Com. v. Smith, D. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DARIAN SMITH : No. 523 EDA 2018
Appeal from the Order January 16, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006271-2017
BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 28, 2019
The Commonwealth of Pennsylvania appeals from the Order granting
the Motion to Suppress filed by Darian Smith (“Smith”). We affirm.
The evidence adduced at the suppression hearing reveals that at
approximately 10:00 p.m. on July 8, 2017, Philadelphia Highway Patrol Officer
Clifford Gilliam (“Officer Gilliam”) and his partner, Officer Antoine Small
(“Officer Small”), were on routine patrol, in full uniform, in their marked police
cruiser. See N.T., 1/16/18, at 5-9. Officer Gilliam had ten years of police
experience at that time. Id. at 6. The officers were travelling southbound on
32nd Street in North Philadelphia, and proceeded to turn onto Norris Street.
Id. at 7, 22. Officer Gilliam stated that this particular area was well-known
for being a high-crime area, including unlawful firearms possession and violent
crimes. Id. at 7. The Officers were assigned to patrol this particular area due
to two or three recent shootings. Id. at 7-8.
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While driving the police cruiser on Norris Street, which was illuminated
with streetlights, Officer Gilliam observed Smith walking between two parked
cars, from a distance of approximately one car-length away. Id. at 9-10.
Officer Gilliam stated that
what brought my attention to [Smith], when he came around the
car, he had both hands in the front of his pants, … and appeared
to be clutching a heavy object. Now, when I saw that …, it was
no doubt in my mind what he was clutching. It appeared to be a
firearm.
Id. at 10. Officer Gilliam testified that based upon his police experience, “the
actions of [Smith] that night [were] consistent with someone … trying to
conceal a firearm[.]” Id. at 11. Notably, however, on cross-examination,
Officer Gilliam clarified that he never saw the “heavy object” that he suspected
Smith was clutching. Id. at 25. Officer Gilliam further agreed that he “didn’t
see any type of angulation in [Smith’s] pants[,] such as an outline of a gun
….” Id. Moreover, Smith did not run or flee in response to seeing the police.
Id. at 26. But see also id. at 12 (wherein Officer Gilliam stated that he saw
another man standing on the side of the street near Smith, and that “[Smith]
was quickly approaching the male. Kind of trying to blade his body away from
my position to get to the other male.”).
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Upon making the above observations, Officer Gilliam exited his vehicle,1
followed by Officer Small, to approach Smith. Id. at 13-14. Officer Gilliam
immediately came up behind Smith, patted him down,2 and felt in Smith’s
basketball shorts an item that the Officer immediately knew to be a firearm.
Id. at 14, 16. Officer Gilliam then pushed Smith up against a parked car,
placed him in handcuffs, and discovered in his shorts a loaded .45 caliber
handgun. Id. at 17-18.
The suppression court also heard testimony from Officer Small. Officer
Small, who had over twenty years of police experience at the time, testified
that after he exited the police cruiser to follow Officer Gilliam, he saw Smith
holding the handle of a black gun. Id. at 31-33, 37-38. Officer Small testified
that he then alerted Officer Gilliam to the presence of a gun by yelling out the
word “Yo.” Id. at 33-34. However, on cross-examination, Officer Small
admitted there was no mention, in any of the police reports filed in this case,
that he had seen the handle of a gun on Smith’s person, and that the Officer’s
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1 Officer Gilliam testified that it was only a few seconds between the time he
first saw Smith and when the Officer exited his vehicle to encounter Smith.
Id. at 24.
2There is no indication in the transcript that Officer Gilliam said anything to
Smith prior to patting him down.
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testimony at the suppression hearing was the first time that this had been
mentioned. Id. at 41-43.3
Following his arrest, the Commonwealth charged Smith with firearms
not to be carried without a license and carrying a firearm on public streets in
Philadelphia.4 On August 7, 2017, Smith filed a Motion to Suppress the firearm
evidence. He asserted that the search of his person was unlawful and
unsupported by probable cause, or reasonable suspicion that he was armed
and dangerous, and therefore, the firearm must be suppressed as fruit of the
poisonous tree.
On January 16, 2018, after considering the foregoing testimony, the
suppression court granted Smith’s Motion to Suppress. In response, the
Commonwealth timely filed a Notice of appeal,5 followed by a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal. The
suppression court then issued a Rule 1925(a) Opinion in support of its ruling.
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3 As we explain below, the suppression court found Officer Small’s testimony
to be incredible.
4 18 Pa.C.S.A. §§ 6106(a)(1), 6108.
5 We note that in filing this interlocutory appeal, the Commonwealth complied
with Pennsylvania Rule of Appellate Procedure 311(d), which provides that
“[i]n a criminal case, under the circumstances provided by law, the
Commonwealth may take an appeal as of right from an order that does not
end the entire case where the Commonwealth certifies in the notice of appeal
that the order will terminate or substantially handicap the prosecution.”
Pa.R.A.P. 311(d).
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On appeal, the Commonwealth presents the following issue for our
review: “Whether the [suppression] court erred by suppressing [Smith’s]
firearm after police officers saw him clutch a heavy object in his shorts and
‘blade’ his body away from the officers[,] late at night[,] in a high[-]crime
neighborhood[?]” Brief for the Commonwealth at 7.
When the Commonwealth appeals from a suppression order,
we follow a clearly defined standard of review and consider only
the evidence from the defendant’s witnesses[,] together with the
evidence of the prosecution[,] that, when read in the context of
the entire record, remains uncontradicted. The suppression
court’s findings of fact bind an appellate court if the record
supports those findings. The suppression court’s conclusions of
law, however, are not binding on an appellate court, whose duty
is to determine if the suppression court properly applied the law
to the facts. Our standard of review is restricted to establishing
whether the record supports the suppression court’s factual
findings; however, we maintain de novo review over the
suppression court’s legal conclusions.
Commonwealth v. Petty, 157 A.3d 953, 955 (Pa. Super. 2017) (internal
citations and quotation marks omitted). Additionally, “it is the sole province
of the suppression court to weigh the credibility of the witnesses.”
Commonwealth v. Caple, 121 A.3d 511, 517 (Pa. Super. 2015) (citation
omitted).
“It is well settled that an officer may pat-down an individual whose
suspicious behavior he is investigating on the basis of a reasonable belief that
the individual is presently armed and dangerous to the officer or others.”
Commonwealth v. Gray, 896 A.2d 601, 605-06 (Pa. Super. 2006)
(citing Terry v. Ohio, 392 U.S. 1 (1968) (holding that police may conduct an
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investigatory detention and frisk if they have reasonable suspicion that
criminal activity is afoot)). 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).
Further, the delicate balance between protecting the right
of citizens to be free from unreasonable searches and seizures, on
the one hand, and protecting the safety of our citizens and police
officers[,] by allowing police to make limited intrusions on citizens
while investigating crime, on the other hand, requires additional
considerations when the police have a reasonable suspicion that a
person may be armed.
***
Thus, under Terry …[,] a police officer may frisk an individual
during an investigatory detention when the officer believes, based
on specific and articulable facts, that the individual is armed and
dangerous. When assessing the reasonableness of an officer’s
decision to frisk a suspect during an investigatory detention, an
appellate court does not consider the officer’s unparticularized
suspicion or “hunch” but rather[,] the specific reasonable
inferences which he is entitled to draw from the facts in light of
his experience.
Commonwealth v. Stevenson, 894 A.2d 759, 771-72 (Pa. Super. 2006)
(internal citations, ellipses, and quotation marks omitted).
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The Commonwealth contends that Officer Gilliam had reasonable
suspicion to perform a Terry stop and frisk due to the fact that he was
patrolling a known high-crime area at night, and observed Smith with his
hands in his waistband area, apparently clutching a heavy object in a manner
that indicated to Officer Gilliam, an officer with a decade of law enforcement
experience, that Smith was armed. See Brief for the Commonwealth at 11-
19.
In its Opinion, the suppression court stated as follows in support of its
ruling that the police lacked reasonable suspicion:
[T]he only specific, articulable fact that Officer Gilliam possessed
was that [Smith] had his hands in front of him grabbing an object.
The police officer could not make out the form of the object, [and]
did not see a bulge, but just “knew” it was a gun. [Smith] did not
attempt to flee, was not looking around furtively, nor was he the
subject of a radio call or complaint. There was absolutely no
interaction between the police officers and [Smith]. Officer Gilliam
was clear. He did not ask [Smith] to stop, did not inquire of
[Smith] what was in his waist, or any other inquiry. The [O]fficer
got out of his car, immediately went to [Smith] and grabbed him
from behind, reaching around Smith in a bear hug to retrieve
whatever was in [Smith’s] waist. The police further agreed with
defense counsel that they were patrolling a particular area, based
upon an unknown shooting, at an unknown time, at an unknown
location, when they saw a group of guys[,] and the police made a
decision to stop them. There was a complete lack of specific,
articulable facts which would warrant a man of reasonable caution
in the belief that criminality was afoot[,] and that the action of
grabbing [Smith] from behind[,] with no other interaction, was
the appropriate action to be taken. Accordingly, the court acted
within its discretion in granting [Smith’s] [M]otion to suppress.
Suppression Court Opinion, 4/11/18, at 6 (paragraph break omitted).
Moreover, the suppression court stated that it found Officer Small’s testimony
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to be incredible. See id. at 3 (stating that “Officer Small’s testimony was not
credible given the inconsistencies and his lack of recollection regarding the
incident, along with the absence of any of these observations[, i.e., concerning
his seeing the handle of a firearm in Smith’s waistband,] in any of the police
reports.”).
Initially, to the extent that the suppression court discredited the
testimony of Officer Small, we may not disturb this finding. See Caple,
supra.
Further, we agree with the suppression court’s legal determination that
Officer Gilliam failed to state sufficient articulable facts to reasonably suspect
that Smith was engaged in criminal activity necessary for an investigative
detention. Our review discloses that the cases the Commonwealth cites to
support a contrary finding are all distinguishable. Officer Gilliam did not (1)
actually see Smith holding a firearm; (2) describe seeing any particular shape
or characteristic that was consistent with a firearm; (3) see Smith flee or take
evasive actions; and (4) the Officer only observed Smith for a matter of
seconds before coming up behind him without a word, and stopping and
frisking him. Cf. Commonwealth v. Carter, 105 A.3d 765, 766, 774-75 (Pa.
Super. 2014) (en banc) (holding that police officer had reasonable suspicion
to conduct a Terry frisk, where the defendant was standing on a street corner
in a high-crime area at night, had a weighted and angled bulge in his coat
pocket, was alerted to the officer’s presence and intentionally turned his body
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away several times to conceal the bulge in his coat pocket, and the officer
observed the defendant walking away from the known drug corner when the
officer repeatedly circled the area for ten minutes); Commonwealth v.
Foglia, 979 A.2d 357, 361 (Pa. Super. 2009) (en banc) (finding “evasive
behavior” in walking away from police contributes to reasonable suspicion).
Aside from seeing Smith with his hands in his waistband area, allegedly
holding some unidentified heavy object, Officer Gilliam did not see any indicia
of criminal activity. Cf. Commonwealth v. E.M., 735 A.2d 654, 657 (Pa.
1999) (finding reasonable suspicion existed where the police, after observing
plastic bags of what appeared to be marijuana bulging out of the jacket pocket
of the friend with whom E.M. had been smoking, saw a bulge that “could have
been characteristic of a small semi-automatic” in E.M.’s front pants pocket).
Further, our Courts have repeatedly emphasized that mere presence in a high-
crime area is alone insufficient to establish reasonable suspicion. See In re
D.M., 781 A.2d 1161, 1163 (Pa. 2001); see also Commonwealth v. Key,
789 A.2d 282, 289-90 (Pa. Super. 2001) (stating that “[a]n individual’s act of
merely walking away from police officers in a ‘high crime area’ is manifestly
insufficient to justify an investigative detention of that individual.”).
Rather, we find that the instant case is more analogous to this Court’s
decision in Commonwealth v. Martinez, 588 A.2d 513 (Pa. Super. 1991).
The Martinez Court held that a situation in which the defendant “walked
quickly away from a group of people on a street corner after observing a police
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vehicle …[, and] where … officers observed a bulge in her front pocket[,]” does
not constitute reasonable suspicion of criminal activity necessary for an
investigative detention. Id. at 514; see also id. at 516 (stating that an
officer’s mere belief that a person might be armed cannot serve as an
additional articulable fact to justify an initial stop). The facts in Martinez are
similar to the instant case, except, instead of seeing an unidentified “bulge,”
Officer Gilliam saw Smith holding his hands in his waistband area, apparently
holding an unidentified heavy object, which the Officer believed was indicative
of secreting a firearm. Moreover, Officer Gilliam observed less suspicious
activity than the officers in Martinez, in that Smith was not seen “walking
quickly away” upon noticing the police.
Additionally, contrary to the Commonwealth’s protestations, see Brief
for the Commonwealth at 17-18, there is no evidence that the suppression
court disregarded Officer Gilliam’s experience, or the nature of the
neighborhood being a high-crime area, in weighing the totality of the
circumstances. Rather, in considering the totality of the circumstances, the
suppression court ostensibly disbelieved Officer Gilliam’s contention that he
reasonably suspected that Smith’s actions and appearance were indicative of
his secreting a firearm. Again, it is not within our purview to question the
suppression court’s credibility determinations. See Caple, supra.
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Based upon the foregoing, because we discern no error in the
suppression court’s factual findings or its application of the law to these
findings, we affirm its Order granting Smith’s Motion to Suppress.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/19
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