J. S06038/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
KEITH REDDY,                               :         No. 3114 EDA 2017
                                           :
                          Appellant        :


        Appeal from the Judgment of Sentence Entered August 18, 2017,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos. CP-51-CR-0001647-2017,
                            CP-51-CR-0014479-2012


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED MAY 20, 2019

        Keith Reddy appeals from the August 18, 2017 judgments of sentence

entered by the Court of Common Pleas of Philadelphia County following his

conviction of persons not to possess firearms, carrying firearms without a

license, and carrying firearms on public streets in Philadelphia.1 After careful

review, we affirm.

        The trial court provided the following synopsis of the relevant factual

and procedural history of this case:

              On May 22, 2017, the Court conducted a hearing on
              [a]ppellant’s motion to suppress the physical evidence
              on the basis that police lacked reasonable suspicion to
              stop him.




1   18 Pa.C.S.A. §§ 6105(a), 6106(a), and 6108, respectively.
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          At said hearing, the Commonwealth presented the
          testimony      of     Philadelphia    Police    Officer
          Iroabuch Ndukwe. Officer Ndukwe testified that, on
          December 2, 2016, at approximately 2:15 p.m., he
          and his partner, Officer Ozorowski, were on routine
          patrol in the 22nd District when a radio call came
          through for person with a gun at Poplar and Leland
          Streets, abutting the 1700 block of Vineyard
          Street.[Footnote 3]       At the time of the call,
          Officer Ndukwe and his partner were within two blocks
          of that location. Flash information described the
          suspect as a black male wearing a black jacket and
          black hat.[Footnote 4] The officers were in a marked
          vehicle and in uniform, with Officer Ndukwe riding as
          passenger/recorder. They proceeded to Poplar and
          Leland Streets, where three black males were
          standing in a small park. Officer Ndukwe testified that
          when they pulled up in their cruiser, he observed that
          [a]ppellant fit the flash description. Officer Ndukwe
          cracked his door to get out but before he could do so
          -- [a]ppellant took off running. Officer Ndukwe gave
          chase on foot, and his partner followed via patrol car.
          Officer Ndukwe never lost sight of [a]ppellant during
          the chase, which lasted only 20 to 30 seconds, not
          even a full block. During the pursuit, and while he
          was only three or four steps from [a]ppellant,
          Officer Ndukwe saw [a]ppellant reach into his
          waistband, retrieve a black .357 Magnum revolver and
          throw it over his head onto a rooftop. Officer Ndukwe
          then tackled [a]ppellant to the ground, and placed him
          under arrest. The gun subsequently was recovered
          from the roof of an adjacent property.

                [Footnote 3] Poplar and Leland Streets
                intersect at a triangular point, forming
                two sides of a triangle, with the
                1700 block of Vineyard Street forming the
                third side of the triangle. Within that
                triangle lies a small park.

                [Footnote 4] On direct examination,
                Officer Ndukwe testified that flash
                description was black male, black jacket
                and black pants; on cross-examination,


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                however, he corrected himself and said
                the pants were not in the flash, and that
                he had meant to say black hat.

          Officer Ndukwe also testified that at the time of the
          arrest, he had been a police officer in the 22nd District
          for three years, and had made numerous arrests,
          including 15 to 20 gun arrests, and 5 to 6 arrests in
          the 1700 block of Vineyard Street. He testified that
          he was familiar with the 1700 block of Vineyard Street
          as a high crime area for drugs and guns, and that a
          shooting homicide had occurred in the immediate
          vicinity (within two blocks) just one week prior to this
          incident.

          At the same hearing, [a]ppellant introduced the 911
          and police radio calls. The 911 call was from an
          anonymous person who provided the description of
          four or five black males armed with guns, one with a
          black hat, black jacket.      The police dispatcher
          provided the same flash information, four or five black
          males armed with guns, one with a black hat and black
          jacket.

          Based on the foregoing evidence, the Court denied
          [a]ppellant’s motion to suppress. Specifically, the
          Court determined that the anonymous tip in
          conjunction with the unprovoked flight of [a]ppellant,
          who fit the flash description and was at the precise
          location, which was a high crime area, amply provided
          reasonable suspicion to stop [a]ppellant.

          The parties thereafter proceeded to a bench trial, at
          which     the    Commonwealth         commenced         by
          incorporating all relevant non-hearsay testimony from
          the suppression hearing into the record.               The
          Commonwealth then introduced the following
          stipulations:   (1) if called, Officer Oshaughnessy
          would testify that he recovered the firearm at issue
          from the roof of a garage adjacent to where
          [a]ppellant was fleeing; and (2) if called, Officer Welsh
          would testify that he’s an expert in the field of firearms
          identification and testing, and that he tested the
          subject firearm, which was operable, had a barrel


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            length of four inches and was loaded with six live
            rounds when it was recovered. Finally, before resting
            its case, the Commonwealth introduced:            (1) a
            photograph of the gun; (2) the property receipt for
            the gun; (3) the actual gun itself; (4) a certificate of
            non-licensure demonstrating that [a]ppellant did not
            have a valid license to carry a firearm; and
            (5) [a]ppellant’s criminal extract showing that he had
            a prior conviction for F1 aggravated assault, rendering
            him ineligible to possess the subject firearm.

            In his case-in-chief, [a]ppellant offered his own
            testimony. He testified that, on the date and time at
            issue, he and two friends were standing inside the
            triangular park at Poplar and Leland Streets, when a
            police car pulled up to them, and a black male officer
            jumped out of the passenger seat, pointing his firearm
            at [a]ppellant’s head. Appellant testified that he did
            not have a gun on him at the time, but nonetheless
            took off running while his friends stayed put.
            Appellant explained that only he took off running
            because he was the only one facing the officer and
            able to see the officer pointing his weapon. He
            testified that while he was fleeing, the officer kept
            yelling, “Where is the firearm?” During the chase,
            [a]ppellant started to remove his clothing, beginning
            with his jacket, to show the officer that he did not
            have a weapon.       After discarding his jacket, he
            attempted to lift his shirt to expose his waistline, at
            which time the officer tackled and arrested him.

            Based on all the foregoing evidence, the Court found
            [a]ppellant guilty of Persons Not to Possess Firearms,
            Carrying Firearms without a License; and Carrying
            Firearms on Public Streets in Philadelphia.        On
            August 18, 2017, upon review of the pre-sentence
            investigation report and upon consideration of all
            relevant facts and circumstances of this case, the
            Court imposed sentence as previously set forth.

Trial court opinion, 5/21/18 2-5 (emphasis in original; citations to record

omitted).



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          On May 22, 2017, after unsuccessfully litigating a
          motion to suppress and following a bench trial before
          this Court, [a]ppellant was convicted of Persons Not
          to Possess Firearms, Carrying Firearms without a
          License, and Carrying Firearms on Public Streets in
          Philadelphia. On August 18, 2017, upon review of the
          pre-sentence     investigation   report    and   upon
          consideration of all relevant facts and circumstances
          of this case, the Court sentenced [a]ppellant to an
          aggregate term of four (4) to eight (8) years’
          incarceration.[Footnote 1]

                [Footnote 1] At the same hearing,
                [a]ppellant -- who at the time of his arrest
                was on probation in another case for
                shooting someone in the chest --
                appeared     for   sentencing     following
                revocation of his probation (VOP). In the
                VOP matter, the Court imposed a
                consecutive term of three (3) to six (6)
                years’ incarceration, followed by five (5)
                years’ probation.        Appellant’s VOP
                sentence is not subject to this appeal.

          On August 28, 2017, [a]ppellant filed post-sentence
          motions, which the Court denied on September 6,
          2017. He subsequently filed a timely notice of appeal,
          and on January 8, 2018, the Court ordered him to file
          a Concise Statement of Matters Complained of on
          Appeal in accord with Pa.R.A.P. 1925(b). Counsel for
          [a]ppellant filed his Rule 1925(b) Statement on
          February 16, 2018.[Footnote 2]

                [Footnote 2] As proposed justification for
                the delay, Counsel cited a discrepancy
                between the method of mailing as set
                forth in the Court’s proof of service (first
                class mail) and the purported actual
                method of mailing (inter-office mail).
                Rather than consuming resources into
                whether the above-cited typo caused an
                actual delay in receiving the Order, and
                in the interest of judicial economy, the



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                   Court will overlook the untimeliness of
                   [a]ppellant’s Rule 1925(b) Statement.

Id. at 1-2.

      Appellant raises the following issues for our review:

              A.   Should not this Court address the merits of
                   appellant’s appeal where appellant filed one
                   timely appeal for both dockets, CP-51-CR-
                   0001674-2017 and CP-51-CR-0014479-2012 as
                   the matters represented one judgment of
                   sentence imposed by the trial court?

              B.   Did not the trial court err in failing to grant the
                   motion to suppress where uniformed police,
                   without    reasonable       suspicion,     violated
                   appellant’s constitutional rights when they
                   confronted and chased him based on an
                   uncorroborated anonymous tip containing a
                   vague, general description, and absent any
                   evidence corroborating criminal activity?

Appellant’s brief at 3.

      First, appellant avers that this court should address the merits of his

appeal when he filed one notice of appeal, despite the fact that the trial court

entered judgments of sentence at two trial court docket numbers.             On

November 6, 2017, this court issued an order directing appellant to show

cause why this appeal should not be quashed because appellant failed to file

a notice of appeal in both dockets.           Appellant timely responded on

November 16, 2017. On November 22, 2017, this court entered an order that

discharged the show-cause order and referred the issue to the merits panel.

      Preliminarily, we note that two separate notices of appeal should have

been filed, as required by case law and the Pennsylvania Rules of Appellate


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Procedure. In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our

supreme court mandated that in cases where “a single order resolved issues

arising on more than one lower court docket, separate notices of appeal must

be filed. The failure to do so will result in quashal of the appeal.” Id. at 971

(footnote omitted).     The Walker court, however, applied its holding

prospectively to any notices of appeal filed after June 1, 2018. Id. Because

appellant filed his notice of appeal before June 1, 2018, we will proceed to

consider his appeal on the merits.

      In his second issue on appeal, appellant contends that the trial court

erred when it denied his motion to suppress evidence. Specifically, appellant

takes issue with the trial court’s factual determinations that appellant fit a

flash description and that appellant’s encounter with the police occurred in a

high-crime area. (Appellant’s brief at 23.)

      When addressing an appeal from a trial court’s denial of a motion to

suppress evidence, we are held to the following standard:

            Our standard of review in addressing a challenge to
            the denial of a suppression motion is limited to
            determining whether the suppression court’s factual
            findings are supported by the record and whether the
            legal conclusions drawn from those facts are correct.
            Because the Commonwealth prevailed before the
            suppression court, we may consider only the evidence
            of the Commonwealth and so much of the evidence
            for the defense as remains uncontradicted when read
            in the context of the record as a whole. Where the
            suppression court’s factual findings are supported by
            the record, we are bound by these findings and may
            reverse only if the court’s legal conclusions are
            erroneous. Where . . . the appeal of the determination


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            of the suppression court turns on allegations of legal
            error, the suppression court’s legal conclusions are
            not binding on an appellate court, whose duty it is to
            determine if the suppression court properly applied
            the law to the facts. Thus, the conclusions of law of
            the courts below are subject to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),

appeal denied, 65 A.3d 413 (Pa. 2013), quoting Commonwealth v.

Hoppert, 39 A.3d 358, 361-362 (Pa.Super. 2012), appeal denied, 57 A.3d

68 (Pa. 2012) (citations omitted).

            Fourth Amendment jurisprudence has led to the
            development of three categories of interactions
            between citizens and the police. 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 to respond.
            The second, an “investigative detention” must be
            supported by a reasonable suspicion; it subjects a
            suspect to a stop and a period of detention, but does
            not involve such coercive conditions as to constitute
            the functional equivalent of an arrest. Finally, an
            arrest or “custodial detention” must be supported by
            probable cause.

Commonwealth v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995) (citations

omitted).

      “The appellate courts have mandated that law enforcement officers,

prior to subjecting a citizen to an investigatory detention, must harbor at least

a reasonable suspicion that the person seized is then engaged in unlawful

activity.” Commonwealth v. Barber, 889 A.2d 587, 593 (Pa.Super. 2005)

(citation omitted). “Reasonable suspicion is a less demanding standard than

probable cause because it can be established by information that is different


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in quantity and quality than that required for probable cause; it can arise from

information that is less reliable than that required to show probable cause.”

Commonwealth v. Emeigh, 905 A.2d 995, 998 (Pa.Super. 2006) (citation

omitted).

            To meet the standard of reasonable suspicion, “the
            officer must point to specific and articulable facts
            which, together with the rational inferences
            therefrom, reasonably warrant the intrusion.          In
            ascertaining the existence of reasonable suspicion, we
            must look to the totality of the circumstances to
            determine whether the officer had reasonable
            suspicion that criminal activity was afoot.” Barber,
            supra at 593 (citations and quotations omitted).
            Further, “police officers need not personally observe
            the illegal or suspicious conduct, but may rely upon
            the information of third parties, including ‘tips’ from
            citizens.” Id.

Commonwealth v. Smith, 904 A.2d 30, 35-36 (Pa.Super. 2006).

      In cases where the police act as a result of an anonymous tip, we have

required additional corroborating evidence.

            While a tip can be a factor, an anonymous tip alone is
            insufficient as a basis for reasonable suspicion.
            [Commonwealth v.] Wimbush, 750 A.2d [807,]
            811 [(Pa. 2000)]; [Commonwealth v.] Jackson,
            698 A.2d [571,] 572 [(Pa. 1997)]. Such anonymous
            tips must be treated with particular suspicion.
            Jackson, 698 A.2d at 573. Likewise, presence in a
            high crime area alone or flight alone does not form the
            basis of reasonable suspicion. Commonwealth v.
            Cook, [] 735 A.2d 673, 677 ([Pa.] 1999). However,
            a combination of these factors may be sufficient. See
            [Commonwealth v.] Zhahir, 751 A.2d [1153,] 1157
            [(Pa. 2000)] (noting that suspicious conduct
            corroborates an anonymous tip); Cook, 735 A.2d at
            677 (stating that circumstances which alone would be
            insufficient may combine to show reasonable


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            suspicion); []; [Commonwealth v.] Pizzaro, 723
            A.2d [675,] 680 [(Pa.Super. 1998)] (finding that flight
            along with presence in heavy drug-trafficking area
            may demonstrate reasonable suspicion). . . . Terry
            [v. Ohio], 392 U.S. [1,] 22 [(1968)] (innocent facts,
            when taken together, may warrant further
            investigation); Commonwealth v. Riley, 715 A.2d
            1131, 1135 (Pa.Super. 1998) (“a combination of
            circumstances, none of which alone would justify a
            stop, may be sufficient to achieve a reasonable
            suspicion”).

Commonwealth v. Leonard, 951 A.2d 393, 396-397 (Pa.Super. 2008),

quoting In the Interest of M.D., 781 A.2d 192, 196-197 (Pa.Super. 2001).

      Here, the record supports the trial court’s conclusion that the police had

reasonable suspicion to stop appellant. Specifically, the record reflects that

the flash bulletin, dispatched as the result of an anonymous 911 call, included

a description of appellant. (Notes of testimony, 5/22/17 at 11.) The flash

bulletin also indicated that the individual described had a gun and was located

in the area near the 1700 block of Vineyard Street, Poplar Street, and Leland

Street. (Id. at 10.) Through his testimony, Officer Ndukwe indicated that

this was a high-crime area. (Id. at 19.) Officer Ndukwe corroborated the

information received from the flash bulletin upon his arrival at the scene. (Id.

at 13.)   Officer Ndukwe also testified that immediately upon his arrival,

appellant started running. (Id. at 14-15.)

      Accordingly, we find that the suppression court did not abuse its

discretion when it denied appellant’s motion to suppress.             The record

demonstrates that the information provided by the anonymous 911 caller that



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was then subsequently dispatched via the flash bulletin was independently

corroborated by the police and that the police had the requisite reasonable

suspicion in order to conduct an investigatory detention.2      Therefore, the

record supports the trial court’s factual findings, the legal conclusions drawn

from those facts are correct, and appellant’s second issue is without merit.

      Judgments of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/20/19




2 Moreover, we note that unprovoked flight in a high-crime area is sufficient
to create reasonable suspicion that criminal activity is afoot for the police to
conduct a Terry stop. Commonwealth v. Washington, 51 A.3d 895, 898
(Pa.Super. 2012), citing Commonwealth v. Brown, 904 A.2d 925, 930
(Pa.Super. 2006), appeal denied, 919 A.2d 954 (Pa. 2007). Here, the record
reflects that appellant fled immediately upon Officer Ndukwe’s arrival at the
scene as soon as Officer Ndukwe opened his car door. (Notes of testimony,
5/22/17 at 14.)


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