Com. v. Pearsall, R. ( 2018 )

J-A03019-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
REGINALD PEARSALL :
:
Appellant : No. 235 EDA 2017
Appeal from the Judgment of Sentence Entered December 21, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009362-2015
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 02, 2018
Reginald Pearsall appeals from the judgment of sentence imposed on
his convictions for the crimes of persons not to possess firearms, firearms not
to be carried without a license, carrying firearms on public streets or public
property in Philadelphia, possession of a controlled substance, and resisting
arrest.1 On appeal, Pearsall contends that the trial court erred in denying his
pre-trial motion to suppress evidence, and challenges the sufficiency of the
evidence to support his conviction for resisting arrest. We affirm.
The relevant facts of this case are as follows. Philadelphia Police
Detective James Brady saw Pearsall, whom he believed to be the perpetrator
of a burglary; he had observed the burglar in a surveillance video. Officer
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6105, 6106, 6108, 5104; 35 P.S. § 780-113(a)(16),
respectively.
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Brady directed another officer, Officer Dianca Newman, to stop Pearsall. She
attempted to do so, and Pearsall fled. However, police apprehended and
arrested him, and they seized a gun and drugs. Pearsall was charged with the
above crimes, and before trial, he moved to suppress the gun and the drugs.
At a hearing on Pearsall’s motion to suppress, the Commonwealth
presented the testimony of Detective Brady and Officer Newman. Detective
Brady testified that on August 29, 2015, he was investigating a burglary at a
mini market and observed surveillance footage of the burglary that showed a
black male in his 20s who appeared to the detective to be relatively tall, over
six feet tall. N.T. Suppression Hearing, 01/15/16, at 7- 8. The male had
distinguishing long dreadlocks and wore a white t-shirt. Id.
Detective Brady explained that the following day, August 30, 2015, he
was working on an unrelated case when he observed a man later identified as
Pearsall walking on the street. Id. at 10. Pearsall was wearing a white t-shirt,
had long dreadlocks, and was relatively tall, over six feet tall. Id. at 10, 12.
He was also carrying a drawstring backpack and was approximately 100 yards
from the mini market that had been burglarized. Id. at 10, 24. Detective
Brady, who was in an unmarked car, sent Pearsall’s description and location
over police radio to all police cars in the vicinity and asked that he be stopped
for identification. Id. at 11.
Officer Newman testified that she responded to Detective Brady’s radio
call, and when she arrived at the scene, Detective Brady motioned toward
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Pearsall, as to identify him to Officer Newman as the man to stop. Officer
Newman called to Pearsall, “Yo, my man, stop right there.” Id. at 36-37.
Officer Newman said that she then got out of her vehicle and told Pearsall to
hang up his phone. He complied, but then swung his backpack around to the
front of his body “to create space” between himself and Officer Newman, and
took off running. Id. at 36. Officer Newman pursued him, and Pearsall tossed
his backpack to the ground and stopped running approximately 50 yards from
where he tossed it. Id. at 37, 38. Officer Newman ordered him to get on the
ground but he refused, so she drew her firearm and again ordered Pearsall to
the ground. He finally complied but then refused to put his hands behind his
back, which resulted in a brief struggle necessitating Detective Brady’s
assistance. Id. at 14, 39. Officer Newman and Detective Brady then placed
Pearsall under arrest. Id. at 14.
Officer Newman testified that once Pearsall was under arrest, she
directed a back-up officer, Officer Knowles, to retrieve Pearsall’s backpack.
Id. at 43. Officer Knowles testified that when he picked up the backpack, he
immediately felt what he believed to be a gun, and when he opened the
backpack he found a firearm. Id. at 50. Officer Newman performed a search
of Pearsall incident to arrest and recovered seven packages of crack cocaine.
Id. at 39. Detective Brady was then called to another location where the actual
burglar of the mini market was positively identified and subsequently taken
into custody. Id. at 15. Pearsall was not charged with the burglary.
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Following the suppression hearing, the court denied Pearsall’s motion to
suppress. The court later held a bench trial on stipulated facts at which the
testimony from the suppression hearing was incorporated2 and found Pearsall
guilty of all charges. The court later sentenced him to an aggregate prison
term of four to eight years. Pearsall filed a timely Notice of Appeal, as well as
a timely Concise Statement of Matters Complained of on Appeal.
He raises two issues for our review:
Was not reasonable suspicion lacking to stop appellant, who
was merely walking down the street near a market that had
been burglarized the previous day, where police relied on an
impermissibly vague profile that appellant did not even
match?
Was not appellant erroneously convicted of resisting arrest,
18 Pa.C.S.A. §5104, where the Commonwealth failed to
prove that the underlying arrest was lawful and that
appellant’s minor act of non-submission fell within the ambit
of the statute?
Appellant’s Brief at 3.
In his first issue, Pearsall argues that Detective Brady did not have a
sufficient basis to reasonably suspect that Pearsall was the perpetrator of the
burglary. Appellant’s Brief at 12. Pearsall claims that the description Detective
Brady was able to glean from the surveillance video was exceedingly vague
and overbroad, and did not fit him. Id. at 12, 13. Pearsall contends that where
a Terry3 stop is based not on police observation of an individual’s suspicious
2 N.T., 10/12/16, at 10.
3 Terry v. Ohio, 392 U.S. 1 (1968).
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conduct, but on the individual’s resemblance to a description of a suspect, the
police need to have information specific enough to reasonably conclude that
the party they are stopping is actually the person for whom they are searching.
Commonwealth v. Jackson, 519 A.2d 427, 430 (Pa.Super. 1986).
When reviewing a denial of a suppression motion, we consider only the
evidence of the prosecution and so much of the evidence of the defense as
remains uncontradicted when read in the context of the record as a whole.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007). It is within
the suppression court’s sole province as factfinder to pass on the credibility of
witnesses and the weight to be given to their testimony. The suppression court
is free to believe all, some, or none of the evidence presented at the
suppression hearing. Commonwealth v. Elmobdy, 823 A.2d 180, 183
(Pa.Super. 2003).
There are three possible encounters between law enforcement and the
public. The parties agree that the instant case involves an investigative
detention, which requires reasonable suspicion. Commonwealth v. Collins,
950 A.2d 1041, 1046 (Pa.Super. 2008); Commonwealth v. Cook, 735 A.2d
673, 677 (Pa. 1999). To justify an investigative detention in response to a
motion to suppress, an officer must be able to point to specific and articulable
facts and reasonable inferences drawn from those facts in light of the officer’s
experience. Cook, 735 at 677. While individual facts by themselves may not
be enough to establish reasonable suspicion, a collection of those facts taken
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together may be sufficient to do so. Id. In other words, in order to determine
whether the police had reasonable suspicion, we must consider the totality of
the circumstances – i.e., “the whole picture . . . .” Commonwealth v.
Thomas, ___ A.3d ___, 2018 Pa. Super. 18, at *4 (filed Feb. 1, 2018).
Pearsall argues that police lacked reasonable suspicion to stop him
because the description Detective Brady developed of the perpetrator of the
burglary was too vague. Appellant’s Brief at 11. Notably, he asserts that the
description at issue in the instant case is less vague than the description
provided in Jackson, 519 A.2d at 430. There, a burglary victim described the
burglar to police as a black male wearing a gray sweat suit who ran east down
the street, away from the scene Id. at 430. Within two minutes of the victim
giving the description to police and approximately two blocks from the
burglary scene, officers spotted Jackson wearing a gray sweat suit running
west towards the scene of the crime, and the officers performed a Terry stop.
Id. at 429. This Court held that the description was too vague in itself to
justify a stop and frisk. Id. at 431.
Here, unlike the officers in Jackson, Detective Brady was not relying on
a vague description given to him by someone else who had observed the
perpetrator. Rather, Detective Brady personally viewed the surveillance
footage and observed the appearance of the perpetrator of the burglary. Id.
at 8. He subsequently directed Officer Newman to stop Pearsall because
Pearsall’s appearance was consistent with his personal observation of the
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perpetrator’s appearance. While a day had passed since the burglary, Pearsall
was stopped 100 yards from the area of the burglary and he appeared similar
to the male that Detective Brady viewed in the video, wearing a white t-shirt,
having long dreadlocks, and being over six feet tall. Id. at 10, 12, 24. These
facts together were sufficient to reasonably suspect that Pearsall was the
perpetrator of the burglary and they therefore support the Terry stop.
Pearsall claims that the trial court erroneously relied on the good faith
exception to the exclusionary rule to support the denial of his motion to
suppress. This is a misinterpretation of the record. The good faith exception
provides that, as a matter of federal constitutional law,4 a court should not
exclude evidence obtained during a search performed pursuant to a duly
issued search warrant if police perform the search in good faith reliance on
the warrant. See United States v. Leon, 468 U.S. 897, 920 (1984). Here,
the trial court said, “I find that Officer Brady – Detective Brady acted in good
faith when he looked up and saw a man that was very similar to the guy he
saw in the video”. N.T., Suppression Hearing, at 67. Thus, the court found as
fact that Detective Brady believed in good faith that Pearsall looked like the
male that he observed in the surveillance video. The court in no way relied on
the good faith exception in denying the suppression motion.
4 There is no good faith exception to the exclusionary rule under Article I,
Section 8 of the Pennsylvania Constitution. Commonwealth v. Johnson, 86
A.3d 182, 188 (Pa. 2014) (citing Commonwealth v. Edmunds, 586 A.2d
887, 905 (Pa. 1991).
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Pearsall also contends there was a discrepancy between Detective
Brady’s description of the male in the video and the description written in the
police report. However, Pearsall again misconstrues the record. Police
identified the actual perpetrator of the burglary after Pearsall had been
stopped. N.T., Suppression Hearing, 1/15/16, at 15. It was only at that point
– that is, after Pearsall had been stopped – that Detective Brady drafted the
police report that included the description of the actual perpetrator that
Pearsall claims was inconsistent with his appearance. The police thus could
not have, and did not, rely on the description in the police report when
stopping Pearsall. Rather, Detective Brady relied on his personal observation
of the surveillance video when he directed Officer Newman to stop Pearsall.
In his second issue, Pearsall challenges the sufficiency of the evidence
to support his conviction for resisting arrest. When reviewing a challenge to
the sufficiency of the evidence, this Court determines whether, viewing all the
evidence at trial in the light most favorable to the Commonwealth as verdict-
winner, there is sufficient evidence to enable a fact finder to find every
element of the crime beyond a reasonable doubt. In applying this test, the
entire record must be evaluated and all evidence actually received must be
considered. Commonwealth v. Estepp, 17 A.3d 939, 943-44 (Pa.Super.
2011).
Pearsall argues that evidence was insufficient to sustain his conviction
for resisting arrest because it did not establish that the underlying arrest was
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lawful. Appellant’s Brief at 8. Pearsall also argues that his conduct does not
fall within the conduct prohibited by the resisting arrest statute because,
according to him, his conduct amounted to only “partial non-submission.” Id.
at 21.
The resisting arrest statute reads:
A person commits a misdemeanor of the second degree if, with
the intent of preventing a public servant from effecting a lawful
arrest or discharging any other duty, the person creates a
substantial risk of bodily injury to the public servant or anyone
else, or employs means justifying or requiring substantial force to
overcome resistance.
18 Pa.C.S.A. § 5104.
The crime of resisting arrest can be established without evidence of
“aggressive use of force such as striking or kicking of the officer.”
Commonwealth v. McDonald, 17 A.3d 1282, 1285 (Pa.Super. 2011)
(citation omitted). Even passive resistance is enough to sustain a conviction
for resisting arrest where officers are required to exert substantial force to
overcome the arrestee. Commonwealth v. Thompson, 922 A.2d 926, 928
(Pa.Super. 2007).
Here, Pearsall’s arrest was lawful. Since Detective Brady had reasonable
suspicion to effect an investigative detention of Pearsall, all that followed,
including his eventual arrest, was lawful. The evidence was also otherwise
sufficient to sustain the conviction for resisting arrest. Pearsall ran from Officer
Newman when she asked if he had identification. N.T., Suppression Hearing,
1/15/16, at 37. After chasing him for two and a half blocks, Officer Newman
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had to ask him twice to get on the ground before he complied. Id. at 38, 39.
As a result of Pearsall’s not complying with Officer Newman’s first command
to get on the ground, she drew her firearm and again made the same request.
Id. at. 39. Pearsall then refused to put his hands behind his back, which
resulted in a brief struggle and required the assistance of Detective Brady. Id.
at 14, 39.
Viewing the evidence in the light most favorable to the Commonwealth,
Pearsall’s actions were not minor acts of non-submission. Pearsall’s continuing
defiance required Officer Newman to employ substantial force by drawing her
firearm and obtaining assistance from Detective Brady. The evidence
presented was therefore sufficient to sustain Pearsall’s conviction for resisting
arrest.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/2/2018
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