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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.A., A MINOR, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: M.A., A MINOR, :
: No. 2530 EDA 2013
Appeal from the Dispositional Order August 1, 2013
In the Court of Common Pleas of Philadelphia County
Juvenile Division No(s).: CP-51-JV-0000604-2013
BEFORE: GANTMAN, P.J., JENKINS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 03, 2014
Appellant, M.A., appeals from the dispositional order entered in the
Philadelphia County Court of Common Pleas following a dispositional hearing
and a finding of delinquency for two violations of the Uniform Firearms Act,
specifically carrying a firearm without a license 1 and possession of a firearm
by a minor.2 Appellant contends the police lacked reasonable suspicion to
stop him and seize the firearm. We affirm.
We state the facts as set forth by the juvenile court.
On February 13, 2013[,] at approximately 8:16PM,
Philadelphia Police Officer Brian McCarthy . . . responded
to a radio call for gunshots in the area of 43rd Street and
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6106.
2
18 Pa.C.S. § 6110.1.
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Fairmount Avenue. Officer McCarthy approached the area
of 43rd and Wallace Streets, which is one block away from
43rd and Fairmount Avenue. . . . It took Officer McCarthy
approximately one minute to arrive at 43rd and Wallace
Streets. At the time, Officer McCarthy had worked in the
area of 43rd and Wallace Streets for approximately six
years. Officer McCarthy described the area as a “very high
crime area, with lots of narcotics, shootings [and]
robberies.”
When Officer McCarthy arrived at 43rd and Wallace
Street, he observed three black males walking away from
the area where gunfire had been reported one minute
prior. Said males matched the descriptions of the
perpetrators of previous gunpoint robberies in said area.
Officer McCarthy had received a packet of “flash
information” describing five different robberies all in the
same area within the preceding week, committed by black
males wearing hoodies and black jackets. Officer
McCarthy was travelling in a marked police vehicle.
As Officer McCarthy exited his vehicle [and before he
could say anything,] the three males ran. One male ran
westbound on Wallace Street. Officer McCarthy pursued
[Appellant] and another male, as they ran eastbound on
Wallace Street. . . . Officer McCarthy continued to pursue
[Appellant] into an alleyway. The officer followed
[Appellant] through said alleyway, which led to an open
field. While running, [Appellant] turned and discarded a
silver gun from his waistband. Officer McCarthy clearly
observed [Appellant] pull the silver firearm from his right,
front waistband. [Appellant] continued to run for a
distance of ten feet and then stopped, at which point
Officer McCarthy was able to apprehend [Appellant].
Officer McCarthy then recovered the firearm, a .380 caliber
semiautomatic handgun loaded with five rounds and one
round in the chamber, and placed said firearm on Property
Receipt number 3080538. Upon arresting [Appellant],
Officer McCarthy recovered an Apple-stamped plastic bag,
containing six live rounds, and he placed said items on
Property Receipt number 3057206. At the time of the
arrest, [Appellant] was dressed in a dark blue jacket, blue
hoodie, and black pants.
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Officer McCarthy stopped [Appellant] because [he] was
walking away from the area of gunfire and also because
[Appellant] matched the description of the perpetrator of a
previous robbery or robberies. While the descriptions of
the perpetrators in each crime varied, most of the
descriptions referenced black males in dark hoodies.
There was no height description as part of the descriptions
of the perpetrators. The other male that was walking with
[Appellant] was wearing a black, puffy jacket, which also
matched the description of one of the robbers. Officer
McCarthy conceded that the males of said vicinity generally
wear dark clothing, puffy jackets, and hoodies. However,
Officer McCarthy explained that he stopped [Appellant]
based on the area, the clothing, and the number of males
that were with [Appellant] in the group, in light of the flash
information. The males ran as soon as Officer McCarthy
opened his car door, prior to Officer McCarthy saying a
word.
The parties stipulated that the firearm recovered was
submitted to the Firearm Identification Unit and
determined to be operable. [Appellant] never produced a
license to carry a firearm. The Commonwealth presented
a Certificate of Non-Licensure for [Appellant].
Juvenile Ct. Op., 1/13/14, at 2-4 (unpaginated) (citations omitted). The
record does not explicitly state whether Officer McCarthy ordered Appellant
and the other male to stop during the pursuit. Given that Appellant stopped
running after ten feet, we may presume Officer McCarthy commanded
Appellant to stop. See id. at 3 (noting that Appellant stopped running while
in alleyway or open field).
On May 23, 2013, Appellant moved to suppress the gun, reasoning
that the police lacked a basis to stop him. The court denied Appellant’s
motion and subsequently found Appellant delinquent. On August 1, 2013,
the court placed Appellant on probation pursuant to a Youth Violence
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Reduction Partnership, with home schooling subject to global positioning
system monitoring and house restrictions.
Appellant timely appealed, and on September 19, 2013, the court
ordered Appellant to comply with Pa.R.A.P. 1925(b) within twenty-one days.
On Friday, October 11, 2013, Appellant filed his Rule 1925(b) statement one
day past the deadline.3 In his Rule 1925(b) statement, Appellant alleged the
police lacked probable cause to stop him thus making any resulting seizure
“fruit of the poisonous tree.” Appellant’s Pa.R.A.P. 1925(b) Statement,
10/11/13 (emphasis added).
In his brief, Appellant raises the following issue:
Whether the suppression court erred in finding that the
police had reasonable suspicion to stop, investigate
[Appellant], and that the unprovoked flight of [Appellant]
gave the officer authority to chase and arrest [Appellant
and] to seize[ ] the firearm he discarded during the chase?
Appellant’s Brief at 1 (emphasis added).4 Appellant argues that the police
had no description of the perpetrators of the gunfire that night and only a
clothing description of the perpetrators of the prior robberies. He posits that
the clothing description could not establish probable cause or justify an
3
We decline to find waiver, however. See Pa.R.A.P. 1925(c)(3);
Commonwealth v. Britt, 83 A.3d 198, 203 (Pa. Super. 2013) (holding
untimely filing of Rule 1925(b) statement by counsel is per se ineffective
assistance of counsel).
4
Although “probable cause” is materially different than “reasonable
suspicion,” we decline to find waiver.
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investigatory stop. Appellant maintains there was no reasonable suspicion
justifying his seizure. He opines his seizure occurred as soon as he fled the
police. Appellant suggests that the firearm should have been suppressed
because the police lacked probable cause or reasonable suspicion under
Article I, § 8 of the Pennsylvania Constitution and the Fourth Amendment of
the United States Constitution. We hold Appellant is due no relief.
Our standard of review in addressing a challenge to a
trial court’s denial of a suppression motion is limited to
determining whether the factual findings are supported by
the record and whether the legal conclusions drawn from
those facts are correct. Where the prosecution prevailed in
the suppression court, we 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, we are
bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
In re J.E., 937 A.2d 421, 425 (Pa. 2007) (citations omitted). In evaluating
the legal conclusion drawn by the suppression court, this Court may also
consider uncontradicted testimony from the suppression hearing not
included in the suppression court’s findings of fact.5 Commonwealth v.
Mendenhall, 715 A.2d 1117, 1119 n.1 (Pa. 1998).
5
We acknowledge the holding of In re L.J., 79 A.3d 1073 (Pa. 2013), that
after October 30, 2013, the scope of review for a suppression issue is limited
to the record available to the suppression court. Id. at 1085, 1089 (stating
holding applies to “all litigation commenced Commonwealth-wide after the
filing of this decision”). Because the instant delinquent petition was filed
prior to October 30, 2013, In re L.J. does not apply.
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Both the Fourth Amendment of the United States
Constitution and Article 1 Section 8 of the Pennsylvania
Constitution protect citizens from unreasonable, searches
and seizures. The Fourth Amendment to the United States
Constitution provides that:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no warrants shall issue, but
upon probable cause, supported by oath or
affirmation, and particularly describing the place
to be searched, and the persons or things to be
seized.
U.S. Const. Amend. IV. The Pennsylvania Constitution
provides:
The people shall be secure in their persons,
houses, papers and possessions from
unreasonable searches and seizures, and no
warrant to search any place or to seize any
person or things shall issue without describing
them as nearly as may be, nor without probable
cause, supported by oath or affirmation
subscribed to by the affiant.
Pa. Const. Art. I, § 8. Warrantless searches and seizures
are therefore unreasonable per se, unless conducted
pursuant to a specifically established and well-delineated
exception to the warrant requirement.
* * *
The Pennsylvania Supreme Court has been vigilant in
the protection of the right to privacy guaranteed by Article
I, Section 8 of our state Constitution. On repeated
occasions, the Court has admonished that:
The seriousness of criminal activity under
investigation, whether it is the sale of drugs or
the commission of a violent crime, can never be
used as justification for ignoring or abandoning
the constitutional right of every individual in this
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Commonwealth to be free from intrusions upon
his or her personal liberty absent probable
cause.
Commonwealth v. Polo, 563 Pa. 218, 226, 759 A.2d
372, 376 (quoting Commonwealth v. Matos, 543 Pa.
449, 672 A.2d 769, 775-76 (1996)).
To secure the right of citizens to be free from such
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.
Commonwealth v. Ayala, 791 A.2d 1202, 1207-08 (Pa. Super. 2002) (per
curiam) (punctuation marks and some citations omitted).
Initially we note that Fourth Amendment jurisprudence
has led to the development of three categories of
interactions between citizens and the police. The first of
these is a “mere encounter” (or request for information)
which need not be supported by any level of suspicion, but
carries no official compulsion to stop or to respond. The
second, an “investigative detention[,]” must be supported
by a reasonable suspicion; it subjects a suspect to a stop
and a period of detention, but does not involve such
coercive conditions as to constitute the functional
equivalent of an arrest. Finally, an arrest or “custodial
detention” must be supported by probable cause.
Commonwealth v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995) (citations and
footnote omitted).
The Pennsylvania Supreme Court has established the objective
Jones/Mendenhall6 standard “in determining whether the conduct of the
police amounts to a seizure or whether there is simply a mere encounter
6
United States v. Mendenhall, 446 U.S. 544 (1980); Commonwealth v.
Jones, 378 A.2d 835, 839 (Pa. 1977).
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between citizen and police officer.” Commonwealth v. Matos, 672 A.2d
769, 774 (Pa. 1996).
In [Commonwealth v. Hicks, 253 A.2d 276 (Pa. 1969)],
this Court adopted the United States Supreme Court’s
decision in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20
L. Ed. 2d 889 (1968), which permits a police officer to
effect a precautionary seizure where the police have a
reasonable suspicion that criminal activity is afoot. Terry,
and by analogy Hicks, recognized that there are some
instances in which an individual may not be arrested, but
will still be considered to be “seized.” In Jones, this Court
adopted an objective standard for determining what
amount of force constitutes the initiation of a Terry stop:
whether a reasonable person innocent of any crime, would
have thought he was being restrained had he been in the
defendant’s shoes. This case, which preceded the United
States Supreme Court’s decision in . . . Mendenhall, . . .
was a precursor to the so-called “Mendenhall” test
posited by the United States Supreme Court: “a person
has been ‘seized’ within the meaning of the Fourth
Amendment only if, in view of all the circumstances
surrounding the incident, a reasonable person would have
believed he was not free to leave.”
The Jones/Mendenhall standard has since been
consistently followed in Pennsylvania in determining
whether the conduct of the police amounts to a seizure or
whether there is simply a mere encounter between citizen
and police officer.
Matos, 672 A.2d at 773-74 (punctuation and some citations omitted).
The Pennsylvania Supreme Court provided further guidance in applying
this “totality of the circumstances” test:
In evaluating the circumstances, the focus is directed
toward whether, by means of physical force or show of
authority, the citizen-subject’s movement has in some way
been restrained. In making this determination, courts
must apply the totality-of-the-circumstances approach,
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with no single factor dictating the ultimate conclusion as to
whether a seizure has occurred.
Commonwealth v. Strickler, 757 A.2d 884, 890 (Pa. 2000) (footnotes and
some citations omitted). Factors examined in this totality-of-the-
circumstances approach include “all circumstances evidencing a show of
authority or exercise of force, including the demeanor of the police officer,
the manner of expression used by the officer in addressing the citizen, and
the content of the interrogatories or statements.” Mendenhall, 715 A.2d at
1119.7 This Court also set forth a non-exclusive list of factors:
[T]he number of officers present during the interaction;
whether the officer informs the citizen they are suspected
of criminal activity; the officer’s demeanor and tone of
voice; the location and timing of the interaction; the visible
presence of weapons on the officer; and the questions
asked. Otherwise inoffensive contact between a member
of the public and the police cannot, as a matter of law,
amount to a seizure of that person.
Commonwealth v. Collins, 950 A.2d 1041, 1047 n.6 (Pa. Super. 2008)
(en banc) (citation omitted).
No Fourth Amendment violation occurs “[a]s long as the person to
whom questions are put remains free to disregard the questions and walk
away, [as] there has been no intrusion upon that person’s liberty or privacy
as would under the Constitution require some particularized and objective
7
The defendant in the Pennsylvania Supreme Court Mendenhall case has
no connection to the defendant in the United States Supreme Court
Mendenhall case.
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justification.” Commonwealth v. Peters, 642 A.2d 1126, 1129 (Pa. Super.
1994). Following that precept, our courts have held that “a seizure does not
occur simply because a police officer approaches an individual and asks a
few questions.” Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa.
Super. 2010) (citation omitted).8 For example, a plainclothes officer
displaying a badge, accompanied by a request to step aside for a
conversation, generally does not, without more, constitute a seizure.
Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984).9
In contrast, “[i]f a citizen approached by a police officer is ordered to
stop or is physically restrained, obviously a ‘stop’ occurs.” Jones, 378 A.2d
8
In Cooper, this Court examined whether
the police’s actions, upon approaching [the defendant],
rose to the level of an investigative detention. . . . The
evidence presented at the suppression motion suggests
only that the officer exited his vehicle and approached [the
defendant] with the intention of asking him questions.
There was no evidence presented that the officer drew his
weapon or commanded [the defendant] to remain in place
before [the defendant] made his movements[, “belat[ing]
his body backwards towards his left side and reach[ing] for
his pocket.”]. Accordingly, we conclude that the officer
subjected [the defendant] to only a mere encounter prior
to frisking him.
Cooper, 994 A.2d at 592.
9
In Rodriguez, plainclothes officers at an airport approached a suspect,
who “saw them approaching and then attempted to move away but was
mainly running in place, and an officer then displayed his badge and asked if
they could talk, to which defendant agreed[.]” 4 Wayne R. LaFave, Search
and Seizure § 9.4(a) n.18 (5th ed. 2012) (summarizing Rodriguez, supra).
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at 839. In In re D.M., 781 A.2d 1161 (Pa. 2001), our Supreme Court
stated that the “pursuit of [a defendant] by police officers amount[s] to a
seizure. Thus, the officer must demonstrate either probable cause to make
the seizure or reasonable suspicion to stop and frisk.” Id. at 1164 (citation
and footnote omitted). The In re D.M. Court addressed the propriety of a
seizure when the police approached a suspect matching a description given
via a radio call, and the suspect fled in response to a police directive to
approach. Id. at 1162. The Court concluded that “flight was clearly
relevant in determining whether the police demonstrated reasonable
suspicion to justify a Terry stop under the totality of the circumstances.”
Id. at 1165.
In sum, the question of “whether the police needed some level of
requisite cause at the time they initially approached” the defendant is
“governed by the type of encounter that the police initiated when they
approached” the defendant. Id. at 1164 (emphases added). The critical
inquiry is what type of encounter the police initiated at the time they initially
approached the defendant. See id. After identifying the type of
encounter—e.g., mere encounter, investigative detention, or custodial
detention—this Court must then determine whether the police had the
requisite cause for that encounter, respectively, e.g., no suspicion required,
reasonable suspicion that criminal activity was afoot, or probable cause for
an arrest. See Ellis, 662 A.2d at 1047; Jones, 378 A.2d at 839 n.4.
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Instantly, the record substantiates the juvenile court’s determination
that Appellant was walking with two males in a high crime area around 8:00
p.m. Juvenile Ct. Op. at 2-3. Officer McCarthy, while driving a marked
police vehicle, approached the three males. Id. At this juncture, no seizure
occurred; Officer McCarthy did not command the three males to remain
stationary or draw his weapon. Cf. Rodriguez, 469 U.S. at 5-6; Cooper,
994 A.2d at 592. There was no “official compulsion to stop or to respond.”
Ellis, 662 A.2d at 1047. Under these facts, had Officer McCarthy begun
questioning the males, they would have remained free to walk away. See
Cooper, 994 A.2d at 592; Peters, 642 A.2d at 1129. Unlike the facts in
Rodriguez, however, Officer McCarthy did not say anything, because upon
seeing Officer McCarthy exit the vehicle, all three males fled: one male fled
westbound and Appellant and the third male fled eastbound. See Juvenile
Ct. Op. at 3.
Officer McCarthy immediately pursued Appellant and the third male
east. Although the record does not explicitly indicate whether Officer
McCarthy ordered Appellant and the other male to stop, it is implied. See
id. at 3. At the moment when Officer McCarthy initiated pursuit, and
presumably commanded Appellant to stop, a seizure occurred. See In re
D.M., 781 A.2d at 1164; Matos, 672 A.2d at 771; Jones, 378 A.2d at 839.
Thus, under the totality of the circumstances and an objective standard of
review, these facts establish a show of authority or exercise of force such
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that a reasonable, innocent person in Appellant’s position would have
thought he was being restrained. See Strickler, 757 A.2d at 890;
Mendenhall, 715 A.2d at 1119-20; Matos, 672 A.2d at 774. At this
juncture, this interaction was not “inoffensive conduct between a member of
the public and the police” such that no seizure occurred. See Collins, 950
A.2d at 1047 n.6. Because the interaction at this point in time progressed
beyond a mere encounter to an investigative detention, see In re D.M., 781
A.2d at 1164, we examine whether the police had reasonable suspicion that
criminal activity was afoot. See Ellis, 662 A.2d at 1047; Jones, 378 A.2d
at 839.
When evaluating the existence of reasonable suspicion,
the reviewing Court weighs the gravity of the public
concerns served by the seizure, the degree to which the
seizure advances the public interest, and the severity of
the interference with individual liberty. To be deemed
reasonable under this standard, such a seizure must
ordinarily be supported by reasonable suspicion, based
upon objective facts, that the individual is involved in
criminal activity.
Commonwealth v. Beaman, 880 A.2d 578, 582 (Pa. 2005) (citations and
some quotation marks omitted). Absent individualized suspicion justifying a
seizure, we examine whether the investigative detention fell within the
limited circumstances for a suspicionless search and seizure.
Commonwealth v. Mistler, 912 A.2d 1265, 1271 (Pa. 2006).
Instantly, the juvenile court held that Officer McCarthy had reasonable
suspicion that Appellant was engaged in criminal activity. Juvenile Ct. Op. at
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5-6. Officer McCarthy responded to a radio call of gunshots at 43rd and
Wallace Streets, a high crime area, within a minute of the call. Id.
Appellant and the other males wore clothing similar to the perpetrators of
five recent robberies in the area. Id. Upon seeing Officer McCarthy exit
from a marked police vehicle and before he even said anything, Appellant,
similar to the defendant in In re D.M., fled. Id.; see In re D.M., 781 A.2d
at 1162. Each fact, on its own, does not necessarily give rise to reasonable
suspicion of criminal activity. See Strickler, 757 A.2d at 890. Viewed as a
whole, however, these facts substantiate the juvenile court’s holding that
reasonable suspicion of criminal activity was afoot. See Beaman, 880 A.2d
at 582; see also In re J.E., 937 A.2d at 425 (holding appellate court bound
by trial court’s finding of facts supported by record and conducting de novo
review of legal conclusions drawn therefrom).
Because the uncontradicted record supports the factual determinations
of the juvenile court and we discern no error of law, we affirm the
dispositional order. See In re J.E., 937 A.2d at 425; Mendenhall, 715
A.2d at 1119 n.1. Under these facts, the police had the requisite level of
reasonable suspicion to justify Appellant’s investigative detention pursuant
to Article I, Section 8 of the Pennsylvania Constitution and the Fourth
Amendment of the United States Constitution. See Ayala, 791 A.2d at
1208; In re D.M., 781 A.2d at 1164. Accordingly, we affirm the
dispositional order.
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Dispositional order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/2014
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