Com. v. Johnson, B.

Opinion

J-S56026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

BABATU B. JOHNSON

Appellant No. 323 MDA 2015

Appeal from the Judgment of Sentence January 14, 2015 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001496-2014

BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 02, 2015

Babatu Johnson files this timely direct appeal from his aggregate

judgment of sentence of 4-8 years’ imprisonment for receiving stolen

property, persons not to possess firearms and carrying firearms without a

license.1,2 Johnson raises one issue in this appeal:

Whether the trial court erred in denying [Johnson’s] Motion to Suppress Evidence where the firearm seized from [his] person was uncovered pursuant to an unreasonable and warrantless search and seizure in violation of Article I, Section 8 of the

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* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. §§ 3925(a), 6105(a)(1) and 6106(a)(1), respectively. 2 Following sentencing, Johnson filed a timely post-sentence motion, which the trial court denied, and a timely notice of appeal. Both Johnson and the trial court complied with Pa.R.A.P. 1925. J-S56026-15

Pennsylvania Constitution and the Fourth Amendment to the United States Constitution?

For the following reasons, we affirm.

When addressing a challenge to the denial of a motion to suppress

evidence, our standard of review

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 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, we are bound by these 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 our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.2010).

The relevant evidence adduced during the suppression hearing,

derived in accordance with the foregoing scope and standards of review, is

as follows. At 11:04 p.m. on February 1, 2014, Harrisburg police received a

phone call from a citizen on the ANI/ALI call system. N.T., 1/14/15, at 4.

The ANI/ALI system identifies calls coming into the 911 center and identifies

the source of the call. Id. The caller provided the same number as the

number reported by the ANI/ALI system. Id. Thus, the call came from an

identifiable citizen, not an anonymous informant.

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Thirty-three seconds after the call, the 911 center sent a radio

dispatch to Officer Ishman, a Harrisburg police officer in the Street Crimes

Unit who was working in full uniform along with other police officers and

Probation Officer (“P.O.”) Travis Banning. N.T., 1/14/15, at 5-7, 11. The

radio dispatch reported that a man was shot in the head in the area of 17th

and Carnation Streets. Id. at 5, 11. Officer Ishman was a couple of blocks

from that location when the call came over the radio, and he and his partner

arrived on the scene within seconds in their patrol vehicle. Id. at 11. He

did not hear any shots fired, but this was not uncommon due to the

structure of the area and echoing off the buildings. Id. at 20.

As Officer Ishman approached the scene, he observed Johnson jogging

away from the scene, crossing the road, and entering the backseat of a

parked Buick sedan. N.T., 1/14/15, at 12-13, 15. Officer Ishman could not

tell if the vehicle was running, but he observed one individual in the driver’s

seat and one in the passenger seat. Id. at 12-13. The vehicle left the

parking spot and made a left-hand turn onto Carnation Street, and Officer

Ishman activated his emergency lights to make a traffic stop. Id. at 14. At

the same time, another police vehicle came up the wrong way on Carnation

Street, trapping the Buick between the police vehicles. Id. at 15. The total

elapsed time between the radio dispatch and the traffic stop was one

minute. Id.

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Officer Ishman based his decision to make a traffic stop on the fact

that it was a very high crime area (rated 9 or 10 out of 10 for drugs, guns,

and violent crimes), the nature of the call (a man shot in the head), his

suspicion that the vehicle was involved in the shooting, the fact that Johnson

was running away from the scene of the alleged shooting, and the proximity

of time and space between the radio dispatch and the observation of the

vehicle. N.T., 1/14/15, at 8, 17-18.

Officer Ishman and the other officers asked the occupants of the Buick

to step out one at a time, and P.O. Banning frisked each occupant for officer

safety. N.T., 1/14/15, at 16-17. Officer Ishman testified that it was his

decision to conduct a traffic stop and pat down the vehicle occupants. Id. at

16. At the direction of Officer Hammer, another officer on the scene, P.O.

Banning removed Johnson, the right rear passenger, from the car, and

asked Johnson to place his hands on top of his head as he exited the vehicle.

Id. at 28. P.O. Banning placed Johnson in handcuffs, informed Johnson that

he was not under arrest at this point, and then patted Johnson down for

weapons. Id. at 29.

While patting down Johnson’s waist area, P.O. Banning felt a large,

hard object that he immediately determined was a firearm. N.T., 1/14/15,

at 29. He did not have to go into any pockets or compartments within

Johnson’s clothing to determine that it was a firearm. Id. The firearm was

positioned on Johnson’s left side hip in a cross-draw position, tucked into

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Johnson’s belt, and was not in a holster. Id. at 30. P.O. Banning

immediately announced a ten code for a firearm and removed the firearm

from Johnson’s waistband. Id. Another officer stepped in to take hold of

Johnson while P.O. Banning cleared the weapon of ammunition. Id. The gun

was a semi-automatic Smith and Wesson 40-caliber pistol loaded with 10

rounds in the magazine and one round in the chamber. Id. at 31, 35.

Officer Ishman learned later that the incident that caused the radio dispatch

was something other than a gunshot wound. Id. at 17.

As stated above, Johnson presents one question on appeal: whether

the police violated his constitutional rights through an unlawful warrantless

search and seizure. His argument on this question consists of three

components: (1) Officer Ishman lacked reasonable suspicion to stop the

Buick in which Johnson was a backseat passenger, (2) P.O. Banning’s frisk

was illegal; and (3) P.O. Banning had no statutory authority to detain or

frisk Johnson.

We first address whether Officer Ishman had reasonable suspicion to

stop the car in which Johnson was a passenger. Both the Fourth

Amendment to the United States Constitution and Article I, Section 8 of the

Pennsylvania Constitution protect individuals against unreasonable searches

and seizures. Commonwealth v. Miller, 56 A.3d 424, 429

(Pa.Super.2012). There are three categories of interactions between citizens

and police. In evaluating the level of interaction, courts conduct an

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objective examination of the totality of surrounding circumstances.

Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa.2014). The first

interaction, a “mere encounter”, does not carry any official compulsion to

stop or respond and therefore does not require the police officer to have any

level of suspicion. Id. A mere encounter is not a seizure, because a

reasonable person would feel free to leave or terminate the encounter. Id.

at 302-03. The second interaction, an “investigative detention”, is a seizure

which subjects an individual to a stop and temporary detention but is not so

coercive as to constitute the functional equivalent of an arrest.

Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa.2000). The third

interaction, an arrest or custodial detention, the most restrictive encounter,

is a seizure that must be supported by probable cause. Id.

To conduct an investigative detention, an officer must have at least

reasonable and articulable suspicion that criminal activity is afoot and may

continue only so long as is necessary to confirm or dispel such suspicion.

Commonwealth v. Au, 42 A.3d 1002, 1004 (Pa.2012). The court decides

whether reasonable suspicion exists at the time of an investigatory detention

by examining the totality of the circumstances to determine whether the

officer had a particularized and objective basis for suspecting the individual

of criminal activity. Commonwealth v. Simmons, 17 A.3d 399, 403

(Pa.Super.2011). To establish grounds for reasonable suspicion, “the officer

must articulate specific observations which, in conjunction with reasonable

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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.” Commonwealth v. Reppert,

814 A.2d 1996, 1204 (Pa.Super.2002). Reasonable suspicion is a less

demanding standard than probable cause “not only in the sense that

reasonable suspicion can be established with information that is different in

quantity or content than that required to establish probable cause, but also

in the sense that reasonable suspicion can arise from information that is less

reliable than that required to show probable cause.” Commonwealth v.

Fell, 901 A.2d 542, 545 (Pa.Super.2006).

In assessing reasonable suspicion, the court must give weight to the

inferences that a police officer may draw through training and experience.

Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa.Super.2014). “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.

Rogers, 849 A.2d 1185, 1189 (Pa.2004); see also Commonwealth v.

Scarborough, 89 A.3d 679, 684 (Pa.Super.2014) (holding that “single

factor of the defendant keeping his hand in his pocket after being asked to

remove it” constituted reasonable suspicion to stop and frisk).

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Many different factors can give rise to reasonable suspicion. For

example, “unprovoked flight in a high crime area is sufficient to create a

reasonable suspicion to justify a Terry[3] stop.” In Re D.M., 781 A.2d

1161, 1164 (Pa.2001). Moreover, police officers need not personally

observe illegal or suspicious conduct; they instead “may rely upon the

information of third parties, including ‘tips’ from citizens.” Commonwealth

v. Lohr, 715 A.2d 459, 461 (Pa.Super.1998). “Indeed, identified citizens

who report their observations of criminal activity to police are assumed to be

trustworthy, in the absence of special circumstances, since a known

informant places himself at risk of prosecution for filing a false claim if the

tip is untrue, whereas an unknown informant faces no such risk.”

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

addition, officers may “[conduct] a vehicle stop based upon a radio bulletin if

evidence is offered at the suppression hearing to establish reasonable

suspicion.” Id. at 594. Thus,

it is not necessary that the officer stopping the automobile personally had the requisite reasonable suspicion. [Rather,] [f]or a stop to be valid, someone in the police department must possess sufficient information to give rise to reasonable suspicion. The officer with the reasonable suspicion, usually the dispatcher, need not convey all of this background information to the officer who actually effectuates the stop. Thus, the police may justify the search by presenting sufficient evidence at the suppression hearing that someone in the chain of command had

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3 Terry v. Ohio, 392 U.S. 1 (1968).

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reasonable suspicion before the stop, even if the arresting officer did not.

Id. Yet other factors that bear upon the assessment of reasonable suspicion

include the time of day and the officer’s experience. Commonwealth v.

Bryant, 866 A.2d 1143, 1147 (Pa.Super.2005).

In this case, a combination of facts provided reasonable suspicion for

Officer Ishman to stop the Buick in which Johnson was a passenger,

including (1) the report to police from an identifiable citizen of a man shot in

the head of in the area of 17th and Carnation Streets; (2) the radio dispatch

to Officer Ishman reporting the shooting at this location; (3) the area of the

reported shooting was a high crime area; (4) the time of day (11:00 p.m.);

(5) the officer’s arrival at the scene within seconds of the radio dispatch; and

(6) the officer’s observation of Johnson running away from the scene of the

alleged shot and entering the vehicle. Pennsylvania courts have repeatedly

found reasonable suspicion in similar circumstances. See In Re D.M., 781

A.2d 1161, 1164 (Pa.2001) (police officer possessed reasonable suspicion to

stop juvenile, where officer received anonymous tip that person had gun and

juvenile, who met person’s description, fled when officer approached him);

Commonwealth v. Walls, 53 A.3d 889, 894 (Pa.Super.2012) (police officer

had reasonable suspicion that criminality was afoot where he heard radio

broadcast describing an individual with a gun, officer observed defendant

one-half block away from the location mentioned on radio, defendant

matched the description of suspect, and defendant fled after seeing officer);

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Commonwealth v. Bryant, 866 A.2d 1143, 1147 (Pa.Super.2005)

(reasonable suspicion where officer encountered defendant in high-crime

area, officer heard firing of gunshots in area, officer saw defendant and his

companions running around corner from where officer heard shots originate,

and other individuals in street were not fleeing area of gunshots).

Johnson next complains that P.O. Banning lacked reasonable suspicion

to frisk him for weapons, because there was no reason to believe that he

was armed and dangerous. We disagree. P.O. Banning’s action in patting

down Johnson was a Terry frisk, a type of investigative detention requiring

reasonable suspicion. Davis, 102 A.3d at 999. The purpose of a Terry frisk

is not to discover evidence of crime but to protect the police officer

conducting the investigation. Id.

Here, the combination of the six facts detailed above gave the officers

at the scene, including P.O. Banning, reasonable suspicion to believe that

Johnson was armed and dangerous. Therefore, P.O. Banning was entitled to

pat down Johnson and remove any weapons that he could identify by feel.

He felt an object in Johnson’s waist area that he immediately recognized was

a gun. It was entirely reasonable under these circumstances for P.O.

Banning to seize the weapon from Johnson’s person. Davis, 102 A.3d at

1000 (during valid Terry patdown, officer properly seized object from

defendant’s jacket pocket that he immediately recognized was a gun).

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Finally, Johnson argues that P.O. Banning did not have the statutory

authority as a probation officer to search Johnson’s person. Johnson waived

this issue by failing to raise it in his suppression motion or during the

suppression hearing. See Commonwealth v. Steffy, 399 A.2d 690, 692

(Pa.Super.1979) (failure to state particular ground for relief in motion to

suppress constitutes waiver). Furthermore, Johnson waived this issue by

failing to raise it in his Pa.R.A.P. 1925(b) statement of issues on appeal.

Commonwealth v. Patterson, 91 A.3d 55, 72 (Pa.2014) (murder

defendant waived challenge asserted on appeal to exclusion of proffered

testimony by failing to raise issue in Pa.R.A.P. 1925(b) statement).

For these reasons, we affirm Johnson’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/2/2015

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