Commonwealth v. Holben
| Decision Date | 18 October 2022 |
| Docket Number | 920 WDA 2021 |
| Citation | 287 A.3d 873 (Table) |
| Parties | COMMONWEALTH of Pennsylvania v. Tyler Edward HOLBEN, Appellant |
| Court | Pennsylvania Superior Court |
Tyler Edward Holben appeals from his July 8, 2021 judgment of sentence of one year probation, which was imposed following his conviction for firearms not to be carried without a license. We affirm.
The trial court summarized the facts as follows:
On or about June 10, 2020, [at approximately 1:00 a.m.] Patrol Sergeant Brian Turack received a dispatch 911 call regarding individuals throwing bottles in a local McDonald's [Restaurant] parking lot [in a known high-crime area]. The McDonald's is in very close proximity to the municipal building [where] Sergeant Turack [received the aforementioned call]. Upon arrival at the McDonald's parking lot, Sergeant Turack observed Appellant walking past the drive-thru of the McDonald's towards the roadway. Appellant was wearing a hooded sweatshirt with his hood up in the late hours of the night on a humid and hot evening. Sergeant Turack subsequently drove his vehicle towards Appellant eventually stopping his vehicle in front of him. Sergeant Turack approached Appellant and asked if he could speak with him. Appellant stated that he was just going home. Sergeant Turack then requested Appellant remove his hands from his pockets while Appellant was speaking with him. Appellant complied at first but repeatedly put his hands back in his sweatshirt. Despite Sergeant Turack's repeated requests for Appellant to keep his hands out of his pockets while speaking with him, Appellant continued to put his hands in his pocket. Based upon Appellant's non-compliance to remove his hands from his pocket, Sergeant Turack performed a Terry[1 ] frisk for office safety. Immediately upon touching Appellant's waist area and pocket of his sweatshirt, Sergeant Turack felt what he knew to be a firearm.
Trial Court Opinion, 6/15/21, at 1-2 (cleaned up). Further investigation revealed that the gun was reported stolen in 2017.
Sergeant Turack charged Appellant with receiving stolen property and firearms not to be carried without a license. Appellant filed a motion to suppress the firearm on the grounds that Sergeant Turack lacked reasonable suspicion for either the investigative stop or the Terry frisk. The court denied the motion to suppress. Following a stipulated non-jury trial, the trial court convicted Appellant of carrying firearms without a license, acquitted him of receiving stolen property, and immediately imposed one year of probation.
Appellant filed a timely notice of appeal on August 6, 2021, and complied with Pa.R.A.P. 1925(b). He presents three issues for our review:
Appellant's brief at 5 (cleaned up).
As Appellant's arguments are inextricably intertwined and collectively relate to whether Sergeant Turack had "reasonable suspicion" to stop Appellant on the evening in question, this Court will address the arguments together. Our standard of review of an order denying suppression is well established:
In reviewing appeals from an order denying suppression, our standard of review is limited to determining whether the trial court's factual findings are supported by the record and whether its legal conclusions drawn from those facts are correct. When reviewing the rulings of a trial court, the appellate court considers only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. When the record supports the findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Our scope of review is limited to the evidence presented at the suppression hearing.
Commonwealth v. Bowens , 265 A.3d 730, 747 (Pa. Super. 2021) (cleaned up).
Preliminarily, we note that there are three different types of interactions between individuals and law enforcement. The first type of interaction is a "mere encounter," which does not require any suspicion of criminal activity by the officer. Commonwealth v. Anderson , 276 A.3d 282, 293-94 (Pa. Super. 2022) (en banc ); see also Commonwealth v. Adams , 205 A.3d 1195, 1199-1200 (Pa. 2019). An individual is not required to stop or respond during a mere encounter, and as such, this interaction does not constitute a seizure by law enforcement. Anderson , supra at 293-94. The next level of interaction is an "investigative detention," which is a temporary period of custody, which requires that the officer have reasonable suspicion of criminal activity by the briefly seized individual. Id . The final type of encounter is a "custodial detention," which is the functional equivalent of arrest and requires an officer to have probable cause. Id. Both investigative and custodial detentions constitute seizures. In order to determine whether a seizure has occurred, courts apply the "free to leave test," which "requires the court to determine whether, taking into account all of the circumstances surrounding the encounter, the police would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Id .
It is well-established that a police officer merely approaching an individual and asking questions does not, by itself, constitute a seizure. See Commonwealth v. K. Thomas , 179 A.3d 77, 82 (Pa. Super. 2018) ().
Furthermore, if "an individual on his own accord, puts his hands in his pocket, thereby creating a potential danger to the safety of a police officer, the officer may justifiably reach for his side arm and order the individual to stop and take his hand out of his pocket." Commonwealth v. Coleman , 19 A.3d 1111, 1117 (Pa. Super. 2011). While this type of reaction by an officer does not automatically transform a mere encounter into an investigative detention, that determination is a fact-specific inquiry and partially dependent on the timing of the request. Id .; see also Commonwealth v. Hemingway , 192 A.3d 126, 130 (Pa. Super. 2018).
In the matter sub judice , the suppression court determined that the interaction between Appellant and Sergeant Turack constituted a mere encounter and remained a mere encounter even after Appellant was asked to remove his hands from the center sweatshirt pocket. The suppression court cited K. Thomas , supra at 82-83, for the proposition that a police officer is justified in insisting that an individual not conceal their hands during an encounter with police, and that such a request does not transform a mere encounter into an investigative detention. See Trial Court Opinion, 6/15/21, at 4. Specifically, the suppression court determined that, because Sergeant Turack did not turn on his overhead lights, command Appellant to stop, or threaten Appellant to comply, Appellant was free to leave. Id .
Appellant first argues that the suppression court erred when it held that the interaction between Sergeant Turack and Appellant was a mere encounter. Appellant contends that based upon the totality of the circumstances, once Sergeant Turack exited his vehicle and ordered Appellant to "come over here," after twice rebuffing Sergeant Turack, the encounter became an investigatory detention. See Appellant's brief at 24-36. We agree.
To determine whether a seizure by law enforcement occurred during an interaction between law enforcement and an individual, "courts conduct an objective examination of the totality of the surrounding circumstances." Commonwealth v. Lyles , 97 A.3d 298, 302 (Pa. 2014). "The totality of the circumstances test is ultimately centered on whether the suspect has in some ways been restrained by physical force or show of coercive authority." Commonwealth v. Luczki , 212 A.3d 530, 543 (Pa. Super. 2019) (quoting Lyles , supra at 302-03). No single factor is determinative as to whether a seizure occurred, rather it is an objective test as to "whether a reasonable person would have felt free to leave or otherwise terminate...
To continue reading
Request your trial