J-A19033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MICHAEL SCHNEIDER, :

: Appellant : No. 974 WDA 2014 Appeal from the Judgment of Sentence entered on Jun e 11, 2014 in the Court of Common Pleas of Allegheny County, Criminal Division, No. CP-02-CR-0000824-2013 BEFORE: BENDER, P.J.E., JENKINS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED JULY 29, 2015 Michael Schneider (“Schneider”) appeals from the ju dgment of sentence imposed following his conviction of posses sion with intent to deliver a controlled substance (“PWID”) and possession of a controlled substance. 1 After thorough review of the relevant law, we affir m. The trial court set forth the facts underlying this appeal as follows: On the evening of October 8, 2012, Detective Edward Fallert [“Detective Fallert”], a twenty[-]year vete ran of the Pittsburgh Police Department[,] and a narcotics det ective for the last thirteen [] years, was on undercover patrol in the Basin Street area of the City of Pittsburgh[,] with six [ ] other plainclothed detectives. ([N.T., 9/12/13 (suppression h earing), at] 4, 7-8). The Basin Street area is considered to be a “high crime area” because of the large volume of drug sales tha t take place there. ([ Id. at] 9). The area is also the subject of continuin g complaints by the public to both the Mayor’s compla int line and the police department. ([ Id. ]). Additionally, one of the biggest drug arrests of Detective Fallert’s career took pla ce in that

1 See 35 P.S. § 780-113(a)(30) and (16).J-A19033-15

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location, which involved him seizing over ten [] ki lograms of cocaine and $100,000 [in cash]. ([ Id. ]). On the evening in question, the group of seven [] p lainclothed detectives were driving down Basin Street i n two unmarked police vehicles. ([ Id. at] 8). Detective Fallert was driving the lead vehicle[,] and had three [] other detectives in the car with him. ([ Id. ]). At approximately 6:15 p.m., Detective Fallert noticed [Schneider] walking alone [,] on the right side of the sidewalk, towards the police vehi cles. ([ Id. at] 9-10). The vehicles were on a “small, narrow” stre et, and the spacing was such that “two cars can barely pass if they were going side by side.” ([ Id. at] 10). As [Schneider] approached his vehicle, Detective Fallert “noticed that his fr ont hooded sweatshirt pocket was weighted down in the center a nd appeared to be like flopping as he walked.” ([ Id. at] 11). At first, Detective Fallert did not “think anything” o f it, but he decided to “pay closer attention to him.” ([ Id. ]). Detective Fallert drove closer to [Schneider], and the two [] men made eye contact. ([ Id. at] 12). Upon making eye contact, Detective Fallert saw [Schneider] “hurried ly put his hand into his pocket [2] and push[] his pocket close to his person, to his stomach, waistband.” ([ Id. at] 11[]). Detective Fallert was [] within five [] to ten [] feet of [Schneider] when he observed him press [his hoodie pocket] against his torso. ([ Id. at] 11-12). Detective Fallert slowly drove past [S chneider] and instructed the officers behind him to keep an eye o n [Schneider] because he believed that [Schneider] might be carry ing a weapon. ([ Id. ]). As he drove past [Schneider], Detective Fallert noticed that [Schneider] was looking around and looking back over his shoulder in the direction of the unma rked police vehicles. ([ Id. at] 13). Although the vehicles were unmarked, they were “equipped with light bars, which are visi ble from the exterior through the front windshield and through t he side windows.” ([ Id. at] 8). The windows of the vehicles were not tinted, which made it possible for an individual to view the interior light bar from the outside. ([ Id. at] 12). Detective Fallert saw [Schneider] make a left turn out of his view, and moments later[,] he was informed by t he detectives in the vehicle behind him that [Schneide r] “had taken

2 Detective Fallert was referring to the front pocke t of Schneider’s hooded sweatshirt (or “hoodie”). See N.T., 9/12/13, at 11.J-A19033-15

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off running.” ([ Id. ]). Upon seeing [Schneider] take flight, the officers gave chase and eventually apprehended him. ([ Id. at] 15). Given their suspicion that [Schneider] was pot entially armed and dangerous, the officers searched him for weapons and recovered, instead, approximately [1.3 ounces] of crack cocaine. ([ Id. ]). [3] Trial Court Opinion, 12/3/14, at 3-5 (footnotes add ed, footnote in original omitted). Following Schneider’s arrest, the Commonwealth char ged him with PWID and possession of a controlled substance. Sch neider subsequently filed a Motion to suppress the cocaine discarded du ring the police chase, asserting that such evidence was inadmissible becau se he had abandoned it during an unlawful seizure that was unsupported by reasonable suspicion. Upon the conclusion of the suppression hearing on S eptember 12, 2013, the suppression court denied Schneider’s Motion, determ ining that the police possessed articulable reasonable suspicion that Sch neider was engaged in unlawful activity, sufficient to support the invest igative detention. Schneider

filed a Motion for reconsideration of the trial cou rt’s ruling, which the trial

court denied. The matter proceeded to a non-jury trial, at the cl ose of which the trial court found Schneider guilty of PWID and possession of a controlled

3 While Schneider was fleeing, one of the officers g iving chase observed Schneider throw a clear bag containing a white, pow dery substance onto the ground. N.T., 3/21/14 (trial), at 10. After appre hending Schneider, the police recovered two baggies of cocaine on the grou nd nearby Schneider. Id. at 10-11. The police also recovered two cell phon es and $1,840 in U.S. currency from Schneider’s pants pockets. Id. at 10. No weapon was found on Schneider’s person or in the general vicinity. Id. at 11.J-A19033-15

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substance. On June 11, 2014, the trial court sente nced Schneider to serve nine to eighteen months in the Allegheny County Jai l, and five years of probation. Schneider filed a timely Notice of Appe al. In response, the trial court ordered him to file a Pa.R.A.P. 1925(b) conci se statement of errors complained of on appeal. Schneider timely filed a Concise Statement. On appeal, Schneider presents the following issue for our review: “Was the evidence sufficient to support the conclus ion that the police had a reasonable suspicion of criminal activity (gun poss ession), so as to justify an investigatory stop of [Schneider]?” Brief for Appe llant at 4. In reviewing a challenge to a trial court’s denial of a motion to suppress, “[o]ur standard of review ... is limited to determining whether the factual findings are supported by the record and wh ether the legal

conclusions drawn from those facts are correct.” Commonwealth v. Kearney , 92 A.3d 51, 65 (Pa. Super. 2014). “In making thi s determination, we may consider only the evidence of the prosecutio n’s witnesses and so much of the defense as, fairly read in the context of the record as a whole,

remains uncontradicted.” Commonwealth v. Page , 59 A.3d 1118, 1131 (Pa. Super. 2013) (citation omitted).

Article I, § 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution afford protections against unreasonable searches and seizu res. Among the protections is the requirement that an officer have reasonable suspicion before an investigatory stop. Our [Pennsylvania S]upreme [C]ourt has interpreted [the] Article I, § 8 protection more broadly than the Fou rth Amendment[,] and has found that a seizure occurs wh en anJ-A19033-15

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officer gives chase. Under Pennsylvania law, any i tems abandoned by an individual under pursuit are consid ered fruits of a seizure. Those items may only be received in evi dence when an officer, before giving chase, has at least the r easonable suspicion necessary for an investigatory stop. ... In deciding whether reasonable suspicion exists for an investigatory stop, our analysis is the same under both Article I, § 8 and the Fourth Amendment. The fundamental inqu iry is an objective one, namely, whether the facts available to the officer at the moment of the intrusion warrant a man of rea sonable caution in the belief that the action taken was app ropriate. This assessment, like that applicable to the determinati on of probable cause, requires an evaluation of the totality of th e circumstances, with a lesser showing needed to demo nstrate reasonable suspicion in terms of both quantity or c ontent and reliability. Commonwealth v. Taggart , 997 A.2d 1189, 1193 (Pa. Super. 2010) (citation and brackets omitted). Schneider argues that the police had no lawful auth ority to seize him 4

because the facts failed to establish the reasonabl e suspicion that criminal activity was afoot necessary to justify the investi gative detention. Brief for Appellant at 9 (citing Terry v. Ohio , 392 U.S. 1 (1968)). According to Schneider, the police pursued and seized him based solely upon his flight from the area. Brief for Appellant at 10. Schneid er does not dispute that the area in question was a known high crime area. However, he correctly observes that presence in a high crime area, by its elf, is not enough to give rise to reasonable suspicion. Id. at 12 (citing Commonwealth v. Key , 789 A.2d 282, 289 (Pa. Super. 2001) (stating that “[t]he fact that [a ]ppellant

4 It is undisputed that the police seized Schneider when they chased him upon his fleeing the area. See Taggart, supra

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was merely present in a ‘high crime area’ in no way establishes his involvement in criminal activity.”)); see also In re D.M. II , 781 A.2d 1161, 1163 (Pa. 2001) (stating that “mere presence in a h igh crime area [is] insufficient to support a finding of reasonable sus picion.”). Additionally, Schneider argues that “[t]he case law in Pennsylvan ia has been consistent in holding that flight alone is insufficient to give a police officer reasonable suspicion of criminal activity.” Brief for Appella nt at 10-11 (citing Taggart , 997 A.2d at 1193 (stating that “[f]light by the sus pect can be considered suspicious activity, but flight alone does not give rise to reasonable suspicion.”)). Finally, Schneider challenges Detec tive Fallert’s testimony that he reasonably suspected that Schneider was car rying a firearm. Brief for Appellant at 14 (arguing that “[t]here is no di scussion ... as to how ... an object weighing only 1.3 ounces[, i.e. , the weight of the cocaine recovered,] can be transformed into a reasonable suspicion that [Schneider was] illegally carrying a firearm.”).

In Illinois v. Wardlow , 528 U.S. 119 (2000), which is directly onpoint to the instant case, the United States Suprem e Court held that a police officer is justified in reasonably suspecting that an individual is involved in criminal activity when that individual (1) is prese nt in a high crime area; and (2) engages in unprovoked, headlong flight after no ticing the police. Id. atJ-A19033-15

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124-25. 5 The Supreme Court ruled that the existence, in co mbination, of

these two factors alone is sufficient to establish reasonable suspicion. Id. Our Pennsylvania Supreme Court subsequently recogni zed the significance of

the Wardlow

holding, stating that “it is evident that unprovok ed [6] flight in a high crime area is sufficient to create a reasona ble suspicion to justify a Terry stop under the Fourth Amendment.” D.M. II , 781 A.2d at 1164 (footnote added); see also id. at 1165 n.2 (applying Wardlow and declining to adopt greater state constitutional rig hts). Later, this Court clarified that, in order for the holdings of Wardlow and D.M. II to apply, it must be established that (1) “the incident took pla ce in a high crime area[; and (2)] the suspect fled upon being confronted by the police or r ecognizing police presence in the immediate area .” Commonwealth v. Washington , 51 A.3d 895, 898 (Pa. Super. 2012) (emphasis added); see also id. (stating

5 In Wardlow , a four-car police caravan was investigating drug activity in an area of Chicago known for heavy narcotics traffi cking. Wardlow , 528 U.S. at 121. One of the officers observed the defe ndant holding an opaque bag. Id. The officers did not observe any specific indicat ions that the defendant was in possession of contraband. See id. When the defendant saw the police, he immediately fled. Id. at 122. The police apprehended him and, during a pat-down search for weapons, reco vered a gun. Id. The Supreme Court affirmed the denial of the defendant’ s motion to suppress, reversing the decisions to the contrary by the Illi nois courts of appeal. Id. at 122-24.

6 Neither the Court in D.M. II nor the Wardlow

Court made a distinction between “unprovoked” and “provoked” flight. It app ears that their inclusion of the term unprovoked is merely superfluous. Inde ed, it is clear that it is flight provoked

by a defendant’s mere sighting of police that is t he relevant factor, as it is a suspect’s flight and attempted a voidance of police that increases the degree of suspicion of the suspect’s involvement in criminal activity.J-A19033-15

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that “the suspect must know he is running from law enforcement before a reasonable suspicion can attach.”). Here, it is undisputed that the incident took place in a high crime area, and Schneider fled upon the arrival of the undercov er officers at the scene. Accordingly, in determining whether these two facto rs, in conjunction, established reasonable suspicion under Wardlow and its progeny, all that

must be established is that Schneider knew that he was running from police, pursuant to Washington, supra

. Schneider contends that “the notion that [he] was r unning from the police is somewhat based on conjecture[,]” pointing out that (1) both of the police vehicles were unmarked; (2) all of the offic ers were in plainclothes; and (3) none of the officers identified themselves as police before Schneider began to run. Brief for Appellant at 14. Examining the totality of the facts in the light mo st favorable to the Commonwealth, as our standard of review requires, w e conclude that the

circumstantial evidence establishes that Schneider knew that he was running from the police. Specifically, (1) Schneider made eye contact with Detective Fallert; (2) immediately thereafter, Schneider “hur riedly put his hand into his pocket and pushed his pocket close to his person[,]” which aroused Detective Fallert’s suspicion; (3) after the police drove past Schneider, Schneider repeatedly looked back over his shoulder in the direction of the unmarked police vehicles; (4) Schneider then “immed iately changed direction” and began running; and (5) though the po lice vehicles wereJ-A19033-15

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unmarked, they were equipped with police light bars , and Schneider was in a position to see the light bars and identify the veh icles as police vehicles. Additionally, we determine that the cases Schneider relies upon, Taggart, supra ; Key, supra ; and In the Interest of M.D. , 781 A.2d 192 (Pa. Super. 2001), are factually distinguishable an d unavailing. See Trial Court Opinion, 12/3/14, at 8-12 (distinguishing Taggart , Key , and M.D. ). None of those cases involved flight from a high cri me area, as here. Finally, Schneider misses the point in attempting t o minimize the suspicious nature of his behavior. See Commonwealth v. Davis , 102 A.3d 996, 1000 (Pa. Super. 2014) (stating that “reasonab le suspicion does not require that the activity in question must be unque stionably criminal before an officer may investigate further.”) (citation omi tted). Indeed, Schneider’s flight from police in a high crime area, absent mor e, was sufficient to establish reasonable suspicion. See Wardlow, supra (holding that the defendant’s flight from police in a high crime area established reasonable suspicion, where the police did not articulate any specific indications that the defendant possessed contraband (aside from his mere possession of an opaque bag)). Moreover, Schneider’s furtive moveme nts to conceal an object in his front hoodie pocket, when seen by pol ice, enhanced the reasonable suspicion present. See Commonwealth v. Cottman , 764 A.2d 595, 599-600 (Pa. Super. 2000) (holding that the de fendant’s presence in a high crime area, his furtive movement to conceal an object when seen by police, and his flight established reasonable suspi cion). Although DetectiveJ-A19033-15

- 10 - Fallert did not see the item that Schneider was all egedly concealing in his hoodie pocket, based on Detective Fallert’s special ized training and experience, Schneider’s suspicious behaviors sugges ted that he possessed illegal contraband. See id. at 600; see also Trial Court Opinion, 12/3/14, at 12 (stating that “Detective Fallert, a twenty[-] year veteran of the police

force who had received extensive narcotics and fire arm training, observed that [Schneider] exhibited behaviors that were cons istent with an individual who was attempting to conceal a firearm.”). Accordingly, based upon the foregoing, we reject Sc hneider’s claim that the suppression court erred by denying his Mot ion to suppress. The totality of the circumstances demonstrate that the police officers, in fact, had reasonable suspicion to believe that Schneider was engaged in criminal activity when they began their pursuit of him follo wing his flight in a high

crime area. See Wardlow, supra

. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 7/29/2015