Com. v. Moore, F. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
FREDERICK MOORE :
:
Appellant : No. 1192 EDA 2018
Appeal from the Judgment of Sentence April 4, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001177-2017
BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED MAY 21, 2019
Frederick Moore (Appellant) appeals from the judgment of sentence
imposed after he was convicted of firearms not to be carried without a license,
carrying firearms on public streets in Philadelphia, and persons not to possess
a firearm.1 We affirm.
On the night of January 4, 2017, Officer Daniel Loesch (Officer Loesch)
of the Philadelphia Police Department was investigating open air drug sales
near 31st and Diamond Streets, a high-crime and drug area. Officer Loesch
was accompanied by Officers Fitzgerald and McCann. The officers were
members of the 22nd Police District’s Drug Enforcement Team. Officer Loesch
and the other officers were in an unmarked police car and wearing plain
____________________________________________
1 18 Pa.C.S.A. §§ 6106(a)(1), 6108, 6105(a)(1).
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clothes. Officer Fitzgerald was wearing an official police vest that identified
him as a police officer.
At around 10:30 p.m. that night, Officer Loesch observed Appellant and
another male walking toward the police vehicle. As he watched Appellant,
Officer Loesch observed Appellant adjust his waistband and grab an object in
his front waistband that Officer Loesch believed, based on his training and
experience, to be a gun. As Appellant and the other male continued walking
toward Officer Loesch’s vehicle, Appellant said something inaudible to the
other male and immediately turned around and began walking in the opposite
direction away from the officers.
Without activating their lights and sirens, the officers began driving
slowly toward Appellant and the other male. When the police vehicle reached
Appellant, Officer Loesch, who was sitting in the front passenger seat, and
Officer Fitzgerald, who was sitting directly behind Officer Loesch, put their
windows down. At this time, Officer Loesch observed Appellant once again
grab and adjust his waistband. Officer Loesch stated that Appellant was
grabbing at a hard object in his waistband that he said looked like a handle.
As soon as the officers put their windows down, Appellant fled down a nearby
alley. Prior to Appellant’s flight, the officers did not have an opportunity to
say anything to Appellant or verbally identify themselves as police officers.
Officer Loesch exited the police vehicle and pursued Appellant on foot.
During the pursuit, Officer Loesch saw Appellant attempt to get rid of
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something followed by the sound of a thump on the ground. After
apprehending Appellant, Officer Loesch recovered a loaded revolver near
where he had observed Appellant attempting to discard an object and heard
the thump.
Appellant was arrested and charged with firearms not to be carried
without a license, carrying firearms on public streets in Philadelphia, and
persons not to possess a firearm. On February 23, 2017, Appellant filed a
motion to suppress on the basis that police chased and apprehended him
without reasonable suspicion to do so. On October 17, 2017, the trial court
held a hearing on Appellant’s suppression motion, after which the court denied
the motion.
The trial court summarized the procedural history that followed:
On January 9, 2018, Appellant appeared before this [c]ourt for
a jury trial at the conclusion of which the jury found Appellant
guilty of the crimes of Firearms not to be Carried without a
License, 18 Pa.C.S. § 6106, and Carrying Firearms on a Public
Street, 18 Pa.C.S. § 6108. After the jury rendered its verdict, this
[c]ourt conducted a waiver trial on a charge of Possession of
Firearm by a Prohibited Person, 18 Pa.C.S. § 6105, and found
Appellant guilty.
* * *
On April 4, 2018, this [c]ourt imposed consecutive sentences
of five to ten years[] and one to five years[ of] incarceration on
the Possession of Firearm by a Prohibited Person and Carrying
Firearms on a Public Street convictions as well as a concurrent
term of probation of five years on the Firearms not to be Carried
without a License conviction. On April 16, 2014, Appellant filed a
post-sentence motion, which this Court denied on April 18, 2018.
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Appellant filed a notice of appeal following the denial of his
post-sentence motion. Appellant thereafter filed a counseled
court-ordered Pa.R.A.P. 1925(b) Statement of Matters to be
raised on Appeal.
Trial Court Opinion, 9/19/18, at 1-2.
On appeal, Appellant presents the following issues for review:
1. Did not the court err by denying Appellant’s motion to
suppress physical evidence, to wit, the gun he was forced to
abandon when officers began chasing Appellant after he adjusted
his waistband?
2. Did not the court err and abuse its discretion by denying
Appellant’s motion for a new trial, where the verdict as to the
weapons charges w[as] so contrary to the weight of the evidence
as to shock one’s sense of justice?
3. Did not the court err and abuse its discretion by imposing
on Appellant a manifestly excessive and unreasonable sentence of
6 to 15 years[ of] imprisonment followed by 5 years[ of] probation
without articulating the grounds for such a sentence?
Appellant’s Brief at 5.
For his first issue, Appellant challenges the trial court’s denial of his
suppression motion. 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
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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). Importantly, our scope of review from a
suppression ruling is limited to the evidentiary record that was created at the
suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).
“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). “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).
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This Court has explained that when determining whether an interaction
is a mere encounter or 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). “We observe that well-settled
Pennsylvania precedent establishes that a police officer’s pursuit of a fleeing
suspect constitutes a seizure.” Commonwealth v. Taggart, 997 A.2d 1189,
1192 (Pa. Super. 2010) (citing Commonwealth v. Cook, 735 A.2d 673, 675
(Pa. 1999); Commonwealth v. Matos, 672 A.2d 769, 775-76 (Pa. 1996)).
Accordingly, we must determine whether Officer Loesch’s pursuit and
subsequent apprehension of Appellant was supported by reasonable suspicion.
See Newsome, 170 A.3d at 1154.
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). 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
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experience.” Cook, 735 A.2d at 677. “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).
The trial court, in concluding that the police had reasonable suspicion to
pursue and detain Appellant, explained:
Here, it is clear that Appellant was subject to a mere encounter
and that he fled of his own volition and not because of anything
the police did. During the suppression hearing, Officer Loesch
testified, as he did during Appellant’s trial, that he and the other
officers were investigating drug activity while inside an unmarked
police car when he saw Appellant: 1.) make an adjustment in his
waist band area to an object the officer believed to be a gun; 2.)
suddenly turn around and walk in the opposite direction away from
the officers; 3.) make two more adjustments, and; 4.) then flee
from the officers, who, other than slowly following Appellant as he
walked away from them, did nothing to convey to Appellant that
he was not free to leave.
Trial Court Opinion, 9/19/18, at 7.
Appellant argues that no mere encounter took place because he fled
prior to the police officers having an opportunity to say anything to him.
Additionally, Appellant asserts that the police officers did not have reasonable
suspicion to pursue and detain him because he was unaware that he was
fleeing from police. Appellant maintains that an individual must be aware he
or she is fleeing from the police in order for flight to create reasonable
suspicion.
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It is well-settled that “unprovoked flight in a high crime area
establish[es] a reasonable suspicion to believe that criminal activity is afoot
to allow for a Terry stop.” Commonwealth v. Brown, 904 A.2d 925, 930
(Pa. Super. 2006). As this Court indicated, however, in Commonwealth v.
Washington, 51 A.3d 895 (Pa. Super. 2012):
[T]he United States Supreme Court speaks of unprovoked flight
upon noticing the police in a high crime area. Additional language
[in Supreme Court opinions] also supports the conclusion that the
suspect must know he is running from law enforcement before a
reasonable suspicion can attach. . . . [N]ervous, evasive behavior
and headlong flight all provoke suspicion of criminal behavior in
the context of response to police presence.
Id. at 898 (citing Illinois v. Wardlow, 528 U.S. 119, 124 (2000)). In
Washington, this Court concluded that the defendant’s unprovoked flight in
a high-crime area did not justify an investigative detention because there was
no evidence he was aware that he fled from the police, as the defendant fled
before police officers arrived at the scene. Id. at 899.
Thus, while we agree with Appellant that a person must know that he
or she is running from the police before flight in a high-crime area can raise
reasonable suspicion, we nevertheless conclude that the record supports the
suppression court’s determination that Appellant was aware he was fleeing
from police in this instance. While Officers Loesch, Fitzgerald, and McCann
were investigating drug sales near 31st and Diamond Streets in Philadelphia,
a well-known high-crime and drug area, Officer Loesch observed Appellant,
numerous times, adjust his waistband and grab an object in his front
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waistband. N.T., 10/17/17, at 8-13, 23. Officer Loesch, based on his training
and experience, believed this object was a gun. Id. at 13. As the officers’
vehicle slowly approached Appellant on the side of street, Officer Loesch
noticed that Appellant continued grabbing and adjusting his waistband and
observed what looked like a “handle” protruding from Appellant’s pants. Id.
at 14-15, 18. When the vehicle stopped alongside Appellant, and Officer
Loesch and Officer Fitzgerald (who was wearing police vest) put their windows
down, Appellant immediately fled. Id. at 15. Although the officers were in
an unmarked car and in plain clothes, Appellant’s sudden and immediate flight
upon the officers putting their windows down leads to the reasonable inference
that Appellant saw Officer Fitzgerald in a police vest and was aware that he
was fleeing from police officers. See id. at 13-18. This case is thus
distinguishable from Washington.
The record reflects that Officer Loesch observed Appellant: (1) in a
high-crime, high drug area; (2) repeatedly grabbing at and adjusting an object
in his waistband that the officer, based on his training and experience,
believed to be a firearm; and (3) flee upon realizing that the officers appeared
that they were about to speak to him. We therefore conclude that Appellant
knowingly fled from the police in a high-crime area and consequently, the
police officers possessed the reasonable suspicion necessary to pursue and
detain Appellant. See Brown, 904 A.2d at 930. Accordingly, the trial court
did not abuse its discretion in denying Appellant’s suppression motion.
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Next, Appellant argues that the trial court abused its discretion in
denying his motion for a new trial on the basis that the verdicts were against
the weight of the evidence. Appellant claims there was a “total absence of
any corroborating evidence that the firearm recovered from the alleyway had
ever been in Appellant’s possession[,]” other than Officer Loesch’s testimony.
Appellant’s Brief at 24.
Our standard of review for a claim that the verdict was against the
weight of the evidence is as follows:
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. Commonwealth v. Widmer, [] 744 A.2d 745,
751-52 ([Pa.] 2000); [Commonwealth v. Brown, 648 A.2d
1177, 1189 (Pa. 1994)]. A new trial should not be granted
because of a mere conflict in the testimony or because the judge
on the same facts would have arrived at a different conclusion.
Widmer, 744 A.2d at 752. Rather, “the role of the trial judge is
to determine that ‘notwithstanding all the facts, certain facts are
so clearly of greater weight that to ignore them or to give them
equal weight with all the facts is to deny justice.’” [Id.] (citation
omitted). It has often been stated that “a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.” Brown, 648 A.2d at 1189.
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
Brown, 648 A.2d at 1189. Because the trial judge has had
the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when
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reviewing a trial court’s determination that the verdict is
against the weight of the evidence. Commonwealth v.
Farquharson, 354 A.2d 545 (Pa. 1976). One of the least
assailable reasons for granting or denying a new trial is the
lower court’s conviction that the verdict was or was not
against the weight of the evidence and that a new trial
should be granted in the interest of justice.
Widmer, 744 A.2d at 753 (emphasis added).
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).
Instantly, the record reflects that Officer Loesch and the other officers
approached Appellant and his companion because Office Loesch observed
Appellant grab at and adjust an object in Appellant’s waistband that Officer
Loesch believed was a gun. N.T., 1/10/18, 21-22, 29, 31-32. At trial, Officer
Loesch testified that as the officers’ vehicle approached Appellant, he could
see the outline of the butt of a gun in Appellant’s pants. Id. at 43. Officer
Loesch testified that Appellant then fled while holding the handle of the gun
in his waistband. Id. at 40. While pursuing Appellant, Officer Loesch saw
Appellant trying to discard the gun and then heard a thump, which the officer
believed to be the gun hitting the ground. Id. at 40-47. After the officers
apprehended Appellant, Officer Loesch recovered the firearm from the location
where he heard the loud thump. Id. at 50-56.
Both the jury and the trial court, in finding Appellant guilty of multiple
firearms violations, credited Officer Loesch’s testimony. Although there was
no evidence, other than Officer Loesch’s testimony, indicating that the firearm
Officer Loesch recovered belonged to Appellant, Officer Fitzgerald’s testimony
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corroborated Officer’s Loesch version of the events in almost every respect.
See id. at 114-35. The jury and the trial court, as the factfinders, were
entitled to credit Officer Loesch’s testimony. Their decision to credit Officer
Loesch’s testimony does not shock one’s sense of justice. Accordingly, we
conclude that the trial court did not abuse its discretion in finding that the
verdicts were not against the weight of the evidence.
Finally, Appellant argues that the trial court did not consider the
appropriate factors in determining Appellant’s sentence. This issue challenges
the discretionary aspects of Appellant’s sentence.
“The right to appellate review of the discretionary aspects of a sentence
is not absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).
“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence.” Id. We conduct
this four-part test to determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
raises a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). “A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
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Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013)
(quotations and citations omitted).
Here, Appellant preserved his discretionary aspects of sentencing claim
by raising it in a post-sentence motion. See Post-Sentence Motion, 4/16/18,
¶ 6. Appellant also filed a timely notice of appeal and included in his appellate
brief a concise statement of the reasons relied upon for the allowance of his
appeal pursuant to Pennsylvania Rule of Appellate Procedure 2119(f). See
Appellant’s Brief at 15-16. Thus, we must determine whether Appellant’s
discretionary aspects of sentencing claim raises a substantial question for our
review.
Appellant argues that his sentence was excessive because the trial court
did not take into consideration the appropriate factors in determining his
sentence. Specifically, Appellant contends that the trial court did not consider
the appropriate sentencing factors of 42 Pa.C.S.A. § 9721(b). Appellant’s
Brief at 16. Appellant maintains “it is clear that the court gave absolutely no
meaningful consideration to the proper criteria, specifically Appellant’s
character, background, and rehabilitative needs.” Id. at 30. This claim
presents a substantial question. See Commonwealth v. Derry, 150 A.3d
987, 992 (Pa. Super. 2016) (“An averment that the trial court failed to
consider relevant sentencing criteria, including the protection of the public,
the gravity of the underlying offense and the rehabilitative needs of Appellant,
as 42 PA.C.S.[ ] § 9721(b) requires[,] presents a substantial question for our
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review in typical cases.”). Accordingly, we turn to the merits of Appellant’s
sentencing claim.
Our standard of review for discretionary aspects of sentencing claims is
as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Id. (quoting Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super.
2006)).
Section 9721(b) of the Sentencing Code sets forth general sentencing
standards for trial courts and provides, in pertinent part:
(b) General standards.—. . . the court shall follow the
general principle that the sentence imposed should call for
confinement that is consistent with the protection of the public,
the gravity of the offense as it relates to the impact on the life of
the victim and on the community, and the rehabilitative needs of
the defendant. . . . In every case in which the court imposes a
sentence for a felony or misdemeanor, modifies a sentence,
resentences an offender following revocation of probation, county
intermediate punishment or State intermediate punishment or
resentences following remand, the court shall make as a part of
the record, and disclose in open court at the time of sentencing,
a statement of the reason or reasons for the sentence imposed.
42 Pa.C.S.A. § 9721(b).
In rejecting Appellant’s sentencing claim, the trial court explained:
[T]he aggregate sentence imposed on the gun charges was not
unreasonable and did not constitute an abuse of discretion
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because all of the factors . . . were considered by this Court, along
with the applicable law, when it fashioned the sentence it imposed
on Appellant. This Court carefully considered the information in
the pre-sentence reports, which showed that Appellant had a long
history of criminal conduct which, in this Court’s view, rendered
him a danger to the community. It is noted that, “where the
sentencing court imposed a standard-range sentence with the
benefit of a pre-sentence report, [an appellate court] will not
consider the sentence excessive.” Commonwealth v. Corley,
31 A.3d 293, 298 (Pa. Super. 2011) (citing Commonwealth v.
Moury, 992 A.2d 162, 171 (Pa. Super. 2010). Moreover, the
record herein is full of reasons why this Court sentenced Appellant
as it did, including Appellant’s possession of a firearm while
prohibited from doing so, his vast criminal record, his flight from
police, and his dangerous propensities, all of which are aptly
demonstrated by the record herein. The law provides that “[a]
sentencing judge can satisfy the requirement that reasons for
imposing sentence be placed on the record by indicating that he
or she has been informed by the pre-sentencing report; thus
properly considering and weighing all relevant factors.”
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super.
2009) (quoting Commonwealth v. Fowler, 893 A.2d 758, 766-
67 (Pa. Super. 2006)).
Trial Court Opinion, 9/19/18, at 12-13.
Upon review, we agree with the trial court’s disposition of this issue,
including its reliance on our Corley and Ventura decisions. The record
reflects that the trial court had the benefit of a pre-sentence investigation
report and acknowledged reviewing it. N.T., 4/4/18, at 14. As the trial court
rightfully noted, “where the sentencing court imposed a standard-range
sentence with the benefit of a pre-sentence report, we will not consider the
sentence excessive.” Corley, 31 A.3d at 298. Additionally, “[i]n those
circumstances, we can assume the sentencing court was aware of relevant
information regarding the defendant’s character and weighed those
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considerations along with mitigating statutory factors.” Id. (quotations and
citations omitted). Therefore, there is no support for Appellant’s claim that
his sentence was excessive and that the trial court did not take into
consideration the appropriate factors in sentencing him. Accordingly,
Appellant’ discretionary aspects of sentencing claim is meritless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/19
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