Com. v. Thomas, M. ( 2019 )

J-A04026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MICHAEL THOMAS : No. 534 EDA 2018
Appeal from the Order, November 17, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0004390-2017.
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS,* J.
JUDGMENT ORDER BY KUNSELMAN, J.: FILED MAY 02, 2019
The Commonwealth appeals and asks whether the trial court erred by
suppressing the handgun that police seized from Michael Thomas following a
stop-and-frisk.1 The common pleas court concluded the police officers lacked
reasonable suspicion when they stopped and searched Mr. Thomas.
Briefly, this Terry stop2 occurred a few blocks away from the scene of
a recent, armed-robbery. When they stopped Mr. Thomas, police subjectively
believed he matched the description of their suspect. The officers’ superiors
____________________________________________
1 The Commonwealth charged Mr. Thomas under 18 Pa.C.S.A. §§ 6016, 6018
(The Uniform Firearms Act).
2 See Terry v. Ohio, 392 U.S. 1 (1968) (holding that, under the Fourth
Amendment of the Constitution of the United States, a police officer may stop
suspects on the street and frisk them, if the officer has a reasonable suspicion
that the person has committed, is committing, or is about to commit a crime
and has a reasonable belief that the person may be armed and presently
dangerous).
* Retired Senior Judge assigned to the Superior Court.
J-A04026-19
instructed them to look for a man in a grey coat. Mr. Thomas, however, was
wearing a green one.
His coat became evidence at the suppression hearing, and its color was
instrumental in the trial court’s decision to suppress. See Trial Court Opinion,
5/31/18, at 5-6. The trial court found no reasonable suspicion, because,
objectively speaking, Mr. Thomas did not match the description of a robbery
suspect, who was supposed to be in a grey coat. See id.
Because no warrant issued in this case, our standard of review is de
novo,3 and the best evidence of whether the police reasonably believed that
Mr. Thomas was wearing a grey coat is, of course, the coat itself. The coat is
critical evidence for our review, because whether police reasonably suspected
Mr. Thomas of the robbery turns upon his appearance on the night in question.
However, the Commonwealth did not make Mr. Thomas’ coat a part of the
certified record.
To ensure there was no breakdown in the Unified Judicial System, this
Court’s personnel contacted the Court of Common Pleas of Philadelphia
County. That court’s staff relayed that Mr. Thomas’ coat was in the possession
of the police department and that this Court would need to produce an order
to secure it.
____________________________________________
3See Ornelas v. United States, 517 U.S. 690 (1996); Commonwealth v.
Laatsch, 661 A.2d 1365 (Pa. 1995).
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J-A04026-19
We do not assist appellants in perfecting their record for appeal. An
appellant’s failure to transmit all parts of the record – including exhibits –
results in affirmation. See Commonwealth v. Preston, 904 A.2d 1 (Pa.
Super. 2006) (en banc). The Commonwealth violated Preston and the Rules
of Appellate Procedures by not ensuring that the full record developed below
made its way to this Court.
Order affirmed. Case remanded for further proceedings.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/2/19
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