Com. v. Hayward

• Decision Date: 27 June 2000
• Citation: 756 A.2d 23
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Lavar HAYWARD, Appellant.
• Court: Pennsylvania Superior Court

756 A.2d 23

COMMONWEALTH of Pennsylvania, Appellee, v. Lavar HAYWARD, Appellant.

Superior Court of Pennsylvania.

Submitted January 24, 2000.

Filed June 27, 2000.

Karl Baker, Philadelphia, for appellant.

Catherine L. Marshall, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before JOHNSON, J., CERCONE, President Judge Emeritus, and OLSZEWSKI, J CERCONE, President Judge Emeritus.

¶ 1 Appellant, Lavar Hayward, appeals from the Judgment of Sentence imposed after his conviction for carrying a firearm without a license and carrying a firearm on the streets of Philadelphia.¹ After review, we reverse.

¶ 2 On October 1, 1998, at or around 9:00 p.m., Officer Johnathan Woodson, a Police Officer for the Temple University Police Department, was on foot patrolling in the 2100 block of Broad Street in Philadelphia. See N.T. Suppression Hearing, 1/22/99, at 4-5. Officer Woodson testified at Appellant's Suppression Hearing that while he was patrolling, an "unidentified passerby" told him that there was a group of six (6) to eight (8) males in the park area in the 1300 Block of Dauphin Street and that one of them was "brandishing a weapon." Id. at 5. Officer Woodson recounted that the unidentified individual also told him that the man in the park with the weapon was "tall," however the unidentified individual did not give any specific estimate of height. Id. at 7. Officer Woodson also stated that the nameless pedestrian did not provide any further descriptive identification of the man in the park with the weapon, such as the man's race or the clothing which he was wearing. Id. at 10, 11. Officer Woodson additionally testified that the pedestrian who provided this information did not at any time identify himself, nor had Officer Woodson ever seen this individual before this occasion or at any time thereafter. Id. at 11.

¶ 3 Officer Woodson then proceeded to the park area in the 1300 Block of Dauphin Street.² He testified that it took him ten minutes to arrive at the park. Id. at 8. When Officer Woodson arrived at the park area he was joined by six other Temple University Police Officers, whom he had radioed to assist him. Id. at 9, 12. Upon arrival in the park area, Officer Woodson testified that he saw eight or nine people present in the park, including the Appellant. Officer Woodson observed no one holding any type of weapon. Id. at 6. Officer Woodson testified that he "examined" the group of individuals and estimated the Appellant to be about six foot one (6' 1") to six foot two inches (6' 2") tall, however he observed that there were also a couple of individuals in the group who were "very close" in height to Appellant as well. Id. at 7-8.

¶ 4 Officer Woodson and the other officers then ordered the group of individuals in the park to "line-up" on the sidewalk. Id. at 9, 13. The individuals complied with the officers' request. While the males were standing on the sidewalk, Officer Woodson walked around and stood behind them. He asked if anyone had a weapon. Id. at 9. Appellant replied that he did. Officer Woodson and the other officers then proceeded to frisk everyone in the group. The frisk yielded a black semiautomatic 9-millimeter handgun, which Appellant had tucked into his waistband.

¶ 5 Appellant was arrested and charged with the offenses set forth, supra. He subsequently filed a suppression motion that was denied after the above referenced suppression hearing, which was held before the Honorable Annette Rizzo of the Court of Common Pleas of Philadelphia. After the suppression hearing was concluded, Appellant proceeded to a non-jury trial before Judge Rizzo. Judge Rizzo found Appellant guilty of both charges and imposed the aforementioned sentence. This timely appeal followed.

¶ 6 In this appeal, Appellant presents one issue for our consideration:

Did not the lower court err in denying appellant's motion to suppress where the officer conducting the stop of appellant did not possess the requisite reasonable suspicion to justify the Terry[³] stop in violation of the Fourth Amendment of the Federal Constitution and Article I, § 8 of the Pennsylvania Constitution?

Appellant's Brief at 3.

¶ 7 On appeal from the denial of a defendant's motion to suppress, this Court applies the following standard of review:

In an appeal from the denial of a motion to suppress our role is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we may consider only the evidence of the prosecution's witnesses and so much of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, we may reverse only if there is an error in the legal conclusions drawn from those factual findings.

Commonwealth v. Jackson, 548 Pa. 484, 487, 698 A.2d 571, 572 (1997); Commonwealth v. J.B., 719 A.2d 1058, 1061 (Pa.Super.1998). As a reviewing court, we are therefore not bound by the legal conclusions of the suppression court and must reverse that court's determination if the conclusions are in error or the law is misapplied. Commonwealth v. Queen, 536 Pa. 315, 319, 639 A.2d 443, 445 (1994).

¶ 8 Appellant argues that Officer Woodson did not possess the requisite reasonable suspicion to allow him to order Appellant and all the other men present in the park to line up on the pavement for a Terry frisk, based only on the information received from the anonymous pedestrian. From our review of the relevant holdings of the United States Supreme Court and our Supreme Court concerning Terry stops by police, which are predicated solely on the word of anonymous informants, we must agree.

¶ 9 Our Supreme Court has recognized that there are three categories of interaction 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. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)

; Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). 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. See Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Finally an arrest or "custodial detention" must be supported by probable cause. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Commonwealth v. Rodriquez, 532 Pa. 62, 614 A.2d 1378 (1992)(footnote omitted).

Commonwealth v. Ellis, 541 Pa. 285, 293-294, 662 A.2d 1043, 1047-1048 (1995). Accord In Re Evans, 717 A.2d 542, 544 (Pa.Super.1998)

.

¶ 10 As our Court has recently stated:

In determining whether a "mere encounter" has risen to the level of an "investigative detention," the focus of our inquiry is on whether a "seizure" of the person has occurred. Commonwealth v. Mendenhall, 552 Pa. 484, 715 A.2d 1117, 1120 (Pa.1998). Within this context, our courts employ the following objective standard to discern whether a person has been seized: "Whether, under all the circumstances surrounding the incident at issue, a reasonable person would believe he was free to leave." Commonwealth v. Smith, 1999 PA Super 96, 732 A.2d 1226, 1232 (Pa.Super.1999) (emphasis added). See also Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769, 774 (Pa.1996).

Commonwealth v. McClease, 2000 PA Super 91, ¶ 13, 750 A.2d 320 (Pa.Super.2000). Clearly Appellant in the instant case was subjected to a non-custodial investigative detention when the officers on the scene herded him into a "line up" with the other individuals. Any person in Appellant's position who was ordered by six uniformed armed police officers to assemble into a lineup on the sidewalk could not have reasonably believed that he was free to disregard the officers' command and leave the scene.

¶ 11 With respect to a non-custodial investigative detention based upon information received via an informant's tip, our Supreme Court has stated:

In evaluating whether a stop is justified, courts consider whether or not an informant's tip creates a reasonable suspicion of current criminal activity based on the totality of the circumstances. Alabama v. White, 496 U.S. 325, 328-29, 110 S.Ct. 2412, 2415, 110 L.Ed.2d 301 (1990); Commonwealth v. Martin, 705 A.2d 887, 892 (Pa.Super.1997); Commonwealth v. Wilson, 440 Pa.Super. 269, 275-76, 655 A.2d 557, 560-61 (1995)(citing Commonwealth v. Epps, 415 Pa.Super. 231, 233-34, 608 A.2d 1095, 1096 (1992)). The informant's reliability, veracity, and basis of knowledge are all relevant factors. Alabama v. White, 496 U.S. 325, 328, 110 S.Ct. 2412, 2415, 110 L.Ed.2d 301 (1990)(citing Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983)). Of course, the information supplied to the police by the informant must contain "specific and articulable facts" that lead the police to reasonably suspect that criminal activity may be afoot. See Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226, 228 (1996)(citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)).

Commonwealth v. Allen, 555 Pa. 522, 527-528, 725 A.2d 737, 740 (1999), cert. denied, ___ U.S. ___, 120 S.Ct. 285, 145 L.Ed.2d 239, 68 U.S.L.W. 3232 (1999).

¶ 12 Thus "[i]n analyzing an anonymous tip, we must determine whether under the `totality of circumstances' the informant's tip established the necessary reasonable suspicion that criminal activity was afoot." Commonwealth v. Martin, supra, 705 A.2d at 892 quoting Alabama v. White, supra, 496 U.S. at 328, 110 S.Ct. at 2415. "[Both] quantity and...