Com. v. Jackson

• Decision Date: 16 August 2006
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Duane JACKSON, Appellant.
• Court: Pennsylvania Superior Court

Page 540

907 A.2d 540

COMMONWEALTH of Pennsylvania, Appellee, v. Duane JACKSON, Appellant.

Superior Court of Pennsylvania.

Argued April 4, 2006.

Filed August 16, 2006.

Reconsideration Denied October 12, 2006.

Roy Zipris, Philadelphia, for appellant.

Robert F. Petrone, Asst. Dist. Atty., Philadelphia, for Com., appellee.

BEFORE: STEVENS, GANTMAN, and KELLY, JJ.

OPINION BY STEVENS, J.:

¶ 1 Appellant Duane Jackson appeals from a September 22, 2004 judgment of sentence entered in the Court of Common Pleas of Philadelphia County. We affirm.

¶ 2 Jackson's sentence stems from events occurring on May 12, 2004. While on surveillance, Philadelphia Police Officer James White observed two men engage in a narcotics transaction. N.T. 9/22/04 at 5, 11-12. One of the men was stopped a short time later, but the second man walked out of Officer White's sight. Id. He was located a short time later, with a group of other men. Id. at 6. Eight uniformed officers were sent to apprehend the man.¹ Id. at 9. Two of the responding officers reached the group first. Id. at 12. For safety reasons, the uniformed officers instructed the group to turn and face a fence so that they could be checked for weapons. Id. Jackson pulled away from the fence line twice, in what Officer Gerald Rocks described as an attempt to flee, and kicked backward, striking Officer Rocks in the knee. Id. at 13, 17.² At that point, Jackson was taken into custody and searched, whereupon Officer Watson recovered from him marijuana and crack cocaine. Id. at 13. When Officer Rocks attempted to seat Jackson in a waiting police cruiser, Jackson spit blood and saliva onto Officer Rocks' face, chest and shirt. Id.

¶ 3 Jackson filed a pre-trial motion to suppress evidence, asserting that the police had no probable cause to stop, search and arrest him. A hearing was held on September 22, 2004, before the Honorable Leslie Fleisher. Testimony was taken from the participating police officers, and Judge Fleisher denied the suppression motion. Jackson proceeded immediately to a bench trial, during which no additional testimony was presented. Judge Fleisher found him guilty of simple assault,³ possession of a controlled substance,⁴ and resisting arrest,⁵ and sentenced him to eighteen months' reporting probation.

¶ 4 Jackson filed the appeal currently before us on October 16, 2004, and complied with a court order to file a Pa.R.A.P. 1925(b) statement. He asks us to determine the following issues:

A. Did the lower court err in denying the motion to suppress where, at the initiation of their detention of Mr. Jackson, the police did not have specific, individualized facts constituting reasonable suspicion or probable cause, under either the Fourth Amendment or Article I, § 8 of the Pennsylvania Constitution, to stop and detain him?

B. Where approximately eight police officers detained Mr. Jackson without lawful justification, was the evidence insufficient to prove, beyond a reasonable doubt, the crime of resisting lawful arrest?

C. Where Appellant's actions, two kicks backward in an attempt to leave an unlawful police detention by eight police officers, neither constituted an attempt to cause bodily injury nor cause bodily injury, was the evidence insufficient to prove, beyond a reasonable doubt, the elements of simple assault?

Appellant's brief at 3. Following our review of the record, as well as applicable case and statutory law, we find that none of these claims has merit.

¶ 5 When addressing challenges to the denial of a suppression motion, as well as allegations of insufficiency of the evidence, we view the evidence in a light favorable to the Commonwealth, as the prevailing party.⁶ After careful analysis, we find that Judge Fleisher correctly denied Jackson's suppression motion, and that the evidence presented was sufficient to support Jackson's convictions for simple assault and resisting arrest.

¶ 6 The events leading to Jackson's eventual arrest all occurred in an area of Philadelphia known for a high incidence of drug and gun related crimes. Additionally, police had encountered violent resistance there in the past. Immediately prior to Jackson's encounter with police on the day in question, one of his companions was involved in a suspected drug transaction. After observing the transaction, the police lost sight of the suspect momentarily. When he was located, the suspect was standing with a group of men that included Jackson. In light of the previous problems encountered by police when attempting to take suspects into custody on the corner where the group of men was located, the two police officers who initially approached the group ordered them to place their hands against a nearby fence so that they could be frisked for the officers' safety.

¶ 7 Jackson argues on appeal that this order constituted a stop by police unsupported by the necessary reasonable suspicion or probable cause. We find, however, that under the circumstances of this case, it was a reasonable safety measure for police to order the group to put their hands on the fence. In the Interest of N.L., 739 A.2d 564 (Pa.Super.1999).

¶ 8 In N.L., two men robbed a woman. Moments later, the police and the victim approached a group of four men, one of whom was identified by the victim as part of the pair who had robbed her. For their own safety, the police ordered the three other men, including the defendant, to put their hands against a wall so police could pat them down. A handgun was subsequently found on the defendant.

¶ 9 The defendant filed a pre-trial motion to suppress the gun, alleging that the search and seizure violated his rights under Pennsylvania and United States constitutions because there was no reasonable basis for the search. The motion was denied, and the defendant was found guilty of possession of a firearm by a minor. He appealed, and a panel of this Court affirmed, explaining as follows:

In Terry v. Ohio, supra, the United States Supreme Court created an exception to the Fourth Amendment requirement that police have probable cause before conducting a search of a citizen. The Terry exception permits a police officer to briefly detain a citizen for investigatory purposes if the officer "observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot." Commonwealth v. Fitzpatrick, 446 Pa.Super. 87, 666 A.2d 323, 325 (Pa.Super.1995) (citation omitted).

In order for a stop and frisk to be reasonable, the police conduct must meet two separate and distinct standards. Commonwealth v. Martinez, 403 Pa.Super. 125, 588 A.2d 513, 514 (Pa.Super.1991), appeal denied, 530 Pa. 653, 608 A.2d 29 (1992). Specifically, the police officer must have a "reasonable, articulable suspicion" that criminal activity may be afoot and that the suspect may be armed and dangerous. Commonwealth v. Shelly, 703 A.2d 499, 503 (Pa.Super.1997), appeal denied, 555 Pa. 743, 725 A.2d 1220 (1998). See also Commonwealth v. Robinson, 410 Pa.Super. 614, 600 A.2d 957, 959 (Pa.Super.1991), appeal denied, 533 Pa. 599, 617 A.2d 1273 (1992).

In addressing the level of suspicion that must exist, this Court previously stated that "it is a suspicion that is less than a preponderance of the evidence but more than a hunch." Shelly, 703 A.2d at 503. See also Commonwealth v. Epps, 415 Pa.Super. 231, 608 A.2d 1095, 1096 (Pa.Super.1992). In deciding whether reasonable suspicion was present, courts must take into account "the totality of the circumstances—the whole picture." In the Interest of B.C., 453 Pa.Super. 294, 683 A.2d 919, 923 (Pa.Super.1996), appeal granted, 557 Pa. 643, 734 A.2d 392 (1998). These circumstances are to be viewed through the eyes of a trained officer, not an ordinary citizen. Commonwealth v. Fink, 700 A.2d 447, 449 (Pa.Super.1997), appeal denied, 552 Pa. 694, 716 A.2d 1247 (1998). "We cannot evaluate the totality of the circumstances through the grudging eyes of hindsight nor in terms of library analysis, but as understood by those versed in the field of law enforcement." Shelly, 703 A.2d at 503 (citations omitted).

Appellant complains that because a per se "automatic companion" rule is unconstitutional and because no independent reasonable suspicion existed to establish that he was engaged in criminal conduct and that he was armed and dangerous, the search of his person and subsequent seizure of his weapon were unlawful. We disagree.

The "automatic companion" rule provides that "all companions of [an] arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory `pat-down' reasonably necessary to give assurance that they are unarmed." United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir. 1971). The Supreme Court of Pennsylvania has not yet addressed the constitutionality of this rule, although it has noted the existence of the rule in several decisions. See, e.g., Commonwealth v. Kue, 547 Pa. 668, 671 n. 1, 692 A.2d 1076, 1077 n. 1 (1997); Commonwealth v. Shiflet, 543 Pa. 164, 172 n. 4, 670 A.2d 128, 131 n. 4 (1995).

This Court has ruled that a Terry frisk of an arrestee's companion is permissible and, recently, addressed the constitutionality of the automatic companion rule. Cases finding the Terry frisk of an arrestee's companion permissible include: Commonwealth v. Kearney, 411 Pa.Super. 274, 601 A.2d 346, 348 (Pa.Super.1992); Commonwealth v. Chamberlain, 332 Pa.Super. 108, 480 A.2d 1209, 1212 (Pa.Super.1984); and Commonwealth v. Hook, 313 Pa.Super. 1, 459 A.2d 379, 382 (Pa.Super.1983).

The constitutionality of the "automatic companion" rule was addressed in Commonwealth v. Graham, 454 Pa.Super. 169, 685 A.2d 132 (Pa.Super.1996), rev'd on other grounds, 554 Pa. 472, 721 A.2d 1075 (1998). The Graham court rejected a per se rule that a companion of an arrestee is subject to a "pat-down" regardless of the justification for such search as contrary to...