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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MICHAEL J. PEIFER : No. 607 EDA 2018
Appeal from the Order January 29, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): MC-51-CR-0019450-2017
BEFORE: OTT, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 16, 2019
The Commonwealth appeals from the order entered by the Court of
Common Pleas of Philadelphia County, denying relief from an order of the
Philadelphia Municipal Court that granted the suppression motion filed by
Appellee Michael J. Peifer. After careful review, we conclude that the lower
court erred in finding that the arresting officer did not have reasonable
suspicion to detain Appellee. Accordingly, we reverse and remand for further
proceedings.
On July 1, 2017, at approximately 8:40 p.m., Philadelphia Police Officer
Anthony Rosselli received a radio dispatch reporting a burglary in progress,
describing the suspect as a white male without a shirt, and indicating the
suspect left the scene in a dark SUV with the license plate number SXM-3794.
Officer Rosselli indicated that the tip was verified by a “complainant on the
job.” N.T. 10/19/17, at 7.
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* Former Justice specially assigned to the Superior Court.
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Between five and ten minutes later, Officer Rosselli spotted a dark SUV
with a license plate of FXM-3794, which matched the tip information except
for the first letter. Officer Rosselli observed Appellee, a shirtless white male,
step out of the driver’s side of the SUV, which was parked three or four blocks
away from the reported burglary with the engine still running and the
headlights on. After approaching Appellee, Officer Rosselli suspected Appellee
was intoxicated as he smelled alcohol on Appellee’s breath and noticed
Appellee was unsteady on his feet. Officer Rosselli arrested Appellee for DUI.
Thereafter, Appellee filed a suppression motion in the Philadelphia
Municipal Court, asserting that Officer Rosselli did not have reasonable
suspicion to stop him. After a suppression hearing, the Honorable Karen
Yvette Simmons of the Philadelphia Municipal Court granted Appellee’s
motion. The Commonwealth appealed this decision.
On January 29, 2018, the Honorable Shanese I. Johnson of the Court of
Common Pleas denied the Commonwealth’s appeal and affirmed the municipal
court’s suppression order. The trial court concluded that Officer Rosselli did
not have reasonable suspicion to stop Appellee as he relied on a tip that was
“unverified” and could not corroborate the tip with any independent evidence
of Appellee’s involvement in criminal activity. Trial Court Opinion, 5/23/18,
at 2, 5. The Commonwealth filed this timely appeal.1
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1 The Commonwealth properly certified in its notice of appeal that the
suppression order “will terminate or substantially handicap the prosecution.”
See Pa.R.A.P. 311(d).
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The Commonwealth raises one issue for our review:
Where police stopped [Appellee] just ten minutes after receiving
a report from a known citizen that a man matching [Appellee’s]
description had just committed a burglary and then drove away in
a car similar to [Appellee’s] car, did the lower court err in ruling
that the police did not have reasonable suspicion for an
investigatory stop?
Commonwealth’s brief, at 4.2
When reviewing an appeal of a trial court’s order granting a defendant’s
motion to suppress evidence, we are guided by the following standard:
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. Petty, 157 A.3d 953, 955 (Pa.Super. 2017).
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2 We note that the Commonwealth never challenged the trial court’s finding
that Officer Rosselli’s initial encounter with Appellee constituted an
investigatory detention under the Fourth Amendment. Thus, we cannot
review this issue and will limit our analysis to assess whether Officer Rosselli
had reasonable suspicion to conduct an investigatory detention.
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This Court has held that “[t]he question of whether reasonable suspicion
existed at the time of an investigatory detention must be answered by
examining the totality of the circumstances to determine whether there was a
particularized and objective basis for suspecting the individual stopped of
criminal activity.” Commonwealth v. Cottman, 764 A.2d 595, 598-99
(Pa.Super. 2000) (citation omitted).
Reasonable suspicion exists only where the officer is able to
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. 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 intrusion warrant a
[person] of reasonable caution in the belief that the action taken
was appropriate.
Commonwealth v. Goldsborough, 31 A.3d 299, 306 (Pa.Super. 2011).
In our determination of whether there was reasonable suspicion to
justify the stop in this case, we note that “[p]olice are justified in stopping a
vehicle when relying on information transmitted by a valid police bulletin. …
[E]ven where the officer who performs the stop does not have reasonable
suspicion, the stop is nonetheless valid if the radio officer requesting the stop
has reasonable suspicion.” Commonwealth v. Cruz, 21 A.3d 1247, 1250
(Pa.Super. 2011) (citing In re D.M., 556 Pa. 160, 164, 727 A.2d 556, 558
(1999); Commonwealth v. Jackson, 548 Pa. 484, 490 n. 3, 698 A.2d 571,
574 n. 3 (1997)).
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Moreover, in assessing whether there is reasonable suspicion to detain
an individual, police officers need not personally observe the individual
engaging in criminal or suspicious behavior, but may also rely on information
provided by third parties. As the trial court correctly observed, “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).
However, “[i]nformation from a known source that police have
corroborated can give rise to reasonable suspicion sufficient to warrant an
investigative detention.” Commonwealth v. Butler, 194 A.3d 145, 149
(Pa.Super. 2018) (quoting Commonwealth v. Brown, 606 Pa. 198, 996 A.2d
473, 479 (2010)). This Court has further explained this distinction:
When the underlying source of the officer's
information is an anonymous call, the tip should be
treated with particular suspicion. However, a tip from
an informer known to the police may carry enough
indicia or reliability for the police to conduct an
investigatory stop, even though the same tip from an
anonymous informant would likely not have done so.
[Commonwealth v. Lohr, 715 A.2d 459, 461-62 (Pa.Super.
1998)] (quotation and citations omitted). Indeed, identified
citizens who report their observations of criminal activity to police
are assumed to be trustworthy, in the absence of special
circumstances, since a known informant places himself at risk of
prosecution for filing a false claim if the tip is untrue, whereas an
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unknown informant faces no such risk. Commonwealth v.
George, 878 A.2d 881 (Pa.Super.2005); Lohr, supra.
When an identified third party provides information to
the police, we must examine the specificity and
reliability of the information provided. The information
supplied by the informant must be specific enough to
support reasonable suspicion that criminal activity is
occurring. To determine whether the information
provided is sufficient, we assess the information under
the totality of the circumstances. The informer’s
reliability, veracity, and basis of knowledge are all
relevant factors in this analysis.
Commonwealth v. Korenkiewicz, 743 A.2d 958, 964 (Pa.Super
1999) (en banc) (citations omitted).
Commonwealth v. Barber, 889 A.2d 587, 593-94 (Pa.Super. 2005).
In this case, the record does not support the trial court’s finding that
Officer Rosselli relied on an anonymous tip. Rather, Officer Rosselli explained
that he stopped Appellee based on a “verified” tip, in which flash information
was provided by another officer who had responded to the burglary, spoken
to the victim, and relayed the complainant’s description of the suspect.3 N.T.
10/19/17, at 7. Based on these facts, we note that the specific information
provided by the informant could be deemed to have heightened reliability
because the victim, who was known to police, risked prosecution for false
information.4 In addition, we note that his Court has regarded information
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3“A flash information is based on a report from the initial officers to investigate
the scene of a crime and is broadcast to other police units in the district.”
Commonwealth v. Jackson, 519 A.2d 427, 431 (Pa.Super. 1986).
4 We note that the prosecutor could have developed the record to further
clarify on what basis Officer Rosselli had reason to believe the tip was from a
known informant.
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coming from the actual crime victim as meriting a high degree of reliability.
Cruz, 21 A.3d at 1251 (citing In re D.M., 556 Pa. at 165, 727 A.2d at 558).
Moreover, when viewing the totality of the circumstances, we cannot
agree with the trial court’s conclusion that Officer Rosselli did not have
reasonable suspicion to detain Appellee. The known informant in this case
was able to provide a detailed physical description of the burglar as a shirtless
white male who fled the crime scene in a dark SUV with the license plate
number SXM-3794. Between five and ten minutes after receiving the flash
report, Officer Rosselli observed Appellee, who matched the description given
by the victim, present at a location just three or four blocks away from the
reported burglary.
For the foregoing reasons, we find the lower court erred in granting
Appellee’s suppression motion. Therefore, we reverse the trial court’s order
affirming the municipal court’s decision to suppress the evidence in this case.
We remand for further proceedings consistent with the decision in this case.
Order reversed. Remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/19
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