Com. v. Brown, K.

Superior Court of Pennsylvania·Decided October 7, 2020·No. 1453 EDA 2019·Unpublished

Opinion

J-S20036-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KAMIL BROWN : : Appellant : No. 1453 EDA 2019

Appeal from the Judgment of Sentence Entered March 11, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010989-2017

BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 07, 2020

Kamil Brown appeals from the judgment of sentence, imposed on March

11, 2019, following his conviction for Possession of a Firearm Prohibited.1

Brown challenges the trial court’s order denying his motion to suppress. We

affirm.

After Brown was charged with the above offense, he moved to suppress

the firearm. The evidence at the suppression hearing was as follows. On

December 10, 2017, Officer Timothy Carroll and his partner, Officer Brad

McCabe, were on patrol in the area of 2400 West Montgomery Avenue in

Philadelphia. N.T., Motion Volume I, 10/2/18, at 8. The officers had been

specially assigned to patrol in that area that night due to the high level of

shootings and narcotics. Id. at 9. At approximately 9:15 p.m., the officers

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1 18 Pa.C.S.A. § 6105(a)(1). J-S20036-20

received a radio call reporting a shooting near the 2500 block of Berks Street.

Id. The report described the shooter as an approximately 35-year-old black

male wearing a black jacket and a dark-colored hoodie. Id.

Shortly after receiving the radio call, the officers saw Brown walking just

two blocks away from the reported shooting location. Id. at 11. They believed

that Brown fit the description given over the radio call, as he looked to be

approximately 35 years old and was wearing jeans and a dark blue jacket with

a black hoodie. Id. at 11-12. When Officer McCabe attempted to speak to

Brown from the patrol car, Brown immediately fled. Id. at 13. Officer Carroll

gave chase and quickly apprehended Brown. Id. at 14. Officer Carroll saw

Brown remove a firearm from his waistband while he was running and toss it

under a nearby van. Id. The officers took Brown into custody and charged him

with the above firearm offense.

The trial court concluded that Brown was subject to an investigatory

detention and the officers had reasonable suspicion to stop him. N.T., Hearing

Volume I, 10/18/18, at 10. The court reasoned that Brown met the description

of the shooter that the officers had received over the radio and the officers

had observed him just two blocks from the location reported for the shooting.

Id. The court also determined that the evidence demonstrated that the area

was a high-crime area. Id. The court thus concluded that the officers had

reasonable suspicion to stop Brown. It further determined that Brown’s

subsequent actions – his immediate and unprovoked flight when the officers

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approached him and his discarding of the firearm – the officers gave the

officers probable cause to arrest Brown. Id.

Brown proceeded to a bench trial, and the trial court found him guilty

as above and sentenced him to two to four years of incarceration. N.T.,

Sentencing Volume I, 3/11/19, at 23-24. Brown filed a post-sentence motion

asking the court to change the prison facility to which he was assigned to

serve his sentence. The trial court granted the motion and also granted

counsel’s motion to withdraw. The trial court appointed new counsel who filed

this timely appeal. On appeal, counsel filed a motion for remand as counsel

failed to file a Pa.R.A.P. 1925(b) statement. This Court granted the motion,

counsel filed the Rule 1925(b) statement, and the case has now returned to

this Court.

On appeal, Brown raises the following issue: “Whether the trial court

erred when the court denied the motion to suppress?” Brown’s Br. at 6. Brown

argues that “[t]he [t]rial [c]ourt erred when it denied the motion for

suppression, because police officers violated the Pennsylvania and United

States Constitutions when they chased Kamil Brown without reasonable

suspicion that he was involved in criminal activity.” Id. at 12. He maintains

that “[t]he unreliable anonymous tip did not provide reasonable suspicion”;

“[t]he officers did not have reasonable suspicion to lawfully chase [Brown]”;

and “[r]ecovery of the gun was the result of forced abandonment.” Id. at 14,

19, 21

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We review the denial of a motion to suppress by determining “whether

the record supports the suppression court’s factual findings” and whether the

legal conclusions drawn from those facts are correct. Commonwealth v.

Griffin, 24 A.3d 1037, 1041 (Pa.Super. 2011) (quoting Commonwealth v.

Lohr, 715 A.2d 459, 461 (Pa.Super. 1998)). Where, as here, 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.” Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010). If the

record supports the factual findings of the trial court, we may reverse “only if

the court’s legal conclusions are erroneous.” Id. (citing Commonwealth v.

Bomar, 826 A.2d 831, 842 (Pa. 2003)).

Brown argues the officers lacked the reasonable suspicion necessary to

stop him for an investigative detention. Reasonable suspicion exists where the

officer who initiated the stop had articulable facts reasonably causing the

officer to believe, in light of the officer’s training and experience, that criminal

activity was afoot and the person stopped was involved in that activity.

Commonwealth v. Green, 168 A.3d 180, 184 (Pa.Super. 2017). We

determine whether there was reasonable suspicion by examining the totality

of the circumstances known to the officer conducting the stop, at the time of

the stop. Id. “[U]nprovoked flight in a high crime area establish[es] a

reasonable suspicion to believe that criminal activity is afoot to allow for a[n]

[investigatory stop].” Commonwealth v. Washington, 51 A.3d 895, 898

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(Pa.Super. 2012) (citation omitted). Abandoned property is admissible in a

criminal case so long as the abandonment did not result from illegal police

conduct. Commonwealth v. Ibrahim, 127 A.3d 819, 825 (Pa.Super. 2015).

This Court’s decision in Commonwealth v. Foglia, 979 A.2d 357, 361

(Pa.Super. 2009) (en banc), guides our decision here. There, a police officer

and his partner received an anonymous tip that a man dressed in black was

carrying a weapon at a particular location. The area in question was a high-

crime area due to the “high flow of narcotics and weapons.” Id. at 358-59.

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