Com. v. Carter, H. ( 2014 )

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2014 PA Super 265COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
HYKEEM CARTER
Appellee No. 2339 EDA 2012
Appeal from the Order July 6, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000285-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
PANELLA, J., DONOHUE, J., ALLEN, J., LAZARUS, J., MUNDY, J.,
and OLSON, J.
DISSENTING OPINION BY LAZARUS, J.: FILED DECEMBER 02, 2014
I respectfully dissent. It is well established that a police officer may
conduct a brief investigatory 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. Terry v. Ohio, 392 U.S. 1,
30 (1968); Commonwealth v. Lewis, 636 A.2d 619, 623 (Pa. 1994).
However, an investigatory stop is justified only if the detaining officer can
point to specific and articulable facts which, in conjunction with rational
inferences derived from those facts, give rise to a reasonable suspicion of
criminal activity and therefore warrant the intrusion. Commonwealth v.
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Ellis, 662 A.2d 1043 (Pa. 1995). Because the articulable facts,1 taken as a
whole, did not support Officer Blaszczyk’s conclusion that criminal activity
was afoot, I would affirm the order suppressing the evidence obtained from
the pat down of Carter.
The majority characterizes the suppression court’s legal inquiry as one
that employs a “divide-and-conquer” analysis. Majority Opinion, at 15.
Essentially, the majority interprets the court’s approach as analyzing the
evidence piecemeal, rather than taking into account the totality of the
circumstances. I disagree. Here, the suppression judge, the Honorable
Carolyn H. Nichols, states in her Pa.R.A.P. 1925(a) opinion:
Reviewing the totality of the circumstances, there exists no
combinations of factors to justify reasonable suspicion in this
case. Mr. Carter’s decision to be left alone and hide the content
of his pocket does not establish that he was engaged in criminal
activity. Furthermore, Mr. Carter’s action in moving around to
prevent the officer from viewing the content of his pocket is
innocent activity in nature and certainly cannot under
established law lead the officer to believe that criminal activity
was afoot.
Trial Court Opinion, 11/3/2012, at 7 (emphasis added).
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1
We recognize that when the Commonwealth appeals from a suppression
order “[w]e may consider the evidence of the witnesses offered by the
defendant, as verdict winner, and only so much of the evidence presented
by the Commonwealth that is not contradicted when examined in the
context of the record as a whole.” Commonwealth v. Feczko, 10 A.3d
1285, 1287 (Pa. Super. 2010) (en banc) (citation omitted). However, here
the Commonwealth presented the sole witness at the suppression hearing,
Officer Blaszczyk.
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Not only do I agree with Judge Nichols’ legal conclusion that, based on
the facts of record, Officers Blaszczyk and White did not have reasonable
suspicion to stop and frisk Carter, but I believe it is our duty as an appellate
court to defer to the suppression judge’s credibility determination where
those findings, as here, are supported by the record.
The relevant evidence shows that the officers observed Carter standing
alone on a street corner in an area known for drug activity; Officer Blaszczyk
had made several prior gun and drug arrests at that location. As the officers
drove by Carter, they observed a bulge that weighed down Carter’s jacket
pocket, saw Carter look in the officers’ direction and then watched Carter
walk in the opposite direction from their vehicle. This series of events
occurred three to four times. Based upon this evidence, Officer Blaszczyk
concluded that that he had reasonable suspicion to stop Carter and pat him
down.
This case is most analogous with our Court’s decision in
Commonwealth v. Martinez, 588 A.2d 513 (Pa. Super. 1991). In
Martinez, the defendant was also standing on a street corner, in an area
known for drug activity, late at night. Policemen, who knew the defendant
and had spoken with her in the past, approached the defendant who quickly
turned away from them and walked up the street. As the defendant walked
away, the officers noticed that she held her hands in front of her coat and
that there was a bulge in her pocket. The police commanded defendant to
stop and, as she leaned over the police car, contraband fell out of her coat.
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On appeal, the defendant contended that the court should have suppressed
the evidence seized by the police during the stop. Our Court found that the
defendant’s flight from the street corner and the bulge in her jacket were
insufficient facts to support the conclusion that criminal activity was afoot.
Here, like in Martinez, the facts are simply insufficient to support the
conclusion that Officer Blaszczyk had reasonable suspicion to stop and frisk
Carter at that time. At most, the officers had a mere “hunch” that Carter,
who turned away as the officers drove by him, may have had a gun in his
pocket. Because the Commonwealth’s evidence falls short of proving that
Carter was engaged in criminal activity and that he was armed and
dangerous, I would affirm the suppression court.
Judge Donohue concurs in the result.
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