Com. v. Windle, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

DONTEZ WINDLE

Appellant No. 2696 EDA 2013

Appeal from the Judgment of Sentence August 30, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002581-2012

BEFORE: OLSON, OTT and STABILE, JJ. MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 17, 2014

Appellant, Dontez Windle, appeals from the judgment of sentence entered on August 30, 2013. We affirm.

The suppression court summarized the factual background of this case as follows:

On December 15, 2011, at approximately 9:20 p.m., Police

partner, Officer [Stephen] Toner, at 29th Street and Girard Avenue, which is one block north of Poplar Street, they received a radio call that a robbery at [gunpoint] had just occurred at 20th and Poplar Street which the officer described as a high crime area. The call described the suspect as a black male wearing a black hood[ie] and dark blue jeans with a black handgun. oceeded with lights and sirens to 20th and Poplar Street. . . .

While the officers were surveying the area, as they approached 25th and Poplar Street, they observed Appellant wearing a

testified looked dark from his location, coming westbound by the

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Girard College wall which is in close proximity to the location.

stopped the car several feet in front of Appellant. Before the officers said anything, Appellant handed the officers his

found it strange that Appellant handed him his ID card without being asked sweating, although it was the middle of December. Officer

hood[ie] up.

Officer O'Brien testified at that point[,] because of the proximity of the location and the dangerous nature of the crime, the officers decided to conduct a Terry[1] frisk of Appellant for their safety due to the report of a gun being used in the robbery. -down on the chest of Appellant. While movin felt a heavy object hit his wrist. Because the jacket was so thin,

that it was a gun. The officers then detained Appellant and recovered the firearm from the right jacket pocket. The officers had other officers bring the complainant down to see if they could identify Appellant. When the complainant arrived, he said that Appellant was not the robber. Appellant was thereafter arrested. . . .

Suppression Court Opinion, 2/7/14, at 2-3.

The procedural history of this case is as follows. Appellant was charged via a criminal complaint with receiving stolen property,2 carrying a firearm without a license,3 and carrying a firearm on the public streets of

1 See Terry v. Ohio, 392 U.S. 1 (1968). 2 18 Pa.C.S.A. § 3925(a). 3 18 Pa.C.S.A. § 6106(a)(1).

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Philadelphia.4 A criminal information charging those same offenses was filed on March 13, 2012.

On December 18, 2012, Appellant orally moved to suppress the firearm evidentiary hearing, the suppression court denied the motion that same day. On July 18, 2013, Appellant proceeded to a bench trial and was found guilty of carrying a firearm without a license and carrying a firearm on the public streets of Philadelphia. On August 30, 2013, Appellant was sentenced to an followed.5

Appellant raises one issue for our review:

Did the [suppression] c to suppress when the stop and subsequent pat down of [Appellant] was not supported by a reasonable suspicion or probable cause since [Appellant] did not match the flash information provided to the arresting officer and was not engaging in any activity consistent with criminal behavior at the time of the stop?

4 18 Pa.C.S.A. § 6108. 5 On September 26, 2013, the trial court ordered Appellant to file a concise See Pa.R.A.P. 1925(b). On October 8, 2013, Appellant filed his concise statement. On February 7, 2014, the suppression court issued its Rule 1925(a) opinion. See Pa.R.A.P. 1925(a)(1) (trial court may request a judge who made a prior ruling which is challenged on appeal file a Rule 1925(a) opinion). statement.

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suppression motion we are limited to determining whether the factual findings are supported by the record and whether the legal conclusions

Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa. Super. 2013), appeal denied, 79 A.3d 1096 (Pa. 2013) (internal alterations and citation omitted).

In re

L.J.

defense as remains uncontradicted when read in the context of the record as

Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted).

We note the procedural posture of this case and how that impacts our scope of review in this case. The suppression hearing in this case occurred in December 2012 and the bench trial occurred in July 2013. In October 2013, our Supreme Court decided L.J. In L.J., our Supreme Court held that suppression motion is limited to the evidence presented at the suppression hearing. L.J., 79 A.3d at 1085. However, our Supreme Court chose to apply this rule prospectively instead of retroactively. Id. at 1088-1089. As the suppression hearing and trial in this case occurred prior to L.J., we may review both the evidence presented at trial and the evidence presented at

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the suppression hearing. See id. Commonwealth-wide after the filing of [L.J.], will be considered in accord

In this case, the difference between the record emerging from one of the factual findings of the suppression court. Based upon the testimony at the suppression hearing, the suppression court found that it received the flash description of the suspect until they reached Appellant. See Suppression Court Opinion, 2/7/14, at 2, citing N.T., 12/18/12, at 2. minutes from the time that he and Officer Toner received the flash description until they encountered Appellant. N.T., 7/18/13, at 10, 21-22. which was a transcript of the police dispatch on the night in question. As the suppression court did not hear the testimony given at trial, we cannot fault it for relying solely upon the facts presented at the suppression hearing. However, as the testimony at trial clearly shows that the gap from the time encountered Appellant was 11 minutes, we will use that timeframe for the purposes of our analysis.

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Appellant argues that the police officers detained him, and patted him down for weapons, without reasonable suspicion or probable cause. Thus, he contends that the search violated both the state and federal States Constitution and Article I, Section 8 of [the Pennsylvania] Constitution protect citizens from unreasonable searches and seizures. To safeguard these rights, courts require police to articulate the basis for their Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013) (internal alterations, quotation marks, and citation omitted).

We have described three types of police/citizen interactions, and the necessary justification for each, as follows:

The first of these is a mere encounter (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or respond. The second, an investigative detention, must be supported by reasonable suspicion; it subjects a suspect to a stop and period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest. Finally, an arrest or custodial detention must be supported by probable cause.

Commonwealth v. Williams, 73 A.3d 609, 613 614 (Pa. Super. 2013), appeal denied, 87 A.3d 320 (Pa. 2014) (internal alteration, quotation marks, and citation omitted). On a motion to suppress, the burden is on the Commonwealth to prove, by a preponderance of the evidence, that the evidence seized from Appellant was legally obtained. See Commonwealth

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v. Howard, 64 A.3d 1082, 1087 (Pa. Super. 2013), appeal denied, 74 A.3d 118 (Pa. 2013) (citation omitted).

In this case:

There is no dispute between the parties that the frisk at issue constituted an investigative detention in the nature of a protective weapons search which is governed by Terry . . . and requires that police have reasonable suspicion either that criminal activity was afoot or that appellant was armed and dangerous to them:

It is well-established that a police officer may conduct a brief investigatory stop of an individual if the officer observes unusual conduct which leads him to reasonably conclude that criminal activity may be afoot. Moreover, if the officer has a reasonable suspicion, based on specific and articulable facts, that the detained individual may be armed and dangerous, the officer may the weapons. Since the sole justification for a Terry search is the protection of the officer or others nearby, such a protective search must be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby. Thus, the purpose of this limited search is not to discover evidence, but to allow the officer to pursue his investigation without fear of violence.

Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014) (citation omitted).

As we have explained:

Reasonable suspicion is a less stringent standard than probable cause necessary to effectuate a warrantless arrest, and depends on the information possessed by police and its degree of reliability in the totality of the circumstances. . . . In assessing the totality of the circumstances, courts must also afford due weight to the specific, reasonable inferences drawn from the that innocent facts, when considered collectively, may permit the investigative detention.

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The determination of whether an officer had reasonable suspicion . . . is an objective one, which must be considered in light of the totality of the circumstances.

Clemens, 66 A.3d at 379 (ellipsis and citation omitted).

Appellant first argues that the police officers lacked reasonable suspicion because Appellant did not match the flash description of the robbery suspect. We disagree. The record reflects that Appellant matched the flash description of the robbery suspect. Appellant, an African-American, was wearing a black hoodie, a black jacket, and tan jeans. N.T., 12/18/12, at 8, 22. The suspect was described as an African-American male wearing a black hoodie and blue jeans. N.T., 12/18/12, at 8, 22. The suppression appeared dark at first sight. See Suppression Court Opinion, 2/7/14, at 6. Although not an exact match, the description of the suspect matched the visual appearance of Appellant and contention that he did not match the flash description of the suspect is without merit.

Appellant next contends that, even if he did match the flash description of the robbery suspect, this was not enough information for an investigative detention. Appellant cites several cases, which he argues are similar to the case sub judice, in which this Court or our Supreme Court determined that the police lacked reasonable suspicion to conduct an

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investigative detention. We conclude that all of these cases are distinguishable from the case at bar.

In Commonwealth v. Jackson, the encounter between the police officer and the defendant occurred at least 40 minutes after the murder. 331 A.2d 189, 191 (Pa. 1975). Furthermore, the defendant in Jackson did not match the flash description of the suspect except in the most general terms. See id. at 190. However, the most important difference between Jackson and the case at bar was that in Jackson our Supreme Court was determining whether the police had probable cause to arrest the defendant, while in the case at bar we are determining whether the police possessed reasonable suspicion to conduct a Terry frisk. Thus, the standard our Supreme Court employed in Jackson was far more demanding than the standard we must apply in this case.

In Commonwealth v. Berrios, the officers stopped two suspects based upon nothing more than a general flash description. 263 A.2d 342, 344 (Pa. 1970). There was nothing else to support a finding of reasonable suspicion. On the other hand, in the case at bar the officers possessed other information which formed the basis of their reasonable suspicion. In particular, Appellant handed the police officers his identification prior to the officers requesting it. Furthermore, it was the middle of December and yet Appellant was sweating. These additional facts, distinguish the case at bar from Berrios.

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Similar to Berrios, in Commonwealth v. Ryan, the police officers stopped the defendant based upon nothing more than a general flash description. 384 A.2d 1243, 1247 (Pa. Super. 1978). Although the police the suppression hearing that he went far beyond a Terry frisk to ensure his safety. Id. These measures constituted the functional equivalent of an arrest of the defendant. Id. Thus, we held that the police officer lacked the requisite probable cause to arrest the defendant. Id. Ryan is distinguishable from the case at bar because it involved the higher substantive standard required to justify an arrest.

We agree with the suppression court that this case is more akin to Commonwealth v. Foglia, 979 A.2d 357 (Pa. Super. 2009) (en banc), appeal denied, 990 A.2d 727 (Pa. 2010), than it is to the cases cited by Appellant. In Foglia, the defendant matched the description of an individual with a gun given by an anonymous tipster. Id. at 359. When the defendant saw the police, he continued walking in the same direction as before, but exhibited nervous behavior by continually looking back at the police. Id. When the police exited their vehicle, the defendant exhibited more nervous behavior by adjusting his waistband. Id. The police officers, fearing that the defendant may have a weapon, performed a Terry frisk and found the defendant was carrying a firearm without a license. Id. This Court held

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that, under the totality of the circumstances, the police officer had reasonable suspicion to conduct a Terry frisk. Id. at 361.

In the case sub judice, like in Foglia, Appellant generally matched the flash description of the suspect. As in Foglia, police had reason to believe that Appellant was armed with a firearm. Unlike in Foglia, however, this information came from a known source, the robbery victim, and not an anonymous tipster. Finally, although the nervous behavior of the defendant in Foglia differed from the type of nervous behavior exhibited by Appellant, both individuals exhibited nervous behavior that reasonably could lead an investigating officer to become concerned for his safety and the safety of others nearby.

Likewise, in Scarbourough, the defendant was riding his bicycle when police pulled him over to issue a citation for speaking on his cell phone while operating the bicycle. Scarbourogh, 89 A.3d at 682. When the police approached, they noticed that the defendant was acting nervously. Id. This interaction was occurring in a high crime area, was sufficient to give the officers reasonable suspicion to conduct a Terry frisk. Id. at 684. The same factors are present in this case. The interaction between Appellant

high crime area and Appellant was acting nervously. In addition, Appellant matched the flash description of a suspect who had recently committed an armed robbery in the area.

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See also Commonwealth v. Buchert, 68 A.3d 911, 914 (Pa. Super. 2013), appeal denied multiple occasions we have held that [] furtive movements, when witnessed within the scope of a lawful traffic stop, provided a reasonable basis for a

As our Supreme Court has explained:

which hold that certain factors present in the instant case, standing alone, are insufficient to constitute reasonable

reasonable suspicion must be evaluated based on the totality of the circumstances. It is not the function of a reviewing court to analyze whether each individual circumstance gave rise to reasonable suspicion, but rather to base that determination upon the totality of the circumstances the whole picture.

In re D.M. combination of innocent facts, when taken together, may warrant further

Commonwealth v. Caban, 60 A.3d 120, 129 (Pa. Super. 2012), appeal denied, 79 A.3d 1097 (Pa. 2013) (citation omitted).

In this case, the combination of several innocent factors gave Officers

d Toner had reliable information, from a known source, that less than 20 minutes prior to their interaction with Appellant an robbery in the area. When the officers exited their vehicle to speak with

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Appellant, he immediately provided his identification. Although it was the middle of December, Appellant was sweating. Moreover, the encounter occurred in a high crime area at night. Thus, the officers reasonably concluded that Appellant may be armed. In order to protect themselves, the officers conducted a limited Terry frisk. The fact that the robbery victim ultimately declared that Appellant was not the perpetrator is irrelevant to whether the investigating officers possessed reasonable suspicion to effectuate a Terry frisk at the time they encountered Appellant. Cf. Miller v. Harget, 458 F.3d 1251, 1256 (11th Cir. 2006) (acquittal is not determinative of whether reasonable suspicion existed at the time of the stop). Thus, Officer the Terry frisk. Accordingly, the suppression court correctly denied

Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/17/2014

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