J-A12008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
SHAUN JACKSON,
Appellee No. 1678 EDA 2015
Appeal from the Order Entered May 19, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012272-2014
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 16, 2016
This is the Commonwealth’s appeal from the trial court’s order
granting Appellant’s motion to suppress evidence seized from, and
statements made by Appellee, Shaun Jackson. After careful review, we
affirm.
The trial court summarized the pertinent facts as follows:
Officer Brian Smith testified that on October 11, 2014, at
approximately 11:13 [p.m.], he and his partner, Officer Dill,
toured the area of the 3400 block of Kensington Avenue in a
marked police vehicle. They were in the area in response to a
radio call for [a reported] theft at the location of 1127 East Tioga
Street, which is one block away from 3400 Kensington Avenue.
Officer Smith testified that originally the flash information was
for a Hispanic male wearing a black hoodie and black pants who
allegedly broke into a vehicle at 1127 East Tioga Street. Two
minutes later, after another unit arrived at the location, the
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*
Former Justice specially assigned to the Superior Court.
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Officers received supplemental information from the owner of
the vehicle that it was actually a black male, approximately 28
years old with a beard, wearing all black. Five minutes later, as
they were heading towards East Tioga Street, the Officers
merely observed the back of [Appellee] walking alone on the
3400 block of Kensington Avenue. Officer Smith testified that
[Appellee] was a black male and wore a black hooded jacket,
black sweatpants, and black sneakers.1
1
On the … [r]eport[] prepared by Officer Dill, [Appellee]
was described as wearing a black hat, black hooded
jacket, and black pants.
Officer Dill stopped the marked police car, and both Officers,
in full uniform, exited and approached [Appellee], one on each
side. Officer Smith asked [Appellee] if he could speak to him for
a minute and [Appellee] complied. Officer Smith then explained
to [Appellee] that he is being "detained" for an alleged theft and
asked for his identification. [Appellee] was fully cooperative and
further complied with the Officers. When Officer Smith asked if
[Appellee] had anything on his person that should be of concern,
[Appellee] responded that he had a firearm on his person.
Officer Dill recovered a Davis Industries .32 caliber handgun,
loaded with seven live rounds of ammunition, inside a sock from
the right rear of [Appellee]'s pant pockets. He also recovered
additional four rounds of live ammunition in [Appellee]'s ID
pouch. Complainant did not positively identify [Appellee] at the
scene. Yet, the Officers placed [Appellee] under arrest for
possession of firearm.2
2
Officer Smith testified that [Appellee] was a convicted
felon and was not permitted to carry a handgun.
Suppression Court Opinion (SCO), 8/27/15, at 2-3 (citations omitted,
emphasis in original).
Following his arrest, Appellee was charged with carrying a firearm
without a license, 18 Pa.C.S. § 6106; person not to possess a firearm, 18
Pa.C.S. § 6105; possessing a firearm with an altered manufacturer’s
number, 18 Pa.C.S. § 6110.2; and carrying a firearm in public in
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Philadelphia, 18 Pa.C.S. § 6108. Following a suppression hearing held on
May 8, 2015, the lower court issued an order on May 19, 2015, granting
Appellee’s motion to suppress his statement to police and the seized
contraband.
On May 28, 2015, the Commonwealth filed the instant interlocutory
appeal challenging the suppression court’s order, preemptively filed a
Pa.R.A.P. 1925(b) statement that same day, and also certified that the
suppression order had terminated or substantially handicapped the
prosecution. The suppression court issued its Rule 1925(a) opinion on
August 27, 2015.
The Commonwealth now presents the following question for our
review:
Where police received a report from a known citizen that she had
seen a man breaking into her car and then found [Appellee],
who matched the description of the perpetrator, only one block
away from the crime scene walking alone on the street late at
night, did the lower court err in ruling that the police did not
have reasonable suspicion for an investigatory stop?
Commonwealth’s Brief, at 4.
Our standard and scope of review is as follows:
When reviewing an Order granting a motion to suppress
we are required to determine whether the record supports the
suppression court's factual findings and whether the legal
conclusions drawn by the suppression court from those findings
are accurate. Commonwealth v. Mistler, 590 Pa. 390, 912
A.2d 1265, 1268 (2006), citing Commonwealth v. Davis, 491
Pa. 363, 421 A.2d 179 (1980). In conducting our review, we
may only examine the evidence introduced by appellee along
with any evidence introduced by the Commonwealth which
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remains uncontradicted. Id. at 1268–1269. Our scope of
review over the suppression court's factual findings is limited in
that if these findings are supported by the record we are bound
by them. Id. at 1269, citing Commonwealth v. Bomar, 573
Pa. 426, 826 A.2d 831, 842 (2003). Our scope of review over
the suppression court's legal conclusions, however, is plenary.
Id., citing Commonwealth v. Nester, 551 Pa. 157, 709 A.2d
879, 881 (1998).
Commonwealth v. Henry, 943 A.2d 967, 969 (Pa. Super. 2008).
Initially, we must resolve a factual dispute. In its primary analysis of
the Commonwealth’s claim, the suppression court acted under the
assumption that the police responded to an anonymous call. However, the
Commonwealth asserts that the police did not confront Appellee based
exclusively on an anonymous tip—while the initial flash information was
based on an anonymous call, a second radio call went out prior to the
encounter with Appellee, which indicated that the owner of the vehicle
subjected to the attempted theft (hereinafter “Victim”) had been directly
contacted. The Victim provided the police with a revised description of the
perpetrator, as well as the suspect’s direction of travel. The suppression
court’s opinion acknowledges this fact; however, the court asserts that the
parties’ failure to object when the court initially summarized its findings of
fact on May 19, 2015, suggests that it did not err when it analyzed the stop
of Appellee as if it had been solely based on an anonymous call.
We agree with the Commonwealth. The record clearly dovetails with
the Commonwealth’s description of the facts. See N.T., 5/8/15, at 11
(Officer Smith’s testifying that the initial call was augmented with
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information provided by the owner of the vehicle, providing the suspect’s
direction of travel and a modified physical description). Furthermore, the
suppression court fails to provide any legal support for the notion that the
parties’ failure to object to its findings of fact consequently curtails our
review of the actual record. Moreover, the suppression court never states
that it found Officer Smith’s testimony not credible. Instead, it appears as if
the court merely misapprehended the record when it announced its findings
of fact when granting the suppression motion. Indeed, the factual summary
provided by the court in its Rule 1925(a) statement, above, acknowledges
that the initial call was anonymous, but that additional information was
received directly from a known source, the Victim.
Nevertheless, the suppression court provided an alternative analysis in
its Rule 1925(a) opinion, in which the court assumed a known source while
still concluding that the stop of Appellee was made absent the requisite
reasonable suspicion. SCO, at 8-9. Accordingly, we will only consider the
court’s alternative analysis in addressing the Commonwealth’s claim, as well
as the aspects of the court’s primary analysis that do not expressly or
implicitly rely on the Victim’s anonymity.
We begin with a summary of the pertinent law:
[I]n assessing the lawfulness of citizen/police encounters, a
central, threshold issue is whether or not the citizen-subject has
been seized. Instances of police questioning involving no seizure
or detentive aspect (mere or consensual encounters) need not
be supported by any level of suspicion in order to maintain
validity. Valid citizen/police interactions which constitute
seizures generally fall within two categories, distinguished
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according to the degree of restraint upon a citizen's liberty: the
investigative detention or Terry[1] stop, which subjects an
individual to a stop and a period of detention but is not so
coercive as to constitute the functional equivalent of an arrest;
and a custodial detention or arrest, the more restrictive form of
permissible encounters. To maintain constitutional validity, an
investigative detention must be supported by a reasonable and
articulable suspicion that the person seized is engaged in
criminal activity and may continue only so long as is necessary
to confirm or dispel such suspicion; see Commonwealth v.
Lewis, 535 Pa. 501, 508, 636 A.2d 619, 623 (1994) (citation
omitted); whereas, a custodial detention is legal only if based on
probable cause.
Commonweatlh v. Strickler, 757 A.2d 884, 889-90 (Pa. 2000) (footnote
omitted, citation omitted).
Instantly, there is no dispute among the parties and the suppression
court that Appellee was “seized” for purposes of the Fourth Amendment.
Furthermore, the issue at hand is narrowly framed as to whether the police
possessed reasonable suspicion to stop Appellee in furtherance of their
investigation into the theft/attempted theft of the Victim’s vehicle. In that
regard:
An investigatory stop, which subjects a suspect to a stop and a
period of detention but does not involve such coercive conditions
as to constitute an arrest, requires a reasonable suspicion that
criminal activity is afoot. Terry[,] 392 U.S. [at 21];
Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226,
228–30 (1996). Reasonable suspicion depends upon both the
content of the information possessed by the police and its
degree of reliability. Commonwealth v. Wilson, 424 Pa.Super.
110, 115, 622 A.2d 293, 295–96 (1993) (quoting Alabama v.
White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d
301 (1990)). Thus, quantity and quality of information are
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1
Terry v. Ohio, 392 U.S. 1 (1968).
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considered when assessing the totality of the circumstances. Id.
If information has a low degree of reliability, then more
information is required to establish reasonable suspicion. Id.
Commonwealth v. Wimbush, 750 A.2d 807, 811 (Pa. 2000).
We acknowledge that Fourth Amendment jurisprudence recognizes
that anonymously supplied information is inherently less reliable than
information received from a known source. See e.g., Adams v. Williams,
407 U.S. 143, 146-47 (1972) (observing that a tip from an informer known
to the police carried enough indicia of reliability for the police to conduct a
Terry search/stop, even though the same tip from an anonymous informant
would likely not have done so). Therefore, by the same logic, we recognize
that information garnered from a known source is more reliable than
information deriving from an anonymous one. However, we are aware of no
authority which suggests that the presence of a known source of information
automatically results in reasonable suspicion to conduct a Terry stop. The
nature of the source is but one of many possible factors which inform the
totality-of-the-circumstances test for reasonable suspicion. Furthermore, it
is not enough that that a person matches the description of an informant,
“there must [also] be reasonable suspicion of criminal conduct[.]”
Commonwealth v. Hawkins, 692 A.2d 1068, 1070 (Pa. 1997).
Here, the suppression court did not grant suppression premised solely,
or even primarily, on inaccuracies in the description provided by the Victim.
The court acknowledged that Appellee “partially fit the general description of
a black male wearing a black hooded jacket and black sweatpants.” SCO, at
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8. We find this assessment to be fairly accurate. The correlation between
Appellee and the description provided was neither exceptionally weak nor
exceptionally strong, although our view is that it tended toward the former.
Appellee’s race and clothing matched the description, as did his direction of
travel. However, no particularly unique characteristics were provided by the
Victim’s description, such as, for instance, the perpetrator’s height or
weight, whether he was a light- or dark-skinned black male, or whether he
had short or long hair.2 The Victim did not describe the presence or absence
of tattoos, scars, or any other physical markings. The clothing described
was accurate as to color, but wearing all-black clothing is not particularly
unique, and the style of the clothing described was very general.
Surprisingly, although the Victim told police that the perpetrator had a
beard, Officer Smith never mentioned whether Appellee had a beard.
Given this relatively general description, the heart of the suppression
court’s ruling was whether there was any corroboration that criminal activity
was afoot. Although dealing with an anonymous tip, the Hawkins Court
discussed the relationship between an accurate description and the evidence
of criminal conduct, as follows:
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2
Although the Victim described the perpetrator as wearing a hooded-jacket,
which could have made it difficult to identify certain features, the
information provided did not include whether the suspect was wearing the
hood over his head.
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If the police respond to an anonymous call that a particular
person at a specified location is engaged in criminal activity, and
upon arriving at the location see a person matching the
description but nothing more, they have no certain knowledge
except that the caller accurately described someone at a
particular location. As the United States Supreme Court
observed in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983), the fact that a suspect resembles the
anonymous caller's description does not corroborate allegations
of criminal conduct, for anyone can describe a person who is
standing in a particular location at the time of the anonymous
call. Something more is needed to corroborate the caller's
allegations of criminal conduct. The fact that the subject of the
call was alleged to be carrying a gun, of course, is merely
another allegation, and it supplies no reliability where there was
none before. And since there is no gun exception to the Terry
requirement for reasonable suspicion of criminal activity, in the
typical anonymous caller situation, the police will need an
independent basis to establish the requisite reasonable
suspicion.
Hawkins, 692 A.2d at 1070–71 (emphasis added).
Instantly, there was only a bald accusation that an attempt had been
made to break into the tipster’s vehicle. However, there is no evidence in
the record that the police verified the alleged criminal conduct by an
investigation of the vehicle, or even through further discussions with the
Victim. There was only the assertion that someone had attempted to break
into a car, and we have no information regarding what, if anything, was
stolen, or even whether the theft was interrupted. The chance of a prank
report is certainly lessened by the fact that the tipster was not anonymous in
this case. See Adams, 407 U.S. at 146-47 (recognizing greater reliability
from a known source as opposed to an anonymous one because there is a
lesser risk of a false complaint). However, there is no evidence in the record
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that the Victim in this case was previously known to the police, another
relevant factor concerning the reliability of known informants, as discussed
in Adams. Id. at 146. Moreover, because there was no corroboration of
criminal activity, it is also possible that the Victim was simply mistaken in his
observations. Such unintentional conduct is not deterred because the tip is
from a known person rather than an anonymous call.
Similarly, there was nothing about Appellee’s conduct or appearance
that corroborated the allegation of criminal conduct. Appellee was, by all
accounts, fully compliant with the police when stopped. Although his
direction of travel was consistent with the tip, Appellee was not observed to
be engaged in flight from the scene, nor were there any other observations
made by the police consistent with evasive behavior. Appellee was not
observed carrying any instruments of crime consistent with the intent or
ability to break into a vehicle. The suppression court concluded that, in the
totality of these circumstances, the police lacked reasonable suspicion to
stop Appellee.
We agree. Given the conflicting descriptions, the relatively generic,
revised description and, most importantly, the absence of any corroboration
of the alleged crime (which was not described with any degree of specificity
in the first instance), we agree that the police lacked reasonable suspicion to
stop Appellee.
The Commonwealth believes that a contrary result is compelled by
relevant case law. However, we conclude that the cases cited by the
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Commonwealth are distinguishable on both the facts and procedural
postures of those cases. For instance, in In re D.M., 727 A.2d 556, 558
(Pa. 1999), a juvenile defendant appealed an adverse ruling by a
suppression court, under the following facts:
[O]n June 6, 1995, at approximately 8:40 p.m., Officer Walter
Williams of the Philadelphia Police Department was on routine
patrol on the west end of 30th Street and Grays Ferry Avenue
when he received a radio call regarding several black males
involved in a robbery at 22nd and South Streets. The officer
responded to the call and immediately proceeded to the location
of the reported robbery. Approximately one or two minutes after
receiving the call, a short distance from the crime scene, the
officer observed appellant and three other black males walking
north “very quickly” on 22nd Street. They were the only
individuals in the vicinity. As the officer looked in the direction
of the four individuals, they immediately changed their direction.
The officer conducted an investigatory stop of appellant and his
companions.
Id. at 557.
Our Supreme Court affirmed the suppression court’s holding that the
police possessed reasonable suspicion to stop the juvenile defendant, D.M.
Notably, while the physical description provided in D.M. appears even more
general than in the instant case, it was buttressed by the fact that multiple
black males were observed committing the crime, and D.M. was found in the
presence of multiple other black males near the crime scene. However,
D.M. is also distinguishable, as is relevant to the instant case, because D.M.
and his cohorts were observed engaging in evasive behavior, walking “very
quickly” away from the crime scene, and changing direction when they saw
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the police, thereby corroborating the suspicion that they had recently been
engaged in criminal activity.
The Commonwealth further argues that Appellee’s failure to engage in
suspicious or unreasonable conduct does not “vitiate the reasonableness” of
Officer Smith’s actions, citing Commonwealth v. Prengle, 437 A.2d 992
(Pa. Super. 1981). Commonwealth’s Brief, at 12. In that case, an officer
received flash information that a burglary had just been committed at a tire
company, and that the suspect would be driving a truck loaded with tires
and bearing the logo of the tire company. Upon receiving that information,
the officer in Prengle drove to an exit ramp serving the area near the tire
company’s location, where he observed a truck, loaded with tires, and
bearing the logo of the tire company. The officer stopped the truck,
removed the driver, and patted him down for weapons before ultimately
arresting him. The Prengle Court affirmed the denial of Prengle’s motion to
suppress. Prengle argued that the stop was conducted without reasonable
suspicion, in part because he had not engaged in unusual conduct prior to
the pat-down. The Court rejected that claim, reasoning:
The police officer's failure to observe personally appellant
engaging in “unusual conduct” does not vitiate the
reasonableness of the officer's action in the instant case. The
facts known to the officer prior to the frisk in question show that
a crime of violence was reported, and, within minutes of the
reported crime, the officer saw a moving vehicle matching the
exact description of the stolen truck in the vicinity of the crime.
Under these circumstances, we will not ignore the probable
existence of danger and require that the officer first ask for
identification prior to conducting a protective frisk.
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Prengle, 437 A.2d at 994–95.
Unlike what occurred in Prengle, the observations made just prior to
detaining Appellee did nothing to corroborate the allegation of criminal
conduct in this case. Appellee met a very general description 3 which
included a direction of travel. By contrast, in Prengle, the identifying
information leading to the stop itself corroborated the alleged criminal
conduct, as Prengle was stopped while driving a vehicle which bore the logo
of the burglarized business, and which contained the stolen cargo. Thus, not
only was the vehicle description in Prengle significantly more precise than
the generalized description given in this instant case,4 it also corroborated
the alleged criminal conduct by its very nature. Here, however, Appellee
was not seen carrying any stolen items or instruments of crime, nor was he
observed behaving suspiciously so as to suggest a guilty mind. Thus,
Prengle does not support reversing the suppression order in this case.
The Commonwealth also relies on In the Interest of S.D., 633 A.2d
172 (Pa. Super. 1993), another case affirming the denial of a suppression
motion. In S.D., police received a report that two black males were armed
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3
Here, we afford the Commonwealth some leeway, as the Victim reported
that the perpetrator wore a beard, and there is no evidence of record that
Appellee matched that aspect of the provided description, despite it being a
rather unmistakable characteristic.
4
As noted above, the Prengle Court stated that the stopped vehicle was an
“exact” match to the description given in the flash police bulletin.
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and in possession of illegal narcotics at a specific location (which was also an
area known for drug trafficking). Soon thereafter, police found the
defendant and his cohort, both black males, standing exactly where
reported, at 5:25 a.m. In affirming the denial of suppression, this Court
emphasized that S.D. and his cohort were found exactly where described by
a known informant, in a high drug crime area, and at an unusual time.
Here, Appellee’s location was not nearly as specific (he was merely travelling
in the same direction as the report indicated), it was not an unusual hour
(approximately 11:20 p.m.), and there is there is nothing in the record
indicating that he was found in an isolated5 or high crime area. Moreover,
there is no indication that Appellee was the only person on the street that
evening. When asked if there were any other people on the street when
they stopped Appellee, Officer Smith stated “I can’t recall.” N.T., 5/8/15, at
19. Thus, S.D. is also inapposite.
Finally, the Commonwealth relies on Commonwealth v. Cruz, 21
A.3d 1247 (Pa. Super. 2011), another case where this Court affirmed the
denial of a suppression motion. In Cruz, “Philadelphia police received a
radio dispatch to be on the lookout for a ‘Hispanic male driving an older
model green, small vehicle.’” Id. at 1248. The report came from a known
victim, who had a gun pulled on her by the suspect. Within one minute of
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5
Indeed, the area surrounding the address of the reported theft appears to
be a densely populated, urban area in North Philadelphia.
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the flash bulletin, an officer observed a vehicle matching that provided by
the radio dispatch, stopped that vehicle, and the driver was soon thereafter
identified by the crime victim at the scene. While the Cruz case is not as
easily distinguished, we note that the vehicle description in that case was
more specific and/or unique than the description of Appellee in this case (the
officer in Cruz noted that Cruz’s vehicle immediately stood out), and
Appellee was stopped in this case a minimum of seven minutes after the
initial report, whereas the police stopped Cruz within a minute of receiving
the flash information.
Procedurally, too, these cases are distinguishable because they
affirmed the denial of suppression in a lower court, whereas here, the
suppression court granted suppression. The applicable legal standard is the
same: a court examines the totality of the circumstances to determine if
there is reasonable suspicion that criminal activity is afoot. However, it is
contrary to the applicable legal standard to check off particular facts in
establishing reasonable suspicion, as if such facts or circumstances should
be afforded equal weight in all circumstances and in all cases. Naturally,
individual courts will afford different weight to circumstances in any given
case as compared to another arising out of different conditions, above and
beyond the credibility assessments of the witnesses which will also vary
case-by-case. Thus, we must recognize the discretion of the suppression
court to afford certain facts different weights in the myriad of different
circumstances that occur in the real world because, otherwise, we would
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effectively be replacing a totality of the circumstances test with a bright-line
rule. Moreover, an appeal from an order granting suppression places the
burden of persuasion on the Commonwealth, whereas in the many cases
cited by the Commonwealth, the burden of persuasion on appeal was on the
defendant.
Given these considerations and the specific circumstances of this case,
we are simply not convinced that the suppression court erred in granting
Appellee’s suppression motion, as we ascertain no clear legal error in that
decision based on the relevant case law. Appellee only matched a general
description provided by the Victim. While Appellee was observed moving in
the general direction identified in the flash report, he was not located in an
isolated or high crime area. There was nothing otherwise unusual about him
walking in that area at that time of day, and nothing in the record
demonstrates that Appellee was alone on the street when found at least
seven minutes after the initial report.6 Moreover, nothing about Appellee’s
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6
See N.T., 5/18/15, at 18 (indicating that the initial report was dispatched
at 11:12 p.m., and that Appellee was stopped at 11:19 p.m.). Appellant
was located approximately one city block from the scene of the alleged
crime. However, it is common sense that, even moving at a leisurely pace,
the average person can cover far more ground in seven minutes than a
single city block. And this assumes, of course, that the victim called the
police while the crime was still in progress, and that the flash information
was instantaneously dispatched when received from the victim. However, it
is far more reasonable to assume that there was at least some delay
between the observation of the alleged criminal conduct by the Victim and
the time when dispatch was able to provide the initial flash report. Thus,
seven minutes is the bare minimum time that the perpetrator had to travel
(Footnote Continued Next Page)
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behavior indicated a guilty mind. He was not moving quickly or engaged in
outright flight, and he was fully cooperative with the police. Consequently,
in these circumstances, we conclude that the Commonwealth has not met its
burden to demonstrate a clear misapplication of the applicable law. Thus,
we affirm the lower court’s order granting Appellee’s suppression motion.
Order affirmed.
Judge Panella joins this memorandum.
President Judge Emeritus Stevens files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2016
_______________________
(Footnote Continued)
away from the scene of the crime. Consequently, Appellee’s proximity to
the scene of the crime when stopped by Officer Smith is not particularly
suspicious, especially given the time of day and the fact that this was an
urban environment. In Cruz, by contrast, the time elapsed between the
initial bulletin and the police’s observation of Cruz’s vehicle was only one
minute.
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