J-A15002-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

DAMON JOHNSON,

Appellant No. 3007 EDA 2017

Appeal from the Judgment of Sentence Entered August 11, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): 

CP-51-CR-0003364-2016

CP-51-CR-0010937-2016

CP-51-CR-0013500-2009

BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 23, 2019

Appellant, Damon Johnson, appeals from the judgment of sentence of 

an aggregate term of 6-12 years’ incarceration, to be followed by 4 years’

probation, imposed after the trial court found him guilty at a non-jury trial of 

resisting arrest, carrying a firearm without a license, carrying a firearm on the 

streets of Philadelphia, person not to possess a firearm, simple assault, 

recklessly endangering another person (REAP), and criminal mischief.

1

 

Appellant challenges the sufficiency of the evidence supporting his conviction 

and the trial court’s denying his motion to suppress the seized evidence. After 

careful review, we affirm. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S. §§ 5104, 6106, 6108, 6105, 2701, 2705, 3304, respectively. 
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The trial court summarized the facts adduced at trial as follows:

On January 28, 2016 at approximately 9:00 pm, Police Officer Paul 

Sulock and his partner, Police Officer Jeffrey Stauffer, were 

traveling northbound on Frankford Avenue, approaching Cambria, 

when they heard two gunshots north of their location. Officer 

Sulock continued northbound on Frankford Avenue toward the 

gunshots. Upon his arrival, within 30 seconds of hearing the 

gunshots, Officer Sulock observed a large crowd of people running 

in different directions while screaming. Officer Sulock was then 

flagged down by a female who told him “they are shooting out 

here,” to which he inquired as to the identity of the shooter. The 

female replied that she did not know and that she had only heard 

the shots. 

Within two minutes after speaking with the female, Officer Sulock 

drove eastbound on the 1900 block of Stella Street where he 

observed a light blue 2001 Grand Marquis traveling at a high rate 

of speed. The car was leaving Frankford Avenue, the area of the 

shooting, and heading westbound on Stella Street. The 1900 

block of Stella Street is approximately one block away from the 

scene of the shooting at 2900 Frankford Avenue. While Officer 

Sulock was driving eastbound, [Appellant] was driving westbound. 

However, Officer Sulock was able to record the license plate 

number and observed [Appellant] driving the car. Officer Sulock 

immediately made a U-turn and followed [Appellant]’s vehicle. 

After [Appellant] noticed he was being followed, he abruptly 

parked in front of 1945 or 1947 Stella Street, in a handicap 

parking space, on the north side of the street. Once parked, 

[Appellant] immediately left the vehicle, ran, and attempted to 

enter 1947 Stella Street. Officer Sulock stepped out of his vehicle 

to investigate [Appellant]’s behavior.

As Officer Sulock approached [Appellant], [Appellant] bladed his 

body away from Officer Sulock, turning the left side of his body, 

while keeping his left hand in his waistband area. Officer Sulock 

asked [Appellant] what he was doing and requested to see [his] 

hands. [Appellant] responded by repeatedly claiming, “I live 

here.” However, Officer Sulock knew [Appellant]’s claim to be 

false as Officer Sulock was familiar with the area and knew the 

actual occupant of this residence to be an elderly Caucasian man. 

Further, Officer Sulock had never seen [Appellant] in the area of 

the home. During the conversation, [Appellant] stepped over a 

handicap ramp at 1947 Stella Street and continued to inch his way 
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eastbound. Officer Sulock asked, again, to see [Appellant]’s 

hands and [he] complied. Officer Sulock then placed [Appellant], 

with his hands up, against a wall.

After [Appellant] was against the wall, Officer Sulock proceeded 

to ask him for the location of the keys to the vehicle and inquired 

further as to his behavior. [Appellant] responded to the questions 

by stating, “I was never in no vehicle. I don’t know what you’re 

talking about.” Officer Sulock noticed that [Appellant] was 

extremely nervous and smelled of gunshot powder. Officer Sulock 

then placed [Appellant] in the back of his police car for further 

investigation and retrieved the registration to the vehicle, which 

was hanging out of [Appellant]’s hoodie[’s] pocket. While 

[Appellant] was in the police car, Officer Sulock walked to 

[Appellant]’s vehicle and noticed the vehicle was open. Officer 

Sulock began looking around the car with his flashlight. Officer 

Sulock found car keys on the driver’s side floorboard and a spent 

shell casing on the floorboard in the back, behind the driver’s seat. 

As Officer Sulock was looking around inside of the vehicle, he 

heard glass shatter. Officer Sulock looked toward his police car 

and observed his partner place both of his hands up in front of his 

face and both of [Appellant]’s feet leaping out of the back of the 

police car. After exiting the vehicle, [Appellant] began fleeing on 

foot, eastbound on Stella Street, then northbound on Braddock, 

and then westbound on Toronto. Officer Sulock placed a call over 

police radio to other officers in the area and immediately gave 

chase on foot. Officer Sulock was able to get [Appellant] on the 

ground, while [Appellant] was heading westbound on Toronto. 

Officer Sulock required the assistance of five or six other officers 

in order to handcuff [Appellant]’s hands behind his back and 

control him due to [his] resistance.

After [Appellant] was under control, Officer Sulock sprinted back 

to [Appellant]’s vehicle and observed other officers around the car 

and noted the car doors were open and the trunk of the car was 

open. Officer Sulock then observed two handguns, a gold .45 

caliber firearm and a black High Point .9 mm handgun, in the trunk 

of the vehicle. After observing the two firearms, Officer Sulock 

contacted East Detectives and [Appellant] was arrested and 

transported to East Detectives while [Appellant]’s vehicle was held 

at the scene. At a later date, it was discovered that [Appellant] 

was not licensed to carry or possess a firearm.
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Also, on January 28, 2016, at around 9:00 pm, Detective Dennis 

Dusak was involved in an investigation of shots fired at 2957 

Frankford Avenue. The scene was located near 2900 Frankford 

Avenue and Orleans Street. During his investigation, he observed 

a bullet hole in the front window of a residence at 2957 Frankford 

Avenue and spoke with the occupants of the residence, a mother 

and her 10-year-old child. Detective Dusak entered the residence 

and saw the bullet hole from inside the residence and noted there 

was also a bullet hole on the wall and on the other side of a kitchen 

cabinet. Detective Dusak also discovered a bullet projectile inside 

of the kitchen cabinet and submitted it to the Firearms 

Identification Unit. On a later date, Detective Dusak submitted 

two spent casings, discovered in front of 2033 East Orleans Street, 

on the highway, for a ballistic comparison with the bullet projectile 

he found at 2957 Frankford Avenue. The two locations where the 

casings and the bullet projectile were found were approximately 

one block away from each other. The casings were later identified 

as casings from a .45 and a .9 mm firearm.

Once [Appellant] was arrested, Detective Randall Farward 

recovered: two .45 caliber fired cartridge casings (FCCs) at 2033 

East Orleans Street, two firearms from [Appellant]’s vehicle on 

Stella Street, a High Point .9 mm and a Model Star .45 caliber, 

one .9 mm shell casing from the rear driver’s seat of [Appellant]’s 

vehicle, [Appellant]’s DNA, and [his] clothing to submit to the 

chemical laboratory to have ballistic activity testing performed. 

During testing of [Appellant]’s clothing, gunshot residue was 

discovered on the front, right side of [his] hooded sweatshirt, left 

sleeve and cuff, and inside of the hooded sweatshirt’s pocket.

The firearms recovered from [Appellant]’s vehicle were submitted 

for DNA testing. The results were inconclusive. However, the 

testing revealed that the .45 caliber firearm contained DNA from 

two individuals, at least one of wh[om] was a male. Police Officer 

Gregory Walsh, a firearms examiner, test fired both firearms 

found in [Appellant]’s vehicle and found both to be operable. 

Officer Walsh also tested the three FCCs and projectile recovered. 

Officer Walsh concluded that the .45 caliber FCCs recovered from 

2033 East Orleans Street, the shooting scene, were fired from the 

.45 caliber firearm recovered from [Appellant]’s trunk and the .9 

mm FCC found in [Appellant]’s vehicle was fired from the .9 Trim 

firearm found in [Appellant]’s trunk.

[Appellant] testified at trial that he did not have a gun in his 

possession and that he did not know how the firearms got inside 
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the trunk of his vehicle on January 28, 2016. He further testified 

that he had no idea how the gun[]powder residue had gotten on 

his hooded sweatshirt the evening the incident occurred. 

[Appellant] testified that he believed he was arrested around 8:50 

pm, shortly after leaving his house for his night classes. 

[Appellant] also testified that he normally attended night classes 

from 4 pm until 10 pm on a daily basis. 

[Appellant] testified that he owned four vehicles, which he would 

lend to his friends and family, and that on the evening of January 

28, 2016, he had woken up late for school. [Appellant] testified 

to the [c]ourt that[,] on that date[,] he hopped into the vehicle 

outside of his house since it was already started. Then, he 

corrected himself and stated that he went outside and put the 

keys in the ignition of the vehicle since it had an automatic 

starter.... He then proceeded to drive down to the intersection of 

Emerald and Stella and noticed police officers at the intersection. 

[Appellant] continued driving onto the 1900 block of Stella Street 

to pick up his model for school. [Appellant] claimed that his model 

was Mr. John, a man who lives at a house with a handicap parking 

space in front of it. [Appellant] then parked in the handicap space 

because it was already dug out after it had snowed.

[Appellant] claimed that the police officers were still at the 

intersection and watched him as he exited the vehicle and 

proceeded to 1947 Stella Street. [Appellant] knocked on the door 

to see if Mr. John wanted to come to [Appellant]’s school to model 

or if he wanted to reschedule. As [Appellant] was walking down 

the handicap ramp from Mr. John’s house, he noticed the police 

officers without headlights on and without any lights. As 

[Appellant] walked down the ramp, he saw the two police officers 

with their guns pointed at him and he put his hands in the air. 

[Appellant] then claimed that the police officers handcuffed him 

and told him he was handcuffed for an investigation. The police 

officers had [Appellant] sit in the snow for a second and when 

[Appellant] stood back up, his pants fell down to his ankles. 

[Appellant] asked if one of the police officers would help him pull 

his pants back up but the officer refused.

[Appellant] testified that he was placed in the back of the police 

car with his pants still down at his ankles. He explained that since 

he was handcuffed and his pants were down, he had to enter the 

vehicle by leaning back and jumping backwards in the seat. He 

then claimed that once the officer slammed the door[,] the window 

shattered. [Appellant] explained that he didn’t drive the vehicle
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in question often, as it was usually loaned to friends and family. 

He stated that he only drove it on the day of the incident because 

of the snow. He stated that the car was already parked at his 

house when he left for school, but then he stated that it was 

dropped off to him by one of his brothers. [Appellant] claimed 

that he did not know where the key to the vehicle was, but was 

able to get a spare key from his house, even though he did not 

drive the car often. This [c]ourt found [Appellant]’s testimony to 

be entirely incredible due to the contradictory and illogical nature 

of [his] testimony.

Trial Court Opinion (TCO), 6/6/18, at 1-7.

The Commonwealth charged Appellant with resisting arrest at CP-51-

CR-0003364-2016, and with the remaining, above-listed offenses at CP-51-

CR-0010937-2016.2 Appellant filed a motion to suppress the seized physical 

evidence, which the trial court denied following a hearing on April 11, 2017. 

Appellant’s non-jury trial was held on May 24, 2017, where he was convicted 

of the offenses as stated above. On August 11, 2017, the trial court sentenced 

Appellant to 5-10 years’ incarceration for person not to possess a firearm, a 

concurrent 1-2 years’ incarceration for resisting arrest, and a consecutive term 

of 1-2 years’ incarceration for carrying a firearm without a license. The court 

imposed 4 years’ probation consecutive to Appellant’s incarceration for 

carrying a firearm on the streets of Philadelphia, and concurrent terms of 

____________________________________________

2 At CP-51-CR-0013500-2009, the trial court determined that Appellant had 

violated his probation due to his new convictions at CP-51-CR-0003364-2016 

and CP-51-CR-0010937-2016, and imposed a term of 6-12 months’

incarceration. However, Appellant does not raise any issues in the present 

appeal that pertain to that matter.
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probation of 2 years’ each for simple assault and REAP. Appellant filed a timely 

post-sentence motion, which the court denied on October 4, 2017. 

Appellant filed a pro se notice of appeal on September 5, 2017, which 

this Court docketed as 3007 EDA 2017.3 Appellant was subsequently 

appointed appellate counsel, who filed a second notice of appeal on November 

3, 2017, and which this Court docketed at 3610 EDA 2017. On May 2, 2018, 

Appellant filed a timely, court-ordered Pa.R.A.P. 1925(b) statement. 

Appellant petitioned to file a supplemental Rule 1925(b) statement, and with 

permission of the trial court, Appellant filed a supplemental Rule 1925(b) 

statement on May 14, 2018. The trial court issued its Rule 1925(a) opinion 

on June 6, 2018. On August 7, 2018, the suppression court filed an additional 

opinion per the trial court’s request. On October 15, 2018, this Court 

dismissed the appeal docketed at 3610 EDA 2017 as duplicative. 

Appellant now presents the following questions for our review:

A. Did the trial court err when it found that there was sufficient 

evidence to prove, beyond a reasonable doubt, that 

[A]ppellant ... was guilty of the criminal offenses of: simple 

assault..., [REAP]..., resisting arrest..., persons not to 

possess firearms..., firearms not to be carried without a 

____________________________________________

3 Appellant filed a single notice of appeal with multiple lower court docket 

numbers. Our Supreme Court made it clear in Commonwealth v. Walker, 

185 A.3d 969 (Pa. 2018), that appellants are required to file separate notices 

of appeal at each docket number implicated by an order resolving issues that 

involve more than one trial court docket, regardless of whether a single 

hearing or order addressed the issues at all implicated dockets. However, as 

the instant appeal predates Walker, and the Court indicated that Walker

applies prospectively, we do not quash this appeal.
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license ...[,] and carrying firearms on public streets or public 

property in Philadelphia...?

B. Did the trial court err when it denied Appellant’s Motion to 

Suppress Physical Evidence, pursuant to the Fourth and 

Fourteenth Amendments of the United States Constitution 

and Article I, Section 8 of the Pennsylvania Constitution, as 

on January 28, 2016, the Philadelphia Police did not have 

reasonable suspicion nor probable cause to stop Appellant..., 

search him and seize his clothing nor to search his Grand 

Marquis automobile and seize two firearms from the trunk 

of this automobile?

Appellant’s Brief at 2. 

In the first question presented for our review, Appellant raises six 

distinct sufficiency issues. In the “Argument” section of his brief, Appellant 

discusses five of the six issues in a single section, without any subheadings to 

distinguish them. See id. at 32-40.

The Rules of Appellate Procedure clearly dictate that:

The argument shall be divided into as many parts as there are 

questions to be argued; and shall have at the head of each part--

in distinctive type or in type distinctively displayed--the particular 

point treated therein, followed by such discussion and citation of 

authorities as are deemed pertinent.

Pa.R.A.P. 2119(a). 

Appellant has failed to comply with Rule 2119(a). However, we decline 

to find waiver in this instance, as we are able to ascertain the nature of 

Appellant’s sufficiency claims.

Our standard of review of sufficiency claims is well-settled:

A claim challenging the sufficiency of the evidence is a 

question of law. Evidence will be deemed sufficient to support the 

verdict when it establishes each material element of the crime 

charged and the commission thereof by the accused, beyond a 

reasonable doubt. Where the evidence offered to support the 
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verdict is in contradiction to the physical facts, in contravention to 

human experience and the laws of nature, then the evidence is 

insufficient as a matter of law. When reviewing a sufficiency 

claim[,] the court is required to view the evidence in the light most 

favorable to the verdict winner giving the prosecution the benefit 

of all reasonable inferences to be drawn from the evidence. 

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal 

citations omitted).

Firearm offenses

Appellant argues that:

The only evidence adduced at trial with regard to the [firearm

offenses] is that [Appellant] constructively possessed two firearms 

- a .9 millimeter handgun and a .45 caliber handgun, that were 

found in the trunk of his automobile. None of the 

Commonwealth’s witnesses actually saw [Appellant] in possession 

of these firearms - i.e., they were not on his person. There was, 

however, testimony at trial that other persons had access to 

[Appellant’s] automobile.

Appellant’s Brief at 37-38. Thus, Appellant challenges only the sufficiency of 

the evidence supporting his possession of the seized firearms, an element 

common to each of the firearm offenses. As Appellant acknowledges, even 

though he “was not in physical possession of the contraband, the 

Commonwealth” could “establish that he had constructive possession of the 

seized items to support his convictions.” Commonwealth v. Kinard, 95 A.3d 

279, 292 (Pa. Super. 2014).

Constructive possession is a legal fiction, a pragmatic construct to 

deal with the realities of criminal law enforcement. Constructive 

possession is an inference arising from a set of facts that 

possession of the contraband was more likely than not. We have 

defined constructive possession as conscious dominion. We 

subsequently defined conscious dominion as the power to control 

the contraband and the intent to exercise that control. To aid 
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application, we have held that constructive possession may be 

established by the totality of the circumstances.

Id. (cleaned up). 

Appellant is not entitled to relief. The only testimony that other persons 

had access to his vehicle was his own, and the trial court determined that 

Appellant was not credible “because there were conflicting facts in his 

testimony and much of the testimony did not makes sense.” TCO at 8. 

Furthermore, Appellant simply fails to acknowledge the circumstantial 

evidence supporting his constructive possession of the seized firearms; police 

observed him fleeing from the scene of the shooting, and gunshot residue was 

ultimately discovered on his clothing. It was reasonable, therefore, for the 

trial court to conclude that Appellant had used one of the firearms discovered 

in the trunk of his vehicle during the shooting. Thus, it was sufficiently 

demonstrated that Appellant had both the power to control the weapons and 

the intent to exercise that control. For these reasons, we conclude that 

Appellant has failed to show that the evidence was insufficient to support that 

he constructively possessed the firearms; thus, the evidence was sufficient to 

support his convictions for carrying a firearm without a license, carrying a 

firearm on the streets of Philadelphia, and person not to possess a firearm. 

Simple Assault and REAP

Next, Appellant asserts that the evidence was insufficient to support his 

conviction for simple assault and REAP. In this regard, Appellant contends 

that:
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The only evidence adduced at trial with regard to the criminal 

offenses of [s]imple [a]ssault ... and [REAP] ... is circumstantial, 

mostly ballistic and forensic in nature, relating to a shooting that 

occurred prior to [Appellant’s] being arrested. None of the 

Commonwealth’s witnesses actually saw [Appellant] shooting at 

or into a residence located at 2957 Frankford Avenue or anywhere 

else in that area. After a careful reading of the trial testimony, it 

is clear that this circumstantial evidence is insufficient to prove 

these criminal offenses beyond a reasonable doubt. 

Appellant’s Brief at 33. 

Thus, Appellant does not appear to challenge any specifically 

enumerated element of the crimes of simple assault or REAP, nor does he 

dispute that a shooting occurred. Instead, he only contests the sufficiency of 

the evidence supporting his identity as the shooter, an implicit element of 

every crime. However, it is axiomatic that the “Commonwealth may sustain 

its burden of proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence.” Commonwealth v. 

Hutchinson, 947 A.2d 800, 806 (Pa. Super. 2008). Furthermore, “[f]light 

does indicate consciousness of guilt, and a trial court may consider this as 

evidence, along with other proof, from which guilt may be inferred.”

Commonwealth v. Hargrave, 745 A.2d 20, 23 (Pa. Super. 2000) (cleaned 

up). 

The trial court found:

In this case, the ... court considered [Appellant]’s flight as a factor 

along with the other evidence. Here, [Appellant] was observed 

driving his car at a high rate of speed, shortly after the gunshots 

were heard. [Appellant] exhibited evasive measures when he 

parked in a handicap space and went up to the house and falsely 

claimed he lived there. Once apprehended by police officers in 

the police vehicle, [Appellant] used force to break the glass and 
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flee while Officer Sulock was searching [Appellant]’s vehicle. In 

order to re-apprehend and restrain [Appellant], Officer Sulock 

required the assistance of an additional five or six police officers.

Police officers found two firearms in the trunk of [Appellant]’s 

vehicle. One of the firearms found in [his] vehicle was matched 

to the ballistics from the bullet found in the house located at 2957 

Frankford Avenue and the two FCCs found on 2033 East Orleans 

Street matched the .45 caliber firearm recovered from the trunk 

of [his] vehicle. Gunpowder residue was later found, through the 

use of chemical testing, on [Appellant]’s hooded sweatshirt worn 

the night of the shooting and [Appellant] smelled strongly of 

gunpowder [on] the night of the incident.

These facts, although circumstantial, are more than sufficient 

evidence to support the simple assault and [REAP] convictions 

beyond a reasonable doubt. The [c]ourt concluded all of this 

circumstantial evidence[,] the recovery of the firearms from 

[Appellant]’s vehicle, ballistics evidence, evasive behavior, flight, 

and the incredible testimony of [Appellant], left no reasonable 

doubt that [he] was one of the shooters. Therefore, the 

circumstantial evidence taken as a whole, supports the conviction 

on the charges of simple assault and REAP.

TCO at 9-10. 

We agree with the trial court. The evidence was more than sufficient to 

convict Appellant of simple assault and REAP.

Resisting Arrest

In Appellant’s statement of the questions presented, he challenges the 

sufficiency of the evidence supporting his conviction for resisting arrest. 

However, nowhere in the Argument section of his brief does he develop that 

claim. Accordingly, we deem this issue waived. See In re Est. of Whitley, 

50 A.3d 203, 209–10 (Pa. Super. 2012) (cleaned up) (“The argument portion 

of an appellate brief must include a pertinent discussion of the particular point 

raised along with discussion and citation of pertinent authorities. This Court 
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will not consider the merits of an argument which fails to cite relevant case or 

statutory authority. Failure to cite relevant legal authority constitutes waiver 

of the claim on appeal.”). 

Suppression

Appellant next argues that the trial court should have granted his motion 

to suppress the seized physical evidence.

4

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 

... 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) 

(cleaned up). 

Valid citizen/police interactions which constitute seizures 

generally fall within two categories, distinguished according to the 

degree of restraint upon a citizen’s liberty: the investigative 

____________________________________________

4 Appellant sought suppression of the two firearms discovered in the trunk of 

his vehicle, as well at his clothing, which, when tested, revealed the presence 

of gunshot residue. 
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detention or Terry[5] stop, which subjects an individual to a stop 

and a period of detention but is not so coercive as to constitute 

the functional equivalent of an arrest; and a custodial detention 

or arrest, the more restrictive form of permissible encounters. To 

maintain constitutional validity, an investigative detention must 

be supported by a reasonable and articulable suspicion that the 

person seized is engaged in criminal activity and may continue 

only so long as is necessary to confirm or dispel such suspicion; 

... whereas, a custodial detention is legal only if based on probable 

cause. 

Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000) (cleaned up, 

footnotes omitted). Probable cause “exists where the facts and circumstances 

within the officer’s knowledge are sufficient to warrant a person of reasonable 

caution in the belief that an offense has been or is being committed.” 

Commonwealth v. Evans, 685 A.2d 535, 537 (Pa. 1996) (cleaned up). 

Here, Appellant contends that Officer Sulock 1) lacked reasonable 

suspicion to frisk him for weapons; 2) lacked reasonable suspicion to place 

Appellant in the back of his patrol vehicle after failing to discover a weapon 

during the frisk; 3) lacked probable cause to search his vehicle; and 4) lacked 

probable cause to seize and then search his clothing for gunshot residue. 

The suppression court determined that the initial frisk was justified 

based on the following facts: 

After hearing gunfire, the police herein returned to Frankford 

Avenue and Orleans Street, a high crime area, one which they had 

just left ten minutes prior thereto after investigating a 

disturbance, and upon doing so, the police learned that some men 

had been firing guns there. The police then began patrolling in 

the area and a couple of minutes later, a couple of blocks from 

Frankford Avenue and Orleans Street, they saw a vehicle turning 

____________________________________________

5 See Terry v. Ohio, 392 U.S. 1 (1968). 
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off of Frankford Avenue at a high rate of speed in a direction away 

from the site of the shooting. They made a U-turn and followed 

the vehicle, which was being driven by Appellant who, of his own 

volition, pulled his car over to the curb without signaling and 

stopped in a handicapped parking spot. Appellant then exited the 

vehicle and proceeded up to a residence.

Officer Sulock asked Appellant what he was doing and Appellant, 

who appeared to be very nervous and was standing sideways to

the officer with his hands hidden from the officer’s view, said he 

lived at the residence. Appellant then began walking away from 

the officer after repeating that he lived at the residence. Officer 

Sulock stopped Appellant from leaving.

At the moment the officer stopped Appellant, the officer had the 

legal right to do so to investigate if he had anything to do with the 

recent gun fire. As noted above, the officer observed Appellant 

driving at a high rate of speed away from the site where guns had 

been fired just minutes before. Appellant, who was visibly 

nervous, then refused to show his hands to the officer and tried 

to leave the area despite having told the officer that he lived in 

the residence he just walked up to after exiting the car. The 

totality of the circumstances, including Appellant’s nervousness, 

refusal to show his hands, his attempt to leave, and the high rate

[of speed] and direction that Appellant was driving combined to 

give the police the right to investigate Appellant as he attempted 

to walk away from the officers for possible involvement in the 

shooting at Frankford and Orleans. Reasonable suspicion does not 

require certainty that crime is afoot. In Commonwealth v. 

Rogers, 578 Pa. 127, 849 A.2d 1185 (2004), the Supreme Court 

stated:

Of course, one can conceive of innocent explanations for 

each one of these facts. Yet, as noted supra, reasonable 

suspicion does not require that the activity in question must 

be unquestionably criminal before an officer may investigate 

further. [...] Rather, the test is what it purports to be—it 

requires a suspicion of criminal conduct that is reasonably 

based upon the facts of the matter. The facts of the matter 

sub judice give rise to just such a suspicion. [The a]ppellant 

was unusually agitated; the paperwork for his vehicle was 

out of order in several key respects; his answers regarding 

the location he had just departed were vague; and, most 

importantly, the backseat of his car contained products that 

Trooper Banovsky knew, via his extensive professional 
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experience, are commonly used in the packaging of illegal 

narcotics. These facts, taken in their totality, lead to a 

conclusion that Trooper Banovsky had reasonable suspicion 

to suspect that criminal activity was afoot. Thus, [the 

a]ppellant’s first claim for relief fails.

Rogers, 849 A.2d at 1190.

In addition, evasive behavior is relevant in determining whether 

reasonable suspicion exists. Illinois v. Wardlow, 528 U.S. 119 

(2000); accord Commonwealth v. Freeman, 757 A.2d 903, 

908 (Pa. 2000) (“nervous, evasive behavior such as flight is a 

pertinent factor in determining reasonable suspicion”). See also 

Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000) 

(stating that the expectation of criminal activity in a given area 

and nervous or evasive behavior are factors). If a suspect 

engages in hand movements that police know, based on their 

experience, are associated with the secreting of a weapon, those 

movements will buttress the legitimacy of a protective weapons 

search of the location where the hand movements occurred. In 

Interest of 0.J., 958 A.2d 561 (Pa. Super. 2008) (en banc).... 

Likewise, although presence in a high crime area or flight alone 

does not form the basis for reasonable suspicion, 

Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999), a 

combination of these factors can be sufficient. Terry v. Ohio, 

392 U.S. 1, 22 (1968); Zhahir, 751 A.2d at 1157 (suspicious 

conduct corroborates anonymous tip).

In Appellant’s case, the combination of these and the other factors 

set forth above provided the officers with reasonable suspicion 

that Appellant was involved in criminal activity.

Suppression Opinion, 8/7/18, 6-7. 

We agree with the suppression court’s analysis, and its conclusion that 

Officer Sulock possessed a reasonable suspicion that Appellant had been 

involved in the shooting based on the circumstances observed by the officer. 

Furthermore, because Appellant was seen fleeing from the location of the 

shooting in a vehicle, we disagree that the reasonable suspicion possessed by 
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the officer had dissipated once the frisk failed to uncover a weapon. It was 

reasonable for the officer to detain Appellant temporarily in the patrol vehicle 

while he continued to investigate by searching Appellant’s vehicle from the 

outside with his flashlight. No additional level of suspicion was required to 

justify that limited investigation of Appellant’s vehicle. See Commonwealth 

v. Milyak, 493 A.2d 1346, 1348 (Pa. 1985) (holding that “no search triggering 

the protection of the Fourth Amendment is conducted where an officer 

observes the plainly viewable interior of a vehicle[,]” even when that search 

is aided with a flashlight). 

We also agree with the suppression court’s analysis and conclusion 

regarding the subsequent search of Appellant’s vehicle:

With regard to the search of the car, under the facts and 

circumstances present herein, the police did not violate the law 

because they had sufficient probable cause to search the vehicle. 

Warrantless searches of cars and their occupants can be made 

only when there is independent probable cause to believe that 

weapons, contraband, or criminal evidence will be found therein. 

Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (plurality) 

(reaffirming ruling in Commonwealth v. Smith, 304 A.2d 456, 

458 (Pa. 1973), that probable cause is necessary and sufficient to 

justify the search or seizure of an automobile in a public place); 

Commonwealth v. Runyan, 160 A.3d 831, 837 (Pa. Super. 

2017). Probable cause exists where the facts and circumstances 

within the officer’s knowledge are sufficient to warrant a prudent 

individual in believing that an offense was committed and that the 

defendant has committed it. Commonwealth v. Dennis, 612 

A.2d 1014, 1015-16 (Pa. Super. 1992)....

Upon stopping Appellant for investigation, Officer Sulock went 

over to the vehicle Appellant had just exited and with the aid of a 

flashlight observed a fired cartridge case behind the driver’s seat. 

The use of a flashlight did not constitute a search. See ... Milyak[, 
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supra]...; Commonwealth v. Bentley, 419 A.2d 85 (Pa. Super. 

1980).

Appellant then broke out of the police car he had been placed in 

and fled. The combination of these circumstances along with the 

evidence that Appellant had been driving the vehicle at a high rate 

of speed away from the site where there had been gun fire, 

Appellant’s flight from the vehicle, and Appellant’s blatant lie that 

he had not been driving the car, provided the police with probable 

cause to believe that the car contained contraband and justified 

their search of it. Thus, it is respectfully suggested that relief be 

denied with respect to this claim.

Suppression Court Opinion at 8-9. On this basis, we conclude that the search 

of Appellant’s vehicle was also lawful. 

Finally, Appellant contends that the seizure and subsequent search of 

his clothing for gunshot residue was unlawful, but he provides no separate 

analysis for that claim in the Argument section of his brief. Accordingly, we 

deem that aspect of his suppression claim waived. See Whitley, supra. In 

any event, had Appellant not waived this claim, we would agree with the 

suppression court that the seizure and search of Appellant’s clothing was 

justified as a search incident to arrest. “Police may constitutionally seize a 

prisoner’s clothing following arrest and detention without obtaining a search 

warrant.” Commonwealth v. Hall, 554 A.2d 919, 921 (Pa. Super. 1989). 

Accordingly, we ascertain no error in the suppression court’s denial of 

Appellant’s motion to suppress the seized physical evidence.

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/23/2019