Com. v. Lingard, A.

• Court: Superior Court of Pennsylvania
• Decided: July 8, 2015
• Docket: 307 WDA 2014
• Status: Unpublished

Opinion

J-S29003-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

AARON BRANDON LINGARD

Appellant No. 307 WDA 2014

Appeal from the Judgment of Sentence January 23, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0012899-2012

BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J. FILED JULY 08, 2015

Appellant, Aaron Brandon Lingard, appeals from the judgment of

sentence entered in the Court of Common Pleas of Allegheny County. On

appeal, Lingard maintains that the suppression court erred in finding that an

investigatory detention, conducted after an officer observed a portion of a

handgun in Lingard’s waistband, was supported by reasonable suspicion.

We disagree and affirm.

On September 21, 2012, Officer Michael Catanzaro and a partner were

on “saturation patrol” in a high-crime section of Wilkinsburg Borough. N.T.,

Suppression Hearing, 12/3/13, at 4. During a saturation patrol, the officers

do not answer any calls and instead “conduct mere encounters” with citizens

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* Retired Senior Judge assigned to the Superior Court. J-S29003-15

in an effort to gather intelligence on the area. Id., at 8. At approximately

2:30 in the morning, he pulled his police cruiser up behind two males

walking down the street, one of whom would turn out to be Lingard. See

id., at 6. As he exited the cruiser, Officer Catanzaro “spoke loudly” and

asked if he could “talk with them to have a moment.” Id. The males turned

and said, “What’s up?” Id.

Officer Catanzaro then explained to him why there was a police

presence in the area and discussed “the other problems in the area.” Id. At

one point, he asked the pair, “You guys don’t have any guns on you, do

you?” Id., at 7. The men did not respond. See id. But Lingard “placed his

hands out to his side” and his sweatshirt lifted up. At that point, Officer

Catanzaro saw what he “believed to be a portion of a gun in this front waist

area.” Id. Officer Catanzaro immediately “secured the weapon” and placed

Lingard in handcuffs. Id. He explained to Lingard that he was detaining

him “for further investigation to check to see if he had a permit to carry that

weapon.” Id. Officer Catanzaro read Lingard his Miranda rights and asked

if he had a permit for the handgun. See id. Lingard did not respond. See

id., at 8. A check conducted by dispatch revealed that Lingard did not have

a permit to carry a concealed handgun. See id., at 7. Officer Catanzaro

then placed Lingard under arrest.

Prior to trial, Lingard moved to suppress the handgun, arguing that its

seizure was the result of an illegal investigatory detention. The suppression

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court denied the motion after a hearing. The matter proceeded to a bench

trial on stipulated facts. The trial court found Lingard guilty of firearms not

to be carried without a license, 18 Pa.C.S.A. § 6106(a)(2), and carrying

loaded weapons other than firearms, 18 Pa.C.S.A. § 6106.1(a), a summary

offense.1 The trial court imposed a sentence of one year of probation. This

timely appeal followed.

On appeal, Lingard maintains that the suppression court erred in

denying his suppression motion as the investigatory detention was not

supported by reasonable suspicion.

Our standard of review when an appellant appeals the denial of a

suppression motion is as follows.

[W]e are limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. We may consider the evidence of the witnesses offered by the prosecution, as verdict winner, and only so much of the defense evidence that remains uncontradicted when read in the context of the record as a whole. We are bound by facts supported by the record and may reverse only if the legal conclusions reached by the court below were erroneous.

1 We are unsure how Lingard was convicted of violating § 6106.1(a). That statute provides as follows: “Except as provided in Title 34 (relating to game), no person shall carry a loaded pistol, revolver, shotgun or rifle, other than a firearm as defined in section 6102 (relating to definitions), in any vehicle.” (emphasis added). See also 5A Summ. Pa. Jur. 2d Criminal Law § 30:42 (2d ed.); 14 West’s Pa. Prac., Crim. Offenses & Defenses § 1:545 (6th ed.). Here, Lingard was carrying the weapon on his person—not in a vehicle, but while standing in the street. In any event, Lingard does not challenge its application in this appeal.

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Commonwealth v. McAliley, 919 A.2d 272, 275-276 (Pa. Super. 2007)

(citation omitted).

The record supports the factual findings set forth earlier. Accordingly,

we turn to an examination of the suppression court’s legal conclusions. The

court concluded that the seizure of the weapon was lawful. This legal

conclusion is correct.

Preliminarily, we note that Lingard agrees that Officer Catanzaro’s

initial interaction with him and his companion was a mere encounter as

“nothing in the record suggests that the two individuals were not free to

leave.” Appellant’s Brief, at 12. See Commonwealth v. Fuller, 940 A.2d

476, 479 (Pa. Super. 2007) (“A mere encounter between police and a citizen

need not be supported by any level of suspicion, and carr[ies] no official

compulsion on the part of the citizen to stop or to respond.”). Lingard

maintains that the interaction became an illegal detention when Officer

Catanzaro moved to the side of Lingard, seized the weapon, and placed him

in handcuffs. See Appellant’s Brief, at 12. It was illegal, Lingard contends,

“because no reasonable person would feel they were free to leave when an

officer places their hands on them after inquiring about firearms.” Id.

We agree with Lingard that he was certainly not free to leave at that

point. But that fact does not render the detention illegal. An investigative

detention, or Terry stop, which “subjects a suspect to a stop and a period of

detention, but does not involve such coercive conditions as to constitute an

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arrest, requires a reasonable suspicion that criminal activity is afoot.”

Commonwealth v. Fuller, 940 A.2d 476, 479 (Pa. Super. 2007) (citing

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

“[T]o establish grounds for reasonable suspicion, the officer must

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.” Commonwealth v. Reppert,

814 A.2d 1196, 1204 (Pa. Super. 2002) (en banc); see also Florida v.

Royer, 460 U.S. 491, 498 (1983) (“Terry created a limited exception to this

general rule: certain seizures are justifiable under the Fourth Amendment if

there is articulable suspicion that a person has committed or is about to

commit a crime.”).

“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 the [intrusion] warrant a man of reasonable caution in the belief

that the action taken was appropriate.” Reppert, 814 A.2d at 1204

(internal quotation marks and citation omitted; brackets in original). “[T]he

court must be guided by common sense concerns that give preference to the

safety of the police officer during an encounter with a suspect where

circumstances indicate that the suspect may have, or may be reaching for, a

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weapon.” Commonwealth v. Stevenson, 894 A.2d 759, 772 (Pa. Super.

2006) (emphasis omitted).

Here, as detailed above, during a mere encounter, Lingard moved his

arms in such a way that his sweatshirt lifted and Officer Catanzaro observed

what he believed to be a portion of a handgun protruding from Lingard’s

waistband. At that point, Officer Catanzaro certainly had reasonable

suspicion to investigate further. See, e.g., Commonwealth v. Robinson,

600 A.2d 957, 959 (Pa. Super. 1991) (“[P]ossession of a concealed firearm

by an individual in public is sufficient to create a reasonable suspicion that

the individual may be dangerous, such that an officer can approach the

individual and briefly detain him in order to investigate whether the person

is properly licensed.”).

For his safety, the law permitted Officer Catanzaro to secure the

weapon during the pendency of the investigation. See Commonwealth v.

Stevenson, 894 A.2d 759, 772 (Pa. Super. 2006) (finding officer was

permitted to “take hold” of a handgun during a valid Terry stop to insure

officer safety). He was also permitted, to ensure his safety, to place Lingard

in handcuffs. See Commonwealth v. Rosas, 875 A.2d 341, 348 (Pa.

Super. 2005) (“[F]or their safety, police officers may handcuff individuals

during an investigative detention.”); United States v. Pontoo, 666 F.3d

20, 30 (1st Cir. 2011) (“When officer safety is a legitimate concern, a Terry

stop appropriately may involve the application of handcuffs[.]”).

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Safety was certainly a legitimate concern in this case. Two individuals

were involved; it was in the early morning hours. The area, as described by

Officer Catanzaro, was a high crime area. See N.T., Suppression Hearing,

12/3/13, at 4 (describing area of patrol as the scene of “probably three

dozen plus nonfatal shootings” among numerous other serious crime

problems). And, of course, Lingard was armed during the encounter.

The main thrust of Lingard’s argument is to try to disparage the

credibility of Officer Catanzaro. For instance, he characterizes Officer

Catanzaro’s observation of the handgun as “nothing more than a mere

hunch.” Appellant’s Brief, at 13. He further claims that the officer “did not

see a bulge, an outline of a gun, the gun itself, any furtive movements, or

grabbing of the waistband or anything else that would suggest what he

observed was a gun.” Id.

An argument based on refuting the suppression court’s credibility

determinations is unwinnable on appeal. “With respect to factual findings,

we are mindful that it is the sole province of the suppression court to weigh

the credibility of the witnesses. Further, the suppression court judge is

entitled to believe all, part or none of the evidence presented.”

Commonwealth v. Tam Thanh Nguyen, ___ A.3d ___, ___, 2015 WL

1883050, *5 (Pa. Super., filed April 27, 2015) (citation omitted). Officer

Catanzaro testified that he observed what he believed to be a handgun in

Lingard’s waistband. The suppression court credited this testimony.

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/8/2015

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