J-S33011-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

LACY COLBERT

 Appellant No. 987 WDA 2015

Appeal from the Judgment of Sentence May 20, 2015

in the Court of Common Pleas of Allegheny County Criminal Division

at No(s): CP-02-CR-0014964-2014

BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD,*J.

MEMORANDUM BY FITZGERALD, J.: FILED: May 17, 2016

Appellant, Lacy Colbert, appeals from the judgment of sentence 

entered in the Allegheny County Court of Common Pleas following his nonjury trial convictions for firearms not to be carried without a license1

and 

resisting arrest.2 Appellant contends the trial court erred in denying his 

motion to suppress evidence. We affirm. 

On August 7, 2014, Appellant was arrested for the above crimes. On 

April 20, 2015, he filed a motion to suppress evidence claiming police did not 

have probable cause to arrest Appellant. Mot. to Suppress, 4/20/15, at 1-

4. Specifically, Appellant averred he “was pursued under the mistaken belief 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 6106(a)(1).

2 18 Pa.C.S. § 5104. 
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that he was warrant suspect Zachary Threats and based on this mistaken 

belief he was pursued and unlawfully arrested.” Id. at 3. 

The trial court held a suppression hearing on May 20, 2015, at which 

the Commonwealth presented the testimony of Detective Calvin Kennedy of 

the Pittsburgh Police Department. Appellant did not present any evidence. 

Following the hearing, the trial court made the following findings of fact and 

conclusions of law:

That Officer Calvin Kennedy, an officer with 21 years 

[of] experience with the Pittsburgh Police 

Department with a special focus in professional 

development in the field of narcotics since 2001, and 

also has training in firearms, firearms recognition of 

potentially armed individuals based on various 

factors such as hand movements, certain 

movements toward certain areas of the body, 

clothing, bulges, things of that nature. Also[, he] 

made hundreds of firearms arrests during his years 

of experience on the Pittsburgh Police Force.

On August 5 of 2014, there was a broadcast, a 

BOLO,[3]. . . a warrant for a one, Zachary Threats . . 

. for homicide. Mr. Threats was known to Officer 

Kennedy as early as 2012 by virtue of his criminal 

activity as well as his stature, physical stature to 

Officer Kennedy. In this particular instance, besides 

Officer Kennedy’s personal knowledge of his 

propensity for violence and danger. In this instance 

the particular BOLO was that Mr. Threats would not 

surrender voluntarily, and he was armed and 

dangerous. He was known to be a person who 

frequented the North Side Sandusky Court area. 

Sandusky Court itself being known as a high crime 

area, guns , drugs, assaults, and criminal homicide.

 

3 A “BOLO” is a notification for police to “be on the lookout.” See N.T., 

5/20/15, at 5. 
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On August 7, at 11:30 p.m. Officer Kennedy and 

his colleagues were in Sandusky Court area looking 

for Mr. Threats. They noticed a group of men 

standing near a building. Amongst them was a 

person of tall stature who fit the description of Mr. 

Threats. The officers formulated a plan to approach 

that person, to place Mr. Threats, if in fact it was Mr. 

Threats under arrest at that juncture. The plan 

itself, the particulars were not contested and are of 

record.

During the course of the execution of the plan, 

Officer Kennedy, as well as at least two other 

officers, approached a group of men. They were 

identified [as police officers] by virtue of their 

badges being displayed prominently on their chests. 

They came up to the group of men. [Appellant] was 

amongst the group of men and also was the person 

who Officer Kennedy believed to be Mr. Threats by a 

matching description or matching stature. The group 

was illuminated by virtue of flashlights. At that point 

in time [Appellant] grabbed his waistband, he looked 

left and right and ran into an apartment inside of 

Sandusky Court. He was pursued by Officer 

Kennedy, still under the belief that this was Mr. 

Threats. As they went through the doorway, Officer 

Kennedy further identified himself as Pittsburgh 

Police, grabbed [Appellant] by the sweatshirt, the 

hood of his sweatshirt, and spun him around. Upon 

spinning him around, he noticed a weapon in his 

waistband, eventually turned out to be .357 Taurus. 

A struggle ensued and [Appellant] was eventually 

arrested.

. . . The [c]ourt finds in this instance that Officer 

Kennedy and his colleagues were properly identified, 

they were on the premises in the area legally, and 

they were about to execute a warrant. At that point 

in time, [Appellant] displayed not only the physical 

characteristics of the person to be apprehended, but 

also at that juncture exhibited conduct consistent 

with possession of a weapon, including reaching for 

his waistband, looking left and right and then flight.
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[T]he [c]ourt finds there was reasonable suspicion 

and eventually . . . probable cause, and the motion 

to suppress is denied.

N.T., 5/20/15, at 27-30. 

Appellant proceeded to a stipulated, non-jury trial, at which the trial 

court found him guilty of the aforementioned offenses. The court sentenced 

him to two years’ probation for the firearms offense and two to four days’ 

incarceration on resisting arrest. Sentencing Order, 5/20/15. 

Appellant filed a timely notice of appeal and court-ordered Pa.R.A.P. 

1925 statement. The trial court authored a responsive opinion. 

On appeal, Appellant raises the following issue for our consideration:

I. Did the police violate [Appellant’s] rights under the 

Fourth Amendment of the United States Constitution 

and Article 1 Section 8 of the Pennsylvania 

Constitution by seizing his person without reasonable 

suspicion, and, as a result, the trial court erred in 

not suppressing the fruits of that constitutional 

error?

Appellant’s Brief at 4. 

Appellant contends he was “seized” the moment police officers 

illuminated him with their flashlights and “demanded to know what was 

going on.” Id. at 15. He argues the “only point of suspicion, and the sole 

reason” the officers approached Appellant was that he, like Mr. Threats, is 

tall in stature and such a “glaringly vague description” is insufficient to 

justify the seizure. Id. at 18 (emphasis in original). Alternatively, Appellant 

argues he was seized when Detective Kennedy began chasing him, and that 
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Detective Kennedy’s observations prior to the chase did not give rise to a 

reasonable suspicion of criminal activity. Id. at 20-24. We disagree.

Our standard of review over a denial of a suppression motion is well 

settled.

An appellate court 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, the appellate court is bound by those 

facts and may reverse only if the legal conclusions 

drawn therefrom are in error. However, it is also 

well settled that an appellate court is not bound by 

the suppression court’s conclusions of law.

* * *

In appeals from suppression orders, our scope of 

review is limited to the evidence presented at the 

suppression hearing.

Commonwealth v. Caple, 121 A.3d 511, 516-17 (Pa. Super. 2015) 

(citations and footnote omitted). 

The Fourth Amendment of the Federal Constitution 

and Article I, Section 8 of the Pennsylvania 

Constitution protect individuals from unreasonable 

searches and seizures. To secure the right of 

citizens to be free from such [unreasonable] 

intrusions, courts in Pennsylvania require law 

enforcement officers to demonstrate ascending levels 

of suspicion to justify their interactions with citizens 

as those interactions become more intrusive. We 

have long recognized that there are three levels of 

intrusion involved in interactions between members 

of the public and the police. The first is a mere 

encounter, which requires no level of suspicion at all. 

The second level is an investigative detention, which 

must be supported by reasonable suspicion. Finally, 
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the third level is an arrest or custodial detention, 

which must be supported by probable cause.

Commonwealth v. Walls, 53 A.3d 889, 892-93 (Pa. Super 2012)

(quotation marks and citations omitted). 

“Th[e Pennsylvania Supreme] Court and the United States Supreme 

Court have repeatedly held a seizure does not occur where officers merely 

approach a person in public and question the individual or request to see 

identification.” Commonwealth v. Lyles, 97 A.3d 298, 303 (Pa. 2014). 

However, police pursuit of a citizen constitutes a seizure, which must be 

supported by either probable cause or reasonable suspicion. In re D.M., 

781 A.2d 1161, 1164 (Pa. 2001). Accordingly, we reject Appellant’s claim 

that he was seized when officers merely approached Appellant and 

“demanded to know what was going on.”4 See Appellant’s Brief at 15;

Lyles, 97 A.3d at 303. Nevertheless, Appellant was subject to a police 

seizure when he was pursued. See In re D.M., 781 A.2d at 1164. 

In In re D.M., the Pennsylvania Supreme Court addressed the import 

unprovoked flight has on a determination of reasonable suspicion.

In the seminal case of Terry v. Ohio, 392 U.S. 1, [] 

(1968), the United States Supreme Court indicated 

that police may stop and frisk a person where they 

 

4 Detective Kennedy testified when he approached Appellant, “I illuminated 

the group of males, including, [Appellant]. At that time I basically said what 

are you guys doing.” N.T. at 9. Appellant characterizes this encounter as 

an “interrogation” and asks this Court to infer “authoritative tones” by 

police. Appellant’s Brief at 16 n.1. Pursuant to the standard of review by 

which we are bound, we decline to do so. See Caple, 121 A.3d at 516-17.
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had a reasonable suspicion that criminal activity is 

afoot. In order to determine whether the police had 

a reasonable suspicion, the totality of the 

circumstances—the whole picture—must be 

considered. Based upon that whole picture the 

detaining officers must have a particularized and 

objective basis for suspecting the particular person 

stopped of criminal activity. 

* * *

In Wardlow,

[5]

the Chicago police sent a four-car 

caravan into a high crime area to investigate drug 

activity. One of the officers in the last vehicle 

observed the respondent on a corner with an opaque 

bag in his hand. The respondent looked at the 

officers and fled. The officers cornered the 

respondent and upon exiting their car, immediately 

conducted a brief pat-down search for weapons. 

During the pat-down search of the respondent, the 

officer discovered a gun. The issue before the court 

was whether sudden flight in a high crime area 

created a reasonable suspicion justifying a Terry

stop.

In explaining that such a seizure was justified, the 

Court reiterated the Terry standard and concluded 

that an officer may, consistent with the Fourth 

Amendment, conduct a brief, investigatory stop 

when the officer has a reasonable, articulable 

suspicion that criminal activity is afoot. The Court 

acknowledged that mere presence in a high crime 

area was insufficient to support a finding of 

reasonable suspicion. However, a court could 

consider the fact that the stop occurred in a high 

crime area in assessing the totality of the 

circumstances. Similarly, the Court held that 

unprovoked flight could be considered among the 

relevant contextual considerations, since nervous, 

evasive behavior is a pertinent factor in determining 

reasonable suspicion and [h]eadlong flight—

 

5

Illinois v. Wardlow, 528 U.S. 119 (2001). 
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wherever it occurs—is the consummate act of 

evasion. . . . Based upon respondent’s unprovoked 

flight in the high crime area, the Court concluded 

that the officer was justified in suspecting that 

criminal activity was afoot.

Following this decision, it is evident that 

unprovoked flight in a high crime area is sufficient to 

create a reasonable suspicion to justify a Terry stop 

under the Fourth Amendment.

Id. at 1163-64 (some citations and quotation marks omitted).

This Court clarified “nervous, evasive behavior and headlong flight all 

provoke suspicion of criminal behavior in the context of response to police 

presence.” Commonwealth v. Washington, 51 A.3d 895, 899 (Pa. 

Super. 2012) (emphasis added). 

Instantly, the uncontradicted testimony of Detective Kennedy 

established he was aware of a homicide warrant for a Zachary Threats, with 

whom he was personally familiar; he was informed Threats “would be” in 

Sandusky Court armed with an assault rifle; he knew Sandusky Court to be 

a high crime area;6 he observed Appellant in Sandusky Court and believed 

he may be Threats; he approached Appellant, with his badge displayed, 

illuminated his flashlight, and asked a question; and Appellant then grabbed 

his waistband, looked left and right, and fled. N.T. 5-9, 27-30.

 

6 Specifically, Detective Kennedy elaborated there were “numerous guns, 

numerous drugs, there have been numerous aggravated assaults, shootings, 

[and] homicides” in that area. N.T. at 9-10. 
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We conclude the record amply supports that Detective Kennedy had 

sufficient reasonable suspicion to pursue and seize Appellant. See Caple, 

121 A.3d at 516-17. Appellant was not seized upon Detective Kennedy’s 

approach and request for information. See Lyles, 97 A.3d at 303. At the 

time of Appellant’s seizure, Detective Kennedy observed Appellant (1) in a 

high-crime area, (2) exhibit behavior consistent with possession of a 

firearm, and (3) flee in response to police presence.7 See In re D.M., 781 

A.2d at 1163-64; Washington, 51 A.3d at 898.

Judgement of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/17/2016 

 

7 Appellant acknowledges the police badges were “clearly displayed around 

their necks” yet avers he “did not know he was running from police.” 

Compare Appellant’s Brief at 15, 16, 18, with id. at 22. The evidence, in 

the light most favorable to the Commonwealth, supports Appellant was 

aware he was fleeing in response to police presence. See Caple, 121 A.3d 

at 516-17; Washington, 51 A.3d at 899.