Com. v. Foglia

• Decision Date: 21 July 2009
• Docket Number: No. 2079 EDA 2007.,2079 EDA 2007.
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Stephen FOGLIA, Appellant.
• Court: Pennsylvania Superior Court

979 A.2d 357

2009 PA Super 138

COMMONWEALTH of Pennsylvania, Appellee v. Stephen FOGLIA, Appellant.

No. 2079 EDA 2007.

Superior Court of Pennsylvania.

Argued February 12, 2009.

Filed July 21, 2009.

Peter A. Levin, Philadelphia, for appellant.

Andrea Johnson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J., and STEVENS, ORIE MELVIN, LALLY-GREEN, KLEIN, BOWES, PANELLA, DONOHUE and SHOGAN, JJ.

OPINION BY BOWES, J.:

¶ 1 On appeal, Stephen Foglia challenges the constitutionality of a police interdiction that led to the discovery of his possession of an unlicensed firearm. We affirm.

¶ 2 On June 24, 2006, Appellant was arrested for carrying an unlicensed firearm and carrying a firearm on a public street in Philadelphia. Appellant subsequently filed a motion to suppress the firearm as resulting from an illegal police detention. A hearing was held on that motion on December 18, 2006, and Philadelphia Police Officer Cyprian Scott, a seventeen-year veteran of the police force assigned to the SWAT team for thirteen of those years, testified as follows. At approximately 2:40 a.m. on June 24, 2006, he and his partner, Officer Inocencio Amaro, were in uniform patrolling the 25th district, a "high crime" area due to the "high flow of narcotics and weapons." N.T. Trial (Waiver), 12/18/06, at 5, 6.

¶ 3 Officer Scott received a radio broadcast emanating from an anonymous source that there was a man "standing on the corner of `A' and Westmoreland dressed in dark clothing, black clothing, carrying a firearm." Id. at 6. In less than "a minute and a half," the two police officers arrived "on the corner" referenced in the broadcast. Id. at 7. At the noted location, Officer Scott observed "two males," Appellant, who was clothed entirely in black, and one other man, who was wearing a dark gray suit. Id. at 8.

¶ 4 In order to avoid detection, Officers Scott and Amaro had entered "A" Street with their lights extinguished. When Appellant and his companion saw the officers, they "began walking away" from the cruiser heading east on Westmoreland. Id. Officer Scott continued to watch Appellant, who "looked back several times" and "kept walking" in the opposite direction of the police. Id. at 9.

¶ 5 The two officers stopped their vehicle and exited it. At that point, Appellant "grabbed around his waist area" and "sat on some steps behind two females." Id. Officer Scott was particularly wary of the fact that Appellant touched his waistband because the call indicated that there was an armed man and "people usually [are] carrying weapons in their waistband." Id. at 9. Since he was investigating a possible weapons offense, Officer Scott was making "sure to pay particular attention" to the "hands" and "waistband." Id. at 9-10.

¶ 6 At that point, Officer Scott ordered Appellant to stand, informed him that he was investigating a "male with a gun that fit his description," and immediately patted down Appellant. Id. at 10. Officer Scott felt the handle of a gun in Appellant's waistband and retrieved the weapon. In response to questioning, Appellant admitted that he did not have a permit to carry the firearm, and he was arrested.

¶ 7 The trial court denied the motion to suppress and after a colloquy, Appellant agreed to immediately proceed to a nonjury trial. Officer Scott then testified that he recovered a loaded .40-caliber Glock pistol in Appellant's waistband. A stipulation was entered that the gun was tested and found to be operable. The Commonwealth then admitted into evidence a certificate of non-licensure indicating that Appellant did not have a license to carry a firearm. Appellant was adjudged guilty of carrying an unlicensed firearm, 18 Pa.C.S. § 6106, and carrying a firearm on public property in Philadelphia, 18 Pa.C.S. § 6108. The court ordered a presentence report.

¶ 8 Prior to sentencing, Appellant filed a petition for extraordinary relief charging suppression counsel with ineffectiveness for failing to conduct adequate cross-examination of Officer Scott. On May 31, 2007, the court held a hearing on that petition. Appellant, who was represented by new counsel, presented suppression counsel as a witness. Suppression counsel testified that he believed that he was ineffective for failing to sufficiently cross-examine Officer Scott and that adequate questioning of Officer Scott would have revealed that he did not see Appellant grab his waistband until after the stop had occurred. N.T. Motion and Sentencing, 5/31/07, at 6. Suppression counsel relied upon the contents of the police report detailing Appellant's arrest.

¶ 9 The trial court denied relief on the basis that trial counsel had a reasonable strategy for pursuing the suppression issue in the manner that he did and also on the ground that the error or omission would not have resulted in a different outcome at the suppression hearing. Id. at 35. The case immediately proceeded to sentencing, and the court imposed a guideline sentence of eleven and one-half to twenty-three months imprisonment with a consecutive two-year probationary term and noted Appellant's eligibility for work release. This timely appeal followed.¹

¶ 10 We set forth our standard of review:

When reviewing the propriety of a suppression order, an appellate court is required to determine whether the record supports the suppression court's factual findings and whether the inferences and legal conclusions drawn by the suppression court from those findings are appropriate. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980). Where the record supports the factual findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 842 (2003). However, where the appeal of the determination of the suppression court turns on allegations of legal error, "the suppression court's conclusions of law are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts." Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879, 881 (1998).

Commonwealth v. Kemp, 961 A.2d 1247, 1252-1253 (Pa.Super.2008) (en banc) (quoting Commonwealth v. Mistler, 590 Pa. 390, 912 A.2d 1265, 1269-70 (2006)).

¶ 11 In this case, Appellant assails the suppression court's conclusion that Officer Scott had reasonable suspicion that Appellant was engaging in the criminal activity of carrying a firearm and that Officer Scott was therefore justified in conducting a patdown search for weapons.

¶ 12 It is settled that:

A police officer may detain an individual in order to conduct an investigation if that officer reasonably suspects that the individual is engaging in criminal conduct. Commonwealth v. Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999). "This standard, less stringent than probable cause, is commonly known as reasonable suspicion." Id. In order to determine whether the police officer had reasonable suspicion, the totality of the circumstances must be considered. In re D.M., 566 Pa. 445, 781 A.2d 1161, 1163 (2001). In making this determination, we must give "due weight to the specific reasonable inferences the police officer is entitled to draw from the facts in light of his experience." Cook, 735 A.2d at 676 (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, "even a combination of innocent facts, when taken together, may warrant further investigation by the police officer." Cook, 735 A.2d at 676.

Kemp, supra at 1255 (quoting Commonwealth v. Rogers, 578 Pa. 127, 849 A.2d 1185, 1189 (2004)).

¶ 13 Police cannot initiate a detention based solely upon an anonymous tip that a person matching the defendant's description in a specified location is carrying a gun. In Interest of D.M., 566 Pa. 445, 781 A.2d 1161 (2001). However, if the person described by the tipster engages in other suspicious behavior, such as flight, reasonable suspicion justifying an investigatory detention is present. Id. (applying Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)).² Evasive behavior also is relevant in the reasonable-suspicion mix. Wardlow, supra; accord Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903, 908 (2000) ("nervous, evasive behavior such as flight is a pertinent factor in determining reasonable suspicion"). Moreover, whether the defendant was located in a high crime area similarly supports the existence of reasonable suspicion. Wardlow, supra. Finally, 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 O.J., 958 A.2d 561 (Pa.Super.2008) (en banc).

¶ 14 In this case, a seventeen-year veteran of the police force and member of the SWAT team was patrolling in an area that had a high volume of drugs and weapons. He received an anonymous tip that a man dressed in black possessed a weapon at a given location. Upon immediately proceeding to that site, the police officer observed two men, one of whom was attired entirely in black. That man began to engage in evasive behavior by continually looking back at police and walking away from them. He touched his waist area and sat down on a stoop behind some females. The police officer was aware, based upon his experience with armed suspects, that weapons are often concealed in a person's waistband. Thus, Officer Scott had more than ample facts at his disposal to believe that Appellant was armed with a gun.

¶ 15 Since the criminal activity in question involved possession of a firearm and since Appellant's act of patting his waistband bolstered Officer Scott's...