J-A22003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DARRYL WHITE                               :   No. 103 EDA 2017

                    Appeal from the Order November 28, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0012105-2015


BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.:                          FILED FEBRUARY 08, 2019

        The Commonwealth appeals from the order granting Appellee Darryl

White’s suppression motion.1 The Commonwealth asserts that the trial court

erred when it suppressed a gun that Appellee discarded while being pursued

by police officers. We reverse the order granting suppression and remand for

further proceedings.

        On October 14, 2015, Appellee was arrested and charged with firearms

not to be carried without a license and carrying a firearm in Philadelphia.2


____________________________________________


*   Former Justice specially assigned to the Superior Court.

1  The Commonwealth certified that the trial court’s suppression order
terminated or substantially handicapped the prosecution of this matter at the
time it filed its notice of appeal from this interlocutory order. See Notice of
Appeal, 12/27/16; Pa.R.A.P. 311(d).

2   18 Pa.C.S. §§ 6106(a) and 6108, respectively.
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Appellee filed a motion to suppress evidence of the firearm recovered from

the incident. See Omnibus Mot., 12/29/15, at 1 (unpaginated).

       We summarize the evidence presented at the hearing on Appellee’s

motion to suppress. Philadelphia Police Officer Mark Trani testified that on

October 14, 2015, at about 5:30 p.m., he and his partner, Officer William

Beck, were on patrol in uniform in a marked police car. The officers observed

a crowd of ten to twelve males on the 1700 block of South Hollywood Street,

Philadelphia. Officer Trani described the area as a high crime area in which

he had made multiple arrests related to domestic incidents. Office Trani also

indicated that he had been informed of shootings and drug activity in the area

during pre-shift briefing.

       The officers stopped to disperse the crowd. When Officer Trani exited

his vehicle to urge the crowd to move, he made eye contact with Appellee.

Officer Trani stated that he observed Appellee “start walking away, . . . turn[],

grab[] his waistband, and start[] running” away from the crowd.             N.T.

Suppression Hr’g, 8/11/16, at 5. After Appellee started running, Officer Trani

told him to stop. Officer Trani testified that he then began to chase Appellee,

and observed Appellee take out and hold a silver revolver in his hand. Officer

Trani then saw Appellee drop the firearm in the sewer. The parties stipulated

that a loaded .38 caliber Taurus handgun was recovered from the sewer.3

____________________________________________


3 Officer Beck also testified at the suppression motion hearing. His account of
the events corroborated Officer Trani’s testimony that neither officer said



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       On cross-examination, Officer Trani agreed that shortly after the

incident he had given a statement to detectives in which he indicated that

“police began chasing [Appellee] and then he pulled out a silver handgun from

his waistband and had the gun in his right hand.” Id. at 13 (emphasis added).

When asked for clarification of the order in which Appellee took out the gun

and Officer Trani began chasing him, the following exchange took place:

       Q. So, which one is it?

       A. Starting to run, took out the gun, start chasing him.

       Q. So when you told detectives that you started chasing him then
       he pulled out the handgun, that was incorrect?

       A. I believe so.

Id. Officer Trani also indicated that he and Officer Beck had “stopped a group

of males for investigation and that’s when [Appellee] walked off.”4 Id. at 11.

       Following argument on the motion to suppress, the trial court held the

motion under advisement.          On November 28, 2016, the court granted the

motion to suppress. This timely interlocutory appeal as of right followed.



____________________________________________


anything before Appellee began to run and that Officer Trani told Appellee to
stop after Appellee began running. See N.T. Suppression Hr’g, 8/11/16, at
23-24.

4 At the suppression motion, Appellee’s counsel initially argued that the group
was seized by the “investigation,” and therefore Appellee was seized before
walking and then running away. However, counsel conceded that the police
first engaged in a mere encounter with the crowd before Appellee began to
walk away. See N.T. Suppression Hr’g, 8/11/16, at 29-30.




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      The Commonwealth and the trial court complied with Pa.R.A.P. 1925.

In its Rule 1925(a) opinion, the court found that

      the officers pulled up and got out of their vehicle, for no other
      reason than to disperse a milling crowd solely because it was
      blocking a sidewalk and part of a street, and as they were
      approaching the crowd [Appellee], who was presumably a
      member of it, started to walk away, [Officer] Trani and [Appellee]
      caught each other’s eye, which could have given [Appellee] the
      impression that he was being approached with the obvious
      intention to detain and question him, [Appellee] started running
      away, [Officer] Trani yelled “stop” and started chasing him and
      then he started reaching for his waistband, pulled out the gun and
      dropped it in the sewer.

Trial Ct. Op., 1/19/17, at 5-6. Based upon these findings, the court concluded

that suppression was warranted since the pursuit was unjustified and caused

the abandonment of the firearm. Id. at 6.

      On appeal, the Commonwealth raises the following question for our

review:

      Did the [trial] court err in ruling that there was no reasonable
      suspicion to stop [Appellee] when police officers in a high crime
      area saw [Appellee] look in their direction, grab at his waistband
      in a manner consistent with having a weapon, and immediately
      flee?

Commonwealth’s Brief at 4.

      The Commonwealth asserts that the trial court erred in concluding that

Appellee’s abandonment of the firearm was preceded by an illegal seizure.

Id. at 8. According to the Commonwealth, the officers’ initial approach of the

crowd, of which Appellee was a part, constituted a mere encounter.         Id.

Thereafter, Appellee grabbed at his waistband and ran from the police,



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unprovoked. The Commonwealth suggests that because this conduct occurred

in a high crime area, the officers had reasonable suspicion to pursue Appellee.

Id.

      Appellee counters that “[t]he [trial] court’s order suppressing evidence

must be affirmed where the Commonwealth failed to sustain its burden of

establishing that there was reasonable suspicion to justify the police in

stopping Appellee.” Appellee’s Brief at 8. Appellee asserts that even if the

Commonwealth demonstrated that the area was a “high crime area,”

Pennsylvania courts have not established a “per se rule that flight in a high

crime area equates to reasonable suspicion.” Id. at 10. Additionally, Appellee

argues that the eye contact between him and Officer Trani provoked his flight.

Id. at 11.

      When we review the grant of a suppression motion,

      we must determine whether the record supports the trial court’s
      factual findings and whether the legal conclusions drawn from
      those facts are correct. We may only consider evidence presented
      at the suppression hearing. In addition, because the defendant
      prevailed on this issue before the suppression court, we consider
      only the defendant’s evidence and so much of the
      Commonwealth’s evidence as remains uncontradicted when read
      in the context of the record as a whole. We may reverse only if
      the legal conclusions drawn from the facts are in error.

Commonwealth v. Hemingway, 192 A.3d 126, 129 (Pa. Super. 2018)

(citation omitted).

      Three levels of interaction occur between police and citizens that are

relevant to whether a particular search or seizure conforms with the Fourth



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Amendment to the United States Constitution and article I, section 8 of the

Pennsylvania Constitution:

        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 respond.
        The second, an “investigative detention” must be supported by
        reasonable suspicion; it subjects a suspect to a stop and period of
        detention, but does not involve such coercive conditions as to
        constitute the functional equivalent of arrest. Finally, an arrest or
        “custodial detention” must be supported by probable cause.


                                          ***

        [T]he investigative detention or Terry[5] stop . . . subjects an
        individual to a stop and a period of detention but is not so coercive
        as to constitute the functional equivalent of an arrest[.] . . . To
        maintain constitutional validity, an investigative detention must
        be supported by a reasonable and articulable suspicion that the
        person seized is engaged in criminal activity and may continue
        only so long as is necessary to confirm or dispel such suspicion[.]
        . . . To guide the crucial inquiry as to whether or not a seizure has
        been effected, the United States Supreme Court has devised an
        objective test entailing a determination of whether, in view of all
        surrounding circumstances, a reasonable person would have
        believed that he was free to leave. In evaluating the
        circumstances, the focus is directed toward whether, by means of
____________________________________________


5   Terry v. Ohio, 392 U.S. 1 (1968). We note that

        [t]he Terry decision and its progeny stated “that some seizures
        admittedly covered by the Fourth Amendment constitute such
        limited intrusions on the personal security of those detained and
        are justified by such substantial law enforcement interests that
        they may be made on less than probable cause, so long as police
        have an articu[l]able basis for suspecting criminal activity.”
        Michigan v. Summers, [452 U.S. 692, 699 (1981)]

Commonwealth v. Lovette, 450 A.2d 975, 979 (Pa. 1982) (footnote
omitted).



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       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. Lyles, 54 A.3d 76, 79-80 (Pa. Super. 2012) (citations

omitted).

       A person merely approached by or in the presence of police “need not

answer any question put to him; indeed, he may decline to listen to the

questions at all and may go on his way.” Florida v. Royer, 460 U.S. 491,

498 (1983) (plurality); see also In re J.G., 860 A.2d 185, 189 (Pa. Super.

2004) (holding that where the appellant “merely ‘started to walk away,’” police

officers lacked a reasonable basis to suspect he was engaged in criminal

activity). Under Pennsylvania law, pursuit of an individual by the police is

considered to be a seizure that must be supported by reasonable suspicion.6

See Commonwealth v. Matos, 672 A.2d 769, 774 (Pa. 1996).

       However, an individual’s “unprovoked flight in a high crime area” may

provide the police with reasonable suspicion to conduct a Terry stop of that

individual. See In re D.M., 781 A.2d 1161, 1164 (Pa. 2001) (“it is evident

that unprovoked flight in a high crime area is sufficient to create a reasonable

suspicion    to   justify   a   Terry    stop    under   the   Fourth   Amendment”);

Commonwealth v. Jefferson, 853 A.2d 404, 405-06 (Pa. Super. 2004)

(noting that the Pennsylvania and federal constitutions protect the same

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6Under federal law, such pursuit does not require reasonable suspicion. See
Matos, 672 A.2d at 772.

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interests, and flight from police in a high crime area is sufficient to create

reasonable    suspicion   under   both).    But    see   Commonwealth        v.

Washington, 51 A.3d 895, 899 & n.4 (Pa. Super. 2012) (holding that where

the defendant was not knowingly running from the police, “there [was] no

nexus between running and reasonable suspicion of criminal activity”);

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

(holding that where the defendant was not in a high crime area and no other

factors other than his flight existed to support a finding of reasonable

suspicion, police pursuit of the defendant was an unlawful seizure).

      Instantly, both parties agree that when Officer Trani pursued Appellee,

he attempted to conduct an “investigative detention” or Terry stop of

Appellee, which required reasonable suspicion that criminal activity was

afoot. See Commonwealth’s Brief at 6; Appellee’s Brief at 8.        The parties

disagree, however, as to when the investigative detention actually occurred.

The trial court concluded that a Terry stop effectively occurred when Officer

“Trani and [Appellee] caught each other’s eye,” because, in the court’s view,

that “could have given [Appellee] the impression that he was being

approached with the obvious intention to detain and question him[.]” Trial Ct.

Op., 1/19/17, at 5. Had a seizure occurred at that point in time, the court’s

decision to suppress was reasonable since the officers, by their own admission,

had not yet observed Appellee engage in any suspicious activity.

      Initially, we disagree with the trial court’s determination that a seizure

took place at the point when Officer Trani made eye contact with Appellee.

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Neither the court nor Appellee has provided this Court with, nor is this Court

aware of any, case law indicating that a seizure occurs when a police officer

merely makes eye contact with a citizen. Thus, we reject the conclusion that

eye contact with a police officer can, by itself, lead a reasonable person to

believe that they are not free to leave the presence of the police.

      Here, Appellee and Officer Trani made eye contact before Appellee

started running, and Officer Trani was in uniform. Accordingly, Appellee was

aware of the police’s presence. Cf. Washington, 51 A.3d at 899. Officer

Trani’s testimony that the area in which Appellee was pursued was a high

crime area was not challenged.      Based upon the fact that Appellee was

unprovoked and ran from police in a high crime area, Officer Trani had

reasonable suspicion that criminal activity was afoot and was justified in

pursuing Appellee. See Jefferson, 853 A.2d at 406. Contra Taggart, 997

A.2d at 1196.      Further, while he was running, Appellant grabbed at his

waistband and discarded a gun.      Therefore, the gun Appellant abandoned

during his flight should not have been suppressed, and the trial court’s legal

conclusion is not supported by the facts of record.       Accordingly, we are

compelled to reverse the trial court’s suppression order. See Hemingway,

192 A.3d at 129.

      Order reversed.     Remanded for further proceedings.           Jurisdiction

relinquished.

     P.J.E., Stevens joins the memorandum.

     P.J.E., Bender files a concurring and dissenting memorandum.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/8/19




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