Com. v. Carter

• Court: Pennsylvania Superior Court
• Writing for the Court: JOYCE, J.
• Citation: Com. v. Carter, 779 A.2d 591 (Pa. Super. Ct. 2001)
• Decision Date: 09 July 2001
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Kevin CARTER, Appellee.

779 A.2d 591

COMMONWEALTH of Pennsylvania, Appellant, v. Kevin CARTER, Appellee.

Superior Court of Pennsylvania.

Submitted June 11, 2001.

Filed July 9, 2001.

Michael W. Streily, Assistant District Attorney, Pittsburgh, for Com.

George W. Bills, Pittsburgh, for appellee.

BEFORE JOYCE, OLSZEWSKI and POPOVICH, JJ.

JOYCE, J.:

¶ 1 Appellant, the Commonwealth of Pennsylvania, appeals the order entered in the Allegheny County Court of Common Pleas, which granted Appellee, Kevin Carter's motion to suppress. We affirm. The relevant factual and procedural history of this case are as follows ¶ 2 On February 22, 1997, Officer Patrick Kinavey, a City of Pittsburgh police officer, was performing his general patrol duties in the Hazelwood section of Pittsburgh, a known high drug and crime area. At approximately 3:25 P.M., he observed Appellee on Flowers Avenue walking towards a pick-up truck parked on the street. Appellee began conversing with the two occupants of the truck. The officer observed him placing his left hand in his jacket pocket and start to remove that hand. Appellee appeared to look in the direction of the marked cruiser being operated by Officer Kinavey. He then mouthed the word "popo" (meaning police). The officer pulled his vehicle in front of the truck and as he drove by, he recognized one of the occupants of the truck as a self-described heroin user. Appellee then started walking away from the truck and the officer turned and began to follow him. When he came close to Appellee, the officer parked his vehicle, got out of the vehicle and asked Appellee if he could speak with him. Appellee responded, "what's up?" The officer again asked Appellee if he could speak with him. On direct examination, the officer testified that during this conversation, Appellee placed his hand in his left pocket. N.T. Suppression Hearing, 8/25/1999, at 39. On cross-examination however, the officer testified that during this conversation, he told Appellee to put his hand in his pocket. N.T. Suppression Hearing, 8/25/1999, at 116.

¶ 3 When Appellee put his hand in his left pocket, the officer then went for his side arm and asked Appellee to show his hands. Appellee then took his hand out of his left pocket and displayed a sandwich bag containing packages of heroin as well as a black object (which the officer later learned was a cellular phone). The officer pulled his gun, pointed it at Appellee and ordered him to stop. Appellee began to flee and a pursuit ensued. During this pursuit, an individual named DelRico Davis began running alongside Appellee. After a brief interval, Appellee handed the sandwich bag to DelRico and started running towards a different direction. Seeing this transaction, Officer Kinavey pursued DelRico who later discarded the sandwich bag in a grassy area.

¶ 4 Appellee then stopped, raised his hands and displayed the cellular phone in his hand. He stated that he only had a cellular phone and that he did nothing wrong. The officer placed Appellee in handcuffs and put him inside the police cruiser. The officer then recovered the discarded sandwich bag containing packages of heroin. Appellee was subsequently charged with one count of delivery of a controlled substance, drug device or cosmetic,¹ one count of possession with intent to deliver,² criminal conspiracy,³ and possession of a controlled substance.⁴

¶ 5 On August 24, 1999, Appellee filed an omnibus pretrial motion seeking the suppression of the heroin recovered by officer Kinavey. A hearing was held on the suppression issues and on August 27, 1999, the court granted the motion to suppress with regard to the heroin recovered by Officer Kinavey. The Commonwealth now appeals, raising the following issue: "whether the trial court erred in suppressing [the] evidence?" Brief for Appellant, at 4.

¶ 6 When we review the Commonwealth's appeal from the decision of the suppression court, "[we] consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted." Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879, 880-81 (1998). "When the evidence supports the suppression court's findings of fact ..., this Court may reverse only when the legal conclusions drawn from those facts are erroneous." Commonwealth v. Valentin, 748 A.2d 711, 713 (Pa.Super.2000).

¶ 7 In granting Appellee's motion to suppress, the suppression court concluded that the interaction between the police officer and Appellee began as a mere encounter and escalated into an investigative detention when the officer went for his weapon and ordered Appellee to stop and show his hands. The court reasoned that:

Although the initial questioning by Officer Kinavey may have been nothing more than a mere encounter, when Officer Kinavey went for his side arm and ordered the defendant [Appellee] to show his hands, his show of authority elevated the interaction to an investigatory detention, where a reasonable person would not have felt free to refuse to answer the Officer's questions or terminate the encounter.

Trial Court Opinion, 1/10/2001, at 6.

¶ 8 The Commonwealth agrees that "the initial encounter between Officer Kinavey and [A]ppellee was a mere encounter that escalated into an investigative detention when the officer reached towards his weapon and asked to see [A]ppellee's hands." Brief for Appellant, at 9. However, the Commonwealth argues that "there was reasonable suspicion to support the officer's actions." Id.

There exists three levels of interactions between citizens and police officers under our Fourth Amendment jurisprudence: 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 respond. The second, an "investigative detention" must be supported by reasonable suspicion; it subjects a suspect to a stop and period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest. Finally, an arrest or "custodial detention" must be supported by probable cause. An investigative detention constitutes a seizure of the person and must be supported by reasonable suspicion that those detained are engaged in criminal activity.

Commonwealth v. Phinn, 761 A.2d 176, 181 (Pa.Super.2000) (citations omitted).

¶ 9 While we agree that the encounter between Officer Kinavey and Appellee escalated into an investigative detention, we will not establish a rule that whenever an officer reaches for his weapon during an encounter, such encounter automatically escalates into an investigative detention. We note that although on direct examination Officer Kinavey stated that Appellee put his hand in his pocket on his own accord (N.T. Suppression Hearing, 8/25/1999, at 39), on cross-examination the officer stated that he asked Appellee to put his hand in his pocket. N.T. Suppression Hearing, 8/25/1999, at 116. Since our standard of review requires us to consider only the evidence of Appellee's witnesses and the uncontradicted evidence presented by the Commonwealth, we are constrained to accept the version of the officer's testimony elicited during cross-examination. Officer Kinavey's order to Appellee to put his hand in his pocket gave rise to the danger, which made it necessary for the officer to reach for his weapon and order Appellee to stop and show his hands. Because the officer told Appellee to put his hand in his pocket, he improperly set in motion the chain of events that resulted in Appellee's flight and subsequent abandonment of the contraband. Under the circumstances of this case, the interaction between the officer and Appellee started as a mere encounter. It escalated into an investigative detention when the officer told Appellee to put his hand in his pocket, reached for his weapon, ordered A...