J. S27038/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                 :      IN THE SUPERIOR COURT OF
                                              :           PENNSYLVANIA
                             Appellee         :
                                              :
                    v.                        :
                                              :
KYRIK GARVIN,                                 :
                                              :
                             Appellant        :      No. 2534 EDA 2014

            Appeal from the Judgment of Sentence August 15, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division No(s).: CP-51-CR-0011410-2013

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                 FILED SEPTEMBER 28, 2015

        Appellant, Kyrik Garvin, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following a bench

trial and convictions for possession of a controlled substance with the intent

to    deliver   (“PWID”),1    possession,2   and   false   identification   to   a   law

enforcement officer.3 He contends the police lacked reasonable suspicion of

criminal activity to seize him and thus the court should have granted his

motion to suppress the recovered evidence. We affirm.


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(16).
3
    18 Pa.C.S. § 4914.
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     We adopt the facts set forth by the trial court’s opinion:4

           On July 31, 2013, 10:45 p.m., Philadelphia Police
        Officer Sergio Diggs, an experienced narcotics officer and
        his partner [Officer Marchetti] received a [flash5] radio call
        directing them to go to the 7000 block of Saybrook
        Avenue, a high crime and drug location, to investigate a
        report that a group of black males were selling narcotics.

           [The flash information was for five black males, which
        also identified the clothing each wore as follows: (1) a
        white shirt with writing and shorts; (2) a black t-shirt, dark
        jeans, and a baseball cap; (3) white bean cap and dark
        khaki pants; (4) black shirt with writing on the front; and
        (5) black jeans and a red and black baseball cap. N.T.
        Suppression Hr’g, 5/28/14, at 17.]

           The officers[, who were in a marked vehicle,]
        immediately proceeded to the . . . block . . . where, upon
        arrival, Officer Diggs saw a group of three or four males
        standing on the south side of the block. [Officer Diggs did
        not see them engage in any criminal behavior.          N.T.
        Suppression Hr’g at 20-21.] Officer Diggs also observed
        Appellant, who was leaning into a blue Mercury Grand
        Marquis. [Except for the windshield, that car’s windows
        were heavily tinted. Id. at 20.] The males were wearing
        clothes that match[ed the] information contained in the



4
   We acknowledge the holding of In re L.J., 79 A.3d 1073 (Pa. 2013), that
after October 30, 2013, the scope of review for a suppression issue is limited
to the record available to the suppression court. Id. at 1085, 1089 (stating
holding applies to “all litigation commenced Commonwealth-wide after the
filing of this decision”). Because the instant criminal complaint was filed
prior to October 30, 2013, In re L.J. does not apply. We further observe
the instant record is sparse and less than clear as to when a particular event
occurred.
5
  “A flash information is based on a report from the initial officers to
investigate the scene of a crime and is broadcast to other police units in the
district.” Commonwealth v. Jackson, 519 A.2d 427, 431 n.3 (Pa. Super.
1986).




                                    -2-
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         [flash] broadcast.[6] As the officers proceeded down the
         block, Officer Diggs heard someone yell out “Police” after
         which he saw Appellant hit the car’s “lock” button as
         [Appellant] backed out of the car [on the front passenger
         side of the vehicle. N.T. Trial, 5/28/14, at 60]. Appellant
         then walked over to the group of males.

Trial Ct. Op., 1/12/15, at 2-3.

      It was as Officer Diggs was stopping two and half car lengths behind

Appellant’s vehicle that he saw Appellant exit the vehicle, lock the door, and

walk to the group of males. N.T. Suppression Hr’g at 21-22. Officer Diggs

testified that he turned on the overhead lights and floodlights before he

stopped his vehicle behind Appellant’s vehicle. Id. At this juncture, Officer

Diggs still had not seen any of the males or Appellant engage in criminal

activity. Id.

            Officer Diggs continued watching Appellant as he
         walked toward the males and observed him toss a key to
         the ground. Officer Diggs [exited his vehicle, retrieved the
         key, id. at 12,] approached the males and [then] asked if
         any of them resided in the property situated behind where
         they were standing. All of the males stated that they did
         not live on that block of Saybrook Avenue[,] at which time
         Officer Diggs asked them for identification.

Trial Ct. Op. at 2




6
  On direct examination, Officer Diggs testified that Appellant matched “the
flash and clothes.” N.T. Suppression Hr’g at 14. Officer Diggs, however, on
cross-examination, testified Appellant was wearing a gray t-shirt, gray
shorts, and a gray hat, which he conceded did not match the flash. Id. at
18. The flash did not report a vehicle. Id. at 25.




                                    -3-
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     In addition to Officer Diggs, the following uniformed officers were

present and “hanging out” with the group of black males: Officer Marchetti

(Officer Diggs’s partner), Officer Kopecki, and Officer Brown.7        N.T.

Suppression Hr’g at 30.     With respect to “hanging out,” the following

exchange transpired on cross-examination:

        [Appellant’s counsel:] Several uniform police      officers
        surrounding these group of males; correct?

        [Officer Diggs:] There were several uniform officers who
        responded to the call. I don’t know about surrounding.

        [Appellant’s counsel:] Well, you were there. None of us
        were. Were they standing around these group of males?

        [Officer Diggs:] Actually, they were very comfortable. A
        few of them didn’t get up from sitting[8] on the steps that
        they were sitting on, and we were talking to them. Like, it
        was a few cops and the guys. I mean, they were hanging
        out. Like, they were there.

        [Appellant’s counsel:] The males because they were
        already there?

        [Officer Diggs:] Right, they were already there.

        [Appellant’s counsel:] My question to you is, the
        positioning of the officers who are standing as such—when
        you go back to the patrol wagon to run the information
        you receive, those uniformed officers were standing



7
  Other than Officer Marchetti, the record does not indicate when the other
officers arrived.
8
  We note the record does not establish whether the group of males
subsequently sat on the steps or otherwise resolve the testimonial
contradiction regarding whether they were standing or sitting.




                                   -4-
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         around where these groups were, as you described,
         hanging out; correct?

         [Officer Diggs:] Right. We were there. We got all of their
         ID’s, and that’s what we do. We get the ID’s, we run the
         males, make sure they’re not wanted for anything.

         [Appellant’s counsel:] I know it’s what you normally do,
         but we’re only asking about this night in question. As you
         go to the patrol wagon, I just wanted to know where the
         officers were.

         [Officer Diggs:] They’re still with the males.

N.T. Suppression Hr’g at 30-31. Officer Diggs testified that none of the men

were free to leave at this juncture. Id. at 29.

            Appellant could not produce identification but identified
         himself as “Rashean Creara” and gave a purported date of
         birth. Officer Diggs checked the name and birth date
         Appellant gave several times through police radio and
         learned that no such person existed.            Officer Diggs
         believed that Appellant was attempting to withhold his true
         identity in order to hide the fact that he may have had
         open warrants. Appellant was advised of the results of the
         records check and that he was going to be detained and
         taken to a police station so that the officers could learn his
         true identity. [It was around this time that the police
         advised the other men that they were free to leave. Id. at
         34.] Officer Diggs explained [to Appellant] that once a
         person is subjected to an investigation, it is [a] crime for
         such person to give the investigating officer a false
         identification. In response thereto, Appellant stated that
         his identification was located in the blue Mercury.

Trial Ct. Op. at 2




                                     -5-
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     Officer Marchetti unlocks the door of Appellant’s vehicle, 9 opens the

door, looks inside, and says, “There’s drugs in the car.” N.T. Suppression

Hr’g at 10-11, 35, 37. As set forth at the suppression hearing during the

direct and cross-examination of Officer Diggs:

        [Officer Diggs:] . . . So Officer Marchetti walked over to
        the blue Mercury that [Appellant] was observed in when I
        first pulled into the block. And Officer Marchetti opened
        the door and he observed—

        [Appellant’s counsel:] Objection to what he observed.

        [Officer Diggs:] Okay.

        The court: Don’t tell us what he observed, but if he said
        anything, you’re allowed to tell us what he said.

        [Officer Diggs:] Officer Marchetti said that there were
        drugs in the car. . . .

                                    *    *    *

        [Appellant’s counsel:] All right. Now after [Appellant’s]
        detained, he then tells you that he has identification in the
        vehicle; correct?

        [Officer Diggs:] Correct.

        [Appellant’s counsel:] And that’s when Officer Marchetti
        goes over to that vehicle and looks inside; correct?

        [Officer Diggs:] Correct.

        [Appellant’s counsel:] And he actually opened the door to
        look inside; correct?


9
 The record does not reflect when or how Officer Diggs gave his partner the
key to Appellant’s vehicle.




                                        -6-
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        [Officer Diggs:] Correct.

        [Appellant’s counsel:] Because he had the keys to the car;
        correct?

        [Officer Diggs:] Correct.

Id. at 10-11, 35-36.

           Officer Diggs proceeded over to the vehicle and shined
        his flashlight through its front windshield. Upon doing so,
        he observed a large, clear Ziploc bag resting on the
        passenger seat under the center armrest filled with
        numerous packets of what appeared to be heroin and
        crack cocaine as well as used and unused packaging. [Id.
        at 11.]

           [Officer Diggs did not recall whether Officer Marchetti
        shut the door before he used the flashlight to peer through
        the front windshield. Id. at 37. Officer Diggs opined that
        Officer Marchetti may have been standing at the open door
        when Officer Diggs used his flashlight. Id. Officer Diggs
        did not recall whether the vehicle’s interior lights activated
        when Officer Marchetti opened the door. Id.]

        Officer Diggs then contacted Southwest detectives and
        advised them about what he had seen. The detectives
        arrived at the scene shortly thereafter to execute a search
        warrant.

             A search of the vehicle yielded a Ziploc bag containing
        various smaller bags containing 5.4 grams of crack cocaine
        and an amount of heroin as well as numerous packets
        filled with heroin . . . .  [Detective Langan testified that
        he recovered the bag from under the center console
        armrest, and that he could see the drugs “in plain view”
        through the front windshield. N.T. Trial at 63-64, 68. The
        detective, however, later testified that through the front
        windshield, he could see only a clear plastic bag but could
        not see inside it. Id. at 67.]

          Based on the discovery of the bag of drugs, Appellant
        was placed under arrest . . . .



                                    -7-
J. S27038/15


See Trial Ct. Op. at 3-4. No testimony was elicited on whether Appellant’s

vehicle would be subject to an inventory search.

      Appellant filed a pre-trial motion to suppress the narcotics and money

seized from Appellant’s car, the car key, and a statement made by

Appellant. On May 28, 2014, the trial court denied Appellant’s motion, and,

following Appellant’s waiver of a jury trial, found Appellant guilty on all

charges. On August 15, 2014, the trial court sentenced Appellant to two to

five years’ confinement for possession with intent to deliver, and ordered no

further penalty for the remaining charges.    Appellant timely appealed and

filed a court-ordered Pa.R.A.P. 1925(b) statement10 challenging the denial of

his pre-trial motion to suppress.

      Appellant raises the following issue:

         Did the suppression court improperly deny [Appellant’s]
         motion to suppress physical evidence and statements
         where police seized him based solely on an anonymous tip
         and he did not match any particulars of radio report other
         than that he was a black male at a particular location?

Appellant’s Brief at 2.

      Appellant contends the trial court erred by categorizing the initial

interaction as a mere encounter. Id. at 9. He claims that when the police

approached him, they conducted an investigative detention without the

requisite reasonable suspicion. Id. at 8-9. Appellant asserts the trial court

10
   The trial court granted several continuances for Appellant, who was
waiting for the completion of the transcripts.




                                     -8-
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improperly concluded the doctrine of abandonment applied because there

was no evidence the police forced or coerced him into discarding the key to

his car.    Id. at 9.   The substance of his argument was that the police

compelled him to abandon his keys, and he “did not voluntarily abandon his

keys, and along with it any expectation of privacy in his vehicle.” 11 Id. at

18, 21. He argues the trial court erred by invoking the inevitable discovery

doctrine “to excuse the police misconduct.” Id. We hold Appellant is due no

relief.

               Our standard of review in addressing a challenge to a
           trial court’s denial of a suppression motion is limited to
           determining whether the factual findings are supported by
           the record and whether the legal conclusions drawn from
           those facts are correct. Where the prosecution prevailed in
           the suppression court, we may consider only the
           Commonwealth’s evidence 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 record
           supports the factual findings of the trial court, we are
           bound by those facts and may reverse only if the legal
           conclusions drawn therefrom are in error.

In re J.E., 937 A.2d 421, 425 (Pa. 2007) (citations omitted). In evaluating

the legal conclusion drawn by the suppression court, this Court may also

consider uncontradicted testimony from the suppression hearing not

included in the suppression court’s findings of fact.     Commonwealth v.

Mendenhall, 715 A.2d 1117, 1119 n.1 (Pa. 1998).            It is axiomatic we

11
   Notably, Appellant did not argue that alternatively, absent police coercion,
by voluntarily dropping his keys, he nonetheless maintained his privacy
interest to his vehicle.




                                      -9-
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cannot reverse on an argument not raised by the appellant. See Pa.R.A.P.

302. Conversely, however, we can affirm on any basis. Commonwealth v.

Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010)

           Initially we note that 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 and

footnote omitted).

     The    Pennsylvania     Supreme        Court   adopted   the   objective

Jones/Mendenhall12 standard “in determining whether the conduct of the

police amounts to a seizure or whether there is simply a mere encounter

between citizen and police officer.”   Commonwealth v. Matos, 672 A.2d

769, 774 (Pa. 1996).

        In [Commonwealth v. Hicks, 253 A.2d 276 (Pa. 1969)],
        this Court adopted the United States Supreme Court’s
        decision in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20
        L. Ed. 2d 889 (1968), which permits a police officer to
        effect a precautionary seizure where the police have a
        reasonable suspicion that criminal activity is afoot. Terry,

12
   United States v. Mendenhall, 446 U.S. 544 (1980); Commonwealth
v. Jones, 378 A.2d 835 (Pa. 1977).




                                   - 10 -
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         and by analogy Hicks, recognized that there are some
         instances in which an individual may not be arrested, but
         will still be considered to be “seized.” In Jones, this Court
         adopted an objective standard[13] for determining what
         amount of force constitutes the initiation of a Terry stop:
         whether a reasonable person innocent of any crime, would
         have thought he was being restrained had he been in the
         defendant’s shoes. This case, which preceded the United
         States Supreme Court’s decision in . . . Mendenhall, . . .
         was a precursor to the so-called “Mendenhall” test
         posited by the United States Supreme Court: “a person
         has been ‘seized’ within the meaning of the Fourth
         Amendment only if, in view of all the circumstances
         surrounding the incident, a reasonable person would have
         believed he was not free to leave.”

Id. at 773-74 (punctuation and some citations omitted).

      The Pennsylvania Supreme Court provided further guidance in applying

this “totality of the circumstances” test:

            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. In making this determination, courts
         must apply the totality-of-the-circumstances approach,
         with no single factor dictating the ultimate conclusion as to
         whether a seizure has occurred.

Commonwealth v. Strickler, 757 A.2d 884, 890 (Pa. 2000) (footnotes and

citations omitted).    “The totality-of-the-circumstances test is ultimately

centered on whether the suspect has in some way been restrained by




13
   Thus, the subjective beliefs of the officer, e.g., a belief that a seizure
occurred and the seized individual is not free to leave, “are immaterial to an
objective seizure determination.” Commonwealth v. Lyles, 97 A.3d 298,
302 (Pa. 2014).




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physical force or show of coercive authority.” Commonwealth v. Lyles, 97

A.3d 298, 302 (Pa. 2014) (citation omitted).

      Factors   examined     in   this    totality-of-the-circumstances   approach

include “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.” Mendenhall, 715 A.2d at 1119. This Court

also set forth a non-exclusive list of factors:

         [T]he 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.

Commonwealth v. Collins, 950 A.2d 1041, 1047 n.6 (Pa. Super. 2008)

(en banc) (citation omitted).

      With respect to the questions asked by an officer, we acknowledge the

following:

         Asking questions is an essential part of police
         investigations. In the ordinary course a police officer is
         free to ask a person for identification without implicating
         the Fourth Amendment. Interrogation relating to one’s
         identity or a request for identification by the police does
         not, by itself, constitute a Fourth Amendment seizure.

Commonwealth v. Au, 42 A.3d 1002, 1005 (Pa. 2012) (citation, quotation

marks, and alteration omitted).



                                         - 12 -
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     In Au, the following transpired:

            The arresting officer testified that, while on routine
        patrol in the early morning hours, his attention was drawn
        to an automobile parked in the lot of a business premises.
        According to the officer’s testimony, it was unusual to see
        a car in the location at such time, and he decided to make
        further inquiry. The officer did not activate the emergency
        lights of his police cruiser, but he positioned his vehicle at
        an angle relative to the parked automobile so as to
        illuminate the passenger side. The officer said that he did
        so without blocking the egress of the vehicle, which he
        then approached, probably with a flashlight. Further, he
        explained:

           As I walk up the passenger rolled down the window.
           I walked up and just stated what’s going on and they
           stated that they were hanging out. I noticed that
           there were six individuals in the vehicle, four in the
           back seat and two in the front-seat. The individuals
           all looked very young to me, especially those in the
           back.    So I asked if everyone was 18 and the
           individuals in the back said no.

                                  *     *      *

        Now, at this point I asked the passenger for his
        identification. He opened the glove box, which was seated
        right in front of him. When he did there was two baggies
        of which were clearly marijuana in the glove box direct-in
        his immediate control. I kept talking to him, requested
        another officer to come out because of the illegal drugs. I
        went over to the driver’s side opened up the door and
        asked for his identification as well. When I did that there
        was also drugs on that side of the vehicle.

Id. at 1003-04.

     In addressing whether the officer’s request for identification elevated a

mere encounter to an investigative detention, the Au Court observed that

the United States Supreme Court



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        has settled on an approach allocating very modest weight
        to the possibility for psychological coercion arising from a
        fairly wide range of police conduct which may be regarded
        as being appropriate to and inherent in the circumstances
        facilitating the interaction. Cf. WAYNE R. LAFAVE, SEARCH AND
        SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 9.4(a), at
        425 (4th ed. 2004) (observing that “the confrontation is a
        seizure only if the officer adds to those inherent pressures
        by engaging in conduct significantly beyond that accepted
        in social intercourse[,]” which include moral and instinctive
        pressures to cooperate).

Au, 42 A.3d at 1008.

     Accordingly, the Au Court held a seizure did not occur:

           In the present case, the arresting officer’s unrebutted
        testimony indicates that he did not: activate the
        emergency lights on his vehicle . . . ; position his vehicle
        so as to block the car that [the defendant] was seated in
        from exiting the parking lot, . . . ; brandish his weapon;
        make an intimidating movement or overwhelming show of
        force, . . . ; make a threat or a command; or speak in an
        authoritative tone. . . . In terms of the use of the
        arresting officer’s headlights and flashlight, this was in
        furtherance of the officer’s safety, and we conclude it was
        within the ambit of acceptable, non-escalatory factors.

Id. (footnote and citations omitted).   “[T]he arresting officer’s request for

identification,” our Supreme Court concluded, “did not transform his

encounter with [the defendant] into an unconstitutional investigatory

detention.” Id. at 1009. As the Lyles Court emphasized, “Au holds that, in

assessing the totality of the circumstances, a request for identification does

not in and of itself elevate what would otherwise be a mere encounter into

an investigative detention.” Lyles, 97 A.3d at 304.




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     Similar to Au, the Lyles Court ascertained whether a seizure occurred

based on the following facts:

            At about 4:30 p.m. on July 11, 2009, two officers on
        patrol in a marked police vehicle saw [the defendant] and
        another male sitting on the steps of a vacant building in
        south Philadelphia. The officers approached the men to
        question their reason for loitering there, as a large number
        of burglaries had recently been reported in the area. [The
        defendant] stated his grandmother lived on the block. One
        officer asked for [the defendant’s] identification, which
        [the defendant] gave him. When the officer began writing
        down the identification information, he saw [the
        defendant] place his hand in his right pocket and turn his
        right side away from the officer’s view; the officer told [the
        defendant] to stop reaching and remove his hand. [The
        defendant] again put his hand in his right pocket.
        Concerned [the defendant] might be reaching for a
        concealed weapon, the officer instructed him to remove his
        hand for the second time. When [the defendant] reached
        into the pocket a third time, the officer placed [the
        defendant] against the wall of the building to conduct a
        safety frisk for weapons. [The defendant] once again put
        his hand in the pocket, so the officer forcibly removed it,
        and a plastic bag containing blue packets filled with crack
        cocaine became visible.

Lyles, 97 A.3d at 300.

     On appeal, the Lyles defendant challenged the seizure, arguing that

the police conducted an investigative detention:

        [The defendant] asserts a reasonable person would not
        feel free to terminate the encounter, noting two uniformed
        officers, with no knowledge of criminal activity in the area
        on that particular day, approached two young men in
        daylight, asked for their identity and reason for being
        there, and then, unsatisfied, commanded [the defendant]
        to produce identification.

Id. at 305 (footnote omitted).



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     In addressing the defendant’s argument, our Supreme Court noted:

            This Court and the United States Supreme Court have
        repeatedly held a seizure does not occur where officers
        merely approach a person in public and question the
        individual or request to see identification. See Hiibel v.
        Sixth Judicial District Court of Nevada, 542 U.S. 177,
        185, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004) (quoting
        INS v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 80
        L. Ed. 2d 247 (1984)) (officer free to ask for identification
        without implicating Fourth Amendment, and requests for
        identification do not, by themselves, constitute seizures);
        Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382,
        115 L. Ed. 2d 389 (1991) (citation omitted) (even when
        officers lack suspicion, no Fourth Amendment violation
        where they merely approach individuals on street to
        question them or request identification); Au, at 1007–09
        (citations omitted) (same); Commonwealth v. Ickes,
        582 Pa. 561, 873 A.2d 698, 701–02 (2005) (citation
        omitted) (same). Officers may request identification or
        question an individual “so long as the officers do not
        convey a message that compliance with their requests is
        required.” Bostick, at 437, 111 S. Ct. 2382. Although
        police may request a person’s identification, such
        individual still maintains “‘the right to ignore the police and
        go about his business.’”

Lyles, 97 A.3d at 303.

        Notwithstanding that general principle, an encounter
        involving a request for identification could rise to a
        detention when coupled with circumstances of restraint of
        liberty, physical force, show of authority, or some level of
        coercion beyond the officer’s mere employment, conveying
        a demand for compliance or that there will be tangible
        consequences from a refusal.

Id. at 304.

     Upon considering the totality of the circumstances, our Supreme Court

held the facts established a mere encounter:




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        The officers knew the area was one where numerous
        burglaries had occurred, and if not that particular day, at
        least recently so. Seeing men sitting at a vacant building,
        there is no impropriety in the officers’ approaching the
        men, nor in asking their reason for loitering there. The
        officer’s request for identification, which came after [the
        defendant’s] response that his grandmother lived on the
        block, did not indicate “dissatisfaction” with the response—
        the relevance of this claim being unclear—nor did it
        objectively imply an intent to detain [the defendant]
        beyond confirming who he was.

            These were permissible acts that do not implicate the
        Fourth Amendment or Article I, § 8.          Therefore, any
        “escalation” perceived by [the defendant] or by the officer
        did not render the request objectively unconstitutional.
        The request was not accompanied by physical restraint,
        manifestation of authority, or a mandate to comply. The
        officer simply asked for [the defendant’s] identification; he
        did not demand it or require acquiescence, and [the
        defendant] gave it to him voluntarily. The officer did not
        express dissatisfaction with [the defendant’s] reply or tell
        [the defendant] he was not free to leave. There is no
        evidence [the defendant] was confined or prevented from
        departing, or that the officer impeded his movement in any
        way, as the interaction took place on a public street in
        broad daylight.      There was no evidence the officer
        brandished a weapon or threatened [the defendant] or
        that the interaction was per se coercive or intimidating.
        There is no record of the officer displaying an aggressive
        demeanor or using an authoritative tone suggesting there
        would be negative consequences if [the defendant] failed
        to identify himself; he did nothing more than request
        appellant’s identification. Had there been no repetitive
        furtive conduct by [the defendant], there is no reason to
        think the encounter would not have terminated promptly
        once the officer recorded the minimal information he
        requested.

Id. at 305-06 (footnote omitted). Thus, the Pennsylvania Supreme “Court

and the United States Supreme Court have repeatedly held a seizure does




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not occur where officers merely approach a person in public and question the

individual or request to see identification.” Id.

      In sum, the question of “whether the police needed some level of

requisite cause at the time they initially approached” the defendant is

“governed by the type of encounter that the police initiated when they

approached” the defendant. In re D.M., 781 A.2d 1161, 1164 (Pa. 2001)

(emphases added). The critical inquiry is what type of encounter the police

initiated at the time they initially approached the defendant. See id. After

identifying the type of encounter—e.g., mere encounter, investigative

detention, or custodial detention—this Court must then determine whether

the police had the requisite cause for that encounter, respectively, e.g., no

suspicion required, reasonable suspicion that criminal activity was afoot, or

probable cause for an arrest. See Ellis, 662 A.2d at 1047; Jones, 378 A.2d

at 839 n.4.

      Instantly, unlike the officer in Au, Officer Diggs activated his overhead

lights before stopping his vehicle. Cf. Au, 42 A.3d at 1008. Similar to Au,

Officer Diggs, however, stopped behind Appellant’s vehicle, did not brandish

a weapon, intimidate, or initiate a show of force. Cf. id. The officer’s use of

the floodlights was arguably in furtherance of his safety,14 as his stop was in


14
   The record reflects no reason for activating the floodlights. We also note
that Appellant posited the floodlights were pointed at him, see Appellant’s
Brief at 20, but there is no support in the record for this allegation.




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a high crime area late at night and prompted by the flash. See Trial Ct. Op.

at 1-2; see Collins, 950 A.2d at 1047 n.6; cf. Au, 42 A.3d at 1008.

Somewhat comparable to the officers in Lyles, who approached two men in

an area known for recent burglaries, see Lyles, 97 A.3d at 300, Officer

Diggs approached the group of males as they matched the flash. 15 See Trial

Ct. Op. at 1-2. Officer Diggs then asked the group for their identification,

which by itself does not establish an investigative detention. See id. at 2;

Lyles, 97 A.3d at 304. At some point during this interaction, two additional

officers arrived who were “hanging out”16 with the group.            See N.T.

Suppression at 30; Collins, 950 A.2d at 1047 n.6.       The record, however,

does not establish whether those additional officers displayed a show of

authority or exercised force. See Mendenhall, 715 A.2d at 1119. We also

acknowledge Officer Diggs heard someone announce “police” as they

approached and Appellant tossing his key to the ground.17 See Trial Ct. Op.

at 2.   Viewing, however, the record in the light most favorable to the

Commonwealth and under the totality of the circumstances, we conclude



15
  As noted above, we acknowledge the contradicting testimony on whether
Appellant matched the flash. See n.6, supra.
16
  As noted above, neither the Commonwealth nor Appellant illuminated the
nature of the “hanging out.”
17
   The Commonwealth elicited no testimony qualifying this particular action
as, e.g., suspicious, furtive, or otherwise consistent with individuals engaged
in criminal activity.




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that at this juncture, the police had initiated a mere encounter.18 Cf. Lyles,

97 A.3d at 305-06; Au, 42 A.3d at 1008. Although, unlike the facts in Lyles

and Au, Officer Diggs activated the overhead lights and other officers

arrived to “hang out,” absent additional evidence of a show of authority or

exercise of force, we conclude this was initially a mere encounter with

respect to Appellant. Cf. Lyles, 97 A.3d at 305-06; Au, 42 A.3d at 1008.

Thus, the police did not require reasonable suspicion. See In re D.M., 781

A.2d at 1164.

      Having concluded this was a mere encounter, we next examine

whether the police could validly search his vehicle by using Appellant’s key.

As noted above, Appellant contends he abandoned his key “as a direct

result” of the police’s investigative detention.   See Appellant’s Brief 18.

Therefore, Appellant opines, the trial court erred by concluding he voluntarily

abandoned the key. See id. We disagree with Appellant.

      It is well settled that “[a]lthough abandoned property may normally be

obtained and used for evidentiary purposes by the police, such property may

not be utilized where the abandonment is coerced by unlawful police action.”

Commonwealth v. Hall, 380 A.2d 1238, 1241 (Pa. 1977) (quotation marks

omitted); accord Commonwealth v. Byrd, 987 A.2d 786, 791 (Pa. 2009).

18
  Thus, we respectfully disagree with the trial court’s determination that the
police initiated an investigative detention. See Trial Ct. Op. at 5. We may,
however, affirm on any basis apparent from the record. See Clouser, 998
A.2d at 661 n.3.




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In the seminal case of Commonwealth v. Shoatz, 366 A.2d 1216 (Pa.

1976), our Supreme Court set forth the following test for ascertaining

whether a defendant abandoned property:

           The theory of abandonment is predicated upon the clear
        intent of an individual to relinquish control of the property
        he possesses.

           Abandonment is primarily a question of intent, and
        intent may be inferred from words spoken, acts done, and
        other objective facts. All relevant circumstances existing
        at the time of the alleged abandonment should be
        considered. Police pursuit or the existence of a police
        investigation does not of itself render abandonment
        involuntary. The issue is not abandonment in the strict
        property-right sense, but whether the person
        prejudiced by the search had voluntarily discarded,
        left behind, or otherwise relinquished his interest in
        the property in question so that he could no longer
        retain a reasonable expectation of privacy with
        regard to it at the time of the search.

           Moreover, it is well settled that no one has standing to
        complain of a search or seizure of property that he has
        voluntarily abandoned. . . .

            Although abandoned property may normally be
        obtained and used for evidentiary purposes by the police,
        such property may not be utilized where the abandonment
        is coerced by unlawful police action.[19]

Shoatz, 366 A.2d at 1219-20 (emphasis added and citations omitted).

        Abandonment can be established where an individual’s
        surrender of possession of the property constitutes such a
        relinquishment of interest in the property that a


19
    Thus, instantly, it was necessary to ascertain the legality of the
interaction.




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J. S27038/15


         reasonable expectation of privacy may no longer be
         asserted.

                                *     *      *

         [T]he mere fact that the property was placed in an area
         open to the general public is not sufficient to establish
         abandonment.        The evidence must also clearly
         demonstrate that the [defendant] attempted to dissociate
         himself from the property.

Commonwealth v. Johnson, 636 A.2d 656, 658-59 (Pa. Super. 1994)

(citation omitted).

      As noted above, Appellant’s sole argument was that the police

compelled him to abandon his keys. See Appellant’s Brief at 18. Because

we held that the interaction was a lawful mere encounter, no unlawful police

coercion occurred that forced Appellant to abandon his keys. See Johnson,

636 A.2d at 658-59. As we reiterated supra, Appellant did not argue that

he did not relinquish his privacy interest in his vehicle by voluntarily

abandoned his keys; he argued solely that the police compelled him to

abandon his keys. See generally Pa.R.A.P. 302 (courts cannot reverse on

an argument not raised). Finally, because we have concluded the interaction

was lawful, it is unnecessary to ascertain whether the contraband would

have inevitably been discovered.20 See Commonwealth v. Gonzalez, 979


20
   We note, however, the Commonwealth failed to adduce any testimony
whatsoever regarding, e.g., that the vehicle would have been towed or
subjected to an inventory search. See Commonwealth v. Ingram, 814
A.2d 264, 272 (Pa. Super. 2002) (“The burden of proving . . . inevitable
discovery rests with the prosecution.” (citation omitted)).



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A.2d 879, 890 (Pa. Super. 2009) (holding inevitable discovery “doctrine

provides that evidence which would have been discovered was sufficiently

purged of the original illegality to allow admission of the evidence.”).

Accordingly, we affirm the judgment of sentence, albeit on different grounds.

See Clouser, 998 A.2d at 661 n.3.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/28/2015




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