J-S46037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH RIVERA,                             :
                                               :
                       Appellant.              :   No. 2245 EDA 2017


             Appeal from the Judgment of Sentence, July 6, 2017,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0008450-2016.


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                          FILED OCTOBER 02, 2018

        Joseph Rivera appeals from the judgment of sentence imposed after a

bench trial where he was convicted of various firearm charges.1 In his sole

issue raised on appeal, Rivera challenges the trial court’s denial of his

suppression motion. After careful review, we affirm.

        The trial court summarized the relevant facts as follows:

              On August 5, 2016, at about 9:00 p.m., Philadelphia
           Police Officer John Seigafuse received a telephone call from
           a person he knew by name[,] who told him that there were
           three males standing on the corner of Glenwood Avenue and
           6th Street armed with handguns.           Included in that
           information was the following description of the males:

              The first one was a Hispanic male wearing a white polo
           shirt and jeans. The second was a Hispanic male with a


____________________________________________


1   18 Pa.C.S.A. §§ 6105, 6106, and 6108.
J-S46037-18


       beard wearing a black t-shirt and jeans. The third was a
       Hispanic male with a gray t-shirt and blue jeans.

          Officer Seigafuse and other officers, including Officer
       Jonathan Czapor, went to that location in two police cars,
       arriving at about 9:15 p.m. Upon arrival, they immediately
       saw three males that fit the above description given to
       Officer Seigafuse. The officers were in plain clothes and did
       not activate the lights and sirens on their vehicles upon
       arrival.

          Upon arrival, one of the police cars stopped ahead of
       where the males were standing and the other pulled behind
       the males’ location approximately twenty feet away.
       Officers Czapor and Seigafuse exited their vehicle
       simultaneously with the other officers and they all
       approached the three males. Upon approach, “two of the
       males, the one with the big, black beard and black t-shirt
       and the other male with the white polo shirt, … immediately
       looked in [Officer Czapor’s] direction and both of them put
       their hands up above their heads.”

          According to Officer Czapor, the third male, ([Rivera]
       herein) who was wearing a grey t-shirt and blue jeans, did
       a 180. There was a fence behind him and as soon as he
       turned around, he went down, put his head down and
       immediately put his hands towards the front right side of
       [his] waistband. It appeared he was so focused on his
       waistband that he actually walked into the chain-link fence
       that was behind him at that time.

           After [Rivera] walked into the fence, Officer Czapor was
       forced to physically restrain him because he made a move
       toward his waistband and the officer could not see [Rivera’s]
       hands. The officer conducted a pat-down of [Rivera’s]
       waistband and immediately felt a handgun. As the other
       officers restrained [Rivera], Officer Czapor recovered the
       handgun, which later examination revealed was both loaded
       and operable.

          Officer Czapor, a police officer for sixteen years, had
       recovered guns and narcotics on multiple occasions in the
       area where [Rivera] was apprehended. He further testified
       that is was a high traffic drug area. Finally, [Rivera] did not
       have a license to carry a firearm and had prior convictions
       rendering him ineligible to possess a firearm.

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Trial Court Opinion, 11/16/17, at 2-3 (citations and footnotes omitted).

      On March 13, 2017, Rivera filed a motion to suppress physical evidence,

including his statements to the police, and the gun found on his person. Within

his motion, Rivera averred that he was arrested without probable cause, he

was subjected to a stop and frisk on less than reasonable suspicion, and he

was arrested without a lawfully issued warrant or other legal justification.

Rivera further averred the police conducted the search without probable

cause. Omnibus Motion, 3/13/17 at 2.

      The trial court held an evidentiary hearing on April 6, 2017. Both Officer

Czapor and Officer Seigafuse testified.     The trial court ultimately denied

Rivera’s motion. On May 1, 2017, following a stipulated waiver trial, the court

found Rivera guilty of all charges.    The trial court imposed an aggregate

sentence of 5 to 10 years’ incarceration. This appeal follows. Both the trial

court and Rivera have complied with Pa.R.A.P. 1925.

      Rivera presents the following issue for our review:

         1. Did not the [trial] court err by denying [Rivera’s] motion
            to suppress the physical evidence and by characterizing
            [Rivera’s] first contact with police as a “mere encounter,”
            where two cars carrying five or six police officers pulled
            up behind and in front of [Rivera], who was standing on
            a street corner with two other Hispanic men; where
            officers got out of the cars and approached from either
            side, causing the other men to put their hands up in the
            air; where officers characterized the interaction as a
            “stop”; and where officers prevented [Rivera] from
            walking away?”

Rivera’s Brief at 3.



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     Our scope of review is limited to the testimony and other evidence

presented at the suppression hearing. See generally, In re L.J., 79 A.3d

1073 (Pa. 2013). Because the Commonwealth prevailed on this issue in the

suppression court, we consider “only the evidence of the prosecution and so

much of the evidence for the defense as remains uncontradicted when read in

the context of the record as a whole. When the record supports the findings

of the suppression court, we are bound by those facts and may reverse only

if the legal conclusions drawn therefrom are in error.” Commonwealth v.

Johnson, 33 A.3d 122, 124 (Pa. Super. 2011).             Our review of the

suppression-hearing transcript supports the trial court’s factual findings.

     Next, we must determine whether the trial court’s legal conclusions are

correct. The trial court reasoned:

            Here, there was no evidence presented during the
        suppression hearing indicating that when the officers
        approached [Rivera] and the other two males, they made
        any showing of physical force or display of authority. The
        officers did not have weapons drawn and there is no
        evidence that they blocked [Rivera’s] path or restricted his
        freedom of movement in any significant way. Importantly,
        they did not tell [Rivera] that he was not free to leave.
        Thus, this Court’s ruling that this was a mere encounter is
        consistent with the applicable law and should not be
        disturbed. See, e.g., In Interest of Jermaine, 582 A.2d
        1058, 1061 (Pa. Super. 1990) (“Examples of circumstances
        that might indicate a seizure, even where the person did not
        attempt to leave, would be the threatening presence of
        several officers, the display of a weapon by an officer, some
        physical touching of the person of the citizen, or the use of
        language or tone of voice indicating that compliance with
        the officer’s request might be compelled.”) (citations
        omitted). Accord Florida v. Royer, 460 U.S. 491, 496
        (1983) (“law enforcement officers do not violate the Fourth

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        Amendment by merely approaching an individual on the
        street or in another public place, by asking him if he is
        willing to answer some questions, by putting questions to
        him if the person is willing to listen”).

            Even if [Rivera] was subjected to an investigative
        detention when the police exited their vehicles, suppression
        still was not warranted. [Rivera] and the other two males
        were in the precise location stated by the person who
        supplied the information to police and the males were
        garbed exactly as described by the caller. The fact that
        [Rivera] and the others fit the description of the males
        described in the telephone call permitted the experienced
        officers, in a high crime area, to investigate and to briefly
        detain them for questioning. The law is well settled that a
        tip may give rise to reasonable suspicion if it has the
        requisite indicia of reliability, which may include
        corroboration by police observation.          Navarette v.
        California, 134 S. Ct. 1683, 1688-1692 (2014); Alabama
        v. White, 496 U.S. 325, 329 (1990); Adams v. Williams,
        407 U.S. 143, 146-47 (1972). Accord Commonwealth v.
        Zhahir, 751 A.2d 1153, 1157 (Pa. 2000); In Re D.M., 781
        A.2d 1161, 1165 (Pa. 2001), Commonwealth v.
        Korenkiewicz, 743 A.2d 958, 964 (Pa. Super. 1999) (en
        banc). Such corroboration occurred here when the police
        arrived and observed [Rivera] and the other two males,
        matched the description, in the precise location described in
        the telephone call received mere minutes earlier. Moreover,
        no one else present in the area matched the description of
        the three males.       Thus, the fully corroborated report
        provided reasonable suspicion to investigate the males
        further.

           Finally, [Rivera’s] acts upon seeing the police officers
        who, as noted above, did nothing to convey they were not
        free to leave, gave the officers grounds to detain and frisk
        [Rivera]. Officer Czapor stated that [Rivera] suddenly
        turned to a fence, secreting his hands from the officers’
        view, while immediately reaching for his waistband. These
        actions immediately caused the officer to fear that [Rivera]
        was armed and potentially dangerous.

Trial Court Opinion, 11/16/17, at 6-7.



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      As we will discuss in detail below, we disagree with the trial court’s

conclusion that law enforcement’s initial interaction with Rivera was a mere

encounter. However, we agree that the totality of the circumstances justified

a valid investigative detention. As such, we conclude that the policemen’s

search of Rivera was constitutional and the trial court properly denied Rivera’s

motion to suppress.

      In his first argument, Rivera contends that “the trial court erred by

characterizing the policemen’s initial approach as a ‘mere encounter’.”

Rivera’s Brief at 9. Rivera points to multiple facts to support this contention.

First, he avers that “[f]ive or six officers in two police cars all descended

together” upon him and the two other men. Id. Rivera points out that the

police approached him and the other males from both sides, and that “they

took out their badges from around their necks as they approached.”              Id.

Finally, Rivera argues that the other two men raised their hands above their

heads as the officers approached, objectively demonstrates a seizure

occurred. According to Rivera, “[u]nder all the circumstances surrounding this

initial police approach, a reasonable person would not believe he was free to

leave.” Id. at 10. We agree with this part of Rivera’s argument.

      “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).       Once a criminal defendant files a motion to

suppress evidence, it is the Commonwealth’s burden to prove, by a

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preponderance of the evidence, that the challenged evidence was not obtained

in violation of the defendant’s rights. Commonwealth v. Simonson, 148

A.3d 792, 796 (Pa. Super. 2016).

      Appellate courts in Pennsylvania “have long recognized that there are

three levels of intrusion involved in interaction between members of the public

and police.” Walls, 53 A.3d at 892. This Court has compared and contrasted

these levels of interaction as follows:

         A mere encounter can be any formal or informal interaction
         between an officer and a citizen, but will normally be an
         inquiry by the officer of the citizen. The hallmark of this
         interaction is that it carries no official compulsion to stop or
         respond.

         In contrast, an investigative detention, by implication,
         carries an official compulsion to stop and respond, but the
         detention is temporary, unless it results in the formation of
         probable cause for arrest, and does not possess the coercive
         conditions consistent with a formal arrest. Since this
         interaction has elements of compulsion it requires
         reasonable suspicion of unlawful activity.         In further
         contrast, a custodial detention occurs when the nature,
         duration and conditions of an investigative detention
         become so coercive as to be, practically speaking, the
         functional equivalent of an arrest.

Commonwealth v. Coleman, 19 A.3d 1111, 1115-16 (Pa. Super. 2011)

(citations omitted).

      We begin our review with the first inquiry focusing on whether Rivera

was “seized” during the initial interaction with Officer Czapor, Officer

Seigafuse, and the three to four additional responding officers. In determining

whether a valid seizure has occurred, we evaluate all of the surrounding


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circumstances through an objective lens to ascertain whether a reasonable

person would feel that he was free to leave. Commonwealth v. Strickler,

757 A.2d 884, 889 (Pa. 2000).

         In evaluating the circumstances, the focus is directed
         toward whether, by means of 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.

Id. at 890 (citation and footnote omitted).

      Rivera contends that the initial approach and interaction by the police

exceeded the scope of a mere encounter. The Commonwealth argues that

the “police approached [Rivera] without activating lights or sirens, touching

defendant or restraining his movements in any way, displaying weapons, or

saying anything.” Commonwealth’s Brief at 8. The Commonwealth relies on

this Court’s decision in Commonwealth v. Byrd, 987 A.2d 786 (Pa. Super.

2009) in support of its argument.

      In Byrd, the trial court granted the appellant’s motion to suppress,

finding that the appellant abandoned contraband due to an “unlawful show of

force” when the appellant discarded a gun after spotting three to five police

cars travelling the wrong way down a one way street. Id. at 792. This Court

reversed, concluding that “appellee was not deprived of his freedom in any

significant way nor could he reasonably believe that his freedom of action was

being restricted by police conduct prior to abandoning the handgun.” Id. at

793. This Court noted that the neither the cruisers’ sirens nor lights were on,

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but perhaps, more importantly, there was “no evidence that the police showed

any interest in appellee…” Id. Additionally, the police vehicles were 50 to 60

feet away when the appellee abandoned his gun. Id.

      Here, the police were specifically interested in Rivera and the two other

men with him. The police drove to that particular location with particularized

intent to find them. Although, the lights and sirens were not activated in the

police cars, Officer Seigafuse testified that the two police vehicles were parked

in a manner that “boxed [Rivera and the other two men] in,” and that he and

the other four to five police officers approached Rivera from the front and the

back. N.T., 4/6/2017, at 20. Given the orientation of the police vehicles and

the formation in which the officers approached Rivera, it is clear that a

reasonable person would feel that their movement had been restricted and

that they were not free to leave. Additionally, during his testimony, Officer

Seigafuse referred to the initial encounter with Rivera and the other two

suspects as a “stop.” Id. at 20.

      Citing Commonwealth v. Baldwin, 147 A.3d 1200, 1203 (Pa. Super.

2016), the Commonwealth emphasizes that “the focal point of the inquiry is

whether a reasonable innocent person would have felt restrained under the

circumstances.”   Commonwealth’s Brief at 10.       In Baldwin, as in Rivera’s

case, the police did not activate sirens or lights. However, this Court pointed

to another circumstance present in Baldwin that is absent here; “the officers

did not block [Baldwin’s] path…” Id. at 1204. By parking two vehicles from

the front and from behind the men, and in addition to the five to six officers

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approaching from either side, Rivera’s path was effectively blocked. As such,

under a totality of the circumstances analysis, the facts in Baldwin are readily

distinguishable from the facts in Rivera’s case.

      The Commonwealth also discounts the fact that the other two men with

Rivera raised their hands above their heads, and denies this was evidence a

seizure occurred.    The Commonwealth argues that police officers may

approach citizens on the street, Commonwealth v. Lyles, 97 A.3d 298, 303

(Pa. 2014), and the men’s reaction was a product “of their own fear of

detection and not because of any coercion or restriction by police.”

Commonwealth’s Brief at 10. We disagree. As noted above, the manner in

which the police surrounded and approached the men, indicates Rivera was

not free to leave. The fact that the other two men reflexively raised up their

hands adds weight to the conclusion a seizure occurred.

      Viewing the totality of the circumstance, we determine that the officers

exercised a sufficient show of authority to warrant a reasonable man to

conclude they were attempting a forcible stop. Thus, our review of the record

indicates this was more than a mere encounter.

      We now turn our analysis to whether reasonable suspicion existed to

subject Rivera to a valid Terry stop. Rivera contends that the information

Officer Seigafuse received from a known informant fell short of establishing

sufficient reasonable suspicion to initiate a stop. Rivera asserts that:

      While the source had supplied information to Officer Seigafuse in
      the past, the extent and basis of this information was never
      divulged. Officer Seigafuse did not have the current address of

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       the tipster. Nor was there any way for defense counsel to test the
       basis or reliability of the past information the tipster had provided
       Officer Seigafuse.

Rivera’s Brief at 14-15 (citations omitted).

       Rivera suggests that these aforementioned facts (or lack thereof) render

the tip from Officer Seigafuse’s known source unreliable. We disagree. In

Commonwealth v. Brown, 996 A.2d 473 (Pa. 2010), our Supreme Court

rejected a similar argument which would require the Commonwealth to

provide a detailed history of a known informant’s tips to establish the tipster’s

reliability.   The Court held that listing an informant’s history such as, the

number of times the informant was used, the number of times arrests were

made based on that information, and the number of convictions as a result, is

one way to prove reliability, but not the sole way. Id. at 478. The Court

stated that “[t]he constitutional test requires sufficient suspicion but . . . does

not delineate specific details that must be listed like a recipe in order to give

rise to that suspicion.”       Id.    Therefore, Rivera’s assertion that the

Commonwealth was obliged to divulge the “extent and basis” of the

informant’s past tips is without merit. Additionally, Rivera cited no authority

that requires an officer to know an informant’s current address to qualify the

informant as a reliable source.      Similarly, Rivera has cited no authority to

support his argument that defense counsel must have an opportunity to cross

check the informant’s reliability.     Likewise, we are unaware of any such

precedent.




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     "To have reasonable suspicion, police officers need not personally

observe the illegal or suspicious conduct, but may rely upon the information

of third parties, including 'tips' from citizens." Commonwealth v. Lohr, 715

A.2d 459, 461 (Pa. Super. 1998). With respect to these third-party "tips," we

have held:

        Reasonable suspicion, like probable cause, is dependent
        upon both the content of information possessed by police
        and its degree of reliability. Both factors — quantity and
        quality — are considered in the "totality of the
        circumstances — the whole picture," that must be taken into
        account when evaluating whether there is reasonable
        suspicion. Thus, if a tip has a relatively low degree of
        reliability, more information will be required to establish the
        requisite quantum of suspicion than would be required if the
        tip were reliable.

        When the underlying source of the officer's information is an
        anonymous call, the tip should be treated with particular
        suspicion. However, a tip from an informer known to the
        police may carry enough indicia or reliability for the police
        to conduct an investigatory stop, even though the same tip
        from an anonymous informant would likely not have done
        so.

        Indeed, identified citizens who report their observations of
        criminal activity to police are assumed to be trustworthy, in
        the absence of special circumstances, since a known
        informant places himself at risk of prosecution for filing a
        false claim if the tip is untrue, whereas an unknown
        informant faces no such risk. When an identified third party
        provides information to the police, we must examine the
        specificity and reliability of the information provided. The
        information supplied by the informant must be specific
        enough to support reasonable suspicion that criminal
        activity is occurring. To determine whether the information
        provided is sufficient, we assess the information under the
        totality of the circumstances. The informer's reliability,
        veracity, and basis of knowledge are all relevant factors in
        this analysis.

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Commonwealth v. Barber, 889 A.2d 587, 593-594 (Pa. Super. 2005)

(internal quotations and citations omitted).

      Rivera relies on this Court’s decision in Commonwealth v. Jones, 845

A.2d 821 (Pa. Super. 2008), where we held that no reasonable suspicion

existed when a police officer stopped the defendant’s vehicle based on a

named individual’s complaint. In Jones, the officer was notified that a vehicle

matching the description and license plate number of the defendant’s was

involved in drug activity. In that case, the officer only knew the name of the

informant through the dispatcher. The officer did not know where the tip had

come from or of the reliability of the source, because he had no prior history

with the tipster. Additionally, no description was given regarding the people

in the car or any specificity as to the type of “drug activity” occurring. As

such, the tip “did not contain sufficient specificity to justify the detention…”

Id. at 826.

      Rivera’s case is easily distinguishable from Jones. Here, the informant

had provided Officer Seigafuse with reliable information on numerous

occasions over the course of a year resulting in multiple arrests. The tip also

provided specific information, including the number of men, their race, facial

descriptions, the clothing they were wearing, and the precise location where

then men were standing.

      Rivera’s reliance on Commonwealth v. Allen, 725 A.2d 737 (Pa. 1999)

is also misplaced. In that case, a police officer received a tip from a retired

police lieutenant. The vague tip generally described a man who was selling

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drugs at a certain residence. Id. at 740. Our Supreme Court held that the

officer “did not possess sufficient information to raise a reasonable suspicion

that appellant was currently engaged in criminal activity.”            Id. (emphasis

added). In contrast, here, the tipster provided a detailed description of the

men, and reported that they were, at that instant, standing at a given location

with guns.

       Finally, Rivera argues that the police failed to corroborate the

informant’s tip because they did not set up surveillance in order to observe

Rivera engage in suspicious conduct.           Rivera’s Brief at 15.    We reject this

argument. First, the police corroborated nearly every detail of the informant’s

tip when they drove to the specified location and observed three men

matching the exact description the tipster provided.2 Second, this argument

that the police failed to survey Rivera is a red herring.              In Brown, our

Supreme Court aptly summarized a similar factual situation:

____________________________________________


2  In Draper v. United States, 358 U.S. 307 (1959), a paid informant who
had a history of accuracy and reliability, told the agent that the defendant
would be arriving in Denver on a train from Chicago, and would be in
possession of heroin. The informant described the defendant’s physical
attributes and mannerisms. The officer observed a man matching the
informant’s description exiting from the train reported. The Supreme Court
of the United States held that the agent independently corroborated every
facet of the tip which established “reasonable grounds” for the officer to
believe that the unproved information regarding the heroin was also true. As
such, the agent had probable cause to believe the defendant was engaged in
illegal activity. As in Draper, Officer Seigafuse’s informant told him of
specified individuals, engaged in specific crimes at a specific time and location,
and the officers corroborated the personal information to approximately the
same extent as in Draper.


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          The question involves credibility of the one person who
          called police. The informant in this case was not anonymous,
          and the tip consisted of more than mere description. The
          informant provided police with information regarding
          imminent criminal activity committed by a specific person at
          a particular time and place. These facts, provided by a
          source known to police and corroborated through police
          investigation certainly gave rise to reasonable suspicion
          sufficient to warrant an investigative detention.

Brown, 996 A.2d 473, 479 (Pa. 2010) (emphasis added).

       In sum, we conclude that the initial interaction between Rivera and the

police constituted more than a mere encounter. However, because the known

informant had a track record of reliability, and the officers corroborated the

information that the tipster provided, the totality of the circumstances

established sufficient reasonable suspicion to conduct a lawful investigative

detention.3

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/2/18



____________________________________________


3 Rivera does not dispute that once he turned to flee and reached for his
waistband, police had reasonable suspicion to justify a frisk of weapons. See
Rivera’s Brief at 11. An officer may conduct a pat-down “if the officer
possesses reasonable suspicion that the person may be armed and
dangerous.” Commonwealth v. Thomas, 179 A.3d 77, 83 (Pa. Super. 2018)
(citation omitted).

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