Commonwealth v. Cotton

740 A.2d 258, 1999 Pa. Super. 253, 1999 Pa. Super. LEXIS 3424

• Court: Superior Court of Pennsylvania
• Decided: October 12, 1999
• Status: Published

Opinions

CERCONE, President Judge Emeritus:

¶ 1 Appellant Kymmar Cotton appeals from the judgment of sentence of eighteen months probation imposed after his conviction for the offenses of carrying a loaded firearm without a license and carrying a loaded firearm on the streets of Philadelphia.¹ We affirm.

¶ 2 The Suppression Court has aptly summarized the facts surrounding Appellant’s arrest which were adduced at his suppression hearing held July 17, 1997:

On January 22, 1997, at approximately 6:49 p.m., Philadelphia Police Officer Gary Harrison and his partner were in plainclothes, driving an unmarked vehicle in the 6600 block of Ardleigh Street in Philadelphia. While stopped at the corner of Johnson and Ardleigh Streets, Officer Harrison observed a black Acura Vigor operated by the [Appellant], run through a stop sign while traveling north on Ardleigh Street. (N.T. 7/l[7]/97 p. 5).

At this time, Officer Harrison signaled the car with his lights and siren to pull to the side of the road. (N.T. 7/l[7]/97 p. 6). In addition to the driver, there was another passenger in the car. A uniform (sic) officer was called to the scene. Officer Harrison approached the car and asked the [Appellant], the driver, to produce his license, vehicle registration, and insurance identification. [Appellant] identified himself by name and handed over paperwork for the vehicle. (N.T. 7/l[7]/97 p. 7).

Before asking the [Appellant] to step out of the car, Officer Harrison ran [Appellant’s] name and birth date through the N.C.I.C. ¹ database which reported that [Appellant] had two outstanding bench warrants. At this point, Officer Harrison and his partner asked [Appellant] to step out of the car and placed him under arrest. During a search incident to that arrest, a Lorcin .25 caliber semiautomatic pistol loaded with 7 live rounds was recovered from [Appellant’s] coat pocket. (N.T. 7/l[7]/97 p. 8).

Suppression Court Opinion, filed 1/13/98 at 1-2 (footnote in original).

¶ 3 Appellant waived his right to a jury trial. The next day he was convicted by The Honorable Lynn B. Hamlin Jr. of the aforementioned offenses and given the above referenced sentences. On August 1, 1997 Appellant filed this timely appeal.²

¶ 4 On appeal to our Court Appellant presents one issue for our consideration:

[I.] Did not the lower court err in denying a Motion to Suppress physical evidence illegally seized from appellant where appellant, the driver of a motor vehicle, was stopped for a traffic violation by a non uniformed police officer who lacked legal authority to initiate such a stop, and where the Commonwealth failed to introduce sufficient evidence at the motion to suppress to establish probable cause for appellant’s arrest, presenting only the arresting officer’s reliance on hearsay information gathered from a National Crime Information Center radio report that appellant was wanted on two bench warrants, warrants that were neither produced in court nor proven to be valid through competent testimony, in violation of appellants rights under Article 1, § 8 of the Pennsylvania Constitution and the Fourth and Fourteenth Amendments to the United States Constitution.

Appellant’s Brief at 3.

¶ 5 We have stated, in prior cases, our standard of review for the denial of a suppression motion as follows:

When we review the ruling of a suppression court, we must determine whether its factual findings are supported by the record. Where the [appellant] challenges an adverse ruling of the suppression court, we will consider only the evidence for the prosecution and whatever evidence for the defense which is uncontradicted on the record as a whole; if there is support on the record, we are bound by the facts as found by the suppression court, and we may reverse that court only if the legal conclusions drawn from those facts are erroneous.

Commonwealth v. Roman, 714 A.2d 440, 442 (Pa.Super.1998); Commonwealth v. Perry, 710 A.2d 1183, 1184 (Pa.Super.1998). Moreover, as factfinder, it is within the suppression court’s sole province to pass on the credibility of witnesses and the weight to be accorded their testimony. Commonwealth v. Benton, 440 Pa.Super. 441, 655 A.2d 1030, 1032 (1995). The factfinder is free to believe all, some, or none of the evidence presented. Id.

¶ 6 Appellant first argues that Officer Harrison and his partner had no authority to stop him for disregarding a stop sign because they were out of uniform in an unmarked car. Appellant asserts that “[t]he Motor Vehicle Code of Pennsylvania expressly limits the authority to enforce the Motor Vehicle Code to those police officers who are ⅛ uniform’.” Appellant’s Brief at 10. We do not interpret the relevant Motor Vehicle Code provision which authorizes a police officer to make an investigative traffic stop so restrictively.

Section 6308(b) of the Motor Vehicle Code provides:

(b) Authority of police officer.— Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.

75 Pa.C.S.A. § 6308(b) (emphasis supplied).

¶7 Nowhere in the plain language of this statutory section does a requirement appear that a police officer be in uniform to effectuate a traffic stop. It is axiomatic that “[w]hen interpreting a statute words must be given their plain meaning, unless doing so would create an ambiguity, and we must interpret statutes in accordance with the legislative intent.” MacAleer v. MacAleer, 725 A.2d 829, 832 (Pa.Super.1999). See also 1 Pa.C.S. § 1921(a) (stating that when interpreting and construing statutes, the object must be to “ascertain and effectuate the intention of the General Assembly”). Moreover, it is not within the province of an appellate court to add words to a statute where the legislature failed to supply them. Guinn v. Alburtis Fire Company, 531 Pa. 500, 503, 614 A.2d 218, 220 (1992). We see no reason to impose such a requirement in the absence of a legislative mandate to do so.

¶ 8 There is no dispute that Officer Harrison and his partner were on duty City of Philadelphia Police Officers, who were acting within the scope of their jurisdiction, when they observed Appellant proceed through the intersection without stopping at the stop sign. Thus, they were unquestionably police officers within the meaning of 75 Pa.C.S.A. § 6308. See Commonwealth v. Frombach, 420 Pa.Super. 498, 617 A.2d 15, 19 (1992) (“Traditional police are government employees empowered by statute to enforce all Commonwealth laws[.] Today traditional police in Pennsylvania include state police, municipal police, township police, borough police and county district attorney’s detectives”). Officer Harrison and his partner therefore lawfully stopped Appellant’s vehicle to investigate the vehicle code violation which they observed. Commonwealth v. Steinmetz, 440 Pa.Super. 591, 656 A.2d 527, 528 (1995) (“An officer may conduct a lawful traffic stop if he or she reasonably believes that a provision of the Motor Vehicle Code has been violated.”) See also Commonwealth v. Gommer, 445 Pa.Super. 571, 665 A.2d 1269 (1995), appeal denied, 546 Pa. 676, 686 A.2d 1308 (1996) (off duty state police officer, though not in uniform, had authority to stop vehicle when she had a reasonable and articulable basis to suspect that the driver was intoxicated.)³

¶ 9 Appellant next argues that his arrest by the two officers due to the existence of the outstanding bench warrants was invalid because the Commonwealth did not produce the warrants at his suppression hearing. Appellant asserts that because .the Commonwealth failed to produce the warrants, the Commonwealth therefore did not satisfy its burden of demonstrating probable cause to justify Appellant’s arrest. We cannot agree.

¶ 10 Appellant relies on three cases to support his argument. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) and Commonwealth v. Queen, 536 Pa. 315, 639 A.2d 443 (1994).

¶ 11 In Whiteley the appellant was arrested by a police officer m the town of Laramie, Wyoming who was acting on a radio bulletin which named the appellant as an individual who had participated in the robbery of a number of businesses in another Wyoming county, Carbon County. This radio bulletin was issued after the sheriff of Carbon County had obtained an arrest warrant for appellant and his accomplice from a justice of the peace in Carbon County. The Laramie Police Officer who arrested the appellant relied solely on the radio bulletin to effectuate the arrest.

1112 The Supreme Court however, held that the arrest warrant, which was the subject of the radio bulletin, was not supported by probable cause because the sheriff did not set forth enough operative facts in his complaint to justify the arrest warrant being issued. The Court ruled that, as a consequence, the arrest of the appellant in reliance on the radio bulletin about this defective warrant was invalid as a violation of appellant’s constitutional rights under the Fourth and Fourteenth Amendments of the United States Constitution. The Court also rejected the argument that the arrest was valid because the arresting officer reasonably assumed that whoever issued the bulletin had probable cause to direct appellant’s arrest. The Court said:

We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. "Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.

Id. 401 U.S. at 568, 91 S.Ct. at 1037, 28 L.Ed.2d. at 313.

¶ 13 In Hensley the Supreme Court ruled that an investigatory stop made by a police department, based on a police radio flyer or bulletin issued by another police department, is justified if the flyer or bulletin was based on articulable facts supporting a reasonable suspicion that the wanted person in the flyer committed an offense. The Court said:

[I]f a police flyer or bulletin has been issued on the basis of articulable facts supporting a reasonable suspicion that the wanted person has committed an offense then reliance on that flyer or bulletin justifies a stop to check identification, to pose questions to the person, or to detain the person briefly while attempting to obtain further information. If the flyer has been issued on the absence of a reasonable suspicion, then a stop in objective reliance on it violates the Fourth Amendment.

Id. 469 U.S. at 232, 105 S.Ct. at 682, 83 L.Ed.2d. at 614 (citation omitted).

¶ 14 Our Supreme Court relied on both Whiteley and Hensley in issuing its decision in Queen. In that case a uniformed Philadelphia Police Officer was summoned to the scene by police detectives who had their vehicle parked behind another vehicle. One of the detectives informed the uniformed officer that the driver of the second vehicle, the appellant, “resembled a male wanted for robbery.” Id. at 318, 639 A.2d at 444. The uniformed officer requested the appellant step out of the vehicle and proceeded to execute a pat down search. The search revealed a gun and the appellant was arrested.

¶ 15 At the suppression hearing the arresting officer and the appellant testified but the detective who provided the officer with the initial information did not testify. The trial court refused to grant appellant’s request to suppress the evidence and convicted the appellant on two firearm violations. The refusal of the trial court to suppress the evidence was upheld by our Court.

¶ 16 Our Supreme Court however reversed. Relying on Whiteley and Hensley the Court reasoned:

The rationale of Whiteley and Hensley clearly supports the proposition that 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. To hold otherwise would permit the government to bypass the protections of the Fourth Amendment and Article I, Section 8, of the Pennsylvania Constitution by always having a second police officer summoned for assistance for the purpose of making the inquiry of a suspect on the basis of an initial police officer’s suspicion. At no time would the government have to establish any articulable facts, thus completely emasculating the protections against illegal searches and seizures.

Applying the above principles to this record, it is clear that the suppression court erred in refusing to suppress Appellant’s weapon. The suppression court assumed that [the detective] possessed the required facts to conduct an investigatory stop. At the suppression hearing, [the uniformed officer] testified that [the detective] did not tell him any of the pertinent facts from which [the detective] concluded that Appellant was a suspected robber, only that [the detective] believed he was. Therefore, the suppression court did not have a description of the robbery suspect or the circumstances surrounding the robbery. Without any such information, the suppression court was required to speculate as to whether Officer Bryant had sufficient facts to establish a reasonable suspicion. Such action clearly violates both the Fourth Amendment of the United States Constitution and Article I, Section 8, of the Pennsylvania Constitution.

Id. at 320-321, 639 A.2d at 445-446 (emphasis supplied).

¶ 17 Based on these cases, Appellant argues that “[t]he District Attorney’s failure to present the facts underlying the N.C.I.C. radio report makes its evidence insufficient to support a finding of probable cause.” Appellant’s Brief at 21. Appellant further contends that “the burden was clearly on the District Attorney under Queen to establish specific and articulable facts to support or establish the information contained in the N.C.I.C. report.” Id. at 22. However, we do not read Queen to compel such a result.

¶ 18 In Queen, the constitutional defect arose because the arresting officer had no facts upon which to suspect that the appellant had committed a robbery other than the detective’s bald assertion that the appellant “resembled” someone wanted for robbery. The fact that the detective did not testify at the suppression hearing to the facts giving rise to his belief that appellant had committed a robbery thereby deprived the suppression court of any factual basis to conclude that there was a reasonable suspicion that appellant was wanted for robbery at the time of his arrest.

¶ 19 In the case at bar one of the arresting officers, Officer Harrison, testified at the suppression hearing that he was informed by the police dispatcher of the existence of the two bench warrants for Appellant’s arrest according to the N.C.I.C. N.T., Suppression Hearing, 7/17/97 at 7, 17-18. Officer Harrison further testified that he later personally checked on the warrants himself and confirmed their existence with both the warrant division of his police department and the Youth Study Center, since one of the warrants was a juvenile warrant. Id. at 20. Thus, unlike in Queen, the Suppression Court in the instant case was provided, through the officer’s testimony which it found credible, a factual basis to conclude that the officer possessed probable cause to arrest the Appellant.

¶ 20 We have previously held that the information contained in a N.C.I.C. report is so inherently reliable that such information is, in and of itself, sufficient to form the basis of a finding of probable cause for a police officer who receives such information from an N.C.I.C. report to make an on the spot arrest. See Commonwealth v. Feflie, 398 Pa.Super. 622, 581 A.2d 636, 642 (1990), appeal denied, 528 Pa. 621, 597 A.2d 1151 (NCIC printouts of an outstanding warrant are of sufficient reliability to establish probable cause for arrest without additional warrant); Commonwealth v. Evans, 343 Pa.Super. 118, 494 A.2d 383, 388 (1985) (NCIC computer check of license which revealed that vehicle was stolen and used in a criminal act and that occupants were armed was sufficient in and of itself to justify warrantless arrest of appellant); Thus Officer Harrison possessed the probable cause to arrest Appellant, initially, based on the N.C.I.C. report. His later personal verification of the information contained within the report, which was the existence of the bench warrants, validated the initial probable cause provided by the report itself.

¶ 21 What is most critical is that the validity of the underlying bench warrants is not in question here, in contrast to Whiteley supra, where the underlying arrest warrant which formed the basis of the radio bulletin was shown to be defective because it was issued despite a lack of probable cause.⁴ The Suppression Court found Officer Harrison’s testimony that he was relying on the N.C.I.C. report of the bench warrants at the time of arrest, as well as his testimony that the bench warrants themselves were valid, to be credible. Since evaluating the credibility of the witnesses is the exclusive province of the factfinder in a suppression hearing, Benton, supra, we are compelled to affirm the Suppression Court’s factual determination and conclude that it properly denied Appellant’s suppression motion.

¶ 22 Judgment of Sentence affirmed.

¶ 23 STEVENS, J., files a dissenting opinion.

1 . 18 Pa.C.S.A. §§ 6106 and 6108, respectively.

1 "N.C.I.C.” refers to the National Crime Information Center.

2 . The Commonwealth avers that Appellant has been a fugitive since September 18, 1997 for failing to report to his probation officer and maintains that we should quash the appeal because of Appellant's fugitive status. The dissent would accept the Commonwealth’s argument and quash the appeal.

We decline to quash this appeal however because we are compelled to follow our Supreme Court’s clear and unequivocal holding in Commonwealth v. Deemer, 550 Pa. 290, 705 A.2d 827 (1997). In Deemer the appellant was present for his trial but fled when the jury returned its verdict. The appellant was absent throughout the period for filing of post-sentence motions. He was apprehended and returned to the jurisdiction. He then sought to have his right to file post verdict motions reinstated nunc pro tunc. This request was denied by the trial court and the denial was ultimately upheld by the Pennsylvania Supreme Court.

However, our Supreme Court also said expressly in this opinion that:

Returned fugitives should be punished, if appropriate, for violations of court orders or statutes which compel their presence in court, but they should not be punished additionally by forfeiture of their appellate rights.... If [an appellant] becomes a fugitive after an appeal has been filed, his appeal should be decided and any fugitive status should be addressed separately.

Id. 705 A.2d at 829. (emphasis supplied). Our own Court has interpreted Deemer to mean that "fugitive status is not a per se waiver nor may it be punished by the negation of constitutional rights. Fugitive status is instead a separate wrong with its own consequences.” Commonwealth v. Ford, 715 A.2d 1141, 1144 (1998).

Assuming arguendo, that Appellant became a fugitive on September 18, 1997, there is no dispute that Cotton filed his appeal in a timely manner before attaining fugitive status. Deemer instructs us that in these circumstances the appeal should be decided and the issue of Cotton’s fugitive status should be addressed separately. As an intermediate appellate court, this Court is obligated to follow the precedent set down by our Supreme Court. Foflygen v. Zemel, 420 Pa.Super. 18, 615 A.2d 1345, 1353 (1992), appeal denied 535 Pa. 619, 629 A.2d 1380 (1993). See also Commonwealth v. Randolph, 553 Pa. 224, 718 A.2d 1242, 1245 (1998) ("It is a fundamental precept of our judicial system that a lower tribunal may not disregard the standards articulated by a higher court.”)

We note also that Commonwealth v. Kindler, 554 Pa. 513, 722 A.2d 143 (1998), cited by the dissent, in no way abrogates the rule of Deemer. In Kindler the appellant was convicted of murder in 1984 and became a fugitive while his post-trial motions were pending. Upon his return to custody, appellant effectuated a direct appeal which was adjudicated by the Pennsylvania Supreme Court in 1994. At that time the Supreme Court decided, based on the status of the law as it then existed, that the appellant had waived his right to pursue post-trial motions since he fled the jurisdiction. Justice Newman’s opinion affirms the trial court’s denial of appellant's subsequent PCRA petition which was filed in 1996 because appellant had previously litigated the issue of the denial of his post trial motions in his prior direct appeal. Id. at 521, 722 A.2d at 147. The language which the dissent quotes from Justice Newman’s opinion affirming the trial court’s dismissal of the PCRA is merely her review of the basis for the Supreme Court's disposition of appellant’s claim in his direct appeal. As such, it is merely a summary and analysis of the law relating to the effect of fugitive status on post trial motions and appeals as it then existed at the time of appellant's direct appeal in 1994. The law has changed since 1994. The rule announced in Deemer in 1997 is now the governing principle of law.

3 . Appellant relies on the case of Commonwealth v. Price, 543 Pa. 403, 672 A.2d 280 (1996) as support for his argument that the officers were without authority to stop Appellant’s vehicle, however this reliance is misplaced. In Price an F.B.I. agent in a vehicle equipped with lights and siren pulled over a motorist who ran through a stop sign. The F.B.I agent displayed his badge to the motorist and told the motorist to remain where he was until the local police arrived. Once the local police arrived they arrested appellant for driving under the influence.

The Supreme Court upheld our Court's decision that the evidence obtained as a result of this arrest should be suppressed. The Supreme Court viewed the F.B.I. agent’s actions as an arrest of the motorist. Since F.B.I. agents were not permitted under common law or federal law to arrest for traffic offenses or misdemeanor crimes, the arrest was invalid.

In the case at bar, both police officers did not arrest the Appellant when they pulled him over initially. Their purpose in effectuating the original stop was to investigate the violation of the motor vehicle code which they had observed. An initial stop of a vehicle to investigate a Motor Vehicle Code violation does not constitute an arrest. Commonwealth v. Schatzel, 724 A.2d 362, 365 (Pa.Super.1998) ("Traffic stops, like Terry stops, constitute investigative rather than custodial detentions, unless under the totality of circumstances the conditions and duration of the detention become the functional equivalent of an arrest.”) quoting Commonwealth v. Gommer, 445 Pa.Super. 571, 665 A.2d 1269, 1274 (1995), appeal denied, 546 Pa. 676, 686 A.2d 1308 (1996). Commonwealth v. Proctor, 441 Pa.Super. 176, 657 A.2d 8, 11 (1995) ("The usual traffic stop is more analogous to a so called Terry stop.")

Moreover, both police officers in the case at bar had express statutory authority to make traffic stops pursuant to 75 Pa.C.S.A. § 6308, stop unlike the F.B.I. agent in Price. As discussed, supra, both police officers were employed by the City of Philadelphia. Since they observed Appellant proceed through an intersection without stopping, as police officers they had the statutory purview to stop Appellant's vehicle for further investigation. The F.B.I agent in Price had no such authority-

4 . Appellant does not argue to our Court that the underlying bench warrants mentioned in the N.C.I.C. report, and later determined to be legitimate by Officer Harrison, were invalid.