Opinion
1710 EDA 2023 J-S21038-24
08-28-2024
COMMONWEALTH OF PENNSYLVANIA v. TYREE ZUBER Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered June 12, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005607-2022
Benjamin D. Kohler, Esq.
BEFORE: LAZARUS, P.J., NICHOLS, J., and MURRAY, J.
MEMORANDUM
MURRAY, J.
Tyree Zuber (Appellant) appeals from the judgment of sentence entered following his non-jury convictions of one count each of possession of a firearm by a prohibited person, carrying a firearm without a license, and carrying a firearm on public streets in Philadelphia. We affirm.
Appellant challenges the trial court's denial of his motion to suppress evidence. The trial court summarized the evidence adduced at the suppression hearing:
[T]he Commonwealth presented the testimony of State Parole Agent Eric Brown. Agent Brown testified that, at all times material hereto, he was assigned to the Intensive Supervision Unit of the State Parole Board of Pennsylvania, where he had been a parole agent for 11 years. In late April/early May of 2022, [Appellant] was released from state custody and came under Agent Brown's supervision. After meeting with [Appellant] on two prior
occasions, on July 11, 2022, at approximately 9:00 p.m., Agent Brown drove to the area surrounding [Appellant's] residence at 5833 Anderson Street in Philadelphia to check up on [Appellant]. Agent Brown traveled to this area because [Appellant's] GPS monitor indicated that he was [located] outside on a nearby street corner [] at Price Street and Brush Road. Agent Brown testified that, while [Appellant] was not restricted to house arrest, he did have a curfew. Agent Brown had made it clear [to Appellant] that he did not want [Appellant] hanging "outside on the corner all day" - particularly the corner at issue because it was known for having "a lot of gun violence." (N.T. 11/22/22 at 4-8, 18).
Upon arriving at the above location, Agent Brown parked his vehicle across the street from [Appellant], who was standing next to another male. [Appellant] told the male, "That's my PO," at which point the other male promptly walked away. Agent Brown then had a conversation with [Appellant], asking him how he was doing. [Appellant] was "looking furtively from side to side, up and down the block." Agent Brown testified that, in his experience, "when somebody is looking around like that, they may be thinking of a way to run away." In addition to these furtive movements, [Appellant] was repeatedly touching and reaching into his pockets. Agent Brown testified, "I could tell that [Appellant] had items in his pocket. He had thin mesh shorts on…. I did not know what was in in his pockets, whether it was contraband or if it was a weapon or what it was…. He was moving around all over the place." Based on [Appellant's] behavior, his history of possessing firearms, the high gun violence location, and the fact that it was dark out and Agent Brown was alone-Agent Brown was concerned for his safety. He said to [Appellant], "You're making me nervous…. Why are you in your pockets?" (N.T. 11/22/22 at 8-9, 11, 29-30).
Accordingly, Agent Brown asked [Appellant] to remove the items from his pockets, but [Appellant] only partially complied[. Agent Brown testified]:
[Appellant] brought some things out of his pockets, but I could tell that he didn't bring everything out of his pockets, and I asked him to come across the street and empty his pockets onto the trunk of my vehicle…. He came over and he put … his wallet and his Air Pods and Black & Mild [cigar], put things like that onto the trunk of my car, but I could tell he had not taken everything out of his pants.
(N.T. 11/22/22 at 9).
Agent Brown testified that he could clearly see a "bulge in [Appellant's] pants." Agent Brown then [performed a pat-down] and felt a firearm: "I told [Appellant], 'Do not move. Do not move.' He said verbally, 'Okay, okay. I'm not running,' but then he tried to run." At that point, Agent Brown tackled [Appellant] to the ground, at which point [Appellant] became cooperative. Agent Brown placed [Appellant] in handcuffs and called police. The firearm-a black-and-silver 9-millimeter ghost handgun loaded with 16 live rounds-was recovered from [Appellant's] person and secured via property receipt. (N.T. 11/22/22 at 9-10, 38-39).Trial Court Opinion, 9/26/23, at 2-4.
The Commonwealth subsequently charged Appellant with the above offenses. On August 18, 2022, Appellant filed a motion to suppress the firearm, arguing Agent Brown lacked reasonable suspicion to search him. On November 22, 2022, the trial court held a suppression hearing, at which Agent Brown testified as the only witness. On January 6, 2023, the trial court denied the motion to suppress. On April 6, 2023, following a stipulated non-jury trial, the trial court convicted Appellant of the above offenses. On June 12, 2023, the trial court imposed an aggregate sentence of 3 to 8 years in prison.
Appellant filed a timely notice of appeal. Appellant and the trial court have complied with Pa.R.A.P. 1925. Appellant presents a single issue for our review: "Did the [trial] court err and abuse its discretion when it denied the motion to suppress[,] where Appellant was detained and searched by a parole agent without reasonable suspicion?" Appellant's Brief at 4.
Appellant argues the trial court erred in finding Agent Brown had reasonable suspicion to search Appellant. Id. at 16-20. Appellant maintains the factors the trial court relied on-including Appellant's alleged nervousness, furtive movements, and presence in a high crime area-did not, "even collectively," amount to reasonable suspicion. Id. at 16. He further argues Agent Brown's testimony regarding Appellant's "history of firearms" could not contribute to reasonable suspicion, because Appellant did not have a prior firearms conviction. Id. at 19.
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, the appellate court is bound by those findings and may reverse only if the court's legal conclusions are erroneous. Where 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 plenary review.Commonwealth v. Kuhlman, 300 A.3d 460, 464 (Pa. Super. 2023) (citation omitted).
"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.'" Commonwealth v. Barnes, 296 A.3d 52, 56 (Pa. Super. 2023).
Our courts categorize police-citizen encounters to find whether an officer unreasonably seized a person. Relevant here, an investigative detention must be supported by reasonable suspicion that criminal activity is afoot.
To assess reasonable suspicion, we consider the totality of the circumstances known to the officer at the time of the investigative detention. We have explained:
In determining whether police had reasonable suspicion to initiate an investigative detention, the fundamental inquiry is an objective one, namely, whether the facts available to police at the moment of the intrusion warrant a person of reasonable caution in the belief that the action taken was appropriate.
This Court has recognized reasonable suspicion exists only where the officer is able to articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity.
To demonstrate reasonable suspicion, the detaining officer must articulate something more than an inchoate and unparticularized suspicion or hunch. To determine whether reasonable suspicion exists, we examine the totality of the circumstances through the eyes of a trained officer and not an ordinary citizen.Commonwealth v. Rivera, 311 A.3d 1160, 1164-65 (Pa. Super. 2024) (citations and quotation marks omitted).
"A parolee has limited Fourth Amendment rights because of a diminished expectation of privacy." Commonwealth v. McClellan, 178 A.3d 874, 881 (Pa. Super. 2018) (citing Commonwealth v. Williams, 692 A.2d 1031, 1035 (Pa. 1997)). "The aim of … parole is to rehabilitate and reintegrate a lawbreaker into society as a law-abiding citizen." Commonwealth v. Parker, 152 A.3d 309, 316 (Pa. Super. 2016). It is well settled that
in exchange for early release from prison, [a] parolee cedes away certain constitutional protections enjoyed by the populace in general. Because the very assumption of the institution of parole is that the parolee is more likely than the ordinary citizen to violate the law, … parole agents need not have probable cause to search a parolee or his property; instead reasonable suspicion is sufficient to authorize a search.Commonwealth v. Murray, 174 A.3d 1147, 1155 (Pa. Super. 2017) (citations, quotation marks, and brackets omitted). "Parole officers may form reasonable suspicion based on personal observations, their history with the parolee, the parolee's behavior while on parole, and third-party information." Commonwealth v. Rosendary, 313 A.3d 236, 247 (Pa. Super. 2024) (citation and emphasis omitted).
The statute governing the supervisory relationship between parole officers and parolees provides, in relevant part:
(d) Grounds for personal search of a department-supervised offender.--
(1) A personal search of an offender may be conducted by an agent:
(i) if there is a reasonable suspicion to believe that the department-supervised offender possesses contraband or other evidence of violations of the conditions of supervision[.]
***
(4) The existence of reasonable suspicion to search shall be determined in accordance with constitutional search and seizure provisions as applied by judicial decision. In accordance with such
case law, the following factors, where applicable, may be taken into account:
(i) The observations of agents.
(ii) Information provided by others.
(iii) The activities of the department-supervised offender.
(iv) Information provided by the department-supervised offender.
(v) The experience of agents with the department-supervised offender.
(vi) The experience of agents in similar circumstances.
(vii) The prior criminal and supervisory history of the department-supervised offender.
(viii) The need to verify compliance with the conditions of supervision.61 Pa.C.S.A. § 6182(d).
Here, the trial court determined "the totality of the circumstances … gave rise to reasonable suspicion and justified" Agent Brown's search of Appellant. Trial Court Opinion, 9/26/23, at 13. The trial court found the following:
On July 11, 2022, at 9:00 p.m., Agent Brown went to [Appellant's] neighborhood to check up on him upon determining that, despite a curfew and instructions not to hang outside on the corner, [Appellant] was hanging outside on the corner of Price Street and Brush Road-an area known for heavy gun violence. Upon arrival, Agent Brown encountered [Appellant] standing next to another male, who immediately departed when [Appellant] said, "that's my PO." Agent Brown engaged [Appellant] in a conversation, but [Appellant] was looking furtively from side to side, over his shoulder, up and down the block-which, in Agent Brown's experience, indicated that [Appellant] was looking for a flight path. In addition to his furtive movements, [Appellant] was completely preoccupied with his pockets, repeatedly touching and
reaching toward them. It was clear to Agent Brown that [Appellant], who was wearing "thin mesh shorts," had items in his pockets. Considering [Appellant's] furtive movements and extremely nervous behavior, his history of possessing firearms, the high gun violence location, and the fact that it was dark out and Agent Brown was alone-Agent Brown was legitimately concerned for his safety. He said to [Appellant], "You're making me nervous[.] Why are you in your pockets?" He then asked [Appellant] to remove whatever was in his pockets for everyone's safety, but it was plain to Agent Brown that [Appellant] was holding back something. Agent Brown could clearly see a "bulge in his pants." Agent Brown then reached around and felt a firearm, at which point [Appellant] attempted to flee, but Agent Brown apprehended him, leading to the recovery of the firearm.
Considering the totality of the circumstances, there was reasonable suspicion to investigate [Appellant] following the initial encounter and pat him down for safety. Indeed, given all the circumstances enumerated above, Agent Brown would have been remiss not to pat down [Appellant] for everyone's safety.Id. at 9-10.
Citing Commonwealth v. Barr, 266 A.3d 25, 44 (Pa. 2021), Appellant asserts "[t]he classification of a neighborhood as a 'high crime area' has been deemed legally irrelevant to the question of whether an officer has the requisite cause for an intrusion such as a stop, pat-down, arrest or search." Appellant's Brief at 17. However, the Barr Court merely held that the trial court, in suppressing a vehicular search, did not err in declining to consider the fact that the vehicle stop occurred in an alleged "high crime area" as dispositive over other factors. See Barr, 266 A.3d at 43-44. It is well established that, while "a suspect's mere presence in a high crime area is not sufficient by itself to support reasonable suspicion, … presence in a high crime area may be considered in examining the totality of the circumstances." Int. of T.W., 261 A.3d 409, 424 n.5 (Pa. 2021). Accordingly, the trial court here did not err in considering Appellant's presence in a "high gun violence location" as part of its analysis. See Trial Court Opinion, 9/26/23, at 9; see also id. at 2 (noting Agent Brown's testimony that "the corner at issue … was known for having 'a lot of gun violence.'").
In Barr, the trial court found police had searched a vehicle "based solely on the odor of marijuana emanating from that vehicle." Barr, 266 A.3d at 43. The trial court suppressed the search on the grounds that, in light of Pennsylvania's legalization of marijuana for medical purposes, "the odor of marijuana does not per se establish probable cause to allow police officers to conduct a warrantless search of a vehicle." Id. at 32. The Commonwealth argued the trial court failed to adequately consider other factors, including police testimony that the vehicle stop occurred in a "high crime area." Id. at 34. Our Supreme Court determined "the record support[ed] the trial court's conclusion that the troopers searched the [vehicle] based solely on the odor of marijuana coming from it." Id. at 44. In light of the trial court's conclusion, the Court observed, "it [was] of no moment whether the area in which the stop occurred is known as a 'high crime area.'" Id. The Court further noted "the record [made] clear that the [police] did not witness the occupants of the vehicle do anything suspicious…." Id.
Appellant also argues that nervousness and furtive movements have "been deemed insufficient to demonstrate reasonable suspicion." Appellant's Brief at 17. However, we have recognized those factors may be considered in a totality-of-the-circumstances analysis. See Commonwealth v. Bozeman, 205 A.3d 1264, 1276 (Pa. Super. 2019) (concluding officers had reasonable suspicion to frisk the defendant where "the totality of the circumstances" included the defendant making "a furtive movement" and "nervously" fumbling for paperwork).
Appellant relies on Commonwealth v. Reppert, 814 A.2d 1196 (Pa. Super. 2002), in which this Court held that a "police officer's observation of a citizen's nervous demeanor and furtive movements, without more, establishes nothing more than a 'hunch,' employing speculation about the citizen's motive in the place of fact." Id. at 1206 (emphasis added); see also Appellant's Brief at 17-18. In its opinion, the trial court cogently distinguished Reppert from the instant case:
Here, … Agent Brown was not interacting with a random, unknown individual who appeared nervous during a traffic stop. He was interacting with his known parolee, who was not permitted to possess a firearm. Moreover, [Agent Brown] was checking up on [Appellant], who was hanging [around] outside, at night, on a street corner known for gun violence, and despite Agent Brown's specific instructions to the contrary. Additionally, unlike [the officer in] Reppert, Agent Brown observed far more than mere "head and shoulder movements" and "nervous demeanor." Indeed, Agent Brown not only observed furtive head and shoulder movements and excessive nervousness-he also observed [Appellant's] repeated hand movements toward his bulging pockets. Cf. Reppert, [814 A.2d] at 1199 (officer observed only furtive "head and shoulder" movements, "not his hands").Trial Court Opinion, 9/26/23, at 12. The trial court also noted Agent Brown "observed [Appellant's] hands-to-bulging-pockets movements" during the initial encounter, while the officer in Reppert did not observe the defendant's bulging pockets until after the defendant had already been detained. Id. (citing Reppert, 814 A.2d at 1204). For the reasons the trial court stated, we do not find Reppert instructive here. As such, Appellant's argument in this regard fails.
Finally, Appellant argues Agent Brown's testimony that Appellant had "a history of firearms" was not supported by the record, because Appellant did not have a prior firearms conviction. Appellant's Brief at 8 n.5, 19. However, an exhibit Appellant offered into evidence at the suppression hearing illuminates the basis of Agent Brown's statement. See July 11, 2022, Investigation Interview Record (Defense Exhibit 1). In an interview following his encounter with Appellant, Agent Brown told police he was aware of Appellant's multiple parole violations since his parole in 2018. Id. at 2. Agent Brown stated Appellant had most recently violated his parole in 2021, when the Commonwealth charged him with violating the Uniform Firearms Act, 18 Pa.C.S.A. §§ 6101-6128. Id. Agent Brown indicated Appellant was re-paroled in April 2022 after the firearms charge was nolle prossed. Id. Agent Brown further explained Appellant was on parole for a robbery conviction. Id.; see also 18 Pa.C.S.A. § 3701 (robbery); 42 Pa.C.S.A. § 9714(g) (robbery defined as a "crime of violence").
Appellant fails to cite any authority suggesting the trial court could not consider this evidence in its totality-of-the-circumstances analysis. See Appellant's Brief at 19-20. In determining whether a parole agent had reasonable suspicion to search a parolee, a court may consider the parolee's "prior criminal and supervisory history" and "[t]he experience of [parole] agents with the" parolee. 61 Pa.C.S.A. § 6182(d)(v), (vi). In light of this statutory authority, the trial court did not err in considering Appellant's "history of firearms" as part of its analysis. See Trial Court Opinion, 9/26/23, at 3, 9.
Appellant cites only to cases disapproving of reliance on "conclusory" testimony generally. See Appellant's Brief at 19-20 (citing Commonwealth v. Holmes, 14 A.3d 89, 98 (Pa. 2011); Commonwealth v. Deemer, 462 A.2d 776, 779 (Pa. Super. 1983); Commonwealth v. Blewitt, 381 A.2d 483, 485 (Pa. Super. 1977)). However, as Appellant's own exhibit proved, Agent Brown's statement regarding Appellant's "history of firearms" was not conclusory, but rather was firmly rooted in Agent Brown's detailed knowledge of Appellant's criminal and supervisory history. See Defense Exhibit 1 at 2.
Our review discloses the trial court's factual findings are supported by the record and its legal conclusions are sound. We discern no error in its determination that Agent Brown had reasonable suspicion to search Appellant. Accordingly, Appellant's issue merits no relief.
Judgment of sentence affirmed.
Judgment Entered.