Com. v. Bullins, D. ( 2018 )

J-S44026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEREK BULLINS :
:
Appellant : No. 3688 EDA 2016
Appeal from the Judgment of Sentence December 2, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012171-2012
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 17, 2018
Derek Bullins (Appellant) appeals from the judgment of sentence
imposed following his convictions of persons not to possess a firearm and
firearms not to be carried without a license.1 We affirm.
In this appeal, Appellant challenges the trial court’s denial of his
suppression motion. The trial court summarized the relevant facts and
procedural history as follows:
All facts are in connection with Appellant’s motion to suppress
hearing before the Honorable Judge Charles Cunningham on June
21, 2013. Appellant moved to suppress all evidence [asserting
that] police lacked the requisite reasonable suspicion or probable
cause to stop him. Specifically, Appellant seeks to suppress the
police recovery of a firearm from his hoodie pocket.
Officer John McCarron was the only individual to testify at the
suppression hearing. Officer McCarron has been a police officer
for 18 years and specifically on the Narcotics Strike Force for 12½
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1
18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1).
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years. On September 25, 2012[,] at approximately 9:00 p.m.,
Officer McCarron was working in the area of 6500 Greenway
Avenue on a narcotics stakeout. Officer McCarron had been
involved in hundreds of arrests in that area. Officer McCarron
stated that the area is infested with the sale and use of narcotics.
At that time, Officer McCarron was in radio communication with
Officers Miles and Long who were conducting a surveillance for
narcotics in that area. Officer Miles worked with Officer McCarron
in the Narcotics Strike Force since 2003. Officer McCarron
received information from Officer Miles [regarding] a male
[(Appellant)] sitting on a bike on the 6500 block of Greenway
Avenue who was involved in several narcotics transactions.
When Officer McCarron arrived to the area, he observed
Officer[s] Crawford and Rodriguez attempting to stop Appellant.
When the officers removed Appellant from his bike, and as they
put Appellant against [a] fence, he attempted to flee by running
away. Officer McCarron then observed Appellant go to his
waistband with his right hand. He believed that Appellant was
attempting to get rid of something. Once Officer McCarron got to
Appellant, he grabbed Appellant’s waistband area and felt a gun
in his hoodie pocket. Officer Crawford then recovered the firearm
and placed Appellant under arrest.
Trial Court Opinion, 8/18/17, at 2-3.
On September 26, 2012, police arrested and charged
Appellant [] with numerous offenses stemming from police
recovery of [the] firearm. On June 21, 2016, the Honorable
Charles J. Cunningham III denied Appellant’s motion to suppress
any and all evidence. On September 23, 2016, a jury found
Appellant guilty of Possession of a Firearm Prohibited (F2) and
Firearms Not to be Carried without a License (F3). On December
2, 2016, [the trial court] sentenced Appellant to an aggregated
sentence of 6.5 to 17 years of incarceration.
Appellant filed a timely notice of appeal on December 4, 2016.
On April 7, 2017, [the trial court] ordered Appellant pursuant to
Pa.R.A.P. 1925(b) to file with the [c]ourt a Concise Statement of
Matters Complained of on Appeal. On April 20, 2017, Appellant
filed a Statement of Errors Complained of on Appeal.
Id. at 1-2.
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On appeal, Appellant presents the following issue for review:
Did the suppression court err when it determined that the police
had reasonable suspicion to stop [Appellant] and refused to
suppress a firearm recovered from him, where 1) officer
McCarron, who stopped [Appellant], but did not observe him
involved in any alleged drug transactions, and stopped [Appellant]
based only on information received from [O]fficer Miles, was the
only officer to testify at the suppression hearing, and 2) Officer
McCarron did not testify as to sufficient facts to establish
reasonable suspicion to stop [Appellant], and he received all his
information from Officer Miles, who did not testify at the motion
to suppress hearing?
Appellant’s Brief at 4.
Our standard of review is as follows:
[An appellate court’s] 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. 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 law of the courts below are subject to [ ] plenary review.
Commonwealth v. Mason, 130 A.3d 148, 151–52 (Pa. Super. 2015)
(quotations and citations omitted).
“The Fourth Amendment of the Federal Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect individuals from
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unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d
889, 892 (Pa. Super. 2012). “To secure the right of citizens to be free from
such [unreasonable] intrusions, courts in Pennsylvania require law
enforcement officers to demonstrate ascending levels of suspicion to justify
their interactions with citizens as those interactions become more intrusive.”
Commonwealth v. Pratt, 930 A.2d 561, 563 (Pa. Super. 2007). Courts in
this Commonwealth have recognized three types of interactions between the
police and a citizen: a mere encounter, an investigative detention, and a
custodial detention.
A mere encounter between police and a citizen need not be
supported by any level of suspicion, and carr[ies] no official
compulsion on the part of the citizen to stop or to respond. An
investigatory stop, which subjects a suspect to a stop and a period
of detention . . . requires a reasonable suspicion that criminal
activity is afoot. A custodial search is an arrest and must be
supported by probable cause.
Commonwealth v. Newsome, 170 A.3d 1151, 1154 (Pa. Super. 2017).
This Court has explained that when determining whether an interaction
is a mere encounter versus an investigative detention,
the focus of our inquiry is on whether a seizure of the person has
occurred. Within this context, our courts employ the following
objective standard to discern whether a person has been seized:
[w]hether, under all the circumstances surrounding the incident
at issue, a reasonable person would believe he was free to leave.
Thus, a seizure does not occur simply because a police officer
approaches an individual and asks a few questions.
Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa. Super. 2010) (citations,
quotation marks, and ellipses omitted). In contrast, “a custodial detention
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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. Mackey, 177 A.3d 221, 227 (Pa. Super.
2017) (quotations and citations omitted).
Appellant challenges the trial court’s conclusion that the police did not
have reasonable suspicion to stop and detain him.2 When evaluating the
legality of investigative detentions, Pennsylvania has adopted the holding of
Terry v. Ohio, 392 U.S. 1 (1968), where the United States Supreme Court
held that police may conduct an investigatory detention if they have
reasonable suspicion that criminal activity is afoot. In re: D.M., 781 A.2d
1161, 1163 (Pa. 2001). These encounters with police are commonly known
as Terry stops. In order to prove reasonable suspicion, “the police officer
must be able to point to specific and articulable facts and reasonable
inferences drawn from those facts in light of the officer’s experience.”
Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999). “The determination
of whether an officer had reasonable suspicion that criminality was afoot so
as to justify an investigatory detention is an objective one, which must be
considered in light of the totality of the circumstances.” Commonwealth v.
Walls, 53 A.3d 889, 893 (Pa. Super. 2012).
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2
We note that Appellant only challenges the police’s initial attempt to stop
and detain him. He does not challenge Officer McCarron’s subsequent stop
and protective search, during which Officer McCarron recovered a firearm,
following Appellant’s attempted flight.
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Appellant argues that the trial court erred in denying his suppression
motion because it did not have sufficient evidence to conclude that the police
possessed the reasonable suspicion necessary to stop and detain him.
Appellant asserts that a police radio bulletin can only support a stop and frisk
if the Commonwealth presents evidence at the suppression hearing
establishing articulable facts that support a finding of reasonable suspicion.
Appellant contends that because Officer Miles did not testify, the
Commonwealth did not introduce any articulable facts that established
reasonable suspicion. Consequently, Appellant maintains, the trial court was
left to speculate as to whether Officer McCarron and the other officers actually
possessed reasonable suspicion to initially stop him.
In support of his claim, Appellant relies on our Supreme Court’s decision
in Commonwealth v. Yong, 177 A.3d 876 (Pa. 2018). In Yong, the
Supreme Court addressed the issue of whether an “investigating officer’s
knowledge of facts sufficient to create probable cause to arrest may be
imputed to a second officer, who arrests the suspect, when the two officers
are working as a team, but there is no evidence the investigating officer with
probable cause directed the arresting officer to act.” Id. at 877. The Court
held that
where . . . the arresting officer does not have the requisite
knowledge and was not directed to so act, . . . the seizure is still
constitutional where the investigating officer with probable cause
or reasonable suspicion was working with the officer and would
have inevitably and imminently ordered that the seizure be
effectuated.
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Commonwealth v. Yong, 177 A.3d at 890.
Contrary to his arguments, Yong actually supports the constitutionality
of the police’s initial attempt to stop and detain Appellant. The record reflects
that on the night in question, Officer McCarron, a veteran police officer who
had spent 12½ years on the Narcotic Strike Force, was assisting in the
surveillance of an area “infested with narcotics” along with Officer Miles and
several other officers. N.T., 6/21/13, at 7-8. Officer McCarron stated that he
had worked with Officer Miles on the Narcotic Strike Force for approximately
nine years. Id. at 9-11. Officer McCarron testified that while conducting their
surveillance, Officer Miles informed him that he observed Appellant, who was
sitting on a bicycle, engage in several narcotics transactions. Id. at 9. At this
time, Officer McCarron and two other police officers arrived at Appellant’s
location, and attempted to detain him. Id. at 11.
Officer McCarron and the other officers did not initially possess the
requisite knowledge to conduct an investigatory detention of Appellant, as
Officer Miles was the officer who was conducting direct surveillance of
Appellant. Id. at 18. Upon observing Appellant engage in several drug
transactions, Officer Miles possessed reasonable suspicion to stop and detain
him. Officer Miles put out a radio call to Officer McCarron and the other officers
on the Narcotics Strike Force regarding Appellant’s drug-related activities. Id.
at 17. We can infer from this radio call, given that all of the officers involved
were working as a team while surveilling the area and that three of them
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immediately moved to stop and detain Appellant, that Officer Miles had either
instructed the officers to apprehend Appellant or would have inevitably and
imminently asked them to do so.
Accordingly, we conclude, based on the totality of the circumstances,
that the record supports the trial court’s determination that the police officers
who attempted to stop and detain Appellant had reason to believe he was
engaged in criminal activity. Under Yong, the police’s initial attempt to stop
and detain Appellant did not violate his constitutional rights.
Appellant also relies on our Supreme Court’s decision in
Commonwealth v. Queen, 639 A.2d 443 (Pa. 1994). In Queen, Officer
Bryant responded to a call for backup for a vehicle stop. Upon arriving at the
scene Officer Bryant frisked the defendant after Detective Mango, who had
arrived before Officer Bryant, told the officer that the defendant resembled a
male wanted for robbery. Id. at 444. Officer Bryant arrested the defendant
after he discovered the defendant was carrying a firearm without a license.
Id. The defendant filed a suppression motion in which he argued that the
frisk violated his constitutional rights. Id. Detective Mango, however, was
unable to testify at the suppression hearing. Id. at 445.
On appeal, our Supreme Court concluded that the stop and frisk violated
the Fourth Amendment, as Detective Mango’s testimony was “essential” to
“support the search of [the defendant].” Id. The Supreme Court held that “a
stop and frisk may be supported by a police radio bulletin only if evidence is
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offered at the suppression hearing establishing the articulable facts which
support the reasonable suspicion.” Id. The Court explained:
Applying the above principles to this record, it is clear that the
suppression court erred in refusing to suppress [the defendant]’s
weapon. The suppression court assumed that Detective Mango
possessed the required facts to conduct an investigatory stop. At
the suppression hearing, Officer Bryant testified that Detective
Mango did not tell him any of the pertinent facts from which
Detective Mango concluded that [the defendant] was a suspected
robber, only that Detective Mango believed he was. Therefore,
the suppression court did not have a description of the robbery
suspect or the circumstances surrounding the robbery. Without
any such information, the suppression court was required to
speculate as to whether Officer Bryant had sufficient facts to
establish a reasonable suspicion. Such action clearly violates both
the Fourth Amendment of the United States Constitution and
Article I, Section 8, of the Pennsylvania Constitution.
Id. at 445-46.
This case is readily distinguishable from Queen. In Queen, Officer
Bryant conducted an investigatory detention of the defendant after Detective
Mango told him he believed the defendant resembled a male wanted for
robbery. Id. at 444. Here, however, Officer McCarron received information
directly from Officer Miles indicating that Officer Miles had just observed
Appellant engage in several narcotics transactions. N.T., 6/21/13, at 9. Thus,
this case is not like Queen where Detective Mango at best informed Officer
Bryant of his speculation that the defendant resembled a male wanted for
robbery. To the contrary, here, Officer Miles told Officer McCarron that he
specifically observed Appellant in the recent sale and delivery of narcotics.
Therefore, Queen is not applicable to this case.
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Accordingly, as the record supports the trial court’s conclusion that,
based on the totality of the circumstances, the police had reasonable suspicion
to stop and detain Appellant, the trial court did not err in denying Appellant’s
suppression motion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2018
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