Com. v. Whaley, K. ( 2016 )

J. S30022/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KEITH WHALEY, : No. 1781 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, June 11, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0013260-2014
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 26, 2016
Keith Whaley appeals from the judgment of sentence entered by the
Court of Common Pleas of Philadelphia County on June 11, 2015, following
his conviction in a waiver trial of firearms not to be carried without a license;
persons not to possess, use, manufacture, control, sell or transfer firearms;
and carrying firearms on public streets or public property in Philadelphia.1
We reverse.
The suppression court summarized the procedural and factual history
as follows:
I. OVERVIEW AND PROCEDURAL HISTORY
. . . . This appeal stems from a search of [appellant]
and seizure of an unlicensed gun. On October 5,
1
18 Pa.C.S.A. § 6106(a)(1), 18 Pa.C.S.A. § 6105(a)(1), and 18 Pa.C.S.A.
§ 6108, respectively.
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2014, Philadelphia police officers received a radio call
with flash information describing [appellant] and
another burglary suspect at 4850 North 7th Street,
Philadelphia, Pennsylvania. [Appellant] was frisked
after matching the flash description near the stated
location and displaying suspicious and furtive
behavior. During the frisk, the police officer felt the
handle of a gun in [appellant’s] right pocket and
subsequently discovered a revolver. Upon
recovering the item, the officer arrested [appellant]
after which he was charged with Firearms Not to be
Carried Without License (F3), Possession of Firearms
Prohibited (M1), and Carrying a Firearm on Public
Streets in Philadelphia (M1).
On January 20, 2015, [appellant] filed a Motion
to Suppress in which he sought to suppress physical
evidence. On March 24, 2015, this court held a
hearing on the matter and at the conclusion of the
hearing denied [appellant’s] Motion to Suppress. On
that same day, a non-jury trial was held at which
[appellant] was found guilty of the aforementioned
charges. A pre-sentence investigation was also
ordered. On June 11, 2015, this court sentenced
[appellant] to eleven-and-a-half (11 ½) to
twenty-three (23) months of incarceration plus
five (5) years reporting probation at the State
Correctional Institution with credit for time served.
....
II. FACTUAL HISTORY
Philadelphia Police Officer Eric Girill, assigned
to the 35th District, testified that on October 5, 2014,
at approximately 6:16 p.m., he was fully uniformed
on a routine patrol with his partner, Officer McClain,
in a marked police vehicle when he received a flash
radio call that two black males in dark clothing were
breaking into the rear of the residence at 4850 North
7th Street, Philadelphia, Pennsylvania. (N.T. 3/24/15
pp. 4, 5, 6, 7, 12, 14).[Footnote 4] At the time of
trial, Officer Girill had been a police officer for
nine (9) years. (N.T. 3/24/15 p. 5). He had been at
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the 35th district for five (5) months and the
18th district prior to that time. Id. At the time of
the radio call, Officer Girill and his partner were no
more than three (3) blocks away from the location.
(N.T. 3/24/15 p. 7). Both officers proceeded to
4850 North 7th Street with sirens turned on and
arrived in less than one (1) minute. (N.T. 3/24/15
pp. 17, 22). Officer Girill also testified that prior to
entering the alleyway, the sirens were turned off.
(N.T. 3/24/15 p. 22).
[Footnote 4] All references to the record
refer to the transcript of the suppression
hearing and trial recorded on March 24,
2015.
Officer Girill testified that it was daylight when
he and his partner arrived at the above location.
(N.T. 3/24/15 p. 11). Both officers proceeded
directly to the rear of the residence in question.
(N.T. 3/24/15 p. 7). As Officer Girill drove through,
he observed two (2) males walking southbound in
the alleyway close to 4850 North 7th Street. (N.T.
3/24/15 pp. 7, 9). The officer described the
alleyway as a “typical row home alleyway,”
twenty[-]five (25) to thirty (30) feet in length, with
row homes on both sides of the alleyway. (N.T.
3/24/15 p. 9). Further, the officer testified that the
width of the alleyway would allow two (2) cars to be
parked parallel to each other (N.T. 3/24/15 pp. 15,
16).
Upon seeing the two (2) males, Officer Girill
ordered them to stop. (N.T. 3/24/15 p. 7). One
male stopped and the other male, [appellant]
continued to walk southbound with his hands in his
pocket. Id. Officer Girill then ordered [appellant] to
stop. Id. In response, [appellant] turned and
concealed the right side of his body behind a parked
car located behind another residence half-way down
the alleyway. (N.T. 3/24/15 pp. 7, 8). Officer Girill
later testified, he thought [appellant] was hiding a
weapon due to the numerous calls received within a
month of a robbery, a person with a gun including a
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point-of-gun robbery, and similar activity. (N.T.
3/24/15 p. 24). As Officer Girill proceeded to
approach [appellant], Officer McClain stayed behind
with the other male. (N.T. 3/24/15 pp. 8, 11). As
Officer Girill came closer to [appellant], [appellant]
stared at Officer Girill and shook his head as the
officer apprehended him. (N.T. 3/24/15 pp. 8, 9).
Officer Girill testified there were several other men
present in the alleyway, “hanging out,” at the same
time as he and [appellant] were stopped. (N.T.
3/24/15 p. 9). Officer Girill also testified there was a
parked vehicle in the middle of the alleyway with a
couple inside of it. Id.
Officer Girill testified that as he patted down
[appellant], he felt a gun in [appellant’s] right hip
[pocket] which was the same hip that [appellant]
had concealed behind the parked car. (N.T. 3/24/15
pp. 7, 9). Officer Girill also stated that when he
pat[ted] down [appellant], he immediately felt the
handle of the gun in [appellant’s] right pocket, and
that he believed it only to be a gun. (N.T. 3/24/15
p. 12). Moreover, he stated that he had felt the
handle of a revolver a few dozen times before in his
experience as a police officer. Id. Officer Girill
made an in-court identification of [appellant] as
Keith Whaley. (N.T. 3/24/15 p. 8).
Trial court opinion, 10/30/15 at 1-4 (Footnotes 1-3 omitted).
Appellant raises the following issue for our review:
Where [appellant] was detained and searched solely
on the basis of an unfounded radio call for two men
that were trying to gain entry to the rear of a
property and [appellant] was one of several males in
the alley, was not such detention and search
unsupported by reasonable suspicion or probable
cause, in violation of the Fourth and Fourteenth
Amendments of the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution,
and therefore should not the physical evidence
subsequently seized by the police have been
suppressed?
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Appellant’s brief at 3.
Our standard of review for challenges to the denial of a suppression
motion is as follows:
[We are] limited to determining whether the
suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn
from those facts are correct. Because the
Commonwealth prevailed before the suppression
court, we may consider only the evidence of the
Commonwealth 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
suppression court’s factual findings are supported by
the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are
erroneous. Where . . . the appeal of the
determination of the suppression court turns on
allegations of legal error, the suppression court’s
legal conclusions are not binding on an appellate
court, whose duty it is to determine if the
suppression court properly applied the law to the
facts. Thus, the conclusions of law of the courts
below are subject to our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),
appeal denied, 65 A.3d 413 (Pa. 2013) (citations omitted).
Under our Fourth Amendment jurisprudence, three levels of
interactions between citizens and police officers exist: a mere encounter, an
investigative detention, and a custodial detention or an arrest.
Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.Super. 2012), appeal
denied, 50 A.3d 124 (Pa. 2012) (citation omitted).
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There exists no dispute that the instant appeal involves an
investigatory detention. An investigatory detention subjects an individual to
a stop and short period of detention. Id. This seizure does not involve
actions that are so coercive as to comprise the equivalent of an arrest. Id.
To conduct an investigative detention, police must have reasonable suspicion
of criminal activity. Id.
Reasonable suspicion exists “if the police officer’s reasonable and
articulable belief that criminal activity was afoot is linked with his
observation of suspicious or irregular behavior on behalf of the particular
defendant stopped.” Commonwealth v. Kearney, 601 A.2d 346, 348
(Pa.Super. 1992) (citation omitted).
[Moreover,] [i]f 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.
Commonwealth v. Wiley, 858 A.2d 1191, 1194-1195 (Pa.Super. 2004),
quoting Commonwealth v. Hawkins, 692 A.2d 1068, 1070 (Pa. 1997)
(other citations omitted). Additionally, it is well settled that “[m]ere
presence near a high crime area or in the vicinity of a recently reported
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crime, is not enough to warrant a Terry[2] stop.” Commonwealth v.
Kearney, 601 A.2d 346, 348 (Pa.Super. 1992) (citations omitted). Rather, a
police officer “must observe irregular behavior before he initiates a stop
and, concurrently to his observation, he must hold a belief that criminal
activity is afoot.” Id. (citations omitted and emphasis added).
Here, appellant was seized for constitutional purposes at the moment
Officer Girill ordered him to stop. This is so because the relevant inquiry is
whether a reasonable person who is innocent of any crime would have
thought he was being restrained had he been standing in defendant’s shoes.
See Commonwealth v. Jones, 378 A.2d 835, 840 (Pa. 1977). As soon as
Officer Girill ordered appellant to stop, a reasonable person standing in
appellant’s shoes would have felt that he was not free to depart. For that
seizure to be lawful, then, Officer Girill must have developed a reasonable
suspicion prior to ordering appellant to stop.
The record clearly establishes that Officer Girill responded to a radio
call based on an anonymous tip concerning two African American men at a
specified location who were allegedly engaged in a burglary. 3 (Notes of
testimony, 3/24/15 at 6, 13.) Upon arriving at the location within one
minute of receiving the radio call, Officer Girill saw appellant, an African
2
Terry v. Ohio, 392 U.S. 1 (1968).
3
Officer Girill testified that the tip was later determined to be unfounded.
(Notes of testimony, 3/24/15 at 13.)
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American man, and his companion walking down an alleyway, as well as five
other black males “hanging out in the area.” (Id. at 7, 19.) Officer Girill did
not observe appellant engage in any irregular or suspicious activity prior to
directing him to stop, as demonstrated by the following colloquy:
Q. When you got to the location, did you go to the
front or to the back?
A. We went directly to the rear.
Q. What happened when you went to the rear?
A. As we pulled through, I was driving. I looked
to my left and I observed two males walking
southbound through the alleyway.
Q. What did you do when you saw those two
males?
A. Ordered them to stop.
Q. And what happened?
A. The one stopped. The other one proceeded to
walk southbound with his hands in his pocket.
Q. And what else happened?
A. We asked him to stop again. At that point he
turned and he concealed the right side of his
body behind a parked car.
....
Q. Was there anybody else other than you and
the defendant?
A. There were several other men out there.
Again, there was a car parked right in the
middle of the alleyway. There was a couple
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inside it and the rest were just hanging out
around it.
Q. Officer, when you frisked the defendant, why
did you do so?
A. Because he walked away with his hands in his
pocket. We [sic] refused to stop. And then he
was -- it appeared he was trying to hide
something behind the vehicle.
Id. at 7, 11.
The record clearly reflects that when Officer Girill first saw appellant,
he saw several African American males in the area, including appellant who
was merely walking with another man through an alleyway that happened to
be in the vicinity of a recently reported crime allegedly being committed by
two African American men. Nevertheless, Officer Girill ordered appellant to
stop. It was not until after Officer Girill ordered appellant to stop that the
officer observed appellant attempting to conceal the right side of his body
behind a parked car and hide something behind that vehicle. (Id. at 7, 11.)
Because appellant’s suspicious and irregular behavior of attempting to
conceal something behind the vehicle occurred after Officer Girill initiated
the stop, our case law dictates that the stop was illegal and, therefore, the
suppression court’s legal conclusion constituted error. Accordingly, the fruit
of the illegal seizure must be suppressed.
Judgment of sentence reversed. Case remanded. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2016
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