly to the undisputed fact that the

police handcuffed Appellee at the beginning of the encounter, and only began

questioning him after he was handcuffed. (See Suppression Ct. Op., at 2, 3

[six references], 6 [two references], and 7 [two references to handcuffs and

one to physical restraints]).

       Officer Golembieski testified that he handcuffed Appellee first, for

safety:

              I didn’t want us to get shot. I didn’t want [Appellee] to get
       shot. I didn’t want anybody walking by to get shot. The best
       thing was to get [him] on the ground so he’s in a vulnerable
       position where we can handcuff him for our safety until we find
       out what’s going on.

(N.T. Hearing, 6/21/16, at 27-28).

       “Our [S]upreme [C]ourt has declined to hold that every time an

individual is placed in handcuffs that such individual has been arrested.”

Commonwealth v. Guillespie, 745 A.2d 654, 660 (Pa. Super. 2000)

(citation omitted). “For their safety, police officers may handcuff individuals



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8 See Mason, supra; Commonwealth v. Stevenson, 894 A.2d 759, 773
(Pa. Super. 2006), appeal denied, 917 A.2d 846 (Pa. 2007).


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during an investigative detention.” Commonwealth v. Rosas, 875 A.2d 341,

348 (Pa. Super. 2005), appeal denied, 897 A.2d 455 (Pa. 2006). Accord,

Commonwealth v. Carter, 643 A.2d 61, 67 n.2 (Pa. 1994), cert. denied,

514 U.S. 1005 (1995). Here, placing Appellee in handcuffs, by itself, is neither

determinative that Appellee was “prematurely arrested,” as suggested by the

suppression court, (see N.T. Hearing, 6/28/16, at 33), nor is it a substantial

factor in the probable cause analysis under our standard of review.

       On independent review, we are constrained to conclude that the

reasoning of the suppression court is unpersuasive, and its legal conclusions

are in error.

       We conclude that the police had probable cause to arrest when they

observed Appellee retrieve, carry, and conceal the handgun.9       They began

with an investigative detention. To maintain the status quo and reduce the

risk of gunfire to the participants, and any possible passersby, they put

Appellee in a prone positon and removed his firearm before making any verbal

inquiry. When further investigation confirmed that Appellee was not licensed

to carry, was ineligible for licensure, and was carrying a firearm, the police

arrested him.




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9 Because we conclude that the police had probable cause, we need not review
the Commonwealth’s alternate theory that the evidence would have been
admissible under the reasonable suspicion standard, and we decline to do so.

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      Nothing in our jurisprudence required the police here, outnumbered two

to one, to place their safety in the hands of an armed suspect and his

companions.    “Our constitutional safeguards do not require an officer to

gamble with his life.” Commonwealth v. Morris, 644 A.2d 721, 724 (Pa.

1994), cert. denied, 513 U.S. 1031 (1994).

      Order vacated. Case remanded for further proceedings consistent with

this decision. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/18




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