Commonwealth v. Foglia

979 A.2d 357, 2009 Pa. Super. 138, 2009 Pa. Super. LEXIS 2223, 2009 WL 2157276

• Court: Superior Court of Pennsylvania
• Decided: July 21, 2009
• Docket: 2079 EDA 2007
• Status: Published

Opinions

OPINION BY

BOWES, J.:

¶ 1 On appeal, Stephen Foglia challenges the constitutionality of a police interdiction that led to the discovery of his possession of an unlicensed firearm. We affirm.

¶ 2 On June 24, 2006, Appellant was arrested for carrying an unlicensed firearm and carrying a firearm on a public street in Philadelphia. Appellant subsequently filed a motion to suppress the firearm as resulting from an illegal police detention. A hearing was held on that motion on December 18, 2006, and Philadelphia Police Officer Cyprian Scott, a seventeen-year veteran of the police force assigned to the SWAT team for thirteen of those years, testified as follows. At approximately 2:40 a.m. on June 24, 2006, he and his partner, Officer Inocencio Amaro, were in uniform patrolling the 25th district, a “high crime” area due to the “high flow of narcotics and weapons.” N.T. Trial (Waiver), 12/18/06, at 5, 6.

¶ 3 Officer Scott received a radio broadcast emanating from an anonymous source that there was a man “standing on the corner of ‘A’ and Westmoreland dressed in dark clothing, black clothing, carrying a firearm.” Id. at 6. In less than “a minute and a half,” the two police officers arrived “on the corner” referenced in the broadcast. Id. at 7. At the noted location, Officer Scott observed “two males,” Appellant, who was clothed entirely in black, and one other man, who was wearing a dark gray suit. Id. at 8.

¶ 4 In order to avoid detection, Officers Scott and Amaro had entered “A” Street with their lights extinguished. When Appellant and his companion saw the officers, they “began walking away” from the cruiser heading east on Westmoreland. Id. Officer Scott continued to watch Appellant, who “looked back several times” and “kept walking” in the opposite direction of the police. Id. at 9.

¶ 5 The two officers stopped their vehicle and exited it. At that point, Appellant “grabbed around his waist area” and “sat on some steps behind two females.” Id. Officer Scott was particularly wary of the fact that Appellant touched his waistband because the call indicated that there was an armed man and “people usually [are] carrying weapons in their waistband.” Id. at 9. Since he was investigating a possible weapons offense, Officer Scott was making “sure to pay particular attention” to the “hands” and “waistband.” Id. at 9-10.

¶ 6 At that point, Officer Scott ordered Appellant to stand, informed him that he was investigating a “male with a gun that fit his description,” and immediately patted down Appellant. Id. at 10. Officer Scott felt the handle of a gun in Appellant’s waistband and retrieved the weapon. In response to questioning, Appellant admitted that he did not have a permit to carry the firearm, and he was arrested.

¶ 7 The trial court denied the motion to suppress and after a colloquy, Appellant agreed to immediately proceed to a nonju-ry trial. Officer Scott then testified that he recovered a loaded .40-caliber Glock pistol in Appellant’s waistband. A stipulation was entered that the gun was tested and found to be operable. The Commonwealth then admitted into evidence a certificate of non-licensure indicating that Appellant did not have a license to carry a firearm. Appellant was adjudged guilty of carrying an unlicensed firearm, 18 Pa.C.S. § 6106, and carrying a firearm on public property in Philadelphia, 18 Pa.C.S. § 6108. The court ordered a presentence report.

¶ 8 Prior to sentencing, Appellant filed a petition for extraordinary relief charging suppression counsel with ineffectiveness for failing to conduct adequate cross-examination of Officer Scott. On May 81, 2007, the court held a hearing on that petition. Appellant, who was represented by new counsel, presented suppression counsel as a witness. Suppression counsel testified that he believed that he was ineffective for failing to sufficiently cross-examine Officer Scott and that adequate questioning of Officer Scott would have revealed that he did not see Appellant grab his waistband until after the stop had occurred. N.T. Motion and Sentencing, 5/31/07, at 6. Suppression counsel relied upon the contents of the police report detailing Appellant’s arrest.

¶ 9 The trial court denied relief on the basis that trial counsel had a reasonable strategy for pursuing the suppression issue in the manner that he did and also on the ground that the error or omission would not have resulted in a different outcome at the suppression hearing. Id. at 35. The ease immediately proceeded to sentencing, and the court imposed a guideline sentence of eleven and one-half to twenty-three months imprisonment with a consecutive two-year probationary term and noted Appellant’s eligibility for work release. This timely appeal followed.¹

¶ 10 We set forth our standard of review:

When reviewing the propriety of a suppression order, an appellate court is required to determine whether the record supports the suppression court’s factual findings and whether the inferences and legal conclusions drawn by the suppression court from those findings are appropriate. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980). Where the record supports the factual findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 842 (2003). However, where the appeal of the determination of the suppression court turns on allegations of legal error, “the suppression court’s conclusions of law are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts.” Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879, 881 (1998).

Commonwealth v. Kemp, 961 A.2d 1247, 1252-1253 (Pa.Super.2008) (en banc) (quoting Commonwealth v. Mistier, 590 Pa. 390, 912 A.2d 1265, 1269-70 (2006)).

¶ 11 In this case, Appellant assails the suppression court’s conclusion that Officer Scott had reasonable suspicion that Appellant was engaging in the criminal activity of carrying a firearm and that Officer Scott was therefore justified in conducting a patdown search for weapons.

¶ 12 It is settled that:

A police officer may detain an individual in order to conduct an investigation if that officer reasonably suspects that the individual is engaging in criminal conduct. Commonwealth v. Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999). “This standard, less stringent than probable cause, is commonly known as reasonable suspicion.” Id. In order to determine whether the police officer had reasonable suspicion, the totality of the circumstances must be considered. In re D.M., 566 Pa. 445, 781 A.2d 1161, 1163 (2001). In making this determination, we must give “due weight to the specific reasonable inferences the police officer is entitled to draw from the facts in light of his experience.” Cook, 735 A.2d at 676 (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, “even a combination of innocent facts, when taken together, may warrant further investigation by the police officer.” Cook, 735 A.2d at 676.

Kemp, supra at 1255 (quoting Commonwealth v. Rogers, 578 Pa. 127, 849 A.2d 1185, 1189 (2004)).

¶ 13 Police cannot initiate a detention based solely upon an anonymous tip that a person matching the defendant’s description in a specified location is carrying a gun. In Interest of D.M., 566 Pa. 445, 781 A.2d 1161 (2001). However, if the person described by the tipster engages in other suspicious behavior, such as flight, reasonable suspicion justifying an investigatory detention is present. Id. (applying Illinois v. Wardlow, 528 U.S. 119, 120 , 145 L.Ed.2d 570 (2000)).² Evasive behavior also is relevant in the reasonable-suspicion mix. Wardlow, supra; accord Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903, 908 (2000) (“nervous, evasive behavior such as flight is a pertinent factor in determining reasonable suspicion”). Moreover, whether the defendant was located in a high crime area similarly supports the existence of reasonable suspicion. Wardlow, supra. Finally, if 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 occurred. In Interest of O.J., 958 A.2d 561 (Pa.Super.2008) (en banc).

¶ 14 In this case, a seventeen-year veteran of the police force and member of the SWAT team was patrolling in an area that had a high volume of drugs and weapons. He received an anonymous tip that a man dressed in black possessed a weapon at a given location. Upon immediately proceeding to that site, the police officer observed two men, one of whom was attired entirely in black. That man began to engage in evasive behavior by continually looking back at police and walking away from them. He touched his waist area and sat down on a stoop behind some females. The police officer was aware, based upon his experience with armed suspects, that weapons are often concealed in a person’s waistband. Thus, Officer Scott had more than ample facts at his disposal to believe that Appellant was armed with a gun.

¶ 15 Since the criminal activity in question involved possession of a firearm and since Appellant’s act of patting his waistband bolstered Officer Scott’s reasonable belief that Appellant actually had a gun in his pants, Officer Scott was constitutionally permitted to conduct a patdown search of Appellant’s waistband. In the Interest of O.J., supra. The suppression court’s factual findings are supported by the record, and its legal conclusions are unassailable; hence, we must affirm.

¶ 16 Appellant also maintains that Officer Scott was not permitted to rely upon the fact that Appellant grabbed his waistband in assessing whether reasonable suspicion existed because Officer Scott indicated at the suppression hearing that he intended to stop Appellant before he observed that behavior. See N.T. Trial (Waiver), 12/18/06, at 15. However, reasonable suspicion is based upon an objective standard, not subjective intent. As the United States Supreme Court noted in Maryland v. Macon, 472 U.S. 463, 470-471, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985), “Whether a Fourth Amendment violation has occurred ‘turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time,’ Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 1722, 56 L.Ed.2d 168 (1978), and not on the officer’s actual state of mind at the time the challenged action was taken. Id. at 138, 139, n. 13, 98 S.Ct. at 1724, n. 13.”

¶ 17 In this case, Officer Scott was properly discharging his duties when he was investigating the veracity of the anonymous tip. Appellant was wearing black clothing and was located on the corner identified by that source. Officer Scott was patrolling an area known for drugs and guns. Upon viewing the police officer, Appellant engaged in evasive behavior. Finally, Appellant displayed hand movements consistent with custody of a weapon in his waistband, where such items are commonly hidden. As this latter action occurred before the patdown, it can be used to support the officer’s actions.

¶ 18 Finally, Appellant argues that the trial court incorrectly concluded that his suppression counsel was not ineffective.³ He maintains that suppression counsel was ineffective for failing to cross-examine Officer Scott with a statement attributed to him in a police report that was drafted by Detective James Perfidio. Appellant claims that in the report, Officer Scott admitted that Appellant did not reach for his waistband until after police stopped him. The police report reads as follows:

FACTS OF THE CASE:

On 6/21/06 at approx. 2:40AM P/O Amaro # 8346 and P/O Scott # 6689 were working as S-102 when they responded to a person with a gun call at A and Westmoreland St. Upon arrival the officers received flash information of a male wearing all black clothing. The officers observed two males, one wearing all black clothing (def) and a second male wearing a dark grey dickie outfit. Both males were observed walking eastbound on Westmoreland St. to Ella Street then northbound on Ella Street. Both males were stopped. The officers observed the defendant reaching towards the front of his pants. The officers conducted a pat down on the males. Recovered from the defendant was a Glock model # 23 semi auto pistol serial number HVW251 loaded with twelve (12) rounds in the magazine and one (1) round in the chamber. The officers placed the defendant in custody and transported him to EDD. The male could not produce a valid permit to carry. The weapon was placed on property receipt number 2662868.

The assigned conducted an NCIC/PCIC check for a permit to carry/negative results.

Police Department Arrest Report at 1.

¶ 19 This report obviously was a cursory outline of the facts pertinent to the interdiction and does not even list the events in chronological order. This latter conclusion is reinforced by the fact that the report indicates that the flash broadcast occurred at two different time periods, before the police left for A and Westmoreland Streets and after they arrived at that location. The report does not describe Appellant as continually looking back at the two officers and does not state that he sat down behind two women.

¶ 20 Furthermore, the report indicates that Appellant was stopped, reached for his waistband, and then was searched. Officer Scott testified at the suppression hearing that he was approaching Appellant when he saw Appellant reach for his waistband just prior to sitting on the steps; once he reached Appellant, he conducted the patdown. Analyzed properly, the report appears to be nothing more than an indication that the officer was under the impression that he was engaging in a “stop” while he was traveling toward Appellant. However, police may approach a person and such action does not constitute a seizure under the Constitution. In the Interest of D.M., supra. Rather, a constitutional seizure does not occur until police actually effectuate the stop. Id. The characterization of Officer Scott’s approach of Appellant as a “stop” is not binding on this Court’s constitutional analysis. Thus, we concur with the trial court’s conclusion that suppression counsel was not ineffective for failing to utilize the contents of the police report for impeachment purposes.

¶ 21 Judgment of sentence affirmed.

¶ 22 President Judge FORD ELLIOTT Concurs in the Result.

¶ 23 Judge DONOHUE files a Dissenting Opinion.

1 . A panel of this Court, with this author dissenting, initially vacated Appellant’s sentence. We subsequently granted the Commonwealth en banc review of the panel decision.

2 . In the present case, Appellant relies upon Commonwealth v. Lynch, 773 A.2d 1240 (Pa.Super.2001), which was overruled by In the Interest of D.M.

3 . Since this issue of ineffectiveness was developed at an evidentiary hearing and addressed by the trial court, it can be reviewed in this direct appeal. Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003); see also Commonwealth v. Moore, 594 Pa. 619, 937 A.2d 1062 (2007).