J-S27006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :    IN THE SUPERIOR COURT OF
                                                  :         PENNSYLVANIA
                                                  :
                v.                                :
                                                  :
                                                  :
    DIOUL DEVAUGHN                                :
                                                  :
                       Appellant                  :    No. 1752 EDA 2017

           Appeal from the Judgment of Sentence September 9, 2009
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0014555-2008


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY SHOGAN, J.:                                      FILED JUNE 25, 2018

       Dioul DeVaughn (“Appellant”) appeals nunc pro tunc from the judgment

of sentence imposed on September 9, 2009, following a nonjury trial.

Appellant argues that the trial court erred in denying his pretrial motion to

suppress evidence. We affirm.

       Appellant was arrested on January 4, 2008, and charged with violating

the Uniform Firearms Act (“UFA”), 18 Pa.C.S. §§ 6101–6127, and receiving

stolen property, 18 Pa.C.S. § 3925(a).                On March 24, 2009, Appellant’s

counsel litigated a motion to suppress evidence related to Appellant’s arrest,

including a gun that Appellant discarded while fleeing from Philadelphia Police

Officers Sean McGinnis and Rosa.1              After a hearing, the trial court denied


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1   Officer Rosa’s fist name is not of record.
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Appellant’s motion to suppress. N.T., 3/24/09, at 38. Immediately, Appellant

waived his right to a jury trial and proceeded to a bench trial. Id. The trial

court found Appellant guilty of violating UFA Section 6106(a)(1), firearms not

to be carried without a license, and UFA Section 6108, carrying firearms on

public streets or public property in Philadelphia, but not guilty of receiving

stolen property. Id. at 47. The trial court sentenced Appellant on September

9, 2009, to incarceration for an aggregate term of two to four years, followed

by three years of probation. N.T., 9/9/09, at 12.

       Appellant did not file a direct appeal.      However, through the Post

Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546, he successfully litigated the

reinstatement of his direct appeal rights. Order, 5/23/17. He filed a timely

notice of appeal on June 1, 2017. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

       Although Appellant raised seven issues in his Rule 1925(b) statement of

errors complained of on appeal, he presents one issue on appeal:

       1.     Did the trial court err in denying the suppression motion of
              [Appellant] because the seizure of the evidence was not the
              result of a mere encounter with the police, but a violation of
              [Appellant’s] State and Federal Constitutional rights to [be]
              free of unreasonable searches and seizures?

Appellant’s Brief at 2.2



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2  Because Appellant has not presented the other six issues in his appellate
brief, we consider them abandoned and will not address them. Pa.R.A.P.
2116(a).

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     Our standard of review for the denial of a suppression motion is well

established:

            [The] standard of review in addressing a challenge to a trial
     court’s denial of a suppression motion is whether the factual
     findings are supported by the record and whether the legal
     conclusions drawn from those facts are correct. When reviewing
     such a ruling by the suppression court, we must consider only the
     evidence of the prosecution and so much of the evidence of the
     defense as remains uncontradicted when read in the context of
     the record ... Where the record supports the findings of the
     suppression court, we are bound by those facts and may reverse
     only if legal conclusions drawn therefrom are in error.

Commonwealth v. Bush, 166 A.3d 1278, 1282 (Pa. Super. 2017).                Our

scope of review in suppression matters is limited to the suppression hearing

record and excludes any evidence elicited at trial. In re L.J., 79 A.3d 1073,

1085 (Pa. 2013).

     The   trial   court   summarized   the   evidence   adduced   during   the

suppression hearing as follows:

     On December 18, 2007, at approximately 1:20 a.m., Appellant
     was standing on the steps of a house in the 3100 block of Sheridan
     Street in Philadelphia, when Philadelphia Police Department
     Officers McGinnis and Rosa pulled onto the block in their patrol
     vehicle; Officer Rosa “immediately recognized Appellant as
     someone that I knew due to prior police contact.” N.T. 3/24/09
     at 6–8. Officer Rosa asked Appellant his name, to which appellant
     replied “Dioul Devaughn.” Id. at 8–9. Intending to engage in
     further discussion and investigation, Officer Rosa opened his car
     door to get out of the vehicle, causing Appellant to “immediately
     . . . run southbound on Sheridan Street towards an alley.” Id. at
     9. The officers pursued Appellant through the alley, witnessing
     him discard a silver-colored handgun mid-flight. Id. at 9, 28–2[9].
     Officer McGinnis recovered the gun and “placed it on a property
     receipt”; it was later identified as a 9mm handgun, loaded with 13
     rounds in the clip and one in the chamber, which was engraved


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       with the name “Atlanta Police Department” and had previously
       been reported as stolen. N.T. 3/24/09 at 9–10, 32, 34.

Trial Court Opinion, 9/7/17, at 1–2.

       On appeal, Appellant argues:

       There was no evidence in this case that [Appellant] had committed
       any crime, he was just standing on a step.. . . He had the right
       to leave the step and run to the alley and since the police did not
       have probable cause to arrest [Appellant], the police actions in
       entering [the] alley and forcing [Appellant] to abandon the alleged
       weapon was illegal. The trial court should have suppressed the
       evidence.

Appellant’s Brief at 7, 8. In support of his argument, Appellant relies on the

concept of forced abandonment as addressed in Commonwealth v. Matos,

672 A.2d 769 (Pa. 1996).            Therein, the Supreme Court of Pennsylvania

reviewed three consolidated cases involving police pursuit to determine

whether the pursuit was a seizure.3 The Matos Court explained, “If it was not

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3   The relevant facts of each case were as follows:

       In [Matos v. Commonwealth], on April 8, 1991, two
       Philadelphia police officers responded to a radio broadcast that
       unknown persons were selling narcotics in the vicinity of Reese
       Street. They approached a group of three men in a nearby
       playground who fled as the officers approached. During the
       ensuing chase, one of the officers saw Appellant Matos discard a
       plastic bag. The officer retrieved the bag. Matos was then
       apprehended and the bag was discovered to have contained 12
       vials of cocaine. Five additional vials of cocaine were found in
       Matos pocket after he was seized by the officer. The Court of
       Common Pleas of Philadelphia County suppressed the introduction
       of the vials of cocaine at Matos’ trial on drug charges, but the
       Superior Court reversed.




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a seizure then the contraband was abandoned property, lawfully found by the

officer.   However, if the pursuit was a seizure, then the abandonment was

coerced, and the officer must demonstrate either probable cause to make the

seizure or a reasonable suspicion to stop and frisk.” Id. at 771.



____________________________________________


       [In McFadden v. Commonwealth, o]n October 27, 1990, two
       Philadelphia police officers in full uniform and in a marked patrol
       car approached ... McFadden, who looked in their direction and
       promptly ran away. One of the officers chased him for a short
       distance and, before being caught, McFadden tossed a handgun
       into the bushes. He was subsequently arrested after the gun was
       recovered and charged with carrying an unlicensed firearm on a
       public street. The Court of Common Pleas of Philadelphia County
       suppressed the evidence of the handgun at trial, but the Superior
       Court reversed.

       [In Carroll v. Commonwealth, o]n November 22, 1989, two
       uniformed Philadelphia police officers in a marked police vehicle
       saw two men standing on the sidewalk of Olive Street. Both
       officers exited their patrol car and one of the officers spoke to one
       of the two men. The second man, … Carroll, stood with his hands
       in his jacket pockets. The other officer, with his hand over his gun,
       approached Carroll and started to ask him to take his hands out
       of his pockets. Carroll turned and fled into an alley, where he
       promptly slipped and fell on some debris. As he fell, he was being
       followed by one of the officers, who saw two broken tinted heat
       sealed packets containing a white substance fall from Carroll's
       pocket onto the debris in the alley. The pursuing officer
       approached Carroll, who was still face down in the debris, drew
       his gun, and told Carroll to stay on the ground with his hands
       behind his back. Carroll was then arrested. The officer searched
       Carroll’s coat pockets and found 45 additional brown tinted
       packets. At his trial for possession of drugs and possession of
       drugs with intent to deliver, the Court of Common Pleas of
       Philadelphia suppressed the evidence of the drugs, but the
       Superior Court reversed.

Matos, 672 A.2d 770–771 (headings omitted).

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     In each of the three cases, the Matos Court observed that the police

officers approached the defendant without reasonable suspicion or probable

cause, the defendant fled, and the police pursued. During the pursuit, the

defendant abandoned property. Matos, 672 A.2d at 770–771. Finding the

police action to be coercive, the Matos Court held that each of the three

pursuits constituted a seizure under the Pennsylvania Constitution, and

therefore, “the discarded contraband must be suppressed.” Id. at 770.

     In contrast to Matos, the trial court herein made the following findings

of fact and conclusions of law from the bench:

          Well, I consider this to be a situation of unprovoked flight.
     So the law is clear that unprovoked flight in a high crime area is
     reasonable suspicion to stop.

          On 12-18-07 at 1:20 in the morning, in a high crime area
     where the officer made hundreds of narcotics and gun arrests … .

           He knows this to be a high crime and high violence area by
     the number of narcotics and gun arrests he’s made over the past
     seven years in this district.

            [Officer Rosa] had some prior contact with [Appellant]. He
     asked him his name from his [patrol] car door. He opened his
     door and he didn’t have to say anything or get any further when
     [Appellant] immediately began to run.         I’m finding that’s
     unprovoked flight in a high crime area and that there is not – this
     is not forced abandonment.

           So I’m going to deny the motion.

N.T., 3/24/09, at 37–38.     The trial court amplified its reasoning in the

Pa.R.A.P. 1925(a) opinion:

           As established through Officer Rosa’s [suppression]
     testimony, [his] and his partner’s initial interactions with Appellant

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      amounted to nothing more than a mere encounter. The officers
      simply happened upon Appellant, asked him his name, and then
      began to exit their patrol vehicle; there is nothing about these
      acts that evinces an intent to detain Appellant in any manner, or
      that would make a reasonable person, standing in Appellant’s
      shoes, believe that he was not free to disregard the officers’
      entreaties or calmly depart of his own volition. Despite this,
      however, Appellant chose to flee the scene; as he did so in what
      Officer Rosa made clear at [the suppression hearing] is a high-
      crime neighborhood, see N.T. 3/24/09 at 6–7, this unprovoked
      flight established a reasonable suspicion that illicit activity was
      afoot, thereby providing the officers with a constitutionally
      permissible basis for chasing after and seeking to detain
      Appellant, so as to further investigate the situation.          This
      reasonable suspicion was only reinforced when both officers
      witnessed Appellant discard a firearm while attempting to elude
      them, and was certainly transformed into probable cause
      supporting Appellant’s arrest when the officers recovered the
      weapon, and discovered that it appeared to be the Atlanta Police
      Department’s rightful property.         Thus, there was nothing
      constitutionally suspect about the officers’ interactions with
      Appellant, from initial contact in the 3100 block of Sheridan Street
      through the alleyway . . . minutes later, nor was there any basis
      for granting Appellant’s Motion to Suppress.

Trial Court Opinion, 9/7/17, at 5–6 (footnote omitted).

      Appellant contends that this police interaction was not a mere

encounter: “[Appellant] was not free to leave because when he ran away the

police pursued him and the police officer was exiting his car in order to stop

[Appellant] and interrogate him, which is what the police officer testified to at

the suppression hearing[.]” Appellant’s Brief at 7. Also, Appellant complains

that the trial court incorrectly referred to the area of Appellant’s arrest as a

“high crime” area. Id.

      It is well established that there are three categories of encounters

between citizens and the police:

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      (1) A mere encounter, (2) an investigative detention, and (3)
      custodial detentions. The first of these, 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. Second, an “investigative detention” must be supported
      by 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. Baldwin, 147 A.3d 1200, 1202 (Pa. Super. 2016)

(citation omitted). In order to establish reasonable suspicion, an officer “must

be able to articulate something more than an inchoate and unparticularized

suspicion or hunch” that a defendant committed a crime. Commonwealth

v. Williams, 125 A.3d 425, 432 (Pa. Super. 2015) (citation omitted).         In

making this determination, we consider the totality of the circumstances. Id.

      The record supports the trial court’s findings, and its suppression ruling

is without error. The police interaction with Appellant began as an encounter,

similar to the three interactions reviewed in Matos.       Unlike the cases in

Matos, however, the police pursuit of Appellant constituted a seizure

supported by reasonable suspicion.

      The facts of record establishing that the initial police interaction was a

mere encounter include the following: While driving in their patrol car, the

police officers happened upon Appellant standing on the step of a house. N.T.,

3/24/09, at 7–8.    Recognizing Appellant from a prior police contact, the

officers pulled up to the curb, and Officer Rosa asked Appellant for his name.

Id. at 8. Such a request for information need not be supported by any level

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of suspicion and carries no official compulsion to stop or to respond. Baldwin,

147 A.3d at 1202. Officer Rosa did not ask any more questions or instruct

Appellant to stop and wait. N.T., 3/24/09, at 8. Therefore, no investigative

detention occurred. Baldwin, 147 A.3d at 1202.

      Viewing the totality of the circumstances, the facts of record establishing

reasonable suspicion to support the pursuit of Appellant include the following:

Officer Rosa was a seven-year veteran officer. N.T., 3/24/09, at 6. While

driving in their patrol car, the police officers happened upon Appellant

standing on the step of a house at 1:20 in the morning. Id. at 6–8. Although

Officer Rosa did not testify that this incident occurred in a high crime area, he

did state that he had made almost a hundred arrests in the “general area of

the 3100 block of North Sheridan Street” for “narcotics and guns.” Id. at 7,

11–12. As the factfinder, the trial court drew a reasonable inference that the

area supported criminal activity. Id. at 37–38. As Officer Rosa alighted from

his vehicle, Appellant fled. Id. at 9. These factors—the time of day, Officer

Rosa’s recognition of Appellant, and the criminal nature of the area—

distinguish this case from the facts recited by the Matos Court.

      Based on the record before us, we conclude the police officers had

reasonable suspicion that Appellant was criminally engaged when they began

their pursuit. While fleeing lawful police pursuit, Appellant discarded a silver

handgun in the alley.     This created probable cause to arrest him.        See

Commonwealth v. Taggart, 997 A.2d 1189, 1196-1197 (Pa. Super. 2010)


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(“[A]n officer’s observation of an individual carrying a handgun on public

streets in the city of Philadelphia gives rise to probable cause for arrest under

[18 Pa.C.S.A.] § 6108”). Once Appellant abandoned his gun, “the police were

free to retrieve it and use it for evidentiary purposes.” Commonwealth v.

Byrd, 987 A.2d 786, 794 (Pa. Super. 2009). Accordingly, we hold that the

trial court did not err in denying Appellant’s motion to suppress.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/18




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