In re MD

781 A.2d 192

In the Interest of: M.D., (Juvenile).

Appeal of: M.D., (Juvenile).

Superior Court of Pennsylvania.

Submitted April 23, 2001.

Filed July 30, 2001.

John Packel, Public Defender, Philadelphia, for appellant.

Catherine L. Marshall, Asst. District Atty., Philadelphia, for Com., appellee.

Before: ORIE MELVIN, LALLY-GREEN and POPOVICH, JJ.

POPOVICH, J.

¶ 1 This is an appeal from the adjudication of delinquency and commitment entered in the Court of Common Pleas of Philadelphia County on August 9, 2000. Appellant's adjudication of delinquency was based upon his conviction for possession of a controlled substance. Upon review, we reverse and remand for a new trial.

¶ 2 Herein, appellant raises two issues for our consideration. First, appellant questions: "Where there was no evidence introduced concerning the appellant's description, did the lower court err when it denied a motion to suppress physical evidence because, inter alia, the appellant `matched' a description broadcast over police radio?" Appellant's Brief, p. 3. Second, appellant asks: "Even if the appellant had `matched' in every detail a description provided anonymously and broadcast over police radio, was the lower court wrong when it ruled that the description, coupled with appellant's flight, provided the police with a `reasonable suspicion' to chase the appellant, and was the court also wrong when it refused to suppress contraband discarded during the chase?" Appellant's Brief, p. 3.

¶ 3 Our standard of review for the denial of a suppression motion is

whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. When reviewing rulings of a suppression court 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. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Korenkiewicz, 743 A.2d 958, 962 (Pa.Super.1999) (en banc), appeal denied, 563 Pa. 659, 759 A.2d 383 (Pa.2000) (quoting Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492, 504-05 (Pa.1997)); Commonwealth v. Hayward, 756 A.2d 23, 26 (Pa.Super.2000).

¶ 4 The trial court set forth the facts adduced at the suppression hearing as follows:

The facts established, Philadelphia Police Officer Joseph Rapone was on patrol in the area of 6th and Butler Streets at approximately 6:35 p.m. on April 6, 2000. The officer was patrolling the area looking for a robbery suspect. He observed appellant, who matched the description of the suspect.3 The officer asked appellant to "come here." The officer testified he wanted to ask appellant his name. At that point, appellant ran. The officer briefly followed him in his police car. Appellant reversed his direction and continued running. The officer got out of his car and chased appellant on foot. When the officer came just a few feet behind appellant, he observed appellant spitting objects out of his mouth. Appellant was apprehended and the seven packets of crack cocaine which appellant spit from his mouth were recovered.

3 Upon review of the Notes of Testimony, the Court notes the officer described the clothing of the suspect for whom he was searching. The notes fail to reflect how appellant was dressed. However, in argument on the Motion to Suppress, both appellant's attorney and the District Attorney acknowledged appellant fit the description of the robber. The District Attorney stated. "Your Honor, the Commonwealth would contend the officer responded to a radio call for a robbery." N.T. 8/9/00 at 12. Appellant's attorney stated, "[The officer] had a description, I believe my client partially fit the description." N.T. 8/9/00 at 8.

Trial Court Opinion, pp. 1-2.

¶ 5 Initially, we agree with appellant that the record does not support the trial court's conclusion that appellant "matched" the description of the robbery suspect. As admitted by the trial court, the Commonwealth did not offer any evidence of appellant's appearance at the time of the seizure. Officer Joseph Rapone testified that he was responding to a radio call to search for a robbery suspect wearing a "gray hoody and blue jeans." He never described appellant's clothing. While the Commonwealth argued that appellant "matched" the description of the robbery suspect, defense counsel merely stated, "I believe my client partially fit the description." Since the record does not support the trial court's conclusion that appellant matched the description of the robbery suspect, we are not bound by the court's finding of fact relative to appellant's appearance. Rather, the record permits only the conclusion that appellant "partially fit the description" of the robbery suspect as admitted by appellant's counsel.¹

¶ 6 Appellant argues that Officer Rapone improperly chased him and that the pursuit constituted an illegal seizure. Appellant then argues that the crack cocaine which he discarded during the chase should have been suppressed as the product of an illegal seizure.

¶ 7 In Commonwealth v. Lynch, 773 A.2d 1240, 2001 PA Super 85 (Pa.Super.2001), we restated the law applicable to this case:

Article I, § 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution afford protections against unreasonable searches and seizures. Among the protections is the requirement that an officer have reasonable suspicion before an investigatory stop. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276, 280 (Pa.1969).

Our supreme court has interpreted Article I, § 8 protection more broadly than the Fourth Amendment and has found that a seizure occurs when an officer gives chase. Compare California v. Hodari D., 499 U.S. 621, 629, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), with Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769, 776 (Pa.1996). Under Pennsylvania law, any items abandoned by an individual under pursuit are considered fruits of a seizure. Matos, 672 A.2d at 770. Those items may only be received in evidence when an officer, before giving chase, has at least the reasonable suspicion necessary for an investigatory stop. Id. at 771. Stated another way, when one "is unconstitutionally seized by the police, i.e. without reasonable suspicion or probable cause, any subsequent flight with the police in pursuit continues the seizure and any contraband discarded during the pursuit is considered a product of coercion and is not admissible against the individual." Commonwealth v. Wimbush, 561 Pa. 368, 750 A.2d 807, 810 n. 5 (Pa.2000).

In deciding whether reasonable suspicion exists for an investigatory stop, our analysis is the same under both Article I, § 8 and the Fourth Amendment. Commonwealth v. McClease, 750 A.2d 320, 324 (Pa.Super.2000). See also Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571, 573 (Pa.1997) (stating that "Pennsylvania has always followed Terry in stop and frisk cases").

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." This assessment, like that applicable to the determination of probable cause, requires an evaluation of the totality of the circumstances, with a lesser showing needed to demonstrate reasonable suspicion in terms of both quantity or content and reliability.

Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153, 1156 (Pa.2000) (quoting Terry, 392 U.S. at 21-22 [88 S.Ct. 1868]) (citations omitted).

Among the factors to be considered in forming a basis for reasonable suspicion are tips, the reliability of the informants, time, location, and suspicious activity, including flight. Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903, 908 (Pa.2000) (noting that "nervous, evasive behavior such as flight is a pertinent factor in determining reasonable suspicion"); Zhahir, 751 A.2d at 1157 (stating that the expectation of criminal activity in a given area and nervous or evasive behavior are factors); Commonwealth v. Albert, [767 A.2d 549 (Pa.Super.2001) ] (pointing to the reliability of an informant's tip as well as time and place as factors in determining reasonable suspicion); Commonwealth v. Pizarro, 723 A.2d 675, 680 (Pa.Super.1998) (finding that flight and presence in heavy drugtrafficking areas are factors).

While a tip can be a factor, an anonymous tip alone is insufficient as a basis for reasonable suspicion. Wimbush, 750 A.2d at 811; Jackson, 698 A.2d at 572. Such anonymous tips must be treated with particular suspicion. Jackson, 698 A.2d at 573. Likewise, presence in a high crime area alone or flight alone does not form the basis for reasonable suspicion. Commonwealth v. Cook, 558 Pa. 50, 735 A.2d 673, 677 (Pa.1999). However, a combination of these factors may be sufficient. See Zhahir, 751 A.2d at 1157 (noting that suspicious conduct corroborates an anonymous tip); Cook, 735 A.2d at 677 (stating that circumstances which alone would be insufficient may combine to show reasonable suspicion); Commonwealth v. Cottman, 764 A.2d 595 (Pa.Super.2000) (finding that the officer's experience, appellant's presence in a high crime area, furtive movements, and flight established reasonable suspicion); Pizarro, 723 A.2d at 680 (finding that flight along with presence in heavy drug-trafficking area may demonstrate reasonable suspicion).

Lynch, 773 A.2d 1240, 2001 PA Super 85, ¶¶ 7-11; see also Albert, 767 A.2d at 552.

¶ 8 As our Supreme Court stated in Cook, 735 A.2d at 677:

Case law has established that certain facts, taken alone, do not establish reasonable suspicion. Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769 (Pa. 1996)(flight alone does not constitute reasonable suspicion); Commonwealth v.

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