J-S44041-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NEIL WILLIAMS : : Appellant : No. 441 EDA 2024
Appeal from the Judgment of Sentence Entered September 29, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002390-2023
BEFORE: NICHOLS, J., MURRAY, J., and LANE, J.
MEMORANDUM BY LANE, J.: FILED APRIL 15, 2025
Neil Williams (“Williams”) appeals from the judgment of sentence
imposed following his conviction for prohibited possession of a firearm. 1 He
challenges the denial of his motion to suppress. We affirm.
The Commonwealth elicited the following testimony at the suppression
hearing. At approximately 9:30 a.m. on February 18, 2023, Sergeant Luke
Lesko of the City of Philadelphia Police received a radio dispatch for a reported
robbery in the 4300 block of North 8th Street, a location known for “[a] lot of
violent crime, robberies, shootings, [and] carjackings[.]” N.T., 7/20/23, at 9-
10. The report was for a robbery “at the corner store at 8th and Bristol,” and
described the actor as a “[B]lack male, black jacket, blue hoodie and jeans.”
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1 See 18 Pa.C.S.A. § 6105(a). Williams was prohibited from possessing a firearm due to a prior conviction for aggravated assault. See N.T., 7/20/23, at 49 (stipulation to prior conviction). J-S44041-24
Id. at 11, 22. Sergeant Lesko, who was alone, was driving a marked patrol
car near the location and arrived within thirty seconds. He observed Williams,
who “matched the description for the radio call for the robbery,” standing next
to a parked vehicle which was occupied by a female driver on the corner of
8th and Bristol. Id. at 11, 13. Williams was standing approximately twenty
feet from the store, and was speaking to the female driver through the
passenger door, which was open. Id.at 25. The officer stopped his vehicle
and approached Williams on foot because he matched the description of the
individual identified in the radio call.2 Id. As he approached, Sergeant Lesko
stated to Williams “hey, hey.” Id. at 27. In response, Williams “immediately
began to turn away” from the officer and “was blading his body at a certain
angle . . . grabbing the right side of his body, like his waist area.” Id. at 13.
Sergeant Lesko noticed that Williams was “kind of guarding his right side, his
right waistband area.” Id. at 27. When Williams started to walk away,
Sergeant Lesko said “stop.” Id. at 27, 29. At that point, Williams took off
running. Id. at 29. Sergeant Lesko requested backup and pursued on foot,
losing sight of Williams after approximately two and one-half blocks. Other
officers quickly arrived in the vicinity, chased Williams to an alley, and
observed him throw a firearm to the ground.
2 The trial court noted that Sergeant Lesko’s body camera footage from the
encounter showed that “[Williams’] clothing does match the flash description exactly.” N.T., 7/20/23, at 39.
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The trial court denied suppression following the presentation of the
foregoing testimony. The trial court determined the statement of “hey, hey”
by Sergeant Lesko was a mere encounter with law enforcement because it
“was at most a greeting by the officer to catch [Williams’] attention[,] initiating
an informal interaction with a citizen.” Trial Court Opinion, 4/25/24, at 6-7.
The trial court further determined that an investigative detention occurred
when Sergeant Lesko ordered Williams to stop. See id. at 7. However, the
trial court found that the detention was supported by reasonable suspicion
that criminal activity was afoot because Williams matched the radio flash and
“continued to blade his body holding his waist then fled the location, giving
further rise to reasonable suspicion (unprovoked flight in a high crime area).”
Id.
Following the denial of suppression, Williams proceeded to a stipulated
non-jury trial and the trial court found him guilty of the sole count of prohibited
possession of a firearm. The trial court sentenced Williams on September 29,
2023, to six and one-half to thirteen years of incarceration. Williams filed a
motion to reconsider on October 9, 2023. On February 2, 2024, Williams filed
a premature notice of appeal.3 Both Williams and the trial court complied with
Pa.R.A.P. 1925. ____________________________________________
3 The trial court subsequently entered an order on April 19, 2024, denying Williams’ post-sentence motion. We treat the notice of appeal as timely filed from that order. See Commonwealth v. Enix, 192 A.3d 78, 79 n.1 (Pa. Super. 2018) (holding that “[i]n accord with Pa.R.A.P. 905(a)(5), we will treat the appeal as filed on the day after the trial court issued the order disposing of [the] post-sentence motion and proceed with our review”).
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Williams raises the following issues for our review:
1. Whether the trial court abused its discretion in denying [Williams’] pre-trial motion to suppress physical evidence in finding there was reasonable suspicion and/or probable cause to stop, detain, arrest, and subsequently search [Williams.]
2. Whether the trial court erred in denying [Williams’] pre-trial motion to suppress physical evidence where the firearm recovered by law enforcement was a product of forced abandonment after the police initiated a stop of [Williams] in the absence of reasonable suspicion and/or probable cause and thereby unlawfully provoked [Williams’] flight[.]
Williams’ Brief at 3 (unnecessary capitalization omitted).
Our standard of review of a suppression ruling is well-settled.
We must determine whether the factual findings of the suppression court are supported by the record, and if there is support in the record, we are bound by the facts and may reverse only if the suppression court’s legal conclusions from the facts are in error. Where, as here, the defendant is appealing the ruling of the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted. It is within the suppression court’s sole province as factfinder to pass on the credibility of witnesses and the weight to be given to their testimony. The suppression court is free to believe all, some or none of the evidence presented at the suppression hearing.
Commonwealth v. Goldman, 252 A.3d 668, 677 (Pa. Super. 2021)
(citations and quotation marks omitted).
Williams’ first issue challenges the lawfulness of the investigative
detention. Williams argues that the officer violated his rights under both
Article I, Section 8 of our constitution as well as the Fourth Amendment to the
United States Constitution. In Terry v. Ohio, 392 U.S. 1 (1968), the High
Court “recognized an exception to the requirement that Fourth Amendment
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seizures of persons must be based on probable cause.” Dunaway v. New
York, 442 U.S. 200, 208–09 (1979). The Terry decision involved “a brief,
on-the-spot stop on the street” for suspected criminal behavior, and the Court
“balanced the limited violation of individual privacy involved against the
opposing interests in crime prevention and detection and in the police officer’s
safety.” Id. at 209. The Court authorized detainment upon “reasonable
suspicion that criminal activity is afoot. In order to determine whether the
police had a reasonable suspicion, the totality of the circumstances—the whole
picture—must be considered.” In re D.M., 781 A.2d 1161, 1163 (Pa. 2001).
The present case involves a common variation of the “on-the-spot stop
on the street” scenario analyzed in Terry: an anonymous tip to the police
that a crime has occurred. In such cases, the tip itself does not permit a
detention under Terry because the suspicion of criminal activity arises “not
from any observations of [the police] but solely from a call made from an
unknown location by an unknown caller.” Florida v. J.L., 529 U.S. 266, 270
(2000). In J.L., an “anonymous caller reported . . . that a young [B]lack male
standing at a particular bus stop and wearing a plaid shirt was carrying a gun.”
Id. at 268. Officers proceeded to the location and saw J.L., who was wearing
a plaid shirt, standing with two other young males. One officer detained J.L.
and frisked him, seizing a gun in the process.
The High Court held that J.L.’s Fourth Amendment rights had been
violated. The Court explained that “the officers’ suspicion that J.L. was
carrying a weapon arose not from any observations of their own but solely
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from a call made from an unknown location by an unknown caller.” Id. at
270. The tip “lacked the moderate indicia of reliability present” in other cases
involving anonymous tips, because the tip “provided no predictive information
and therefore left the police without means to test the informant’s knowledge
or credibility.” Id. at 271. The Court rejected the argument that the tipster’s
accurate description of an individual was sufficient. Id. (observing “[t]here
really was a young [B]lack male wearing a plaid shirt at the bus stop”). To
detain J.L., the tip had to “be reliable in its assertion of illegality, not just in
its tendency to identify a determinate person.” Id. at 272.
With these principles in mind, we address Williams’ first claim, which is
that Sergeant Lesko failed to sufficiently articulate a basis to conclude that
criminal activity was afoot.4 The trial court determined that an investigative
detention occurred when Sergeant Lesko ordered Williams to “stop.” Trial
Court Opinion, 4/25/24, at 7. The parties agree with this conclusion. 5 See
Williams’ Brief at 5; see also Commonwealth’s Brief at 9. Where the parties
disagree is the significance of Williams’ evasive behavior preceding that
4 We largely discuss federal precedents as “Pennsylvania courts have consistently followed Terry in stop-and-frisk cases, including those in which the appellants allege protections pursuant to Article I, § 8 of the Pennsylvania Constitution.” In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). 5 The Commonwealth notes, however, that “the use of the word ‘stop’ does not necessarily trigger a seizure.” Commonwealth’s Brief at 9 n.2 (citing Commonwealth v. Newsome, 170 A.3d 1151, 1156 (Pa. Super. 2017)). The Commonwealth does not argue that Williams was not seized, as it maintains “there was reasonable suspicion” to justify the detainment. Id.
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detention and whether the tip was sufficiently corroborated by the attendant
circumstances.
Williams views this case as a pure anonymous tipster case. While his
brief does not cite J.L., he discusses cases applying its holding, see
Commonwealth v. Hayward, 756 A.2d 23, 32 (Pa. Super. 2000), and
submits that the same logic applies here. Williams argues that “[t]he flash
information from the anonymous tip relayed to Sergeant Lesko from police
radio lacked a modicum of independent corroboration or verification.”
Williams’ Brief at 7. He also cites Commonwealth v. Hawkins, 692 A.2d
1068 (Pa. 1997) (OAJC), which also involved an allegation that an individual
was carrying a firearm. In that case, “a Philadelphia police officer responded
to a radio call that there was a man with a gun at Sydenham and York Streets.”
Id. at 1069. The tipster supplied a description of the individual’s clothing,
which Hawkins matched. On that basis, the officer stopped and frisked
Hawkins, even though “he did not know the source of the information
contained in the radio call.” Id. Our Supreme Court reversed, explaining that
“the fact that a suspect resembles the anonymous caller’s description does
not corroborate allegations of criminal conduct, for anyone can describe a
person who is standing in a particular location at the time of the anonymous
call.” Id. at 1070. Williams submits that the same is true here as the
suppression hearing “was utterly void of any testimony to investigate the
veracity of the flash information relied upon by Sergeant Lesko” and
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accordingly the record fails “to establish the requisite reasonable suspicion to
stop and detain” him. Williams’ Brief at 7.
We agree with the trial court’s legal conclusion that the totality of the
circumstances justified the detention. Sergeant Lesko observed Williams
standing approximately twenty feet from the store that had reportedly just
been robbed, and Williams matched the description of the individual identified
in the radio call. The nature of the tip, which involved an in-progress robbery,
combined with the short timeframe between the tip and police response and
Williams’ evasive behavior in response to the police presence, authorized the
detainment.
Beginning with the nature of the tip, J.L. and Hawkins both involved a
tip of a man illegally carrying a firearm. As our Supreme Court held in
Commonwealth v. Hicks, 208 A.3d 916, 937 (Pa. 2019), “there simply is no
justification for the conclusion that the mere possession of a firearm, where it
lawfully may be carried, is alone suggestive of criminal activity.” The J.L. and
Hawkins decisions address a case where the purportedly illegal act is ongoing
and poses no immediate threat to anyone. Here, the tip involved a store
robbery that, by its nature, is ephemeral and the culprit is highly motivated
to flee the scene.
Along these lines, “[i]n evaluating the validity of an officer’s
investigative or protective conduct under Terry, the touchstone of our
analysis is always the reasonableness in all circumstances of the particular
governmental intrusion of a citizen’s personal security.” Commonwealth v.
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Muhammad, 289 A.3d 1078, 1089 (Pa. Super. 2023). J.L. and Hawkins
held that it is constitutionally unreasonable to detain an individual for
investigatory purposes based on an uncorroborated anonymous tip that an
individual is illegally carrying a firearm. A tip that a person illegally possesses
a firearm is amenable to corroboration in a way that a reported store robbery
is not, at least in a case like this one where the described suspect has left the
store’s premises by the time the police arrive. Furthermore, a claim that a
person is carrying a concealed firearm raises the question of how the tipster
would know. In contrast, a store robbery is committed in the open, lending
credence to the notion that the tipster saw what he or she claimed. This point
is illustrated by Navarette v. California, 572 U.S. 393, 395 (2014), where a
dispatcher relayed to officers a tip that a vehicle ran the reporting party off
the road about five minutes ago. The tip described the vehicle and gave its
license plate. The Court determined that the tip was sufficiently reliable to
credit, distinguishing it from the “bare-bones tip that a young black male in a
plaid shirt standing at a bus stop was carrying a gun” in J.L. Id. at 398. The
Court stated the tipster in J.L. “did not explain how he knew about the gun[.]”
Id. Conversely, the tip in Navarette “was sufficiently reliable to credit the
allegation” that the offending vehicle ran the caller off the roadway. Id. “By
reporting that she had been run off the road by a specific vehicle—a silver
Ford F–150 pickup, license plate 8D94925—the caller necessarily claimed
eyewitness knowledge of the alleged dangerous driving. That basis of
knowledge lends significant support to the tip’s reliability.” Id. at 399.
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Similarly, by identifying a specific store being robbed, the tipster in the instant
case implicitly claimed eyewitness knowledge of the crime.
Moreover, when Sergeant Lesko arrived, approximately thirty seconds
had elapsed between the flash report and his arrival, and a man matching the
suspect’s description was standing approximately twenty feet from the store.
A heightened need to protect the public from a potentially dangerous felon
may call for a different balancing of privacy rights due to exigency, as reflected
in the following passage from J.L.:
The facts of this case do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability. We do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk.
J.L., 529 U.S. at 273–74.
We do not suggest that the present circumstances are equivalent to a
tip of a person carrying a bomb. But a fresh tip of a robbery poses a far more
pressing need for immediate police action than the bare tip of an illegal
possession of a firearm. Robbery is by its nature a violent crime in a way that
illegally possessing a firearm is not. Firearms can enable dangerous behavior
in the future; a reported robber is a threat to public safety based on actual,
not theoretical, behavior.
We acknowledge Williams’ counterargument, which is that the officer
was not required to detain Williams to see if the tip had something to it.
Williams’ Brief at 14 (arguing that Sergeant Lesko “failed to observe [Williams]
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to conduct his own investigation in an effort [to] buttress the constitutionally
required reasonable suspicion prior to the attempted seizure of [Williams]”).
But, again, the ultimate question is one of reasonableness, and “a case-by-
case approach is hardly unique within our Fourth Amendment jurisprudence.
Numerous police actions are judged based on fact-intensive, totality of the
circumstances analyses rather than according to categorical rules, including in
situations that are more likely to require police officers to make difficult split-
second judgments.” Missouri v. McNeely, 569 U.S. 141, 158 (2013).
“Terry accepts the risk that officers may stop innocent people,” and a Terry
stop “simply allow[s] the officer to briefly investigate further. If the officer
does not learn facts rising to the level of probable cause, the individual must
be allowed to go on his way.” Illinois v. Wardlow, 528 U.S. 119, 126
(2000).
Finally, we agree that the evasive conduct in a high-crime area is a
pertinent consideration. In Wardlow, the United States Supreme Court held
that “nervous, evasive behavior is a pertinent factor in determining reasonable
suspicion” and that “flight—wherever it occurs—is the consummate act of
evasion: It is not necessarily indicative of wrongdoing, but it is certainly
suggestive of such.” Id. at 124. The trial court credited Sergeant Lesko’s
account that Williams “began to walk away” after Sergeant Lesko initially
approached and before saying “stop.” Trial Court Opinion, 4/25/24, at 7. The
court determined that Williams “continued to blade his body holding his waist
then fled the location, also giving further rise to reasonable suspicion
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(unprovoked flight in a high crime area).” Id. We may not consider Williams’
flight in our analysis because that flight occurred after he was detained.
“[T]he police must have reasonable suspicion at the moment of detention;
information developed after a police-citizen encounter moves from consensual
to coercive cannot be used to justify the detention.” Mackey, 177 A.3d at
228. However, as the trial court found, Williams “bladed” his body away from
Sergeant Lesko as an “action[] in response to the officer’s greeting[.]” Trial
Court Opinion, 4/25/24, at 6. Our Supreme Court has defined “blading” as a
suspect’s “attempt to shield parts of his or her body or clothing from a police
officer during a stop,” which is a factor to consider “in determining whether
there is reasonable suspicion that the suspect is armed and dangerous.”
Interest of T.W., 261 A.3d 409, 424 n.6 (Pa. 2021). While we are not
addressing a suspect’s actions during a stop so as to authorize a frisk for
weapons, the point remains that blading one’s body is an evasive action and
is properly considered in our fact-intensive inquiry. See also
Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa. Super. 2009) (en banc)
(holding that seizure was justified; officer, after receiving anonymous tip
describing man dressed in black possessing a gun in high-crime area,
observed man engage in evasive behavior by continually looking back at
police, walking away, and touching waistband area before sitting on stoop).
In sum, based on the combination of the nature of the tip, the short
time frame between tip and police response, the fact that Williams matched
exactly the description of the individual in the radio flash, Williams’ location
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merely twenty feet from the store which had been reportedly robbed thirty
seconds previously, and his evasive behavior towards an officer in a high-
crime area, we conclude that the detention was constitutionally reasonable.
We now address Williams’ second issue — that the trial court erred in
not suppressing the recovered firearm under the theory of forced
abandonment. The firearm was recovered by another officer after Sergeant
Lesko radioed for backup while pursuing Williams. N.T., 7/20/23, at 48
(stipulation that “Officer Abreu observed [Williams] throw a black handgun to
the ground”). Williams’ invocation of Article I, Section 8 is significant as “the
principle of ‘forced abandonment’ is not recognized under the Fourth
Amendment, although it is under Article 1, Section 8.” Commonwealth v.
Jones, 978 A.2d 1000, 1005 n.6 (Pa. Super. 2009) (citation omitted).
Nevertheless, having concluded that Sergeant Lesko lawfully detained
Williams, we further conclude that there was no unlawful pursuit. Hence, the
gun was admissible. Commonwealth v. James, __ A.3d __, 2025 WL
615184 (Pa. Super. Feb. 26, 2025) (holding that “because we conclude the
encounter remained a lawful investigative detention, for which [the o]fficer .
. . possessed reasonable suspicion, we hold suppression under the theory of
forced abandonment was improper”). As the suppression court’s rulings are
supported by the record and are free from legal error, we affirm Williams’
judgment of sentence.
Judgment of sentence affirmed.
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Date: 4/15/2025
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