Com. v. McPherson, D. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DARIEN MCPHERSON
Appellee No. 1446 EDA 2015
Appeal from the Order Entered April 10, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013625-2014
CP-51-CR-0013652-2014
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: Filed October 5, 2016
The Commonwealth brings this appeal from the order entered April 10,
2015, in the Court of Common Pleas of Philadelphia County, granting the
suppression motion filed by Darien McPherson.1 The Commonwealth raises
the following issue: “Did an experienced police officer have reasonable
suspicion to detain [McPherson] where the officer was responding to reports
of a gunpoint robbery in progress, minutes earlier, in a high crime area, a
bystander pointed to [McPherson’s] location, and [McPherson] matched the
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*
Former Justice specially assigned to the Superior Court.
1
The Commonwealth has certified in the notice of appeal that the trial
court’s order terminates or substantially handicaps the prosecution. Thus,
this appeal is properly before this court. See Pa.R.A.P. Rule 311(d).
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description of the armed suspect?” Commonwealth’s Brief, at 5. 2 Based
upon the following, we affirm.
The trial court has summarized the facts of this case, as follows:
On September 29, 2014, Sergeant David Armstrong was on duty
when he received a radio call at 8:18 pm concerning a person
with a gun in the area of Frankford Avenue and Orleans Street in
Philadelphia. The Sergeant described that section of the city as a
high-crime, high-narcotics area where he had made at least a
half dozen gun arrests. The radio call contained flash
descriptions of two black males. One was described as tall,
wearing a white shirt and blue jeans. The second male was said
to be shorter, wearing a red or orange shirt, and blue jeans. Less
than a minute later, Sergeant Armstrong received a second radio
call about a robbery in progress. The same flash description for
two black males was given. Sergeant Armstrong responded to
the calls, drove to the area of Frankford Avenue and Orleans
Street, and began to look for the two males. While searching on
Emerald Street, Sergeant Armstrong saw an unknown man point
a finger down Stella Street towards Frankford Avenue. The
sergeant interpreted this as indicating that someone matching
the flash description was heading in that direction.
Sergeant Armstrong’s search continued to the 2000 block of
Bellmore Street, where he observed Mr. McPherson, whom
Sergeant Armstrong estimated to be about six feet, six inches
tall. Mr. McPherson was wearing a white t-shirt and blue jeans.
Mr. McPherson was walking eastbound on Bellmore Street
accompanied by a black female. Around 8:25 pm, Sergeant
Armstrong drove up to Mr. McPherson, exited the patrol car and
immediately grabbed Mr. McPherson by the rear belt area of his
pants. After grabbing Mr. McPherson, Sergeant Armstrong
observed the butt of a handgun protruding from the rear pocket
of Mr. McPherson’s pants. An Officer Perez pulled up to the area
during the stop. Upon seeing Officer Perez, Mr. McPherson
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2
Although not ordered by the trial court, the Commonwealth, on May 8,
2015, filed a Pa.R.A.P. 1925(b) statement of matters complained of on
appeal.
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attempted to flee. After a short struggle, Sergeant Armstrong
and Officer Perez placed Mr. McPherson in custody and seized
from him the handgun Sergeant Armstrong had seen only after
grabbing Mr. McPherson, one packet of heroin, and one packet of
cocaine. Further investigation cleared Mr. McPherson as a
suspect in the alleged robbery and two other males were
apprehended as suspects.
Trial Court Opinion, 11/9/2015, at 1–2.
Our standard of review is well-settled:
When reviewing the propriety of a suppression order, an
appellate court is required to determine whether the
record supports the suppression court’s factual findings
and whether the inferences and legal conclusions drawn
by the suppression court from those findings are
appropriate. Where the defendant prevailed in the
suppression court, we may consider only the evidence of
the defense and so much of the evidence for the
Commonwealth as remains uncontradicted when read in
the context of the record as a whole. Where the record
supports the factual findings of the suppression court, we
are bound by those facts and may reverse only if the
legal conclusions drawn therefrom are in error. However,
where the appeal of the determination of the suppression
court turns on allegations of legal error, "the suppression
court’s conclusions of law are not binding on an appellate
court, whose duty it is to determine if the suppression
court properly applied the law to the facts."
Commonwealth v. Peterson, 17 A.3d 935, 937 (Pa. Super. 2011) (citation
and internal citations omitted).
There are three levels of interactions between citizens and police
officers: a mere encounter, an investigative detention, and a custodial
detention or an arrest. Commonwealth v. Coleman, 19 A.3d 1111, 1115
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(Pa. Super. 2011). Here, the parties do not dispute that police conducted an
investigatory detention.3 An investigatory detention or “Terry”4 stop “is
temporary … and does not possess the coercive conditions consistent with a
formal arrest. Since this interaction has elements of official compulsion it
requires reasonable suspicion of unlawful activity.” Id. at 1115 (citation
omitted).
The police are permitted to stop and briefly detain citizens only
when they have reasonable suspicion, based on specific and
articulable facts, that criminal activity may be afoot.
Commonwealth v. Zhahir, 561 Pa. 545, 552, 751 A.2d 1153,
1156 (2000) (citing Terry v. Ohio, 392 U.S. 1, 21, 30, 88 S. Ct.
1868, 1884, 20 L. Ed. 2d 889 (1968)); Commonwealth v.
Melendez, 544 Pa. 323, 328, 676 A.2d 226, 228 (1996);
Commonwealth v. Hicks, 434 Pa. 153, 160, 253 A.2d 276,
280 (1969). In determining whether reasonable suspicion exists
for an investigative detention, or as it is also known in the
common legal vernacular, a “Terry stop,” the inquiry is the
same under both the Fourth Amendment of the United States
Constitution and Article 1, § 8 of the Pennsylvania Constitution.
Commonwealth v. Cook, 558 Pa. 50, 57, 735 A.2d 673, 677
(1999); Commonwealth v. Jackson, 548 Pa. 484, 488, 698
A.2d 571, 573 (1997). “The fundamental inquiry is an objective
one, namely, whether ‘the facts available to the officer at the
moment of the intrusion warrant a man of reasonable caution in
the belief that the action taken was appropriate.’” Zhahir,
supra, at 552, 751 A.2d at 1156 (citing Terry, supra, 392 U.S.
at 21-22, 88 S. Ct. at 1880). In order to determine whether the
police had a reasonable suspicion to subject an individual to an
investigative detention, the totality of the factual circumstances
which existed at the time of the investigative detention must be
considered. Id. (citing United States v. Cortez, 449 U.S. 411,
417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981)). “Among the
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3
See N.T., 4/10/2015, at 28, 40.
4
Terry v. Ohio, 392 U.S. 1 (1968).
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factors to be considered in establishing a basis for reasonable
suspicion are tips, the reliability of the informants, time,
location, and suspicious activity, including flight.”
Commonwealth v. Gray, 2001 Pa. Super. 262, 784 A.2d 137,
142 (Pa.Super. 2001).
Commonwealth v. Ayala, 791 A.2d 1202, 1208 (Pa. Super. 2002).
Here, the trial court determined police had no reasonable suspicion to
stop McPherson:
In this case, the stop of Mr. McPherson was based on two
anonymous phone calls that provided general descriptions of the
height, race, and clothing of two black men who allegedly
possessed a gun and were involved in a robbery. In addition,
Sergeant Armstrong observed an unknown man point his finger in
the direction of Frankford Avenue. Both calls provided the same
amount of information except that the second caller indicated that
individuals of the same description were involved in a robbery in
progress.
The point of finger by the unknown male is of de minimis value in
the totality of the circumstances analysis. The unknown male
pointed in a general direction and not at Mr. McPherson. The
record does not reflect why the unknown male pointed, or if he
had witnessed any criminal or suspicious activity. Even if the
unknown male saw a tall black male in jeans and a white t-shirt
on the streets of Philadelphia, it does not corroborate the alleged
criminal activity in the anonymous calls. Therefore, independent
corroboration was required. See Com. v. Hawkins, 692 A.2d
1068, 1070-71 (Pa. 1997). (“[S]ince there is no gun exception to
the Terry requirement for reasonable suspicion of criminal
activity, in the typical anonymous caller situation, the police will
need an independent basis to establish the requisite reasonable
suspicion.”)
Mr. McPherson was observed walking down the block and not
engaged in any activity that could be described as suspicious.
Since the attempted flight and the observation of the gun did not
occur until after Sergeant Armstrong grabbed Mr. McPherson, it
does not factor into the reasonable suspicion analysis because the
only relevant facts are the ones available to the officer
immediately before the stop. See [Commonwealth v.] Gray,
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784 A.2d [137, 142 (Pa. Super. 2001)]. While the events in
question occurred in a high-crime area, this factor alone is an
insufficient basis for a Terry stop unless coupled with
circumstances such as suspicious activity or flight by Mr.
McPherson. See [In the Interest of] M. D., 781 A.2d [192, 197
(Pa. Super. 2001)] (explaining when a combination of innocent
facts can give rise to reasonable suspicion). In short, Sergeant
Armstrong’s investigation produced no reason to stop Mr.
McPherson independent of the anonymous phone calls and an
unexplained point of finger.
Trial Court Opinion, 11/6/2015, at 4–5.
The Commonwealth asserts that the trial court “focused on the fact
that the stop was purportedly based upon ‘two anonymous phone calls,’
[b]ut the sergeant testified that an officer went to the location of the robbery
and sent out a ‘flash’ regarding the crime.” Commonwealth’s Brief at 15.
The Commonwealth argues “[Sergeant] Armstrong stopped [McPherson]
after that flash was sent out. While the individual the officer encountered
was not named at the suppression hearing, the fact that information was
supplied in person substantially enhanced its reliability.” Id. at 15, citing In
the Interest of D.M. 727 A.2d 556, 558 (Pa. 1999); Commonwealth v.
Barber, 889 A.2d 587, 593 (Pa. Super. 2005).
The Commonwealth further claims, “even assuming arguendo that all
of the calls were ‘anonymous,’ the stop was still entirely proper” because
“[a]nonymous tips may be relied upon to support an investigatory stop
where police have corroborating information which, in combination,
establishes a reasonable suspicion of criminal activity.” Id. at 16. We
address these arguments sequentially.
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The Commonwealth contends, “In the first place, Sergeant Armstrong
testified that one of the reports regarding the crime was issued by a police
officer at the scene, which is a more reliable source of information than an
anonymous tip.” Commonwealth’s Brief at 22, citing N.T., 4/10/2015, at 18.
The Commonwealth points to Sergeant Armstrong’s cross-examination,
testimony where he stated:
A There were multiple radio calls, Your Honor. There was also
an officer that arrived on location with the complainant that put
out an additional flash. The complainant was brought to the
location, but he was negatively ID’d for the robbery and the
person with a gun call.
Q After my client was already in custody, the complainant
arrived on the scene?
A An officer was on location with the complainant at Frankford
and Orleans Street. So radio calls came out for the job. An
officer responded to that location. An additional flash was put
out by an officer on location. This male was stopped. The
complainant was brought to the location where this male was
stopped, where this male was negatively ID’d for that incident.
He was still under arrest for the gun. A short time later, two
other males were apprehended in regards to the actual robberies
at Frankford and Orleans.
N.T., 4/10/2015, at 18.
Relying on Sergeant Armstrong’s testimony that “[a]n additional flash
was put out by the officer on location [and t]his male was stopped,” the
Commonwealth claims the “flash” information preceded Sergeant
Armstrong’s stop of McPherson. We are not persuaded by the
Commonwealth’s assertion.
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We note that although there were radio calls that were played at the
suppression hearing, they were not moved into evidence and are not part of
the certified record. See N.T., 4/10/2015, at 14, 19, 28. Here, there is no
evidence in the record that Sergeant Armstrong knew the source of the radio
calls. Furthermore, Sergeant Armstrong’s testimony did not indicate when
the “additional flash” was sent, or if he relied on it in stopping McPherson.
As such, we find no basis upon which to reject the trial court’s determination
that the only information possessed by Sergeant Armstrong at the time he
stopped McPherson were two anonymous phone calls.
We next consider the Commonwealth’s argument that even if the tips
were anonymous, police had reasonable suspicion in this case. Here, the
Commonwealth relies on, inter alia, Navarette v. California, 134 S. Ct.
1683 (U.S. 2014) and Commonwealth v. M.Jackson, 678 A.2d 798 (Pa.
Super. 1996).
In Navarette, a 911 caller reported that a vehicle, identified as a
silver Ford pickup truck with a specific license plate number, had run her off
the road. Police dispatch then sent out a broadcast with that information. A
police officer responded to the broadcast and, approximately thirteen
minutes later, located the vehicle identified during the call. Five minutes
later, he executed a traffic stop, although he had not observed any
suspicious driving. As the officer approached the truck with a second officer
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who had arrived on the scene, they smelled marijuana. In the truck bed,
they discovered thirty pounds of marijuana.
The United States Supreme Court upheld the stop, ruling that the 911
call was sufficiently reliable and provided reasonable suspicion for the traffic
stop. The Court held that a 911 call “bore adequate indicia of reliability for
the officer to credit the caller’s account,” and constituted a reliable tip.
Navarette, 134 S. Ct. at 1688. The Navarette Court reasoned “[a] 911 call
has some features that allow for identifying and tracing callers, and thus
provides some safeguards against making false reports with immunity.” Id.
at 1689.
In M.Jackson, an officer received a report regarding a robbery in
progress with the suspect described as “wearing a black baseball hat and a
black jacket.” Id., 678 A.2d at 799. The officer saw Jackson, who matched
that description about two and one-half blocks away from the crime scene,
and only five minutes after receiving the call on the radio. Id. at 800. After
asking Jackson to stop, the officer asked him from where he was coming.
Id. Jackson replied his girlfriend’s place. Id. The officer frisked Jackson and
recovered a gun. Id. This Court held that while the officer did not observe
any unusual or suspicious conduct, “other integral factors … create[d] the
requisite ‘specific and articulable facts’ that justif[ied] [the officer’s] stop[.]”
Id. at 801. These factors included that Jackson exactly fit the meager
description of the suspect given over police radio, Jackson was temporally
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and spatially proximate to the crime scene, the crime reported was a
“serious felony,” and the confrontation between Jackson and the officer
occurred late in the evening in an area that was admittedly dangerous. Id.
Relying on Navarette, the Commonwealth asserts the nature of the
crime — a robbery in progress — “suggested that the report came from an
eyewitness to the crime, establishing the basis of the source’s knowledge.
This is an important factor further supporting the reliability of the tip.”
Commonwealth Brief at 17–18. Relying on M.Jackson, the Commonwealth
argues McPherson matched the description of the suspect, pointing out that
McPherson was six feet six inches tall, and wearing a white shirt and blue
jeans; Sergeant Armstrong knew the location where he encountered
McPherson was a “violent and crime-ridden area;”5 and McPherson was
stopped only seven minutes after the call regarding the robbery and in the
vicinity of the crime.6 See id. at 17–18. In addition, the Commonwealth
asserts the circumstances of this case present even a stronger case for an
investigatory stop because Sergeant Armstrong was directed to McPherson’s
location by a bystander who “flagged [him] down.” Commonwealth’s Brief
at 19, citing N.T., 4/10/2015, at 21–22, 24, 27.
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5
N.T., 4/10/2015, at 17.
6
Id. at 23–24.
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McPherson counters that the radio calls were anonymous tips, that the
meaning of the bystander’s finger pointing is speculative, and that Sergeant
Armstrong possessed no corroborative information. McPherson, at oral
argument, maintained that the report of a “robbery in progress” does not
indicate contemporaneous information like the 911 call in Navarette.
Additionally, McPherson argues M.Jackson made no distinction between
stops based upon anonymous tips and stops based on tips from known
informants. In support of his position, McPherson cites, inter alia,
Commonwealth v. C.Jackson, 698 A.2d 571 (Pa. 1997), Commonwealth
v. Hawkins, 692 A.2d 1068 (Pa. 1997) (OAJC), and Florida v. J.L., 529
U.S. 266 (2000). See McPherson’s Brief at 18–19.
In C.Jackson, at 10:23 p.m., police received a police radio report of a
man in a green jacket carrying a gun, with no other details except location.
Within two minutes of receiving the call, police arrived at the location where
there were a number of individuals. The defendant was the only individual in
a green jacket. There was no evidence he acted suspiciously. However, a
police officer stopped the defendant and searched him. As he was being
searched, a small key box fell next to him, which contained fourteen packets
of cocaine. C.Jackson, supra, 698 A.2d at 572. The Supreme Court held
that such an anonymous tip, without independent police corroboration
producing reasonable suspicion of criminal activity, is insufficient to justify a
stop and frisk. The Court reasoned as follows:
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In [Commonwealth v. Hawkins, 692 A.2d 1068 (Pa. 1997)],
the Philadelphia police responded to an anonymous telephone
report that there was a man with a gun at the corner of
Sydenham and York Streets. The suspect was described as a
black male wearing a blue cap, black jeans and a gold or
brownish coat. We held that such allegations, without more, did
not constitute reasonable grounds for the police to suspect that
the individual was armed and dangerous:
If 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.
Hawkins, 692 A.2d at 1070. Thus the details provided by the
caller in this case were insufficient, even when corroborated, to
satisfy the reasonable suspicion standard.
Id., 698 A.2d at 574-575.
In J.L., police received an anonymous tip that “a young black male
standing at a particular bus stop and wearing a plaid shirt was carrying a
gun.” J.L., supra, 529 U.S. at 268. Officers proceeded to the bus stop, and,
when they arrived there, they saw three black males, one of whom was
wearing a plaid shirt. “Apart from the tip, the officers had no reason to
suspect any of the three of illegal conduct. The officers did not see a firearm,
and J.L. made no threatening or otherwise unusual movements.” Id.
Nevertheless, one officer directed J.L. to place his hands up, frisked him, and
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found a gun. Id. The J.L. Court rejected modifying Terry to create a
“firearm exception,” and ruled that the stop and search violated the Fourth
Amendment. Id. at 272–273.
Having carefully reviewed this record, we agree with the trial court
that Sergeant Armstrong possessed only two anonymous tips, without any
corroborating information. While the Commonwealth tries to align the report
of robbery in progress with the 911 call in Navarette, we are not persuaded
by this argument since there is no identifying information for the source that
would lend the report a higher degree of reliability. Moreover, we find the
decisions that address anonymous tips — C.Jackson, Hawkins and J.L. —
to be controlling here. Additionally, the Commonwealth relies on Sergeant
7
Armstrong’s testimony that he was “flagged down” by a bystander;
however, this testimony only established that the officer saw the bystander
was pointing towards Frankford Avenue, without any indication that he was
specifically directing the officer to McPherson.8
Here, Sergeant Armstrong’s justification for grabbing McPherson was
based solely on his observations that McPherson satisfied the generic
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7
N.T., 4/10/2015, at 24.
8
When Sergeant Armstrong was questioned on redirect examination as to
“how [was it] this man flagged you down,” he explained that as he “was
coming down the block [in his police vehicle, the individual was] pointing in
the direction towards the area of Frankford and Bellmore.” N.T., 4/10/2015,
at 27 (emphasis added).
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description and location information reported in the police radio calls.
Sergeant Armstrong observed nothing suspicious about McPherson’s
behavior before the stop — McPherson was simply walking down the street
with a female. Therefore, we agree with the suppression court that the facts
of this case warrant suppression. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/5/2016
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