Com. v. Smith, D.

Opinion

J-S47022-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

DWAYNE SMITH,

Appellee No. 2186 EDA 2013

Appeal from the Order Entered June 27, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002062-2013

BEFORE: MUNDY, OLSON AND WECHT, JJ.

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 03, 2014

granted a motion to suppress physical evidence filed by Appellee, Dwayne

remand for additional proceedings.

The facts, as summarized by the trial court, are as follows:

On December 27, 2012, at approximately 7:20 P.M., k him to a residence at 4731 Salem Street, in Philadelphia. Officer Apostolou had been a police officer for almost seven years at this time. He was familiar with the area and described it as a violent, high crime neighborhood, with frequent shootings and narcotic sales.

Officer Apostolou, along with three other officers, went to the Salem Street residence to look for a victim of a reported gang-related Molotov cocktail firebomb and shooting that had occurred at 600 Foulkrod Street in J-S47022-14

Philadelphia. The officers arrived at the Salem Street address based upon information Sergeant Cerutti[1] had received. Officer Apostolou did not know what that information was, nor did he personally observe any signs of an individual in distress at the Salem Street property.

Sergeant Cerutti knocked on the door and announced

search warrant for the property or the occupants. An individual named Keith Bennett, whom Sergeant Cerutti identified as the resident of the home, answered the door within approximately ten seconds of the knock. A few seconds after law enforcement explained that they were looking for a victim from the 600 Foulkrod Street incident,

house.

Sergeant Cerutti entered first, followed by Officer Apostolou and two other officers. Upon entering the residence, Officer Apostolou observed approximately ten individuals, an estimated five of which were running out the back of the residence. Officer Apostolou also noticed [Appellee], who was a couple of feet away from him, leaning over and reaching his left hand down toward the bottom of a recliner. [Appellee] lifted his left hand and

an for his safety when, in conjunction with the individuals running out of the house, he saw [Appellee] put his hand in his pocket. After seeing this gesture, Officer Apostolou decided to stop and frisk [Appellee], at which point

Apostolou felt a handful- his experience from hundreds of prior narcotics arrests, he icer Apostolou handcuffed [Appellee], searched the left pocket of his pants, and recovered twenty- containing an off- analysis confirmed that the substance was crack cocaine.

____________________________________________

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Officer Apostolou also recovered $217.00 of United States

Trial Court Opinion, 11/5/2013, at 203 (record citations, brackets and

recovered from the residence, that [weapon was] not subject to the

Id. at 3 n.3.

The Commonwealth charged Appellee with four firearm violations, two

narcotics charges, and possessing an instrument of crime.2 On May 24,

2013, Appellee filed a motion to suppress the narcotics and cash seized from

his person, but not the firearm which was also recovered.3 The trial court

held a suppression hearing on June 13, 2013, wherein Officer Apostolou and

Appellee testified. On June 27, 2013, the trial court granted A

motion. This timely appeal resulted.4 ____________________________________________

2 18 Pa.C.S.A. §§ 6105(a)(prohibited possession of a firearm), 6106(a)(1)(firearms not to be carried without a license), 6106.1(a)(carrying a loaded weapon), 6108 (carrying a firearm on public streets or property in Philadelphia); 35 P.S. §§ 780-113(a)(30)(possession of a controlled substance with intent to deliver) and 780-113(a)(16)(intentional possession of a controlled substance); 18 Pa.C.S.A. § 907 (possession of an instrument of crime). 3

firearm] because it was not his house [and] [i]t was not found on his

and/or lacked a reasonable expectation of privacy. Id. Thus, the firearm is not at issue herein. 4 The Commonwealth filed a notice of appeal on July 29, 2013. Because the 30- appeal was timely filed on Monday, July 29, 2013. See 1 Pa.C.S.A. § 1908 (computation of time). In its notice of appeal, the Commonwealth certified (Footnote Continued Next Page)

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On appeal, the Commonwealth presents the following issue for our

review:

Did the lower court err in suppressing evidence on the ground that there was no reasonable suspicion for a Terry[5] frisk where police responded to a report of a firebomb/shooting victim entering an address in a high crime area, entered with permission, saw a large group of occupants, many of whom fled through the back of the house, and [Appellee], seated on a recliner, made reaching motions toward the floor and toward his pants pocket?

evidence because it evaluated the circumstances in isolation and focused on

factors not p

Id. at 7. The Commonwealth argues that officers entered

Id. at 8. The officers

-

Id. at 10-11. Thus, the

_______________________ (Footnote Continued)

that the suppression order terminated or substantially handicapped the prosecution as required. See Pa.R.A.P. 311(d). Simultaneously with its notice of appeal, the Commonwealth filed a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on November 5, 2013. 5 Terry v. Ohio, 392 U.S. 1 (1968).

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to believe that [Appellee] was armed and dangerous when he reached to the

Id.

at 8. The Commonwealth points

warranted a protective frisk by police pursuant to Terry. Id. at 12-13. The

Commonwealth avers that the trial court erred by focusing on the facts that

Appellee did not flee and that Officer Apostolou did not see an object in

Id. at 14.

Our standard of review is as follows:

When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.

Commonwealth v. Boulware, 876 A.2d 440, 442 (Pa. Super. 2005)

(internal citation omitted).

Regarding protective frisks under Terry, this Court has previously

stated:

It is hornbook law that the Fourth Amendment to the United States Constitution as well as Article I, § 8 of the Pennsylvania Constitution protect citizens from unreasonable searches and seizures. Warrantless searches and seizures (such as occurred in this case) are unreasonable per se, unless conducted pursuant to

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specifically established and well-delineated exceptions to the warrant requirement. One such exception, the Terry

citizen for investigatory purposes if the officer observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot.

Terry further held that when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others the officer may conduct a pat down search to determine whether the person is in fact carrying a weapon. The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.

Commonwealth v. Simmons, 17 A.3d 399, 402-403 (Pa. Super. 2011)

(internal citations omitted).

Our Supreme Court has stated:

The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or the safety of others was in danger. The existence of reasonable suspicion to frisk an individual must be judged in light of the totality of the circumstances confronting the officer.

Commonwealth v. Taylor, 771 A.2d 1261, 1268 1269 (Pa. 2001).

movements, in conjunction with the fact that [the defendant] placed his

hands inside his coat pocket as if he were reaching for something, could lead

[po

Commonwealth v. Wilson, 927 A.2d 279, 284-285 (Pa. Super. 2007).

a person, but rather the nature of those actions. Where a person performs

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an activity that is indicative of an attempt to secrete a weapon, that

movement, regardless of whether it is singular or multiple, can support a

Commonwealth v. Tuggles, 58 A.3d

840, 844 (Pa. Super. 2012). f a suspect engages in hand movements

that police know, based on their experience, are associated with the

secreting of a weapon, those movements will buttress the legitimacy of a

protective weapons search of the location where the hand movements

In Interest of O.J., 958 A.2d 561 (Pa. Super. 2008) (en banc).6

Commonwealth v. Foglia,

____________________________________________

6 Appellee cites to Commonwealth v. Cooper, 994 A.2d 589 (Pa. Super. 2010), appeal denied, 13 A.3d 474 (Pa. 2010) as support for his argument

was armed and dangerous at the time of -7. The facts and circumstances in Cooper, however, are clearly distinguishable from the instant case. In Cooper, police officers were patrolling a neighborhood at 9:00 a.m. because of complaints that people were stealing copper from street dumpsters. The appellant was observed standing next to

officer ordered him to stop and he complied. In looking at the totality of

his pocket in broad daylight gave the officer reason to believe [a]ppellant Id. at 594. In reaching this conclusion, we noted that the incident occurred at 9:00 a.m., there was no testimony that the appellant was in a dangerous neighborhood, the officers simply found the appellant next to a dumpster where he was in no position to retrieve a weapon, and the appellant merely moved toward his pocket but did not actually reach into his pocket. Id. The totality of circumstances in the case sub judice are significantly different.

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979 A.2d 357, 361 (Pa. Super. 2009) (en banc), appeal denied, 990 A.2d

727 (Pa. 2010).

was unlawful and opined as follows:

At the suppression hearing in this case, Officer o articulate a reasonable belief that [Appellee] was armed and dangerous at the time of the frisk. The interaction between Officer Apostolou and [Appellee] took place inside a residence located in a high crime neighborhood after an incident thought to be gang related. At the time of the interaction, however, Officer Apostolou also testified that he was looking for a victim of the crime, not the perpetrator of the crime. Officer Apostolou also testified that he became concerned for his safety when he saw approximately five individuals fleeing, he saw [Appellee] reach his left hand down toward the floor and then shove that hand into his pocket. Officer Apostolou, however, who was just a couple of feet from and, nor did he testify to seeing anything protruding or bulging on

something dangerous. Because Officer Apostolou failed to articulate specific facts giving rise to a reasonable belief that [Appellee] was armed and dangerous at the time of the frisk, the frisk itself was unlawful.

Trial Court Opinion, 11/5/2013, at 4 (citations, quotations, and bracket

omitted).

Upon review of the record, we conclude that the trial court erred as a

matter of law by failing to view the totality of the circumstances as

presented by the Commonwealth. Officer Apostolou testified, without

contradiction, that police were responding to gang-related violence including

a firebombing and shooting. N.T., 6/13/2013, at 8. He characterized the

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Id. at 7. Upon

entering the subject property with consent from the resident, Officer

Id.

at 10. While Officer Apostolou acknowledged that police were looking for a

potential victim of the rep

we went in, due to people running out the back and due to the fact that we

Id. at 27. Appellee,

making a downward motion toward the bottom of the recliner. Id. Later,

upon cross-

actually leaning on the recliner. And his left hand was leaning on the ground

where he Id. at 27. Officer Apostolou did not see a

firearm. Id.

Id. at 11. Officer Aposotlou decided to conduct a

frisk for his safety, because he saw Appellee put his hand in his pocket.7 Id. ____________________________________________

7 Appellee testified on his own behalf. He testified, in contrast to Officer Apostolou, that when a resident of the subject house, Keith, answered the

[Keith] and tackled him down. N.T., 6/13/2013, at 39. He further testified that three police officers came into the residence and swept through the dwelling. Id. Id. Appelle Id. at 41. Police uncovered the firearm and police

(Footnote Continued Next Page)

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Here, it is undisputed that police were in a high-crime area in response

to gang-related violence. Although the police were admittedly looking for

the victim of a violent crime, this did not preclude the possibility that they

might encounter an armed and dangerous individual. Moreover, under the

circumstances, it would not be unreasonable for them to fear for their safety

when investigating. Certainly, a victim of gang-violence could have been

armed or even provoked the altercation in his or her own right. In addition,

the overall chaotic scenario that police entered into, with multiple people

armed and dangerous individuals.

Most importantly, Officer Apostolou testified, unequivocally and

without dispute, that he witnessed Appellee make two separate furtive

movements one toward the bottom of the chair upon which he was

seated;8 the other motion occurred when Appellee placed his left hand in his

pocket. Both locations were potential locations to secrete a weapon. While

_______________________ (Footnote Continued)

Id. The factual findings made by the trial court as announced in open court on June 27, 2013 and as set forth in its 1925(a)

Boulware ssion

-3. However, as indicated above,

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reaso

Taylor, 771 A.2d at 1268 1269. Taking all the evidence together, we

conclude that the Commonwealth presented evidence showing the

hat his safety or the

safety of others was in danger. Thus, Officer Apostolou possessed a

reasonable suspicion to conduct a lawful frisk of Appellee pursuant to Terry.

Hence, we reverse the order granting suppress and remand this matter for

trial.

Order reversed. Remanded for additional proceedings. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/3/2014

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