Com. v. Brown

904 A.2d 925

COMMONWEALTH of Pennsylvania, Appellee, v. Thomas BROWN, Appellant.

Superior Court of Pennsylvania.

Submitted February 13, 2006.

Filed July 17, 2006.

Jeanette D. Dickerson, Norristown, for appellant.

Kevin J. McCloskey, Asst. Dist. Atty., Norristown, for Com., appellee.

BEFORE: KLEIN, KELLY and POPOVICH, JJ.

OPINION BY POPOVICH, J.:

¶ 1 Appellant Thomas Brown appeals the judgment of sentence for possession with intent to deliver a controlled substance (PWID) on grounds that: 1) the trial court erred in denying his motion to suppress; and 2) the evidence was insufficient to sustain his conviction.¹ We affirm.

¶ 2 "Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct." Commonwealth v. LaMonte, 859 A.2d 495, 499 (Pa.Super.2004) (quoting Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), cert. denied, 540 U.S. 1115, 124 S.Ct. 1053, 157 L.Ed.2d 906 (2004)). Our scope of review is limited:

We may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

Commonwealth v. Grundza, 819 A.2d 66, 67 (Pa.Super.2003), appeal denied, 574 Pa. 764, 832 A.2d 435 (2003) (quoting Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa.Super.2002) (en banc)).

¶ 3 In his first issue, Appellant asserts that the police possessed neither reasonable suspicion to stop nor probable cause to arrest him, which tainted evidence (a package of cocaine) he allegedly discarded (and subsequently retrieved by police) in a foot chase after being told to "stop" by a patrolman out of uniform and in an unmarked vehicle. Appellant cites Commonwealth v. Jefferson, 853 A.2d 404 (Pa.Super.2004), and In the Interest of D.M., 566 Pa. 445, 781 A.2d 1161 (2001) (hereinafter "D.M. II"), to buttress his argument that his flight was provoked by the absence of a uniformed officer directing him to "stop" in the late evening hours (10:00 p.m.), which rendered the evidence seized as a result thereof subject to suppression.

¶ 4 The United States Supreme Court issued a per curiam order vacating In the Interest of D.M., 560 Pa. 166, 743 A.2d 422 (1999) (hereinafter "D.M. I") and remanded for further consideration in light of Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), which adopted the position that sudden flight by a defendant in a high crime area created a reasonable suspicion justifying a Terry² stop. Consequently, Wardlow held that a pat-down of the defendant under such circumstances was neither violative of the Fourth Amendment nor did it subject the weapon seized to suppression.

¶ 5 With Wardlow as a backdrop, the Pennsylvania Supreme Court reversed its initial decision in D.M. I, which contained the following facts. D.M. matched the description relayed over police radio of a black man with a gun. Within a block of the dispatch, the police observed the defendant and told him to come over to their police vehicle. The defendant ran from the police, but he was stopped by back up officers that patted him down for their protection. A .32 caliber handgun fell from the defendant's right pants leg, which, once secured, resulted in the defendant's arrest.

¶ 6 On appeal, the Pennsylvania Supreme Court held that the police did not possess reasonable suspicion to stop the defendant, and it reversed the lower courts. On remand from the United States Supreme Court for reconsideration in light of Wardlow, the Pennsylvania Supreme Court found that "unprovoked flight in a high crime area is sufficient to create a reasonable suspicion to justify a Terry stop under the Fourth Amendment." D.M. II, at 450, 781 A.2d at 1164. This translated into a reversal of the Pennsylvania Supreme Court's earlier decision and reinstatement of the order of the Superior Court affirming the judgment of sentence. In the process of reversing, our high Court stated:

In the instant case, at the time the police initially approached the [A]ppellant it was unclear whether the police intended to do anything other than talk to him. Thus, the initial approach did not need to be justified by any level of suspicion. Rather, the appropriate time to consider whether the police had reasonable suspicion is at the time the police actually effectuated the seizure of the [A]ppellant and the totality of the circumstances test, by its very definition, requires that the whole picture be considered when determining whether the police possessed the requisite cause to stop [A]ppellant. Here, the police effectuated the stop following [A]ppellant's flight from the scene [—a high crime area], thus, [unprovoked] flight was clearly relevant in determining whether the police demonstrated reasonable suspicion to justify a Terry stop under the totality of the circumstances[, which it found to exist].

D.M. II, at 452, 781 A.2d at 1165 (citation omitted).

¶ 7 A panel of this Court in Jefferson confronted a scenario in which police in marked vehicles were patrolling a neighborhood known for drug sales and the site of a recent shooting. When the police observed Appellant and another man in the street, the men ran away. The police gave chase and observed Appellant toss a bag containing PCP to the ground.

¶ 8 Appellant sought to suppress the evidence seized as violative of state constitutional principles, which required police to establish reasonable suspicion in advance of recovering contraband discarded by a suspect. Appellant conceded that under Wardlow, the combination of seeing a defendant in a high crime area and his flight from police merged to establish the Terry standard of reasonable suspicion. However, Appellant argued in favor of rejecting the rationale of Wardlow as inconsistent with state constitutional law. We refused the offer.

¶ 9 In light of the holding in D.M. II, we embraced the rationale of Wardlow for state constitutional purposes. As a result, we held that unprovoked flight in a high crime area was sufficient to create a reasonable suspicion to justify a Terry stop under both federal and state principles. Jefferson, 853 A.2d at 406.

¶ 10 Herein, we now recite the facts stipulated to by the parties and incorporated in full from the habeas corpus hearing into the suppression hearing; to-wit: At approximately 10:00 p.m. on the 29th of July, 2004, Norristown Police Officer Daniel DeOrzio was on patrol in an unmarked car, proactively investigating drug activity in the area with other members of the task force. The police conducted several passes of the 800 block of Green Street, which was known as a "heavy drug area where many drug transactions occur [. . . and] is also a high traffic area[.]" Officer DeOrzio observed Appellant loitering in the vicinity on each pass by police.

¶ 11 Officer DeOrzio thought Appellant resembled somebody that had an active county warrant, and he intended to conduct a pedestrian stop to inquire about Appellant's identity and what he was doing in the area at that time of the evening. Toward that end, Officer DeOrzio exited the unmarked vehicle and stood in the alley between DeKalb and Green Streets while other members of the task force circled the block to the back of Green Street to stop Appellant if he exited there.

¶ 12 Before approaching or saying anything, Officer DeOrzio observed Appellant "sneaking" between two houses, then walking through the backyard of one house into the alley, all the while looking either way for the presence of the unmarked police vehicle that had just left. Officer DeOrzio also described Appellant as crouching down, looking both ways, and starting to walk down the alley toward the officer. At this point, Officer DeOrzio stepped into the alley, said, "Stop," and was clearly identified as a police officer. N.T. Suppression Hearing, 4/25/05 at 17.³

¶ 13 Hearing the command to "stop," Appellant immediately froze, and then he turned and ran. Officer DeOrzio gave chase, which pursuit traversed past a dozen homes, a backyard of a house, and a leap over a fence before returning to the alley. During the chase, Appellant's hands were confined to his waist, and he was observed grabbing at his clothes.

¶ 14 Appellant was finally apprehended by an officer of the task force, handcuffed, and later processed at headquarters. Prior thereto, the police retraced the path Appellant took in attempting to flee from police and recovered a Philly blunt cigar lying on the ground. To the right of the cigar was a clear plastic bag containing "a large chunk of white powder" later tested to be cocaine. Despite the fact that the area was saturated from two days of rain, the two items retrieved by police were dry. Appellant was thereafter charged with PWID. See footnote 1, supra. After a jury trial, Appellant was found guilty as charged. Sentence was imposed, and a timely appeal followed challenging the denial of the motion to suppress and the sufficiency of the evidence. As to the suppression issue, Appellant argues that the fact that the police were not in uniform and driving an unmarked vehicle distinguish this case from Jefferson and D.M. II, which demands a suppression of the evidence seized. Stated otherwise,

If [Appellant's] flight is found to be cause for reasonable suspicion, then citizens are obligated to stand still whenever a stranger in plain clothes in an unmarked car approaches and says, "stop."

The ramifications of this are far-reaching and dangerous. Citizens should be obligated to stop only for officers that are clearly identified as such, and only when they are driving cars that are clearly marked.

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