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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: I.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: I.W. : No. 2701 EDA 2013
Appeal from the Dispositional Order August 22, 2013
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-JV-0002137-2013
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 30, 2014
Appellant, I.W., appeals from the dispositional order entered in the
Philadelphia County Court of Common Pleas, following his adjudication of
delinquency for simple possession.1 We reverse the dispositional order.
The relevant facts and procedural history of this appeal are as follows.
On May 30, 2013, at approximately 11:00 p.m., Officer Michael Ginter was
on patrol in full uniform when he received information that a homicide had
occurred at 24th and Tasker Streets in Philadelphia. The only other
information in the flash report indicated the suspect was wearing blue shorts
and a white T-shirt. Approximately one hour later, Officer Ginter observed
Appellant walking eastbound on Ritner Street, approximately two miles east
of the location of the reported homicide. Appellant was wearing blue shorts
and a white T-shirt. Officer Ginter also recognized Appellant as someone
1
35 P.S. § 780-113(a)(16).
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who frequented the area of the reported homicide. Based on this
information, the officer stopped Appellant. During the stop, Appellant
appeared nervous and moved his hands behind his back out of the officer’s
view. Officer Ginter then performed a pat-down search of Appellant. During
the search, Officer Ginter felt multiple small, hard objects in Appellant’s
pants back pocket. The officer recognized the objects as crack cocaine.
Officer Ginter removed nine small Ziploc bags from Appellant’s pants pocket.
Each bag contained a white, rocky substance, which tested positive for
cocaine.
The Commonwealth filed a petition to adjudicate Appellant delinquent.
On June 25, 2013, Appellant filed a motion to suppress. On August 22,
2013, the juvenile court denied the motion to suppress and adjudicated
Appellant delinquent for the offense of simple possession. On the same
date, the court entered a dispositional order placing Appellant on probation
for an unspecified period. Appellant filed a timely notice of appeal on
Monday, September 23, 2013. The court ordered Appellant to file a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).
After being granted an extension, Appellant timely complied.
Appellant raises a single issue for our review:
DID NOT THE TRIAL COURT ERR IN DENYING THE MOTION
TO SUPPRESS PHYSICAL EVIDENCE, INSOFAR AS
APPELLANT WAS STOPPED AND FRISKED WITHOUT
REASONABLE SUSPICION?
(Appellant’s Brief at 3).
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In his sole issue, Appellant argues he was subject to an investigatory
detention when Officer Ginter initially stopped Appellant on the street,
because no reasonable person walking alone at night would feel free to leave
under these circumstances. Appellant claims Officer Ginter’s reasons for the
stop were (1) Appellant’s blue shorts and white T-shirt matched the generic
clothing description of a suspect in a reported homicide, which had occurred
one hour earlier and two miles away from the location of the stop; and (2)
Officer Ginter had seen Appellant on unspecified prior occasions in the area
of the homicide. Appellant asserts the officer relied on flash information,
which originated from an unknown source and failed to specify the homicide
suspect’s age, size, race, or gender. According to Appellant, the information
Officer Ginter relied on “was simply too vague, indefinite, and
uncorroborated” to support reasonable suspicion that Appellant had been or
was involved in any criminal activity. (Appellant’s Brief at 15). Appellant
concludes Officer Ginter lacked reasonable suspicion to support the
investigative detention, and the court should have suppressed the items
seized by the officer as a result of the unlawful detention. We agree.
“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.” Commonwealth v. Williams, 941
A.2d 14, 26 (Pa.Super. 2008) (en banc) (quoting Commonwealth v.
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Jones, 874 A.2d 108, 115 (Pa.Super. 2005)).
[W]e may consider 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. Where the record supports the findings of the
suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal
conclusions based upon the facts.
Williams, supra at 27. “It is within the suppression court’s sole province as
factfinder to pass on the credibility of witnesses and the weight to be given
their testimony.” Commonwealth v. Clemens, 66 A.3d 373, 378
(Pa.Super. 2013) (quoting Commonwealth v. Gallagher, 896 A.2d 583,
585 (Pa.Super. 2006)).
Contacts between the police and citizenry fall within three general
classifications:
The first [level of interaction] 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 respond. The second, an “investigative detention”
must be supported by reasonable suspicion; it subjects a
suspect to a stop and period of detention, but does not
involve such coercive conditions as to constitute the
functional equivalent of arrest. Finally, an arrest or
“custodial detention” must be supported by probable
cause.
Commonwealth v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal
denied, 583 Pa. 668, 876 A.2d 392 (2005). To determine if an interaction
rises to the level of an investigative detention, i.e., a Terry2 stop, “the court
must examine all the circumstances and determine whether police action
2
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
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would have made a reasonable person believe he was not free to go and was
subject to the officer’s orders.” Jones, supra at 116 (quoting
Commonwealth v. Stevenson, 832 A.2d 1123, 1127 (Pa.Super. 2003)).
Police must have reasonable suspicion that a person is engaged in
unlawful activity before subjecting that person to an investigative detention.
Commonwealth v. Cottman, 764 A.2d 595 (Pa.Super. 2000).
[T]o establish grounds for reasonable suspicion, the officer
must articulate specific observations which, in conjunction
with reasonable inferences derived from those
observations, led him reasonably to conclude, in light of
his experience, that criminal activity was afoot and that
the person he stopped was involved in that activity. The
question of whether reasonable suspicion existed at the
time [the officer conducted the stop] must be answered by
examining the totality of the circumstances to determine
whether the officer who initiated the stop had a
particularized and objective basis for suspecting the
individual stopped. Therefore, the fundamental inquiry of
a reviewing court must be an objective one, namely,
whether the facts available to the officer at the moment
of the [stop] warrant a [person] of reasonable caution in
the belief that the action taken was appropriate.
Commonwealth v. Basinger, 982 A.2d 121, 125 (Pa.Super. 2009)
(internal citations and quotation marks omitted) (emphasis added). To
validate a pat-down search or Terry frisk, an officer “must be able to
articulate specific facts from which he reasonably inferred that the individual
was armed and dangerous.” Commonwealth v. Gray, 896 A.2d 601, 606
(Pa.Super. 2006).
A police officer need not personally observe unusual or
suspicious conduct reasonably leading to the conclusion
that criminal activity is afoot and that a person is armed
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and dangerous; this Court has recognized that a police
officer may rely upon information which is broadcast over
a police radio in order to justify an investigatory stop.
Commonwealth v. Jackson, J., 519 A.2d 427, 430 (Pa.Super. 1986)
(citation and internal quotation marks omitted).
“While a tip can be a factor [in determining whether reasonable
suspicion existed], an anonymous tip alone is insufficient as a basis for
reasonable suspicion.” Commonwealth v. Leonard, 951 A.2d 393, 397
(Pa.Super. 2008). “Because an anonymous tip typically carries a low degree
of reliability, more information is usually required before investigating
officers develop the reasonable suspicion needed to support an investigatory
stop of a suspect.” Commonwealth v. Fell, 901 A.2d 542, 545 (Pa.Super.
2006). See also Commonwealth v. Hawkins, 547 Pa. 652, 656, 692
A.2d 1068, 1070 (1997) (stating, “[A] stop and frisk may be supported by a
police radio bulletin only if evidence is offered at the suppression hearing
establishing the articulable facts which support the reasonable suspicion”).
“A major factor in justifying a Terry stop, when the suspicious conduct has
not been personally observed by the officer, is the specificity of the
description of the suspect.” Commonwealth v. Jackson, M., 678 A.2d
798, 801 (Pa.Super. 1996), appeal denied, 546 Pa. 663, 685 A.2d 543
(1996) (internal citations and quotation marks omitted). “Close spatial and
temporal proximity of a suspect to the scene of a crime can also heighten a
police officer’s reasonable suspicion that a suspect is the perpetrator for
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whom the police are searching.” Jackson, J., supra at 439. Likewise, “if
the person described by the tipster engages in other suspicious behavior,
such as flight, reasonable suspicion justifying an investigatory detention is
present.” Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa.Super. 2009)
(en banc), appeal denied, 605 Pa. 694, 990 A.2d 727 (2010).
Instantly, Officer Ginter was in uniform in a marked vehicle when he
received flash information around 11:00 p.m. over police radio that a
homicide had occurred at 24th and Tasker Streets. The flash broadcast
indicated generally that the suspect was wearing blue shorts and a white T-
shirt. No other information was provided. Approximately one hour later, the
officer observed Appellant walking on Ritner Street, about two miles east of
the scene of the reported homicide. Appellant was wearing blue shorts and
a white T-shirt. Based solely on Appellant’s clothes and the knowledge that
Appellant frequented the area of the reported homicide, Officer Ginter
stopped Appellant. Contrary to the Commonwealth’s assertion that the
interaction was a “mere encounter” prior to Officer Ginter’s frisk of
Appellant, the officer plainly testified that he “stopped” Appellant and that
“during the stop, [Appellant] appeared to be very nervous.” (N.T.
Suppression Hearing, 8/22/13, at 6) (emphasis added). Officer Ginter did
not suggest he merely initiated contact with Appellant. Appellant, a juvenile,
was walking alone along the street at night when a uniformed officer
interacted with Appellant. Under these circumstances, a reasonable person
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would not believe he was free to leave. Accordingly, the record supports the
court’s characterization of the interaction as an “investigatory stop” requiring
reasonable suspicion. See Williams, supra; Jones, supra.
Nevertheless, the officer’s justification for the stop was based only on
his (1) observation that Appellant’s blue shorts and white T-shirt matched a
generic description of the homicide suspect’s clothing; and (2) knowledge
that Appellant frequented the area of the reported homicide. The flash
broadcast failed to specify the suspect’s age, gender, or race. Officer Ginter
had no information regarding the suspect’s physical characteristics. Further,
Appellant was not near the location of the reported homicide when he was
stopped; he was two miles away on foot. Officer Ginter observed nothing
suspicious about Appellant’s behavior before the stop—Appellant was simply
walking down the street.3 The only information the officer had to
corroborate the scant flash information was his general knowledge that
Appellant had been in the area of 24th and Tasker Streets on unspecified
previous occasions. Additionally, the Commonwealth produced no evidence
at the suppression hearing regarding the source of the flash information.
Absent more, the Commonwealth failed to establish that the officer had
reasonable suspicion to support his investigatory detention of Appellant.
See Basinger, supra. See also Commonwealth v. Berrios, 437 Pa. 338,
3
Officer Ginter observed Appellant’s apparent nervousness and suspicious
arm movements during the investigatory detention. Therefore, these
observations are immaterial to the question of whether the officer had
reasonable suspicion to stop Appellant in the first place.
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341-42, 263 A.2d 342, 344 (1970) (holding investigatory stop was unlawful
where officers received information over police radio that two black males in
dark clothing and one Puerto Rican male in light clothing were involved in
shooting and were observed leaving crime scene walking east, where police
had no reason to connect appellant and his companion to shooting except
that they were walking three blocks from area of shooting twenty minutes
later and they matched races and general clothing description of suspects;
police “had no information of the physical make-up or characteristics of the
men they were seeking”); In re M.D., 781 A.2d 192 (Pa.Super. 2001)
(holding officer lacked reasonable suspicion to stop appellant where
appellant partially matched radio description of robbery suspect; description
of suspect wearing “gray hoody and blue jeans” was too general and of little
use to distinguish appellant’s appearance; basis of radio information
regarding robbery was unknown; and officer did not cite any personal
observations of suspicious conduct before speaking to appellant).
The cases relied on by the Commonwealth are distinguishable with
respect to the defendant’s close spatial and temporal proximity to the
reported crime at the time of the stop, and/or the level of detail in the
description of the crime suspect. See, e.g., Commonwealth v. Palagonia,
868 A.2d 1212 (Pa.Super. 2005), appeal denied, 584 Pa. 675, 880 A.2d
1238 (2005) (holding stop of appellant was lawful where officer received
police radio broadcast seeking assistance in apprehending two young white
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males who jumped off apartment balcony in middle of night and fled toward
Overlook Road; within minutes, officer observed two young white males in
car on Overlook Road near apartment complex; no other cars were in area);
Commonwealth v. Vinson, 522 A.2d 1155 (Pa.Super. 1987) (holding
police acted lawfully in stopping appellant where cashier reported armed
robbery and gave description of two perpetrators and their car—dark blue
Grand Prix with white pinstripes, vinyl roof, and Pennsylvania license plate;
within minutes after hearing robbery report over police radio, officers saw
car, which fit cashier’s detailed description, at gas station close to crime
scene). These cases are inapposite and do not alter our conclusion that
Officer Ginter stopped Appellant without reasonable suspicion. Therefore,
the evidence obtained as a result of the officer’s unlawful detention of
Appellant should have been suppressed. See Williams, supra. Based
upon the foregoing, we reverse.
Dispositional order reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2014
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