Opinion
J-S11030-18 No. 1839 EDA 2017
05-18-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. HAKEEM ABDU JONES Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered May 15, 2017
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0006989-2011 BEFORE: OTT, STABILE, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.:
Appellant Hakeem Abdu Jones appeals from the May 15, 2017 order of the Court of Common Pleas of Montgomery County, which denied his request for collateral relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-56. Upon review, we affirm.
The facts and procedural history of this case are undisputed. As summarized by the PCRA court:
On September 2, 2011, Officers Edward Todd and Darren Buckwalter of the Norristown Police Department responded to an anonymous tip received at approximately 2:08 p.m. of "(4) black males wearing t-shirts" in the area of the 900 block of West Jackson and Noble and Lafayette Streets, that had been seen selling heroin, held in their pockets, on the corner for approximately one hour. Officer Todd testified that based on his experience at the time that area was considered a high-crime area. Additionally, Officer Todd testified that at the time he responded to this anonymous tip, he was particularly mindful of two other recent incidents involving gunfire in the area, in which
authorities had yet to detain suspects. More specifically, through a Roll Call Notice or Report of Criminal Activity issued by Sergeant Crescitelli on September 2, 2011, Officer Todd learned of the following two incidents:
On 8/3/11 at 1937 hours a home invasion occurred at 940 W. Jackson Street. The actors fired numerous rounds into the residence. The firearm was a 40 caliber. The only description of the actors are two black males, medium build, 5'8" to 5'10."
On 9/1/11 at 1855 hours several shots were fired on the 900 block of West Lafayette Street. The firearm was again a 40 caliber. Two black males in there [sic] twenties were seen running from the scene. There is no other description. Two vehicles were possibly involved in the shooting. One was described as a gray or silver sedan, possibly a Buick. The second was a black Jeep with a life gate mounted spare tire with a "Jeep" cover on it.
There are currently no suspects in these incidents however it appears they may be related. Please keep check on this area as there is apparently some type of feud going on. Thank you.
With this information on hand, officers arrived on scene at 2:14 p.m., approximately 6 minutes after the tip was initially called in, and, while they did not see any individuals on the corner identified in the tip, they did locate a group of six (6) black men, wearing white t-shirts, sitting on the porch steps of a row home about four houses from the corner or a half a block away. Officer Todd testified that these men were the only individuals on the entire block at the time. After approaching the men, the officers inquired of them whether any of them resided at the home in front of which they were seated. They responded that no one did. Subsequently, an individual emerged from the home and confirmed he neither knew the men, nor did they reside in the home.
At that point, the officers began to collect biographical information from the men to comply with their department's policy on collecting information. More specifically, Officer Todd asked [Appellant] for his identification and he supplied a driver's license with the name "Hakeem Tarte," reflecting that he lived in Philadelphia; which the officers retained while speaking to the
group. The officers collected biographical information from the other individuals verbally, as aside from [Appellant], none of the men could produce any forms of physical identification. Given the high-crime, high-drug area, and the fact that the officers were out-numbered by these individuals fitting the anonymous tip's description, and the fact they were trespassing, coupled with recent reports of unsolved gun violence, the officers opted to conduct pat-downs for officer safety. Officer Todd proceeded from left to right, beginning with a pat down of Dante Walls. After finding no weapons the officer permitted Wells to be seated. Then, as Officer Todd took a step toward [Appellant] to begin his pat-down procedure, [Appellant] jumped up from the edge of the step on which he was seated and fled.PCRA Court Opinion, 9/25/17, at 1-4 (unnecessary capitalizations, footnotes and internal record citations omitted) (emphasis in original). Appellant was charged with, inter alia, persons not to possess firearms under 18 Pa.C.S.A. § 6105(a)(1). Eventually, following a two-day jury trial, Appellant was found guilty of persons not to possess firearms. On November 20, 2012, the trial court sentenced Appellant to three to six years' imprisonment. Appellant did not file any post-sentence motions or a direct appeal.
Officer Todd gave chase, and during the chase, saw [Appellant] discard a black object drawn from his waistband which gave a heavy metallic thud when it hit the ground. After [Appellant] had run several blocks, Officer Todd lost track of him, and so the officer retraced the chase and located a .38 special revolver at the location where [Appellant] had discarded the object from his waistband. In addition to advising his colleagues of [Appellant's] last-known whereabouts, Officer Todd also questioned nearby residents as to whether they had witnessed [Appellant] fleeing. Ultimately, Officer Todd surmised that [Appellant] might have fled down a nearby bike trail and advised his colleagues to continue their search near the river. Corporal Kenneth Lawless located [Appellant] on that bike trail near the river, after overhearing [Appellant] shouting into his phone that he had thrown his gun away. When he realized that Corporal Lawless was in close pursuit, [Appellant] fled again, jumped into the river; at which point he was finally apprehended.
On May 1, 2013, Appellant pro se filed the instant PCRA petition, alleging ineffective assistance of counsel. The PCRA court appointed counsel, who filed an amended PCRA petition on November 18, 2015. Counsel, with leave of court, filed a second amended PCRA petition on February 10, 2016.
On August 16, 2016, the PCRA court conducted an evidentiary hearing on the petition. Both sides offered witness testimony. On May 15, 2017, the PCRA court denied Appellant relief. Appellant timely appealed to this Court. The PCRA court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant complied, raising several assertions of error. In response, the PCRA court issued a Pa.R.A.P. 1925(a) opinion, concluding that Appellant was not entitled to relief.
On appeal, Appellant raises a single issue for our review: "Whether the [PCRA] court erred in denying Appellant's [PCRA] petition." Appellant's Brief at 9 (capitalization omitted). At the core, Appellant argues that the PCRA court erred in concluding that the police officers had reasonable suspicion to detain him. As a result, Appellant claims that the PCRA court's conclusion-- that his trial counsel was not ineffective in seeking the suppression of the .38 special revolver—was in error.
"In PCRA proceedings, an appellate court's scope of review is limited by the PCRA's parameters; since most PCRA appeals involve mixed questions of fact and law, the standard of review is whether the PCRA court's findings are supported by the record and free of legal error." Commonwealth v. Pitts , 981 A.2d 875, 878 (Pa. 2009) (citation omitted).
We presume that counsel is effective, and the appellant bears the burden to prove otherwise. See Commonwealth v. Bennett , 57 A.3d 1185, 1195 (Pa. 2012). The test for ineffective assistance of counsel is the same under both the Federal and Pennsylvania Constitutions. See Strickland v. Washington , 466 U.S. 668, 687-88 (1984); Commonwealth v. Jones , 815 A.2d 598, 611 (Pa. 2002). A PCRA petitioner is entitled to relief if he pleads and proves that prior counsel rendered ineffective assistance of counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii). "To prevail on an [ineffectiveness] claim, a PCRA petitioner must plead and prove by a preponderance of the evidence that (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for acting or failing to act; and (3) the petitioner suffered resulting prejudice." Commonwealth v. Reyes-Rodriguez , 111 A.3d 775, 780 (Pa. Super. 2015) (en banc). "A petitioner must prove all three factors of the " Pierce test," or the claim fails." Id.
Commonwealth v . Pierce , 527 A.2d 973 (Pa. 1987).
Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution protect the people from unreasonable searches and seizures. Commonwealth v. Lyles , 97 A.3d 298, 302 (Pa. 2014) (citation omitted). The Lyles Court explained:
Jurisprudence arising under both charters has led to the development of three categories of interactions between citizens and police. The first, a "mere encounter," does not require any level of suspicion or carry any official compulsion to stop and respond. The second, an "investigatory 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. at 302-03 (internal citations and quotation marks omitted).
In evaluating the level of interaction, courts conduct an objective examination of the totality of the surrounding circumstances. . . . 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 [our Supreme] 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. What 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.
[Our Supreme] 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 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.
The Court further explained that "a request for identification does not in and of itself elevate what would otherwise be a mere encounter into an investigative detention." Id. at 304 (emphasis in original). Despite this general principle, however, "an encounter involving a request could rise to a detention when coupled with circumstances of restraint of liberty, physical force, show of authority, or some level of coercion beyond the officer's mere employment, conveying a demand for compliance or that there will be tangible consequences from a refusal." Id. A mere encounter escalates to investigatory detention when a police officer takes and maintains possession of an individual's identification card to check whether the individual has any outstanding warrants. Commonwealth v. Hudson , 995 A.2d 1253, 1258-59 (Pa. Super. 2010); see also Lyles , 97 A.3d at 306 (noting that the police officer's interaction with appellant did not rise to investigatory detention where "[t]he officer did not question appellant further while he was holding the identification, and he did not use appellant's information to run a background check").
In Hudson , a police officer observed appellant outside of a corner grocery store with an adult male. The officer drove past the store several times over the course of an hour and saw appellant go inside the store whenever appellant noticed the police cruiser. On his third drive-by, the officer approached appellant as he was walking down a street with another man. Following a brief conversion, the officer asked the two men whether they had identification. They did. Appellant and his male companion provided their Pennsylvania identification cards. Upon receipt, the officer took their identification cards to the police cruiser to run a warrant and scofflaw check. Ultimately, it turned out that appellant had a scofflaw warrant for a summary harassment charge. The officer arrested appellant and, incident to the arrest, searched appellant's person and discovered drugs and cash.
Based on these facts, the Hudson Court concluded the officer "effectuated an investigative detention at the time that [the officer] took and maintained possession of [appellant's] identification." 995 A.2d at 1259. The Hudson Court also concluded that the officer did not have reasonable suspicion to detain appellant for investigation because the officer at best "observed [appellant] meeting with three men and walking into and out of a grocery store, all of which are lawful activities." Id. Accordingly, the Hudson Court held that the officer's investigative detention of appellant was constitutionally infirm and, as a result, overruled the trial court's denial of appellant's motion to suppress the seized evidence. In so doing, this Court, inter alia, vacated appellant's judgment of sentence.
Here, the officers' initial interaction with Appellant amounted only to a mere encounter, despite the fact that they requested his identification. Unlike Hudson , the officers here did not use Appellant's driver's license to run a background check. In fact, like the officer in Lyles , the officers here neither questioned Appellant further while they were holding his driver's license nor used the license to run a background check. Accordingly, the PCRA court did not err in concluding that the officers' initial interaction with Appellant constituted a mere encounter.
Unlike the other individuals on the porch steps, Appellant fled before the police could perform a pat-down search of him.
To the extent Appellant invites us to choose his version of the facts over the PCRA court's, we decline the invitation. See Commonwealth v. Rigg , 84 A.3d 1080, 1084 (Pa. Super. 2014) (explaining that we grant great deference to the PCRA court's findings that are supported in the record and will not disturb them unless they have no support in the certified record).
Our inquiry, however, does not terminate here. Although the initial interaction amounted only to a mere encounter, it escalated into an investigative detention when the officers pursued Appellant and detained him near the river. Thus, we next must determine whether the officers had reasonable suspicion to detain Appellant after he fled from the front porch.
It is settled that reasonable suspicion necessary for investigative detentions
is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.Commonwealth v. Davis , 102 A.3d 996, 1000 (Pa. Super. 2014) (citations omitted). "In order to justify an investigative detention, the police must have reasonable suspicion that criminal activity is afoot. Reasonable suspicion must be based on specific and articulable facts, and it must be assessed based upon the totality of the circumstances viewed through the eyes of a trained police officer." Commonwealth v. Williams , 980 A.2d 667, 672 (Pa. Super. 2009) (citation omitted), appeal denied , 990 A.2d 730 (Pa. 2010). Thus, "[t]he determination of whether an officer had reasonable suspicion that criminality was afoot so as to justify an investigatory detention is an objective one, which must be considered in light of the totality of the circumstances." Commonwealth v. Holmes , 14 A.3d 89, 96 (Pa. 2011) (emphasis added). In assessing the totality of the circumstances, a court must give weight to the inferences that a police officer may draw through training and experience. Id. at 95. Reasonable suspicion does not require that the activity in question must be unquestionably criminal before an officer may investigate further. Davis , 102 A.3d at 1000 (citations omitted). "Rather, the test is what it purports to be—it requires a suspicion of criminal conduct that is reasonable based upon facts of the matter." Id. (citation and emphasis omitted).
Instantly, we find instructive Commonwealth v. D.M. II , 781 A.2d 1161 (Pa. 2001) and Commonwealth v. Walls , 53 A.3d 889 (Pa. Super. 2012), in deciding whether the officers possessed reasonable suspicion to detain Appellant.
In D.M. II , a police officer received a radio call regarding a man with a gun at 28th Street and Cecil B. Moore Avenue in Philadelphia. D.M. II , 781 A.2d at 1162. The officer was only one block from the location at the time of the call. The anonymous tip described the man as a "black male, wearing a white t-shirt, blue jeans and white sneakers." Id. The officer arrived at the scene and saw the appellant, who matched the description given by the anonymous tip. Id. The officer exited his vehicle and told the appellant "to come over." Id. The appellant, however, took off running instead. Id. Eventually, backup arrived and the appellant found himself cornered between two police cars. Id. The officer ordered the appellant to put his hands on the hood of the car in front of him and proceeded to pat the appellant down for officer safety. Id. The officer recovered a .32 caliber handgun that fell out of the appellant's pant leg. Id. Given the facts, our Supreme Court determined that the officer had the reasonable suspicion necessary to stop the appellant. Id. at 1164-65. In so doing, the Supreme Court noted that under Illinois v. Wardlow , 528 U.S. 119 (2000), "unprovoked flight could be considered among the relevant contextual considerations, since 'nervous, evasive behavior is a pertinent factor in determining reasonable suspicion' and 'headlong flight—whenever it occurs—is the consummate act of evasion.'" D.M. II , 781 A.2d at 1164 (citing Wardlow , 528 U.S. at 124).
In Walls , a police officer received information over his radio that a black male wearing a black coat and black jeans was observed at an intersection carrying a gun. The officer stopped an individual, who matched the description of the suspect with regard to gender, race, and clothing, one-half block away from the identified location. After seeing the officer, the individual fled. Walls , 53 A.3d at 894. Relying upon D.M. II and Wardlow , the Walls Court concluded that an unprovoked flight combined with an individual's proximity to the subject location and his match to the description of the suspect, gave "rise to reasonable suspicion that criminal activity was afoot." Id. at 894.
We find D.M. II and Walls highly instructive. As recited earlier, here the officers received an anonymous tip that four black males wearing white t-shirts were selling heroin in the 900 block of West Jackson and Noble and Lafayette Streets. The officers, based on their experience, described the location as high-crime and high-drug. When the officers arrived, they did not find anyone at the exact location, but spotted Appellant with five other individuals on the porch steps of a row home half a block away. Appellant as well as the other five individuals matched the description of the suspects. The officers approached the individuals and asked them whether they resided at the home in front of which they were seated. They all responded in the negative. In fact, a person who emerged from inside the house confirmed that the individuals did not reside there and that he did not know them. At that point, the officers asked for identification. Appellant complied. However, shortly after the officers initiated a pat-down search of the individuals, Appellant jumped up from the edge of the step upon which he was seated and fled. Officer Todd chased Appellant and, during the chase, he observed Appellant discard a black object, which later turned out to be a .38 special revolver.
Given the totality of the circumstances here, and consistent with the holdings in D.M. II and Walls , we are constrained to agree with the PCRA court that the officers possessed the requisite reasonable suspicion to stop Appellant after he fled from the porch steps. Accordingly, the PCRA court did not err in concluding that Appellant's ineffectiveness claim lacks arguable merit. In addition, we conclude, after careful review of the record and the relevant case law, that the PCRA court accurately and thoroughly addressed the merits of Appellant's claim. See PCRA Court Opinion, 9/25/17, at 7-13. Accordingly, we affirm the PCRA court's May 15, 2017 order denying Appellant PCRA relief. We further direct that a copy of the PRCA court's opinion dated September 25, 2017 be attached to any future filings in this case.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/18/18
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