Com. v. Nater, J. ( 2023 )

J-A14030-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAIME NATER :
:
Appellant : No. 1573 EDA 2022
Appeal from the Judgment of Sentence Entered April 27, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001198-2021
BEFORE: PANELLA, P.J., DUBOW, J., and SULLIVAN, J.
MEMORANDUM BY DUBOW, J.: FILED AUGUST 21, 2023
Appellant, Jamie Nater, appeals from the April 27, 2022 Judgment of
Sentence of four to eight years of incarceration entered in the Philadelphia
County Court of Common Pleas following his conviction of one count each of
Possession of a Firearm without a License, Possession of a Firearm by a
Prohibited Person, and Unlawfully Carrying a Firearm in Public.1 Appellant
challenges the denial of his motion to suppress. After careful review, we
affirm.
The relevant facts and procedural history are as follows. Just after
midnight on August 16, 2020, Philadelphia Police Officers Mark Wildsmith and
Anthony Agudo were on patrol car near 3100 “A” Street in the Kensington
neighborhood of Philadelphia. The officers were familiar with that area as the
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1 18 Pa.C.S. §§ 6106, 6105, and 6108, respectively.
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police district’s “crime hub.”2, 3 As the officers were driving on Clearfield Street
approaching “A” Street, Officer Wildsmith observed Appellant cross the street
on an angle, clutching a very large, heavy object on the right hip of his sweat
shorts. Based on his more than five years of experience, Officer Wildsmith
believed that the object was a gun.
Officer Redmond,4 who was driving the vehicle, reversed back up
Clearfield Street and Officer Wildsmith briefly lost sight of Appellant. Officer
Redmond then stopped the vehicle and all the officers exited to investigate.
Moments later when Officer Wildsmith again caught sight of Appellant,
Appellant was no longer walking “with the same demeanor.”5 Believing that
Appellant had just discarded a weapon, Officer Wildsmith proceeded to
conduct a stop of Appellant to further investigate.
Meanwhile, upon his exit from the police car, Officer Agudo heard a
metal object hit the ground. At that point, he took out his flashlight and began
looking around in the area, ultimately locating a discarded firearm in the
vacant lot adjacent to where Officer Wildsmith had initially seen Appellant.
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2 N.T. Hr’g and Trial, 11/3/21, at 10. Officer Wildsmith explained that “[i]t is
a very high crime area. That’s one of the areas we have the most shooting
incidents, homicides. There’s also a lot of illegal drug sales within the area.”
Id.
3 In fact, a shooting took place in the area while the police officers were
arresting Appellant.
4 Officer Redmond’s first name does not appear in the record.
5 Id. at 19.
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As a result of this encounter, police arrested Appellant and charged him
with the above offenses.
On November 3, 2021, Appellant’s counsel litigated a motion to
suppress the firearm that Appellant discarded when the police officers
approached him to investigate. Officers Wildsmith and Agudo testified to the
above facts. Officer Wildsmith also testified that he probably said something
to Appellant from his vehicle, but he did not recall what it was. After hearing
the testimony and counsels’ arguments, the trial court concluded that
Appellant had not been seized when he abandoned the firearm and, in the
alternative, that the officers would have had reasonable suspicion for an
investigative stop of Appellant. The court, thus, denied Appellant’s motion to
suppress. Appellant immediately waived his right to a jury trial and proceeded
to a bench trial following which the trial court convicted him of the charged
offenses.
On April 27, 2022, the trial court sentenced Appellant to an aggregate
term of four to eight years of incarceration. Appellant filed a post-sentence
motion, which the court denied.
This appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises the following issue on appeal:
Did the lower court err in denying [Appellant’s] motion to suppress
where he was seized by police without reasonable suspicion or
probable cause and thereafter forced to abandon a firearm?
Appellant’s Brief at 3.
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A.
Our standard of review for the denial of a suppression motion is well
established:
[The] standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is whether the factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. When reviewing such a ruling by the
suppression court, we must consider only the evidence of the
prosecution and so much of the evidence of the defense as
remains uncontradicted when read in the context of the record ...
Where the record supports the findings of the suppression court,
we are bound by those facts and may reverse only if legal
conclusions drawn therefrom are in error.
Commonwealth v. Bush, 166 A.3d 1278, 1282 (Pa. Super. 2017). Our
scope of review in suppression matters is limited to the suppression hearing
record and excludes any evidence elicited at trial. In re L.J., 79 A.3d 1073,
1085 (Pa. 2013).
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
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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 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).
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
(Pa. Super. 2009). If the abandonment is coerced by unlawful police action,
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then the state-based constitutional principle of forced abandonment forbids
using the property for evidentiary purposes. Id. at 791.
B.
Appellant claims that the trial court erred in finding that that he
voluntarily abandoned his firearm before police officers seized him.
Appellant’s Brief at 15-20. He asserts that the trial court should have
suppressed the firearm because its “abandonment was preceded by coercive
police action.” Id. at 15. Distinguishing this case from Byrd, supra,Appellant argues that the facts, including that the officers reversed up
Clearfield Street immediately after driving past Appellant who was merely
walking alone along a residential sidewalk in the middle of the night, Officer
Wildsmith said something out the patrol vehicle’s window to Appellant as the
vehicle reversed, and “four fully armed and uniformed officers jumped out of
the police car and moved toward” him, demonstrate that the officers
conducted themselves with a show of force or authority that indicate a seizure
occurred. Id. at 17-18.
In Byrd, the trial court granted the defendant’s motion to suppress,
finding that he abandoned a gun after observing three to five police cars
travelling the wrong way down a one-way street without their lights and sirens
activated. Byrd, 987 A.2d at 792. The trial court concluded that the
defendant’s abandonment of the contraband was due to an “unlawful show of
force.” Id. This Court reversed, concluding that “appellee was not deprived
of his freedom in any significant way nor could he reasonably believe that his
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freedom of action was being restricted by police conduct prior to abandoning
the handgun.” Id. at 793.
In explaining its decision to deny Appellant’s suppression motion, the
suppression court noted that neither Officer Agudo nor Officer Wildsmith
testified that any officers used a show of force. Trial Ct. Op. at 3 (citing N.T.
at 38.). The court further stated:
Appellant in the present case voluntarily abandoned the handgun
and relinquished control over the object when he threw it into an
adjacent lot. Prior to his abandonment, the police did not coerce
or force [Appellant] to act by any show of force. Reversing and
exiting their unmarked police vehicles did not amount to a
meaningful show of force. As was the case in [Commonwealth
v.] Byrd, they did not speed or activate their lights or sirens.
Appellant was compelled by his own desire to remain undetected
rather than an act of law enforcement outside their authority.
Once discarded, officers were free to use the firearm for
evidentiary purposes[.]
Id. at 7-8. Because the court concluded that the officers did not engage in
any unlawfully coercive conduct prior to Appellant’s abandonment of the
firearm, it denied Appellant’s suppression motion. Id. at 3-5 (citing
Commonwealth v. Pizzaro, 723 A.2d 675, 679 (Pa. Super. 1998) (emphasis
in original) (citation omitted) (abandoned property is admissible where “[n]o
improper or unlawful act [is] committed by the officer prior to the evidence
being abandoned.”).
Following our review, we find that the record supports the trial court’s
findings of fact. In addition, we agree with the court’s legal conclusion that
Appellant’s abandonment of the firearm was not caused by any unlawful or
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coercive action. The record reflects that, prior to Appellant abandoning his
firearm, the officers were conducting a routine patrol of a high-crime area in
an unmarked car. They observed Appellant holding onto a very large object
in the hip of his sweat shorts. The officers did not activate any lights or sirens,
order Appellant to stop, or exhibit any show of force. Rather, Officer Redmond
merely backed the patrol car up Clearfield Street for the officers to investigate
further. After Officer Redmond stopped the patrol vehicle, Officer Agudo
exited and heard a metallic object hit the ground. Only then did the officers
stop Appellant. Critically, the officers’ testimony indicates that Appellant had
abandoned the firearm prior to being stopped. As was the case in Byrd,
Appellant’s desire to remain undetected, rather than any coercive act by the
officers, compelled his abandonment of the firearm. Accordingly, the trial
court properly concluded that the Commonwealth was free to use the firearm
for evidentiary purposes. Appellant is, thus, not entitled to relief on his claim.6
Judgment of Sentence affirmed.
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6 In light of our disposition, we need not address Appellant’s challenge to the
trial court alternative justification for denying his motion to suppress, i.e., that
the officers had reasonable suspicion for an investigative stop.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2023
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