Com. v. Sims, E.

• Court: Superior Court of Pennsylvania
• Decided: June 9, 2025
• Docket: 1417 EDA 2024
• Status: Unpublished

Opinion

J-S14009-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIC SIMS : : Appellant : No. 1417 EDA 2024

Appeal from the Judgment of Sentence Entered October 21, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001971-2021

BEFORE: DUBOW, J., BECK, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED JUNE 9, 2025

Appellant, Eric Sims, appeals from the October 21, 2022 judgment of

sentence of 2½ to 5 years of incarceration entered in the Philadelphia County

Court of Common Pleas following his conviction after a bench trial of firearms

offenses. Appellant challenges the denial of his suppression motion. After

careful review, we affirm.

The relevant facts and procedural history are as follows. On November

5, 2020, at approximately 11:15 PM, Philadelphia Police Officer Michael James,

who had been assigned to the 25th Police District for his entire 16-year career,

received a radio call regarding a black male with a gun near the corner of 3400

North 11th Street. Dispatch provided Officer James with information received

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* Former Justice specially assigned to the Superior Court. J-S14009-25

from a 911-caller reporting that a black male wearing a blue tracksuit with

either white or silver stripes was at that location armed with a firearm.

Officer James and his partner, Officer Edward Taylor, proceeded in their

patrol vehicle to the location of the reported firearm and observed a man

matching the description provided by the 911-caller, and later identified as

Appellant, standing with three or four other men. From his position in his

vehicle, Officer James observed Appellant “start to move in a pacing manner,

north and south, in approximately five to maybe six feet back and forth.” N.T.

Suppression, 2/15/22, at 9. Officer Taylor exited the patrol vehicle first, and

Appellant began to move away from the officers. Officer James heard Officer

Taylor instruct the men to remove their hands from their pockets or to show

their hands, at which time Appellant “start[ed] to run a little bit southbound.”

Id. at 10. Appellant then “traversed back northbound in the opposite

direction.” Id. Officer James exited the patrol vehicle, but when Appellant

began running, he returned to the vehicle to follow alongside Officer Taylor

who pursued Appellant on foot.

Appellant continued running northbound, then turned a corner. Officer

James, still following in his patrol car, then observed Appellant’s “arm stretch

out from his body in a throwing motion or almost like a tossing motion and

[Officer James] saw a dark object leave [] his person.” Id. After turning the

corner and jettisoning the “dark object,” Appellant continued another 10 to 15

feet before Officer Taylor caught up to Appellant and took him into custody.

Shortly thereafter, Officer James recovered from a location “consistent [with]

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where [he] saw the tossing motion direct towards” a loaded black and silver

firearm. Id. at 11. Appellant provided Officer James with his name and date

of birth, following which Officer James determined that Appellant did not have

a license to carry a firearm.

The Commonwealth charged Appellant with Persons Not to Possess,

Firearms Not to be Carried Without a License, and Carrying Firearms on Public

Streets in Philadelphia.1

On December 8, 2021, Appellant filed a motion to suppress evidence

alleging that police violated Appellant’s state and federal constitutional rights

when they stopped and frisked him without a warrant, which resulted in the

illegal seizure of a firearm.

On February 15, 2022, the court held a hearing on Appellant’s motion

at which Officer James testified in accordance with the above facts. Officer

James also testified that the 25 th Police District, where he had spent his entire

16-year career, is “extremely violent,” with pervasive crime, including gun

crime. Id. at 5. Officer James testified that he did not know the woman who

called 911, and to his knowledge she had never been used as a confidential

informant. He stated that, at the time of the stop, he did not know whether

Appellant had a license to carry a firearm. Officer James testified that he did

not see Appellant engage in a “drug transaction or anything” and did not see

1 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), and 6108.

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a bulge in Appellant’s waistband. Id. at 14. Officer James testified that he

had never investigated any shootings or made any gun arrests on this block.

In addition to Officer James’s testimony, the Commonwealth also

presented evidence from two body camera recordings—one from the camera

worn by Officer Taylor and one worn by another officer. The second recording,

made after Officers James and Taylor had apprehended Appellant, showed the

officer wearing the body camera speaking with the woman who had made the

911 call. The woman told the officer that she called 911 because Appellant

had carried the firearm in a manner suggesting an impending confrontation

with someone. See Commonwealth’s Exhibit C-1.

The suppression court credited Officer James’s testimony and the

recorded video evidence and denied Appellant’s motion. The court explained

that it denied the motion because the report of a person matching Appellant’s

description brandishing a gun, combined with his extremely nervous behavior

and unprovoked flight, justified an investigative stop. The court concluded,

therefore, that the gun Appellant had abandoned when pursued by police was

admissible.

Appellant proceeded to a stipulated bench trial after which the trial court

convicted him of the above crimes. On October 21, 2022, the court sentenced

Appellant to a term of 2½ to 5 years of incarceration and a concurrent term

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of seven years of probation. Appellant filed a motion for reconsideration which

was denied by operation of law.2

This appeal followed. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

Appellant raises the following issue on appeal:

[] Whether the motion court erred in denying [Appellant’s] motion to suppress in the situation where the police did not have reasonable suspicion or probable cause to stop [Appellant] or conduct a search[?]

Appellant’s Brief at 6.

“Our standard of review in addressing a challenge to a trial court’s denial

of a suppression motion is whether the factual findings are supported by the

record and whether the legal conclusions drawn from those facts are correct.”

Commonwealth v. Evans, 153 A.3d 323, 327 (Pa. Super. 2016) (citation

omitted). “Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant’s

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-48 (Pa. 2012).

Our scope of review of the suppression court’s factual findings is limited to the ____________________________________________

2 Appellant filed a timely post-sentence motion on October 27, 2022. More than 18 months later, on May 3, 2024, the clerk of court entered an order denying the post-sentence motion by operation of law. The failure of the clerk to enter the order denying the motion by operation of law on the 120 th day after Appellant filed the motion resulted in a breakdown in the court system, which renders this facially untimely appeal timely. See Commonwealth v. Perry, 820 A.2d 734 (Pa. Super. 2003) (concluding that a breakdown in the court system occurred where the clerk of courts failed to enter an order indicating that the post-sentence motion was denied).

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record from the suppression hearing. Commonwealth v. Barr, 266 A.3d 25,

39 (Pa. 2021). “Where the record supports the findings of the suppression

court, we are bound by those facts and may reverse only if the legal

conclusions drawn therefrom are in error.” Evans, 153 A.3d at 327 (citation

omitted).

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) (citation omitted). There is no

constitutional provision that prohibits police officers from approaching a citizen

in public to make inquiries of them. Beasley, 761 A.2d at 624.

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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) (citation omitted).

“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).

“[M]ere presence in a high crime area [is] insufficient to support a

finding of reasonable suspicion,” but a court can “consider the fact that the

stop occurred in a high crime area in assessing the totality of the

circumstances.” D.M., 781 A.2d at 1163-64 (citation and internal quotation

marks omitted). Furthermore, “nervous, evasive behavior is a pertinent factor

in determining reasonable suspicion and headlong flight - wherever it occurs

- is the consummate act of evasion.” Id. at 1164. Accordingly, “unprovoked

flight in a high crime area is sufficient to create a reasonable suspicion to

justify a Terry[v. Ohio, 392 U.S. 1 (1968)] stop[.]” Id. 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

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was afoot, justifying investigatory stop); Commonwealth v. Washington,

51 A.3d 895, 898 (Pa. Super. 2012) (concluding that “nervous, evasive

behavior and headlong flight all provoke suspicion of criminal behavior in the

context of response to police presence”).

The presence of a concealed firearm alone is insufficient to establish

reasonable suspicion; however, the surrounding circumstances, such as the

suspect’s conduct and presence in a high-crime area, combined with a firearm,

may establish reasonable suspicion. Commonwealth v. Hicks, 208 A.3d

916, 938-39, 945 (Pa. 2019).

“[A] police officer need not personally observe the illegal or suspicious

conduct which lead him or her to believe that criminal activity is afoot and that

a person is armed and dangerous.” In Interest of S.D., 633 A.2d 172, 174

(Pa. Super. 1993). When an officer receives a tip, this Court must consider

“the specificity of the description of the suspect in conjunction with how well

the suspect fits the given description, the proximity of the crime to the sighting

of the suspect, the time and place of the confrontation, and the nature of the

offense reported to have been committed.” Id. (citation omitted).

“[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 (Pa. Super. 2009) (citation omitted). 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.

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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. McCoy, 154 A.3d at 816.

Characterizing the interaction between Appellant and the officers as an

investigative detention and analogizing this case to Commonwealth v.

Hicks, 208 A.3d 916 (Pa. 2019), Appellant contends that Officer Taylor and

Officer James lacked reasonable suspicion to question or stop him. Appellant’s

Brief at 10-11. Appellant asserts that the anonymous 911 call was insufficient

to provide the officers with reasonable suspicion that Appellant was engaged

in criminal activity because Officer James testified that he did not know

whether Appellant had a license to carry a firearm and he did not see a bulge

in Appellant’s waistband indicative of possession of a firearm. Id. at 14-15.

In Hicks, a remote camera operator conducting live surveillance at a

gas station notified police that a patron of the station was in possession of a

firearm, had shown it “to another patron, put [it] in his waistband, covered it

with his shirt, and walked inside” the station’s convenience store. Hicks, 208

A.3d at 922. While officers were en route to the station, Mr. Hicks emerged

from the convenience store and reentered his vehicle. Id. “[B]efore Mr. Hicks

could exit the parking lot, numerous police officers in marked vehicles”

prevented Mr. Hicks from leaving. Id. Then, “[b]elieving that [M]r. Hicks had

moved his hands around inside his vehicle, [an officer] drew his service

weapon . . and ordered [Mr.] Hicks to keep his hands up.” Id. Another officer

restrained Mr. Hicks’s arms while the first officer reached into Mr. Hicks’s

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vehicle and removed his handgun from its holster. Id. Officers then removed

Mr. Hicks from his vehicle and handcuffed him. Id. They then “noticed the

odor of an alcoholic beverage emanating from [Mr.] Hicks[,]” searched him,

and recovered a bag containing a small amount of marijuana. Id. Upon

investigation, the officers determined that Mr. Hicks had a valid license to

carry a concealed firearm, therefore rendering his possession of the handgun

and the manner in which he carried it lawful. Id. The Commonwealth

nevertheless charged Mr. Hicks with DUI, possession of a small amount of

marijuana, and disorderly conduct.

Mr. Hicks filed a motion to suppress the evidence asserting that the

officers lacked reasonable suspicion sufficient to support an investigative

detention. The trial court denied the motion and the Superior Court affirmed.

Id. at 923. Our Supreme Court, reversed, however, holding that a police

officer may not infer criminal activity, sufficient to support a Terry stop,

merely from an individual’s possession of a concealed firearm in public. Id.

at 936-37. The court emphasized that the possession of a concealed firearm,

where it may be lawfully carried, does not alone suggest criminal activity

unless there are additional articulable facts supporting reasonable

suspicion of criminal conduct. Id. at 937, 946. After finding that the officers

lacked additional articulable facts supporting reasonable suspicion that Mr.

Hicks was engaging in criminal conduct and that the officers seized Mr. Hicks

“solely due to the observation of a firearm concealed on his person,” the court

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vacated the judgment of sentence and remanded the case for further

proceedings. Id. at 951.

In the instant case, the suppression court distinguished Hicks, and

denied Appellant’s motion to suppress. It explained:

This [c]ourt had the opportunity to observe the demeanor of the witnesses and the benefit of viewing the body worn camera footage. Officers were presented with a verified radio call of an individual matching [Appellant’s] description entirely brandishing a gun. As such, this is not the same factual scenario as in Commonwealth v. Hicks.

Here, a verified tip of this individual in this particular area with distinct clothing was confirmed upon police arrival. That individual is seen on the body worn camera acting extremely nervous and pacing back and forth with his hands up as the officers exit their vehicles. [Appellant] then flees before officers can get close to him.

Based on the verified call, the matching description of [Appellant] and his behavior upon the officers’ approach, there was reasonable suspicion to stop [Appellant] for further investigation. [Appellant’s] flight was unprovoked. [Appellant] voluntarily abandoned the weapon during his unprovoked flight.

Suppression Ct. Op., 9/4/24, at 3.

The court specifically explained that Appellant had misplaced his reliance

on Hicks because the officers in the instant case “faced circumstances

involving more than [Appellant] simply possessing a firearm,” and which gave

rise to the officer’s reasonable suspicion that Appellant was engaged in

criminal activity. Id. at 7. We agree.

The record evidence shows that the 911 caller described a man matching

Appellant’s description brandishing a firearm in a way that indicated an

impending confrontation in an area of Philadelphia know by an experienced

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police officer as being an “extremely violent” high-crime area. N.T. at 5. The

evidence also indicated that when Officers James and Taylor arrived at

Appellant’s location, Appellant was pacing back and forth and that, when

instructed to stop moving and show his hands, he fled. Id. at 9-10. The

Commonwealth’s evidence—the 911 call, Appellant’s presence in a high crime

area coupled with his unprovoked flight—provided Officers James and Taylor

with reasonable suspicion to support an investigative detention. D.M., 781

A.2d at 1164.

In sum, we conclude that the record supports the suppression court’s

factual findings and that the legal conclusions drawn from those facts are

correct. The court properly determined that the officers had reasonable

suspicion to stop Appellant for further investigation and that Appellant

voluntarily abandoned a weapon during his unprovoked flight. Appellant is,

thus, not entitled to relief.

Judgment of sentence affirmed.

Date: 6/9/2025

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