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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v. DEXTER WILLIAMS, Appellant No. 2439 EDA 2016

Appeal from the Judgment of Sentence July 19 , 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP
- 51
- CR
- 0005312
- 2015
BEFORE: BOWES and SHOGAN, JJ., and STEVENS, P.J.E. * MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 17, 2017 Appellant, Dexter Williams , appeals from the judgment of sentence 1 entered on July 19, 2016, in the Court of Common Pleas of Philadelphia County following his conviction at a bench trial of possession of marijuana 2 and violati ons of the Uniform Firearms Act, carrying a firearm though

____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Although Appellant identifies his appeal as lying from the order finding him guilty, the appeal properly lies from the judgment of sentence. Therefore, we will treat this appeal as having been properly taken from the judgment of sentence. See Commonwea lth v. O'Neill , 578 A.2d 1334, 1335 (Pa. Super. 1990) (“ In criminal cases, appeals lie from judgment of sentence rather than from the verdict of guilt. ”).
2 35 P.S. § 780
- 113(a)(31).J - S51019
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- 2
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ineligible, carrying a firearm withou t a license, and carrying a firearm on a public street in Philadelphia. 3 We affirm. The trial court summarized the facts as follows: On May 8, 2015, at approximately 11:40 a.m., Philadelphia Highway Patrol Officer Joseph Moore received information from his supervisor in regards to a shooting in the area of 3400 I Street in North Philadelphia. Notes of Testimony (“N.T.” ), 2/22/2016, at 7. The call did not provide any flash information as to the description of the suspect. Id . at 20. In an unmarked pol ice vehicle, Officer Moore and Officer Williams drove northbound on 3400 H Street when Officer Moore observed the Appellant walking north on the east side of H Street. Id . at 7 - 8. The Appellant appeared to be walking swiftly, while grabbing and adjusting his waistband in a distinct manner. Id at 8. Behind Officer Moore’ s vehicle was a marked highway patrol vehicle, in which Officer Holmes was present in full uniform. As he walked, the Appellant began to look over his shoulder toward the marked police v ehicle. Id . The Appellant then stopped walking, made a U
- turn and started walking southbound toward the police vehicle. Id . The Appellant continued walking southbound for a few steps until he proceeded to walk onto the porch of 3429 H Street. While wa lking up the porch the Appellant continued to tug and adjust his waistband. Id . at 9. Due to the Appellant’s movements, Officer Moore, Officer Williams and Officer Holmes exited their respective vehicles to further investigate. Id . at 10. Officer Moore then told the Appellant to stop and show his hands. Id . at 16. [Appellant] said something to the effect of, “I didn’t do anything.” Id
. Officer Moore observed a juice container in the Appellant’s hand and a “small black object” in the other. Id . The Appellant opened the screen door of the porch and wedged himself between the screen door and the front entry door of the residence. Id . The Officers were unable to view the Appellant’s hands while he was in between the doors of the porch. The Officers continued to instruct the Appellant to show his hands.

____________________________________________ 3 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), and 6108 , respectiv el y .J - S51019
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After the Appellant failed to comply with commands, the Officers drew their weapons and continued to instruct the Appellant to stop what he was doing. Id . at 11. The Appellant crouched down between the screen door and the front door of the building. Id . While the Appellant was crouched down his hands were out of view for a few moments. Upon further command, the Appellant discarded a black firearm from his right hand. Id . The Officers recovered the firearm and placed the Appellant under arrest. Id . After searching Appellant, the Officers recovered a clear bag containing 12 purple
- tinted jars with purple lids, each containing a green weed and seed su bstance. Id . at 12. Inside the clear bag was another clear bag with a loose green weed substance. Id . The Officers also recovered $779 United States currency from the Appellant’s left pants pocket. Id
. The arrest of the Appellant at 3429 H Street was approximately a block west from where an alleged shooting occurred an hour and a half earlier. Id
. Officer Moore testified the 3400 block of H Street is in the 24th District in the East Division. Id
. Officer Moore testified he has been a Philadelphia Police Officer for twenty
- one years, twelve of those years on highway patrol. Id
. Officer Moore stated the East Division is an area in which a high number of violent crimes occur. In particular, the area of H Street is an area that encounters crimes tha t are “ usually very violent.” Id . at 15. He stated the neighborhood is known for gun violence, armed robberies, and open - air narcotic sales. Id . at 14. Even when Officer Moore is not assigned to the East Division, he is advised to conduct a sweep of th e area during his patrol. Id
. He testified that he has made hundreds of arrests for guns during his career, several dozen of these in the East Division. Id
. In addition, Officer Moore stated that in conducting gun arrests, he has recovered firearms fro m the vicinity of the person’ s waistband in the majority of cases. Id . at 15. Trial Court Opinion, 1/27/17, at 2
– 4. Appellant filed an omnibus pretrial motion, which inc luded a motion to suppress physical evidence, on June 15, 2015. The trial court held a suppression hearing on February 22, 2016, and denied the motion toJ - S51019
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suppress physical evidence on March 22, 2016. Appellant proceeded to a waiver trial on April 4, 2016, following which the court convicted Appellant of all charges, a s described above. The trial court sentenced Appellant on July 19, 2016, to an aggregate term of imprisonment of six and one
- half to fifteen years. Appellant filed a notice of appeal on July 26, 2016. On August 23, 2016 , the trial court directed Appella nt to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty
- one days. Th us , Appellant’s Pa.R.A.P. 1925(b) statement was due on or before T uesday , September 13 , 2 016. Appellant did not file his Pa.R.A.P. 19 25(b) statement until September 23 , 2016. It appears the trial court overlooked the lateness of Appellant’s filing, and it issued an opinion pursuant to Pa.R.A.P. 1925(a) on January 27, 2017, in which it addressed the issue s raised by Appellant in his Rul e 1925(b) statement
. Therefore, we need not remand. See Commonwealth v. Brown , 145 A.3d 184, 186 (Pa. Super. 2016), appeal denied , 165 A.3d 892 (Pa. 2017) ( While untimely filed Rule 1925(b) statement often requires remand, “ where the trial court addresse s the issues raised
. . . , we need not remand but may address the issues on their merits. See Commonwealth v. Thompson , 39 A.3d 335, 340 (Pa. Super. 2012) .”)
. Appellant raise s one issue on appeal: 1. Did the suppression court/trial court err in denying suppression where the police did not possess the necessary factual information to stop [A]ppellant based on the totality of the circumstances[?]J - S51019
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Appellant’s Brief at 4. We note our standard of review: Our standard of review in addressi ng 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 may consider only the evidence of the prosecution an d so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts. Commonwealth v. McCoy , 154 A.3d 813, 815
– 816 (Pa. Super. 2017). We may consider only evidence presented at the suppression hearing. In re L.J. , 79 A.3d 1073, 1085
- 87 (Pa. 2013). Instantly, Appellant presented no witnesses, and the Commonwealth presented one. Therefo re, the Commonwealth’s evidence is uncontradicted. See Commonwealth v. Runyan , 160 A.3d 831, 834 (Pa. Super. 2017) (citing Commonwealth v. Petty , 157 A.3d 953, 955 (Pa. Super. 2017), and C ommonwealth v. Smith , 979 A.2d 913, 917
– 18 (Pa. Super. 2009) (The “Commonwealth’ s evidence is essentially uncontradicted” because the defense did not present any witnesses at the suppression hearing.)). In a three
– paragraph argument, Appellant asserts tha t the seized evidence should have been suppressed because police lacked “reasonable suspicion that criminal activity was afoot and that [ A ] ppellant was armedJ - S51019
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and dangerous.” Appellant’s Brief at 8. Appellant wholly fails to refer to the record in support of his broad statements and allegations of fact. Moreover, he fails to develop any meaningful analysis in support of his claim s . Thus, we could find the argument waived. Commonwealth v. Woodard , 129 A.3d 480, 502 (Pa. 2015), cert. denied , 137 S. Ct. 92 (2016)
. Nevertheless, we have considered Appellant’s claim, minimally
developed though it is. F ollowing our review of the record, we conclude that the trial court adequately addressed Appellant’s issue in its opinion filed pursuant to Pa.R.A.P. 1925(a) on January 27, 2017 , and we affirm on its basis
. We direct the parties to attach a copy of the opinion i n the event of any future proceedings. Judgment of sentence affirmed. Judge Bowes joins the Memorandum. P.J.E. Stevens concurs in the result. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/17/2017l 1 18 Pa
. C

. S.A. § § 6105(a)(l) , 6106(a) ( l) , and 6108 , respectively

.

2. At the moment, Police Officer Moore had no information regarding the shooter, his/her direction of travel or description and no informat i on regarding the App e llant who was 6'6" tall, African-American and was wearing 

### gray basketball shorts and a black Nike jacket. On appeal, Appell a nt av e rs four points of error: years of incarceration

. A timely appeal followed

.

L On or about May 8 , 2015 , Police Officer Joseph Moore while on patrol in and a bout the 4300 blo c k of H Street at approximately 12 : 30 a.m. r e sponded to a shooting that occurred on I Street (a block 

### away) and an hour and a half earlier

. Appellant was sentenced on July 19 , 2016 , to an aggregate term of six and 

### Yi to fifteen the motion followin g testimony and argument. Prior to trial , the Appellant litiga t ed a motion to suppress on February 22 , 2016

. This court denied three separate violations of the Uniform Firearms Act following a non-jury trial on April 4 , 2016

. 1 Dexter Will i ams, hereinafter Appellant, was found guilty of possession of marijuana and E hrlich , J. 

# 11111111111111111 W II 7894567311 OPINION CP

- 5 1-CR -OOOSJ 1 i- 2 01 5 Com m . v. \M l iam s , Dex ler
- - • . Opinion 

### JAN 2 

### 7 20111

. . iUPERIOR COURT 

## Crimm a , hj)iJ~als Un 

# :o . 2439 EDA 2016 - 

## First Judicial District



## of · A Dext e r Williams 

### v. CP-51-CR-0005312-2015 Commonw e alth of Pennsylvania IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CRIMINAL SECTION 

# . ' , / \ Circulated 10/27/2017 02:58 PM2

distinct manner. 

### Id at 8. Behind Officer Moore ' s vehicle was a marked highway patrol vehicle, Appellant appeared to be walking swiftly, while grabbing and adjusting his waistband in a Officer Moore observed the Appellant walking north on the east side ofH Street. 

### Id. at 7-8. The police vehicle, Officer Moore and Officer Williams drove northbound on 3400 H Street when I not provide any flash information as to the description of the suspect. 

### Id. at 20. In an unmarked 3400 I Street in North Philadelphia. Notes of Testimony ("N.T."), 2/22/2016, at 7. The call did Joseph Moore received information from his supervisor i n regards to a shooting in the area of On May 8 , 2015 ; at approximately 11 : 40 a.m . , Philadelphia Highway Patrol Officer As wiJl be discussed below, these claims are without merit. Accordingly, no relief is due

. Appellant's Pa.R.A.P. 1925(b) Statement.

The Evidence

7. In conclusion, the Appellant's statement is that the trial court erred by failing to gr~t Appellant's Motion to Suppress evidence and arrest as a result of an unlawful search and seizure. 6. Police Officer Moore indicated that he ordered the Appellant to stop because he turned to avoid police and had adjusted his waistband, but that prior to telling him to stop, the Appellant had done nothing wrong. 5. The officers ordered the Appellant off of the porch which he had entered and at times ' could and could not see his hands, the officers drew their weapons as a result' of Appellant's non-compliance to stop and show his hands and the Appeilant discarded his weapon which the police recovered. 4. The officer observed the AppeJlant adjust his waistband as he was walking up H Street and again as he was walking up the steps of 4329 H Street, but the officer did not see a bulge on a gun 

### belt or anything on Appellant that resembled a weapon . 3

. Police Officer Moore also had no specific tip on particular information that the Appellant was involved in any criminal activity when he observed him walking Northbound on H Street.. 3

each containin g a gr ee n w ee d an d seed sub s tanc e . Id

. at 12. Inside the cle ar ba g w a s another App e llant, the Officer s r ec o v ered a cle a r b a g containing 1 2 purple-tinted jars with purple lids , The Officers recovered the firearm and pl a ced the Appellant under arrest. Id. After s earching Up o n further command , the Appellant discarded a black fi re ar m fr o m his right hand. Id

. hands w ere out of v i e w for a few m o m e n t s. screen door and th e front do o r of the building

. Id

. While the App e llant was crouched down his Appellant to stop what he was doing. Id

. at 11. T he Appellant cro u ched down b e tw e en the I po r ch. The Officers continued to instruct the Appellant t o show his hands. After the Appellan t failed to comply with comm a nds, th e Officers drew their w e apons and continued to instruct th e Officers were unable to v iew th e Appellant's hands while he wa s in between the doors of t he wedged himself between the s creen door and the front entry door of the res i den ce . Id. The "small black object" in the other. Id

. The App e llant open e d the screen d o or of the porch and didn't do anything

. " Id. Officer Moore observed a juice container in the Appellan t's hand and a I Du e to the Appel ; lant' s mov e ments, Officer Moore , Officer Williams and Officer Ho l me s exited their re s pecti v e v ~ hicl e s to further investigate

. Id

. at 10. Officer M o ore then told th e Appellant to stop and sh o w hi s hand s. Id. at 16

. The defendant said somethin g to the effec t of , 11 ! Id

. at 9. H Street. While walking up the porch the Appellant continued 

### to tug and adjust his waistband. in which Officer Holme s wa s present in fu ll uniform

. As he w alked, the Appellant began to look over his shoulder toward , the marked police vehicle

. 

### Id. The Appellant then stopp e d w alk i ng, I made a U-tum and s tarted walking southbound toward the po li ce vehicle

. Id. The Appellant continued walking s outhbound for a few steps until he proceeded to walk onto the porch of 34294

cl e ar bag 

### with a l o ose green weed substance

. 

### I d. The Officers also r e cov e red $ 779 U nited States currency from t he Appellant's left pant s pocket. 

### Id

. The arrest of the Appellant at 3429 H Street was approximately a block west from where an alleged shooting occurred an hour and a half earlier

. 

### Id

. Officer Moore testified the 3400 block of H Street is in the 24th District in the East Division. 

### Id. Officer Moore testified he has been a Philadelphia Police Officer for twenty
- one years, twelve of those years on highway patrol.

. Id. Officer Moore stated the East Division is an area in which a high number of violent crimes

occur . In particular, the are a of H Street is an area that encounters crimes that are " usually very violent." 

### Id. at 15. He stated the neighborhood is known for gun violence, armed robber i es , and open-air narcotic sales. 

### Id

. at 14

. Even when Office r Moore is not as si gned to the East Div i sion, he is advised to conduct a sweep of the area during his patro l. 

### Id

. He testified that he has m a de hundreds of arr e sts fo r guns during his career, several dozen of these in the East Division. Id. In

a ddition , Offi ce r Moore sta t ed that in conducting gun arrests, he has recovered firearms from the vicinity of the person ' s waistband in the majority of cases. Id. at 15. D i scussion A p pellant as s erts that the initial stop and search by police was unlawful , and all evidence should have been suppressed. In address i ng ped e strian stops by police officers, the Supreme Court of the U nited Sates determined that " th e re must be a narrowly drawn autho r ity to permit a reasonable search fo r weapons for the protection of the po l ice officer, w here he has reason to believe that he is dealing wi t h an armed and d a ngerous indi v idual. " 

### T e rr y v . Oh i o, 392 U
. S

. I , 27 (l 968)

. " Wh e n conducting a Terry analys i s, it is incumbent on the suppression court t o i nquire, b ase d on all of the circumstanc e s known to the offi ce r 

### ex ante, whether an objective basis for the seizure was presen t. " . '5



### Wardlow 528 U.S. 119, 124 (2000)). suspicion. 

### Commonwealth v. Washington, 51 A.3d 895, 898 (PA Super. 2012) (citing 

### lllinois v. reasonable suspicion. In Illinois v, 

### Wardlow, the United States Supreme Courtstated "unprovoked flight upon noticing the police" in a high crime area is a pertinent factor in determining reasonable Evasive behavior is just one of the many factors law enforcement can draw upon to form 

### California, 134 S. Ct. 1683, 1688-90 (201~)

. basis for suspecting the particular person stopped of criminal activity

. " 

### Id. (citing 

### Navarette v . Brief investigative stops are permitted when law enforcement has "a particularized and objective 

### Carter at *2

- 3 (Pa. Super. 2014) (internal citations omitted). analysis: Pennsylvania law recognizes three levels of police encounters for search and seizure 673, 676 (Pa. 1999) (citat i ons omitted).

The first of these is a "mere encounter" ( or request for information) which need not' be supported by any level of suspicion, but carries no official compulsion to stop or respond. The second , an " investigative detention" must be supported by reasonable suspicion; it subjects a suspect to a stop and period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest. Finally, an arrest or "custodial detention" must be supported by probable cause. considered collectively, may permit the investigative detention

. 

### Commonwealth v. Cook, 735 A.2d from the facts in light of the officer's experience and acknowledge that innocent facts, when circumstances, courts must also afford due weight to the specific, reasonable inferences drawn 

### Commonwealth v . Dixon, 997 A.2d 368, 380 (Pa. Super

. 2010). In assessing the totality of the circumstances in order to determine whether the officers had reasonable suspicion for 

### a stop. criminal activity is afoot. 

### Terry , at 21

. Courts are required to look at the totality of the police officer must be able to point to "specific and articulable facts" leading him to suspect 

### Commonwealth v . Carter, I 

### 05 A.3d 765, 769 (Pa. Super

. 2014). In order to justify the seizure , 

### a • I6



### founded shooting occurred and within thirty minutes of his supervisor's caU

. 

### No other pedestrians the surrounding circumstances. Officer Moore spotted the Appellant a block away from where a Officer Moore believed the Appellant had a firearm on his person based on his actions and is a street in which "very violent" crimes occur. violence, armed robberies and open-air narcot i c sales. Officer Moore stated H Street, in particular, advised to conduct a sweep of the area during his patrol. The neighborhood is known for gun dozen in 

### the East Division

. Even when Officer Moore is not assigned to the East Division, he is ' i 

### crimes occur. He testified that he has made hundreds of arrests for guns during his career, several East Division

. Officer Moore stated the East Division is an area in which a high number of violent on highway patrol. Officer Moore testified the 3400 block of H Street is in the 24th District in the totality of the circumstances analysis. In this case, Appellant's actions appeared evasive as soon

as he saw Officer Ho1m1s' vehicle over his shoulder. stated, after a suspect learns of police presence, one's evasive behavior is a pertinent factor in the stated the Appellant appeared evasive after noticing Officer Holmes' marked police vehicle. As made eye contact with the officers and continued to tug and adjust his waistband. Officer Moore police vehicles. The police officers stopped and exited their vehicles. Again, the Appellant turned,

Officer Moore has been a Philadelphia Po1ice Officer for twenty-one years, twelve years After the Appellant looked over his shoulder, in the direction of Officer Moore's marked patrol vehicle, he stopped walking. He then made a U-turn and started walking southbound, toward the Appellant was seen walking swiftly while grabbing and adjusting his waistband with both hands. Officer Moore observed Appellant on 3400 H Street, one block west of 3400 I Street. The shooting on the 3400 block of I Street. About thirty minutes after receiving the information, In the instant case, Officer Moore received information from his supervisor of an alleged7 

### . '
were observed in the area. Officer Moore testified that after observing the Appellant his first instinct was the Appellant could have a gun in his waistband. Based on Officer Moore's

e xperience , the waistband is a coinmon area of the body in which individuals carry and conceal firearms. After the totality of the circumstances evolved, Officer Moore testified he was certain the Appellant was carrying a gun due to the tugging and adjusting of the waistband

. In addition, Appellant was observed in a high crime area late at night. Officer Moore drew upon his experience, as well as his knowledge of the area, training, experience and observations that night, to conclude that Appellant may be involved in criminal activity. The court found Officer Moore ' s observations were sufficiently specific and reliable for him to form reasonable suspicion. The reasonable suspicion was heightened into probable cause when Officer Moore witnessed the Appellant discard a firearm from his person . Given the totality of the circumstances, Officer Moore's investigatory detention of Appellant was supported by reasonable suspicion.8 

### J.

for relie f

. For the rea s ons s e t forth above , the judgment of the trial court should be affirmed

.

. . harmful , prejudic i al , or re v er sible e rror and nothing to just i fy the gran ti ng of Appellant's requ e st

In summary, this court has carefully reviewed the entire r ecord and finds no

Conclusion