from the Order, March 21, 2016, in the Court of Common Pleas
of Philadelphia County Criminal Division at No.
BEFORE: DUBOW, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.
Commonwealth appeals 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
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.) 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.)
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.)
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. 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.
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
brief at 4.
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 ...