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Commonwealth of Pennsylanvia v. Cecil Howard Foreman

October 17, 2012

COMMONWEALTH OF PENNSYLANVIA, APPELLEE
v.
CECIL HOWARD FOREMAN, APPELLANT



Appeal from the Order November 21, 2011 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-0006964-2006

The opinion of the court was delivered by: Stevens, P.J.

J-S49011-12

BEFORE: STEVENS, P.J., BENDER, J., and WECHT, J.

OPINION BY STEVENS, P.J.

This is an appeal from the order entered in the Court of Common Pleas of Allegheny County denying Appellant's petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46, following an evidentiary hearing. Appellant contends he is entitled to relief under 42 Pa.C.S.A. § 9543(a)(2)(vi) on the basis of exculpatory after-discovered evidence, and therefore, the PCRA court erred in denying his PCRA petition.

We affirm.

On direct appeal, this Court previously set forth, in relevant part, the following factual and procedural history:

The evidence adduced at Appellant's February 6, 2007 suppression hearing may be summarized as follows.*fn1 On April 11, 2006, Detective Kenneth Simon of the Narcotics Division of the Pittsburgh Police was working a drug suppression detail with other officers in the Zone 5 section of Pittsburgh. N.T. 2/6/07 at 4-5. At approximately 10:30 p.m., the three detectives were traveling in an unmarked car down Columbo Street, a residential neighborhood with no open businesses, bars, or clubs. Id. at 7- 8. The Columbo Street neighborhood is a known drug-trafficking area where several shootings had recently occurred. Id. As the officers drove down the street, Detective Simon observed seven or eight males standing around a car, one of whom was dressed all in red, including a red hat, red shirt, and red sweatpants. Id. at 6-7, 14, and 16-17. Based on his experience as a police officer, Detective Simon stated that red clothing indicated gang affiliation and that gang members 'carry guns and sell drugs.' Id. at 7. Detective Simon noticed that the individual wearing red clothing-later identified as Appellant- adjusted his waistband like he was carrying a gun. Id. at 6-7, 14, and 16-17.

According to Detective Simon, the detectives determined to speak with the men as a group and 'to see what they were doing, if they had any lawful reason to be hanging around that particular vehicle.' Id. at 8 and 18-19. As the detectives pulled within approximately 25 feet of the men, Appellant 'turned and looked at [the detectives'] car and he turned back around and kind of tucked like he was doing something with his waistband a second time.' Id. at 8 and 22.

When the detectives reached the area where the men were standing, Detective Simon and the other officers exited the vehicle. Id. at 9. Because he was not in uniform, Detective Simon produced his badge and announced, 'Pittsburgh Police' as he exited the vehicle. Id. at 8-9. In response to cross-examination by Appellant's counsel, Detective Simon testified that, after he exited the vehicle, he instructed the group of men to stop. Id. at 20. Detective Simon then made eye contact with Appellant and, as he approached the group, observed Appellant lean towards him, turn around, and reach for the waistband a third time. Id. at 9, 17, and 20. At this point, Detective Simon instructed Appellant to move his hands away from his waistband because he believed Appellant was reaching for a gun. Id. at 10. Appellant refused to move his hands as Detective Simon had instructed; therefore, Detective Simon pushed Appellant's hands away from the waistband. Id. at 10-11 and 21. Detective Simon then conducted a pat-down search of Appellant's sweatpants. Id. at 10. During this search, Detective Simon shook the waistband of Appellant's sweatpants and a gun fell to the ground. Id. The gun that fell from Appellant's waistband was cocked and ready to fire. Id. at 11 and 13. Detective Simon believed that Appellant may have cocked the gun during one of the occasions on which he had reached for his waistband. Id. at 11.

As Detective Simon conducted his search of Appellant, a brief struggle occurred during which Detective Simon attempted to put his forearm into the back of Appellant's neck so as to push Appellant against a car and prevent him from retrieving the gun. Id. at 11. In an attempt to flee, Appellant punched another officer who confronted him as he spun away from Detective Simon. Id. at 11.

At Appellant's suppression hearing, Detective Simon, a 14- year veteran on the police force, testified that he had arrested numerous individuals with firearms in the Columbo Street neighborhood. Id. at 10. In his experience, Detective Simon testified that a waistband was 'the number one location that people put their guns in order to access them.' Id. at 9.

Detective Simon also stated that, in a known drug-trafficking location, an individual reaching for a waistband 'poses the biggest threat to [him] as a narcotics officer.' Id. During the incident in question, Detective Simon believed that Appellant was reaching for a gun ...


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