J-S32038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                      v.

STEVEN STANSBURY

                            Appellant                     No. 656 EDA 2016


           Appeal from the Judgment of Sentence February 16, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0002569-2015

BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                        FILED SEPTEMBER 14, 2017

        Appellant, Steven Stansbury, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his

bench trial convictions for possession and possession with intent to deliver a

controlled    substance,1    violations   of   the   Uniform   Firearms   Act,2   and

possessing an instrument of crime.3 Appellant contends the court erred by

denying his suppression motion. We affirm.

        The relevant facts of this case, as set forth by the suppression court,

are as follows:


*
    Former Justice specially assigned to the Superior Court.
1
    35 Pa.C.S. § 780-113(a)(16), (30).
2
    18 Pa.C.S. §§ 6105, 6106, 6108.
3
    18 Pa.C.S. § 907(a).
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        The trial testimony established that at approximately 3:37
        p.m. on February 24, 2015, plain-clothed Police Officers
        James Balmer and Anthony Britton responded to a radio
        call of “Robbery in progress” on the 6100 block of Walnut
        Street in Philadelphia. The flash information provided was
        "a black male, wearing all black clothing, five foot eight
        inches tall, black female, orange shirt, black jacket."
        These officers observed a female fitting the flash
        information standing outside of a store, soon joined by a
        male, again fitting the flash description. The officers
        confirmed the flash information and stopped the two
        individuals for investigation, one of which was [Appellant].
        When asked for identification, [Appellant] complied and
        then started to flee. Officer Balmer went to grab
        [Appellant], got a hold of his jacket, which [Appellant]
        slipped out of and continued his flight. While running into
        an alley, with the police officer about seven to ten feet
        behind him, [Appellant] discarded a black and silver
        handgun at the alleyway entrance. About half a block
        away, on 62nd Street, Officer Balmer and Officer Seda,
        another patrol officer who had just arrived at the scene,
        apprehended [Appellant]. When apprehended, [Appellant]
        stated that `this was his second drug and gun pinch that
        he was on four years’ probation and that he was going
        away for a long time.’ The robbery victims were never
        located, nor the gun recovered.         Officer Pablo Seda
        testified that he recovered the discarded black jacket with
        sixteen yellow baggies containing marijuana as well as new
        and unused baggies, and two hundred and sixty five
        dollars was confiscated from [Appellant].       The parties
        stipulated to the chemist reports, a certificate of non
        licensure, and to an expert's testimony that the marijuana
        was possessed with the intent to deliver.

Suppression Ct. Op., 8/1/16, at 4-5 (citations omitted).

     We also note the following testimony regarding Appellant’s police

interaction with the officers, which was elicited on cross-examination

between Appellant’s counsel and Officer Balmer:

        Q. And you got out the vehicles--the vehicle and identified
        yourself as police officers immediately?


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       A. That's correct.

       Q. Did you have a badge pulled out–

       A. Correct.

       Q. -and displayed? And even though the information that
       you had initially was--this was a robbery in progress at
       gunpoint, it's your testimony that you did not have a
       weapon drawn at the time?

       A. That’s correct. I did not have my weapon drawn.

       Q. Did you have your hand on your weapon?

       A. I don’t recall.

                                 ***

       Q. Now, you said that you were told the--well, you dealt
       with [Appellant] and your partner dealt with the female?

       A. Correct.

       Q. And-but essentially told them that you were stopping
       them for investigation?

       A. Correct.

       Q. And you, basically, were not going to let them leave
       until you resolve whether or not these people have been
       involved in a robbery, correct?

       A. That is correct.

       Q. Now, at some point in this conversation you're having
       with Mr. Stansbury, you asked him to provide you with ID,
       right?

       A. Yes.

       Q. Which he did?

       A. Correct.


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       Q. And he gave you-went into his pocket and pulled out his
       wallet and got his ID?

       A. I don't know exactly where he pulled it from. I don't
       remember. But he did hand me his ID card.

       Q. Okay. Now, at this point you were-made no attempt to
       frisk him for your safety or anything like that?

       A. Not as of yet.

       Q. Didn't seem necessary? He was being relatively
       cooperative, wasn't doing anything–

       A. He was being cooperative. Correct.

       Q. And after he provided you with his ID, at some point
       thereafter he decided he wasn't going to stay?

       A. Correct.

       Q. Now, when he made that decision, were you holding
       onto him in any way?

       A. I believe I had his ID in my hand. I was not holding on
       to him.

       Q. His jacket came off?

       A. When he started to run, I grabbed his jacket.

       Q. Well, you grabbed him, presumably?

       A. His jacket, he spun out of it. So I had an empty jacket
       in my hand.

       Q. Okay. So when you grabbed his jacket, you what?
       Grabbed his arm? Grabbed his –

       A. I don't remember exactly where I grabbed him, but I
       grabbed his jacket. He spun out of it. The jacket went to
       the ground. I continued chasing him.



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N.T., 12/8/15, at 21-24.

        Appellant was arrested and charged with the aforementioned crimes

on February 25, 2015. Appellant filed a motion to suppress which the trial

court denied after a suppression hearing on December 8, 2015. Appellant

proceeded immediately to a bench trial wherein he was convicted of the

above-referenced      charges   but   acquitted   of   tampering   with   physical

evidence.4     On February 16, 2016, the court sentenced Appellant to an

aggregate term of four to eight years’ imprisonment followed by two years of

probation. Appellant timely appealed, and both Appellant and the trial court

complied with Pa.R.A.P. 1925.

        Appellant raises a single issue for our review:

           Did not the trial court err in denying [A]ppellant’s motion
           to suppress physical evidence, where the investigating
           officers, acting on an anonymous police radio call, lacked
           reasonable suspicion or probable cause justifying the
           detention, arrest, frisk or search of [A]ppellant, where
           [A]ppellant’s flight and the recovery of marijuana and
           observations of a discarded gun were the fruit of an initial
           stop, and where their recovery and use at trial therefore
           violated the Fourth and Fourteenth Amendments to the
           United States Constitution and Article I, Section 8 of the
           Pennsylvania Constitution?

Appellant’s Brief at 3.

        Appellant argues that the trial court erred by denying his suppression

motion because he was effectively “seized” from the inception of his

encounter with Officers Balmer and Britton. To this end, Appellant highlights

4
    18 Pa.C.S. § 4910(1).



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Officer Balmer’s testimony where he “conceded that [A]ppellant was not free

to leave, as the officer was going to restrain him until the officer determined

whether [A]ppellant was involved in a robbery.”         Id. at 19.      Further,

Appellant claims that the seizure constituted an investigatory detention

which was not supported by reasonable suspicion.         Appellant specifically

asserts that the anonymous caller’s report of a robbery in progress with only

a vague physical description of Appellant, was insufficient information to

establish the reasonable suspicion necessary for an investigatory detention.

Therefore, Appellant asserts, the contraband discovered in his jacket and the

gun he jettisoned during his flight, were the product of an unlawful seizure

and should have been suppressed.

      When considering a challenge to a suppression motion,

         [we are] 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, [the
         appellate court is] bound by [those] findings and may
         reverse only if the court’s legal conclusions are erroneous.
         Where . . . the appeal of the determination 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 the courts below are subject to [ ]
         plenary review.




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Commonwealth v. Parker, 161 A.3d 357, 361-62 (Pa. Super. 2015)

(citation omitted).

      “The Fourth Amendment of the Federal Constitution and Article I,

Section   8   of   the   Pennsylvania   Constitution   protect   individuals   from

unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012).        There are three categories of interactions

between citizens and the police:

          Jurisprudence arising under both charters has led to the
          development of three categories of interactions between
          citizens and police. The first, a “mere encounter,” does
          not require any level of suspicion or carry any official
          compulsion to stop and respond.          The second, an
          “investigatory detention,” permits the temporary detention
          of an individual if supported by reasonable suspicion. The
          third is an arrest or custodial detention, which must be
          supported by probable cause.

              In evaluating the level of interaction, courts conduct an
          objective examination of the totality of the surrounding
          circumstances. . . .

              The totality-of-the-circumstances test is ultimately
          centered on whether the suspect has in some way been
          restrained by physical force or show of coercive authority.
          Under this test, no single factor controls the ultimate
          conclusion as to whether a seizure occurred—to guide the
          inquiry, the United States Supreme Court and [our
          Supreme] Court have employed an objective test entailing
          a determination of whether a reasonable person would
          have felt free to leave or otherwise terminate the
          encounter.     What constitutes a restraint on liberty
          prompting a person to conclude that he is not free to leave
          will vary, not only with the particular police conduct at
          issue, but also with the setting in which the conduct
          occurs.




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         [Our Supreme] 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. 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. Although police may request a
         person’s identification, such individual still maintains the
         right to ignore the police and go about his business.

Commonwealth v. Lyles, 97 A.3d 298, 302-03 (Pa. 2014) (citations and

quotation marks omitted).

      When determining whether an interaction between law enforcement

and a citizen constitutes a mere encounter or a seizure:

         The pivotal inquiry in making this determination is whether
         a reasonable person innocent of any crime, would have
         thought he . . . is being restrained had he . . . been in the
         defendant’s shoes. A Court must examine all surrounding
         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. If a reasonable person would not feel free to
         terminate the encounter with police and leave the scene,
         then a seizure of that person has occurred.

Commonwealth v. Chambers, 55 A.3d 1208, 1215 (Pa. Super. 2012)

(citation omitted).

      It is well settled that “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, 1005-07 (Pa.

2012) (officer’s late night interaction with passengers in a parked car, while

on routine patrol, constituted a mere encounter even though the officer



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asked the occupants for identification); Lyles, 97 A.3d at 305-06 (officer’s

contact   with   defendant     constituted   a   mere   encounter   when   officer

approached defendant and asked for identification and wrote down the

information; officer did not brandish a weapon or threaten the defendant).

Commonwealth v. Baldwin, 147 A.3d 1200, 1204 (Pa. Super. 2016)

(officer’s interaction with defendant was a mere encounter where officer

approached defendant in a parking lot, did not activate his patrol car’s

lights/siren or physically block the path of defendant but instead asked for

defendant’s identification).

      However, this Court has held that “the combination of the threatening

presence of several officers and the indication that the [defendant] was

suspected of criminal activity [requires the conclusion that] a reasonable

person would believe that he was not free to leave.” Parker, 161 A.3d at

363-64 (citations omitted) (officers’ interaction with defendant constituted

an investigatory detention because two officers were present and suggested

that defendant was suspected of criminal activity at a particular restaurant).

Further, it is beyond cavil “that where a citizen approached by a police

officer is ordered to stop . . . obviously a ‘stop’ occurs.” Commonwealth v.

Morrison,__ A.3d __, __, 2017 WL 2665151 at * 4-5 (Pa. Super. June 21,

2017) (citation omitted) (an officer’s interaction constituted an investigatory

detention rather than a mere encounter when he directed the defendant to

“stop” twice).



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      Significantly here, we also recognize that a defendant’s unprovoked

flight in a high crime area is a relevant factor in determining whether officers

had the requisite probable cause to “seize” a defendant through pursuit. In

re D.M., 781 A.2d 1161, 1164-65 (Pa. 2001) (applying the totality of the

circumstances test to find that defendant’s flight from the scene together

with an anonymous tip was relevant in determining that police had

reasonable suspicion to justify an investigatory detention).

      In the case sub judice, we must begin by determining whether

Appellant’s initial interaction with police constituted a mere encounter or an

investigatory detention. See Lyles, 97 A.3d at 302-03. Officers Balmer and

Britton did not make physical contact with Appellant nor did they tell him to

“stop.” See Baldwin, 147 A.3d at 1204. The officers also did not accuse

Appellant of involvement in specific criminal activity. See Parker, 161 A.3d

at 363.   These factors weigh in favor of a determination that the initial

interaction was a mere encounter.      See Chambers, 55 A.3d 1208, 1215

Further, the officers’ request for identification did not transform a mere

encounter into an investigatory detention. See Au, 42 A.3d at 1005; Lyles,

97 A.3d at 302-03; Baldwin, 147 A.3d at 1204.

      The crux of Appellant’s argument lies in his contention that Officer

Balmer admitted at trial that he did not intend to let Appellant leave until he

resolved whether Appellant was involved in a robbery.             However, an

objective test as to Appellant’s perception of whether he was free to leave is



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the relevant inquiry, not Officer Balmer’s subjective expectations as

formulated by defense counsel. See Lyles, 97 A.3d at 302-03; Chambers,

55 A.3d at 1215. Thus, we conclude that under the totality of the

circumstances, Appellant’s initial interaction with the officers constituted a

mere encounter, which did not require reasonable suspicion. Moreover, we

conclude that Appellant’s sudden flight, coupled with the description

provided in the anonymous radio call, were sufficient to establish the

requisite reasonable suspicion the officer needed to pursue Appellant. See

In re D.M., 781 A.2d at 1164-65. Therefore, we hold that the contraband

discarded during Appellant’s flight was not recovered incident to an unlawful

seizure and the trial court properly denied Appellant’s motion to suppress

this evidence. Accordingly, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/14/2017




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