J-S17038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MICAH ANTHONY GOVENS,

                        Appellant                   No. 1673 EDA 2016


          Appeal from the Judgment of Sentence of April 27, 2016
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0000147-2016


COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MICAH ANTHONY GOVENS,

                        Appellant                   No. 1683 EDA 2016


          Appeal from the Judgment of Sentence of April 27, 2016
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0002608-2015

BEFORE: OLSON, STABILE and MUSMANNO, JJ.

DISSENTING MEMORANDUM BY OLSON, J.:                    FILED MAY 22, 2017

      As I believe that the suppression court properly denied Appellant’s

motion to suppress, I must respectfully dissent.

      I agree with the learned Majority that, at the time Officer Kevin

Schiller and Officer Roosevelt Turner stopped Appellant, Appellant was

subject to an investigative detention. I also agree that the law is clear that
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police officers may conduct an investigative detention only if they have

reasonable suspicion that criminal activity is afoot. Commonwealth v.

Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en banc) (“A police officer

may detain an individual in order to conduct an investigation if the officer

reasonably suspects that the individual is engaging in criminal conduct.”)

Thus, the issue in this case is whether Officer German Sabillon possessed

reasonable suspicion that Appellant was engaged in criminal conduct when

he directed his fellow officers to stop Appellant.       I conclude that he did,

therefore, I believe that Appellant’s detention was lawful and that the

evidence seized upon the search of Appellant’s person should not be

suppressed.

      As is well established:

      In order to determine whether the police officer had reasonable
      suspicion, the totality of the circumstances must be considered.
      In making this determination, we must give due weight to the
      specific reasonable inferences the police officer is entitled to
      draw from the facts in light of his experience. Also, the totality
      of the circumstances test does not limit our inquiry to the
      examination of only those facts that clearly indicate criminal
      conduct. Rather, a combination of innocent facts, when taken
      together, may warrant further investigation by the police officer.

Id. (citations and internal quotes omitted).

      In this case, the evidence adduced at the suppression hearing

established the following.      Officer Sabillon, a patrol officer for the City of

Chester Police Department for 11 years, received a call on January 10, 2015

at approximately 1:34 a.m. dispatching him to the Gold Room, a bar located


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in Chester City. N.T., 8/25/15, at 7-8. The dispatch indicated that a large

group of individuals was fighting in the street in front of the bar. Id. at 10.

The Gold Room is located near a high-crime area.          Id. at 12.    Officer

Sabillon indicated that officers are to be in the area of the Gold Room on

Fridays, Saturdays and sometimes Sundays because of the large crowds.

Id. at 10. According to Officer Sabillon, his department typically patrols the

location at the bar’s closing time “[b]ecause of the problems.”     Id. at 13.

The officers usually block the street that leads to the bar to get everyone out

of the area as quickly as possible.    Id.   Officer Sabillon responded to the

Gold Room on many occasions because of various disturbances, including

fights and assaults. Id. at 11. In fact, just one week before this incident,

Officer Sabillon encountered another person with a gun outside the bar. Id.

In his personal experience, Officer Sabillon conducted approximately 20

arrests inside and outside the Gold Room since it opened.       Id. at 11-12.

Those arrests included firearm violations, violent offenses and drug offenses.

Id. at 12.

      On the night in question, the entire shift (approximately eight officers)

and one officer from a neighboring jurisdiction were present at the Gold

Room location. Id. at 13. When Officer Sabillon arrived, there was a crowd

of approximately 50 people gathered outside the bar. Id. at 13-14. A group

of females was fighting in the middle of the street. Id. at 14. The officers

were directing the crowd to disperse. Id. at 45. Although the officers were


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yelling to the crowd to disperse, Appellant refused to move from the front of

the bar. Id.

      Officer Sabillon was in the area near the front of the bar when a

female, who was getting into her car, called him over. Id. at 14. “As [he]

approached, [the woman] said the man right there, kind of like pointed and

gave [Officer Sabillon] a general description, has a gun. He put a gun into

his pocket, she said.”   Id.   The man at which the woman pointed was

Appellant. Id. at 15. Officer Sabillon testified that lights from the bar made

the area bright; therefore, he could clearly see the woman when she talked

with him and Appellant after the woman pointed to him. Id. at 15-16. The

woman was calm when she spoke to the officer. Id. at 18. Officer Sabillon

was more willing to act on the tip provided by this woman since he had a

“person-to-person” encounter with her. Id. at 20. As he testified, “[i]n the

City of Chester, it’s rare for someone to get involved like that. They usually

call and don’t give their name but not a person-to-person . . . encounter, so

that kind of made me . . . act more towards the information given.” Id. At

all times that Officer Sabillon saw Appellant, Appellant’s hands were in his

coat pockets. Id. at 57. When asked whether the fact that Appellant had

his hands in his pockets at all times supported the tip from the woman,

Officer Sabillon testified “Possibly, yes.” Id. at 26. After speaking with the

woman, Officer Sabillon radioed to Officers Schiller and Turner and asked




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them to stop Appellant. Id. at 21. Once detained, Officer Sabillon found a

firearm in the right pocket of Appellant’s coat. Id. at 66.

       Officer Sabillon testified that he acted upon the woman’s tip because

of the shootings and gun arrests from the area.          Id. at 20.    He was

concerned about the safety of the crowd and his fellow police officers,

especially since there were a lot of people, a fight was occurring, and alcohol

was involved. Id. at 20-21.

       After considering these facts in a light most favorable to the

Commonwealth1, I believe that the totality of the circumstances establish

that Officer Sabillon had reasonable suspicion to believe that Appellant was

engaged in criminal conduct at the time he asked his fellow officers to detain

Appellant. Thus, the investigative detention of Appellant was constitutionally

sound and the seizure of the gun and drugs from his person was proper.

       This case is almost on all-fours with Commonwealth v. Ranson, 103

A.3d 73 (Pa. Super. 2014), appeal denied, 103 A.3d 73 (Pa. 2015).           In

Ranson, officers were working an approved off-duty detail at an after-hours

club in a high-crime area in Pittsburgh. Security was needed at the club as

there were prior incidents at the club, including fights, shootings and

____________________________________________


1
  “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.” Commonwealth v. Jones, 988 A.2d
649, 654 (Pa. 2010), cert. denied, 131 S. Ct. 110 (2010).



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homicides.     On the night in question, as the club was letting out at

approximately 3:30 a.m., a frequent patron of the club stopped one of the

officers and told him there was a male on the corner with a firearm. The

patron went on to describe the male as wearing a black hoodie, black jeans

and having a long beard.    “The patron actually pointed the person out to

[the officer] on the corner.”   Id. at 75.   In light of this information, the

officer who received the tip, along with two other officers, approached

Ranson.     As they did so, Ranson put his hands in his hoodie pocket and

started to walk away at which time he was commanded by the officers to

stop.    Once Ranson eventually stopped, he removed his hands from the

hoodie pocket and the officers could see the imprint of a gun. The officers

searched Ranson and recovered a firearm from the front pocket of his hoodie

sweatshirt. Ranson sought to suppress the gun on the basis that the officers

lacked reasonable suspicion to detain him. The trial court denied the motion

and Ranson was convicted of various crimes, including firearms violations.

On appeal, this Court affirmed the trial court’s order denying the motion to

suppress.

        Similar to the argument made in the case sub judice, Ranson argued

that the officers lacked reasonable suspicion that he was engaged in criminal

conduct at the time he was detained. Specifically, Ranson argued that the

tipster was purely anonymous as the officer did not know the tipster’s name.

As such, the tip could not be used to establish reasonable suspicion.      In


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rejecting Ranson’s argument, this Court distinguished the various cases in

which an anonymous, vague tip was found to be insufficient to create a

reasonable suspicion of criminal activity, including Commonwealth v.

Hawkins, 692 A.2d 1068 (Pa. 1997) and Commonwealth v. Haywood,

756 A.2d 23 (Pa. Super. 2000), two of the cases upon which the learned

Majority relies. Instead, the Ranson Court found that the officer received

the tip in person from a patron at the club and that the tip was not vague

since the tipster not only described Ranson, but he pointed him out to the

officer. The Ranson Court found that “[t]aken together, the facts show that

Detective Curry, a veteran officer, had an opportunity to assess: (1) the

demeanor of the tipster; (2) the basis of the tipster’s knowledge; and, (3)

the tipster’s present ability to perceive [Ranson]. These facts give additional

credence   to   the   tipster’s   information.”   Id.   at   79.   See    also

Commonwealth v. Williams, 980 A.2d 667, 672 (Pa. Super. 2009), appeal

denied 990 A.2d 730 (Pa. 2010) (“The situation here is distinguishable in

that the tip was made in person giving [the officer] an opportunity to

observe the witness’ demeanor and assess his credibility in light of this past

experience with investigating crimes. Such a tip must be given more weight

than a mere anonymous phone call . . .”.)

      Like in Ranson and Williams, Officer Sabillon had the opportunity to

observe the tipster’s demeanor and assess her credibility in light of his 11

years of experience as a police officer. Officer Sabillon could clearly see the


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woman who provided the tip and noticed her calm demeanor. He noted the

lighting conditions and confirmed that the woman was able to perceive

Appellant as she was in close proximity to him. Additionally, Officer Sabillon

stated that he was more inclined to believe the woman as it was rare for

people in that community to get involved and provide in-person information

to the police. Thus, the tip given to Officer Sabillon was a legitimate factor

upon which the officer could rely in determining that there was reasonable

suspicion to stop Appellant.2

       Moreover, just like in Ranson, there were additional facts that must

be considered in viewing the totality of the circumstances from the eyes of

Officer Sabillon. The Gold Room is located near a high-crime area and the

bar was the site of prior incidents, including firearm violations, violent crimes

and drug offenses. Since the Gold Room opened, Officer Sabillon personally

arrested approximately 20 individuals inside or outside the bar. In fact, just

one week prior to this incident, Officer Sabillon encountered another person

____________________________________________


2
  The fact that the woman told Officer Sabillon that she saw Appellant put a
gun into his pocket is an even more compelling justification to order the stop
as the statement reveals that Appellant possessed a visible firearm at a bar
late at night in a high-crime area where a physical altercation was occurring.
Under these circumstances, Officer Sabillon had reasonable cause for
concern regarding the safety of the investigating officers and the departing
bar patrons. See Terry v. Ohio, 392 U.S. 1 (1968) (police officer may
search individual's outer clothing to discover weapons which might endanger
officer or others if officer observes unusual and suspicious conduct on the
part of the individual which leads him reasonably to conclude that criminal
activity may be afoot and that the individual may be armed and dangerous).



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outside of the Gold Room who had a gun. “Thus, there was a credible basis

from which the officers could infer that the people in and near the club had

weapons.”      Ranson, 103 A.3d at 80.           Like in Ranson, officers from the

Chester City Police Department, including Officer Sabillon, were assigned in

the past to patrol the area outside the Gold Room at closing time to make

sure things remained calm and peaceful.            On the night in question, there

were approximately 50 people outside the bar and a group of women was

fighting.    Nine police officers were trying to control the situation and

disperse the crowd by directing everyone to leave.               Although told to

disperse, Appellant refused to leave and remained standing outside of the

bar. At all times that he was observed by Officer Sabillon, Appellant had his

hands in his coat pockets. Each of these factors, standing alone, may not be

sufficient to establish reasonable suspicion; however, taken in their totality,

they are sufficient to have reasonably led Officer Sabillon to believe that

criminal activity was afoot so as to justify the investigative detention of

Appellant. Thus, in considering the totality of the facts and circumstances,

and after applying our standard of review3, I must conclude that the trial

____________________________________________


3
  “Our standard of review in addressing a challenge to the denial of a
suppression motion is

       limited to determining whether the suppression court’s factual
       findings are supported by the record and whether the legal
       conclusions drawn from those facts are correct. . . . Where the
       suppression court’s factual findings are supported by the record,
(Footnote Continued Next Page)


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court did not err in denying Appellant’s suppression motion. Hence, I must

respectfully dissent.




                       _______________________
(Footnote Continued)

      we are bound by those findings and may reverse only if the
      court’s legal conclusions are erroneous. The suppression court’s
      legal conclusions are not binding on an appellate court, whose
      duty it is to determine if the suppression court properly applied
      the law to the facts. Thus, the conclusions of law of the courts
      below are subject to our plenary review.”

Ranson, 103 A.3d at 76, quoting Jones, 988 A.2d at 654 (citations,
quotations and ellipses omitted).



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