Com. v. Tatum, S. ( 2021 )

J-S55035-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAMAR TATUM :
:
Appellant : No. 1788 WDA 2019
Appeal from the Judgment of Sentence Entered November 4, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0011556-2018
BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED JANUARY 22, 2021
Appellant, Shamar Tatum, appeals from the aggregate judgment of
sentence of three to six years of confinement followed by two years of
probation, which was imposed after his conviction at a bench trial for:
firearms not to be carried without a license; persons not to possess, use,
manufacture, control, sell or transfer firearms; and resisting arrest.1 We
affirm on the basis of the trial court opinion.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. See Trial Court Opinion, dated
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 6106(a)(1), 6105(a)(1), and 5104, respectively.
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June 9, 2020, at 2-5. Therefore, we have no reason to restate them at length
here.
For the convenience of the reader, we briefly note that, on August 15,
2018, Appellant was in “an area well-known for dangerous criminal activity,
homicides, shootings, open-air drug trafficking, possession of weapons, and
numerous citizen complaints to that effect.” Id. at 6. Police officers observed
what they immediately “believed to be a firearm in his pants.” Id. These
“officers knew from their firearms related arrest of Appellant weeks earlier
that he was not licensed to carry a firearm or a person legally permitted to
possess a firearm.” Id. at 8. As soon as Appellant saw the officers, he fled.
Id. at 9.
On December 4, 2019, Appellant filed this timely direct appeal. The trial
court then entered the following order:
AND NOW, to wit, this 8th day of January, 2020, it is hereby
ORDERED, ADJUDGED, and DECREED that counsel for
Appellant is directed to file Concise Statement of Errors
Complained of on Appeal pursuant to Rule of Appellate Procedure
1925(b) within 21 days from the receipt of all requested
transcripts. Failure to file said pleading shall be deemed a waiver
of all issues.
Order, 1/8/2020 (emphasis in original) (“Rule 1925(b) Order”). The order
was entered on the docket on “01/08/2020.” The docket also indicates that
the order was served on Appellant’s counsel that same day.
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Appellant filed a concise statement of errors complained of on appeal.2
The concise statement was entered on the docket on “02/24/2020.” On the
concise statement itself, the following text was printed in the upper right-hand
corner:
Allegheny County Clerk of Courts Received 2/24/2020 10:56 AM
Allegheny County Clerk of Courts Filed 2/24/2020 10:56 AM
The certificate of service accompanying the concise statement lists the date
as “February 24, 2020.”
Appellant now presents the following issue for our review in his brief to
this Court:
Did the trial court err when it failed to suppress the evidence when
the police officers had no reasonable suspicion to detain
[Appellant] as an officer may not infer criminal activity without an
objective basis for suspecting criminal activity?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
Preliminarily, we must determine whether Appellant has preserved his
issue for our review. On January 8, 2020, the trial court ordered Appellant to
file a concise statement of errors complained of on appeal within 21 days of
the date of the Rule 1925(b) Order’s entry on the docket. Twenty-one days
thereafter was January 29, 2020. Accordingly, Appellant’s concise statement
____________________________________________
2 There is no indication in the record that Appellant requested an extension of
time to file his concise statement upon receipt of the Rule 1925(b) Order. See
Note to Pa.R.A.P. 1925(b)(2) (“An enlargement of time upon timely
application might be warranted if, for example, there was a serious delay in
the transcription of the notes of testimony or in the delivery of the order to
appellate counsel.” (citation omitted))
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filed on February 24, 2020, was late, and consequently, we could find that he
failed to preserve any challenges raised therein for our review. However, in
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en banc),
this Court found that “[r]emand is not necessary [where] appellant’s counsel
has filed a Rule 1925 concise statement setting forth the alleged error, and
the trial court has filed an opinion addressing the issue presented in the
1925(b) concise statement.” Accordingly, this Court “consider[ed] the merits
of the issue presented on appeal.” Id. Analogously, we conclude that remand
is not necessary in the current action, because Appellant’s counsel has filed a
Rule 1925 concise statement setting forth an alleged error. Id. The trial court
likewise has filed an opinion addressing the issue presented in the Rule 1925
concise statement. Id. Consequently, we will consider the merits of
Appellant’s appellate issue. Id.Appellant’s sole contention on appeal is that “the trial court erred when
it failed to suppress the evidence when the police officers had no reasonable
suspicion to detain [Appellant] as an officer may not infer criminal activity
without an objective basis for suspecting criminal activity.” Appellant’s Brief
at 10.
In reviewing the denial of a suppression motion, our role is to
determine 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, we are bound by these
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findings and may reverse only if the court’s legal conclusions are
erroneous. Where, as here, 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. Yim, 195 A.3d 922, 926 (Pa. Super. 2018) (citations and
internal brackets omitted). Our scope of review from a suppression ruling is
limited to the evidentiary record created at the suppression hearing.
Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa. 2018).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable
Edward J. Borkowski, we conclude Appellant’s issue merits no relief. The trial
court opinion comprehensively discusses and properly disposes of that
question. See Trial Court Opinion, filed June 9, 2020, at 5–9 (based on the
officers’ training and experience, Appellant’s presence in a high crime area,
his immediate flight upon the presence of the police, and his recent prior gun
arrest by the same officers, the requisite particularized and objective basis to
suspect Appellant was engaged in criminal activity was met). Accordingly, we
affirm on the basis of the trial court’s opinion. The parties are instructed to
attach the opinion of the trial court in any filings referencing this Court’s
decision.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/22/2021
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