Com. v. Lewis, A.

• Court: Superior Court of Pennsylvania
• Decided: July 28, 2023
• Docket: 1721 EDA 2022
• Status: Unpublished

Opinion

J-S20023-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY LEWIS : : Appellant : No. 1721 EDA 2022

Appeal from the Judgment of Sentence Entered June 30, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007345-2021

BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.: FILED JULY 28, 2023

Appellant, Anthony Lewis, appeals from the Judgment of Sentence

imposed after the trial court found Appellant guilty of Possession of a Firearm

by a Prohibited Person, Carrying a Firearm Without a License, and Carrying a

Firearm in Public in Philadelphia.1 Appellant challenges the denial of his motion

to suppress the firearm and the denial of his motion to preclude the admission

of a DNA report. After careful review, we affirm.

On July 31, 2021, two police officers were on a routine patrol in a known

high crime area, which was the site of a recent homicide and carjackings. The

officers saw several men standing on a corner who appeared to be gambling.

Appellant was standing with the group and had a black leather bag across his ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 6105(a)(1); 18 Pa.C.S. § 6106; 18 Pa.C.S. § 6108, respectively. J-S20023-23

body. The officers did not have lights or sirens on and did not speak to any of

the men. When the officers pulled over their marked patrol car and one officer

opened the car door, Appellant fled the scene. An officer pursued Appellant

and eventually caught up to him, by which time Appellant no longer had the

black leather bag. The officer surveyed the area and found a black leather bag

on the other side of a fence next to where Appellant was detained. The officer

recovered a firearm from the bag.

Appellant was charged with the above offenses. Appellant filed a motion

to suppress the firearm.

On September 23, 2021, the trial court issued a Non-Jury Scheduling

Order stating that all discovery should be completed on or before October 21,

2021, anticipating a trial date of November 12, 2021. On November 10, 2021,

the Commonwealth notified defense counsel and the court that the laboratory

would not be able to complete the DNA analysis until February. The court

granted multiple continuances, ultimately rescheduling the trial for March 21,

2022.

On December 8, 2021, the court denied Appellant’s pretrial motion to

suppress the firearm.

On February 8, 2022, six weeks before trial, the Commonwealth

provided to Appellant’s counsel a DNA report, dated February 7, 2022, which

indicated that Appellant’s DNA was found on the firearm. Appellant did not file

a motion for a continuance. Rather, on March 14, 2022, one week before trial,

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Appellant filed a motion to preclude the DNA evidence based on the

Commonwealth’s violation of the September 23, 2021 discovery order.

On March 21, 2022, the trial court dismissed the motion and

immediately proceeded to a waiver trial. The trial court found Appellant guilty

of all charges.

On June 30, 2022, the court sentenced Appellant to an aggregate term

of two to four years of imprisonment followed by two years of probation.

Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P 1925.

Appellant presents the following issues for our review:

1. Did the Trial Court err in denying Appellant’s pretrial motion to suppress the firearm as there was no reasonable suspicion or probable cause to detain and arrest the Appellant and no probable cause to search the bag and recover the firearm. The government violated Appellant’s rights against unreasonable search and seizure and unlawful arrest under the U.S. and Pa. Constitutions?

2. Did the Trial Court err in denying the Appellant’s pretrial motion to suppress the firearm as the Appellant was unlawfully seized by police who lacked reasonable suspicion or probable case and where the firearm was recovered as a result of forced abandonment. The Appellant was seen committing no crime when the police unlawfully seized him. The government violated Appellant’s rights against unreasonable search and seizure and unlawful arrest under the U.S. and Pa. Constitutions?

3. Did the Trial Court err in denying Appellant’s pretrial motion to preclude the DNA report as the Commonwealth committed a discovery violation and the proper remedy was to preclude the report from being introduced at trial. This was especially damning and prejudicial as the only evidence tying the Appellant to the firearm was the DNA evidence, as police never saw Appellant actually possessing any firearm, therefore, the evidence would have

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otherwise been insufficient to sustain the guilty verdicts for VUFA- 6105, 6106, and 6108?

Appellant’s Brief at 7.

A. Reasonable Suspicion

Appellant argues that he was subject to an illegal detention and arrest

because officers did not have reasonable suspicion to pursue Appellant and

that the search of his bag was likewise illegal. Appellant’s Br. at 13.

Appellant’s arguments are without merit.

The Fourth Amendment of the United States Constitution and Article 1,

Section 8 of the Pennsylvania Constitution protect citizens from unreasonable

searches and seizures. In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). “To

secure the right of citizens to be free from [unreasonable searches and

seizures], courts in Pennsylvania require law enforcement officers to

demonstrate ascending levels of suspicion to justify their interactions with

citizens as those interactions become more intrusive.” Commonwealth v.

Beasley, 761 A.2d 621, 624 (Pa. Super. 2000). There are three defined

categories of interaction between citizens and police officers: (1) mere

encounter, (2) investigative detention, and (3) custodial detention. See

Commonwealth v. Collins, 950 A.2d 1041, 1046 (Pa. Super. 2008).

A mere encounter between a police officer and a citizen does not need

to be supported by any level of suspicion and “carries no official compulsion

on the part of the citizen to stop or to respond.” Commonwealth v. Fuller,

940 A.2d 476, 479 (Pa. Super. 2007). There is no constitutional provision that

prohibits police officers from approaching a citizen in public to make inquiries

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of them. See Beasley, supra at 624; see also Commonwealth v. Lyles,

97 A.3d 298, 303-04 (Pa. 2014) (finding a mere encounter where two

uniformed police officers arrived in an unmarked police car, approached the

defendant, and asked for identification).

Police pursuit for the purposes of an investigatory detention can be

justified if officers have an objectively reasonable suspicion that crime is afoot.

Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011). “Reasonable

suspicion must be based on specific and articulable facts, and it must be

assessed based upon the totality of the circumstances viewed through the

eyes of a trained police officer.” Commonwealth v. Williams, 980 A.2d 667,

671 (Pa. Super. 2009).

“[U]nprovoked flight in a high crime area is sufficient to create a

reasonable suspicion to justify [an investigatory] stop under the Fourth

Amendment.” In re D.M., supra at 1164. See also Commonwealth v.

McCoy, 154 A.3d 813, 819 (Pa. Super. 2017) (holding defendant’s evasive

and suspicious behavior in a high crime area, along with his unprovoked flight,

gave officers reasonable suspicion that criminal activity was afoot, justifying

investigatory stop); Commonwealth v. Washington, 51 A.3d 895, 898 (Pa.

Super. 2012) (“nervous, evasive behavior and headlong flight all provoke

suspicion of criminal behavior in the context of response to police presence”).

A defendant has no standing to contest the search and seizure of items

that he has voluntarily abandoned or relinquished because he has no privacy

expectation in the property. Commonwealth v. Byrd, 987 A.2d 786, 790

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(Pa. Super. 2009). If the abandonment is coerced by unlawful police action,

then the state-based constitutional principle of forced abandonment forbids

using the property for evidentiary purposes. Id. at 791. However, a defendant

is not entitled to suppression of contraband discarded during flight if police

had reasonable suspicion to justify an investigatory stop. Commonwealth v.

McCoy, 154 A.3d 813, 816 (Pa. Super. 2017).

Appellant contends that the officers did not observe Appellant gambling

or handling any contraband prior to the pursuit, and therefore lacked

reasonable suspicion to pursue Appellant and seize the firearm.2 Appellant’s

Br. at 13. Appellant also argues that the officers exhibited a show of force by

“abruptly stopping the police car,” “quickly open[ing] the car door,” and

staring directly at Appellant while moving toward him, which provoked his

flight and led to the forced abandonment of the firearm. Id.

The trial court found that Appellant’s unprovoked flight in a high crime

area supported the officer’s reasonable suspicion that he was engaged in

criminal activity. Tr. Ct. Op., filed 12/13/22, at 4. The trial court considered

testimony from the officers that the location was a dangerous area known for

gambling and other crimes. Id. Therefore, the court concluded, since ____________________________________________

2 Appellant also argues that the officers’ testimony was insufficient to establish

that the area was known for high crime because the officers lacked experience and had not made any gambling arrests in the area before. Appellant's Br. at 17. However, it is within the lower court’s province “to pass on the credibility of witnesses and determine the weight to be given to their testimony.” Commonwealth v. Clemens, 66 A.3d 373, 379 (Pa. Super. 2013). We, therefore, defer to the evaluation of the trial court that the testimony of the officers regarding the level of crime in the area was credible.

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Appellant abandoned the bag voluntarily during a lawful pursuit, the firearm

was properly admitted as evidence. Id. at 6.

After reviewing the record and case law, we agree with the trial court’s

findings. The initial pre-flight interaction between Appellant and the officers

constituted a mere encounter, which does not require any level of police

suspicion. The officers simply stopped their patrol car and opened the doors

after observing what appeared to be gambling on a street corner located in an

area known for illicit activities. N.T. Motion, 12/8/21, at 10, 12, 16. The sirens

were not on and there was no evidence that the officers even spoke to

Appellant. Id. Once Appellant spontaneously fled, the officers had reasonable

suspicion that criminal activity was afoot. The officers testified that the area

where the stop occurred is “known for narcotic sales, gambling . . . [and] a

lot of carjacking” and “well known for the high-crime rate.” Id. at 11, 20.

Appellant’s unprovoked flight, combined with the high crime area and the

officer’s observation of purported gambling, supported reasonable suspicion

justifying an investigatory detention.

Given that police were lawfully pursuing Appellant, his abandonment of

the bag was not a “forced abandonment” that would require suppression of

the evidence. See McCoy, 154 A.3d at 816. The trial court, therefore, did not

err when it denied Appellant’s motion to suppress the firearm.

B. Admissibility of Evidence

Appellant also argues that the trial court erred in denying his motion to

preclude the Commonwealth from admitting DNA evidence linking Appellant

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to the recovered firearm. Appellant’s Br. at 21. Specifically, Appellant argues

that the Commonwealth violated the September 23, 2021 discovery order and

prejudiced Appellant’s ability to seek a DNA expert, and that the proper

remedy was the preclusion of the DNA report. Id. Appellant’s argument is

without merit.

Our standard of review concerning a challenge to the admissibility of

evidence is as follows:

The admissibility of evidence is a matter for the discretion of the trial court and a ruling thereon will be reversed on appeal only upon a showing that the trial court committed an abuse of discretion. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.

Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and

quotation marks omitted).

The purpose of discovery rules is to prevent a “trial by ambush” that

violates a defendant’s right to due process. Commonwealth v. Ulen, 650

A.2d 416, 418 (Pa. 1994). Pennsylvania Rule of Criminal Procedure 573

provides that the Commonwealth, on request by the defendant, must disclose

any results or reports of scientific tests that are within its possession or

control. Pa.R.Crim.P. 573(B)(1)(e).

If the Commonwealth violates disclosure requirements, “[the defendant]

must demonstrate how a more timely disclosure would have affected his trial

strategy or how he was otherwise prejudiced by the alleged late disclosure.”

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Commonwealth v. Brown, 200 A.3d 986, 993 (Pa. Super. 2018). This Court

has suggested that in most cases, “[a] continuance is appropriate where the

undisclosed statement or other evidence is admissible and the defendant’s

only prejudice is surprise.” Commonwealth v. Smith, 955 A.2d 391, 395

(Pa. Super. 2008) (en banc).

Appellant contends that the Commonwealth’s disclosure of the DNA

report on February 8, 2022, was “extremely late,” which affected Appellant’s

trial strategy by precluding Appellant from obtaining a defense expert in

forensics. Appellant’s Br. at 21. He notes that the court had previously ordered

all discovery to be exchanged by October 12, 2021, but the Commonwealth

provided the DNA report 120 days after that deadline. Id. at 24. Appellant

submits that “an Order with no teeth is not an Order at all, but rather

suggestive or simply discretionary.” Id. Therefore, Appellant argues, the trial

court erred by denying the pretrial motion to preclude the DNA report.

The trial court found that the Commonwealth notified the court and the

defense about the delay in the DNA processing and passed the results to

Appellant as soon as they were received. Tr. Ct. Op., filed 12/13/22, at 7. The

court concluded that the Commonwealth did not, therefore, intentionally

violate any order of the court and acted in good faith. Id. After reviewing the

record and case law, we agree with the trial court’s finding.

Appellant was aware in November 2021 that the DNA analysis would not

be available to either party until February 2022. As such, the laboratory’s

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report, issued one day before he received it from the Commonwealth, was a

not a surprise. Despite Appellant’s awareness of the forthcoming DNA results,

Appellant did not seek to obtain a DNA expert at any point before trial.

Significantly, Appellant also did not request a continuance to review the

evidence in the time period before trial was scheduled to begin on March 21,

For the foregoing reasons, we conclude that the trial court did not err in

denying Appellant’s motion to suppress the firearm obtained after a police

pursuit and Appellant’s motion to preclude the DNA report. The police officers

lawfully pursued Appellant and the trial court acted within its discretion to

admit the DNA report.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/28/2023

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