Com. v. Thomas, D.

J-S09043-22

                                   

  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  D'ANGELO THOMAS                              :
                                               :
                       Appellant               :   No. 1013 EDA 2020

      Appeal from the Judgment of Sentence Entered February 21, 2020
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0002663-2019


BEFORE:      LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                              FILED APRIL 12, 2022

       Appellant D’Angelo Thomas appeals from the judgment of sentence of

three years’ reporting probation entered in the Court of Common Pleas of

Philadelphia County after he was found guilty of Firearms not to be carried

without a license and Carrying firearms on public streets or public property in

Philadelphia1 following a stipulated bench trial.      After a careful review, we

affirm.

       The trial court set forth the relevant facts herein as follows:

             According to the testimony of Officer James Craig, on March
       27, 2019 at approximately 2:53 p.m. he was on patrol with his
       partner Officer Burton. At this time, Appellant was observed
       operating [a] bicycle on the sidewalk in the area of the 2000 block
       of Windrim Avenue in the city and county of Philadelphia. N.T.
       2/21/20 at p. 7-9. It is a violation of City Ordinance 12-808 for
       anyone over the age of 12 to ride their bicycles on the sidewalk.
____________________________________________


* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6106(a)(1) and 6108, respectively.
J-S09043-22


      N.T. 2/21/20 at p. 9-10, 20. Officer Craig, without activating his
      siren, pulled over his marked patrol vehicle to inform Appellant
      that given his age he cannot ride the bicycle on the sidewalk and
      instead must ride it on the street. N.T. 2121/20 at p. 10. After
      pulling alongside Appellant, Officer Craig asked Appellant “Yo, can
      you hold up a second?” N.T. 2/21/20 at p. 10-11, 18, 20.1 While
      Officer Burton was exiting the vehicle, Appellant pointed
      southbound and uttered something which Officer Craig could not
      hear. Immediately afterward, Appellant turned and ran
      northbound. While running northbound, Appellant reached into
      his wasteband [sic] and discarded a firearm which officers
      subsequently recovered. N.T. 2/21/20 at p. 10-11.
      ___
      1 After a thorough cross-examination, this [c]ourt found that the

      exact statement by Officer Craig was “Yo, can you hold up for a
      second.”

Trial Court Opinion, filed 7/19/21, at 1-2.

      On February 21, 2020, immediately prior to the stipulated trial, the trial

court denied Appellant's motion to suppress the firearm recovered at the

scene. Appellant filed a timely notice of appeal on March 17, 2020, and on

July 2, 2020, he filed his concise statement of matters complained of on appeal

pursuant to Pa.R.A.P. 1925(b).    The trial court filed its Rule 1925(a) Opinion

on July 19, 2021.

      In his brief, Appellant presents a single claim for this Court’s review:

      Should the court below have found that there was a lack of
      probable cause to stop and chase Appellant, and therefore granted
      the motion to suppress physical finding that he was coerced to
      abandon the firearm recovered from the street by police?

Brief for Appellant at 2.

      “Our standard of review in addressing a challenge to a trial court’s denial

of a suppression motion is limited to determining whether the factual findings



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are supported by the record and whether the legal conclusions drawn from

those facts are correct.” Commonwealth v. Williams, 

(Pa.Super. 2008) (en banc) (internal citations omitted).

      [W]e may consider only the evidence of the prosecution and so
      much of the evidence for the defense as remains uncontradicted
      when read in the context of the record as a whole. Where the
      record supports the findings of the suppression court, we are
      bound by those facts and may reverse only if the court erred in
      reaching its legal conclusions based upon the facts.

.

      The reviewing court's scope of review is limited to the evidentiary record

of the pre-trial hearing on the suppression motion. In re L.J., 

,

 (2013). “It is within the suppression court’s sole province as

factfinder to pass on the credibility of witnesses and the weight to be given

their testimony.” Commonwealth v. Luczki, 

 (Pa.Super.

2019) (quoting Commonwealth v. Clemens, 

 (Pa.Super.

2013)). If appellate review of the suppression court's decision “turns on

allegations of legal error,” then the trial court's legal conclusions are

nonbinding on appeal and subject to plenary review. Commonwealth v.

Smith, 

 (Pa.Super. 2017).

      Appellant posits that if his circumstance is viewed objectively, it

becomes evident he was forced to stop when the police officers approached

him in a marked vehicle and asked him to “hold up for a second.”             He

concludes that he was constitutionally coerced to run and abandon the firearm

because the police had no requisite reasonable suspicion or probable cause to

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stop him. Brief for Appellant at 4-5. In support of this contention, Appellant

reasons as follows:

             [ ] Appellant abandoned his firearm after Officer Burton
      began to chase on foot and Officer Craig began to chase in a
      marked patrol vehicle. (N.T., 02/20/21 at 12-13). Considering the
      totality of the circumstances, when Officer Craig pulled up
      alongside Appellant with his marked patrol vehicle and asked him
      “ly]o, can you hold up a second" he was not free to leave.
      Alternatively and logically, if Appellant was free to leave when that
      was asked, because it was a ‘mere encounter’, then the police
      lacked reasonable suspicion or probable cause to chase Appellant
      which Officer Craig did with his patrol vehicle and his partner did
      on foot. (N.T. at 12). Thus, when Appellant fled and abandoned
      his firearm, it [sic] was coerced by an illegal stop and chase of the
      police.

Id. at 8 (emphasis in original).

      The Fourth Amendment to the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution guarantee the right of the people

to be secure in their persons, houses, papers, and possessions from

unreasonable searches and seizures.       Commonwealth v. Morrison, 

 (Pa.Super. 2017). “To secure the right of citizens to be free

from unreasonable search and seizure, courts in Pennsylvania require law

enforcement officers to demonstrate ascending levels of suspicion to justify

their interactions with citizens to the extent those interactions compromise

individual liberty.” Commonwealth v. Hampton, 

(Pa.Super. 2019). Because interactions between law enforcement and the

general citizenry are widely varied, search and seizure law examines how the




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interaction is classified and if a detention has occurred. Commonwealth v.

DeHart, 

 (Pa.Super. 2000).

      The focus of search and seizure law “remains on the delicate balance of

protecting the right of citizens to be free from unreasonable searches and

seizures and protecting the safety of our citizens and police officers by allowing

police to make limited intrusions on citizens while investigating crime.”

Commonwealth v. Moultrie, 

 (Pa.Super. 2005) (quoting

Commonwealth v. Blair, 

 (Pa.Super. 2004)) (internal

quotation marks omitted). “[I]n assessing the lawfulness of citizen/police

encounters, a central, threshold issue is whether...the citizen-subject has

been seized.” Commonwealth v. Strickler, 

, 

 (2000).

      Contacts between the police and citizens fall within three, general

classifications which are described as follows:

      The first [level of interaction] 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 to respond.
      The second, an “investigative detention” must be supported by a
      reasonable suspicion; it subjects a suspect to a stop and a period
      of detention, but does not involve such coercive conditions as to
      constitute the functional equivalent of an arrest. Finally, an arrest
      or “custodial detention” must be supported by probable cause.

Commonwealth v. Goldsborough, 

 (Pa.Super. 2011),

appeal denied, 

, 

 (2012) (quoting Commonwealth

v. Bryant, 

 (Pa.Super. 2005), appeal denied, 

, 

 (2005)).

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      Police officers must have reasonable suspicion that an individual is

engaged in unlawful activity before subjecting that person to an investigative

detention. Commonwealth v. Cottman, 

 (Pa.Super. 2000).

             An investigative detention, unlike a mere encounter,
      constitutes a seizure of a person and thus activates the
      protections of Article 1, Section 8 of the Pennsylvania
      Constitution. To institute an investigative detention, an officer
      must have at least a reasonable suspicion that criminal activity is
      afoot. Reasonable suspicion requires a finding that based on the
      available facts, a person of reasonable caution would believe the
      intrusion was appropriate.
                                     …
             Reasonable suspicion exists only where the officer is able to
      articulate specific observations which, in conjunction with
      reasonable inferences derived from those observations, led him
      reasonably to conclude, in light of his experience, that criminal
      activity was afoot and that the person he stopped was involved in
      that activity. Therefore, the fundamental inquiry of a reviewing
      court must be an objective one, namely, whether the facts
      available to the officer at the moment of intrusion warrant a
      [person] of reasonable caution in the belief that the action taken
      was appropriate.

Commonwealth v. Jones, 

 (Pa.Super. 2005) (internal

citations omitted).

      “[T]he question of whether reasonable suspicion existed at the time of

an investigatory detention must be answered by examining the totality of the

circumstances to determine whether there was a particularized and objective

basis for suspecting the individual stopped of criminal activity.” 

 at 598-99 (quoting Commonwealth v. Beasley, 

, 625-

26 (Pa.Super. 2000), appeal denied, 

, 

 (2001))

(holding that officer’s displaying a police badge and asking an individual if he


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J-S09043-22


or she would speak to the officer is a mere encounter). “These circumstances

are to be viewed through the eyes of a trained officer.” Commonwealth v.

Jackson, 

 (Pa.Super. 2006).

     In making this determination, we must give due weight...to the
     specific reasonable inferences the police officer is entitled to draw
     from the facts in light of his experience. Also, the totality of the
     circumstances test does not limit our inquiry to an examination of
     only those facts that clearly indicate criminal conduct. Rather,
     even a combination of innocent facts, when taken together, may
     warrant further investigation by the police officer.

Commonwealth v. Young, 

 (Pa.Super. 2006), appeal

denied, 

, 

 (2006) (internal citations and quotation

marks omitted).

     In addition,

           When initially evaluating the level of interaction between law
     enforcement and a citizen to determine if a seizure occurred,
     “courts conduct an objective examination of the totality of the
     surrounding circumstances.” Commonwealth v. Lyles, 

, 

 (2014).

           The totality-of-the-circumstances test is ultimately centered
     on whether the suspect has in some way been restrained by
     physical force or show of coercive authority. Under this test, no
     single factor controls the ultimate conclusion as to whether a
     seizure occurred—to guide the inquiry, the United States Supreme
     Court and this Court have employed an objective test entailing a
     determination of whether a reasonable person would have felt free
     to leave or otherwise terminate the encounter. [W]hat constitutes
     a restraint on liberty prompting a person to conclude that he is
     not free to “leave” will vary, not only with the particular police
     conduct at issue, but also with the setting in which the conduct
     occurs.
           This Court and the United States Supreme Court have
     repeatedly held a seizure does not occur where officers merely
     approach a person in public and question the individual or request
     to see identification. Officers may request identification or

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J-S09043-22


     question an individual so long as the officers do not convey a
     message that compliance with their requests is required. Although
     police may request a person's identification, such individual still
     maintains the right to ignore the police and go about his business.
     

, 

 (internal citations and quotation
     marks omitted).

. Furthermore,

             [a]though cases involving similar or comparable seizure
     determinations may serve as guideposts, a suppression court
     must independently employ the totality-of-the-circumstances test
     in determining whether a seizure occurred.” 

,
     

. See, e.g., 

 (holding that no single factor
     controls in seizure-of-person analysis; police officer's request for
     identification alone does not raise escalatory inference of
     detention; courts must make independent examination of totality
     of circumstances surrounding interaction to determine if seizure
     occurred; concluding no “seizure” occurred in absence of credible
     evidence of physical restraint, weapons used, blockade or
     obstruction of citizen's ability to walk away; tenor of interaction
     was not inherently coercive); [Commonwealth v.] Au, [

, 

 (2012)], (holding unrebutted testimony of
     officer established only mere encounter with Appellee had
     occurred, when officer interacted with Appellee in public, did not
     activate emergency lights, did not block Appellee's car, did not
     brandish weapon, make intimidating movement or overwhelming
     show of force, threat, or command, or speak in authoritative tone;
     use of officer's headlights and flashlight was in furtherance of
     officer's safety and within ambit of acceptable, non-escalatory
     factors);[Commonwealth v.] Newsome, [

 (Pa.
     Super. 2017)] (holding defendant was not “seized” during his
     initial interaction with officer, where officer responded to radio call
     in marked cruiser and saw Appellee walk away from group of
     males; officer exited his vehicle and told Appellee to “come here,”
     but Appellee refused and continued to walk away; officer then
     observed Appellee remove object and place it in nearby flowerpot;
     object later recovered was firearm); [Commonwealth v.]
     Young, [

 (Pa.Super. 2006), appeal denied, 

, 

 (2006) (holding initial interaction with
     Appellee was mere encounter, when three officers in plainclothes
     exited an unmarked vehicle, approached Appellee on public street
     and asked Appellee what he was doing and whether he had
     anything on his person that could harm officers; two brief

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J-S09043-22


     questions constituted mere encounter, as there was no restraint
     of Appellee's liberty, no physical force, and no show of authority
     or level of coercion, beyond officer's mere employment, to convey
     demand for compliance or threat of tangible consequences from
     refusal). Compare [Commonwealth v. ] Adams, [

,
     

 (2019)] (holding interaction between police officer
     and defendant was investigative detention, where officer would
     not allow defendant to leave his vehicle; officer did not simply
     request that defendant stay in his car; instead, officer physically
     closed car door and barred defendant's exit; officer's action of
     physically closing door as defendant opened it communicated
     demand to remain in car at that location; officer's acts constituted
     type of escalatory factor that signals “seizure” by restraint of
     freedom); Commonwealth v. Livingston, 

, 

 (2017) (plurality) (holding interaction between police officer
     and defendant was investigative detention, where defendant's car
     was already parked on side of interstate highway, and officer
     pulled his patrol car alongside defendant's car, with his emergency
     lights activated, ostensibly under community caretaking function,
     but officer was unable to articulate specific and objective facts to
     suggest defendant needed assistance);[Commonwealth v.]
     Hampton, [

 (Pa.Super. 2019)] (holding interaction
     between police officer and defendant was investigative detention,
     where defendant drove his vehicle from roadway into church field,
     and officer pulled her marked vehicle into field behind defendant's
     car, effectively blocking his exit, as defendant's vehicle was facing
     building so he could not travel forward). Importantly, “The issue
     of whether an individual has been seized is distinct from the issue
     of whether that seizure was reasonable.” 

.

.

     The Pennsylvania Supreme Court has instructed this Court to view “all

circumstances evidencing a show of authority or exercise of force, including

the demeanor of the police officer, the manner of expression used by the

officer in addressing the citizen, and the content of the interrogatories or

statements” when determining whether an officer’s conduct is a mere

encounter with a citizen or amounts to a seizure.         Commonwealth v.

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J-S09043-22


Mendenhall, 

, 

 (1998). The following, non-

exclusive list of factors is also relevant to the inquiry:

      [T]he number of officers present during the interaction; whether
      the officer informs the citizen they are suspected of criminal
      activity; the officer's demeanor and tone of voice; the location and
      timing of the interaction; the visible presence of weapons on the
      officer; and the questions asked. Otherwise inoffensive contact
      between a member of the public and the police cannot, as a matter
      of law, amount to a seizure of that person.

Commonwealth v. Parker, 

 (Pa.Super. 2017).

      The trial court set forth its reasoning for denying the motion to suppress

as follows:

             Here, Officer Craig's words are significant. Officer Craig
      asked "Yo, can you hold up a second?" Taken literally, Appellant
      with [sic] an option to decline the encounter. He was as informed
      him [sic] that any potential encounter would be extremely brief.
      Further, there was no testimony that Officer Craig activated his
      sirens at any point, despite being in a marked vehicle. Instead,
      Officer Craig pulled over and asked if Appellant could hold on for
      a second. At that point, Officer Burton exited the vehicle for a
      mere encounter. This was not a show of force sufficient to make
      a person feel they [sic] were not free to leave or terminate the
      encounter. Instead, this was viewed as the most professional
      manner of notifying Appellant that he should be riding his bicycle
      on the street as opposed to the sidewalk because it was in
      violation of a city ordinance. Appellant opted to run and abandon
      a firearm in his possession. This interaction did not go beyond a
      mere encounter, since the encounter would have been voluntary
      as evidenced by the language used by Officer Craig. The facts of
      this case are similar to Newsome, however in Newsome [sic] the
      defendant was instructed to “stop for a minute” while here
      Appellant was asked to “hold up a second.” Given the totality of
      the circumstances, this encounter did not rise to the level of an
      investigative detention.

Trial Court Opinion, filed 7/19/21, at 5.




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J-S09043-22


      In the alternative, the trial court found that since Appellant’s contact

with Officers Craig and Burton constituted a mere encounter, there was no

need to show they had reasonable suspicion before they approached him,

which is required only where an interaction rises to the level of an investigative

detention. However, the court found reasonable suspicion that Appellant had

violated City Ordinance 12-808 existed, and in doing so stated:

             Appellant was observed riding a bicycle in violation of
      Philadelphia City Ordinance 12-808.2 While such a violation only
      entails a citation and a small fine, the issuance of a citation
      necessarily involves a brief period during which a pedestrian or a
      subject of a vehicle stop will not be free to leave while the officer
      obtains information from an individual. See 75 Pa.C.S. § 6308(b)
      (authorizing an officer conducting a traffic stop to check “the
      vehicle's registration, proof of financial responsibility, vehicle
      identification number or engine number or the driver's license, or
      ... secure such other information as the officer may reasonably
      believe to be necessary to enforce the provisions of the Motor
      Vehicle Code[”]); Pa.R.Crim.P. 403(A)(2) (requiring that a citation
      contain the name and address of the defendant).
             Here, Officer Craig witnessed the violation by Appellant. As
      a result he was justified in stopping Appellant for purposes of
      issuing a citation, or in this case simply warning [ ] Appellant that
      he was in violation of said ordinance. Regardless of the nature of
      the offense, Officer Craig was permitted to temporarily detain
      Appellant to either issue a citation or warn him he was in violation
      of a city ordinance as explicitly authorized by 75 Pa.C.S. §
      6308(b). Since Appellant almost immediately fled and abandoned
      his property during the flight, there is no need to address
      Appellant’s second issue, since no pat-down occurred. Regarding
      the issue of forced abandonment, that issue becomes moot since
      no illegal stop occurred.
      _____
      2 § 12-808. Riding on Sidewalks.



      (1) No person shall ride a bicycle upon a sidewalk, except as
      follows:




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J-S09043-22


             (a) Children under the age of twelve may ride on the
       sidewalk, other than in a business district as defined in the Vehicle
       Code.
             (b) Riding a bicycle on the sidewalk is permitted where
       appropriate signs are posted for shared pedestrian and bicycling
       use by the Department of Streets at locations determined by the
       Department by regulation, safety, existing and expected density
       of use by pedestrians and bicyclists, motorist safety, traffic flow,
       and the free ingress and ...

Id. at 5-6, 7-8.2

       Following our review, we find the initial interaction between the officers

and Appellant was limited, informal, and carried all the hallmarks of a mere

encounter. On March 27, 2019, at approximately 2:53 p.m., Officers Craig

and Burton observed Appellant riding a bicycle on the sidewalk in the 2000

block of Windrim Street which is a violation of City Ordinance 12-808. N.T.,

2/21/20, at 9-10.       Officer Craig indicated that he normally does not write

tickets for such a violation. Instead, he advises individuals on the law and

informs them they should be riding on the street, not on the sidewalk. Id. at

10.   As the officers approached in their marked patrol vehicle, Appellant

crossed over to Germantown Avenue. Id. at 10.

       The officers pulled up next to Appellant at which time Officer Craig asked

“Yo, can you hold up for a second?” Appellant, who was within five feet of the

patrol car on the passenger side, stopped and stepped off the bicycle, at which

time Officer Burton, without speaking, exited the vehicle.         Id. at 10-12.



____________________________________________


2 The trial court’s footnote ended with an ellipsis.


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J-S09043-22


Appellant then pointed southbound, said something, and began to run

northbound, at which time he “reached into his waistband with his right hand

and threw a firearm onto the 4500 block of Germantown.” Id. at 10-11. Only

about one second passed between the time Officer Burton got out of the

vehicle and Appellant started to run away. Id. at 12. At no point did either

officer have his gun drawn, tell Appellant he could not leave, or even get within

arm’s reach of Appellant. Id. at 12.

      The above testimony evinces that the only verbal interaction prior to the

time Appellant stepped off his bicycle, ran from the police, and abandoned his

firearm was initiated by Officer Craig’s asking whether Appellant “can [ ] hold

up for a second?” while both officers were in the patrol car.      In doing so,

Officer Craig conveyed no demand for compliance or threatened any

consequences for non-compliance; he merely asked if he could speak to

Appellant. Then, without provocation, Appellant attempted to avert the

officers’ attention before he ran and threw his firearm as Officer Burton had

begun to exit the patrol car.

      The record is devoid of any evidence suggesting that either officer

activated the emergency lights of the patrol car, brandished his weapon, or

engaged in an overwhelming show of force. Further, neither officer used a

commanding tone of voice or informed Appellant that he was not free to leave,

nor was there any evidence presented that either positioned himself in a

manner that obstructed Appellant’s ability to continue walking down the street


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J-S09043-22


See 

 Quite the opposite is true, as

Appellant ran away from them after trying to divert their attention.

      As our Supreme Court has stated:

             These were permissible acts that do not implicate the Fourth
      Amendment or Article I, § 8. Therefore, any “escalation” perceived
      by appellant or by the officer did not render the request
      objectively unconstitutional. The request was not accompanied by
      physical restraint, manifestation of authority, or a mandate to
      comply. The officer simply asked for appellant's identification; he
      did not demand it or require acquiescence, and appellant gave it
      to him voluntarily. The officer did not express dissatisfaction with
      appellant's reply or tell appellant he was not free to leave. There
      is no evidence appellant was confined or prevented from
      departing, or that the officer impeded his movement in any way,
      as the interaction took place on a public street in broad daylight.
      There was no evidence the officer brandished a weapon or
      threatened appellant or that the interaction was per se coercive
      or intimidating. There is no record of the officer displaying an
      aggressive demeanor or using an authoritative tone suggesting
      there would be negative consequences if appellant failed to
      identify himself; he did nothing more than request appellant's
      identification. Had there been no repetitive furtive conduct by
      appellant, there is no reason to think the encounter would not
      have terminated promptly once the officer recorded the minimal
      information he requested.
                                      …

      Although he also testified he believed appellant was not free to
      leave while he was recording the information, this was not
      affirmatively expressed to appellant. And as noted, the officer's
      subjective views are as immaterial to the objective standard as
      are appellant's. See Commonwealth v. Lagana, 

,
      

, 1355 n. 4 (1988) (citation omitted) (“The test of
      when a person is arrested is an objective one and depends upon
      the reasonable impression conveyed to the person seized and not
      the subjective view of the officers or the person being seized.”).

Commonwealth v. Lyles, 

, 355–56, 

(2014).


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J-S09043-22


      In viewing the totality of the circumstances surrounding the incident

herein, we find the initial interaction did not escalate beyond a mere encounter

which did not require any level of suspicion. See 

Because the trial court’s factual findings are supported by the record, its ruling

on Appellant’s suppression motion was proper. 

 Accordingly,

we affirm Appellant’s judgment of sentence.

     Judgment of Sentence Affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2022




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