Commonwealth v. Smith

COMMONWEALTH OF PENNSYLVANIA, Appellee v. DAJON ANTHONY SMITH, Appellant

J-S13008-15

No. 375 WDA 2014

SUPERIOR COURT OF PENNSYLVANIA

APRIL 1, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered November 21, 2013

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0016741-2012

BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY BENDER, P.J.E.:

Appellant, Dajon Anthony Smith, appeals from the judgment of sentence of 30-60 months' incarceration and a consecutive year of probation, following his conviction for carrying a firearm without a license. Appellant claims the trial court erred when it denied his motion to suppress the seized firearm, and that the sentence imposed constituted an abuse of the court's discretion. After careful review, we affirm.

The trial court summarized the facts relevant to this appeal as follows:

On November 11, 2012, Officer James Goss of the City of McKeesport Police Department, a[n] [officer for] ten (10) year[s] ..., was patrolling in a marked patrol unit ... within the [City of McKeesport] when he observed [Appellant] and a second male. This area of the City of McKeesport is a very high crime area, with the officer['s] having handled five (5) homicides within a [nearby] city block. Officer Goss had just turned onto 13^th Street when he noticed [Appellant] and the second individual walking towards him. As his cruiser passed the men, he noticed them looking "very nervously" toward him. He then saw[Appellant] reach towards the center of the waistband of his pants with both hands as if to conceal something. Officer Goss recognized the individual reaching for his waistband as [Appellant] from prior encounters with him. The men continued to look at Officer Goss nervously even after he had passed them.

Officer Goss made a right turn onto Jenny Lind Street, and then turned his car around to initiate contact with [Appellant]. He contacted a fellow officer, Officer Matthews, for back-up support as he proceeded back towards [Appellant]. Officer Goss parked his vehicle, exited it and began walking toward [Appellant] and his companion, asking them to remove their hands from their pockets and place them behind their heads. Officer Goss requested that [Appellant] and his companion show their hands for officer safety. He believed that [Appellant] might be concealing a firearm due to a prior experience with him. As he was requesting to see their hands, Officer Matthews was approaching the two (2) men from behind, on foot. [Appellant] looked behind him nervously, toward Officer Matthews, who was in uniform and driving a marked police unit. [Appellant] then fled, with Officer Matthews giving chase.

[Appellant] fled towards the Harrison Village area of the City of McKeesport, with Officer Matthews, a seven (7) year police veteran, giving chase. Officer Matthews noticed that [Appellant] was holding the right side of his pants['] waistband area as he fled. As [Appellant] ran between Buildings One (1) and Two (2) in Harrison Village, Officer Matthews saw him throw a silver firearm from his waistband. Officer Matthews immediately stopped his pursuit and recovered a firearm from a dumpster. It should be noted that there was no one else running near [Appellant] when the officer observed the firearm being thrown.

Trial Court Opinion (TCO), 10/1/2014, 2-4.

When subsequently arrested, Appellant was charged by criminal information with carrying an unlicensed firearm, 18 Pa.C.S. § 6106, and possession of a firearm with an altered manufacturer's number, 18 Pa.C.S. § 6110.2. Appellant filed a motion to suppress the seized firearm on May 16,2013. That motion was denied following a suppression hearing held on June 19, 2013.

Appellant proceeded to a jury trial on August 22, 2013. On August 23, 2013, the jury convicted Appellant of carrying an unlicensed firearm, but acquitted him of possession of a firearm with an altered manufacturer's number. On November 21, 2013, the trial court sentenced Appellant to 30-60 months' incarceration and a consecutive term of probation of one year.

Appellant filed a timely post-sentence motion seeking reconsideration of sentence, which was considered by the trial court at a hearing held on February 7, 2014. The trial court denied Appellant's post-sentence motion by order dated February 10, 2014. Appellant then filed a timely notice of appeal on March 7, 2014, and a timely Pa.R.A.P. 1925(b) statement of errors complained of on appeal on April 8, 2014. The trial court issued its Rule 1925(a) opinion on October 1, 2014.

Appellant now presents the following questions for our review, which we will address ad seriatum:

I. Did the [trial] court err by denying [Appellant]'s motion to suppress [the] evidence obtained from an investigatory detention conducted without reasonable suspicion?

II. Did the [trial] court abuse its discretion by imposing a manifestly unreasonable and excessive sentence which failed to account for significant mitigating evidence and [Appellant]'s extraordinary rehabilitative needs?

Appellant's Brief, at 5 (unnecessary capitalization omitted).

Appellant's first claim concerns the denial of his suppression motion.

Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth 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 suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012) (quoting Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa. Super. 2012)).

Appellant contends that the trial court erred when it determined that Appellant was subjected to a mere encounter, rather than an investigative detention.

Article I, § 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution both protect the people from unreasonable searches and seizures. Commonwealth v. Smith, 575 Pa. 203, 836 A.2d 5, 10 (2003) (citation omitted). Jurisprudence arising under both charters has led to the development of three categories of interactions between citizens and police. Id. (citations omitted). The first, a "mere encounter," does not require any level of suspicion or carry any official compulsion to stop or respond. The second, an "investigative detention," permits the temporary detention of an individual if supported by reasonable suspicion. The third is an arrest or custodial detention, which must be supported by probable cause. Id. (citations omitted).

In evaluating the level of interaction, courts conduct an objective examination of the totality of the surrounding circumstances. Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 889 (2000) (citations omitted). We are bound by the suppression court's factual findings, if supported by the record; however, the question presented—whether a seizure occurred—is a pure question of law subject to plenary review. See Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654 (2010) (citations omitted).

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. Strickler, [757 A.2d] at 890 (citation omitted). 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. Id., at 890 n.8 (citation omitted). "[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." Michigan v. Chesternut, 486 U.S. 567, 573-74, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) (citations omitted).

Commonwealth v. Lyles, 97 A.3d 298, 302-03 (Pa. 2014).

Here, the trial court concluded that Appellant was not seized when he was told to remove his hands from his pockets and to place them behind his head. In reaching this conclusion, the court considered several factors. First, the court considered Officer Goss' "intention at the time of his interaction with [Appellant] to engage in a 'mere encounter.'" TCO, at 5. Second, Officer Goss did not draw or otherwise brandish his firearm when he approached and spoke to Appellant. Id. at 5-6. Third, Officer Goss neither ordered Appellant to stop, nor advised Appellant that he was not free to leave. Id. at 6. Fourth, Officer Goss "requested that [Appellant] reveal hishands for purposes of officer safety." Id.¹ Finally, the court found that Officer Goss had not used "commanding language, yelled or raised his voice." Id. Instead, Officer Goss had said "please" when he asked Appellant to reveal his hands. Id. Based on these facts, the trial court concluded that Officer Goss' interaction with Appellant was a mere encounter and, thus, did not rise to the level of an investigative detention. We disagree.

First, and foremost, Officer Goss did not merely ask Appellant to reveal his...