Commonwealth v. Harrison

Full title: COMMONWEALTH OF PENNSYLVANIA, Appellee v. PATRICK HARRISON, Appellant

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: Jul 24, 2015

No. 1533 EDA 2014 (Pa. Super. Ct. Jul. 24, 2015)

Opinion

J.A21015/15 No. 1533 EDA 2014

07-24-2015

COMMONWEALTH OF PENNSYLVANIA, Appellee v. PATRICK HARRISON, Appellant

MEMORANDUM BY FITZGERALD, J.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order May 12, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: MC-51-CR-0036469-2013
BEFORE: ALLEN, MUNDY, and FITZGERALD,^* JJ. MEMORANDUM BY FITZGERALD, J.:

* Former Justice specially assigned to the Superior Court.

Appellant, Patrick Harrison, appeals from the order denying his petition for writ of certiorari with the Philadelphia County Court of Common Pleas following a judgment of sentence entered in the Philadelphia Municipal Court after a bench trial and conviction for simple possession of a controlled substance.¹ He challenges whether the police had reasonable suspicion or probable cause to seize him. We affirm.

1 35 P.S. § 780-113(a)(16).

We adopt the facts and procedural history set forth by the trial court. See Trial Ct. Op., 11/4/14, at 1-3.² Appellant was tried and found guilty in the Municipal Court of Philadelphia County, which sentenced him to twelve months' probation on January 23, 2014. On February 22, 2014, he filed a petition for writ of certiorari with the Court of Common Pleas, which denied same on May 12, 2014. Appellant timely appealed on May 14, 2014, and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

2 We acknowledge the holding of In re L.J.,79 A.3d 1073 (Pa. 2013), that after October 30, 2013, the scope of review for a suppression issue is limited to the record available to the suppression court. Id. at 1085, 1089 (stating holding applies to "all litigation commenced Commonwealth-wide after the filing of this decision"). Because the instant criminal complaint was filed prior to October 30, 2013, In re L.J. does not apply.

Appellant raises the following issues:

Did not the [municipal] court err when it denied [Appellant's] motion to suppress physical evidence where two police officers seized him as he was walking down the street, without reasonable suspicion or probable cause, and where [Appellant's] flight and the recovery of a jar of PCP were the fruit of an unlawful stop?

Appellant's Brief at 3.

Appellant claims that while walking outside at 10:30 p.m., a patrol car with two police officers pulled up to him and asked him to approach and remove his hands from his pockets. He contends he responded by continuing to walk, at which point one officer exited the vehicle and again ordered him to approach and remove his hands from his pockets. Appellant asserts he responded by removing his hands from his pockets but then putting them back in. He argues he made no movement and the officers did not discern any suspicious objects on his person that justified his seizure. We discern no basis for relief.

Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Where the prosecution prevailed in the suppression court, we may consider only the Commonwealth's evidence and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

In re J.E.,937 A.2d 421, 425 (Pa. 2007) (citations omitted). In evaluating the legal conclusion drawn by the suppression court, this Court may also consider uncontradicted testimony from the suppression hearing not included in the suppression court's findings of fact. Commonwealth v. Mendenhall ,715 A.2d 1117, 1119 n.1 (Pa. 1998). We can also affirm on any basis. Commonwealth v. Clouser ,998 A.2d 656, 661 n.3 (Pa. Super. 2010).

Initially we note that Fourth Amendment jurisprudence has led to the development of three categories of interactions between citizens and the police. The first of these is a "mere encounter" (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. The second, an "investigative detention[,]" must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or "custodial detention" must be supported by probable cause.

Commonwealth v. Ellis ,662 A.2d 1043, 1047 (Pa. 1995) (citations and footnote omitted).

The Pennsylvania Supreme Court adopted the objective Jones/Mendenhall ³ standard "in determining whether the conduct of the police amounts to a seizure or whether there is simply a mere encounter between citizen and police officer." Commonwealth v. Matos ,672 A.2d 769, 774 (Pa. 1996).

3 United States v. Mendenhall ,446 U.S. 544 (1980); Commonwealth v. Jones ,378 A.2d 835 (Pa. 1977).

In [ Commonwealth v. Hicks ,253 A.2d 276 (Pa. 1969)], this Court adopted the United States Supreme Court's decision in Terry v. Ohio ,392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), which permits a police officer to effect a precautionary seizure where the police have a reasonable suspicion that criminal activity is afoot. Terry ,and by analogy Hicks ,recognized that there are some instances in which an individual may not be arrested, but will still be considered to be "seized." In Jones ,this Court adopted an objective standard for determining what amount of force constitutes the initiation of a Terry stop: whether a reasonable person innocent of any crime, would have thought he was being restrained had he been in the defendant's shoes. This case, which preceded the United States Supreme Court's decision in . . . Mendenhall , . . . was a precursor to the so-called " Mendenhall " test posited by the United States Supreme Court: "a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave."

The Jones / Mendenhall standard has since been consistently followed in Pennsylvania in determining whether the conduct of the police amounts to a seizure or
whether there is simply a mere encounter between citizen and police officer.

Id. at 773-74 (some punctuation and citations omitted).

The Pennsylvania Supreme Court provided further guidance in applying this "totality of the circumstances" test:

In evaluating the circumstances, the focus is directed toward whether, by means of physical force or show of authority, the citizen-subject's movement has in some way been restrained. In making this determination, courts must apply the totality-of-the-circumstances approach, with no single factor dictating the ultimate conclusion as to whether a seizure has occurred.

Commonwealth v. Strickler ,757 A.2d 884, 890 (Pa. 2000) (footnotes and some citations omitted). Factors examined in this totality-of-the-circumstances approach include "all circumstances evidencing a show of authority or exercise of force, including the demeanor of the police officer, the manner of expression used by the officer in addressing the citizen, and the content of the interrogatories or statements." Mendenhall ,715 A.2d at 1119. This Court also set forth a non-exclusive list of factors:

[T]he number of officers present during the interaction; whether the officer informs the citizen they are suspected of criminal activity; the officer's demeanor and tone of voice; the location and timing of the interaction; the visible presence of weapons on the officer; and the questions asked. Otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

Commonwealth v. Collins ,950 A.2d 1041, 1047 n.6 (Pa. Super. 2008) (en banc) (citation omitted).

A request to talk does "not need to be justified by any level of suspicion." In re D.M.,781 A.2d 1161, 1165 (Pa. 2001). A request is distinguishable from a demand. Commonwealth v. Au ,42 A.3d 1002, 1007 n.3 (Pa. 2012). A seizure does not occur when police request identification from an individual or ask questions of that individual. Id. at 1007 (quoting, inter alia, I .N.S. v. Delgado ,466 U.S. 210, 216 (1984) ("[P]olice questioning, by itself, is unlikely to result in a Fourth Amendment violation.")). Similarly, a police demand to keep one's hands out of one's pockets is a "minor inconvenience" and "not a substantial impairment on [a defendant's] liberty of movement, particularly considering the officers['] legitimate concerns for their own safety." Commonwealth v. Lyles ,54 A.3d 76, 83 (Pa. Super. 2012).

In sum, the question of "whether the police needed some level of requisite cause at the time they initially approached" the defendant is "governed by the type of encounter that the police initiated when they approached" the defendant. In re D.M.,781 A.2d at 1164 (emphases added). The critical inquiry is what type of encounter the police initiated at the time they initially approached the defendant. See id. After identifying the type of encounter—e.g., mere encounter, investigative detention, or custodial detention—this Court must then determine whether the police had the requisite cause for that encounter, respectively, e.g., no suspicion required, reasonable suspicion that criminal activity was afoot, or probable cause for an arrest. See Ellis ,662 A.2d at 1047; Jones ,378 A.2d at 839 n.4.

Instantly, Appellant's argument did not address the flash information relied on by the police and their belief that Appellant matched the flash. See Trial Ct. Op. at 2. Under the totality of the circumstances, we assume a seizure occurred when the police, late at night and in a high crime area, initially asked Appellant to "come here," thus issuing an official compulsion to stop. See Mendenhall ,715 A.2d at 1119; Ellis ,662 A.2d at 1047. The police reinforced the directive to approach the vehicle when one of the officers exited the vehicle and asked Appellant to remove his hands from his pockets and "come here." See Ellis ,662 A.2d at 1047. In other words, the circumstances were such that a reasonable, innocent person, in Appellant's shoes, would have thought he was being restrained. See Matos ,672 A.2d at 773-74.

Consequently, we ascertain whether the police had the requisite reasonable suspicion that criminal activity was afoot after initiating the investigative detention. See id.; Jones ,378 A.2d at 839 n.4. In establishing whether there was reasonable suspicion, it is axiomatic that the United States and Pennsylvania constitutions "do not proscribe all searches and seizures . . . only 'unreasonable' ones." Commonwealth v. Beaman ,880 A.2d 578, 582 (Pa. 2005) (footnote omitted).

The reasonableness of a seizure that is less intrusive than a traditional arrest depends upon a three-pronged
balancing test derived from Brown v. Texas ,443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979), in which the reviewing Court weighs the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. To be deemed reasonable under this standard, such a seizure must ordinarily be supported by reasonable suspicion, based upon objective facts, that the individual is involved in criminal activity. The existence of individual suspicion, however, is not an "irreducible" component of reasonableness in every circumstance.

Id. at 582 (emphasis added and citations and some punctuation omitted); accord Commonwealth v. Mistler ,912 A.2d 1265, 1271 (Pa. 2006) (stating that "the Fourth Amendment generally requires the presence of individualized suspicion to justify a seizure"). "A primary concern when balancing opposing interests is protecting the individual from arbitrary invasions resulting from the broad discretion of the officers." Mistler ,912 A.2d at 1271. Instantly, because of the flash and the police belief that Appellant matched the flash,⁴ we hold that under the totality of circumstances, the police reasonably believed Appellant was involved in criminal activity. See Beaman ,880 A.2d at 582 (holding reasonable suspicion based on objective facts). Accordingly, we discern no error by the trial court and affirm, albeit on different grounds. See In re J.E.,937 A.2d at 425; Clouser ,998 A.2d at 661 n.3.

4 We acknowledge that the flash description was for a gunpoint robbery committed by a black male wearing a white hoodie and a black male wearing a blue hoodie; Appellant is a black male who was wearing a black hoodie that appeared to be dark or blue at the time the police encountered him. N.T., 1/23/14, at 7-8, 14-15, 24, 26.

Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2015

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