In the Interest of: K.P., a Minor ( 2017 )


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  • J-S61018-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN THE INTEREST OF: K.P., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
    :
    :
    APPEAL OF: K.P.                            :
    :
    :
    :
    :   No. 2326 EDA 2016
    Appeal from the Dispositional Order July 18, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-JV-0000423-2016
    BEFORE:      LAZARUS, J., RANSOM, J., and PLATT, J.*
    MEMORANDUM BY RANSOM, J.:                            FILED NOVEMBER 21, 2017
    K.P., a minor, appeals from the dispositional order of July 18, 2016,
    following his adjudication of delinquency for possession of a firearm by a
    minor.1 We affirm.
    The relevant facts and procedural history are as follows:
    On March 1, 2016 at approximately 5:50 PM, Philadelphia Police
    Officer Sweeney (Badge #5412, 17th District) observed a large
    group of ten to fifteen males blocking the entrance to the front
    door of a market, located at the 2100 block of Morris Street.
    Officer Sweeney was in a vehicle with Officer Velasquez. The
    officers approached the corner and both officers exited their
    vehicle. K.P. turned away from the police and grabbed his
    waistband. Officer Sweeney then asked K.P. to stop. As the police
    walked toward K.P., K.P. began to flee and Officer Sweeney gave
    chase on foot, while his partner pursued in the police vehicle.
    Officer Sweeney then observed K.P. remove a handgun from his
    waistband, as they turned the corner into an alley. Officer
    ____________________________________________
    1
    18 Pa.C.S.A. § 6110.1
    *    Retired Senior Judge assigned to the Superior Court.
    J-S61018-17
    Sweeney observed K.P. holding the handgun, and saw K.P. throw
    the handgun into the backyard of 2008 Morris Street.
    Officer Sweeney was in full uniform. Prior to this incident, Officer
    Sweeney had made one to two arrests in that area. Officer
    Sweeney described the area as a “high crime area,” stating that
    there have been shootings and a homicide within a block or two
    of that area. The homicide and shootings had occurred within six
    months of this incident. There had also been roll call complaints
    regarding said area. The handgun was recovered within five yards
    from where the [Appellant] was arrested.
    Officer Sweeney did not receive any specific call to go to that
    location, nor was he responding to any specific complaint. Officer
    Sweeney observed that the young males were violating the city
    ordinance for blocking the front entrance of a store or blocking the
    sidewalk. Officer Sweeney did not issue any citation for said
    violation. Officer Sweeney only told K.P. to stop after K.P. began
    to hide his body from police and walk away. Officer Sweeney did
    not unstrap his weapon, nor did he have his hand on his weapon,
    at the time that he told K.P. to stop. Based on his observations
    of K.P., Officer Sweeney believed that K.P. had a gun. Once K.P.
    turned into the alley, K.P. was trapped in the alley.
    The parties stipulated that the firearm recovered from the ground
    near K.P. was operable at the time that it was recovered, and that
    K.P. did not have a license to carry a firearm in the Commonwealth
    of Pennsylvania. The parties further stipulated that K.P.’s mother,
    A.P. and K.P.’s grandfather, A.G., that they are familiar with K.P.’s
    reputation in the community, and that K.P. has a reputation for
    being peaceful and law-abiding.
    Trial Court Opinion, 1/13/17 at 2-3 (citations omitted).
    On March 9, 2016, Appellant filed a motion to suppress all physical
    evidence, arguing that Appellant’s arrest was illegal as the officers did not
    have probable cause or reasonable suspicion for detaining him. Appellant’s
    Motion to Suppress at 1 (unpaginated). On March 29, 2016, a hearing was
    held on Appellant’s motion. In May 2016, the trial court denied Appellant’s
    motion to suppress and adjudicated Appellant delinquent.        Disposition was
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    deferred until July 18, 2016, at which time the court entered an order placing
    Appellant on Youth Violence Reduction Partnership Probation, among other
    conditions.
    Appellant timely appealed.       In January 2017, the trial court filed a
    1925(a) statement but did not order a 1925(b) statement. Appellant raises
    the following issues for our review:
    1. Did not the trial court err by denying [A]ppellant’s motion to
    suppress physical evidence under both the Federal and State
    Constitutions, inasmuch as reasonable suspicion that criminal
    activity was afoot was lacking where [A]ppellant merely turned
    his body away from police when he saw them and grabbed his
    waist, and the subsequent recovery of a firearm was the result
    of forced abandonment stemming from the illegal investigation
    detention?
    2. Did the trial court err by denying [A]ppellant’s motion to
    suppress physical evidence under both the Federal and State
    Constitutions, where there did not exist probable cause to
    arrest [A]ppellant under any Philadelphia City Ordinance?
    Appellant’s Brief at 3.
    Appellant’s first contention is that the police did not have reasonable
    suspicion that criminal activity was afoot in order to justify a stop and
    investigative detention of K.P. Appellant’s Brief at 8. According to Appellant,
    the firearm recovered was fruit of an unlawful detention. Id. Thus, Appellant
    concludes, the trial court erred in denying Appellant’s suppression motion.
    In reviewing a suppression order:
    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
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    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, we are bound by these 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 law of the courts below are
    subject to our plenary review.
    Commonwealth v. Jones, 
    988 A.2d 649
    , 654 (Pa. 2010) (citations omitted).
    Appellant’s claim turns on the nature of the encounter between
    Appellant and the police. We note, initially, that
    [t]here are three types of encounters between law enforcement
    officials and private citizens. A “mere encounter” need not be
    supported by any level of suspicion but carries no official
    compulsion to stop or respond. An “investigative detention” must
    be supported by reasonable suspicion and subjects the suspect to
    a stop and a period of detention, but it does not have the coercive
    conditions that would constitute an arrest. The courts determine
    whether reasonable suspicion exists by examining the totality of
    the circumstances. An arrest, or “custodial detention,” must be
    supported by probable cause.
    In re J.G., 
    145 A.3d 1179
    , 1185 (Pa. Super. 2016).
    Here, the initial contact between Appellant and the police was an
    investigative stop. See Commonwealth v. Ranson, 
    103 A.3d 73
    , 77 (Pa.
    Super. 2014) (“Our Supreme Court has held that where ‘a citizen approached
    by a police officer is ordered to stop … obviously a ‘stop’ occurs.’”) (quoting
    Commonwealth v. Jones, 
    378 A.2d 835
    , 839 (Pa. 1977)). Thus, we must
    determine whether Officer Sweeney had reasonable suspicion that Appellant
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    was involved in criminal activity at the time of the seizure. If Officer Sweeney
    had reasonable suspicion of criminal activity on the part of Appellant, the gun
    discarded by Appellant during the chase is not subject to suppression. See
    Commonwealth v. Roberts, 
    133 A.3d 759
    , 772 (Pa. Super. 2016) (holding
    that contraband discarded following a lawful detention is admissible.)
    Under Pennsylvania law, any items abandoned by the individual
    under pursuit are considered fruits of a seizure. Those items may
    only be received in evidence when an officer, before giving chase,
    has at least the reasonable suspicion necessary for an
    investigative stop.      Stated another way, when one is
    unconstitutionally seized by the police, i.e. without reasonable
    suspicion or probable cause, any subsequent flight with the police
    in pursuit continues the seizure and any contraband discarded
    during the pursuit is considered the product of coercion and is not
    admissible.
    In re M.D., 
    781 A.2d 192
    , 196 (Pa. Super. 2001) (emphasis added, internal
    citations and quotation marks omitted); see also Ranson, 103 A.3d at 77
    (“[A]s pursuit by police constitutes a seizure under the law of this
    Commonwealth, a person may be seized even though he is moving away from
    the police.”) (citing Commonwealth v. Matos, 
    679 A.2d 769
     (Pa. 1996)).
    In deciding whether reasonable suspicion exists for an
    investigatory stop, our analysis is the same under both Article I,
    § 8 and the Fourth Amendment.
    The fundamental inquiry is an objective one, namely,
    whether “the facts available to the officer at the moment of
    the [intrusion] ‘warrant a man of reasonable caution in the
    belief’ that the action taken was appropriate.”          This
    assessment, like that applicable to the determination of
    probable cause, requires an evaluation of the totality of the
    circumstances, with a lesser showing needed to
    demonstrate reasonable suspicion in terms of both quantity
    or content and reliability.
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    In re M.D., 781 A.2d at 169 (citations omitted).        Here, Officer Sweeney
    initially approaches Appellant to investigate the violation of a city ordinance.
    In Philadelphia, loitering is defined as:
    (1)   Definitions
    a. Loitering. Idling or lounging in or about any place or
    facility described in (2), so as to prevent others from
    passage, ingress or egress, or to idle or lounge in or
    about any place or facility described in (2) in violation of
    any exiting statutes or ordinances.
    ***
    (2)   Prohibited Conduct. No person shall loiter in, on or about
    any underground platform or concourse, or any elevated
    platform serving public transportation facilities, or any
    underground or elevated passageway used by the public, or
    any railroad passenger station or platform, or on the steps
    leading to any of them. No person shall loiter in, on or about
    private property used to accommodate the public.
    City of Philadelphia Ordinance, § 10-603(a)(1), (2); see also City of
    Philadelphia Ordinance, § 10-615(2)(d) (relating to disorderly conduct and
    related offenses).
    As Officer Sweeney believed Appellant was in violation of a city
    ordinance he had the authority to file or issue a citation, file a complaint, or
    arrest Appellant. This authority is conferred by the state legislature.
    [T]he Supreme Court noted that Pennsylvania Rule of Criminal
    Procedure 51 provided four circumstances under which summary
    criminal cases may be instituted: (a) issuing a citation to the
    defendant; (b) filing a citation; (c) filing a complaint; or (d)
    arresting without a warrant when arrest is specifically authorized
    by law.
    ***
    [T]he State Legislature has conferred authority on police officers
    in the City of Philadelphia to arrest individuals for violating city
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    ordinances. The relevant statutory provision granting such
    authority provides as follows:
    §13349. Summary         proceedings      for   violation   of
    ordinances
    Any police officer or constable, upon view of the breach of
    any ordinance of any city of the first class, is authorized to
    forthwith arrest the person or persons so offending, without
    any process…
    53 P.S. § 13349.
    Commonwealth v. Rose, 
    755 A.2d 700
    , 702-703 (Pa. Super. 2000)
    (footnotes and citations omitted), see also In re C.C.J., 
    799 A.2d 116
    , 122
    (Pa. Super. 2002) (finding that police had reasonable suspicion to justify an
    investigatory stop where a juvenile was observed in violation of the Public
    School Code).
    Officer Sweeney testified that Appellant and a group of young men were
    blocking the entrance to a market. Notes of Testimony, 3/29/16 at 4, 7. As
    Officer Sweeney exited his vehicle, he observed Appellant turn his body, grab
    his waistband, and begin to walk away. 
    Id.
     Based on his observations, Officer
    Sweeney approached and asked Appellant to stop. 
    Id.
     Appellant then began
    to run, and Officer Sweeney gave chase. Id. at 4-5. While running Officer
    Sweeney observed Appellant remove a firearm from his waistband and throw
    it into the backyard of 2008 Morris Street. Id. Considering the totality of
    these circumstances, Appellant was subject to a valid investigatory stop and
    brief detention by the police. Accordingly, the firearm discarded during flight
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    was admissible, and the trial court properly denied Appellant’s motion to
    suppress. Roberts, 133 A.3d at 772.
    Appellant next contends that the police lacked probable cause for an
    arrest. Appellant’s Brief at 23. Appellant further asserts that the trial court
    did not make a finding that he violated an ordinance and that the officer’s
    testimony was insufficient to support probable cause for a violation of any
    ordinance. Appellant’s Brief at 19-20. We reject the premise of Appellant’s
    claim as probable cause is not the relevant standard. See In re C.C.J., 799
    A.2d at 121. (“In order to justify an investigatory stop, the police must have,
    at inception of stop, a reasonable suspicion that criminal activity is afoot.”).
    Accordingly, we need not address this issue.
    Order affirmed. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/21/2017
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Document Info

Docket Number: 2326 EDA 2016

Filed Date: 11/21/2017

Precedential Status: Precedential

Modified Date: 11/21/2017