J-S57008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

KEVIN LOWE

                        Appellant                     No. 1470 EDA 2014


                   Appeal from the Order April 23, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): MC-51-CR-0017506-2013

BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                          FILED JANUARY 12, 2016

     Appellant, Kevin Lowe, appeals from the April 23, 2014 order denying

his writ of certiorari to the Court of Common Pleas from the order entered in

municipal court denying his motion to suppress.       After careful review, we

reverse and order Appellant discharged.

     The trial court set forth the relevant facts as follows.

                 At the suppression hearing, on December 4,
           2013, Philadelphia Police Officer Washington testified
           that he was on duty on May 5, 2013 at
           approximately 3:00 AM, when he encountered []
           [A]ppellant at or near the 2100 block of Cambria
           Street in Philadelphia. [Officer Washington stated
           this block was the location of occasional robberies
           and that he knew it for narcotics.]

                 At that time and place, the officer indicated
           that he received a radio call for a person with a gun
           in that vicinity. The flash information pointed to a
           male wearing red possessing the gun. As the police
           approached the area, they noticed [Appellant] fitting
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              the flash information and as Officer Washington
              trie[d] to make contact with him, he fled eastbound
              on the 200[0] block of Cambria Street and holding
              the right side of his hoody pocket.             Once
              apprehended, [] [A]ppellant was handcuffed and
              patted down.       During that process [O]fficer
              Washington felt a small box consistent with narcotics
              packaging [in the right side of Appellant’s hoody
              pocket]. In fact as he withdrew the package from []
              [A]ppellant, he discovered five [] small zip-lock
              baggies, containing an off-white substance believed
              to be [crack] cocaine. [Police did not recover a
              firearm.] …

                    There was no one else on the street present at
              the time of the approach of [Appellant] and no one
              else fitting the description from the flash
              information.

Trial Court Opinion, 1/22/15, at 1-2 (citations omitted).

        Based on the foregoing, the Commonwealth charged Appellant with

one count of knowingly or intentionally possessing a controlled substance.1

On December 4, 2013, Appellant litigated, in the Philadelphia Municipal

Court, a motion to suppress the five baggies of narcotics.       Following an

evidentiary hearing, the suppression court denied Appellant’s motion to

suppress. The case proceeded to a trial, and the trial court found Appellant

guilty of the aforementioned charge. Immediately thereafter, the trial court

sentenced Appellant to 15 months’ probation. Appellant subsequently filed a

petition for a writ of certiorari to the Court of Common Pleas, challenging the

denial of his motion to suppress. On April 23, 2014, the Court of Common
____________________________________________


1
    35 P.S. § 780-113(a)(16).



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Pleas denied Appellant’s petition.        Thereafter, on May 13, 2014, Appellant

timely filed a notice of appeal.2

       On appeal, Appellant raises the following issue for our review.

                     Where the officer who originally stopped and
              frisked [A]ppellant had neither reasonable suspicion
              to stop and frisk nor probable cause to arrest and
              search him on the basis of an anonymous radio
              call[,] was not the search and seizure a violation of
              the Fourth and Fourteenth Amendments to the
              United States Constitution and Article I, Section 8 of
              the Pennsylvania Constitution and further did not the
              officer then exceed the permitted scope of a frisk,
              violating the “plain-feel” doctrine, by subjecting
              [A]ppellant to a search of his person after feeling
              items that were not immediately apparent as
              contraband?

Appellant’s Brief at 3.

       Appellant challenges the denial of his motion to suppress.           Our

standard of review is as follows.

                    In addressing a challenge to a trial court’s
              denial of a suppression motion, we are limited to
              determining whether the factual findings are
              supported by the record and whether the legal
              conclusions drawn from those facts are correct.
              Since    the    Commonwealth      prevailed  in  the
              suppression court, we may consider only the
              evidence of the Commonwealth and so much of the
              evidence     for  the    defense     as   it 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

____________________________________________


2
 Appellant and the Court of Common Pleas have complied with Pennsylvania
Rule of Appellate Procedure 1925.



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              those facts and may reverse only if the legal
              conclusions drawn therefrom are in error.

Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)

(citation omitted), appeal denied, 102 A.3d 985 (Pa. 2014).

     Moreover, Pennsylvania Rule of Criminal Procedure 581(H) provides

that in a suppression hearing, “[t]he Commonwealth shall have the burden

of going forward with the evidence and of establishing that the challenged

evidence    was   not   obtained   in   violation   of   the    defendant’s      rights.”

Pa.R.Crim.P. 581(H).       The standard of proof is a preponderance of the

evidence.     Id. at cmt., citing Commonwealth ex rel. Butler v. Rundle,

239 A.2d 426 (Pa. 1968).

     First,    Appellant   challenges   the   legality   of    his   stop   by   Officer

Washington.     Resolution of this issue is dependent upon the nature of the

interaction between Appellant and the police.

                     The   Fourth    Amendment       of  the    U.S.
              Constitution and Article I, Section 8 of our state
              Constitution protect citizens from unreasonable
              searches and seizures.      To safeguard this right,
              courts require police to articulate the basis for their
              interaction with citizens in increasingly intrusive
              situations:

                          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

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                    equivalent of an arrest. Finally, an arrest or
                    “custodial detention” must be supported by
                    probable cause.

              Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.
              Super. 2012) (citation omitted)[, appeal denied, 50
              A.3d 124 (Pa. 2012)].

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

denied, 65 A.3d 413 (Pa. 2013).

      The parties and the Court of Common Pleas agree that Officer

Washington effected an investigative detention, but disagree as to when the

stop occurred.      Appellant contends that he was detained when Officer

Washington initially approached him and verbally attempted to stop him.

Appellant’s Brief at 8-9. The Commonwealth asserts that Appellant was not

subjected to an investigative detention until after he fled and Officer

Washington caught him. Commonwealth’s Brief at 7. The trial court agreed

with the Commonwealth’s position. Trial Court Opinion, 1/22/15, at 5-6.

      We conclude that Appellant was stopped when Officer Washington

verbally indicated that Appellant was not free to leave. As noted above, it is

the Commonwealth’s burden to show that Appellant’s rights were not

violated. Pa.R.Crim.P. 581(H). As a result, once Appellant alleged that he

was seized when Officer Washington verbally called out to him, the

Commonwealth must demonstrate that he was not seized.               See id.      Our

review   of   the   record   of   the   suppression   hearing   reveals   that   the

Commonwealth did not meet its burden.


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      Officer Washington testified that when he saw Appellant matched the

radio description of “a male that was wearing red,” he pulled his marked

police vehicle over, exited the car, and “attempted to stop [Appellant]” by

issuing a verbal command.     N.T., 12/4/13, at 7, 10.       Officer Washington

further testified that he did not recall “verbatim what may have come out of

[his] mouth,” and that he may have said “[l]et me see your hands,” “hey,

you,” or “stop” in the attempt to stop Appellant. Id. at 11. This evidence,

that Officer Washington exited his vehicle and immediately issued a verbal

command to Appellant to attempt to stop him, leads us to conclude that the

Commonwealth did not prove that it was more likely than not that Appellant

was under no official compulsion to stop. See Commonwealth v. Ranson,

103 A.3d 73, 77 (Pa. Super. 2014) (concluding that an investigative

detention occurs when police orally order a citizen to stop), appeal denied,

117   A.3d   296   (Pa.   2015);   Pa.R.Crim.P.   581(H);     McAdoo,    supra.

Accordingly, the record does not support the trial court’s finding that “[t]he

officer cannot recall what he said at the time of the encounter but it appears

that it was not an authoritative shout or gesture.”         Trial Court Opinion,

1/22/15, at 5-6. The Commonwealth did not prove by a preponderance of

the evidence that Officer Washington’s statement, which Officer Washington

acknowledged he made in an attempt to stop Appellant, was not a




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compulsion to stop.3       Therefore, under the circumstances of this case, we

conclude that Appellant was subjected to an investigative detention at this

point. See Pa.R.Crim.P. 581(H); McAdoo, supra.

       Because Appellant was subjected to an investigative detention when

Officer Washington verbally called out to him, that stop must have been

supported by reasonable suspicion.             See McAdoo, supra.   Our Supreme

Court has defined reasonable suspicion as follows.

                     Reasonable suspicion is a less stringent
              standard than probable cause necessary to
              effectuate a warrantless arrest, and depends on the
              information possessed by police and its degree of
              reliability in the totality of the circumstances. In
              order to justify the seizure, a police officer must be
              able to point to specific and articulable facts leading
              him to suspect criminal activity is afoot.           In
              assessing the totality of the circumstances, courts
              must also afford due weight to the specific,
              reasonable inferences drawn from the facts in light of
              the officer’s experience and acknowledge that
              innocent facts, when considered collectively, may
              permit the investigative detention.
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3
   We are cognizant that “the police officer’s subjective intent does not
govern the [custody] determination,” but we must ascertain “the reasonable
belief of the individual being interrogated.” Commonwealth v. Zogby, 689
A.2d 280, 282 (Pa. Super. 1997), appeal denied, 698 A.2d 67 (Pa. 1997).
We do not conclude that Appellant was subject to an investigative detention
based on Officer Washington’s subjective belief. Instead, we conclude that
the Commonwealth could not meet its burden to show that Appellant was
not subjected to an investigative detention when the only evidence it
presented was Officer Washington’s testimony that he did not remember the
exact phrase he employed, but expressed his intent in initiating the
encounter and making the statement was to stop Appellant. Based on these
circumstances, we conclude that the command to Appellant likely made
Appellant believe that he was not free to leave.



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                                               …

                    The determination of whether an officer had
              reasonable suspicion that criminality was afoot so as
              to justify an investigatory detention is an objective
              one, which must be considered in light of the totality
              of the circumstances. It is the duty of the
              suppression    court   to   independently    evaluate
              whether, under the particular facts of a case, an
              objectively reasonable police officer would have
              reasonably suspected criminal activity was afoot.

Commonwealth v. Holmes, 14 A.3d 89, 95-96 (Pa. 2011) (internal

citations, quotation marks, and emphasis omitted).

       Appellant argues that the anonymous radio call for a man wearing red

with a gun cannot be the sole basis for reasonable suspicion.          Appellant’s

Brief at 7.4 Our Supreme Court has explained that an anonymous tip alone

cannot supply reasonable suspicion to stop and frisk a citizen because an

anonymous tip is unreliable. Commonwealth v. Jackson, 698 A.2d 571,

576 (Pa. 1997).         Further, merely viewing a person who matches the

description of the anonymous tip does not corroborate the tip’s allegations of

criminal conduct.        Id. at 574-575 (citation omitted).     Instead, when

investigating an anonymous tip, the police need an independent basis to

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4
  The Commonwealth and the trial court did not address whether there was
reasonable suspicion to seize Appellant when Officer Washington
commanded Appellant to stop. Instead, they determined that Appellant was
not stopped until he was seized after he fled. Commonwealth’s Brief at 6;
Trial Court Opinion, 1/22/15, at 6.




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corroborate the tip’s allegations of criminal activity before a seizure is

effectuated.   Id. at 574; see also Commonwealth v. Foglia, 979 A.2d

357, 360 (Pa. Super. 2009) (en banc) (“if the person described by the

[anonymous] tipster engages in other suspicious behavior … reasonable

suspicion justifying an investigatory detention is present[]”), appeal denied,

990 A.2d 727 (Pa. 2010).

      Here, the anonymous tip that a male wearing red had a gun did not

give Officer Washington reasonable suspicion to stop Appellant for suspected

possession of a firearm. See Jackson, supra at 576. The anonymous tip

was vague and particularly unreliable.     The entirety of the tip was that a

“male wearing red” had a gun. It did not contain any other distinguishing

personal information, such as height, weight, race, or unique features.       It

did not identify which article(s) of clothing were red, and it did not describe

any distinctive characteristics of the clothing, such as a pattern or a logo (or

the absence thereof). Further, it did not relate any other clothing that the

person was wearing. Moreover, the tip did not identify a specific street or

intersection where the “male wearing red” was located.        Additionally, the

anonymous tip was not predictive of Appellant’s future behavior. Therefore,

this anonymous tip did not provide reasonable suspicion to conduct an

investigative detention of Appellant. See id.

      Even though the anonymous tip itself was not reliable, we proceed to

examine whether the circumstances revealed additional information that


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could corroborate the anonymous tip and give rise to reasonable suspicion to

support the investigative detention.           See Foglia, supra.    Specifically,

shortly after receiving the flash bulletin, the police investigated the report

and observed Appellant sitting on the street, alone, in a high crime area at

3:00 a.m.5 N.T., 12/4/13, at 7. When they saw Appellant, the police did

not observe Appellant in possession of a firearm.         Id.   Appellant’s mere

presence in a high-crime area, without more, was not sufficient to

corroborate the allegation of the anonymous tip that Appellant had a gun.

See Commonwealth v. Ayala, 791 A.2d 1202, (Pa. Super. 2002)

(concluding that reasonable suspicion did not exist where the suspect, who

matched the description contained in an anonymous tip, was in the

passenger’s seat of a parked car in a high crime area because the suspect

did not engage in any suspicious conduct); see also In re D.M., 781 A.2d

1161, 1163 (Pa. 2001) (noting “[t]he [United States Supreme] Court[, in

Illinois v. Wardlow, 528 U.S. 119 (2000),] acknowledged that mere

presence in a high crime area was insufficient to support a finding of

reasonable suspicion[]”). Further, the police responding to the anonymous

tip did not observe Appellant engage in any independent conduct that would

give rise to reasonable suspicion of any other criminal activity, nor did they

____________________________________________


5
   Because we have concluded that Officer Washington effected the
investigative detention before Appellant fled, we do not consider the flight or
what occurred thereafter in our reasonable suspicion analysis.



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see Appellant in possession of a gun.                See Foglia, supra; compare

Commonwealth v. Zhahir, 751 A.2d 1153, 1157 (Pa. 2000) (explaining

that an officer’s observation of suspect’s suspicious and furtive movements,

consistent with narcotics trafficking, in an area associated with criminal

activity, corroborated an anonymous tip).              Instead, police saw Appellant

sitting on the street, decided he matched the anonymous tip of a “male

wearing red,” and immediately seized him for an investigative detention. In

these circumstances, the investigative detention was not supported by

reasonable suspicion.        As such, the stop was unlawful and the evidence

seized as a result thereof must be suppressed.6 See Scarborough, supra.

       For the foregoing reasons, we conclude that the Court of Common

Pleas erred in denying Appellant’s petition for writ of certiorari and that the

suppression     court   erred    in   denying      Appellant’s   motion   to   suppress.

Therefore, the Court of Common Pleas’ April 23, 2014 order is reversed.

Further, in the absence of the five baggies of narcotics, there is no other

evidence that Appellant engaged in any unlawful act. Consequently, he is

entitled to a discharge. See Commonwealth v. Berkheimer, 57 A.3d 171,

190 (Pa. Super. 2012) (en banc) (issuing a discharge after reversing a



____________________________________________


6
  Because we have reversed the trial court’s order on this basis, we need not
discuss the issue of whether the officer exceeded the scope of the plain feel
doctrine by seizing the five baggies following a pat down.



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suppression order because there was no other evidence against the

defendant).

     Order reversed. Appellant discharged. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




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