Com. v. Fink

• Decision Date: 30 September 1997
• Citation: 700 A.2d 447
• Parties: COMMONWEALTH of Pennsylvania v. Roger M. FINK, Appellant.
• Court: Pennsylvania Superior Court

Page 447

700 A.2d 447

COMMONWEALTH of Pennsylvania v. Roger M. FINK, Appellant.

Superior Court of Pennsylvania.

Argued April 17, 1997.

Filed July 24, 1997.

Reargument Denied Sept. 30, 1997.

Michael Morrone, Williamsport, for appellant.

Kenneth Osokow, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

Before CAVANAUGH, POPOVICH and OLSZEWSKI, JJ.

CAVANAUGH, Judge.

This is an appeal from the judgment of sentence entered by The Honorable William S. Kieser of the Court of Common Pleas of Lycoming County. After the trial court denied appellant's Pre-trial Motion to Suppress Evidence, appellant was convicted in a non-jury trial of Possession of a Controlled Substance and Possession of Drug Paraphernalia. He was sentenced to a period of twelve months supervision under the Adult Probation Office of Lycoming County Intermediate Punishment Program. His Post-Sentence Motion for a New Trial was denied and he now appeals raising as his sole issue that the trial court erred in denying his Motion to Suppress Evidence. For the following reasons, we agree and vacate the judgment of sentence.

When reviewing the ruling of a suppression court, we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.

Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985) (citations omitted).

The facts as aptly stated by the trial court are as follows:

Officer Gary Whiteman was dispatched to 747 West Fourth Street, Williamsport, ("747") at 3:44 a.m. on April 30, 1995, in response to a report of a woman at that address "screaming for the police." N.T. p. 3-4. The dispatch was for all units in the center area of the City. Officer Whiteman was assigned to the western portion of the City which begins at Campbell Street, and Officer [William B.] Linn was in the K-9 roving car assigned to the center section. Officer Whiteman happened to be on Campbell Street at the time the call came in and was within one block of the particular center location. Both Officers Linn and Whiteman responded to the call.

Officer Whiteman arrived within less than one minute. N.T., p.5. Officer Linn arrived before Officer Whiteman. Officer Whiteman was able to hear Officer Linn's communications with Central Dispatch. Officer Linn entered the front door of 747, a multi-unit rooming house with rooms on three floors, which faces north onto Fourth Street. N.T., p.5. Once inside, Officer Linn radioed that there was a white male exiting the south door which goes out toward Mifflin Place. At the time that Officer Whiteman heard Officer Linn's radio communication that the white male was leaving through the rear door, Officer Whiteman was on the 700 block of West Fourth Street in a position to see Officer Linn entering the front door, but not in a position to see the white male leaving the rear door. On arriving at the rear of the structure, Officer Whiteman observed a white male walking southwest from the area of the rear door toward Mifflin Place. Officer Whiteman first observed this white male five to ten seconds after hearing Officer Linn's radio communication that a white male was leaving the back entrance. N.T., p. 6-7. Officer Whiteman immediately made contact with the white male leaving via that exit.

When first seen, the white male was still on the property of 747, approximately thirty feet from the back door. There were no other white males in the area at the time. Officer Whiteman pulled his patrol car up alongside the white male, informed him they had received a call from within 747 and asked the white male, Defendant Fink, if he would stop and talk to him while the other officer(s) gathered information inside. N.T., p.7. Neither his flashers nor siren were activated at this time. Officer Whiteman explained to the Defendant that the call was received from within 747, from an unknown origin, and that "[a]ll we know is there is a woman screaming for help." N.T., p.8. The Defendant stopped and talked to Officer Whiteman, who got out of his patrol car and engaged the Defendant. Officer Whiteman explained to the Defendant that due to the nature of the call, he would like to pat him down for officer safety. The Defendant consented. Officer Whiteman testified that he was also concerned that he not let go someone who may have been involved in the incident within 747, until more details could be learned about the nature of that disturbance. The officer's tone of voice was conversational, and Mr. Fink was very cooperative.

After receiving the Defendant's consent, Officer Whiteman conducted an exterior soft patdown. In doing so, he felt an object within the exterior jacket pocket which he believed to be a marijuana pipe. Officer Whiteman testified that it was of the size and texture that he had come to recognize as a marijuana pipe, being smaller in size than a typical tobacco pipe, and similar in texture to other marijuana pipes which he testified he had seen and touched hundreds of times. N.T., p. 10. Officer Whiteman testified that the object was distinguishable from a normal tobacco smoking pipe, which are usually long-stemmed, approximately 4-1/2 to 5 inches or longer in length and having the characteristics of a flat-ended stem, and a middle cylinder which were not present in the implement that he felt through the Defendant's clothing. After removing the object and discovering that it was in fact a marijuana pipe, Officer Whiteman secured the Defendant and conducted a more thorough search of his person, finding a bag containing marijuana and some rolling papers.

Initially, appellant argues that Officer Whiteman did not have the requisite reasonable suspicion to justify the stop of appellant.

It is well settled that to justify their decision to stop and briefly detain appellant, the police need not establish their suspicions to a level of certainty, a preponderance, or even a fair probability. The suspect's expectation of privacy is not sufficiently infringed by the minimal intrusion attendant to an investigatory stop as to require any more than a reasonable suspicion that criminal activity was afoot. Though not tantamount to a "hunch," the requisite quantum of suspicion necessary to conduct an investigatory stop is a level "obviously less demanding than for probable cause."

Commonwealth v. Epps, 415 Pa.Super. 231, 233, 608 A.2d 1095, 1096 (1992) (citations omitted).

Determining whether a reasonable suspicion exists requires an assessment of the totality of the circumstances. These circumstances are viewed through the eyes of a trained officer, not an ordinary citizen. Interest of B.C., 453 Pa.Super. 294, 301, 683 A.2d 919, 923 (1996). As this court noted in Epps, supra, some of the factors to be considered include "various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions--inferences and deductions that might well elude an untrained person." Epps at 234, 608 A.2d at 1096 (emphasis omitted) (quoting U.S. v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981)).

Our independent review of the facts leads us to conclude that the trial court's finding, that there existed a reasonable, articulable suspicion that criminal activity was afoot, is supported by the record. As noted by the trial court, appellant was the only white male Officer Whiteman saw just after Officer Linn radioed that a white male had exited the south door of the building from where the screams came. Moreover, Officer Whiteman first observed this white male, still on the property of 747, approximately thirty feet from the back door, only five to ten seconds after hearing Officer Linn's radio communication. These factors, coupled with the fact that the incident occurred in the early morning hours, in an area well-known for criminal activity, are more than sufficient to establish reasonable suspicion justifying Officer Whiteman's stop of appellant. ¹

Next, appellant argues that he never consented to the pat-down search. Rather, appellant contends that his alleged consent was nothing more than a failure to resist Officer Whiteman's request to search. ² However, at the suppression hearing, Officer Whiteman testified that appellant gave his express consent for a soft pat-down search of his person. It is within the trial court's province, as fact-finder, to assess the credibility of the witnesses. Commonwealth v. Giddings, 454 Pa.Super. 524, 527, 686 A.2d 6, 8 (1996). The factual findings by the suppression court were such that appellant did give his consent, and we will not disturb these findings. ³

Finally, appellant contends that, assuming the officer had a legal right to conduct a pat-down search, he did not have the right to reach into appellant's pocket and seize the pipe, the rolling papers and the marijuana. We agree. Similar to the well-established plain view doctrine, this court now recognizes the seizure of non-threatening contraband detected by an officer's "plain feel" during a pat-down for weapons if the officer is lawfully in a position to detect the presence of contraband, the incriminating nature of the contraband is immediately apparent and the officer has a lawful right of access to the object. Interest of B.C., supra at 305, 683 A.2d at 925 (citing Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 2136-37, 124 L.Ed.2d 334 (1993)).

After our thorough review, we find the trial court's conclusion, that the...