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Commonwealth v. Newsome

Superior Court of Pennsylvania

September 7, 2017


         Appeal from the Order, March 21, 2016, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0010217-2015



          FORD ELLIOTT, P.J.E.

         The Commonwealth appeals[1] from the March 21, 2016 order granting the omnibus pre-trial suppression motion filed by appellee, Naim Newsome. After careful review, we reverse the suppression order and remand for proceedings consistent with this opinion.

         The relevant facts and procedural history of this case, as gleaned from the certified record, are as follows. On the evening of September 22, 2015, Lieutenant Robert Brockenbrough, a 23-year veteran of the Philadelphia Police Department, responded to an anonymous radio call that a group of five to seven males was gathered outside the 2000 block of Croskey Street in Philadelphia and passing around a gun. (Notes of testimony, 3/17/16 at 4-6, 10.)[2] When Lieutenant Brockenbrough arrived at the scene, he observed a group of men huddled together and two of the individuals leave the group and walk to the other side of the street. (Id. at 6-7.) One of the men, who was later identified as appellee, began to walk southbound down Croskey Street. (Id.) Lieutenant Brockenbrough exited his marked police vehicle and asked appellee "to come here" so he could talk to him, but appellee refused and continued walking down Croskey Street. (Id. at 8-9, 18.) At that point, Lieutenant Brockenbrough was in the process of radioing officers in an approaching police wagon to stop appellee, when he observed appellee reach into his waistband, remove an object that looked like a handgun, and place it in a nearby flowerpot. (Id. at 9-10, 20.)

         Lieutenant Brockenbrough testified that he was approximately 8 to 10 feet away from appellee at this point. (Id. at 10.) One of the officers in the police wagon, Officer Muhammad, subsequently recovered the firearm. (Id. at 9.) Lieutenant Brockenbrough testified that he approached appellee and the other individuals on the evening in question, in part, because he believed that they were in violation of Philadelphia's 10:30 p.m. curfew. (Id. at 9, 11, 18.) Lieutenant Brockenbrough also acknowledged on cross-examination that he did not observe a bulge or weapon on appellee's person and did not see him make any suspicious movements as he was following him down the street. (Id. at 17-19.)

         Appellee was subsequently arrested and charged with unlawful possession of a firearm, firearms not to be carried without a license, and carrying a firearm on public streets or public property in Philadelphia.[3] On October 30, 2015, appellee filed an omnibus pre-trial motion to suppress the firearm, contending that Lieutenant Brockenbrough lacked reasonable suspicion to stop or question him and that this stop constituted an unlawful seizure. (See "Omnibus Pre-Trial Motion, " 10/30/15 at 2-3, ¶ II.) On March 17, 2016, the trial court conducted a hearing on appellee's suppression motion. Following the hearing, the trial court granted appellee's suppression motion on March 21, 2016. The record reflects that the trial court did not make any findings of fact or author an opinion in support of its March 21, 2016 order. However, the trial court did note that "there wasn't a credibility issue[]" with respect to testimony of Lieutenant Brockenbrough, who was the only witness who testified at the suppression hearing. (See notes of testimony, 3/21/16 at 3.) This timely appeal followed.[4]

         The Commonwealth raises the following issue for our review:

Where a police officer investigating a report of a group of men with a gun asked [appellee] to stop to talk, and [appellee] declined to do so, but discarded a gun as he walked away, did the [trial] court err in concluding that the officer had "seized" [appellee] before he produced the gun?

         Commonwealth's brief at 4.

         Our standard of review in addressing a trial court's order granting a suppression motion is well settled.

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.
Our standard of review is restricted to establishing whether the record supports the suppression court's factual findings; however, we maintain de novo review over the suppression court's legal conclusions.

Commonwealth v. Korn, 139 A.3d 249, 253-254 (Pa.Super. 2016) (internal citations and quotation marks omitted), appeal denied, 15 ...

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