Com. v. Cottman

• Decision Date: 13 December 2000
• Citation: 764 A.2d 595
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert COTTMAN, Appellant.
• Court: Pennsylvania Superior Court

764 A.2d 595

COMMONWEALTH of Pennsylvania, Appellee, v. Robert COTTMAN, Appellant.

Superior Court of Pennsylvania.

Submitted November 15, 2000.

Filed December 13, 2000.

Monty J. Baston, Harrisburg, for appellant.

Eric R. Augustine, Asst. Dist. Atty., Harrisburg, for Com., appellee.

Before CAVANAUGH, STEVENS and HESTER, JJ.

STEVENS, J.:

¶ 1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Dauphin County on June 8, 2000, following Appellant's conviction by the court of carrying a firearm without a license and possession of a firearm by a minor. Herein, Appellant contends that the trial court erred in failing to suppress physical evidence seized by police. We affirm.

¶ 2 Prior to trial, Appellant filed an omnibus pre-trial motion to suppress which, following a hearing, was denied by the court on May 22, 2000. Thereafter, on June 8, 2000, Appellant was found guilty of the above charges and, on that day, was sentenced, inter alia, to a six (6) to twenty-three (23) month term of imprisonment on the charge possession of a firearm by a minor,¹ and a three (3) year period of intermediate punishment on the charge of carrying a firearm without a license. This timely appeal followed.

¶ 3 Appellant claims that the police did not have probable cause or reasonable suspicion to stop him; therefore, the contraband that was recovered by police should have been suppressed by the trial court as the result of an unlawful seizure.

When we review the ruling of a suppression court, we must determine whether its factual findings are supported by the record. Where the defendant challenges an adverse ruling of the suppression court, we will consider only the evidence for the prosecution and whatever evidence for the defense which is uncontradicted on the record as a whole; if there is support on the record, we are bound by the suppression court, and we may reverse that court only if the legal conclusions drawn from these facts are erroneous.

Commonwealth v. Holt, 711 A.2d 1011, 1014 (Pa.Super.1998) (citations omitted).

¶ 4 However, where the factual findings made by the suppression court are not supported by the evidence of record, we may reject those findings. Commonwealth v. Benton, 440 Pa.Super. 441, 655 A.2d 1030, 1032 (1995) (citing Commonwealth v. Burnside, 425 Pa.Super. 425, 625 A.2d 678, 680 (1993)

). Likewise, if the suppression court misapplies the law, we are also required to reverse the determination of the court. Commonwealth v. Queen, 536 Pa. 315, 319, 639 A.2d 443, 445 (1994).

¶ 5 With the above standards in mind, the relevant facts of this case are as follows: On the evening of November 30, 1999, Officer Kevin Gorman of the Harrisburg Bureau of Police was on patrol in a marked police vehicle. Officer Gorman had four (4) years experience as a Harrisburg Police Officer, N.T. 4/12/00 at 2, and had made between twenty (20) and thirty (30) arrests involving firearms, Id. at 3, and over one hundred (100) drug arrests. Id. at 5. Officer Gorman stated that the area near Reservoir Park in Harrisburg was a nuisance area, and the police received almost nightly complaints of large groups of juveniles and/or adults gambling, smoking marijuana, selling drugs, and shots being fired. Id. at 6.

¶ 6 On the evening in question, Officer Gorman was called to Reservoir Park to deal with an incident in the area. Id. at 7. After the incident was cleared, he observed, in a nearby area, an occupied vehicle, an individual leaning in the passenger window, and two individuals behind him. Id. at 6-7. At the suppression hearing, Officer Gorman identified the individual leaning in the window as Appellant. Id. at 8. The officer went on to state that, when the individual leaning in the window noticed the police on the evening in question, the individual shielded his body while reaching toward the front of his body, and then turned away from the officer. Id. at 7-9. The vehicle sped away and Officer Gorman drove toward the three individuals.

¶ 7 As the officer was exiting his vehicle, he asked if he could speak to the individuals. Appellant took off running and, in doing so, "was making an all-out effort to keep holding on to something that was in the front of his shirt." Id. at 10. Appellant "was running as if he was holding something heavy in front of him and didn't want to drop it." Id. It was at this point that the officer "suspected that [Appellant] was indeed holding a weapon in the front of him, that's when [he] started to chase [Appellant]." Id. Officer Gorman apprehended Appellant and conducted a pat-down search at which time the officer heard the jingling of ammunition. Id. at 13. Five (5) .25 caliber shells were found in Appellant's outside coat pocket. Id. at 13-14. Since no weapon was recovered and, upon verification, no warrants existed for Appellant's arrest, he was released. Id.

¶ 8 Immediately thereafter, Officer Gorman searched the area where Appellant had traversed a fence as he ran from the officer, and recovered a .25 caliber handgun that contained ammunition identical to that found on Appellant's person. Id. at 14-15. Subsequently, Appellant was arrested and charged with carrying a firearm without a license, possession of a firearm by a minor, and theft by receiving stolen property; and, later, convicted of carrying a firearm without a license and possession of a firearm.

¶ 9 Appellant contends that Officer Gorman had neither probable cause nor reasonable suspicion to justify a stop and seizure. Therefore, he argues that the court erred in failing to suppress the ammunition seized from his person and the gun found along the flight path. We disagree.

¶ 10 There are three categories of interaction between citizens and the police: "mere encounters" (or requests for information); "investigative detentions," which subject suspects to a stop and a period of detention, but do not involve such coercive conditions as to constitute the functional equivalent of an arrest; and "arrests" or "custodial detention." Commonwealth v. Beasley, 761 A.2d 621 (Pa.Super. 2000).

A mere encounter between police and a citizen need not be supported by any level of suspicion, and carr[ies] no official compulsion on the part of the citizen to stop or to respond. No constitutional provision prohibits police officers from approaching a citizen in public to make inquiries of them. However, [i]f the police action becomes too intrusive, a mere encounter may escalate into an investigatory [detention] or seizure.... [P]rior to subjecting a citizen to [an] investigatory detention, [the police] must harbor at least a reasonable suspicion that the person seized is then engaged in unlawful activity. [T]he question of whether reasonable suspicion existed at the time of an investigatory detention must be answered by examining the totality of the circumstances to determine whether there was a particularized and objective basis for suspecting the individual stopped of criminal activity. Thus, to establish grounds for reasonable suspicion, the officer whose impressions formed the basis for the stop must articulate specific facts which, in conjunction with reasonable inferences derived from those facts, led him reasonably to conclude, in light of his experience, that criminal activity, was afoot.

Beasley, 761 A.2d 621, 624 (citations and quotations omitted)

¶ 11 As correctly argued by Appellant, flight alone is insufficient to establish reasonable suspicion. Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769 (1996). However, flight, when considered together with additional facts known or observed by police, may warrant investigation. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); See also Commonwealth v. Riley, 715 A.2d 1131, 1135 (Pa.Super.1998)

(finding that, although a certain fact alone may not justify a stop by police, a combination of circumstances may be sufficient to establish reasonable suspicion).

¶ 12 In the case sub judice, once Officer Gorman approached the individuals in question, asked if he could speak to them, and Appellant took flight, the officer's pursuit of Appellant constituted a seizure. See Id. at 1135. Contrary to Appellant's assertion, however, we conclude that Officer Gorman had the requisite reasonable suspicion to stop Appellant.

¶ 13 In Commonwealth v. Cook, 558 Pa. 50, 735 A.2d 673 (1999), the Supreme Court considered the...