Com. v. Jones, K.

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 J-A19008-17

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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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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