J-A13001-24
2024 PA Super 183
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TARIQUE AARON LEE HOLLEY : No. 766 WDA 2023
Appeal from the Order Entered June 27, 2023
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0008953-2022
BEFORE: OLSON, J., SULLIVAN, J., and BENDER, P.J.E.
OPINION BY OLSON, J.: FILED: August 16, 2024
The Commonwealth of Pennsylvania (Commonwealth) appeals from an
order entered on June 27, 2023 in the Criminal Division of the Court of
Common Pleas of Allegheny County. The order challenged on appeal granted
a motion to suppress filed on behalf of Appellee, Tarique Aaron Holley
(Holley).1 We vacate the order of June 27, 2023 and remand for further
proceedings.
The trial court aptly summarized the uncontradicted testimony of Officer
James Verbitsky, the sole witness who testified about the underlying facts at
Holley’s suppression hearing.
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1 The Commonwealth may appeal as of right from “an order that does not end
the entire case where the Commonwealth certifies in [its] notice of appeal that
the order will terminate or substantially handicap the prosecution.” Pa.R.A.P.
311(d). Here, the Commonwealth included the required certification with its
timely notice of appeal.
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On or about October 6, 2022, Officer James Verbitsky of the City
of Pittsburgh [Police Department was on patrol] in the downtown
area of the city due to an [uptick] in [violent crime] in the area.
Officer Verbitsky testified that at the time of the incident, four
schools in the area let out around the same time and a large
number of juveniles congregate[d] in that area. Officer Verbitsky
was approached by a juvenile who informed him [] there was an
individual (later determined to be [Holley]) wearing [an animated
television] character hoodie [and] holding a handgun[, which he
had] tucked [] into his [pocket]. Officer Verbitsky located [Holley]
and observed him holding a handgun in his right hand. Upon
seeing the officers, [Holley] then [immediately returned the gun
to his pocket]. Officer Verbitsky then drew his firearm and pointed
it at [Holley] while other officers ordered [Holley] to the ground in
a prone position and handcuffed him. It was later determined that
[Holley] did not have a valid conceal[ed] carry permit and he
subsequently was transported to the Allegheny County Jail.
Trial Court Opinion, 7/25/23, at 2-3.
As a result of his October 6, 2022 police encounter, Holley was charged
with one count each of carrying a firearm without a license, in violation of 18
Pa.C.S. § 6106(a)(1), and carrying a loaded weapon, in violation of 18 Pa.C.S.
§ 6106.1. On April 4, 2023, Holley, through the Allegheny County Office of
the Public Defender, moved to suppress the firearm, claiming that the police
lacked reasonable suspicion that criminal activity was afoot to support an
investigative detention. A hearing was convened on May 9, 2023 and, after
Officer Verbitsky concluded his testimony, the trial court took the matter
under advisement. On June 27, 2023, the court issued an order granting
Holley’s motion to suppress.
On June 29, 2023, the Commonwealth filed a timely notice of appeal.
Thereafter, pursuant to court order, the Commonwealth filed its statement of
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errors complained of on appeal on July 18, 2023. The trial court issued its
opinion on July 26, 2023.
On appeal, the Commonwealth raises the following issue for our
consideration.
Did the trial court err in granting [Holley’s] motion to suppress his
firearm on the basis that the officer lacked the requisite
reasonable suspicion that [Holley] was engaged in criminal activity
such that the seizure of his person was warranted, where, amidst
a large group of juveniles in an area of town where violence
involving juveniles had regularly occurred, [Holley] was observed
with a gun in his hand and then, after returning it to his pocket,
he took the gun out yet again, only to return it to his pocket a
second time after he noticed that the officer was watching him?
Commonwealth Brief at 4.
In the sole issue it raises on appeal, the Commonwealth argues that
Officer Verbitsky articulated several specific facts that led him reasonably to
suspect that criminal activity was afoot when his armed encounter with Holley
occurred on October 6, 2022. In particular, the Commonwealth noted that
“[Holley] had [a] gun in his hand, not concealed on his person; that [Holley]
took [the gun] out of his pocket a second time after having put it away; that
[Holley] gripped the gun in a manner that suggested to the officer that
[Holley] was going to fire it; that [Holley] only put the gun back in his pocket
again because he saw the officer was watching him; and, crucially, [Holley’s]
actions took place in an area of downtown Pittsburgh populated by 75 to 100
juveniles where [fights and shootings] involving juveniles had been known to
occur.” Id. at 9; see also N.T. Suppression, 5/9/23, at 6-9. In view of these
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factors, the Commonwealth concludes that this case more strongly
demonstrates reasonable suspicion of criminal activity than the circumstances
before our Supreme Court in Commonwealth v. Hicks, 208 A.3d 916 (Pa.
2019). Hence, the Commonwealth asserts that the trial court erred in granting
Holley’s motion to suppress.
Our review of an order granting a defense motion to suppress is guided
by the following standard.
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, 252-53 (Pa. Super. 2016) (citations
omitted and formatting altered).
Neither side in this appeal contests the conclusion that Holley was
subject to immediate detention for investigative purposes after Officer
Verbitsky observed, among other things, a firearm in Holley’s possession.
Hence, we focus our analysis on the sole issue litigated on appeal: whether
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the record established at Holley’s suppression hearing justified an
investigative detention.
An investigative detention is one of three levels of police-citizen
encounters recognized under Pennsylvania law. See Commonwealth v.
Muhammad, 289 A.3d 1078, 1086-1087 (Pa. Super. 2023) (acknowledging,
in addition to the investigative detention, the mere encounter and custodial
arrest). To guard individual liberty and vindicate the right of citizens to be
secure in their persons, houses, papers, and possessions, an investigative
detention must be supported by reasonable suspicion. See
id.
To assess whether an officer possesses reasonable suspicion, courts
“accord due weight to the specific reasonable inferences [the officer may]
draw from the facts in light of his experience.” Commonwealth v. Sands,
887 A.2d 261, 272 (Pa. Super. 2005). Reasonable suspicion requires an
evaluation of the totality of the circumstances. Commonwealth v. Holmes,
14 A.3d 89, 95-96 (Pa. 2011). Our Supreme Court has explained the
Commonwealth’s burden in proving reasonable suspicion.
Reasonable suspicion is a less stringent standard than [the]
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 order to justify
the seizure, a police officer must be able to point to specific and
articulable facts leading him to suspect criminal activity is afoot.
In assessing the totality of the circumstances, courts must also
afford due weight to the specific, reasonable inferences drawn
from the facts in light of the officer's experience[,] and
acknowledge that innocent facts, when considered collectively,
may permit the investigative detention.
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Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010) (citations and
quotation marks omitted).
Hicks addressed whether a police officer may reasonably infer criminal
activity from a citizen’s mere possession of a concealed firearm in public. The
opinion overruled Commonwealth v. Robinson, 600 A.2d 957 (Pa. Super.
1991), a prior decision in which this Court held the “possession of a concealed
firearm by an individual in public is sufficient to create a reasonable suspicion
that the individual may be dangerous, such that an officer can approach the
individual and briefly detain him in order to investigate whether the person is
properly licensed.”
Id. at 959 (also known as the “Robinson rule”). In
relevant part, the Supreme Court in Hicks saw
no justification for the notion that a police officer may infer
criminal activity merely from an individual's possession of
a concealed firearm in public. [It] is not a criminal offense for
a license holder [ ] to carry a concealed firearm in public. Although
the carrying of a concealed firearm is unlawful for a person
statutorily prohibited from firearm ownership or for a person not
licensed to do so, see 18 Pa.C.S.A. §§ 6105-6106, there is no way
to ascertain an individual's licensing status, or status as a
prohibited person, merely by his outward appearance. As a
matter of law and common sense, a police officer observing an
unknown individual can no more identify whether that individual
has a license in his wallet than discern whether he is a criminal.
Unless a police officer has prior knowledge that a specific
individual is not permitted to carry a concealed firearm, and
absent articulable facts supporting reasonable suspicion that a
firearm is being used or intended to be used in a criminal manner,
there simply is no justification for the conclusion that the mere
possession of a firearm, where it lawfully may be carried, is alone
suggestive of criminal activity.
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Hicks, 208 A.3d at 936–937 (emphasis added). Ultimately, Hicks rejected
the Robinson rule because it failed to embrace “a first principle that lies at
the heart of the Fourth Amendment — that the government may not target
and seize specific individuals without any particular suspicion of
wrongdoing, then force them to prove that they are not committing crimes.”
Hicks, 208 A.3d at 942 (emphasis added) and 947 (noting that the Robinson
rule essentially required no suspicion, let alone individualized suspicion).
Here, the trial court concluded that Officer Verbitsky’s testimony at the
suppression hearing did not establish that Holley exhibited “behavior
indicative of illegal possession of a firearm or illegal use of a firearm.” Trial
Court Opinion, 7/26/23, at 3. According to the trial court, the record was
“devoid of any testimony [demonstrating] what specifically made [the] officers
believe a crime was occurring, about to occur and/or had just occurred.” Id.
Thus, relying on Hicks, the court granted Holley’s motion to suppress. The
Commonwealth disputes this assessment, pointing out that Hicks is factually
distinguishable since Officer Verbitsky cited several factors, beyond Holley’s
mere possession of a firearm, which led him to conclude, under the
circumstances, that criminal activity was afoot. See Commonwealth’s Brief at
12.
Because the Commonwealth stresses that the facts of the present case
both distinguish it from Hicks and compel a different legal conclusion, we
begin our analysis by recounting our Supreme Court’s detailed summary of
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the salient, and uncontradicted, events in Hicks, together with the inferences
to be drawn from those facts.2
Hicks arrive[d] at the Pace Mart at 2:31 a.m. and park[ed] his
vehicle at a gas pump. A second, unidentified individual already
was parked at an adjacent gas pump. The individual clearly
recognize[d] Hicks as an acquaintance, and approache[d] Hicks'
vehicle to greet him. Hicks exit[ed] his vehicle, and his firearm
[became] visible, albeit barely. Hicks either [holstered the firearm
or adjusted] his garments around it when the second individual
reache[d] Hicks' driver's side door, which [was] still open. The
individual greet[ed] Hicks, and the two men [shook] hands with a
brief, one-armed embrace. Hicks [did] not appear to gesture or
point to the firearm, and he [did] not remove it from his waistband
at any point. Hicks [began] to walk toward the convenience store,
continuing to adjust the position of the handgun, which [became]
more clearly visible for a moment. Thereafter, the handgun [was]
holstered outside Hicks' waistband and covered by his shirt, but
its outline remain[ed] visible. Hicks enter[ed] the store, exit[ed]
a short time later, then return[ed] to the gas pump, where he
[began] to fuel his vehicle. Hicks [spoke] briefly to a third,
unidentified individual while he pump[ed] gas. Hicks then
reenter[ed] his vehicle and [began] to pull away from the gas
pump. Moments later, numerous marked police vehicles
intercept[ed] Hicks' vehicle with their lights flashing.
Even viewing all of the evidence in the light most favorable to the
Commonwealth, there exist[ed] no basis for a finding that Hicks
[engaged] in any manner of criminal conduct. There was no
indication or apparent threat of violence, and no information
suggesting that Hicks engaged in any type of confrontation with
another individual, physical, verbal, or otherwise. Neither the
camera operator's report nor the police radio dispatch suggest
anything of the sort. Indeed, “[t]he video from the camera clearly
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2 The factual recitation offered in Hicks reflected the Supreme Court’s
observations of video footage recorded by the camera operator who initiated
the 911 call that alerted police to Hicks’ possession of a firearm at a
convenience store and gas station. See Hicks 208 A.3d at 950. The Court
noted that the videotape was admitted into evidence at trial, did not contradict
the Commonwealth’s proof, and was repeatedly referred to by the parties.
See
id.
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show[ed] the firearm concealed in [Hicks'] waistband and that,
despite the hour, there are a number of individuals at this
location.” Brief for Commonwealth at 16. However, significantly,
no individual expresse[d] any visible indication of alarm at Hicks'
presence, his possession of his firearm, or the manner in which he
carried it. Rather, the video depict[ed] patrons of a gas station
going about their business, at least two of whom engage[d] in
seemingly friendly interactions with Hicks.
In light of defense counsel's use of the word “showed” when
cross-examining Officer Pammer, N.T., 7/14/2015, at 15, we
conclude that the record contains minimal support for the
suppression court's finding that Hicks “showed” his firearm to
another individual. Order, 9/18/2015, at 1 n.1. We find no
evidentiary support for an alternative contention that Hicks
“brandished” the firearm in any way, or at anyone. Further, the
characterization that the Commonwealth provided at oral
argument — that Hicks removed the handgun from his waistband,
showed it to another individual, then placed it back in his
waistband — is likewise unsupported by the evidence of record.
All that remains is the Commonwealth's repeated emphasis upon
the time of day at which the seizure occurred and the fact that
Hicks was seized in what Officer Pammer described, based upon
his experience, as a high crime neighborhood. These can serve
as relevant contextual considerations in a totality of the
circumstances inquiry. See, e.g., [Adams v. Williams, 407 U.S.
142, 147-148 (1972); but see Illinois v. Wardlow,
528 U.S.
119, 124 (2000)] (“An individual's presence in an area of expected
criminal activity, standing alone, is not enough to support a
reasonable, particularized suspicion that the person is committing
a crime.”). Even taking into account the early morning hour and
Officer Pammer's characterization of the neighborhood, there
remains no particularized basis upon which to suspect that Hicks'
mere possession of a concealed firearm was unlawful.
In consideration of the totality of the circumstances, even in the
light most favorable to the Commonwealth, the facts do not
support a finding of reasonable, articulable suspicion that Hicks
was engaged in any manner of criminal activity on the morning
that he was seized. As the suppression court found, and as
confirmed by the evidence of record, Hicks was seized solely due
to the observation of a firearm concealed on his person. Although
such a seizure then may have been viewed as constitutional under
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prevailing Superior Court precedent, we reject that precedent
today.
Hicks, 208 A.3d at 950-951.
In Hicks, the Court explained that its decision proscribed only those
seizures based exclusively upon the mere possession of a concealed firearm,
which – standing alone – is insufficient to support an inference that criminal
activity is afoot. See id. at 945. In fact, the Court made clear that the Fourth
Amendment tolerates a seizure so long as law enforcement personnel
articulate facts which show that the conduct underlying the detention arises
from actual suspicion of criminal activity in a meaningful sense of that term.
See
id. Thus, Hicks permits seizures that are aimed at forestalling impending
criminal activity so long as the police cite specific factors to substantiate a
reasonable inference that a firearm will be used in a criminal manner. See
id. at 937.
With these principles in mind, we agree with the Commonwealth that
the circumstances in this case are distinct from those before the Court in
Hicks and that Officer Verbitsky established reasonable suspicion to support
Holley’s detention on October 6, 2022. As the Commonwealth points out, the
Supreme Court determined that the record in Hicks did not support the finding
that Hicks removed his firearm from his waistband. Here, however, the record
showed that Holley twice removed his firearm from the pocket of his hooded
sweatshirt. See N.T., 5/9/23, at 7-9. Moreover, in contrast to Hicks, where
the videotape depicted “no indication or apparent threat of violence,” Officer
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Verbitsky testified that Holley took “a shooter[’s] grip” of his handgun in a
crowd of juveniles and rapidly returned it to his pocket when he observed the
officer. See id. at 8. Officer Verbitsky characterized Holley’s grasp of the
firearm as one that would readily permit him to discharge the weapon if he
chose to do so. See id. Lastly, while no one expressed alarm at Hicks’
presence, his possession of a firearm, or the manner in which Hicks carried
his firearm, at least one young man in the instant case was sufficiently
alarmed at Holley’s possession of a firearm that he alerted Officer Verbitsky
of the situation. See id. at 6. Officer Verbitsky further testified that these
events transpired in the presence of 75 to 100 youths and during his patrol of
a downtown Pittsburgh location known for after-school juvenile fights and
shootings. See id. Taking all of these circumstances into account, including
the time and place of the incident, Officer Verbitsky’s specific observations
and experience, and the reasonable inferences that permissibly could be
drawn from the articulated (and uncontradicted) facts, we conclude that the
Commonwealth met its burden in establishing that Officer Verbitsky possessed
particularized and reasonable grounds to suspect that Holley intended to
deploy his firearm in a criminal manner and, therefore, that criminal activity
was afoot. Accordingly, we vacate the June 27, 2023 order that granted
Holley’s motion to suppress and remand for further proceedings.
Order vacated. Case remanded. Jurisdiction relinquished.
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DATE: 08/16/2024
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