Com. v. Lewis, A. ( 2023 )

J-S20023-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY LEWIS :
:
Appellant : No. 1721 EDA 2022
Appeal from the Judgment of Sentence Entered June 30, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007345-2021
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED JULY 28, 2023
Appellant, Anthony Lewis, appeals from the Judgment of Sentence
imposed after the trial court found Appellant guilty of Possession of a Firearm
by a Prohibited Person, Carrying a Firearm Without a License, and Carrying a
Firearm in Public in Philadelphia.1 Appellant challenges the denial of his motion
to suppress the firearm and the denial of his motion to preclude the admission
of a DNA report. After careful review, we affirm.
On July 31, 2021, two police officers were on a routine patrol in a known
high crime area, which was the site of a recent homicide and carjackings. The
officers saw several men standing on a corner who appeared to be gambling.
Appellant was standing with the group and had a black leather bag across his
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 6105(a)(1); 18 Pa.C.S. § 6106; 18 Pa.C.S. § 6108, respectively.
J-S20023-23
body. The officers did not have lights or sirens on and did not speak to any of
the men. When the officers pulled over their marked patrol car and one officer
opened the car door, Appellant fled the scene. An officer pursued Appellant
and eventually caught up to him, by which time Appellant no longer had the
black leather bag. The officer surveyed the area and found a black leather bag
on the other side of a fence next to where Appellant was detained. The officer
recovered a firearm from the bag.
Appellant was charged with the above offenses. Appellant filed a motion
to suppress the firearm.
On September 23, 2021, the trial court issued a Non-Jury Scheduling
Order stating that all discovery should be completed on or before October 21,
2021, anticipating a trial date of November 12, 2021. On November 10, 2021,
the Commonwealth notified defense counsel and the court that the laboratory
would not be able to complete the DNA analysis until February. The court
granted multiple continuances, ultimately rescheduling the trial for March 21,
2022.
On December 8, 2021, the court denied Appellant’s pretrial motion to
suppress the firearm.
On February 8, 2022, six weeks before trial, the Commonwealth
provided to Appellant’s counsel a DNA report, dated February 7, 2022, which
indicated that Appellant’s DNA was found on the firearm. Appellant did not file
a motion for a continuance. Rather, on March 14, 2022, one week before trial,
-2-
J-S20023-23
Appellant filed a motion to preclude the DNA evidence based on the
Commonwealth’s violation of the September 23, 2021 discovery order.
On March 21, 2022, the trial court dismissed the motion and
immediately proceeded to a waiver trial. The trial court found Appellant guilty
of all charges.
On June 30, 2022, the court sentenced Appellant to an aggregate term
of two to four years of imprisonment followed by two years of probation.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P 1925.
Appellant presents the following issues for our review:
1. Did the Trial Court err in denying Appellant’s pretrial motion to
suppress the firearm as there was no reasonable suspicion or
probable cause to detain and arrest the Appellant and no probable
cause to search the bag and recover the firearm. The government
violated Appellant’s rights against unreasonable search and seizure
and unlawful arrest under the U.S. and Pa. Constitutions?
2. Did the Trial Court err in denying the Appellant’s pretrial motion to
suppress the firearm as the Appellant was unlawfully seized by police
who lacked reasonable suspicion or probable case and where the
firearm was recovered as a result of forced abandonment. The
Appellant was seen committing no crime when the police unlawfully
seized him. The government violated Appellant’s rights against
unreasonable search and seizure and unlawful arrest under the U.S.
and Pa. Constitutions?
3. Did the Trial Court err in denying Appellant’s pretrial motion to
preclude the DNA report as the Commonwealth committed a
discovery violation and the proper remedy was to preclude the report
from being introduced at trial. This was especially damning and
prejudicial as the only evidence tying the Appellant to the firearm
was the DNA evidence, as police never saw Appellant actually
possessing any firearm, therefore, the evidence would have
-3-
J-S20023-23
otherwise been insufficient to sustain the guilty verdicts for VUFA-
6105, 6106, and 6108?
Appellant’s Brief at 7.
A. Reasonable Suspicion
Appellant argues that he was subject to an illegal detention and arrest
because officers did not have reasonable suspicion to pursue Appellant and
that the search of his bag was likewise illegal. Appellant’s Br. at 13.
Appellant’s arguments are without merit.
The Fourth Amendment of the United States Constitution and Article 1,
Section 8 of the Pennsylvania Constitution protect citizens from unreasonable
searches and seizures. In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). “To
secure the right of citizens to be free from [unreasonable searches and
seizures], 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.
Beasley, 761 A.2d 621, 624 (Pa. Super. 2000). There are three defined
categories of interaction between citizens and police officers: (1) mere
encounter, (2) investigative detention, and (3) custodial detention. See
Commonwealth v. Collins, 950 A.2d 1041, 1046 (Pa. Super. 2008).
A mere encounter between a police officer and a citizen does not need
to be supported by any level of suspicion and “carries no official compulsion
on the part of the citizen to stop or to respond.” Commonwealth v. Fuller,
940 A.2d 476, 479 (Pa. Super. 2007). There is no constitutional provision that
prohibits police officers from approaching a citizen in public to make inquiries
-4-
J-S20023-23
of them. See Beasley, supra at 624; see also Commonwealth v. Lyles,
97 A.3d 298, 303-04 (Pa. 2014) (finding a mere encounter where two
uniformed police officers arrived in an unmarked police car, approached the
defendant, and asked for identification).
Police pursuit for the purposes of an investigatory detention can be
justified if officers have an objectively reasonable suspicion that crime is afoot.
Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011). “Reasonable
suspicion must be based on specific and articulable facts, and it must be
assessed based upon the totality of the circumstances viewed through the
eyes of a trained police officer.” Commonwealth v. Williams, 980 A.2d 667,
671 (Pa. Super. 2009).
“[U]nprovoked flight in a high crime area is sufficient to create a
reasonable suspicion to justify [an investigatory] stop under the Fourth
Amendment.” In re D.M., supra at 1164. See also Commonwealth v.
McCoy, 154 A.3d 813, 819 (Pa. Super. 2017) (holding defendant’s evasive
and suspicious behavior in a high crime area, along with his unprovoked flight,
gave officers reasonable suspicion that criminal activity was afoot, justifying
investigatory stop); Commonwealth v. Washington, 51 A.3d 895, 898 (Pa.
Super. 2012) (“nervous, evasive behavior and headlong flight all provoke
suspicion of criminal behavior in the context of response to police presence”).
A defendant has no standing to contest the search and seizure of items
that he has voluntarily abandoned or relinquished because he has no privacy
expectation in the property. Commonwealth v. Byrd, 987 A.2d 786, 790
-5-
J-S20023-23
(Pa. Super. 2009). If the abandonment is coerced by unlawful police action,
then the state-based constitutional principle of forced abandonment forbids
using the property for evidentiary purposes. Id. at 791. However, a defendant
is not entitled to suppression of contraband discarded during flight if police
had reasonable suspicion to justify an investigatory stop. Commonwealth v.
McCoy, 154 A.3d 813, 816 (Pa. Super. 2017).
Appellant contends that the officers did not observe Appellant gambling
or handling any contraband prior to the pursuit, and therefore lacked
reasonable suspicion to pursue Appellant and seize the firearm.2 Appellant’s
Br. at 13. Appellant also argues that the officers exhibited a show of force by
“abruptly stopping the police car,” “quickly open[ing] the car door,” and
staring directly at Appellant while moving toward him, which provoked his
flight and led to the forced abandonment of the firearm. Id.The trial court found that Appellant’s unprovoked flight in a high crime
area supported the officer’s reasonable suspicion that he was engaged in
criminal activity. Tr. Ct. Op., filed 12/13/22, at 4. The trial court considered
testimony from the officers that the location was a dangerous area known for
gambling and other crimes. Id. Therefore, the court concluded, since
____________________________________________
2 Appellant also argues that the officers’ testimony was insufficient to establish
that the area was known for high crime because the officers lacked experience
and had not made any gambling arrests in the area before. Appellant's Br. at
17. However, it is within the lower court’s province “to pass on the credibility
of witnesses and determine the weight to be given to their testimony.”
Commonwealth v. Clemens, 66 A.3d 373, 379 (Pa. Super. 2013). We,
therefore, defer to the evaluation of the trial court that the testimony of the
officers regarding the level of crime in the area was credible.
-6-
J-S20023-23
Appellant abandoned the bag voluntarily during a lawful pursuit, the firearm
was properly admitted as evidence. Id. at 6.
After reviewing the record and case law, we agree with the trial court’s
findings. The initial pre-flight interaction between Appellant and the officers
constituted a mere encounter, which does not require any level of police
suspicion. The officers simply stopped their patrol car and opened the doors
after observing what appeared to be gambling on a street corner located in an
area known for illicit activities. N.T. Motion, 12/8/21, at 10, 12, 16. The sirens
were not on and there was no evidence that the officers even spoke to
Appellant. Id. Once Appellant spontaneously fled, the officers had reasonable
suspicion that criminal activity was afoot. The officers testified that the area
where the stop occurred is “known for narcotic sales, gambling . . . [and] a
lot of carjacking” and “well known for the high-crime rate.” Id. at 11, 20.
Appellant’s unprovoked flight, combined with the high crime area and the
officer’s observation of purported gambling, supported reasonable suspicion
justifying an investigatory detention.
Given that police were lawfully pursuing Appellant, his abandonment of
the bag was not a “forced abandonment” that would require suppression of
the evidence. See McCoy, 154 A.3d at 816. The trial court, therefore, did not
err when it denied Appellant’s motion to suppress the firearm.
B. Admissibility of Evidence
Appellant also argues that the trial court erred in denying his motion to
preclude the Commonwealth from admitting DNA evidence linking Appellant
-7-
J-S20023-23
to the recovered firearm. Appellant’s Br. at 21. Specifically, Appellant argues
that the Commonwealth violated the September 23, 2021 discovery order and
prejudiced Appellant’s ability to seek a DNA expert, and that the proper
remedy was the preclusion of the DNA report. Id. Appellant’s argument is
without merit.
Our standard of review concerning a challenge to the admissibility of
evidence is as follows:
The admissibility of evidence is a matter for the discretion of the trial
court and a ruling thereon will be reversed on appeal only upon a
showing that the trial court committed an abuse of discretion. An abuse
of discretion may not be found merely because an appellate court might
have reached a different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack
of support so as to be clearly erroneous.
Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and
quotation marks omitted).
The purpose of discovery rules is to prevent a “trial by ambush” that
violates a defendant’s right to due process. Commonwealth v. Ulen, 650
A.2d 416, 418 (Pa. 1994). Pennsylvania Rule of Criminal Procedure 573
provides that the Commonwealth, on request by the defendant, must disclose
any results or reports of scientific tests that are within its possession or
control. Pa.R.Crim.P. 573(B)(1)(e).
If the Commonwealth violates disclosure requirements, “[the defendant]
must demonstrate how a more timely disclosure would have affected his trial
strategy or how he was otherwise prejudiced by the alleged late disclosure.”
-8-
J-S20023-23
Commonwealth v. Brown, 200 A.3d 986, 993 (Pa. Super. 2018). This Court
has suggested that in most cases, “[a] continuance is appropriate where the
undisclosed statement or other evidence is admissible and the defendant’s
only prejudice is surprise.” Commonwealth v. Smith, 955 A.2d 391, 395
(Pa. Super. 2008) (en banc).
Appellant contends that the Commonwealth’s disclosure of the DNA
report on February 8, 2022, was “extremely late,” which affected Appellant’s
trial strategy by precluding Appellant from obtaining a defense expert in
forensics. Appellant’s Br. at 21. He notes that the court had previously ordered
all discovery to be exchanged by October 12, 2021, but the Commonwealth
provided the DNA report 120 days after that deadline. Id. at 24. Appellant
submits that “an Order with no teeth is not an Order at all, but rather
suggestive or simply discretionary.” Id. Therefore, Appellant argues, the trial
court erred by denying the pretrial motion to preclude the DNA report.
The trial court found that the Commonwealth notified the court and the
defense about the delay in the DNA processing and passed the results to
Appellant as soon as they were received. Tr. Ct. Op., filed 12/13/22, at 7. The
court concluded that the Commonwealth did not, therefore, intentionally
violate any order of the court and acted in good faith. Id. After reviewing the
record and case law, we agree with the trial court’s finding.
Appellant was aware in November 2021 that the DNA analysis would not
be available to either party until February 2022. As such, the laboratory’s
-9-
J-S20023-23
report, issued one day before he received it from the Commonwealth, was a
not a surprise. Despite Appellant’s awareness of the forthcoming DNA results,
Appellant did not seek to obtain a DNA expert at any point before trial.
Significantly, Appellant also did not request a continuance to review the
evidence in the time period before trial was scheduled to begin on March 21,
2022.
For the foregoing reasons, we conclude that the trial court did not err in
denying Appellant’s motion to suppress the firearm obtained after a police
pursuit and Appellant’s motion to preclude the DNA report. The police officers
lawfully pursued Appellant and the trial court acted within its discretion to
admit the DNA report.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2023
- 10 -