Com. v. Ferebee, A.

• Court: Superior Court of Pennsylvania
• Decided: November 21, 2018
• Docket: 110 EDA 2018
• Status: Unpublished

Opinion

J-S66011-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : AMIR FEREBEE : : Appellant : No. 110 EDA 2018

Appeal from the Judgment of Sentence November 17, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011695-2016

BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 21, 2018

Appellant, Amir Ferebee, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

stipulated bench trial convictions for firearms not to be carried without a

license, carrying firearms on public streets or public property in Philadelphia,

and possession of a small amount of marijuana.1 We affirm.

The relevant facts and procedural history of this case are as follows. On

December 7, 2016, at 9:37 p.m., Officer Blackburn, a 16½-year police

veteran, was on duty with his partner when they received a dispatch regarding

an armed robbery at 54th and Spruce Streets in Philadelphia, known as a high

crime area. The flash described the suspects as two black, tall, thin males,

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1 18 Pa.C.S.A. § 6106(a)(1); 6108; 35 P.S. § 780-113(a)(31). J-S66011-18

around 18 to 20 years old, wearing all black; one male wearing a black and

white striped beanie hat. Less than 15 minutes later, Officer Blackburn

observed two males matching the flash description at the intersection of 58th

and Spruce Streets, approximately four blocks from the crime scene. Officer

Blackburn stopped the men, one of whom was Appellant, and explained his

reasons for the stop. Appellant was wearing black sneakers, black pants, a

black jacket, a black hooded sweatshirt, and a black, off-white, grey/green

camouflage hat with a wavy pattern. The other male was also wearing all

black. Officer Blackburn then conducted a pat-down of Appellant, during

which the officer felt what appeared to be a gun in Appellant’s waistband.

Appellant stated: “It’s a pellet gun.” The officer removed the weapon, which

contained six live rounds. The officer also recovered numerous packets of a

green, leafy substance on Appellant’s person, which the officer suspected was

marijuana.

The Commonwealth charged Appellant with firearms not to be carried

without a license, carrying firearms on public streets or public property in

Philadelphia, and possession of a small amount of marijuana. On April 5,

2017, Appellant filed a motion to suppress. The court held a suppression

hearing on October 16, 2017, and denied relief. Appellant proceeded directly

to a stipulated bench trial, where the court convicted Appellant of all charges.

The court sentenced Appellant on November 17, 2017, to time served to six

months’ imprisonment, with immediate parole, plus 54 months’ probation for

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the conviction of firearms not to be carried without a license, and a concurrent

term of one year of probation for the conviction of carrying firearms on public

streets or public property in Philadelphia. The court imposed no further

penalty for the conviction of possession of a small amount of marijuana.

Appellant timely filed a post-sentence motion on November 27, 2017.

Following a hearing on December 12, 2017, the court denied post-sentence

relief. Appellant timely filed a notice of appeal on January 2, 2018. The court

did not order Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.

Appellant raises the following issue for our review:

DID NOT THE TRIAL COURT ERR IN DENYING APPELLANT’S MOTION TO SUPPRESS WHERE POLICE LACKED REASONABLE SUSPICION TO BELIEVE APPELLANT HAD ENGAGED IN CRIMINAL CONDUCT AT THE TIME THAT POLICE STOPPED HIM?

(Appellant’s Brief at 3).

“Our standard of review in addressing a challenge to a trial court’s denial

of a suppression motion is limited to determining whether the factual findings

are supported by the record and whether the legal conclusions drawn from

those facts are correct.” Commonwealth v. Williams, 941 A.2d 14, 26

(Pa.Super. 2008) (en banc) (internal citations omitted).

[W]e may consider only the evidence of the prosecution 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 record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal

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conclusions based upon the facts.

Id. at 27.

Appellant argues Officer Blackburn stopped him based on an anonymous

tip lacking sufficient corroboration. Appellant asserts Officer Blackburn

received the flash description from another officer, and Officer Blackburn could

not be certain whether the complainant was present with the officer who gave

the flash description at the time it went out over the radio. Appellant insists

the flash was vague, where it described the suspects as tall, thin, black males

wearing all black. Appellant stresses that the hat described on the radio did

not exactly match the hat Appellant was wearing at the time of the stop.

Appellant emphasizes that neither he nor his friend were acting suspicious or

evasive at the time Officer Blackburn stopped them. Appellant maintains he

was simply walking down the street at the time of the stop, and Officer

Blackburn did not observe him carrying a weapon. Appellant contends Officer

Blackburn could not stop him, even in a high-crime area, based solely on a

generic description supplied by an anonymous tip. Appellant concludes Officer

Blackburn lacked reasonable suspicion to conduct an investigatory detention

of Appellant, Appellant’s statement and the firearm and drugs recovered from

his person are “fruit of the poisonous tree,” and this Court must reverse the

order denying his suppression motion and remand for further proceedings.

We disagree.

Contacts between the police and citizenry fall within three general

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classifications:

The first level of interaction is a “mere encounter” (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. The second, an “investigative detention” must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or “custodial detention” must be supported by probable cause.

Commonwealth v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal

denied, 583 Pa. 668, 876 A.2d 392 (2005).

An investigative detention, unlike a mere encounter, constitutes a seizure of a person and thus activates the protections of Article 1, Section 8 of the Pennsylvania Constitution. To institute an investigative detention, an officer must have at least a reasonable suspicion that criminal activity is afoot. Reasonable suspicion requires a finding that based on the available facts, a person of reasonable caution would believe the intrusion was appropriate.

* * *

Reasonable suspicion exists only where the officer is able to articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity. Therefore, the fundamental inquiry of a reviewing court must be an objective one, namely, whether the facts available to the officer at the moment of intrusion warrant a [person] of reasonable caution in the belief that the action taken was appropriate.

Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005) (internal

citations omitted).

“[T]he question of whether reasonable suspicion existed at the time of

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an investigatory detention must be answered by examining the totality of the

circumstances to determine whether there was a particularized and objective

basis for suspecting the individual stopped of criminal activity.”

Commonwealth v. Cottman, 764 A.2d 595, 598-99 (Pa.Super. 2000)

(quoting Commonwealth v. Beasley, 761 A.2d 621, 625 (Pa.Super. 2000),

appeal denied, 565 Pa. 662, 775 A.2d 801 (2001)).

In making this determination, we must give due weight…to the specific reasonable inferences the police officer is entitled to draw from the facts in light of his experience. Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, even a combination of innocent facts, when taken together, may warrant further investigation by the police officer.

Commonwealth v. Young, 904 A.2d 947, 957 (Pa.Super. 2006), appeal

denied, 591 Pa. 664, 916 A.2d 633 (2006) (internal citations and quotation

marks omitted). “[W]hether the defendant was located in a high crime

area…supports the existence of reasonable suspicion.” Commonwealth v.

Foglia, 979 A.2d 357, 361 (Pa.Super. 2009) (en banc), appeal denied, 605

Pa. 694, 990 A.2d 727 (2010) (internal citations omitted). “The officer may

also conduct a quick frisk for weapons if he reasonably fears that the person

with whom he is dealing may be armed and dangerous.” In re D.M., 556 Pa.

160, 164, 727 A.2d 556, 557 (1999).

“While a tip can be a factor [in determining whether reasonable

suspicion existed], an anonymous tip alone is insufficient as a basis for

reasonable suspicion.” Commonwealth v. Leonard, 951 A.2d 393, 397

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(Pa.Super. 2008). “Because an anonymous tip typically carries a low degree

of reliability, more information is usually required before investigating officers

develop the reasonable suspicion needed to support an investigatory stop of

a suspect.” Commonwealth v. Fell, 901 A.2d 542, 545 (Pa.Super. 2006).

Conversely, an ordinary citizen who is an eyewitness to a crime is presumed

trustworthy. Commonwealth v. Lyons, 622 Pa. 91, 79 A.3d 1053 (2013),

cert. denied, 572 U.S. 1048, 134 S.Ct. 1792, 188 L.Ed.2d 761 (2014).

When an identified third party provides information to the police, we must examine the specificity and reliability of the information provided. The information supplied by the informant must be specific enough to support reasonable suspicion that criminal activity is occurring. To determine whether the information provided is sufficient, we assess the information under the totality of the circumstances. The informer’s reliability, veracity, and basis of knowledge are all relevant factors in this analysis.

Commonwealth v. Barber, 889 A.2d 587, 593-94 (Pa.Super. 2005) (quoting

Commonwealth v. Korenkiewicz, 743 A.2d 958, 964 (Pa.Super 1999) (en

banc), appeal denied, 563 Pa. 659, 759 A.2d 383 (2000)). See also In re

D.M., supra (holding officer had reasonable suspicion to stop appellant after

officer received radio information of gunpoint robbery involving four or five

black males, appellant and his companions matched number and race of

suspects broadcast in report, were only individuals in vicinity of robbery, and

officer stopped them in close proximity to crime scene shortly after crime; fact

that flash information gave description of suspects supplied by crime victim

and not from anonymous source imparted high degree of reliability to report;

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further, officer’s pat-down of appellant and his companions was proper where

radio call indicated suspects might be armed and dangerous).

Instantly, the trial court addressed Appellant’s suppression claim at the

conclusion of the suppression hearing, as follows:

The officers are on patrol specifically because it’s a high crime area and they’re in the area, because of what goes on, and the officer testified that he was brought out from his own district for overtime due to the type of patrol and that’s why he was in the area.

He gets a call, a radio call. The other officers, it seemed apparent to me through the testimony that the officers were with the complaining witness and the description of the defendants were broadcast over the radio.

Defense brings up great weight in the description and the one item that seems to have been in dispute was the hat.

There [were] 13, maybe 14 minutes between the radio call and the officer’s observation. The radio call was two black males, thin, the officer recalled tall, walking together, shotgun robbery, all black clothes, and within minutes of that call, within less than a five-block radius, where that call was from, they observed [Appellant] and another black male wearing mostly all black. He testified—and the one defendant here [Appellant] had a cap on his head. Although it wasn’t an exact match as was described, it did have the colors in the cap.

The officer testified that rather than go against traffic and to close a 25-yard gap, he went around and as soon as [Appellant] and the other person who was with him, who both matched the description[,] saw him, they attempted to go inside a Chinese Store and then the officer grabbed them.

And given the fact that it was so close in time, [Appellant] and the other person with him, so closely matched the description, I didn’t think it was overly unreasonable for the

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officers to do what they did and to stop this gentleman and given it was a gunpoint robbery, frisked him for their own safety and then they found the gun. So for those reasons I’m going to deny the motion to suppress.

[Even if the suspects were not trying to evade police when they walked into the Chinese store,] I mean, it’s not unreasonable so close in time for such a close match, the description of the offenders. And listen, shotguns come in all shapes and sizes; they’re cut, they’re long, they’re big, they’re short, I mean, I’ve seen dozens of them. They’re all shapes and sizes. They’re not that hard to conceal on your person. So you have two officers coming…upon what they believed may be possible armed robbers and based on the testimony of the officer, I don’t think they acted unreasonabl[y,] given the facts and circumstances and so for those reasons I will deny the motion to suppress.

(N.T. Suppression Hearing, 10/16/17, at 42-46). The record supports the

court’s decision. See Williams, supra.

Initially, the record makes clear Officer Blackburn did not stop Appellant

and his companion based on an anonymous tip. Rather, the officer stopped

Appellant based on a flash description provided by another officer who had

responded to the crime scene and relayed the complainant’s description of the

suspects. The complainant had reported an armed robbery with use of a

shotgun and described the suspects as two black, tall, thin males, around 18

to 20 years old, wearing all black; one male wearing a black and white striped

beanie hat. Thus, the information Officer Blackburn possessed was reliable

and trustworthy. See Lyons, supra; In re D.M., supra; Barber, supra.

Additionally, Officer Blackburn stopped Appellant and his companion less than

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15 minutes after receiving the flash information and approximately four blocks

from the crime scene, in a high crime area. Appellant and his companion

matched the physical description of the suspects and were both wearing all

black. Further, Appellant was wearing a hat similar in description to one

perpetrator’s hat. Based on the totality of the circumstances, including the

officer’s 16½ years of experience on the police force, Officer Blackburn had

reasonable suspicion to stop Appellant and to conduct a pat-down for officer

safety. See In re D.M., supra; Foglia, supra; Young, supra; Cottman,

supra. Therefore, the court properly denied Appellant’s suppression motion.

Accordingly, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/21/18

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