Commonwealth v. Shine

784 A.2d 167, 2001 Pa. Super. 279, 2001 Pa. Super. LEXIS 2697

• Court: Superior Court of Pennsylvania
• Decided: September 25, 2001
• Status: Published

Opinions

HUDOCK, J.:

¶ 1 This is an appeal from the judgment of sentence imposed after Appellant was convicted, at the conclusion of a bench trial, of two violations of the Uniform Firearms Act and possession of a controlled substance (cocaine).¹ He was sentenced to an aggregate term of fifteen to thirty-six months’ incarceration, followed by five years of reporting probation. A post-sentence motion was filed and denied. In this direct appeal, Appellant challenges the denial of his motion to suppress physical evidence. We affirm.

¶ 2 When “reviewing the ruling of a suppression court, an appellate court must first ascertain whether the record supports the factual findings of the suppression court and then determine the reasonableness of the inferences and legal conclusions drawn” from such findings. Commonwealth v. Gommer, 445 Pa.Super. 571, 665 A.2d 1269, 1270 (1995) (quotation marks and citation omitted). “When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Queen, 536 Pa. 315, 319, 639 A.2d 443, 445 (1994) (citation omitted). ‘With respect to factual findings, we are mindful that it is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court judge is entitled to believe all, part or none of the evidence presented. However, where the factual determinations made by the suppression court are not supported by the evidence, we may reject those findings. Only factual findings which are supported by the record are binding upon this [C]ourt.” Commonwealth v. Benton, 440 Pa.Super. 441, 655 A.2d 1030, 1032 (1995) (citations omitted). Moreover, we are bound by those findings that are supported by the record and may only reverse if the legal conclusions drawn therefrom are in error. Gommer, 665 A.2d at 1270.

¶ 3 With regard to the suppression motion, the Commonwealth presented the testimony of two police officers.² Although not labeled as factual findings, the trial court summarized the following facts based upon the officers’ testimony:

On September 18, 1998, at approximately 12:00 a.m., Philadelphia Police Officer Michael Davis was in uniform, driving a marked police vehicle while on routine patrol in the area of 65th Street in Philadelphia. In response to a radio call indicating, “Black males on the highway with guns” Davis immediately went to the area of 65th and Kingsessing Streets where he observed Appellant and another male engaged in an intense argument. Appellant was making gestures with his hands, leaning the upper portion of his body forward towards the other male, and nudging himself forward. A woman was observed trying to push the males apart in an apparent attempt to keep them from fighting. This scenario led Officer Davis to believe that Appellant was engaged in a possible fight and an argument, thus „ causing a disturbance on the highway. Officer Davis patted down the two males and did a cursory check of the female, checking only for bulges. In his three (3/6) [sic] and a half years as a police officer, Officer Davis had performed thousands of pat downs, and had previously felt a weapon approximately 50 to 100 times. As he conducted the pat down of Appellant, Officer Davis felt a gun in Appellant’s pants pocket. He removed the gun and arrested Appellant.

Officer Carim Mitchell arrived at the scene as back-up to Officer Davis. As Appellant was taken into custody Mitchell, in accordance with police procedure, conducted a safety pat down which led to the recovery of a cellophane wrapper containing ten (10) black ziplock [sic] packets of cocaine from Appellant’s left front pocket.

Trial Court Opinion, 7/18/00, at 2-3 (footnotes and references to notes of testimony omitted).

¶4 In fight of these facts, which are amply supported by the record, the trial court concluded that, given the totality of the circumstances, including the radio call and Officer Davis’ observations upon arriving at the scene, the stop and frisk of Appellant was proper. In its Rule 1925(a) opinion, the trial court provided further support for its conclusion:

Here, considering the totality of the circumstances, this Court found that there was enough evidence to support the police officer’s actions. The officer had knowledge that there were males with guns at 65th and Kingsessing when he arrived shortly after the radio broadcast to discover Appellant and another male engaged in a heated argument, possibly a fight. The two males were very close to each other’s faces, angry and loud. It is reasonable to believe that given the nature of the radio call, along with the Officer’s observations of the threatening behavior of the two males with someone in the middle trying to stop the impending fight, at [12:00 a.m.] on a street corner that the safety of those involved along with that of the police officer were at stake. The officer’s actions were justified and Supression Motion was properly denied.

Trial Court Opinion, 7/18/00, at 4 (references to notes of testimony omitted).

¶ 5 On appeal, Appellant claims that the trial court’s legal conclusion is in error because ,

“[t]he anonymous radio information is insufficient to conduct a stop, and the officer independently observed no conduct which would permit a “stop.” Even if the officer had a right to investigate the argument between the males, he did not take that minimally intrusive action, but instead immediately subjected the males to a frisk. That frisk, which requires that the officer articulably believe that the suspect is armed and dangerous, was performed here without justification, the officer stating only that because “there’s a lot of weapons out there,” he performed the frisk for his own safety, without providing the necessary additional justification for doing so based upon the existence of criminal or suspicious conduct by [Ajppellant. There is nothing in the officer’s direct observation that would support such a justification, and the radio call alone or in conjunction with his observations will not support it.

Appellant’s Brief at 8-9. We cannot agree.

¶ 6 We first consider the propriety of the stop. As our Supreme Court has recently summarized:

Our “inquiry is a dual one — whether the officers’ action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968), quoted in Commonwealth v. Hicks, 434 Pa. 153, 158, 253 A.2d 276, 279 (1969). Regarding the stop, a police officer may, short of an arrest, conduct an investigative detention if he has a reasonable suspicion, based upon specific and articulable facts, that criminality is afoot. See Terry, 392 U.S. at 21, 30, 88 S.Ct. at 1880, 1884; Commonwealth v. Allen, 555 Pa. 522, 527, 725 A.2d 737, 740 (1999). The fundamental inquiry is an objective one, namely, whether “the facts available to the officer at the moment of the [intrusion] ‘warrant a man of reasonable caution in the belief that the action taken was appropriate.” Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880 (citations omitted). This assessment, like that applicable to the determination of probable cause, requires an evaluation of the totality of the circumstances, see United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), with a lesser showing needed to demonstrate reasonable suspicion in terms of both quantity or content and reliability. See Alabama v. White, 496 U.S. 325, 330-31, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990).

Commonwealth v. Zhahir, 561 Pa. 545, 552, 751 A.2d 1153, 1156-57 (2000).

¶ 7 In asserting that Officer Davis did not have reasonable suspicion to stop him, the majority of Appellant’s argument focuses on the anonymous nature of the call and the scant and, at times, equivocal, information provided. In doing so, Appellant relies upon the details of the call as demonstrated by the transcript of the radio call. See Appellant’s Brief at p. 14-16. He also argues that the radio call at issue is “indistinguishable” from the anonymous tip information deemed insufficient to support an investigatory stop in Commonwealth v. Hayward, 756 A.2d 23 (Pa.Super.2000). In Hayward, a campus police officer received a tip from an anonymous pedestrian that a tall man among a group of six to eight males in a nearby park was “brandishing a weapon.” When arriving at the park ten minutes later, the officer saw a group of eight or nine people, although none of them was holding a gun. Hayward, 756 A.2d at 25. After directing the group to “line-up” on the sidewalk, the officer asked if any of them had weapons, and the defendant volunteered that he did. Id. at 26. Given these facts, this Court reasoned:

Since the identity and veracity of the pedestrian informant remained unknown, there was therefore no objective basis under these particular circumstances for the officer to conclude that the information provided by this individual was accurate or rehable. Thus, the officer needed “something more” than the tip itself to effectuate a Terry stop of an individual who might possibly be the subject of the tip. He needed some independent corroboration of that individual’s involvement in criminal activity.

However the officer upon arriving in the park did not independently observe [the defendant] or any other individuals present engaging in anything remotely resembling criminal activity.... [The defendant] and the other individuals in the park were merely present in a public area when the officer arrived on the scene. The tip itself provided no specific predictive basis as to the activities of any of the individuals present in the park that would not be known to anyone in the public at large. There was therefore no other basis, aside from the word of an anonymous pedestrian, to infer that [the defendant] had been actively involved in the commission of a crime or would be actively involved in the commission of a crime in the immediate future.

Hayward, 756 A.2d at 35 (emphasis added).

¶ 8 Unlike the facts in Hayward, however, in the present case we have “something more” than a vague, anonymous tip. As our Supreme Court has explained:

Where ... the source of the information given to the officers is unknown, the range of details provided and the prediction of future behavior are particularly significant, as is corroboration by independent police work. See [Alabama v.] White, 496 U.S. [325] at 332, 110 S.Ct [2412] at 2417 [110 L.Ed.2d 301 (1990)]. While verification of predictive information constitutes one avenue of obtaining the necessary corroboration of informa-

tion from a source of unknown reliability, see id., the necessary corroboration may also be supplied by circumstances that are independent of the tip, for example, observation of suspicious conduct on the part of the suspect. See Allen, 555 Pa. at 529, 725 A.2d at 741. See generally United States v. Roberson, 90 F.3d 75, 80 (3rd Cir.1996)(noting that in the context of an anonymous tip, the absence of predictive information would not necessarily invalidate it as a consideration in the totality of the circumstances, if, after corroborating readily observable facts, police had observed unusual or suspicious conduct on the suspect’s part.) In this regard, the time, street location, and the movements and manners of the parties bear upon the totality assessment, see Commonwealth v. Lawson, 454 Pa. 23, 28, 309 A.2d 391, 394, (1973), as does an officer’s experience. See Commonwealth v. Banks, 540 Pa. 453, 455, 658 A.2d 752, 753 (1995).

Zhahir, 561 Pa. at 553, 751 A.2d at 1157 (emphasis added).

¶ 9 Had Officer Davis merely observed Appellant standing on or near the street corner talking with the other male and female, we would find that he lacked reasonable suspicion to conduct an investigatory stop. However, within minutes of receiving a report over the police radio regarding the presence of “two Black males with guns on the highway” in the area of 65th Street, he personally saw two men, including Appellant, engaged in a heated argument. According to the officer, it looked like Appellant and the other man were about to fight and, in fact, a woman was also present who appeared to be trying to separate the men. Thus, given his observation of what he perceived to be an escalating disturbance on the street, coupled with his knowledge of the recent report that men at that location were armed, Officer Davis was justified in stopping Appellant to investigate the situation and try to defuse a potentially dangerous situation.

¶ 10 Appellant argues that Officer Davis lacked reasonable suspicion that criminal activity was afoot because, as he characterizes the situation, he and the other male were only arguing. As noted above, however, credibility determinations are for the suppression court. Benton, supra. At the suppression hearing, Officer Davis described in detail Appellant’s facial expressions and body movements in explaining that Appellant was about to engage in a fight. The suppression court characterized Appellant’s conduct as “threatening behavior.” Trial Court Opinion, 7/18/00, at 4. At the suppression hearing, Officer Davis testified that he approached Appellant because he believed a “fight” or “disturbance” was occurring. N.T., 3/26/99, at 9. Thus, because the trial court credited the officer’s characterization of Appellant’s interaction with the other male, Officer Davis possessed reasonable suspicion that Appellant was involved “or would be actively involved in the commission of a crime in the immediate futuref.]” Hayward, 756 A.2d at 35. See 18 Pa.C.S.A. § 5503(a)(1) (explaining that a person is guilty of disorderly conduct if “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he ... engages in fighting or threatening, or in violent or tumultuous behavior[.]”).

¶ 11 In the alternative, Appellant argues that, even if the stop was proper, Officer Davis was not justified in frisking him because the officer lacked reasonable suspicion that he was armed and dangerous. According to Appellant, Officer Davis frisked him only because “[tjhere’s a lot of weapons out there[.]” N.T., 3/26/99, at 14. We cannot agree.

¶ 12 As our Supreme Court has stated:

Review of an officer’s decision to frisk for weapons requires balancing two legitimate interests: that of the citizen to be free from unreasonable searches and seizures; and that of the officer to be secure in his personal safety and to prevent harm to others. See Dunaway v. New York, 442 U.S. 200, 209, 99 S.Ct. 2248, 2255, 60 L.Ed.2d 824 (1979). To conduct a limited search for concealed weapons, an officer must possess a justified belief that the individual, whose suspicious behavior he is investigating at close range, is armed and presently dangerous to the officer or to others. Terry, 392 U.S. at 24, 88 S.Ct. at 1881; Allen, 555 Pa. at 528, 725 A.2d at 740. In assessing the reasonableness of the officer’s decision to frisk, we do not consider his “unparticularized suspicion or ‘hunch,’ but [rather] ... the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry, 392 U.S. at 27, 88 S.Ct. at 1883.

Zhahir, 561 Pa. at 554, 751 A.2d at 1158.

¶ 13 In the present case, however, Officer Davis did not frisk Appellant based only upon his belief that a lot of people on the streets in the particular area of the stop carry weapons. Rather, he observed Appellant engaged in a heated argument with another male within minutes of receiving a radio call that two men were on the highway with guns. “[I]n view of the immediacy of the situation confronting the officer, common sense dictates that preference be given to his personal safety.” Zhahir, 561 Pa. at 555, 751 A.2d at 1158. Moreover, as noted above, Officer Davis was alone, was confronted with what he perceived to be an escalating violent situation involving three people, and the hour was late. See Commonwealth v. Patterson, 405 Pa.Super. 17, 591 A.2d 1075, 1078 (1991) (holding that a weapons search of the defendant, who was observed creating a disturbance in the early morning hours was justified; “[t]he police may reasonably believe themselves to be in danger when the hour is late or the location is desolate.”) Thus, given the totality of the circumstances that confronted Officer Davis, we agree with the suppression court that his actions in stopping and frisking Appellant were justified. The suppression court, therefore, properly denied Appellant’s suppression motion.

¶ 14 In Commonwealth v. McDonald, 740 A.2d 267 (Pa.Super.1999), appeal denied, 568 Pa. 613, 757 A.2d 930 (2000), this Court noted:

In the present case, there was [an anonymous] “911” phone call at approximately 2:18 in the morning reporting shots fired in an area known for shootings and drug activity. While we recognize that Pennsylvania has not adopted the “man with a gun” exception to the requirement of independent corroboration, in this case the fact shots were fired created the element of imminent danger. Any delay by police in the hope of obtaining independent corroboration necessarily increased the likelihood that further action by the suspects could have resulted in injuries or even fatalities.

McDonald, 740 A.2d at 270 (footnote and citation omitted). Although the radio call received by Officer Davis did not include the fact that shots were fired, given the volatility of the situation he observed, like the McDonald panel, we find that the potential for “imminent danger” justified the officer’s actions in the present case.

¶ 15 Judgment of sentence affirmed.

¶ 16 BECK, J. files a Concurring Statement.

¶ 17 CERCONE, President Judge Emeritus, files a Dissenting Opinion.

1 . 18 Pa.C.S.A. §§ 6106 (firearms not to be carried without a license), 6108 (carrying firearms on public streets or public property in Philadelphia) and 35 P.S. § 780-113(a)(16).

2 . Appellant presented no testimony, but a transcript of the radio call that was received that evening was admitted into evidence.