J-A12002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
TERRELL LARON WALKER, DAMAIRE
WALLACE, QUASHAAD RODNEY JAMES
AND MAURICE TOWNER, JR.,
Appellees No. 2299 EDA 2015
Appeal from the Order Entered June 30, 2015
In the Court of Common Pleas of Bucks County
Family Court at No(s):
CP-09-CR-0000100-2105
CP-09-CR-0000101-2015
CP-09-CR-0000102-2015
CP-09-CR-0000103-2015
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 20, 2018
The Commonwealth appeals from the consolidated order granting
suppression of physical evidence seized in the cases of four codefendants,
Terrell Laron Walker (100-2015), Damaire Wallace (101-2015), Quashaad
Rodney James (102-2015), and Maurice Towner, Jr. (103-2015) (collectively
hereinafter, “Appellees”). After careful review, we affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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The Commonwealth charged Appellees at separate dockets with
numerous offenses related to an armed robbery that occurred on the morning
of October 26, 2014, at the Glen Hollow Apartments on Newportville Road in
Bristol Township, Pennsylvania. Appellees filed suppression motions on March
6, 2015, and a suppression hearing was held on March 20, 2015.1 The
suppression court granted Appellees’ motions to suppress by order dated June
30, 2015. The Commonwealth filed the instant, timely appeal on July 27,
2015. The Commonwealth then filed a timely, court-ordered Pa.R.A.P.
1925(b) statement on August 20, 2015. The suppression court issued its Rule
1925(a) opinion on September 28, 2015.
On August 26, 2015, this Court issued a per curiam order to show cause
why this appeal should not be quashed, as the Commonwealth failed to file
separate appeals for each Appellee. The Commonwealth filed a timely
response on September 4, 2015. By per curiam order dated October 1, 2015,
in consideration of the order to show cause and the Commonwealth’s response
thereto, this Court deferred the decision whether to quash this appeal to the
argument panel.
On September 30, 2016, this Court issued a memorandum quashing the
Commonwealth’s appeal on the basis that the Commonwealth had failed to
file separate appeals for each appellee. See Commonwealth v. Walker,
____________________________________________
1The trial court does not indicate whether separate motions were filed by each
Appellee. However, the dockets of Appellees’ individual cases reveal that
separate, individual motions were filed, which were addressed at a
consolidated suppression hearing.
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2016 WL 5845208 (Pa. Super 2016) (unpublished memorandum). The
Commonwealth filed a timely petition for allowance of appeal to our Supreme
Court, which the Court granted by order dated July 24, 2017. See
Commonwealth v. Walker, 158 A.3d 192 (Pa. 2017) (granting petition of
allowance of appeal). In an opinion dated June 1, 2018, our Supreme Court,
although agreeing with this Court’s analysis that separate appeals were
required, nevertheless vacated our disposition to quash the Commonwealth’s
appeal under the specific circumstances of this case. See Commonwealth
v. Walker, 2018 WL 2448643 (Pa. June 1, 2018) (“While we do not quash
the present appeal in this instance, in future cases [Pa.R.A.P.] 341(a) will, in
accordance with its Official Note, require that when a single order resolves
issues arising on more than one lower court docket, separate notices of appeal
must be filed. The failure to do so will result in quashal of the appeal.”).
Accordingly, the Supreme Court remanded to this Court for a decision on the
merits, which we address as follows.
The Commonwealth presents the following question for our review: “Did
the Suppression Court err in granting suppression where the police possessed
reasonable suspicion to stop Appellees’ vehicle based on the totality of the
circumstances?” Commonwealth’s Brief, at 4.2
____________________________________________
2 We note that the Commonwealth raised two separate and distinct claims in
its Rule 1925(b) statement. The Commonwealth’s statement of the question
involved mirrors the first claim presented in its Rule 1925(a) statement.
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Our standard of review in addressing a challenge to the
suppression court's granting of a suppression motion is well
settled.
When the Commonwealth appeals from a suppression order,
we follow a clearly defined standard of review and consider
only the evidence from the defendant's witnesses together
with the evidence of the prosecution that, when read in the
context of the entire record, remains uncontradicted. The
suppression court's findings of fact bind an appellate court
if the record supports those findings. The suppression
court's conclusions of law, however, are not binding on an
appellate court, whose duty is to determine if the
suppression court properly applied the law to the facts.
Commonwealth v. Miller, 56 A.3d 1276, 1278–1279 (Pa. Super.
2012) (citations omitted). “Our standard of review is restricted to
establishing whether the record supports the suppression court's
factual findings; however, we maintain de novo review over the
suppression court's legal conclusions.” Commonwealth v.
Brown, 606 Pa. 198, 996 A.2d 473, 476 (2010) (citation
omitted).
Commonwealth v. Korn, 139 A.3d 249, 252–53 (Pa. Super. 2016), appeal
denied, 159 A.3d 933 (Pa. 2016).
We begin our analysis with a review of the suppression court’s factual
findings, adduced from the March 20, 2015 suppression hearing, which the
court provided as follows:
1. Officer Dennis Leighton is a police officer with the Bristol
Township Police Department and has been so employed for 12
years. N.T.[,] 03/30/15, p. 20.
2. On October 25, 2014, Officer Leighton was on patrol in a
marked police vehicle and received information broadcasted by
Officer Sarcewicz that police were looking for a dark-colored
____________________________________________
However, the Commonwealth has abandoned the second issue it raised in its
Rule 1925(b) statement in light of the suppression court’s Rule 1925(a)
opinion. See Commonwealth’s Brief at 26 n.1.
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Nissan Murano with "possibly four black males in the vehicle."
N.T.[,] 03/30/15, pp. 20-21.
3. Police were looking for the Nissan Murano because the
occupants of the vehicle were suspects in an armed robbery at
Glen Hollow apartments. N.T.[,] 03/30/15, pp. 20-21.
4. There was no license number transmitted by the dispatcher.
N.T.[,] 03/30/15, p. 45.
5. There was no description of the occupants other than "four
black guys." No physical description, age or article of clothing was
provided. N.T.[,] 03/30/15, p. 46.
6. Forty-five minutes after receiving the radio call and while
stopped at a red traffic light at the intersection of Lakeland Avenue
and Bristol Oxford Valley Road, Officer Leighton observed what he
believed to be a Nissan Murano making a left-hand turn onto
Lakeland Avenue directly in front of his headlights. N.T.[,]
03/30/15, pp. 46-47.
7. The intersection of Lakeland Avenue and Bristol Oxford Valley
Road is located within four to five miles of Glen Hollow
apartments. N.T.[,] 03/30/15, pp.46-47.
8. Officer Leighton believed that the vehicle he observed matched
the broadcasted description of the Nissan Murano and contained
at least three black male occupants. N.T.[,] 03/30/15, p. 22.
9. After passing in front of Officer Leighton's car, the vehicle began
to accelerate. N.T.[,] 03/30/15, p. 22.
10. Officer Leighton made a U-turn and began to try and catch up
with the vehicle as it travelled on Lakeland Avenue. N.T.[,]
03/30/15, pp. 22-24.
11. The vehicle illuminated its left-hand turn signal, then
immediately put on a right–hand turn signal, then illuminated its
left-hand turn signal again. When the vehicle reached the
intersection of Lakeland Avenue and Forster Avenue, it began to
make a right turn as the driver activated the right-hand turn
signal. N.T.[,] 03/30/15, p. 25.
12. Officer Leighton was then able to call out the registration plate
over the radio, and then activated his overhead lights while he
was making the turn to follow the vehicle. N.T.[,] 03/30/15, p.
25. The display registration of the vehicle was JHA 7563. N.T.[,]
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03/30/15, p. 61. The vehicle was not registered to any of the
defendants. N.T.[,] 03/30/15, pp. 61-62.
13. While on Foster Avenue, the vehicle accelerated slightly into a
left-hand turn onto Colonial Avenue. N.T.[,] 03/30/15, p. 26.
14. The vehicle traveled on Colonial Avenue, 25 to 30 yards and
then pulled to the driver's side curb. N.T.[,] 03/30/15, p. 26.
15. The operator of the vehicle was not cited for any motor vehicle
violation. N.T.[,] 03/30/14, pp. 64-65.
16. Officer Leighton pulled up behind the vehicle and exited his
police vehicle. Officer Leighton observed that the driver was
paying close attention to what was going on behind him and the
other occupants of the vehicle were dipping their shoulders.
N.T.[,] 03/30/15, pp. 26-28.
17. As Officer Leighton waited for other officers to arrive, he stood
outside his driver's side door approximately a car-length and a
half from the stopped vehicle. Other officers were already in route
to his location and arrived in seconds. N.T.[,] 03/30/15, pp. 28-
29.
18. By this point, Officer Leighton identified the vehicle as a gray
Ford product. N.T.[,] 03/30/15, pp. 29, 69.
19. Officer Leighton was unable to recall when he determined the
vehicle was a Ford Escape. N.T.[,] 03/30/15, p. 37. However,
the word "Escape" was on the rear hatch of defendant's vehicle.
N.T.[,] 03/30/15, p. 40.
20. The driver complied with the officers' request to remove the
keys from the ignition and drop them outside the driver's side
window. The driver continued to comply with the officers by
reaching out the window with both hands, opening the door from
the outside, and exiting the vehicle, facing away from the officers.
N.T.[,] 03/30/15, p. 30.
21. The driver walked backwards toward the officers until Officer
Leighton asked him to stop and place his hands on the back of his
head. Officer Leighton then handcuffed the driver and advised him
that he was not under arrest at this time. N.T.[,] 03/30/15, pp.
30-31.
22. Officers then removed the other three occupants from the
vehicle and handcuffed them in a similar fashion, advising all that
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they were not under arrest at this time. N.T.[,] 03/30/15, pp. 31-
34.
23. Roughly ten to twenty minutes after the vehicle stop, Officer
Sarcewicz arrived at the scene to do a victim identification. N.T.[,]
03/30/15, p. 38.
24. The occupants of the vehicle were removed from the police
vehicles for the identification and then seated back into police
vehicles. N.T.[,] 03/30/15, p. 36.
25. The vehicle was secured as evidence and towed back to the
Bristol Township Police Department. N.T.[,] 03/30/15, p. 35.
26. A subsequent search of the Ford Escape resulted in a seizure
of various items alleged to have been related to the robbery at
Glen Hollow Apartments.
Suppression Court Opinion (“SCO”), 9/28/15, at 2-4.
Based on these facts, the suppression court determined that Officer
Leighton lacked reasonable suspicion to stop the vehicle. Id. at 7, 9. The
Commonwealth argues that, inter alia, Officer Leighton possessed reasonable
suspicion to stop Appellees’ vehicle based on similarities between it and the
information he received immediately following the robbery. We disagree.
While warrantless seizures such as a vehicle stop are
generally prohibited, they are permissible if they fall within one of
a few well-delineated exceptions. Commonwealth v. Chase, …
960 A.2d 108, 112–13 ([Pa.] 2008). One such exception allows
police officers to detain individuals for a brief investigation when
they possess reasonable suspicion that criminal activity is afoot.
Commonwealth v. Strickler, … 757 A.2d 884, 889 ([Pa.] 2000);
Terry [v. Ohio], 392 U.S. [1,] 30 [(1968)]. Reasonable suspicion
is a less stringent standard than probable cause necessary to
effectuate a warrantless arrest, and depends on the information
possessed by police and its degree of reliability in the totality of
the circumstances. In order to justify the seizure, a police officer
must be able to point to “specific and articulable facts” leading
him to suspect criminal activity is afoot. [Commonwealth v.]
Melendez, 676 A.2d [226,] 228 [(Pa. 1996)] (citing Terry, [392
U.S.] at 21…). In assessing the totality of the circumstances,
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courts must also afford due weight to the specific, reasonable
inferences drawn from the facts in light of the officer's experience
and acknowledge that innocent facts, when considered
collectively, may permit the investigative detention.
Commonwealth v. Brown, 996 A.2d 473, 476–77 (Pa. 2010).
Furthermore, 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 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.” In such cases, the factors that must be considered in
justifying an investigatory stop and subsequent frisk include the
specificity of the description of the suspect in conjunction with how
well the suspect fits the given description, the proximity of the
crime to the sighting of the suspect, the time and place of the
confrontation, and the nature of the offense reported to have been
committed.
Commonwealth v. Jackson, 519 A.2d 427, 430 (Pa. Super. 1986) (citations
omitted).
Here, the suppression court determined that Officer Leighton’s “personal
observations cannot be said to correspond to the facts communicated by the
radio bulletin” broadcast by Officer Sarcewicz. SCO at 8. As noted, supra,
Officer Leighton was looking for a dark-colored Nissan Murano with four
African American occupants. He stopped a “silver/grey Ford Escape”, with
what he believed to be three African American occupants.3 Id. at 7.
Moreover, the suppression court opined that:
____________________________________________
3 Officer Leighton did not observe the fourth occupant until after the seizure
in question occurred.
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[T]he time and distance between the robbery at Glen Hollow
Apartments and the investigatory stop by Officer Leighton strike
against the existence of any reasonable suspicion. The stop
occurred forty-five minutes after the robbery, approximately four
to five miles away from the apartment complex. Considered
alongside the fact that none of Officer Leighton's personal
observations aligned with the information communicated over
police radio, it is doubtful that the Officer possessed any specific
and articulable facts that warranted the intrusion of Appellees'
vehicle. Simply put, the situation presented to the Officer
involved an incorrect model vehicle, that was an incorrect color
and was occupied by a seemingly incorrect number of passengers,
that he observed obeying all traffic laws nearly five miles from the
location of a robbery that occurred forty-five minutes prior.
Pennsylvania law requires more before an investigatory stop can
be justified.
Id. at 9.
Regarding the vehicle’s description, the Commonwealth argues that:
Officer Leighton saw a vehicle which was similar to the vehicle
description that he received. The description that Officer Leighton
has was that he was looking for a dark-colored SUV, possibly a
Nissan Murano. As he was sitting at the intersection, he saw a
dark-colored SUV pass in front of him which he believed to be a
Nissan Murano. As it was nighttime, he believed the SUV to be
blue, which is a dark color, but later found out that the color was
in fact dark gray. Whether the SUV was blue or dark gray, the
notable information is that he was looking for a dark-colored
SUV—a description which the SUV Officer Leighton pulled over fit.
Commonwealth’s Brief at 22-23.
Presently, the Commonwealth appears to be simply contradicting the
factual findings of the suppression court, which determined that the vehicle
stopped by the Officer neither matched nor substantially matched the
description of the vehicle he was looking for. We may not substitute one
party’s version of the facts for the suppression court’s where the suppression
court’s version is adequately supported by the record. See Korn, supra.
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Here, the Commonwealth fails to demonstrate, by explicit reference to the
record from the suppression hearing, how or why the trial court’s version lacks
support in the record. To the contrary, we conclude that the trial court’s
version is supported by the record, as was demonstrated by the court’s
detailed summation of the facts with direct references to the portion of the
suppression hearing from which they were surmised.
Furthermore, common experience tells us that, in general, many
passenger vehicles on the road share similar body styles and sizes. However,
to justify a Terry stop of a vehicle based on a description over a police bulletin,
an officer must provide specific and articulable facts that the vehicle
actually matches, or at least substantially matches, the description provided.
Here, Officer Leighton got all the specifics wrong: the make, the model, and
the color of the vehicle, as well as the observed number of occupants. These
differences are exacerbated by the fact that Appellees were not stopped within
close temporal or spatial proximity to the robbery. The Commonwealth also
seems to suggest that darkness justified the officer’s lack of precision. This
argument is specious, and merely emphasizes the unreliability of the officer’s
observations in the circumstances of this case.
The Commonwealth references only two cases in support of its
arguments, Commonwealth v. Berrios, 263 A.2d 342 (Pa. 1970), and U.S.
v. Jaquez, 421 F.3d 338 (5th Cir. 2005), presumably because those cases
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were addressed by the suppression court in its opinion.4 We agree with the
Commonwealth that Berrios is not instructive in this matter as it involved
both factual and legal circumstances that were substantially different from the
instant matter.5 However, we disagree with the Commonwealth’s assertion
that Jaquez does not provide any persuasive support for the suppression
court’s reasoning in this case.6
In Jaquez,
Abilene Police Officer Jennifer Holderead was on patrol when she
received a call on her police radio that gun shots had been fired
in the area of 10th and Pine Streets in Abilene, Texas, a high crime
area. The dispatcher indicated only that “a red vehicle” was
involved in the incident.
Some 15 minutes later, Holderead observed a red car
traveling away from the area where the shots were reported to
have been fired. She stopped the car and told the driver, Jaquez,
that she had pulled him over because his car matched the
description of a vehicle involved in a report of gun fire in the area.
…
The facts are undisputed that at the time she pulled Jaquez
over, Holderead knew only that “a red vehicle” had been involved
____________________________________________
4 These cases were, apparently, cited by Appellees below, and the suppression
court found them to instructive in its opinion. See SCO at 8-9. In its brief,
the Commonwealth seeks to distinguish those cases from the facts of the
instant case.
5 Berrios concerned two individuals stopped on a street, absent any prior
complaint and, therefore, did not involve a search for a vehicle based on a
police bulletin. See Berrios, 263 A.2d at 343. Additionally, the Berrios Court
analyzed that police/citizen encounter as a Terry search, not a Terry seizure.
Id.
6 We recognize that Jaquez is not binding on the courts of this
Commonwealth. However, because the suppression court cited Jaquez for
its persuasive value, we will consider it for the same.
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in a reported incident approximately 15 minutes earlier, in the
same general area where she first spotted the car. Except for its
color, she did not have any particular information about the
vehicle, such as its make or model, or any description of its
occupant(s).
Jaquez, 421 F.3d at 340-41. Consequently, the 5th Circuit held that the
“sparse and broadly generic information provided by the dispatcher, without
more, was insufficient to support a determination of reasonable suspicion, as
required under Terry.” Id. at 341.
Instantly, the Commonwealth is correct that the dispatcher in this case
provided a more detailed description of the vehicle and its occupants than was
present in Jaquez. However, that is not determinative of whether Officer
Leighton possessed reasonable suspicion to stop Appellees’ vehicle. In
Jaquez, the officer stopped a vehicle that actually matched the vague
description provided by the dispatcher. Here, Officer Leighton stopped a
vehicle that did not match the description provided by the dispatcher with
respect to the make, model, and color of the vehicle, and also with respect to
the number of occupants he initially observed therein. Thus, the additional
detail provided in this case is offset by the failure of the officer to stop a
matching vehicle.
Moreover, while Officer Holderead stopped Jaquez travelling away from
the reported gunshots a mere fifteen minutes after they were reported, in this
case, Officer Leighton stopped Appellees forty-five minutes after the
dispatcher provided a description, and several miles away from the scene of
the crime. Thus, for every additional detail providing support for a Terry stop
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in this case, as compared to Jaquez, there were at least as many
countervailing factors suggesting that a Terry stop was not justified.
We conclude, therefore, as follows: First, the record supports the facts
cited by the suppression court. Second, we ascertain no legal error in the
suppression court’s application of those facts to the pertinent law.
Accordingly, the Commonwealth’s claim lacks merit.
Order affirmed.
Judge Panella joins this memorandum.
President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/18
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