Com. v. Shields, M. ( 2019 )

J-S74022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
MICHAEL SHIELDS
Appellant No. 1503 EDA 2017
Appeal from the Judgment of Sentence Entered May 1, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0012419-2015
BEFORE: LAZARUS, STABILE, and McLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 11, 2019
Appellant Michael Shields appeals from the May 1, 2017 judgment of
sentence entered in the Court of Common Pleas of Philadelphia County (“trial
court”), following his stipulated bench conviction for firearms not to be carried
without a license and carrying firearms in public in Philadelphia.1 Upon review,
we affirm.
The facts and procedural history of this case are undisputed. As
recounted by the trial court:
Appellant was arrested on November 20, 2015 following an
encounter with uniformed police officers who were responding to
a radio call for gunshots in the area. Prior to trial, Appellant
moved for suppression of the physical evidence seized at the time
of his arrest, namely the gun, which was denied by th[e] court.
Following a stipulated trial incorporating all testimony heard as
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1 18 Pa.C.S.A. §§ 6106(a)(1) and 6108, respectively.
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part of the suppression motion, th[e] court found Appellant guilty
of violations of the Uniform Firearms Act [(“VUFA”)].
The Commonwealth’s case consisted of the testimony of one
of the responding police officers, Officer Mirabella, as well as four
(4) exhibits moved into evidence, including a map of the area
where the arrest took place, the property receipt and ballistic
report for the gun and certificate of non-licensure. Officer
Mirabella testified as follows. He and his partner (McCabe) were
in uniform and in a marked police vehicle when they received a
radio call at approximately 12:35 am for gunshots on the 2400
block of Park. On cross-examination, he acknowledged that the
radio call may have indicated that the shots were coming from
inside 2315 North Park. The radio call was vague and did not
provide a description nor information on the shooter. As a result
of the call, he began to survey the area and within five (5) minutes
he came into contact with Appellant near the 2400 block of North
13th which was about one block from where the shots were
reported to be fired.
Appellant and another male (defense witness, Sherrod
West) were standing near a silver Chevy Impala. The vehicle was
parked on the left side of the street and was therefore nearer to
Officer Mirabella who was driving the patrol [vehicle]. Mr. West
was standing in the street directly behind the car at the trunk area
and Appellant was standing near the pavement at the driver’s side
rear quarter panel. The officer remained in his patrol [vehicle]
and asked the men if they had heard gunshots. Mr. West
responded ‘no’ but Appellant did not respond and after looking at
the officers he immediately looked away. Officer Mirabella stated
that Mr. West was acting normally and was having a casual
conversation with the officers. At no time did either officer ask
the men to stop nor come to the patrol [vehicle]. Officer Mirabella
focused his attention on Appellant because Appellant had quickly
looked away and would not make eye contact with the officers.
The officer testified that he could only see Appellant from
the midsection up but while observing him, the officer saw
Appellant motion (his hand) toward his waistband area and also
moved to block his body from behind the car, and bladed his body
[a]way from the officers. Further, the officer no longer was able
to see Appellant’s hand that had [gone] down towards his
waistband and over his jacket nor that side of Appellant’s waist
once Appellant bladed his body behind the car. Although the
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officer could not see a firearm, based upon his experience he
believed Appellant was in possession of a firearm. At the time of
this arrest, Officer Mirabella had been a police officer for three (3)
years and had been assigned during that time to the 22nd district
which he described as one of the worse crime areas in the city
with a lot of shootings and that he had personally recovered
several firearms in that district.
Officer Mirabella exited his patrol [vehicle] and approached
Appellant and again asked Appellant if he was okay and Appellant
did not respond and looked like he was frozen and could [not]
speak and then stumbled over his words. He appeared extremely
nervous and had sweat across his forehead despite it being the
month of [November]. Officer Mirabella then told Appellant to put
his hands on the car and performed a Terry[2] frisk and found a
firearm in the front right side of Appellant’s waistband, which was
where the officer saw Appellant reach his hand earlier. The
officer’s thumb had hit the firearm during the frisk and the officer
immediately knew it was a firearm. Whereupon Appellant was
placed under arrest for VUFA.
On cross-examination, the officer acknowledged that
neither man attempted to flee and that some people who have not
committed a crime appear nervous and sweat in the presence of
police officers. He stated that based upon the totality of the
circumstances that he was 70 percent sure Appellant had a gun.
The Commonwealth then rested for purposes of the suppression
motion.
Appellant called Sherrod West to testify and he did so as
follows. He and Appellant were friends and had graduated school
together in 2014 and did some film and photo work projects
together, including that night. He had misplaced his computer
and he and Appellant went outside to his car to try and find it
when the marked police [vehicle] came upon them. The officers
asked them if everything was okay and he responded yes but that
he was the only one talking and that Appellant was “quiet the
whole time.” He was speaking with Officer Mirabella who had
asked if he had thoroughly checked the whole car and then asked
if they had anything in the car, to which he responded no. He
testified that Officer Mirabella asked him [if] Appellant was okay
and he responded [] yes. Officer Mirabella then jumped out of the
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2 Terry v. Ohio, 392 U.S. 1 (1968).
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patrol [vehicle] and started talking to Appellant and asked him
“what do you have on you?” but Appellant did not say anything in
response. The officer then felt Appellant and found a gun.
On cross-examination, Mr. West agreed that officers did not
tell him nor Appellant to stop and had just engaged them in a
casual conversation and while doing so he was looking at the
officers but that only he was talking with the officers not Appellant.
He also agreed that Appellant was standing off to the side and that
the trunk of the car was in between him and Appellant.
Appellant then was called for demonstrative purposes only
and put on the jacket that he was wearing when he was arrested,
indicating that it was being worn open that night and th[e] court
placed onto the record that the jacket extended about four (4)
inches below the waist of Appellant. Appellant then rested for
purposes of the motion, with the admission of the police radio call
tape. Following argument th[e] court denied the motion to
suppress the firearm. The case then proceeded to trial with both
the Commonwealth and Appellant agreeing to a stipulated trial
with the admission of all evidence received by the court for
purposes of the suppression motion, together with a stipulation as
to Appellant’s good character.
Th[e trial] court found Appellant guilty of both firearms
charges and following the submission of a pre-sentencing report,
sentenced Appellant within the guidelines.[3] Appellant timely filed
his notice of appeal of th[e] court’s decision to the Pennsylvania
Superior Court. On May 15, 2017 th[e] court issued a Pa.R.A.P.
1925(b) order directing Appellant to file his statement of errors
complained of on appeal. However, Appellant’s statement was not
filed until November 3, 2017, following an order by the Superior
Court directing Appellant to do so within twenty-one (21) days.
[In response, the trial court issued a Pa.R.A.P. 1925(a) opinion.]
Trial Court Opinion, 12/6/17, 1-5 (unnecessary capitalizations and record
citations omitted).
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3Prior to sentencing, Appellant moved for extraordinary relief, renewing his
motion to suppress the firearm. The trial court denied the motion on May 1,
2017, on the day of sentencing.
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On appeal, Appellant argues only that the trial court erred in denying
his motion to suppress the gun. Appellant’s Brief at 6, 16.
In reviewing appeals from an order denying suppression, our standard
of review is limited to determining
whether [the trial court’s] factual findings are supported by the
record and whether [its] legal conclusions drawn from those facts
are correct. When reviewing the rulings of a [trial] court, the
appellate court considers 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 [trial] court, we are
bound by those facts and may reverse only if the legal conclusions
drawn therefrom are in error.
Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015). Our
scope of review is limited to the evidence presented at the suppression
hearing. In re interests of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013).
Article I, Section 8 of the Pennsylvania Constitution and the Fourth
Amendment to the United States Constitution protect the people from
unreasonable searches and seizures. Commonwealth v. Lyles, 97 A.3d 298,
302 (Pa. 2014) (citation omitted). The Lyles Court explained:
Jurisprudence arising under both charters has led to the
development of three categories of interactions between citizens
and police. The first, a “mere encounter,” does not require any
level of suspicion or carry any official compulsion to stop and
respond. The second, an “investigatory detention,” permits the
temporary detention of an individual if supported by reasonable
suspicion. The third is an arrest or custodial detention, which
must be supported by probable cause.
In evaluating the level of interaction, courts conduct an
objective examination of the totality of the surrounding
circumstances. . . . The totality-of-the-circumstances test is
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ultimately centered on whether the suspect has in some way been
restrained by physical force or show of coercive authority. Under
this test, no single factor controls the ultimate conclusion as to
whether a seizure occurred—to guide the inquiry, the United
States Supreme Court and [our Supreme] Court have employed
an objective test entailing a determination of whether a
reasonable person would have felt free to leave or otherwise
terminate the encounter. What constitutes a restraint on liberty
prompting a person to conclude that he is not free to leave will
vary, not only with the particular police conduct at issue, but also
with the setting in which the conduct occurs.
[Our Supreme] Court and the United States Supreme Court
have repeatedly held a seizure does not occur where officers
merely approach a person in public and question the individual or
request to see identification. Officers may request identification
or question an individual so long as the officers do not convey a
message that compliance with their requests is required.
Although police may request a person’s identification, such
individual still maintains the right to ignore the police and go about
his business.
Id. at 302-03 (internal citations and quotation marks omitted). “We adhere
to the view that a person is ‘seized’ only when, by means of physical force or
a show of authority, his freedom of movement is restrained. Only when such
restraint is imposed is there any foundation whatever for invoking
constitutional safeguards.” United States v. Mendenhall, 446 U.S. 544,
553 (1980).
Here, it is undisputed that Officer Mirabella’s pat-down of Appellant
amounted to an investigative detention necessitating reasonable suspicion. It
is settled that reasonable suspicion necessary for investigative detentions
is a less demanding standard than probable cause not only in the
sense that reasonable suspicion can be established with
information that is different in quantity or content than that
required to establish probable cause, but also in the sense that
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reasonable suspicion can arise from information that is less
reliable than that required to show probable cause.
Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014) (citations
omitted). In Commonwealth v. Simmons, 17 A.3d 399 (Pa. Super. 2011),
appeal denied, 25 A.3d 328 (Pa. 2011), we explained that Pennsylvania has
adopted the holding of Terry:
[T]he Terry stop and frisk[] permits a police officer to briefly
detain a citizen for investigatory purposes if the officer observes
unusual conduct which leads him to reasonably conclude, in light
of his experience, that criminal activity may be afoot. Terry
further held that when an officer is justified in believing that the
individual whose suspicious behavior he is investigating at close
range is armed and presently dangerous to the officer or to others
the officer may conduct a pat down search to determine whether
the person is in fact carrying a weapon. The purpose of this
limited search is not to discover evidence of crime, but to allow
the officer to pursue his investigation without fear of violence.
In order to conduct an investigatory stop, the police must have
reasonable suspicion that criminal activity is afoot. In order to
determine whether the police had reasonable suspicion, the
totality of the circumstances—the whole picture—must be
considered. Based upon that whole picture the detaining officers
must have a particularized and objective basis for
suspecting the particular person stopped of criminal
activity. To conduct a pat down for weapons, a limited search or
frisk of the suspect, the officer must reasonably believe that his
safety or the safety of others is threatened.
Simmons, 17 A.3d at 403 (citations, quotation marks, brackets, and some
paragraph breaks omitted) (emphasis added). In assessing the totality of the
circumstances, a court must give weight to the inferences that a police officer
may draw through training and experience. Commonwealth v. Holmes,
14 A.3d 89, 95 (Pa. 2011); see Commonwealth v. Williams, 980 A.2d 667,
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672 (Pa. Super. 2009) (citations omitted) (noting that “[r]easonable suspicion
must be based on specific and articulable facts, and it must be assessed based
upon the totality of circumstances viewed through the eyes of a trained police
officer.”), appeal denied, 990 A.2d 730 (Pa. 2010).
However, “[t]he officer need not be absolutely certain that the individual
is armed; the issue is whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or the safety of others was in
danger.” Commonwealth v. Taylor, 771 A.2d 1261, 1268-69 (Pa. 2001).
In conducting a reasonable suspicion inquiry, a suppression court is required
to “afford due weight to the specific, reasonable inferences drawn from the
facts in light of the officer’s experience[.]” Commonwealth v. Brown, 996
A.2d 473, 477 (Pa. 2010). If weapons are found because of the pat-down
search, the police officer may seize them. Commonwealth v. Thompson,
939 A.2d 371, 376 (Pa. Super. 2007), appeal denied, 956 A.2d 434 (Pa.
2008). Moreover, officers may seize nonthreatening contraband “if it is
discovered in compliance with the plain feel doctrine[.]”4 Id.____________________________________________
4Appellant here does not challenge the applicability of the plain feel doctrine,
pursuant to which:
a police officer may seize non-threatening contraband detected
through the officer’s sense of touch during a Terry frisk if the
officer is lawfully in a position to detect the presence of
contraband, the incriminating nature of the contraband is
immediately apparent from its tactile impression and the officer
has a lawful right of access to the object.
Commonwealth v. Pakacki, 901 A.2dd 983 (Pa. 2006).
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Instantly, based on the totality of the circumstances of this case, it is
beyond peradventure that Officer Mirabella had reasonable suspicion to
believe that Appellant might be armed and dangerous. As aptly explained by
the trial court:
[Officer Mirabella] testified that during the initial encounter with
Appellant and his friend, Appellant did not answer his questions
nor make eye contact with the officers. Further, while speaking
with Appellant’s friend, [Officer Mirabella] observed Appellant
reach his hand down into his waistband area and then blade his
body behind the [parked car] so that the officer was no longer
able to see either Appellant’s hand or his waistband area where
Appellant had been reaching. The officer further observed
Appellant sweating on his forehead despite the fact that it was a
late evening during the month of [November]. Finally, when the
officer exited his patrol [vehicle] and went to where Appellant was
standing, Appellant again did not respond to the officer’s
questions, and then stumbled over his words and appeared
nervous. Given the totality of the circumstances testified to by
Officer Mirabella, including that this was a high-crime area, the
late hour (12:30 am), the radio call of shots fired and his
observations of Appellant (lack of response to officer’s routine
questions, lack of eye contact, acting nervous, sweating, reaching
his hand down into his waistband area and blading the waistband
area of his body behind the vehicle and out of the view of the
officers), the officer was able to point to specific and articulable
facts for this trial court indicating reasonable suspicion that
Appellant was armed and dangerous.
Trial Court Opinion, 12/6/17, at 7. Accordingly, the trial court did not err in
denying Appellant’s motion to suppress the physical evidence (gun) recovered
from Appellant’s person by Officer Mirabella because of the pat-down.
Finally, insofar as Appellant relies on Commonwealth v. Moyer, 954
A.2d 659 (Pa. Super. 2008) (en banc), appeal denied, 966 A.2d 571 (Pa.
2009), Commonwealth v. Preacher, 827 A.2d 1235 (Pa. Super. 2003),
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Commonwealth v. Gray, 896 A.2d 601 (Pa. Super. 2006), and
Commonwealth v. Cooper, 994 A.2d 589 (Pa. Super. 2010), appeal
denied, 13 A.3d 474 (Pa. 2010), to challenge the trial court’s denial of his
suppression motion, such reliance is misplaced because the instant case is
distinguishable.
In Moyer, the Commonwealth argued that the investigative detention
of the defendant was supported by reasonable suspicion because there “was
a lot of movement between the driver and the passenger,” all of which focused
down toward the floor boards and toward the passenger side of the vehicle,
and the defendant was nervous. Moyer, 954 A.2d at 669. In affirming the
trial court’s grant of the defendant’s suppression motion, we disagreed with
the Commonwealth’s contention. In so doing, we found that “[f]urtive
movements and nervousness, standing alone, do not support the existence of
reasonable suspicion.” Id. at 670. Here, Appellant’s furtive movements were
more pronounced because he reached for his waistband, bladed his body from
Officer Mirabella’s view and otherwise sought to conceal his body behind the
parked car. Unlike in Moyer, Officer Mirabella also specifically articulated the
reason for Appellant’s nervousness. As noted earlier, Officer Mirabella testified
that Appellant did not respond to his questions and, after looking at the
officers, Appellant immediately looked away. Appellant failed to make any
eye contact and did not respond to the officer’s questions. Additionally, Officer
Mirabella described Appellant as sweating on a cold November night.
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Similarly, the instant case is distinguishable from Preacher, Gray, and
Cooper. In Preacher, we concluded that the officer “did not articulate any
specific facts that led him to believe that [the defendant] may have been
armed and/or dangerous.” Preacher, 827 A.2d at 1240. Rather, the officer
observed only that the defendant was acting nervously because his “eyes were
bulging, he was looking back and forth, [and] tossing the money” he had in
his hands. Id. In Gray, we held that the officer did not have reasonable
suspicion to pat down the defendant because the officer “had very little basis
to believe that [the defendant] was armed and dangerous. In fact, but for
nervousness, police had no basis: the articulated justification for intruding
into [the defendant’s] privacy was that he seemed to be ‘a little nervous’ and
slightly sweating.” Gray, 896 A.2d at 606. In Cooper, we concluded, inter
alia, that the police officer did not have reasonable suspicion to conduct a pat-
down search at 9:00 a.m. because there was no evidence that the defendant
was in a “dangerous neighborhood.” Cooper, 994 A.2d at 594. Additionally,
we noted that the defendant “merely moved toward his pocket and ceased
immediately upon the officer’s directive.” Id. Here, as mentioned earlier,
Officer Mirabella, who was responding to a radio call for shots fired, had
reasonable suspicion to believe that Appellant was armed and dangerous.
Appellant, standing outside in a high-crime area at 12:30 am, appeared
nervous, reached toward his waistband, bladed his body away from the
officers, failed to make eye contact, and seemed non-responsive to the
officer’s questions.
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In sum, in light of the totality of the circumstances present here, we
cannot conclude that the trial court erred in denying Appellant’s motion to
suppress.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/19
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