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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
FREDDIE KING, :
:
Appellant : No. 2080 EDA 2014
Appeal from the Judgment of Sentence June 26, 2014,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0000712-2014
BEFORE: PANELLA, WECHT, and STRASSBURGER,* JJ.
CONCURRING MEMORANDUM BY STRASSBURGER, J.:FILED NOVEMBER 23, 2015
I agree that King’s judgment of sentence should be affirmed, albeit on
a somewhat different basis than that offered by the Majority. I disagree
with the Majority’s determination that King’s admission that he possessed a
gun was the linchpin that provided Officer Chadderton with the requisite
suspicion to conduct a Terry frisk. Because the stop was supported by
reasonable suspicion, and because the totality of the circumstances
reasonably led Officer Chadderton to believe that a pat-down was warranted
to ensure officer safety, I find the Majority’s determination of when the frisk
occurred, i.e. after King’s admission rather than when King was ordered to
* Retired Senior Judge assigned to the Superior Court.
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place his hands on the fence, to be immaterial.1 Accordingly, I respectfully
concur.
It is well-settled that
a police officer may conduct a brief investigatory stop of an
individual if the officer observes unusual conduct which leads
him to reasonably conclude, in light of his experience, that
criminal activity may be afoot. An investigatory stop subjects a
person to a stop and a period of detention, but does not involve
such coercive conditions as to constitute the functional
equivalent of an arrest. Such an investigatory stop is justified
only if the detaining officer can point to specific and articulable
facts which, in conjunction with rational inference derived from
those facts, give rise to a reasonable suspicion of criminal
activity and therefore warrant the intrusion.
If, during the course of a valid investigatory stop, an
officer observes unusual and suspicious conduct on the part of
the individual which leads him to reasonably believe that the
suspect may be armed and dangerous, the officer may conduct a
pat-down of the suspect's outer garments for weapons. In order
to justify a frisk … the officer must be able to point to particular
facts from which he reasonably inferred that the individual was
armed and dangerous. Such a frisk, permitted without a warrant
and on the basis of reasonable suspicion less than probable
cause, must always be strictly limited to that which is necessary
for the discovery of weapons which might be used to harm the
officer or others nearby.
Commonwealth v. E.M., 735 A.2d 654, 659 (Pa. 1999) (citations and
quotations omitted).
Here, officers approached King at his home after observing potentially
criminal activity. Unlike situations involving uncorroborated tips from third
parties or mere encounters with citizens while on patrol, the officers in this
1
So too did the suppression judge who did not rely on King’s admission to
find that the frisk was valid.
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case had reason to believe criminal activity was afoot, which elevated their
subsequent interaction with King to an investigative detention. 2 During that
detention, King began acting suspiciously, especially in approaching the
officers with his body at a forty-five degree angle as if to hide something.
Trial Court Opinion, 11/10/2014, at 3. The officers also observed blood on
2
Section 5511 provides as follows.
1) A person commits an offense if he wantonly or cruelly
illtreats, overloads, beats, otherwise abuses any animal, or
neglects any animal as to which he has a duty of care, whether
belonging to himself or otherwise, or abandons any animal, or
deprives any animal of necessary sustenance, drink, shelter or
veterinary care, or access to clean and sanitary shelter which will
protect the animal against inclement weather and preserve the
animal's body heat and keep it dry.
(2) (i) Except as provided in subparagraph (ii), a person
convicted of violating paragraph (1) commits a summary
offense.
(ii) A person convicted for a second or subsequent
time of violating paragraph (1) commits a
misdemeanor of the third degree if all of the
following occurred:
(A) The action or omission for which the person was
convicted for a subsequent time was performed on a
dog or cat.
(B) The dog or cat was seriously injured, suffered
severe physical distress or was placed at imminent
risk of serious physical harm as the result of the
person's action or omission.
18 Pa.C.S. § 5511(c). Although typically a summary offense, as subsection
(c)(2)(ii) explains, repeat commission rises to the level of a misdemeanor.
That the officers initially intended to cite King is a red herring, as the facts
establish that they witnessed the abuse and were, therefore, justified in
investigating further to determine how the offense could be charged.
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his lip and detected an odor of alcohol on his person. These circumstances,
taken together with the location of the detention in a known high-crime
area, were sufficient to permit a pat-down for weapons long before King’s
admission that he possessed a gun.
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