Commonwealth v. Noel, J-A09013-15

COMMONWEALTH OF PENNSYLVANIA, Appellant v. MALIK NOEL, Appellee

J-A09013-15

No. 1087 EDA 2014

SUPERIOR COURT OF PENNSYLVANIA

JUNE 17, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered March 13, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006259-2013

BEFORE: BOWES, DONOHUE, AND STABILE, JJ.

MEMORANDUM BY BOWES, J.:

The Commonwealth appeals from the order entered March 13, 2014, granting Malik Noel's motion to suppress. After careful review, we reverse.

The suppression court relayed the following facts.

On February 14, 2013, at 2:59 pm, in the 3000 block of North 22^nd Street, Police Sergeant William Schmid received three separate radio calls regarding anonymous tips of a black male in the area with a gun. The first radio call described a black male, medium complexion, white thermal shirt, black coat, bushy hair, and 30 years old, who arrived in a red and black Charger and went into a barbershop. The second radio call described a black male wearing a white jacket and blue jeans, who was armed, and went into a barbershop. The third radio call described a black male wearing a black jacket, white thermal top, blue jeans, and black shoes, with a gun on his hip. All of the radio calls were from anonymous sources.

Sergeant Schmid and his partner arrived on the 3000 block of North 22^nd Street one to two minutes after receiving the radio call. They initially entered a women's hair salon on the first floor

of 3033 North 22^nd Street. Sergeant Schmid inquired if anyone in the hair salon had called regarding a person with a gun. A female inside the salon said they had not called. The officers were ready to walk back outside when the female asked if the officers were aware that there is a barbershop upstairs. The officers went back outside and opened the door next to the door that opened the salon. The other door led to the second floor of the same building where the salon was located.

The officers walked up the stairs to the second floor and entered a barbershop on the second floor of 3033 North 22^nd Street. The barbershop was a single, open room with two barber chairs. Each chair was occupied by a customer whose hair was being cut by a barber. As he stepped inside the barbershop, Sergeant Schmid looked to see if anyone in the shop matched the anonymous flash information. He also inquired if anyone had called the police regarding a person with a gun. Nobody in the barbershop responded.

Sergeant Schmid then observed Defendant, who was seated facing away from the sergeant in a barber's chair, with his back to the sergeant, and wearing a barber's cape. Defendant was getting his haircut by one of the barbers. Defendant's arms were outside the barber's cape, and Sergeant Schmid observed that Defendant was wearing a white thermal shirt.

When Sergeant Schmid made these observations, both of Defendant's arms were resting on the arm rest of the barber chair. Sergeant Schmid also observed Defendant "take his left hand and start to slide it down between himself and the arm of the barber chair, starting to go under the black cape, that was draped over." As he closed the less than 10 feet to the chair, Sergeant Schmid said to Defendant, "Let me see your hand." He then pinched the cape and tossed it off of Defendant. When he pinched the cape, Defendant's left hand was under the cape.

Sergeant Schmid explained that he removed the cape because:

The male fit the description for the person with the gun, there were multiple calls. He was the only one in the location that fit the description and he was concealing hishand under the barber cape. I didn't know what he was going for or what he was doing with his hand. I didn't know if he was reaching for a weapon or trying to conceal something, drugs or gun. I don't know what he was doing.

Sergeant Schmid also testified that—when Defendant moved his hand—he was not reaching or grabbing at any specific pocket or area. Rather, Defendant simply moved his hand from on top of the cape to underneath the cape and rested his hand under the cape on the arm of the barber chair.

After the apron was thrown off, Defendant leaned forward in the chair. As he leaned forward, Sergeant Schmid saw the outline of a very large handgun protruding from Defendant's waistband. Sergeant Schmid recovered the gun and arrested Defendant.

Suppression Court Opinion, 8/13/14, at 1-3 (emphasis in original) (internal citations omitted).

The Commonwealth charged Appellee with person not to possess a firearm, carrying an unlicensed firearm, carrying a firearm in public in Philadelphia, and receiving stolen property. The non-firearms violation was dismissed at a preliminary hearing. Thereafter, on March 13, 2014, Appellee litigated a suppression motion "under Article One, Section Eight of the Pennsylvania Constitution." N.T., 3/13/14, at 5.¹ Specifically, Appellee argued that "police lacked reasonable suspicion to stop and frisk thedefendant[.]" Id. According to Appellee, the anonymous information received by the police did not warrant the seizure and search. The suppression court agreed, concluding:

The anonymous source has, in my view, no indicia of [re]liability and although the defendant marginally fits part of the flash, that was he was a black male, wearing a tan to beige shirt with blue jeans, there's insufficient information to corroborate the anonymous tip. I'll also regard—give appropriate regards to the area of arrest, which was inside of the barber shop, that this sergeant was not aware of—known for any criminal activity. Although, certainly the area itself is a high-crime area. This is like—unlike most of the cases, where there is due regard for the area of arrest, which would be on the street or corner or somewhere out in the public. This was actually inside private property, in a second floor, in a private business.

I'll also make a finding that there's no movement by the defendant to suggest that he had a weapon or was armed and dangerous. The sergeant did not observe any bulge, any shape of a weapon prior to the defendant being seized and there was no failure to comply with any instruction or orders given by the officer and no nervousness displayed by the defendant.

N.T., 3/13/14, at 63-64.

This appeal ensued. The Commonwealth's sole contention on appeal is:

Did the suppression court err by suppressing the gun that experienced police officers recovered from defendant's person in a frisk where he invited reasonable suspicion by concealing his hand under a barber's cape as the officers approached him in a violent, high-crime area in response to flash information describing a gunman with his appearance?

Commonwealth's brief at 1.

This Court evaluates the grant of a suppression motion under well-established principles. We consider the evidence of the defendant, as the prevailing party below, and any evidence of the prosecution that is uncontradicted when examined in the context of the suppression record. Commonwealth v. Peterson, 17 A.3d 935, 937 (Pa.Super. 2012). This Court is bound by the factual findings of the suppression court where the record supports those findings and may only reverse when the legal conclusions drawn from those facts are in error. Id. Importantly, we are not bound by the legal conclusions of the suppression court. In re T.B., 11 A.3d 500, 505 (Pa.Super. 2010).

We begin by noting that in considering interaction between law enforcement and other citizens, Pennsylvania courts look to whether the subject interaction is a mere encounter, an investigatory detention, or a custodial detention, i.e., an arrest. A mere encounter does not require police to have any level of suspicion that the person is engaged in wrongdoing. Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.Super. 2012). At the same time, such an encounter does not carry any official compulsion for the party to stop or respond. Id. An investigative detention, however, subjects an individual to a stop and short period of detention. Id. This seizure does not involve actions that are so coercive as to comprise the equivalent of an arrest. Id. To conduct an investigative detention, police must have reasonable suspicion of criminal activity. Id.

"[T]his standard is met 'if the police officer's reasonable and articulable belief that criminal activity was afoot is linked with his observation of suspicious or irregular behavior on behalf of the particular defendant stopped.'" Commonwealth v. Kearney, 601 A.2d 346, 348 (Pa.Super. 1992) (citing Commonwealth v. Espada, 528 A.2d 968 (Pa.Super. 1987)). It is well-settled that "[m]ere presence near a high crime area or in the vicinity of a recently reported crime, is not enough to warrant a Terry[²] stop." Id. Nonetheless, it is also established that "even a combination of innocent facts, when taken together, may warrant further investigation[.]" Commonwealth v. Kemp, 961 A.2d 1247, 1255 (Pa.Super. 2008) (en banc)); see also Commonwealth v. Cook, 735 A.2d 673, 676 (Pa. 1999). As this Court cogently stated in Commonwealth v. Riley, 715 A.2d 1131, 1135 (Pa.Super. 1998), "Merely because a suspect's activity may be consistent with innocent behavior does not alone make detention and limited investigation illegal. . . . Rather, we view the circumstances through the eyes of a trained officer, not an ordinary citizen."

We consider what level of interaction occurred under a totality of the circumstances test. Commonwealth v. Williams, 73 A.3d 609, 615-616 (Pa.Super. 2013). This standard is an objective one and looks to the reasonable belief of the citizen and not the subjective view of lawenforcement. Commonwealth v. Lyles, 54 A.3d 76, 83 (Pa.Super. 2012). "In evaluating the circumstances, the focus is directed toward whether, by means of physical force or show of authority, the citizen-subject's movement has in some way been restrained." Id. at 79-80. Accordingly, we look to whether "in view of all surrounding circumstances, a...