Com. v. Gibson, B.

J-S41001-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BILLY GIBSON,

Appellant No. 2402 EDA 2015

Appeal from the Judgment of Sentence Entered July 17, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0008036-2013

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED July 1, 2016

Appellant, Billy Gibson, appeals from the judgment of sentence of an

aggregate term of 56 to 120 months’ incarceration, followed by 60 months’

probation, imposed after he was convicted, following a non-jury trial, of

possession of a controlled substance, possession with the intent to deliver a

controlled substance (PWID), and various violations of the Uniform Firearms

Act, 18 Pa.C.S. §§ 6101-6127. After careful review, we affirm.

Appellant was arrested and charged with the above-stated offenses

after officers, acting on a tip from a known, confidential informant (CI),

conducted a Terry1 pat-down of Appellant and discovered a gun and drugs

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1

Terry v. Ohio, 392 U.S. 1, 27 (1968) (granting authority to police officers

to pat-down or frisk an individual for weapons where officers have a

(Footnote Continued Next Page)

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on his person. A subsequent search of Appellant’s vehicle revealed more

narcotics.

Prior to Appellant’s non-jury trial, he filed omnibus pre-trial motions,

including a motion to suppress evidence and a motion to compel the

Commonwealth to disclose the identity of the CI. The court conducted a

hearing on March 11, 2015. The court summarized the evidence presented

at that proceeding as follows:

At the [m]otion [hearing], the Commonwealth first called

Detective Falcone who testified that, on April 14, 2013, a little

after midnight, he received a phone call from a confidential

informant (CI) from whom he had received plenty of credible

information resulting in arrests and convictions over the 2½

years that the Detective had known him.2 The informant told

the Detective that there was a person inside of Spiro’s Lounge

wearing a “black hat, green Polo shirt and blue jeans who had

recently pulled up in a white Crown Victoria bearing PA tag HXY-

1059,” and that person was armed with a handgun.3 Instantly,

Detective Falcone called both Sergeant Zerweck and Police

Officer McAllister and relayed this information to them.4

____________________

2

At the time of defendant's arrest, Detective Falcone was a

member of the Philadelphia Police Department for 5 years

in the 16th District.

3

The Detective testified that the location of Spiro’s Bar,

39th and Girard Avenue, is “very violent, [and has a lot of]

drug activity and plenty of shootings and robberies.” He

also testified that a confidential informant “could be

harmed, killed, [and] their family could be tormented” if

their identity was revealed (N.T. 3/11/15, p. 3-12).

_______________________

(Footnote Continued)

reasonable belief that criminal activity is afoot and the suspect may be

armed and dangerous).

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4

During defense cross-examination, the Detective agreed

that the confidential informant was not mentioned in the

affidavit of probable cause or in Police Officer McAllister’s

statement. He also testified that he did not remember the

specific cases in which the confidential informant gave

information that led to arrests.

____________________

Police Officer Kozlowski testified that he was working with

Officer McAllister that night. Officer McAllister received a phone

call from Detective Falcone and at the same time flash

information came over the police radio for Spiro’s Bar, along with

identifying information for defendant and his car, and stating

that he was armed with a gun. The officers arrived at the bar 4

to 5 minutes after the information was received. Upon arrival,

they confirmed that the white Ford Crown Victoria with PA tag

HXY-1059, was there in the bar parking lot. The two officers and

Sergeant Zerweck went inside the bar and immediately saw

[Appellant] 3 to 5 feet from the front door sitting at the bar and

exactly meeting the flash description.5 When the officers walked

in and approached [Appellant], [Appellant’s] back was not fully

towards the officers (police came in from the left side of

[Appellant] as [Appellant] was facing forward; [Appellant’s] left

side of his body was a little further back as opposed to the right

side of his body). Officer Kozlowski testified that he could see

[Appellant’s] arm reach towards his front waistband area with

his right hand.6 At the time that Officer Kozlowski observed

[Appellant] reach for his waistband, the officer felt “fearful for

my life that he might have a weapon.” His partner, Officer

McAllister then conducted a pat-down of [Appellant] and

recovered a .32 caliber gun (N.T. 3/11/15, p. 14-25).

____________________

5

Commonwealth exhibit C -1 showed the bright green polo

shirt worn by defendant.

6

Officer Kozlowski is a 9 year veteran officer, spending 6

of those years in the 16th District. He also testified that the

16th District is a “very high crime related, violent crime []”

area. He had made approximately 20 gun arrests as of

2013, and recovered the guns from the front of

defendants’ waistbands or around the waistband area.

____________________

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Police Officer McAllister testified to the same facts as

above.7 He also testified that [Appellant] turned around when

uniformed police walked into the bar, attempted to stand up,

and then went to reach for his waistband. He and Sergeant

Zerweck grabbed [Appellant’s] arms. He did a safety frisk, and in

the front of [Appellant’s] belt buckle, he could feel a bulge, like a

handle from a firearm. He then pulled out the firearm. The

officer also recovered narcotics (28 blue heat[-]sealed packets of

crack-cocaine and a baggy of 5 pills of Oxycodone) and United

States currency from [Appellant] (NJ. 3/11/15, p. 25-37).

____________________

7

Officer McAllister testified that he was a police officer in

the 16th district for 7 years. He also testified that the area

is a “high crime, violent area” and he has made around 10

gun arrests during his 7 years with the department where

many times guns were thrown from the waistband area of

defendants.

____________________

Detective Dilauro testified that he applied for and received

a search warrant for [Appellant’s] car based on the information

received from [the] above officers. The vehicle was run through

the Bureau of Motor Vehicles and came back as owned by

[Appellant]. Also, prior to the warrant being approved, a K9 dog

indicated that there were narcotics in [Appellant’s] vehicle (N.T.

3/11/15, p. 37-44).

Trial Court Opinion (TCO), 9/11/15, at 2-5 (one footnote omitted).

After the hearing on Appellant’s pretrial motions, the court denied his

request for the Commonwealth to reveal the identity of the CI, and it also

denied his motion to suppress the evidence recovered from his person and

vehicle. Appellant’s case proceeded to a non-jury trial, at the close of which

Appellant was convicted of PWID, 35 P.S. § 780-113(a)(30); possession of a

controlled substance, 35 P.S. § 780-113(a)(16); possession of a firearm by

a person prohibited, 18 Pa.C.S. § 6105(a)(1); carrying a firearm without a

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license, 18 Pa.C.S. § 6106(a)(1); and carrying a firearm in public in

Philadelphia, 18 Pa.C.S. § 6108. Appellant was sentenced on July 17, 2015,

to an aggregate term of 56 to 120 months’ incarceration, followed by 60

months’ probation.

Appellant filed a timely notice of appeal, and also timely complied with

the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Herein, he presents two issues for our review:

1. Did the [l]ower [c]ourt err in denying the motion to reveal the

information on the identity of the [CI]?

2. Did the [l]ower [c]ourt err in denying the motion to suppress?

Appellant’s Brief at 4.

Appellant first challenges the court’s denial of his motion to compel the

Commonwealth to reveal the identity of the CI in this case.

“Our standard of review of claims that a trial court erred in its

disposition of a request for disclosure of an informant's identity

is confined to abuse of discretion.” Commonwealth v.

Washington, 63 A.3d 797, 801 (Pa. Super. 2013).

Under Pennsylvania Rule of Criminal Procedure 573, a trial

court has the discretion to require the Commonwealth to

reveal the names and addresses of all eyewitnesses,

including confidential informants, where a defendant

makes a showing of material need and reasonableness:

(a) In all court cases, except as otherwise provided

in Rule 230 (Disclosure of Testimony Before

Investigating Grand Jury), if the defendant files a

motion for pretrial discovery, the court may order

the Commonwealth to allow the defendant's attorney

to inspect and copy or photograph any of the

following requested items, upon a showing that they

are material to the preparation of the defense, and

that the request is reasonable:

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(i) the names and addresses of

eyewitnesses....

Pa.R.Crim.P. 573(B)(2)(a)(i).

The Commonwealth enjoys a qualified privilege to withhold

the identity of a confidential source. Commonwealth v.

Bing, [551 Pa. 659, 713 A.2d 56 (1998)];

Commonwealth v. Roebuck, 545 Pa. 471, 681 A.2d

1279, 1283 n.6 (1996). In order to overcome this qualified

privilege and obtain disclosure of a confidential informant's

identity, a defendant must first establish, pursuant to Rule

573(B)(2)(a)(i), that the information sought is material to

the preparation of the defense and that the request is

reasonable. Roebuck, supra at 1283. Only after the

defendant shows that the identity of the confidential

informant is material to the defense is the trial court

required to exercise its discretion to determine whether

the information should be revealed by balancing relevant

factors, which are initially weighted toward the

Commonwealth. Bing, supra at 58; Commonwealth v.

Herron, 475 Pa. 461, 380 A.2d 1228 (1977).

In striking the proper balance, the court must consider the

following principles:

A further limitation on the applicability of the

privilege arises from the fundamental requirements

of fairness. Where the disclosure of an informer's

identity, or of the contents of his communication, is

relevant and helpful to the defense of an accused, or

is essential to a fair determination of a cause, the

privilege must give way. In these situations[,] the

trial court may require disclosure and, if the

Government withholds the information, dismiss the

action.

[N]o fixed rule with respect to disclosure is

justifiable. The problem is one that calls for

balancing the public interest in protecting the flow of

information against the individual's right to prepare

his defense. Whether a proper balance renders

nondisclosure erroneous must depend on the

particular circumstances of each case, taking into

consideration the crime charged, the possible

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defenses, the possible significance of the informer's

testimony, and other relevant factors.

Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284, 287

(1967) (quoting Roviaro v. United States, 353 U.S. 53, 60–62,

77 S.Ct. 623, 1 L.Ed.2d 639 (1957)).

Commonwealth v. Watson, 69 A.3d 605, 607-08 (Pa. Super. 2013)

(quoting Commonwealth v. Marsh, 997 A.2d 318, 321–322 (Pa. 2010)).

In challenging the trial court’s denial of his request to reveal the

identity of the CI, Appellant essentially argues that Detective Falcone’s

testimony regarding the CI provided insufficient information to demonstrate

the reliability of the CI’s tip. In particular, Appellant contends:

Detective Falcon did not state how many times the [CI] had

given him information. Detective Falcone did not state how

many times the [CI] gave correct information and how many

times the [CI] gave incorrect information. Detective Falcone did

not state how many times the [CI] gave information resulting in

charges, and how many times those charges were dropped or

resulted in an acquittal. Detective Falcone did not state the

neighborhood where the [CI] operated, or his ethnic, religious,

age, business, or organizational identity. Detective Falcone

neither admitted nor denied whether there was any financial

relationship between the [CI] and the police. Detective Falcone

neither admitted nor denied whether the [CI] received any

consideration, immunity or favors from the police or prosecutors.

Appellant’s Brief at 16. In sum, Appellant avers that he “was denied the

ability to investigate the source, reliability, or circumstances of the

information given to Detective Falcone[]” and, thus, the court should have

granted his motion to compel the Commonwealth to reveal the CI’s identity.

Id. at 17.

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Initially, our review of the record demonstrates that in Appellant’s

cross-examination of Detective Falcone, he did not attempt to ask most of

the questions he now claims he was “denied the ability to investigate….” Id.

For instance, Appellant did not ask the detective how many times the CI

provided him with information; how many times that information led to

arrests and convictions versus acquittals or dropped charges; what

neighborhood the CI “operated” in, “or his ethnic, religious, age, business,

or organizational identity.” Id. Instead, Appellant only cross-examined

Detective Falcone about whether the detective could recall “specific cases” in

which the CI had provided “information that led to arrests and

convictions[,]” and also whether the CI was paid, or if he received any other

consideration, for the information he provided to authorities. N.T. Hearing,

3/11/15, at 12. This record demonstrates that Appellant’s argument

pertaining to the other information he was ostensibly ‘denied’ is specious, as

he never asked for that information from the testifying detective.

Moreover, Appellant only baldly asserts that the “[i]nformation relating

to the identity of the [CI was] material to the defense.” Appellant’s Brief at

17. He does not offer any discussion, or cite to any legal authority, to

support this assertion. Appellant’s scant argument is insufficient to

demonstrate that the trial court abused its discretion in concluding that he

failed to demonstrate that the CI’s identity was material to his defense. The

identity of the CI was relevant to attacking the reliability of his/her tip to

police and, from there, whether the officers had reasonable suspicion to pat-

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down Appellant’s person. However, even if the tip to police had been

anonymous, Officers Kozlowski and McAllister corroborated that tip by

observing the car described by the CI outside the bar, and then seeing

Appellant inside the bar wearing the same clothing as that described by the

CI. Most importantly, the officers both testified that as they approached

Appellant, he reached for his waistband. The officers stated that they know,

from their experience, that the waistband is often a location where a gun is

concealed. These facts demonstrated the reliability of the tip that Appellant

had a handgun. Therefore, we agree with the trial court that Appellant failed

to prove that obtaining the identity of the CI, in order to attack his/her

overall reliability, was material to Appellant’s defense, where there was

evidence that the CI’s specific tip in this case was reliable.

In Appellant’s second issue, he argues that the trial court erred by

denying his motion to suppress the evidence recovered from his person and

vehicle.

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

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the law to the facts.” Commonwealth v. Nester, 551 Pa. 157,

709 A.2d 879, 881 (1998).

Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (quoting

Commonwealth v. Kemp, 961 A.2d 1247, 1252–1253 (Pa. Super. 2008)

(en banc) (citation omitted)).

In this case, Appellant challenges whether Officers Kozlowski and

McAllister possessed reasonable suspicion to justify the Terry pat-down of

his person. In contending that they did not, Appellant argues that,

[t]he information about the [CI] was so flimsy that the

Commonwealth was not able to establish the credibility of its

[CI]. Without establishing the credibility of the [CI], the

Commonwealth could not show a reasonable suspicion for the

police investigation of the tavern.

Appellant’s Brief at 18. Appellant also reiterates his attack on Detective

Falcone’s testimony, claiming that it was insufficient to “assess whether the

tip was accurate or fictitious.” Id. at 21, 22. Thus, he concludes that “the

tip attributed to the [CI] was not trustworthy,” and as such, there was no

reasonable suspicion to support the Terry frisk. Id. at 22.

We disagree. This Court has explained:

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. This standard, less

stringent than probable cause, is commonly known as

reasonable suspicion. In order to determine whether the police

officer had reasonable suspicion, the totality of the

circumstances must be considered. 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. 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,

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even a combination of innocent facts, when taken together, may

warrant further investigation by the police officer.

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. However, if

the person described by the tipster engages in other suspicious

behavior, such as flight, reasonable suspicion justifying an

investigatory detention is present. Evasive behavior also is

relevant in the reasonable-suspicion mix. Moreover, whether the

defendant was located in a high crime area similarly supports the

existence of reasonable suspicion. 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.

Foglia, 979 A.2d at 360-61 (internal citations, quotation marks, and

footnote omitted).

Here, the trial court determined, and we agree, that Officers Kozlowski

and McAllister had reasonable suspicion to conduct the Terry frisk of

Appellant based on the totality of circumstances present in this case. In

particular, the tip in this case was from a known CI and, therefore, it carried

more “indicia of reliability” than an anonymous tip. See Commonwealth v.

Brown, 996 A.2d 473, 477 (Pa. Super. 2010) (“[W]e have recognized a

known informant is far less likely to produce false information[,]” and

therefore, “[a] known informant’s tip may carry sufficient ‘indicia of

reliability’ to justify an investigative detention despite the fact that it may

prove insufficient to support an arrest or search warrant.”) (citations

omitted). Moreover, the CI’s tip was corroborated by the independent

observations of Officers Kozlowski and McAllister. In particular, at the

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location where the CI claimed Appellant could be found, the officers saw a

vehicle matching the description and plate number provided by the CI.

Inside the bar, they saw Appellant, who was wearing clothing described by

the CI. As the officers approached Appellant, he reached toward his

waistband, which each officer knew from experience was a common place for

a weapon to be concealed. Because the CI alleged that Appellant possessed

a firearm, his act of reaching for his waistband bolstered the officers’

reasonable belief that he was actually carrying a gun in his pants. See

Foglia, 979 A.2d at 361. Additionally, Detective Falcone testified that the

area where Appellant was located had “plenty of shootings” and was a “very

violent” area. N.T. Hearing at 8. Based on the totality of these facts, we

conclude that the officers had reasonable suspicion to justify the Terry frisk

of Appellant’s person. See id. (finding reasonable suspicion to warrant a

pat-down where an officer was patrolling an area known for drugs and

weapons; he received an anonymous tip that a man dressed in black was

carrying a gun; at the scene, the officer observed a man matching the

description who began engaging in evasive behavior by continually looking

at the officer and walking away; and the man touched his waist area, which

the officer knew from his experience to be a location where weapons are

often concealed”).

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/1/2016

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