Com. v. Jones, K. ( 2017 )


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  • J-A19008-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    KYLE M. JONES,
    Appellant                  No. 1695 EDA 2016
    Appeal from the Judgment of Sentence Entered May 12, 2016
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0008810-2105
    BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
    MEMORANDUM BY BENDER, P.J.E.:                  FILED SEPTEMBER 15, 2017
    Appellant, Kyle M. Jones, appeals from the judgment of sentence of
    three years’ probation, imposed after he was convicted of carrying a firearm
    without a license, 18 Pa.C.S. § 6106. On appeal, Appellant solely challenges
    the trial court’s denial of his pretrial motion to suppress a gun discovered in
    his possession during an investigative detention.    After careful review, we
    affirm.
    Appellant was charged with the above-stated offense (as well as
    carrying a firearm on a public street in Philadelphia, 18 Pa.C.S. § 6108) after
    he was stopped and frisked by police officers on August 14, 2015. During
    that stop and frisk, officers discovered a gun in Appellant’s possession. Prior
    to trial, Appellant filed a motion to suppress the gun.    Therein, Appellant
    argued, inter alia, that the officers did not have reasonable suspicion to
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    conduct an investigative detention and, thus, the subsequent frisk of his
    person and seizure of the gun was illegal.
    The trial court conducted a suppression hearing on March 2, 2016.
    There, the following evidence was presented:
    Police Officer Abdul Malik testified that on August 14,
    2015, at around 11:50 p.m., he was on patrol in the 18 th District
    in Philadelphia when he received a radio broadcast for a person
    with a gun on the 5500 Block of Larchwood Avenue. (Notes of
    Testimony, 3/2/16, p. 6). A second radio call came through
    within minutes, broadcasting information that there had been a
    shooting at that location and that a victim was being transported
    to the hospital. Subsequently, another flash broadcast came
    through identifying three possible suspects - … a black male
    wearing a black/white shirt, … a black male wearing a red shirt,
    and a black male wearing a multicolored shirt and red hat.[1]
    (N.T. pp. 7-8). Officer [Malik] immediately surveyed the area.
    While driving by the 5500 block of Hazel Avenue,[2] Officer Malik
    observed four males fitting the flash description standing on the
    street and [he] went over police radio to relay this information.
    (Id. at 9).
    As [Officer Malik] approached the group of men, [he] told
    them to put their hands up in the air and asked if they had any
    weapons on them. Officer Malik stated that his justification for
    asking about the presence of weapons grew out of fear for his
    safety based on the report of a founded shooting in the area.
    [Appellant], who matched the description of the black male
    suspect with a black t-shirt, responded that he did have a
    weapon and that it was located in his pants pocket. Fearing for
    ____________________________________________
    1
    The trial court incorrectly states that the flash broadcast identified a black
    male wearing a white shirt. The portion of Officer Malik’s testimony cited by
    the court does not support that there was any such description of a fourth
    male suspect.
    2
    Officer Malik testified that the 5500 block of Hazel Avenue is “[t]he next
    block over” from where the shooting occurred. N.T. Suppression Hearing,
    3/2/16, at 9.
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    his safety, Officer Malik handcuffed [Appellant] and retrieved the
    firearm from his right pocket. (Id. at 16-18).
    Trial Court Opinion (TCO), 10/4/16, at 1-2.
    Based on Officer Malik’s testimony, the trial court concluded that, inter
    alia, the officer had reasonable suspicion to detain Appellant for further
    investigation. The court denied Appellant’s motion to suppress and his case
    immediately proceeded to a non-jury trial. At the close thereof, the court
    convicted Appellant of carrying a firearm without a license (graded as a
    misdemeanor of the first degree). The court acquitted Appellant of carrying
    a firearm on a public street in Philadelphia.      On May 12, 2016, Appellant
    was sentenced to three years’ probation.
    Appellant filed a timely notice of appeal, and he also timely complied
    with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of
    errors complained of on appeal.       The trial court subsequently filed a Rule
    1925(a) opinion. Herein, Appellant presents one issue for our review: “Did
    not the trial court err in denying [A]ppellant’s motion to suppress, as the
    officers did not have reasonable suspicion to detain him?” Appellant’s Brief
    at 3.
    Our well-settled standard of review of a denial of a suppression motion
    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
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    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 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. Jones, 
    988 A.2d 649
    , 654 (Pa. 2010) (internal citations
    and quotation marks omitted).
    Here, the trial court concluded, and the parties do not dispute, that
    Appellant was subjected to an investigative detention when he was
    approached by Officer Malik (along with several other responding police
    officers, see N.T. Hearing, 3/2/16, at 14-16), and immediately directed to
    put his hands in the air.       See TCO at 3; Appellant’s Brief at 14;
    Commonwealth’s Brief at 7. Therefore, we must assess only whether that
    detention was lawful. As this Court has explained:
    The police are permitted to stop and briefly detain citizens
    only when they have reasonable suspicion, based on specific and
    articulable facts, that criminal activity may be afoot.
    Commonwealth v. Zhahir, 
    561 Pa. 545
    , 552, 
    751 A.2d 1153
    ,
    1156 (2000) (citing Terry v. Ohio, 
    392 U.S. 1
    , 21, 30, 
    88 S.Ct. 1868
    , 1884, 
    20 L.Ed.2d 889
     (1968)); Commonwealth v.
    Melendez, 
    544 Pa. 323
    , 328, 
    676 A.2d 226
    , 228 (1996);
    Commonwealth v. Hicks, 
    434 Pa. 153
    , 160, 
    253 A.2d 276
    ,
    280 (1969). In determining whether reasonable suspicion exists
    for an investigative detention, or as it is also known in the
    common legal vernacular, a “Terry stop,” the inquiry is the
    same under both the Fourth Amendment of the United States
    Constitution and Article 1, § 8 of the Pennsylvania Constitution.
    Commonwealth v. Cook, 
    558 Pa. 50
    , 57, 
    735 A.2d 673
    , 677
    (1999); Commonwealth v. Jackson, 
    548 Pa. 484
    , 488, 698
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    17 A.2d 571
    , 573 (1997). “The fundamental inquiry is an objective
    one, namely, whether ‘the facts available to the officer at the
    moment of the intrusion warrant a man of reasonable caution in
    the belief that the action taken was appropriate.’” Zhahir,
    
    supra, at 552
    , 
    751 A.2d at
    1156 (citing Terry, 
    supra,
     
    392 U.S. at
    21–22, 
    88 S.Ct. at 1880
    ). In order to determine whether the
    police had a reasonable suspicion to subject an individual to an
    investigative detention, the totality of the factual circumstances
    which existed at the time of the investigative detention must be
    considered. 
    Id.
     (citing United States v. Cortez, 
    449 U.S. 411
    ,
    417, 
    101 S.Ct. 690
    , 695, 
    66 L.Ed.2d 621
     (1981)). “Among the
    factors to be considered in establishing a basis for reasonable
    suspicion are tips, the reliability of the informants, time,
    location,    and     suspicious    activity,   including    flight.”
    Commonwealth v. Gray, 
    784 A.2d 137
    , 142 (Pa. Super. 2001).
    Commonwealth v. Ayala, 
    791 A.2d 1202
    , 1208 (Pa. Super. 2002).
    In this case, the thrust of Appellant’s argument is that Officer Malik
    lacked reasonable suspicion to detain him because the Terry stop was
    “based solely on [Appellant’s] matching the description of a criminal suspect
    provided by an anonymous tip.” Appellant’s Brief at 15 (emphasis added).
    Appellant then discusses case law holding that Terry stops are illegal if
    premised only on uncorroborated, anonymous-tips.           See id. at 15-19
    (discussing, inter alia, Commonwealth v. Hawkins, 
    692 A.2d 1068
    , 1070
    (Pa. 1997) (“If the police respond to an anonymous call that a particular
    person at a specified location is engaged in criminal activity, and upon
    arriving at the location [they] see a person matching that description but
    nothing more, they have no certain knowledge except that the caller
    accurately described someone at a particular location.”), and Jackson, 
    698 A.2d at 573
     (“When … the underlying source of the police department’s
    information is an anonymous telephone call, the courts have recognized that
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    the tip should be treated with particular suspicion.”)). Appellant claims that
    here, “there was nothing at all beyond the vague description” of the
    suspects that was provided by the anonymous caller and, therefore, Officer
    Malik did not possess reasonable suspicion to conduct the Terry stop.
    Appellant’s Brief at 19.
    Appellant’s reliance on Hawkins and Jackson is misplaced and
    unconvincing.     Initially, it is not even clear from the record that the
    description of the suspects came from the anonymous source. Specifically,
    Officer Malik testified that the anonymous tipster told police that there was
    “a person with a gun” and “a possible shooting” at a location “on the 5500
    Block of Larchwood Avenue.”       N.T. Suppression Hearing, 3/2/16, at 7.
    Officer Malik then explained that, when officers arrived at the location, they
    found a male victim with gunshot wounds. 
    Id.
     At that point, the responding
    officers put out a “founded shooting” flash, which meant that they had found
    “a person shot and shell casings….” Id. at 8. “Less than a couple minutes”
    after the founded shooting flash, Officer Malik received a third flash report,
    which included “the description of the suspects[.]” Id. at 9.
    From this testimony, the trial court seemingly concluded that the
    anonymous caller had only reported ‘a person with a gun’ and a ‘possible
    shooting,’ as that was the only information transmitted in the first radio
    flash.    See id. at 53; TCO at 1-2.     Thereafter, the police officers at the
    scene relayed the description of the shooters.         See N.T. Suppression
    Hearing, 3/2/16, at 53; TCO at 1-2.      While nothing in the record clarifies
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    from whom the first-responding officers obtained that description, it is
    reasonable to infer that the description was provided by a known person at
    the scene, i.e., the victim or an eyewitness to the shooting. As our Supreme
    Court stated in Jackson, “a tip from an informer known to the police
    carrie[s] enough indicia of reliability for the police to conduct a Terry
    search, even though the same tip from an anonymous informant would likely
    not have done so.” Jackson, 
    698 A.2d at 574
     (citation omitted). This is
    true because “a known informant places himself or herself at risk of
    prosecution for filing a false claim if the tip is untrue, whereas an unknown
    informant faces no such risk.” 
    Id.
     (citation omitted). Because the record
    suggests that the description of the suspects in this case was provided by
    someone known to police, it was more reliable than an uncorroborated,
    anonymous tip.
    Moreover, we also point out that even if Appellant were correct that
    the anonymous caller provided the description of the suspects, the first-
    responding officers sufficiently corroborated the source’s information before
    Officer Malik detained Appellant.   In particular, the officers found a victim
    who had been shot at the location where the anonymous tipster said a
    shooting had occurred.   The Jackson Court declared that, “a Terry stop
    may be made on the basis of an anonymous tip, provided the tip is
    sufficiently corroborated by independent police work to give rise to a
    reasonable belief that the tip was correct.”     Jackson, 
    698 A.2d at 574
    (discussing the holding of Alabama v. White, 
    496 U.S. 325
    , 331 (1990)).
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    “Essentially, the corroboration requirement is based on the principle that
    because an informant is right about some things, he or she is probably right
    about other facts also, including the allegation that the object of the tip is
    engaged in criminal activity.”   
    Id.
     (citing White, 
    496 U.S. at 331
    ). Here,
    the anonymous tip was corroborated by the fact that a shooting had indeed
    occurred at the location provided by the tipster; thus, if the anonymous
    caller did provide the description of the perpetrators, that tip was more
    reliable than the uncorroborated, anonymous tips at issue in Hawkins and
    Jackson.
    Finally, we reject Appellant’s assertion that the description was
    “incredibly vague[,]” and that it was the only fact supporting Officer Malik’s
    suspicion that criminal activity was afoot.     Appellant’s Brief at 19.    The
    description, while not abundantly detailed, provided some identifying
    information to Officer Malik; namely, the suspects were described as being
    three black males, one wearing a black and white t-shirt, another wearing a
    red t-shirt, and a third wearing a multi-colored t-shirt and a red hat. Officer
    Malik observed Appellant, a black man who was wearing a black t-shirt,
    standing with three other black men, one of whom was in a red t-shirt, and
    one of whom was wearing a red hat.              Moreover, Appellant and his
    companions were located approximately one block away from where the
    shooting occurred, just minutes after it had happened. We agree with the
    trial court that the totality of these circumstances provided Officer Malik with
    reasonable suspicion to detain Appellant for further investigation.
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    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/15/2017
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