Commonwealth v. Peterfield

609 A.2d 540, 415 Pa. Super. 313, 1992 Pa. Super. LEXIS 1315

• Court: Superior Court of Pennsylvania
• Decided: May 14, 1992
• Docket: 2779
• Status: Published

Opinions

KELLY, Judge:

Appellant appeals from an order denying a Writ of Certiorari to the Court of Common Pleas of Philadelphia. We affirm.

The facts and procedural history may be briefly summarized as follows. On November 19, 1988, at approximately 12:50 p.m., Philadelphia Police Officer George Hoy was approached while on duty in his patrol wagon by an unidentified citizen who told him that a six foot tall black male, with a beard, a three-fourth length ski jacket, a blue knit hat, and dark colored pants was in the parking lot of a nearby supermarket acting “suspiciously.” N.T. 3/20/89 at 4. Officer Hoy immediately proceeded to the location where he observed appellant, who matched the description, quickly leaving the parking lot. Officer Hoy then directed appellant to stop. He did not. Instead, appellant put his left hand inside his coat pocket and fled. Officer Hoy gave chase, but it was to no avail. Appellant successfully escaped, leaving behind what Officer Hoy later recovered and identified as a loaded .25 caliber automatic handgun.

A short time later, other officers, who had been advised of the foregoing facts, encountered appellant and arrested him. Appellant was charged with carrying a firearm without a license and carrying firearms on the public streets of Philadelphia.¹ A motion to suppress the handgun was filed and denied. Appellant was thereafter tried and convicted of both charges in Philadelphia Municipal Court. Appellant timely filed a petition for a Writ of Certiorari which was denied by order of the Honorable Edward E. Russell of the Court of Common Pleas. This timely appeal followed.

On appeal, appellant contends that the court erred in failing to suppress the gun which conclusively established his guilt at trial. His sole argument is that his right to be free of unreasonable searches and seizures as guaranteed under both the United States Constitution and the Pennsylvania Constitution was violated because Officer Hoy lacked probable cause or reasonable suspicion to direct him to stop as he was leaving the parking lot.² Appellant maintains that, notwithstanding the fact that he did not comply and, in fact, successfully eluded Officer Hoy, the gun retrieved after the unsuccessful pursuit of him must be suppressed as fruit of an unconstitutional “seizure.” We cannot agree.

Under the United States Constitution, appellant’s claim is manifestly flawed. In the recent case, California v. Hodari D., — U.S. -, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the United States Supreme Court was presented with a fact scenario which is materially indistinguishable from that sub judice. In Hodari D., police encountered a group of youths, including Hodari, who had gathered at a street corner. When police officers approached, the youths quickly dispersed and fled. Police ran after Hodari who, while being chased, tossed away, what appeared to be a small, rock, but later proved to be crack cocaine. An order denying a motion to suppress the cocaine was entered, but later reversed by the intermediate appellate level court of California. The state thereafter successfully petitioned the United States Supreme Court to review the order which reversed the refusal to suppress. Hodari, as respondent, argued that although he had not yet been caught when he discarded the cocaine, he was nonetheless “seized” for the purposes of the Fourth Amendment. A 7-2 majority of the United States Supreme Court disagreed:

The language of the Fourth Amendment, of course, cannot sustain respondent’s contention. The word “seizure” readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. (“She seized the purse-snatcher, but he broke out of her grasp.”) It does not remotely apply, however, to the prospect of a policeman yelling “Stop, in the name of the law!” at a fleeing form that continues to flee. That is no seizure. Nor can the result respondent wishes to achieve be produced— indirectly, as it were—by suggesting that Pertoso’s [the officer’s] uncomplied-with show of authority was a common-law arrest, and then appealing to the principle that all common-law arrests are seizures. An arrest requires either physical force (as described above) or, where that is absent, submission to the assertion of authority.

Id., — U.S. at-, 111 S.Ct. at 1550-51, 113 L.Ed.2d at 697 (emphasis added).

Here, no physical force was applied to appellant and he did not submit to the assertion of authority. Rather, when police asserted their authority by requesting him to stop, appellant chose not to comply and immediately fled the scene. Such flight, of course, did not alone give police cause to arrest him. See Commonwealth v. Jeffries, 454 Pa. 320, 325, 311 A.2d 914, 917 (1973); Commonwealth v. Martinez, 403 Pa.Super. 125, 128, 588 A.2d 513, 514 (1991).³ The success of it, however, does prevent this Court from considering him “seized” for the purposes of the Fourth Amendment. See California v. Hodari D., supra. Thus, under the United States Constitution, appellant’s assertion, that probable cause or reasonable suspicion was necessary to justify police action taken before their recovery of the gun must fail. For the purposes of the Fourth Amendment, we need not even evaluate what, if any, suspicion the police had before they retrieved the gun since appellant was not, at that point, “seized.” See id.

The flaw in appellant’s argument under the Pennsylvania Constitution is perhaps less obvious, but no less fatal. It is of course true that Pennsylvanians’ may adopt a state constitution which imposes greater limitations upon the state, and that Pennsylvania courts may (indeed must) give effect to any such decision to do so. As our Supreme Court most recently reaffirmed in Commonwealth v. Edmunds, 526 Pa. 374, 389, 586 A.2d 887, 894-95 (1991),

Here in Pennsylvania, we have stated with increasing frequency that it is both important and necessary that we undertake an independent analysis of the Pennsylvania Constitution, each time a provision of that fundamental document is implicated. Although we may accord weight to federal decisions where they “are found to be logically persuasive and well reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees,” Commonwealth v. Tarbert, 517 Pa. 277, 283, 535 A.2d 1035, 1038 (1987), quoting, Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 502 (1977), we are free to reject the conclusions of the United States Supreme Court so long as we remain faithful to the minimum guarantees established by the United States Constitution.

Instantly, for appellant to gain relief under the Pennsylvania Constitution, he must establish that Article I, Section 8 of the Pennsylvania Constitution, unlike the Fourth Amendment of the federal constitution, must be interpreted so as to consider an individual “seized” in the absence of an application of actual physical force or the submission to the assertion of authority.⁴ However, appellant has not cited, and we cannot find, support for any such proposition. Indeed, no case which we have uncovered has held, suggested or even intimated that a distinction between the Pennsylvania and United States Constitutions exists with regard to the definition of the term “seizure.” Rather, the only Pennsylvania cases defining when a “seizure” of the person occurs are based solely upon interpretations of the term “seizure” as used in the United States Constitution, not the Pennsylvania Constitution. See e.g. Commonwealth v. Barnett, 484 Pa. 211, 398 A.2d 1019 (1979) (interpreting Pennsylvania cases following Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977) (same); Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977) (same); Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973) (same); Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973) (finding Terry v. Ohio, supra, controlling); Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970) (same); Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969) (same); Commonwealth v. Brown, 388 Pa.Super. 187, 565 A.2d 177 (1989) (interpreting Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)); Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984) (quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973)); Commonwealth v. Williams, 287 Pa.Super. 19, 429 A.2d 698 (1981) (interpreting Pennsylvania cases following Terry v. Ohio, supra); Commonwealth v. Howell, 213 Pa.Super. 33, 245 A.2d 680 (1968) (interpreting Pennsylvania cases following Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963)). These cases are limited to the logic that gave them birth. Thus, to the extent that their holdings conflict with the United States Supreme Court’s most recent definition of the term “seizure,” they must be seen as having been overruled, sub silentio, by California v. Hodari D., supra, as the United States Supreme Court is always the final arbiter of the United States Constitution. See Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958).

Moreover, appellant has not properly asked us herein to declare that such a distinction between the constitutions exists. His failure to do so prevents us from finding any merit to his appeal.

In Commonwealth v. Edmunds, supra, our Supreme Court held,

The recent focus on the “New Federalism” has emphasized the importance of state constitutions with respect to individual rights and criminal procedure. As such, we find it important to set forth certain factors to be briefed and analyzed by litigants in each case hereafter implicating a provision of the Pennsylvania constitution. The decision of the United States Supreme Court in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), now requires us to make a “plain statement” of the adequate and independent state grounds upon which we rely, in order to avoid any doubt that we have rested our decision squarely upon Pennsylvania jurisprudence. Accordingly, as a general rule it is important that litigants brief and analyze at least the following four factors:

1) text of the Pennsylvania constitutional provision;

2) history of the provision, including Pennsylvania case-law;

3) related case-law from other states;

4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.

Depending upon the particular issue presented, an examination of related federal precedent may be useful as part of the state constitutional analysis, not as binding authority, but as one form of guidance. However, it is essential that courts in Pennsylvania undertake an independent analysis under the Pennsylvania Constitution.

Id., 526 Pa. at 390-391, 586 A.2d at 894-95 (footnotes omitted) (emphasis added). Our Supreme Court’s emphasis on the importance of the proper briefing and review of state constitutions vis a vis individual rights and criminal procedure may not be discounted. We discern from the Edmunds decision, which imposes a “general rule” upon the litigants to “in each case ... brief and analyze at least the ... four factors” set forth therein, that a procedural prerequisite to review of any claim regarding a distinction between the state and federal constitutions has been imposed. We must, therefore, decline review of the merits of any such claim raised without the benefit of such briefing or analysis.

Here, appellant’s brief not only lacks any analysis as to the four factors identified in Edmunds, it lacks even a contention that a distinction between the constitutions exists. Appellant has apparently presumed that he was “seized” for the purposes of both constitutions, and has thus placed in his brief arguments relating only to the degree of probable cause or reasonable suspicion held by the police officers at the time police began chasing appellant.⁵ Under these circumstances it would be particularly inappropriate for this Court to address any question as to a distinction between the constitutions. Such sua sponte review of a claim would impermissibly “deprive[ ] counsel of the opportunity to brief and argue the issue[ ] and the court of the benefit of counsel’s advocacy.” Wiegand v. Wiegand, 461 Pa. 482, 485, 337 A.2d 256, 257 (1975); see also Commonwealth v. Butler, 529 Pa. 7,-, 601 A.2d 268, 275 (1991) (Papadakos, J., dissenting). We are mindful of the fact that our Supreme Court has not hesitated in the past to reverse this Court where we have reviewed issues not raised by the parties. See e.g., Estep v. Estep, 508 Pa. 623, 500 A.2d 418 (1985); Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984); accord see Commonwealth v. Butler, supra, 529 Pa. at-, 601 A.2d at 275 (Papadakos, J., dissenting) (citing cases). This is perhaps especially true where this Court has raised constitutional questions of its own accord. See Wiegand v. Wiegand, supra, 461 Pa. at 485, 337 A.2d at 257 (holding that “[t]he Superior Court by sua sponte deciding the constitutional issues [i.e. whether the Divorce Law violated the Equality of Rights Amendment to the Pennsylvania Constitution] exceeded its proper appellate function of deciding controversies presented to it.”). Thus, in the absence of an appropriate request to do so, we are unauthorized to question for the first time whether the term “seizure,” as used in the Pennsylvania Constitution, affords appellant greater rights than does the federal definition of the same term. Accordingly, we are compelled to consider that, at this point at least, appellant’s rights against the state in this case are not protected to any greater extent by the Pennsylvania Constitution.

CONCLUSION

In short, we find that since no application of actual physical force was used and appellant did not submit, but rather fled upon the assertion of police authority, appellant was not “seized” for the purposes of the Fourth Amendment. Appellant has neither cited support for, nor asked us to find, a distinction between the federal and state constitutions in this regard. We must, therefore, conclude that no probable cause or reasonable suspicion was necessary to recover the “fruit” of the unsuccessful chase. Accordingly, we find his claim on appeal to be without merit.

Order AFFIRMED.

McEWEN, J., concurs in the result of the opinion by Kelly, J. FORD ELLIOTT, J., files a dissenting opinion.

1 . 18 Pa.C.S.A. §§ 6106 & 6108.

2 . Appellant argues in his brief that:

Since the officer possessed neither probable cause to arrest nor justification for an investigatory stop, the intrusion that forced appellant’s abandonment of the weapon was unlawful, and in violation of the Fourth Amendment to the United States Constitution and Article I, § 8 of the Pennsylvania Constitution.

Appellant’s Brief at 5. The Commonwealth contends, however, that appellant has waived for the purposes of appeal the question of whether reasonable suspicion existed to justify an investigatory stop since appellant argued to the suppression court only that probable cause was lacking to arrest him. Due to our disposition, the Commonwealth’s waiver argument is rendered moot. Thus, we need not address this question.

3 . See also Commonwealth v. Metz, 412 Pa.Super. 100, 118, 602 A.2d 1328, 1337 (1992) (No. 1632 Pittsburgh 1990) (Kelly, J., concurring) ("The free citizen in a free country such as ours of course retains the discretion to run, walk, crawl or stop ..., and accordingly, neither the police nor the courts can draw any adverse inferences from the exercise of any such discretion").

4 . Art. I, Section 8 of the Pennsylvania Constitution provides as follows:

Security from Searches and Seizures

Section 8. The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize and person or thing shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

(Emphasis added). The 4th Amendment of the United States Constitution reads:

Amendment IV

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

(Emphasis added).

5 . Appellant’s presumption in this regard is not, perhaps, surprising, given the fact that the Commonwealth and the trial court also labored under the impression that appellant’s "seizure” was a foregone conclusion. California v. Hodari D., supra, was not filed until shortly before oral argument was heard in this case. However, such facts neither provide an exception to the waiver doctrine nor preclude us from affirming appellant’s conviction based on grounds other than those used by the trial court. See Commonwealth v. Allem, 367 Pa.Super. 173, 532 A.2d 845 (1987). Regardless of the state of the law at the time of appellant’s conviction, we are bound to apply the law as it stands today, on direct appeal. California v. Hodari D., supra, currently stands as the only relevant expression of the point at which a person is “seized.” We are therefore bound to follow it, rather than any previous cases which have been overruled by it, sub silentio.