Commonwealth v. Campbell

1

COMMONWEALTH OF PENNSYLVANIA v. CE'JII KANO CAMPBELL Appellant

No. 360 EDA 2023

J-A28030-23

Superior Court of Pennsylvania

April 1, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered January 5, 2023 In the Court of Common Pleas of Delaware County Criminal Division at No: CP-23-CR-0005154-2021

BEFORE: OLSON, J., STABILE, J., and COLINS, J. ^[*]

MEMORANDUM

STABILE, J.

Appellant Ce'jii Kano Campbell, appeals from the January 5, 2023 judgment of sentence imposing an aggregate 30 to 60 months of incarceration for firearms not to be carried without a license and possession of a firearm prohibited. After review we affirm.

The trial court summarized the pertinent facts:

[O]n October 5, 2021, at approximately 6:00 p.m., [Officer Geoffrey Walls] was on patrol near the intersection of West Third and Thurlow Streets in the City of Chester. At the time of this incident, Officer Walls had been a patrol officer in the City of Chester for more than three years. The area around the intersection of West Third and Thurlow Streets is a high-crime area known for violent crime and open-air drug sales. Officer Walls, himself, previously witnessed a shootout at this same intersection.

While on patrol on October 5, 2021, Officer Walls observed Appellant Ce'Jii Campbell standing [] by the intersection wearing a ski mask. Officer Walls described the ski mask as a "full mask" that covered his entire face except his eyes. At the time, the outdoor temperature was 66 degrees Fahrenheit. The weather did not require thermal protection from a ski mask. Obviously, the ski mask was worn for some other purpose. During his employment as a Chester Police Officer, Officer Walls had previously encountered individuals wearing ski masks and those individuals were commonly involved in robberies, shootings, and homicides.

Appellant was seen approaching an occupied vehicle while grasping his waistband in a manner Officer Walls recognized from his training and experience as indicative of a person carrying an illegal firearm. When Appellant noticed Officer Walls, he stepped out of the street and positioned himself in such a way that a car was between him and Officer Walls, blocking Walls' view. Officer Walls got out of his patrol vehicle which prompted Appellant to begin walking away from the intersection. As Appellant walked away, he was manipulating an object in his jacket pocket and was continually looking back at Officer Walls while positioning part of his body away from the officer. Officer Walls demonstrated the maneuver and described it as "blading." Based on Officer Walls' training and experience, he recognized the "blading" maneuver as consistent with a person in possession of an illegal firearm or other contraband and trying to obscure it from view.

Based on Appellant wearing a ski mask in a high crime area during warm weather coupled with Appellant's familiar "blading" maneuver, Officer Walls conducted an investigatory detention and pat down. Upon performing the pat down, Officer Walls discovered a Glock .40 caliber handgun in Appellant's waistband.

Trial Court Opinion, 4/11/23, at 3-5.

Appellant filed a motion to suppress and argued that he was unlawfully subjected to a stop and frisk. A suppression hearing was held, and the trial court denied the motion. Appellant filed a motion for reconsideration, which was denied after oral argument. The parties proceeded to a stipulated bench trial wherein the trial court found Appellant guilty and sentenced him to an aggregate term of 30 to 60 months of incarceration. This appeal followed.

Appellant raises two issues for our review:

1. Whether the trial court erred by denying Appellant's motion to suppress physical evidence and statements where appellant was seized in the absence of specific and articulable facts to support a reasonable suspicion that criminal activity was afoot and frisked in the absence of reasonable suspicion that he was armed and dangerous, in violation of the United States and Pennsylvania Constitutions?

2. Whether the trial court erred by denying appellant's motion to suppress physical evidence and statements where the search of appellant exceeded the scope of a permissible Terry frisk, in violation of the United States and Pennsylvania Constitutions?

Appellant's Brief at 4.

It is well-settled that:

[O]ur 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 are supported by the record and whether the legal conclusions drawn from those facts are correct. We are bound by the suppression court's factual findings so long as they are supported by the record; our standard of review on questions of law is de novo. Where, as here, the defendant is appealing the ruling of the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted. Our scope of review of suppression rulings includes only the suppression hearing record and excludes evidence elicited at trial.

Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (internal citations omitted).

The Fourth Amendment to the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution protect citizens against unreasonable searches and seizures by law enforcement. U.S. Const. amend. IV; Pa. Const. Art. I, § 8. "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. Luczki, 212 A.3d 530, 542 (Pa. Super. 2019). There are three general levels of contact between the police and citizens: (1) mere encounter; (2) investigative detention; and (3) custodial arrest. Id. Here, both parties and the trial court agree that the interaction was an investigative detention.

An investigative detention "constitutes a seizure of a person, and to be constitutionally valid police must have a reasonable suspicion that criminal activity is afoot." Commonwealth v. Adams, 205 A.3d 1195, 1199-1200 (Pa. 2019). For a stop and frisk to be constitutionally sound, the following two conditions must be met:

First, the investigatory stop must be lawful. That requirement is met in an on-the-street encounter … where the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person is armed and dangerous.

Interest of T.W., 261 A.3d 409, 417 (Pa. 2021) (citing Arizona v. Johnson, 555 U.S. 323, 326-27 (2009)). While officer safety is a legitimate interest, it only enters a Fourth Amendment analysis if the investigative detention was supported by reasonable suspicion. Adams, 205 A.3 at 1204. "A contrary conclusion would eviscerate the Fourth Amendment since a concern for officer safety is present in nearly all interactions police have with members of the public." Id. "Simply put, in the absence of reasonable suspicion of criminal activity justifying an investigative detention, officer safety is not a permissible basis for police to seize an individual during a mere encounter." Id.

A reasonable suspicion analysis considers the totality of the circumstances. Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004). "[A]n investigative detention is constitutionally permissible if an officer identifies "specific and articulable facts" that led the officer to believe that criminal activity was afoot, considered in light of the officer's training and experience." Adams, 205 A.3d at 1205. The test is not limited to facts that clearly indicate criminal conduct. Rogers, 849 A.2d at 1189. "Rather, [e]ven a combination of innocent facts, when taken together, may warrant further investigation by the police officer." Id. (internal citations omitted).

Recently, our appellate courts have cautioned that the characterization of a neighborhood, i.e., high crime and/or high drug, should not be the primary basis for reasonable suspicion. See Commonwealth v. Barr, 266 A.3d 25, 44 (Pa. 2021) (the fact that a traffic stop occurred in a high crime area, without more, is not relevant to whether troopers had probable cause to search the vehicle); Commonwealth v. Hicks, 208 A.3d 916, 951 (Pa. 2019) ("Even taking into account the early morning hour and [the] characterization of the neighborhood, there remains no particularized basis upon which to suspect that [defendant's] mere possession of a concealed firearm was unlawful"); Commonwealth v. Brown, 2020 WL 6335982 (Pa. Super. 2020) (unpublished memorandum) ("while the police's characterization of a neighborhood may enhance suspicion if tied to some specific conduct by the frisked individual, it does not carry much weight in and of itself").

Here, Walls testified that the reason he stopped Appellant was "due to him possibly possessing contraband or a firearm." N.T. Suppression, 5/18/22, at 62. Walls stated the pat-down occurred because he believed Appellant "was armed and possibly a danger to myself or others." Id. at 27. This belief was "due to how he was turning his body and avoiding me being able to see the front of the waistband area." Id. at 30. Walls explained that "it draws concern when the person's looking over their shoulder at me and I can't view their hands." Id. at 52.

The trial court found Walls had reasonable suspicion to conduct an investigatory detention of Appellant. Trial Court Opinion 4/11/23, at 6. First, Appellant was wearing a ski mask in a high-crime area despite...