Com. v. Serrano, J.

• Court: Superior Court of Pennsylvania
• Decided: April 5, 2019
• Docket: 963 MDA 2018
• Status: Unpublished

Opinion

J-A06035-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHNNY RICO SERRANO : : Appellant : No. 963 MDA 2018

Appeal from the Judgment of Sentence June 8, 2018 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0000621-2016

BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.: FILED APRIL 05, 2019

Johnny Rico Serrano (Serrano) appeals from his order of judgment of

sentence entered in the Court of Common Pleas of Berks County (trial court)

and imposed after he was convicted of possession of a weapon without a

license. Serrano’s sole ground on appeal is that the trial court erred in denying

his motion to suppress the firearm that police obtained from his person when

he was stopped and frisked. We affirm.

I.

Officers Raymond Carter, Daniel Cedeno and Christopher Gaughan

testified at the suppression hearing and the trial court relied on their testimony

in making its findings of fact, which are summarized here. At approximately

10:00 p.m. on the date in question, Officer Carter was on patrol near the 800

block of Windsor Street. He heard six gunshots ring out a few blocks away

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-A06035-19

near the intersection of Ninth and Spring Street. He exited his vehicle and

ran to the 900 block of Ninth Street where a white male flagged him down to

say that “the guy you are looking for is wearing a red hoody on, over on Spring

Street.” Trial Court Opinion, filed 02/09/17, at 2.

Officer Carter reported the gunshots over his police radio and conveyed

what the unidentified white male had told him. Not long after, Training Officer

Jared Abby stopped a male wearing a red hoody near the 900 block of Spring

Street. Officer Carter went to that area and searched the suspect but found

no weapon. The suspect was released a few minutes after he was stopped.

Meanwhile, as Officer Cedeno was also searching for an armed suspect,

an unidentified woman approached on foot to tell him that a man in red who

had discharged a weapon was walking west on Spring Street. The woman

said that the man in red seemed intoxicated. She declined to identify herself

because she did not want to be involved with the investigation. Officer Cedeno

testified that he found the woman credible.

Officer Cedeno relayed over police radio to Officer Gaughan what the

unidentified woman had said. Although they were returning to the 900 block

of North Eighth Street from different locations, they arrived at the same time

and saw a man wearing red who appeared to be staggering. It was Serrano,

who Officer Gaughan had briefly encountered earlier that evening soon after

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the gunshots.1 The two officers immediately drew their weapons and ordered

Serrano not to move.

The two officers frisked Serrano and recovered an unloaded 9 mm

handgun. Serrano was arrested and charged with several firearm-related

offenses. The case proceeded to a bench trial.

Serrano moved to suppress the firearm on the ground that the search

was the tainted fruit of an illegal seizure.2 At the conclusion of the suppression

hearing, the trial court ruled that the police had lawfully detained and frisked

Serrano. The trial court acknowledged that “reports from anonymous

witnesses are suspect,” but reasoned that they were sufficient to justify the

detention “because of the corroborating nature of the tips, the specificity of

the tips, and the ability of Officer Cedeno to [assess] the credibility of the

second tipster.” Id. at 6.

Serrano was found guilty of carrying a firearm without a license.3 He

was sentenced to a range of three to twenty-three months as well as three

____________________________________________

1Officer Gaughan himself had heard shots ring out that night. Moments later, he seized Serrano but released him to assist Officer Carter in detaining another suspect. Officer Gaughan encountered Serrano for the second time with Officer Carter.

2Serrano had also moved to suppress his post-arrest statements to police, which the Commonwealth conceded.

3 See 18 Pa.C.S. § 6106(a)(2).

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years of probation. He timely appealed, arguing that the two anonymous tips

were insufficient to give the police a legal basis to detain him because the tips’

allegation of illegality was not corroborated prior to the detention.4

II.

The United States Constitution prohibits “unreasonable searches and

seizures.” U.S. Const. Amendment IV; see also Pennsylvania Const. Art. 1,

§ 8. The extent of this constitutional protection depends on the nature of the

police-citizen interaction at hand.

Under state and federal law, such an interaction falls within one of three

categories: a “mere encounter,” an “investigative detention,” or a “custodial

detention,” which is equivalent to an arrest. See Commonwealth v. Ellis,

662 A.2d 1043, 1047-48 (Pa. 1995). These categories determine the burden

of proof as to the legality of the police intrusion and the admissibility of

evidence obtained as a result of it. The greater the intrusion, the greater the

burden on law enforcement to prove that it was constitutionally valid. If the

4 The standard of review and applicable law are critical to the disposition of this appeal. First, if “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.” Commonwealth v. Freeman, 150 A.3d 32, 34-35 (Pa. Super. 2016). In deferring to those factual findings and reviewing the conclusions of the law, an appellate court may not consider any other evidence. Id. In this case, the suppression court’s findings of fact are not in dispute.

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police action does not pass constitutional muster, then the resulting evidence

may be subject to exclusion at trial.

In a mere encounter, the use of force is limited such that a person would

not reasonably believe they are being detained. An investigative detention or

a “Terry stop” occurs when police use enough physical force or a show of

authority for a person to reasonably believe that they are not free to go. See

Commonwealth v. Barber, 889 A.2d 587, 592 (Pa. Super. 2005) (citing

Terry v. Ohio, 392 U.S. 1, 88 (1968)). However, the use of force in an

investigatory detention falls short of the coercive conditions of an arrest. See

Barber, 889 A.2d at 592.

Police need no level of suspicion to justify a mere encounter; police need

“reasonable suspicion” of criminal activity to justify an investigative detention;

and police need “probable cause” to justify an arrest. See Commonwealth

v. Korn, 139 A.3d 249, 257–58 (Pa. Super. 2016). Courts must consider the

legality of police-citizen contact on a case-by-case basis, taking all relevant

circumstances into account. Commonwealth v. By, 812 A.2d 1250, 1254

(Pa. Super. 2002).

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Here, the parties agree that this case concerns an investigative

detention of Serrano.5 The issue is whether the police had reasonable

suspicion when they detained and frisked him.

Reasonable suspicion for an investigative detention must be supported

by “specific and articulable facts which, together with the rational inferences

therefrom, reasonably warrant the intrusion.” Barber, 889 A.2d at 593.

Reasonable suspicion may be drawn from the “totality of the circumstances.”

Commonwealth v. Wiley, 858 A.2d 1191, 1194 (Pa. Super. 2004).

“To justify a frisk incident to an investigatory [detention], the police

need to point to specific and articulable facts indicating the person they intend

to frisk may be armed and dangerous[.]” Commonwealth v. Myers, 728

A.2d 960, 963 (Pa. Super. 1999) (quoting Commonwealth v. Patterson,

591 A.2d 1075, 1078 (Pa. 1991)) (emphasis omitted). “[P]olice officers need

not personally observe the illegal or suspicious conduct [to justify a detention

or frisk], but may rely upon the information of third parties, including ‘tips’

from citizens.” Commonwealth v. Lohr, 715 A.2d 459, 461 (Pa. Super.

1998).

5 In Serrano’s 1925(b) Statement of Matters Complained of on Appeal, he averred that he was subjected to a custodial arrest, stating in the alternative that an investigative detention took place. However, in his brief, Serrano only asserted the latter claim. See Commonwealth v. Manigault, 462 A.2d 239, 240 (Pa. 1983) (holding that issues which are not argued or briefed on appeal are abandoned and waived even if raised at trial).

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III.

Serrano contends that the police lacked reasonable suspicion for failure

to corroborate the tipsters’ allegation of illegality.6 However, just because

both witnesses are unidentified does not mean that they are unreliable.

Information given to police in person by an unidentified individual may

be considered trustworthy because it is possible to observe the demeanor of

such witnesses and assess their “veracity, reliability and basis of knowledge.”

See Commonwealth v. Martin, 705 A. 2d 887, 892 (Pa. Super. 1997). Also,

6 In support, Serrano relies on Florida v. J.L., 529 U.S. 266, 272 (2000), where the United States Supreme Court held that an anonymous telephone call may only give police reasonable suspicion to detain a suspect if the tip is “reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” This means that when police receive an anonymous tip over the phone, they may not detain a suspect based only on his appearance and location, even where the tip warns that the suspect is armed. The police must further develop reasonable suspicion by observing an indication of crime. In addition to J.L., Serrano relies on two Pennsylvania cases in support of his claim that he was illegally detained – Commonwealth v. Jackson, 698 A.2d 571 (Pa. 1997), and Commonwealth v. Hawkins, 692 A.2d 1068 (Pa. 1997). As in J.L., the courts held in those two cases that the phone calls of “anonymous tipsters” did not give police reasonable suspicion because the police had only confirmed the suspects’ location and physical appearance. See Jackson, 698 A.2d at 575-76; Hawkins, 692 A.2d at 1070; see also Commonwealth v. Mackey, 177 A.3d 221 (Pa. Super. 2017).

Prior to detaining the suspects, the police in J.L., Jackson and Hawkins did not observe any indication that the person was armed as the anonymous tipsters alleged. Unlike in the present situation, the tips were communicated over the phone rather than face-to-face. Such tips are far less reliable than those given at the scene of an alleged crime, even where the on-scene witness is not identified by name. See Commonwealth v. Ransom, 103 A.3d 73, 78-79 (Pa. Super. 2014) (distinguishing Jackson and Hawkins on that basis); Williams, 980 A.2d 671-72 (distinguishing anonymous phone calls from police reports given to police on-scene by unidentified witnesses).

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information from an unidentified witness at the scene of a crime may be

reliable because “a person who knowingly gives false information to any law

enforcement officer with intent to implicate another” may be held criminally

liable. Williams, 980 A.2d 671-72; 18 Pa.C.S. § 4906 (imposing criminal

penalty for making a false crime report); see also Adams v. Williams, 407

U.S. 143 (1972) (officer justified in detaining defendant when informed on the

street that he was carrying narcotics and a gun and the informant was subject

to prosecution for making a false report); United States v. Valentine, 232

F.3d 350, 354-57 (3d. Cir. 2000) (noting that an in-person tip based on first-

hand account is more reliable than an anonymous telephone call).

In this case, the police were within earshot of gunfire and were already

investigating the shooting so they did not have to rely on a tip to confirm that

a crime had almost certainly occurred. When the two witnesses approached

the police officers, each gave independent and consistent descriptions of the

shooter as a man who was wearing red and walking down a nearby street.

One of the two witnesses, the unidentified white male, flagged down Officer

Carter to inform him that the suspect was wearing a red hoody and walking

near Spring Street. The other witness, the unidentified woman, told Officer

Cedeno that the man in red was intoxicated and this witness was found to be

credible. See Commonwealth v. Davis, 102 A. 3d 996, 1000 (Pa. Super.

2014) (“In assessing the totality of the circumstances, a court must give

weight to the inferences that a police officer may draw through training and

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experience”). Within minutes of the gunshots and the two witnesses’ tips, the

police located Serrano in nearly the exact place where the witnesses claimed

he would be. See Commonwealth v. Zhahir, 751 A. 2d 1153, 1157 (Pa.

2000) (it is significant when an anonymous tip predicts future behavior and

police can independently corroborate it).

Serrano was wearing red and he seemed to be staggering as if

intoxicated. He was walking within a few blocks of the area where two officers

had heard the gunshots. Officer Gaughan had even detained Serrano earlier

that evening in the immediate aftermath of the shooting before releasing him

to back up officers who were with another suspect. This prior contact

established that Serrano was in the area at the time a weapon was discharged.

See Commonwealth v. Kearney, 601 A.2d 346, 347-348 (Pa. Super. 1992)

(holding that the “reasonable suspicion . . . standard is met if the police

officer’s reasonable and articulable belief that criminal activity was afoot is

linked with his observation of suspicious or irregular behavior on behalf of the

particular defendant stopped.”) (citations and quotations omitted).

Additionally, the police were already investigating the shooting when

two witnesses approached them in the street. There was little possibility of a

false report of a crime or that the two witnesses had any nefarious aim when

reporting to the officers on scene. This made the two witnesses’ information

all the more reliable, giving the officers reasonable suspicion to stop and frisk

Serrano once he was spotted.

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In sum, the circumstances of this case gave the police reasonable

suspicion that Serrano was the person who had discharged his weapon. The

police legally detained him and the resulting frisk did not run afoul of the

constitutional prohibition against unreasonable searches and seizures because

the police justifiably suspected that Serrano had just committed a firearm-

related offense. See Commonwealth v. Walls, 53 A.3d 889, 894 (Pa.

Super. 2012) (holding that the police had reasonable suspicion to believe the

defendant was involved in criminal activity because of a number of factors,

including his “proximity to the location described in the flash, and [the

defendant’s] matching the description of the suspect”); Commonwealth v.

Brown, 996 A.2d 473, 477 (Pa. 2010) (“[a]n anonymous tip, corroborated by

independent police investigation, may exhibit sufficient indicia of reliability to

supply reasonable suspicion for an investigatory stop”); Williams, 980 A.2d

671-72 (affirming denial of suppression motion where police detained

defendant based on multiple tips from unidentified bystanders at the scene of

an offense in progress); Barber, 889 A.2d at 593-94.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 04/05/2019

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