Com. v. Wiley

858 A.2d 1191

COMMONWEALTH of Pennsylvania, Appellee v. Allen WILEY, Appellant.

Superior Court of Pennsylvania.

Argued July 27, 2004.

Filed August 23, 2004.

Reargument Denied October 27, 2004.

Lori Mach, Philadelphia, for appellant.

Grandy Gesvino, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before: LALLY-GREEN, GANTMAN, and TAMILIA, JJ.

LALLY-GREEN, J.:

¶ 1 Appellant, Allen Wiley, appeals from the judgment of sentence entered on October 1, 2003, following his conviction for two violations of the Uniform Firearms Act: 18 Pa.C.S.A. § 6106¹ and 18 Pa.C.S.A. § 6108.² We vacate the judgment of sentence and remand.

¶ 2 The trial court stated the facts as follows:

On March 11, 2003, at approximately 12:00 p.m., civilian Lawrence Thompson observed defendant inside Daniel's Restaurant, located around 900 Godfrey Avenue in Philadelphia, with the butt of a gun protruding from his waistband. Mr. Thompson followed defendant as he left the restaurant and located him thirty yards away sitting in a barber shop. Mr. Thompson immediately called 911 on his cell phone to inform the police that he observed defendant-a black male, about five feet, seven inches, and around twenty-five years old—carrying a firearm; he also informed the operator that defendant came out of Daniel's Restaurant and walked into a barber shop on Godfrey Avenue, giving the dispatcher the location of the shop. Mr. Thompson then parked his car across the street from the barber shop, and watched the front door of that location until police arrived. After defendant was arrested, and it was safe for Mr. Thompson to approach, he informed the officer that it was he who called 911, and provided his identifying information to the officer (N.T. 7/28/03, p. 12-16).

Philadelphia Police Officer Edward Fidler, Badge # 4666, testified that he received the radio call that day for a person with a gun. The flash information described a black male with a light-complexion, inside the barber shop on Godfrey Avenue with a gun in his waistband. Officer Fidler was familiar with the area and the barber shop at 906 Godfrey Avenue. The Officer entered the shop with his gun drawn, for his safety. He then asked defendant to raise his hands and shook defendant's waistband, recovering a black .22 caliber revolver loaded with eight live rounds. Defendant was arrested and placed into custody. Around one and a half minutes had transpired from the time Officer Fidler received the radio call until the time he recovered the gun (N.T. 7/28/03 p. 18-20, 24).

On March 11, 2003, defendant was arrested and charged with violating 18 Pa.C.S. § 6106, of the Uniform Firearms Act, Firearms not to be carried without a license (third-degree felony), and 18 Pa.C.S. § 6108, Uniform Firearms Act, Carrying firearms on public streets or public property in Philadelphia (first-degree misdemeanor.) On July 28, 2003, defendant litigated a motion to suppress physical evidence, which was held under advisement. The motion was denied on September 10, 2003, and defendant thereafter proceeded to trial without a jury. After hearing the evidence, this court found defendant guilty on all charges. Defendant's sentencing was held on October 1, 2003, whereupon this court imposed a term of two to six months incarceration followed by a concurrent term of three years reporting probation for his conviction for carrying a firearm without a license.

On October 2, 2003, defendant filed a timely notice of appeal. On October 9, 2003, this court ordered defendant to file a Statement of Matters Complained of on Appeal, Pa. R.A.P.1925(b). Defendant replied to the order on October 23, 2003, claiming that the trial court erred in denying his motion to suppress.

Trial Court Opinion, 11/20/03, at 1-3.

¶ 3 Appellant raises one issue for our review:

Did not the lower court err in denying appellant's motion to suppress physical evidence, where the police stopped and frisked appellant based on a vague, uncorroborated anonymous call and only later, after the seizure, did the police determine the name and address of the caller?

Appellant's Brief at 3.

¶ 4 "Our review of a suppression ruling is limited to determining whether the record as a whole supports the suppression court's factual findings and whether the legal conclusions drawn from such findings are free of error." Commonwealth v. Battaglia, 802 A.2d 652, 654 (Pa.Super.2002) (citation omitted). Our scope of review is limited: "we must 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." Commonwealth v. Maxon, 798 A.2d 761, 765 (Pa.Super.2002). "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." In the Interest of D.M., 560 Pa. 166, 743 A.2d 422, 424 (1999).

¶ 5 Our sole issue for review is the legality of the stop and frisk of Appellant under Article I, § 8 of the Pennsylvania Constitution, and the Fourth Amendment of the United States Constitution. Both protect an individual from unreasonable searches and seizures. Our analysis begins with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Terry sets the standard for the reasonableness of an investigative stop under the Fourth Amendment of the United States Constitution. Terry also sets forth the standard for the reasonableness of an investigative stop under Art. I, § 8 of the Pennsylvania Constitution. Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226, 228-229 (1996).

¶ 6 Under Terry and Melendez, it is well established that a police officer may conduct a brief investigative stop of an individual, if the officer observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot. Commonwealth v. Preacher, 827 A.2d 1235, 1238 (Pa.Super.2003). "An investigatory stop subjects a person to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Such an investigatory stop is justified only if the detaining officer can point to specific and articulable facts which, in conjunction with rational inference derived from those facts, give rise to a reasonable suspicion of criminal activity and therefore warrant the intrusion." Commonwealth v. E.M., 558 Pa. 16, 735 A.2d 654, 659 (1999) (citations omitted). In ascertaining the existence of reasonable suspicion, we must look to the totality of the circumstances to determine whether the officer had reasonable suspicion that criminal activity was afoot. Commonwealth v. Riley, 715 A.2d 1131, 1135 (Pa.Super.1998). If so, the officer would then be justified in conducting an investigative stop of the defendant.

¶ 7 "Reasonable suspicion depends upon both the content of the information possessed by the police and its degree of reliability." Commonwealth v. Kondash, 808 A.2d 943, 946 (Pa.Super.2002). "To have reasonable suspicion, police officers need not personally observe the illegal or suspicious conduct, but may rely upon the information of third parties, including `tips' from citizens. Naturally, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable." Commonwealth v. Swartz, 787 A.2d 1021, 1024-25 (Pa.Super.2001) (en banc) (citations omitted).

¶ 8 In Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571 (1997), our Supreme Court examined at length the so-called "man with a gun" scenario: namely, an anonymous tip that a person at a particular place matching a particular description is carrying a gun. Our Supreme Court held that such an anonymous tip, without independent police corroboration producing reasonable suspicion of criminal activity, is insufficient to justify a stop and frisk. The Court reasoned as follows:

In [Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068 (1997)], the Philadelphia police responded to an anonymous telephone report that there was a man with a gun at the corner of Sydenham and York Streets. The suspect was described as a black male wearing a blue cap, black jeans and a gold or brownish coat. We held that such allegations, without more, did not constitute reasonable grounds for the police to suspect that the individual was armed and dangerous:

If the police respond to an anonymous call that a particular person at a specified location is engaged in criminal activity, and upon arriving at the location see a person matching the description but nothing more, they have no certain knowledge except that the caller accurately described someone at a particular location.... The fact that a suspect resembles the anonymous caller's description does not corroborate allegations of criminal conduct, for anyone can describe a person who is standing in a particular location at the time of the anonymous call. Something more is needed to corroborate the caller's allegations of criminal conduct.

Hawkins, 692 A.2d at 1070. Thus the details provided by the caller in this case were insufficient, even when corroborated, to satisfy the reasonable suspicion standard.

Id. at 574-575.

¶ 9 Our Supreme Court also explicitly rejected any "firearms exception" to the above rules. While the Court recognized the inherent danger of firearms on our streets, the Court still refused to allow for seizures based on the level of information set forth above. The Court reasoned as follows:

The Commonwealth contends, however, that the degree of danger to the police and the public from armed criminals is so great that if an anonymous caller provides a physical description of the individual, an accurate location and an allegation that the individual is armed, a Terry stop is justified. That argument will not withstand constitutional scrutiny. The danger to

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