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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COU RT OF : PENNSYLVANIA Appellee :

: v. : : JEROME RAYMOND BANKS, : : Appellant : No. 895 WDA 2013

Appeal from the Judgment of Sentence April 24, 2013 In the Court of Common Pleas of Allegheny County Criminal Division No(s).: CP-02-CR-0002813-2013 CP-02-CR-0011408-2012 BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD, * JJ. MEMORANDUM BY FITZGERALD, J.: FILED JUNE 02, 2015 Appellant, Jerome Raymond Banks, appeals from the j udgment of sentence entered in the Allegheny County Court of C ommon Pleas following a bench trial and convictions for possessing a fire arm with an altered manufacturer’s number, 1 receiving stolen property, 2 firearms not to be carried without a license, 3 and possession of firearm prohibited. 4 Appellant challenges whether the arresting officer possessed the requisite reasonable

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 6110.2(a).

2 18 Pa.C.S. § 3925(a).

3 18 Pa.C.S. § 6106(a)(1).

4 18 Pa.C.S. § 6105(a)(1).J. S17001/15

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suspicion to conduct a pat-down. We reluctantly co nclude Appellant is due

no relief. We adopt the facts set forth by the trial court. 5 See Trial Ct. Op., 5/6/14, at 1-4. Appellant timely appealed and time ly filed a court-ordered Pa.R.A.P. 1925(b) statement. Appellant raises the following issues:

Were Appellant’s Pa. Const. art. I § 8 and U.S. Con st. amend. IV & XIV constitutional rights violated when the police, acting without a warrant, detained him for investigation as he walked along a public street wi thout the reasonable suspicion required for such a detent ion (i.e., objectively reasonable suspicion that he was engaged in, had been engaged in, or was about to engage in criminal activity)? Were Appellant’s Pa. Const. art. I § 8 and U.S. Con st. amend. IV & XIV constitutional rights violated when the police frisked his person for [a] weapon without re asonable suspicion required for a protective frisk (i.e., ob jectively reasonable suspicion that he was both armed and presently dangerous at the time of the search or fr isk of his person)? In view of the proper answers to Question Nos. 1 an d 2, should not the trial court have granted Appellant’s pretrial motion seeking to suppress the firearm seized from his person by the police, and should not this Court vac ate Appellant’s convictions and sentences, and remand Appellant’s case for a retrial on Allegheny County Criminal Complaint Numbers 2012-11408 and 2013-02813 (with

5 We acknowledge the holding of In re L.J. , 79 A.3d 1073 (Pa. 2013), that after October 30, 2013, the scope of review for a s uppression issue is limited to the record available to the suppression court. Id. at 1085, 1089 (stating holding applies to “all litigation commenced Common wealth-wide after the filing of this decision”). Because the instant cri minal complaint was filed prior to October 30, 2013, In re L.J. does not apply.J. S17001/15

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- the firearm seized from his person barred from admi ssion into evidence)? Appellant’s Brief at 4. 6 We summarize Appellant’s arguments for all of his i ssues together. Appellant argues that the police lacked a reasonabl e suspicion that he was engaged in criminal activity or was armed. He reas ons that walking in a high crime area while wearing a hooded, zipped swea tshirt in August while carrying a heavy, unknown object in his waistband d id not justify the search and seizure. Appellant acknowledges that he report ed to the police that he was robbed in the area five days earlier. He furth er concedes that he was uncooperative when he was questioned earlier by a p olice officer about that robbery, who, coincidentally, was also the instant arresting officer. We are constrained to hold Appellant is not due relief.

Our standard of review in addressing a challenge to a trial court’s denial of a suppression motion is lim ited to determining whether the factual findings are suppor ted by the record and whether the legal conclusions drawn from those facts are correct. Where the prosecution pre vailed in the suppression court, we may consider only the Commonwealth’s evidence 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 record supports the factual findings of the trial court, w e are

6 Appellant admits his brief exceeds the 14,000 word limit set forth in Pa.R.A.P. 2135. See Appellant’s Counsel’s Cert. of Compliance with Word Count Restrictions. We decline to quash or dismiss the appeal, however. See generally Pa.R.A.P. 2101; Commonwealth v. Spuck , 86 A.3d 870 (Pa. Super. 2014).J. S17001/15

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- bound by those facts and may reverse only if the le gal conclusions drawn therefrom are in error.

In re J.E. , 937 A.2d 421, 425 (Pa. 2007) (citations omitted). In evaluating the legal conclusion drawn by the suppression court , this Court may also consider uncontradicted testimony from the suppress ion hearing not included in the suppression court’s findings of fac t. Commonwealth v.

Mendenhall , 715 A.2d 1117, 1119 n.1 (Pa. 1998).

Initially we note that Fourth Amendment jurispruden ce has led to the development of three categories of interactions between citizens and the police. The first of these is a “mere encounter” (or request for informa tion) which need not be supported by any level of suspici on, but carries no official compulsion to stop or to respon d. The second, an “investigative detention[,]” must be sup ported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve suc h coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or “cu stodial detention” must be supported by probable cause.

Commonwealth v. Ellis , 662 A.2d 1043, 1047 (Pa. 1995) (citations and footnote omitted). An investigative detention is a lso known as a “ Terry stop.” Commonwealth v. Chase , 960 A.2d 108, 117 (Pa. 2008). The Pennsylvania Supreme Court adopted the objectiv e Jones/Mendenhall 7 standard “in determining whether the conduct of th e police amounts to a seizure or whether there is sim ply a mere encounter

7 United States v. Mendenhall , 446 U.S. 544 (1980); Commonwealth v. Jones , 378 A.2d 835, 839 (Pa. 1977).J. S17001/15

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between citizen and police officer.” Commonwealth v. Matos , 672 A.2d 769, 774 (Pa. 1996).

In [ Commonwealth v. Hicks , 253 A.2d 276 (Pa. 1969)], this Court adopted the United States Supreme Court’ s decision in Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), which permits a police office r to effect a precautionary seizure where the police hav e a reasonable suspicion that criminal activity is afoo t. Terry , and by analogy Hicks , recognized that there are some instances in which an individual may not be arreste d, but will still be considered to be “seized.” In Jones , this Court adopted an objective standard for determining what amount of force constitutes the initiation of a Terry stop: whether a reasonable person innocent of any crime, would have thought he was being restrained had he been in the defendant’s shoes. This case, which preceded the U nited States Supreme Court’s decision in . . . Mendenhall , . . . was a precursor to the so-called “ Mendenhall ” test posited by the United States Supreme Court: “a pers on has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.”

The Jones

/ Mendenhall

standard has since been consistently followed in Pennsylvania in determinin g whether the conduct of the police amounts to a seiz ure or whether there is simply a mere encounter between ci tizen and police officer.

Id. at 773-74 (punctuation and some citations omitted)

. The Pennsylvania Supreme Court provided further gui dance in applying this “totality of the circumstances” test:

In evaluating the circumstances, the focus is direc ted toward whether, by means of physical force or show of authority, the citizen-subject’s movement has in so me way been restrained. In making this determination, cou rts must apply the totality-of-the-circumstances approa ch,J. S17001/15

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- with no single factor dictating the ultimate conclu sion as to whether a seizure has occurred.

Commonwealth v. Strickler , 757 A.2d 884, 890 (Pa. 2000) (footnotes and some citations omitted). Factors examined in this totality-of-thecircumstances approach include “all circumstances e videncing a show of authority or exercise of force, including the demea nor of the police officer, the manner of expression used by the officer in add ressing the citizen, and the content of the interrogatories or statements.” Mendenhall , 715 A.2d at

1119. This Court also set forth a non-exclusive li st of factors:

[T]he number of officers present during the interac tion; whether the officer informs the citizen they are su spected of criminal activity; the officer’s demeanor and to ne of voice; the location and timing of the interaction; the visible presence of weapons on the officer; and the questio ns asked. Otherwise inoffensive contact between a mem ber of the public and the police cannot, as a matter of law, amount to a seizure of that person.

Commonwealth v. Collins , 950 A.2d 1041, 1047 n.6 (Pa. Super. 2008) ( en banc ) (citation omitted). In sum, the question of “whether the police needed some level of requisite cause at the time they initially approached” the defendant is “governed by the type of encounter that the police initiated when they approached” the defendant. In re D.M. , 781 A.2d 1161, 1164 (Pa. 2001) (emphases added). The critical inquiry is what typ e of encounter the police initiated at the time they initially approached the defendant. See id. After identifying the type of encounter— e.g. , mere encounter, investigativeJ. S17001/15

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detention, or custodial detention—this Court must t hen determine whether the police had the requisite cause for that encount er, respectively, e.g. , no suspicion required, reasonable suspicion that crimi nal activity was afoot, or probable cause for an arrest. See Ellis , 662 A.2d at 1047; Jones , 378 A.2d

at 839 n.4.

In Commonwealth v. Carter , 105 A.3d 765 (Pa. Super. 2014) ( en banc ), our Superior Court held the police had reasonabl e suspicion to stop and frisk the defendant based on the following:

On November 9, 2011, at approximately 9:00 p.m., Of ficer Matthew Blaszczyk of the Philadelphia Police Depart ment was patrolling near 700 East Madison Avenue in Philadelphia, at the corner of Madison Avenue and G Street. Officer Blaszczyk testified that this is a known drug corner and he personally has made multiple gun and drug arrests at this corner. At said time, Officer Blas zczyk and his partner, Officer White, were driving northbound on G Street when they observed [the defendant] standing on the northeast corner of the intersection. Officer Blaszczyk “immediately observed a bulge in [the defendant’s] left coat pocket.” Officer Blaszczyk believed that it w as a heavy object because of “the way it weighed the jac ket down and the way it protruded.” As Officers Blaszc zyk and White drove northbound by [the defendant], Officer Blaszczyk noted that, “[the defendant] looked in [t heir] direction and began to walk south.” The officers c ircled around the block and approached the intersection fr om a different direction. Upon returning to the intersec tion, Officer Blaszczyk observed that [the defendant] was back on the same corner, with the same bulge in his coat

. Officer Blaszczyk noted that he and Officer White d id this multiple times. Each time we came down the street, it was a few tim es, maybe three or four, [the defendant] would look in our direction and walk the opposite way whichever way w e were coming from.J. S17001/15

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- And the way he turned his body was so that that bul ge, you know, we could see it initially. And then he’d turn. So he wasn’t in our view. The officers got out of their vehicle and approache d [the defendant], and again [the defendant] turned his bo dy away from the officers so they could not see the bu lge in his coat. Officer Blaszczyk further testified that based on the size and shape of the bulge, the way it weighed [the defendant’s] coat down, and the way it swung, he be lieved the bulge to be a firearm. Officers Blaszczyk and White stopped [the defendant] and patted him down. Durin g the pat-down, Officer Blaszczyk noticed upon feeling th e bulge, that he could “immediately feel the shape of a fire arm.” Officer Blaszczyk recovered from [the defendant’s] person “a 22–caliber Walther handgun, a Walther P–22 model .”

Id. at 766-67 (footnote and citations omitted).

The en banc

Court held that the search and seizure was justifi ed: [T]he Commonwealth, through Officer Blaszczyk, established that [the defendant] was in a high-crim e area, at night, with a weighted and angled bulge in his c oat pocket. Furthermore, [the defendant] was alerted t o the officers’ presence and intentionally turned his bod y away from them, at least three times, to conceal the bul ge. The officers also observed [the defendant] walking away from the known drug corner whenever the officer[s] passe d by it. In our view, the Commonwealth sufficiently sho wed that Officer Blaszczyk had the reasonable suspicion to first seize [the defendant] as well as conduct the limite d Terry pat-down, as the entire basis for Officer Blaszczyk ’s seizure before the pat-down was that [the defendant ] was armed and dangerous.

Id. at 774-75 (footnote and citations omitted). The Carter Court emphasized the totality of the circumstances justif ied the seizure. Id. at

775. The en banc

majority also noted that “the Commonwealth would n ot be penalized if the officer had been wrong because Terry , by its veryJ. S17001/15

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nature, ‘accepts the risk that officers may stop in nocent people.’ Illinois v.

Wardlow , 528 U.S. 119, 126, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000).”

Id. at 769 n.4. Instantly, in a high-crime area around 1:30 p.m. on August 20, 2012, when the temperature was in the mid-70s, two office rs were in a vehicle. 8 N.T. Suppression Hr’g, 2/21/13, at 6. The police s aw Appellant wearing a zipped, hooded sweatshirt with his right hand in th e front pocket of the sweatshirt or in front of his waistband holding som ething heavy. Id. at 6, 8- 10. The police believed Appellant was armed. Id. at 6. The police pulled up next to Appellant; the plainclothes officer open ed the vehicle’s door, announced “Pittsburgh Police,” displayed his badge, exited the vehicle, and approached Appellant. Id. at 9-10. The following transpired:

[District Attorney]. Now, as you passed [Appellant ], what did you do, if anything? [Officer]. We turned our vehicle around and pulled up beside him. I opened my door and announced “Pittsb urgh Police” and displayed my badge and approached him. He was still continuing to walk outbound. I got out o f my vehicle and approached him. Q. Then what did you do? A. I said, “Pittsburgh Police. I need to talk to you.” [Appellant] didn’t acknowledge I was there, althoug h we were in close proximity. He could hear me and did acknowledge my presence. I closed the gap between the

8 One officer was in plain clothes; the record does not establish the clothing of the other officer and whether the vehicle was ma rked or unmarked.J. S17001/15

- 10 - two of us. At that point he moved his hand out of his pockets. I said, “Do you have a weapon?” Again, he refused to answer me. At that point I believed he was armed. Did a pat down of his front waistband where I observed his hands. Immediately felt the handle of a pistol.

Id. at 9-10. We note the officer previously testified about his belief that Appellant was armed when they first saw him earlier

. Id. at 6. Instantly, when the police initially approached App ellant, asked to speak with him, and inquired whether he was armed, the interaction was a mere encounter or request for information. See Ellis , 662 A.2d at 1047;

see also In re D.M. , 781 A.2d at 1164. There was no official compulsi on to stop or to respond. See Ellis , 662 A.2d at 1047. 9 The mere encounter, however, transformed into an investigative detentio n when the police

conducted a Terry

pat down. See Matos , 672 A.2d at 773-74; Chase , 960 A.2d at 117. Having identified the type of encount er, we next ascertain whether the police had reasonable suspicion of crim inal activity. See Ellis , 662 A.2d at 1047; Jones , 378 A.2d at 839 n.4.

9 We acknowledge, “When a police officer initiates a n encounter, an individual as a practical matter never feels free to leave. The police officer has a weapon. The police officer’s testimony is al most always believed in court. No responsible person would walk away from a n encounter with a police officer.” Commonwealth v. Lyles , 54 A.3d 76, 84 (Pa. Super. 2012) (Strassburger, J., concurring), aff’d , 97 A.3d 298 (Pa. 2014).J. S17001/15

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Similar to the defendant in Carter who was standing on a street corner in a high crime area with a bulge in the lef t front pocket, Appellant was in a high crime area with his right hand in his sweatshirt or waistband holding something heavy. Cf. Carter , 105 A.3d at 766. The instant police, like the police in Carter , also believed Appellant had a firearm. Cf. id. at 767. Appellant, analogous to the Carter defendant, walked away from the police. Cf. id. at 767. The police—identical to the police in Carter —patted Appellant down and recovered a firearm. Cf. id. Given the instant facts are comparable to the facts in Carter , we are constrained to hold that the Commonwealth, given the totality of the circumstanc es, established reasonable suspicion to conduct the Terry pat down. See Strickler , 757 A.2d at 890; Mendenhall , 715 A.2d at 119; cf. Carter , 105 A.3d at 774- 75. Because the record supports the factual findin gs of the trial court and the legal conclusions drawn therefrom are correct, we discern no basis for relief and affirm the judgment of sentence. See In re J.E. , 937 A.2d at

425. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. ProthonotaryJ. S17001/15

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Date: 6/2/2015