Com. v. Aursby, J. ( 2015 )

J-S77014-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEFFREY AURSBY
Appellant No. 3082 EDA 2013
Appeal from the Judgment of Sentence entered September 12, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0002749-2012
BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.
CONCURRING STATEMENT BY STRASSBURGER J.:FILED FEBRUARY 19, 2015
I agree with the Majority’s determination that, under the totality of the
circumstances, Officer Telesford’s articulated facts gave rise to reasonable
suspicion, which justified the Terry stop of Appellant. Accordingly, I would
affirm.
I write separately to express my displeasure with the jurisprudence
surrounding the concept of unprovoked flight. In my view, the instant case
does not turn on the issue of flight as there are a number of other relevant
factors supporting the trial court’s determination that the officers had
reasonable suspicion to stop and frisk Appellant. However, it seems
fundamentally unfair, and likely discriminatory, that so-called “high-crime
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S77014-14
areas” are held to a lower standard with respect to Fourth Amendment
protections than are areas not designated as such.
In my view, reliance on unprovoked flight in a high-crime area as a
brightline basis upon which to find reasonable suspicion is dangerously close
to creating a per se rule that the Wardlow Court was careful to avoid.
Illinois v. Wardlow, 528 U.S. 119, 127-28 (2000) (Stevens, J. concurring
in part, dissenting in part).
As our learned colleagues in the Tennessee Supreme Court observed
correctly,
[W]hile we do not wish to encourage flight from officers ...,
we realize from a practical standpoint that flight does not always
amount to reasonable suspicion. In fact, innocent reasons for
flight abound in high crime areas, including: fear of retribution
for speaking to officers, unwillingness to appear as witnesses,
and fear of being wrongfully apprehended as a guilty party.
State v. Nicholson, 188 S.W.3d 649, 661 (Tenn. 2006) (holding that,
under the totality of the circumstances, the defendant's flight after police
officer asked him to “hold up,” without more, did not provide officer with
reasonable suspicion of criminal activity to justify investigatory stop).
-2-