Com. v. Hunter, J. ( 2016 )

J.A30034/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
JAMES HUNTER, :
:
Appellant :
: No. 3203 EDA 2014
Appeal from the Judgment of Sentence November 13, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s): CP-51-CR-0001447-2014
BEFORE: MUNDY, JENKINS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 12, 2016
Appellant, James Hunter, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following his
bench conviction of firearms offenses. Appellant challenges the trial court’s
denial of his suppression motion, arguing the court erred in finding an
anonymous tip provided the police officer reasonable suspicion to conduct an
investigative detention. We affirm.
“On January 16, 2014 at 2:50 a.m., Philadelphia Police Officer Donyell
Thomas received a radio call directing him to the 4600 block of North
Palethorpe Street in Philadelphia for a burglary in progress.” Trial Ct. Op.,
1/23/15, at 2. The officer was in uniform in a police vehicle and was
*
Former Justice specially assigned to the Superior Court.
J.A30034/15
working alone. N.T. Suppression H’rg, 6/27/14, at 16. The police dispatch
informed Officer Thomas that “a neighbor that lives on that particular block
said he saw someone . . . force their way or get into the rear of a property
on 4600.” Id. at 13. The officer described this area as a “high crime area”
with shootings and “a lot of drug traffic.” Id. at 12. Officer Thomas did not
know who called police or from which address the tip was given. Id. at 15.
The call described the suspect as an African-American
male wearing a black jacket, with a black bookbag. The
suspect was reportedly heading northbound on Palethorpe
towards Wyoming Avenue. Officer Thomas responded to
Palethorpe, then traveled northbound to Wyoming Avenue.
He then turned onto the 4800 block of North 2nd Street,
continuing northbound, and observed Appellant matching
the description of the suspect. Appellant was walking
northbound, and was the only person Officer Thomas saw
in the area.
Officer Thomas [stopped approximately two feet from
Appellant, disembarked from his vehicle,1] approached
Appellant and asked him where he was going. Appellant
responded that he was going to his bus. Officer Thomas
then asked Appellant to stop.
Trial Ct. Op. at 2 (citing N.T. at 5-8).
As Appellant’s argument emphasizes the sequence of the ensuing
events,2 we review Officer Thomas’ testimony in detail. On direct
examination, Officer Thomas first stated that after stopping Appellant, he
“asked him, Are you coming from Palethorpe Street?,” Appellant said yes,
1
N.T. at 9. Furthermore, Officer Thomas testified there were street lights
and he could see his surroundings. Id. at 8.
2
See Appellant’s Brief at 19 n.4.
-2-
J.A30034/15
and the officer “secured him for officer’s safety and . . . asked him if he had
any weapons on his person.” N.T. at 8. On the next page of testimony, the
Commonwealth asked Officer Thomas specifically when he asked Appellant if
he was coming from Palethorpe Street, and the officer replied he could not
recall the sequence of events. Id. at 9.
During the pat-down, Officer Thomas recovered from inside Appellant’s
jacket a “25-caliber handgun . . . loaded with six live rounds.” Id. at 10.
The officer initially testified that after he recovered the gun, he placed
Appellant in custody inside his vehicle. Id. at 11. Inside Appellant’s book
bag, the officer found gloves, duct tape, plastic gloves, a screwdriver, a
kitchen knife, and a knit hat. Id. When Appellant was in the vehicle, he
said he “was going over to Palethorpe Street to engage in a fight[ with]
some guys he knew that had lived on that block because a day prior[,] they
beat him up. They roamed him as he said, quote, unquote.” Id.
On cross-examination, Appellant confronted Officer Thomas with his
preliminary hearing testimony, in which the officer stated he saw Appellant,
stopped him, and then “asked him where he was coming from.” Id. at 18.
Appellant also showed the officer his “73-483” written report, which stated
that after the officer asked Appellant “where he was coming from, [the
officer] asked him to step into [his] patrol vehicle.” Id. Officer Thomas
agreed that “at that point,” Appellant was not free to leave, and furthermore
that at that point, he asked Appellant if he had any weapons. Id. at 19. On
-3-
J.A30034/15
recross-examination, redirect examination, and further recross-examination,
Officer Thomas agreed to this chronology: he stopped Appellant, handcuffed
him, placed him in the police vehicle, asked “if he had any weapon on him,”
and then recovered the gun from his jacket. Id. at 21-23.
Appellant was charged with firearms offenses. He filed a suppression
motion, and the above-cited hearing was held on June 27, 2014. The court
announced its ruling to deny the motion at the hearing. The case proceeded
to a bench trial on September 5, 2014, at which the court found Appellant
guilty of persons not to possess a firearm, firearms not to be carried without
a license, and carrying firearms on public streets in Philadelphia. 3 On
November 13, 2014, the court imposed an aggregate sentence of four to ten
years’ imprisonment and three years’ probation. Appellant did not file a
post-sentence motion, but took this timely appeal.4
Appellant raises one claim before this Court: that the trial court erred
in finding Officer Thomas had reasonable suspicion to conduct an
investigative detention.5 He presents three arguments in support, which we
summarize as follows. First, the anonymous tip gave only a “vague, generic,
3
18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 6108.
4
The trial court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.
5
Appellant concedes that Officer Thomas’ approach and initial question—as
to where Appellant was going—were legal. See Appellant’s Brief at 12, 20
(“On this point, the suppression court’s conclusion should be upheld.”).
-4-
J.A30034/15
incomplete description” of the suspect, and did not describe the suspect’s
age, height, weight, hairstyle, facial hair, gait, or any other physical trait.
Appellant’s Brief at 20, 40. Thus, the tip failed to provide “a particularized
and objective basis” required for an investigatory detention. Id. at 21. The
mere fact that the tipster’s “description and location of” a suspect are
ultimately accurate is not sufficient reliability. Id. at 26. Second, the
anonymous “tipster’s credibility and basis of knowledge could not be
assessed.” Id. at 20. “[T]here was no evidence that the tip originated in a
911 call or was otherwise traceable.[ ]” Id. at 40. “The suppression court
could not be certain that” Officer Thomas did not “invent[ ]” the police flash
report, the tip could have been given by a “prankster or a person with a
grudge,” and “[t]he tipster could have been a neighbor who mistakenly
believed a man was trying to break into a house that was actually his own. [
]
” Id. at 39, 41-42. Third, “Officer Thomas failed entirely to corroborate
any of the tip’s allegations” “through further investigation, such as [his] own
observations of and encounters with the suspect that do not rise to the level
of a seizure.” Id. at 20, 22-23. Appellant maintains, “Except in the most
extraordinary circumstances, an anonymous tip alone cannot establish the
reasonable suspicion [required for] an investigative stop.” Id. at 22, 29
(citing, inter alia, Navarette v. California, 134 S. Ct. 1683 (2014);
Commonwealth v. Goodwin, 750 A.2d 795 (Pa. 2000); Commonwealth
v. Hawkins, 692 A.2d 1068 (Pa. 1997)). We find no relief is due.
-5-
J.A30034/15
This Court has stated:
“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.”
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.” “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.”
[Terry v. Ohio, 392 U.S. 1 (1968),] sets the standard for
the reasonableness of an investigative stop under the
Fourth Amendment of the United States Constitution [and]
Art. I, § 8 of the Pennsylvania Constitution.
Commonwealth v. Melendez, . . . 676 A.2d 226, 228-
229 (Pa. 1996).
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. “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.” 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. If so, the officer would then be justified
in conducting an investigative stop of the defendant.
“Reasonable suspicion depends upon both the content
of the information possessed by the police and its degree
of reliability.” “To have reasonable suspicion, police
-6-
J.A30034/15
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.”
In Commonwealth v. Jackson, . . . 698 A.2d 571 (Pa.
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 [Hawkins,] 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.
-7-
J.A30034/15
Hawkins, 692 A.2d at 1070. . . .
[Jackson,] 698 A.2d at 574-575.
Commonwealth v. Wiley, 858 A.2d 1191, 1194-95 (Pa. Super. 2004)
(some citations omitted).
In the 2014 United States Supreme Court decision of Navarette, a
woman called 911 and reported the defendants’ “truck ‘ran the [caller] off
the roadway.’” Navarette, 134 S. Ct. at 1689. The caller described the
vehicle as “a silver Ford F-150 pickup” and provided the license plate
number. Id. Two officers separately responded to the subsequent
broadcast and stopped the defendants’ vehicle. Id. at 1687. “As the two
officers approached the truck, they smelled marijuana. A search of the truck
bed revealed 30 pounds of marijuana.” Id. The police arrested both the
driver and the passenger. The defendants “moved to suppress the evidence,
arguing that the traffic stop violated the Fourth Amendment because the
officer lacked reasonable suspicion of criminal activity.” Id.
On appeal, the High Court affirmed the suppression court’s refusal to
suppress the evidence, holding “the stop complied with the Fourth
Amendment because, under the totality of the circumstances, the officer had
reasonable suspicion that the driver was intoxicated.” Id. at 1686. The
Court reiterated:
“[A]n anonymous tip alone seldom demonstrates the
informant’s basis of knowledge or veracity.” That is
because “ordinary citizens generally do not provide
extensive recitations of the basis of their everyday
-8-
J.A30034/15
observations,” and an anonymous tipster’s veracity is “‘by
hypothesis largely unknown, and unknowable.’” But under
appropriate circumstances, an anonymous tip can
demonstrate “sufficient indicia of reliability to provide
reasonable suspicion to make [an] investigatory stop.”
Id. at 1687 (citations omitted).
The Court stated, “The initial question in this case is whether the
[anonymous6] 911 call was sufficiently reliable to credit the allegation that
[the defendants’] truck ‘ran the [caller] off the roadway.’” Id. at 1688. It
then reasoned:
By reporting that she had been run off the road by a
specific vehicle—a silver Ford F-150 pickup, license plate
8D94925—the caller necessarily claimed eyewitness
knowledge of the alleged dangerous driving. That basis of
knowledge lends significant support to the tip’s reliability. .
..
There is also reason to think that the 911 caller in this
case was telling the truth. Police confirmed the truck’s
location . . . roughly 19 highway miles south of the
location reported in the 911 call . . . roughly 18 minutes
after the 911 call[ ]. That timeline of events suggests that
the caller reported the incident soon after she was run off
the road. That sort of contemporaneous report has long
been treated as especially reliable.
Id. at 1689.
In the case sub judice, the trial court noted Appellant’s reliance on
6
The caller had “identified herself by name in the 911 call recording.”
Navarette, 134 S. Ct. at 1687 n.1. However, “the prosecution did not
introduce the recording into evidence,” and thus both the prosecution “and
the lower courts” treated her tip as anonymous. Id.
-9-
J.A30034/15
Jackson and Hawkins7 and distinguished those cases:
. . . In both of these cases, uncorroborated reports of
individuals with weapons were not sufficient to establish
reasonable suspicion of criminal activity, and therefore did
not justify a search.
Unlike the cases cited by Appellant, the instant case
involved a report of burglary in progress. While mere
possession of a firearm may not necessarily involve illegal
activity, burglary is certainly criminal. The report of a
burglary necessarily gives police a reasonable suspicion
that criminal activity is afoot and the individual described
is involved. Moreover, Officer Thomas had this report of
criminal activity, a description of the suspect, and the
location and movements of the suspect. This is more
information than provided in Hawkins and Jackson,
giving rise to a reasonable suspicion that Appellant was
involved in criminal activity.
Trial Ct. Op. at 5.
The trial court also noted Appellant’s reliance on Navarette and
reasoned:
. . . Appellant argued that there was no indicia of
reliability in the initial report of a burglary. The record,
however, suggests otherwise. Although Navarette
concerned a vehicle stop as opposed to a pedestrian stop,
the requirement that officers have reasonable suspicion,
and the factors that contribute to reasonable suspicion are
the same. Officer Thomas responded to a radio call which
provided very specific information, i.e., the location and
description of the suspect and crime. Appellant was then
located mere blocks from the reported burglary, within a
few minutes of the report. This establishes
contemporaneity, a factor that supported the credibility of
the call in Navarette. Appellant matched the description
of the suspect from the report, and confirmed that he had
7
Appellant likewise relies on Jackson and Hawkins on appeal. Appellant’s
Brief at 29-31.
- 10 -
J.A30034/15
come from Palethorpe Street, lending further credibility.
All of these factors—the totality of the circumstances—
provided Officer Thomas with reasonable suspicion to
investigate, and ultimately probable cause to arrest
Appellant.
Id. at 6. We agree with the trial court’s reasoning.
We agree with the trial court’s emphasis that the tip reported a
burglary in progress, and thus that this was merely not a “‘man with a gun’
scenario: namely, an anonymous tip that a person at a particular place
matching a particular description is carrying a gun.” See Wiley, 858 A.2d
at 1194 (quoting Jackson, 698 A.2d at 574-75). We further agree with the
trial court’s comparison of Officer Thomas’ observation of Appellant “mere
blocks” from Palethorpe Street “within a few minutes of the report” to the
Navarette’s officers’ observation of the defendants’ truck on the highway
approximately “highway miles south of the location reported in the 911 call .
. . roughly 18 minutes after the 911 call[ ].” See Navarette, 134 S. Ct. at
1689; Trial Ct. Op. at 6.
Furthermore, we reject Appellant’s argument that Officer Thomas
failed to investigate or corroborate the anonymous tip. The officer testified
the police radio information said the suspect was a black male wearing a
black jacket and black book bag, and “was seen walking on Palethorpe going
towards Wyoming.” N.T. at 6. The officer responded to “4600 Palethorpe
Street” and then Wyoming Street, but did not see anyone. Id. at 7. Officer
Thomas then saw Appellant, who matched the description, on the 4800 block
- 11 -
J.A30034/15
of North Second Street. Id. As stated above, Appellant concedes the
officer’s initial approach of Appellant was legal. Appellant’s Brief at 20. The
officer then asked Appellant if he was coming from Palethorpe Street, and
Appellant responded “Yes.” N.T. at 8. We agree with the trial court that
these facts provided Officer Thomas with the reasonable suspicion to
conduct an investigative detention of Appellant. See Wiley, 858 A.2d at
1194-95. Accordingly, we do not disturb the trial court’s suppression ruling
and affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2016
- 12 -