June 14, 2013
COMMONWEALTH OF PENNSYLVANIA, Appellee
KYLE JAMES, Appellant COMMONWEALTH OF PENNSYLVANI Appellee
KYLE JAMES, Appellant
Appeal from the Judgment of Sentence May 14, 2012, Court of Common Pleas, Philadelphia County, Criminal Division at Nos. CP-51-CR-0007249-2011, CP-51-CR-0007292-2011
BEFORE: DONOHUE, MUNDY and OLSON, JJ.
Kyle James ("James") appeals from the judgment of sentence entered on May 14, 2012 by the Court of Common Pleas, Philadelphia County, following his convictions of possession of a firearm without a license, possession of a firearm on the public streets in Philadelphia, possession of a firearm by a prohibited person, and receiving stolen property. Specifically, James challenges the trial court's denial of his motion to suppress. Upon review, we affirm.
The trial court summarized the facts of the case as follows:
On  June 6th, 2011, Philadelphia Police Officer Mark Davis and his partner, Officer O'Connor, were patrolling in a marked squad car near 18th Street and Reed Street, the area of a recent homicide. Their patrol included the 1300 block of South Colorado Street, which is approximately a block away from 18th and Reed and is known as an area of high frequency of guns and narcotic sales. At
approximately 8:17 p.m., the officers saw [James] standing with two other males on the corner of Reed and South Colorado streets, huddled together. Officer Davis observed [James] showing the other two males something. As they approached to approximately 15 to 20 feet from [James], he made eye contact with Officer Davis and stepped away from the group, placing a black object consistent with a firearm in the front of his waistband and briskly walking north on South Colorado Street. Officer Davis testified that in the five years prior to the night in question, he had conducted 60 to 75 gun arrests in the area, and that the vast majority of those arrests involved guns tucked into waistbands in the manner that [James] tucked the black object into his waistband.
Officer Davis continued in the patrol vehicle while his partner, Officer O'Connor, stepped out of the vehicle to approach [James] and ordered [James] to stop. When [James] saw Officer O'Connor step out of the patrol vehicle, he began running, heading northbound on South Colorado Street, Officer O'Connor gave chase while Officer Davis circled around in the patrol car, eventually cutting [James] off around the block. Officer Davis saw [James] running with the gun in his hand, and then saw him throw it into an empty lot at 1311 Bouvier Street. Officer Davis took [James] into custody and recovered the gun, a Sig Sauer 9mm handgun loaded with thirteen rounds of live ammunition.
Trial Court Opinion, 6/25/12, at 2-3 (record citations omitted).
On September 14, 2011, James filed a motion to suppress the gun, asserting that he was unlawfully seized by the police without probable cause and/or reasonable suspicion in violation of the Pennsylvania and United States Constitutions. The trial court held a hearing on the motion on May 14, 2012, at which Officer Davis provided the testimony recited above.
At the conclusion of the officer's testimony and after arguments by both parties, the trial court denied the motion. Thereafter, the trial court held a stipulated bench trial, at which the Commonwealth presented James' statement to police that he purchased the firearm in question on the street for $400 a few days prior to his arrest; a report indicating that the firearm was tested and determined to be operable; and a certificate of non-licensure. The trial court convicted James of the above-listed crimes and sentenced him to an aggregate term of 54 to 132 months of incarceration.
James filed a timely notice of appeal, and presents one issue for our review: "Did the lower court err when it denied the defense motion to suppress physical evidence, as Philadelphia Police Officers Davis and O'Connor had neither probable cause nor reasonable suspicion to seize  James to conduct a weapons pat-down?" James' Brief at 2.
Our standard of review is as follows:
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. […] 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. 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. Cartagena, 63 A.3d 294, 298 (Pa. Super. 2013) (en banc) (citation omitted).
The purpose of the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution is to protect people from unreasonable searches and seizures. In re: D.M., 566 Pa. 445, 449, 781 A.2d 1161, 1163 (2001). In this Commonwealth, we have adopted the holding of Terry v. Ohio, 392 U.S. 1 (1968), wherein the United States Supreme Court held that police may stop and frisk a person if they have reasonable suspicion that criminal activity is afoot. In re: D.M., 566 Pa. at 449, 781 A.2d at 1163. These encounters with police are commonly known as Terry stops or investigative detentions. "In order to demonstrate reasonable suspicion, the police officer must be able to point to specific and articulable facts and reasonable inferences drawn from those facts in light of the officer's experience." Commonwealth v. Cook, 558 Pa. 50, 57, 735 A.2d 673, 677 (1999).
James asserts that he was detained when Officer O'Connor told him to "stop, " and thus his flight could not be considered as a factor giving rise to reasonable suspicion, and that the remaining facts testified to by Officer Davis were insufficient to justify a finding of reasonable suspicion to conduct a Terry stop. James' Brief at 11-12. Because the police lacked reasonable suspicion to stop him, James argues he "forcibly abandoned" the firearm during his flight, and it should have been suppressed. Id. at 12.
The trial court agreed with James that his flight could not be considered in establishing reasonable suspicion to conduct the Terry stop in question. Trial Court Opinion, 6/25/12, at 3. It found, however, that the facts preceding James' flight were sufficient to establish reasonable suspicion, and that his motion to suppress the firearm was properly denied. Id. at 5. We agree.
"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., 566 Pa. at 449, 781 A.2d at 1163. Furthermore, "reasonable suspicion does not require that the activity in question must be unquestionably criminal before an officer may investigate further. Rather, the test is what it purports to be – it requires a suspicion of criminal conduct that is reasonable based upon the facts of the matter." Commonwealth v. Rogers, 578 Pa. 127, 135, 849 A.2d 1185, 1190 (2004) (citations omitted). Factors relevant to a determination of reasonable suspicion include, inter alia, evasive behavior by the defendant and the defendant's presence in a high-crime area. Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa. Super. 2009) (en banc). This Court has also stated that "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." Id.
The record in the case at bar reflects that the area in which Officer Davis observed James was known to him in his five-and-a-half years as an officer who patrolled that neighborhood daily and to the rest of the police in his district to be a high-crime area "known for firearms." N.T., 5/14/12, at 7-8. Officer Davis had made hundreds of arrests during his career, 50 of which were in that area alone. Id. When he observed James, Officer Davis made eye contact with him, at which James "stepped back" from the group with whom he was associating, placed a black object in his waistband, and "swiftly" walked away. Id. at 13. Although Officer Davis could not see exactly what James placed in his waistband, he believed it was a handgun based on his 60 to 75 firearm-related arrests, in 90 percent of which the perpetrator concealed the firearm in his or her waistband. Id. at 14-15.
James' presence in a high crime area, his hand movement of placing a black object in his waistband, which Officer Davis knew from his experience to be consistent with secreting a weapon, and his swift departure after making eye contact with Officer Davis, all lead us to conclude that the trial court correctly determined that the police had reasonable suspicion, based on specific and articulable facts, to conduct a Terry stop. Therefore, the police lawfully recovered the firearm abandoned by James during his subsequent flight. See Commonwealth v. Cook, 558 Pa. 50, 55, 735 A.2d 673, 675-76 (1999) (police must have "demonstrated reasonable suspicion" sufficient to stop the defendant to lawfully recover contraband abandoned by the defendant during flight). As such, no relief is due.
Judgment of sentence affirmed.
Mundy, J. concurs in the result.