J-S13019-23
2023 PA Super 90
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
QUISEAN BARNES : No. 1066 EDA 2022
Appeal from the Order Entered March 21, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0007051-2021
BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY MURRAY, J.: FILED MAY 26, 2023
The Commonwealth of Pennsylvania appeals the trial court’s order
granting suppression of a statement to police and evidence seized following
an investigative stop of Quisean Barnes’ (Barnes).1 After careful review, we
reverse and remand for further proceedings.
The trial court summarized the evidence presented at the suppression
hearing:
On July 20, 2021, Officer [Marc] Kusowski and his partner were
on patrol on the 3000 block of N. 8th Street in Philadelphia. [N.T.,
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 The Commonwealth has certified that the suppression order will terminate
or substantially handicap the prosecution. See Pa.R.A.P. 311(d) (permitting
the Commonwealth to “appeal as of right from an order that does not end the
entire case where the Commonwealth certifies in the notice of appeal that the
order will terminate or substantially handicap the prosecution”).
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2/15/22, at] 7. According to Officer Kusowski, this area is an
“extremely high-crime area” and is a “notorious area for
shootings.” Id. at [] 8. He also stated that they “routinely man
a [radio patrol car (RPC)] to sit at either 8th and Clearfield or
Garrett and Clearfield and they are not to be moved.” Id. While
on patrol, Officer Kusowski and his partner [were] traveling
northbound on 8th Street, approaching Clearfield, when Officer
Kusowski observed a crowd of about five or six people on the
northeast corner of 8th and Clearfield. Id. at [] 7[.] Officer
Kusowski testified that it appeared to him that once they saw the
patrol vehicle, “they began to scatter and walk away in separate
directions.” Id. at [] 8.
[Barnes] began walking southbound, towards the patrol
vehicle with at least one other male. Id. Officer Kusowski
believes that the crowd was scattering because of the mere
presence of his patrol vehicle. Id. After the crowd scattered,
Officer Kusowski exited his vehicle to see if he could make
observations outside of his patrol vehicle, see if someone had a
gun, or see if someone discarded narcotics or a firearm. Id. at []
8-9. As he stepped out of his vehicle, he saw [Barnes] again
walking southbound. Id. at 9. He illuminated his flashlight to see
if he could observe anything on [Barnes’s] person. Id. Next,
Officer Kusowski exited his vehicle and when he did so, [Barnes]
fled. Id. Officer Kusowski testified that he did not activate any
lights, sirens, or even engage in a conversation with [Barnes]. Id.
[Barnes] fled[] approximately ten feet, where there was a vacant
lot full of bramble. Id. Officer Kusowski stated that he did pursue
[Barnes] into the lot. Id. Once [Barnes] tripped over some
bramble, Officer Kusowski ordered [Barnes] to stop and put his
hands up. Id. [Barnes] complied with the orders. Id.
During the pursuit, Officer Kusowski noticed that [Barnes]
had a “black shoulder bag” that resembled a fanny pack. Id.
While detaining [Barnes], Officer Kusowski’s partner asked
[Barnes] if he had a gun in the bag. Id. As Officer Kusowski goes
to frisk the bag, [Barnes] stated that he had a gun in the bag. Id.
at 10. Further, [Barnes] told the officers that he did not have a
permit to carry and that he was on probation. Id.
Trial Court Opinion, 9/16/22, at 1-2.
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Police arrested Barnes, who filed a pretrial suppression motion on
September 17, 2021. On March 21, 2022, after a hearing, the trial court
granted Barnes’s motion, suppressing his statements and the evidence seized
by police during the investigative stop. Trial Court Order, 3/21/22. The
Commonwealth filed this timely appeal. The trial court and the
Commonwealth have complied with Pa.R.A.P. 1925.
The Commonwealth presents the following issue:
Did the [suppression] court err in concluding that police did not
have reasonable suspicion to stop [Barnes] when he fled from the
officers in a high-crime area?
Commonwealth’s Brief at 4.
We first observe our scope and standard of review:
When reviewing an order granting a defendant’s motion to
suppress evidence, “we are bound by that court’s factual findings
to the extent that they are supported by the record, and we
consider only the evidence offered by the defendant, as well as
any portion of the Commonwealth’s evidence which remains
uncontradicted, when read in the context of the entire
record.” Commonwealth v. Wallace, 615 Pa. 395,
42 A.3d
1040, 1048 (Pa. 2012) (citation omitted). “Our review of the legal
conclusions which have been drawn from such evidence, however,
is de novo, and, consequently, we are not bound by the legal
conclusions of the lower courts.” Id. (citation omitted).
Moreover, our scope of review from a suppression ruling is limited
to the evidentiary record that was created at the suppression
hearing. See In re L.J., 622 Pa. 126,
79 A.3d 1073, 1087 (Pa.
2013).
Further, Pa.R.Crim.P. 581 provides that “[t]he Commonwealth
shall have the burden ... of establishing that the challenged
evidence was not obtained in violation of the defendant’s rights.”
Pa.R.Crim.P. 581(H). Specifically, the Commonwealth has the
burden of “establish[ing] by a preponderance of the evidence that
the evidence was properly obtained.” Commonwealth v.
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Galendez, 27 A.3d 1042, 1046 (Pa. Super. 2011) (citation
omitted).
Commonwealth v. Smith, 285 A.3d 328, 331-32 (Pa. Super. 2022).
The Commonwealth challenges the trial court’s conclusion that police
“did not have reasonable suspicion to stop [Barnes].” Commonwealth’s Brief
at 10 (quoting Trial Court Opinion, 9/16/22, at 4). In support, the
Commonwealth cites cases holding that presence in a high-crime area coupled
with unprovoked flight establishes reasonable suspicion that criminal activity
is afoot. Id. at 11-12. According to the Commonwealth, the evidence
established Barnes’s presence in “an extremely high—high-crime area.” Id.
at 12 (quoting N.T., 2/15/22, at 8). The Commonwealth directs our attention
to Officer Kusowski’s testimony that he patrolled the area “all the time” due
to violence. Id. (citation omitted). The Commonwealth asserts:
The area was so bad that the police “routinely” designated an
officer “to sit” on one of the street corners in a police car in an
attempt to stem the violence.
Id. (quoting N.T., 2/15/22, at 8).
The Commonwealth states that as the officer and his partner drove down
the street, people who were standing on the corner began to “scatter, or walk
away in different directions, when they spotted the approaching police car.”
Id. at 12. Barnes walked toward the officers’ car. Id. at 11-12. The
Commonwealth observes that Barnes fled when Officer Kusowski “turned on
his flashlight and began to get out of his car.” Id. at 13.
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Once [Barnes] fled unprovoked from the officers and did so in “an
extremely high—high-crime area,” … the officers had a reasonable
suspicion to stop him. Accordingly, they were entitled to pursue
him. See Commonwealth v. McCoy, 154 A.3d [813,] 819 [(Pa.
Super. 2017)] (“[b]ecause police possessed reasonable suspicion,
their pursuit of [the defendant] was lawful”).
Commonwealth’s Brief at 13. The Commonwealth disputes the trial court’s
conclusion that “Officer Kusowski did not have a reasonable suspicion to stop
[Barnes]” and the court “properly suppressed the evidence” as contrary to the
law. Id. (citing Trial Court Opinion, 9/16/22, at 4). We agree.
The Fourth Amendment to the United States Constitution, incorporated
to states by and through the Fourteenth Amendment to the United States
Constitution, and Article I, Section 8 of the Pennsylvania Constitution, protect
citizens from “unreasonable searches and seizures.” U.S. Const. amend. IV
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized.
Id. Similarly, Article I, Section 8 provides:
The people shall be secure in their persons, houses, papers and
possessions from unreasonable searches and seizures, and no
warrant to search any place or to seize any person or things shall
issue without describing them as nearly as may be, nor without
probable cause, supported by oath or affirmation subscribed to by
the affiant.
Pa. Const. art. 1, § 8.
This Court has explained:
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The law recognizes three distinct levels of interactions between
police officers and citizens: (1) a mere encounter; (2) an
investigative detention, often described as a Terry stop, see
Terry v. Ohio, 392 U.S. 1,
88 S.Ct. 1868,
20 L.Ed.2d 889 (1968);
and (3) a custodial detention.
A mere encounter can be any formal or informal interaction
between an officer and a citizen, but will normally be an inquiry
by the officer of a citizen. The hallmark of this interaction is that
it carries no official compulsion to stop or respond and therefore
need not be justified by any level of police suspicion.
In contrast, an investigative detention carries an official
compulsion to stop and respond. Since this interaction has
elements of official compulsion it requires reasonable suspicion of
unlawful activity.
Finally, a custodial detention occurs when the nature, duration and
conditions of an investigative detention become so coercive as to
be, practically speaking, the functional equivalent of an arrest.
This level of interaction requires that the police have probable
cause to believe that the person so detained has committed or is
committing a crime.
Commonwealth v. Jefferson, 256 A.3d 1242, 1247-48 (Pa. Super. 2021)
(en banc) (citations, quotation marks and ellipses omitted).
Regarding an investigatory stop:
[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. These circumstances are to be
viewed through the eyes of a trained officer.
Commonwealth v. Thomas, 273 A.3d 1190, 1197 (Pa. Super. 2022)
(citations and quotation marks omitted).
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
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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, 904 A.2d 947, 957 (Pa. Super. 2006) (citations
and quotation marks omitted); accord Thomas,
273 A.3d at 1197.
Here, the trial court recognized that unprovoked flight in a high-crime
area may establish reasonable suspicion of criminal activity:
Under Pennsylvania law, mere presence in a high crime area is
insufficient to support a finding of reasonable suspicion. In re
D.M II, 781 A.2d 1161, 1163 (Pa. 2001). However, a court could
consider “the fact that the stop occurred in a ‘high crime area” in
assessing the totality of the circumstances. In re D. M. II, 781
A.2d at 1164. Further, unprovoked flight in a high crime area is
sufficient to create a reasonable suspicion to justify a Terry stop
under both federal and state [constitutions]. Commonwealth v.
Jefferson, 853 A.2d 404 (Pa. Super. 2004). Police officers may
find reasonable suspicion to suspect criminal activity is afoot in a
high crime area where an unprovoked citizen flees upon noticing
the police. Jefferson, 853 A.2d 404; see also In the Interest
of J.G., 860 A.2d 185 (Pa. Super. 2004).
Trial Court Opinion, 9/16/22, at 3. Notwithstanding, the trial court concluded
Officer Kusowski lacked reasonable suspicion to effectuate a Terry stop:
The instant matter is distinguishable from Jefferson and In re D.
M. In those cases, there was a either a radio call or the
defendant abandoned and/or discarded evidence during
the pursuit. Here, there was no radio call describing [Barnes],
[Barnes] did not abandon evidence during the pursuit, nor did he
flee during a lawful encounter with police. In this case, Officer
Kusowski saw a group scatter and witnessed [Barnes] was
southbound. As Officer Kusowski exits the car, [Barnes] began to
run. Lastly, the gun was retrieved from [Barnes’s] bag during a
frisk and not abandoned. Therefore, Officer Kusowski did not have
reasonable suspicion to stop [Barnes], and this court properly
suppressed the evidence.
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Trial Court Opinion, 9/16/22, at 4 (emphasis added). Upon careful review, we
disagree with the trial court’s analysis and conclusion.
The trial court adds an additional factor to its reasonable suspicion
analysis, i.e., a radio call describing the suspect. See id. The case law does
not support this additional factor. In Jefferson, this Court addressed
“whether the observation of [the] appellant in a high crime area and [his]
flight from police combine to establish the familiar Terry standard of
reasonable suspicion.” Jefferson,
853 A.2d at 405. We recognized that
Illinois v. Wardlow,
528 U.S. 119 (2000),
[t]he United States Supreme Court held that although mere
presence in a high crime area is insufficient to support
a Terry stop, the additional factor of unprovoked flight was
indeed relevant. The Court ultimately concluded that the two
factors in combination were sufficient to satisfy the Terry
standard of reasonable suspicion. Id. at 124.
Jefferson,
853 A.2d at 406. We further observed that the Pennsylvania
Constitution affords no additional protections:
Following [Wardlow], it is evident that unprovoked flight in a
high crime area is sufficient to create a reasonable suspicion to
justify a Terry stop under the Fourth Amendment….
Id. at 406 (quoting D.M. II,
781 A.2d at 1164). While additional facts may
negate reasonable suspicion, Wardlow requires no additional facts to
establish reasonable suspicion. Thus, we conclude the trial court erred as a
matter of law by imposing an additional requirement to its reasonable
suspicion analysis. See Commonwealth v. Washington,
51 A.3d 895, 898
(Pa. Super. 2012) (recognizing the common elements between, inter alia,
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Wardlow, Jefferson and D.M. II, are that “the incident took place in a high
crime area and the suspect fled upon being confronted by the police or
recognizing police presence in the immediate area.”)
Mindful of the foregoing, we review the evidence presented at the
suppression hearing in a light most favorable to Barnes. See Smith, 285 A.3d
at 331-32. Officer Kusowski testified:
[T]hat area is an extremely … high-crime area. It is one of our
more notorious areas for shootings. We’ve had six people shot at
a time, four people shot, two people shot. We would routinely
man a [radio police car] to sit at either 8th and Clearfield or Garrett
and Clearfield, and they are not to be moved.
N.T., 2/15/22, at 8. Officer Kusowski explained that on the evening of July
20, 2021, he and his partner were on routine patrol near the 3000 block of
North 8th Street. Id. at 6-7. As the officers traveled northbound on 9th Street,
Officer Kusowski
observed a crowd of about five to six people on the northeast
corner of 9th and Clearfield. … It appeared to me that once they
saw my patrol vehicle, they all began to … scatter, walk away in
separate direction [sic].
….
… [S]ince the crowd began to scatter—and I believe this was
happening because of the mere presence of my patrol vehicle. I
went to exit my vehicle just to see if I can, maybe, make any
observations outside of my patrol vehicle….
As I went to do that, … [Barnes] was walking, again,
southbound. I believe I illuminated my flashlight just to see – any
of the males, if I could see anything on their person. And when I
exited my vehicle, without activating my lights or sirens, or even
engaging anyone in conversation, [Barnes] fled[.]
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He was carrying a black shoulder bag, kind of like a fanny
pack, but more square, rectangular. He fled, maybe ten feet, …
only a couple of houses, where there was a break between the
houses, … a vacant lot full of bramble.
… I did pursue him into that lot. Me and him began tripping.
He tripped over some bramble. I ordered him to stop, put his
hands up. He did so. He did comply. He couldn’t get back up.
At the same time, … my partner was now with me ….
[A]s I went to detain the male, my partner asked if he had
a gun in the bag. Almost simultaneously, as I went to frisk it, he
does reply yes, and I also feel a gun in that bag….
N.T., 2/15/22, at 7-9.
This testimony, viewed in a light most favorable to Barnes, established
Barnes’s unprovoked flight, upon seeing Officer Kusowski, in a high-crime
area. Pursuant to Wardlow, Jefferson, and D.M.II, this evidence
established reasonable suspicion sufficient to justify a Terry stop of Barnes.
See Washington, 51 A.3d at 898. Our analysis does not conclude at this
point.
Barnes argues that Officer Kusowski’s investigative detention escalated
into a custodial detention. Appellee’s Brief at 11. According to Barnes:
In response to this unprovoked flight, and only in response to this
unprovoked flight, Officer Kusowski armed himself with a taser
and chased [Barnes] into an empty lot. While Officer Kusowski
had [Barnes] cornered in the lot, on his knees, he pointed the
taser at [Barnes], ordered him stop and to place his hands up.
[Barnes] placed his hands up around his face. At this point Officer
Kusowski testified he was “taking [Barnes] into custody” and
handcuffing him. (N.T., 2/15/22, at 14).
Id. Barnes claims these actions occurred at the same time Officer Kusowski’s
partner asked Barnes whether he had a firearm.
Id. Barnes argues that the
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officers’ coercion and questioning took place prior to the recovery of the
firearm. Id. at 11-12. The trial court did not determine whether the
encounter became a custodial detention.
An investigative detention may develop into a custodial detention.
Commonwealth v. Wright, 224 A.3d 1104, 1109 (Pa. Super. 2019). “The
key difference between an investigative and a custodial detention is that the
latter involves such coercive conditions as to constitute the functional
equivalent of an arrest.” Commonwealth v. Gonzalez,
979 A.2d 879, 887
(Pa. Super. 2009) (emphasis added, citation and quotation marks
omitted). This Court considers the totality of circumstances to determine if
an encounter is investigatory or custodial. See Commonwealth v.
Goldsborough,
31 A.3d 299, 306 (Pa. Super. 2011).
We have explained:
The factors a court utilizes to determine, under the totality of the
circumstances, whether a detention has become so coercive as to
constitute the functional equivalent of arrest include: the basis for
the detention; its length; its location; whether the suspect was
transported against his or her will, how far, and why; whether
restraints were used; whether the law enforcement officer
showed, threatened or used force; and the investigative methods
employed to confirm or dispel suspicions.
Commonwealth v. Baker, 24 A.3d 1006, 1019-20 (Pa. Super. 2011)
(citations omitted).
At the suppression hearing, Officer Kusowski testified:
I didn’t use my taser, but I did order him to the ground with my
taser. Although I feared that he may have been armed, it would
not have been safe for me to point my duty weapon at anyone
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because we’re literally tripping. So I didn’t want to pull my duty
weapon out for fear of an accidental discharge. So I pointed my
taser at him and ordered him to the ground.
N.T., 2/15/22, at 12-13.
On cross-examination, Officer Kusowski further testified:
Q. [Defense counsel:] Officer, when he’s down on his knees, with
his hands in the air, cornered in that alley by you, obviously, he
couldn’t go anywhere at that point?
A. [Officer Kusowski:] No. No. Neither -- I don’t think either of
us could have gone anywhere.
Id. at 21. Officer Kusowski explained that when Barnes fell to the ground,
the other officer ordered Barnes to put his hands up. Id. at 17. When the
other officer asked if there was a gun in the bag, Barnes replied, “Yes, sir.”
Id. at 18.
As this Court explained, a “Terry stop” is “[a]n investigative detention
[that] occurs when a police officer temporarily detains an individual by means
of physical force or a show of authority for investigative purposes.”
Commonwealth v. Barber, 889 A.2d 587, 592 (Pa. Super. 2005) (emphasis
added). Here, our review discloses that Officer Kusowski’s use of force and/or
show of authority had not escalated to a custodial detention at the time
Appellant acknowledged possessing a firearm. Thus, the totality of the
circumstances demonstrates Officer Kusowski effected an investigatory stop
of Barnes supported by reasonable suspicion of criminal activity. See
Washington,
51 A.3d at 898. Consequently, we reverse the trial court’s
order suppressing the evidence seized as a result of the investigatory stop.
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Order reversed. Case remanded for further proceedings consistent with
this Opinion. Jurisdiction relinquished.
P.J.E. Stevens joins the opinion.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2023
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