Com. v. Kearney

CourtSuperior Court of Pennsylvania
Writing for the CourtHOFFMAN; POPOVICH
Citation411 Pa.Super. 274,601 A.2d 346
Decision Date13 January 1992
PartiesCOMMONWEALTH of Pennsylvania v. Robert KEARNEY, Appellant.

Page 346

601 A.2d 346
411 Pa.Super. 274
COMMONWEALTH of Pennsylvania
v.
Robert KEARNEY, Appellant.
Superior Court of Pennsylvania.
Argued Nov. 21, 1991.
Filed Jan. 13, 1992.

[411 Pa.Super. 276] Jay Meyers, Philadelphia, for appellant.

Maxine Stotland, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CAVANAUGH, POPOVICH and HOFFMAN, JJ.

Page 347

HOFFMAN, Judge:

This is an appeal from the judgment of sentence for simple assault, 1 possessing an instrument of crime 2, and carrying a firearm on a public street 3 without a license 4. Appellant contends that (1) the trial court erred in not granting his motion to suppress evidence because the police did not have probable cause to stop and arrest him, and (2) there was insufficient evidence to support the verdict. For the following reasons, we affirm.

The trial court made the following findings of fact:

Philadelphia Police Officers observed defendant in close proximity to someone who appeared to them to engage in a drug transaction. They approached while wearing raidgear marked "Police." At that time the defendant reached into his waistband and produced a loaded revolver,[411 Pa.Super. 277] which he proceeded to point at one of the Officers. Another Officer then disarmed the defendant.

Opinion, May 21, 1991, at 1-2.

Appellant was then arrested and charged with simple assault, aggravated assault, possessing an instrument of crime and carrying a firearm on a public street without a license. Appellant made a motion to suppress the revolver on the grounds that the police did not have probable cause to stop and arrest him. The trial court denied the motion and after a non-jury trial, appellant was found guilty of aggravated assault, possessing an instrument of crime, and carrying a firearm on a public street without a license.

Appellant then made several post-verdict motions. The court only granted appellant's motion to reduce his aggravated assault conviction to one of simple assault and then proceeded to sentence him. Subsequently, appellant filed a motion to modify sentence, which was granted nunc pro tunc. The trial court vacated appellant's original sentence and resentenced appellant to one-to-two years for simple assault, one-to-two years for possessing an instrument of crime, and two-and-one-half-to-five years for carrying a firearm on a public street without a license, all to run consecutively. Appellant then made timely appeal to this court.

Appellant first contends that the trial court erred in denying his motion to suppress the revolver. Specifically, appellant argues that he was not engaged in any incriminating activity when the police stopped and arrested him, and thus, the stop was deficient under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and the police lacked probable cause to arrest him. Furthermore, appellant argues that the revolver should have suppressed since he was forced to abandon it because of the illegal stop and arrest. We disagree.

The standard of review of a court's denial of a motion to suppress evidence allegedly obtained in violation of the Fourth Amendment is well-settled. We look to see

[411 Pa.Super. 278] 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 consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Vinson, 361 Pa.Super. 526, 530, 522 A.2d 1155, 1157 (1987).

In limited circumstances, an individual may be stopped and briefly detained. Commonwealth v. Prengle, 293 Pa.Super. 64, 68, 437 A.2d 992, 994 (1981). In order for such a stop to be reasonable under the Fourth Amendment of the United States Constitution, the police must have a reasonable suspicion, based on specific and articulable facts, that criminal activity may be afoot. Terry v. Ohio, supra. See Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969); Commonwealth v. Espada, 364

Page 348

Pa.Super. 604, 528 A.2d 968 (1987). Specifically, this standard is met "if the police officer's reasonable and articulable belief that criminal activity was afoot [is] linked with his observation of suspicious or irregular behavior on behalf of the particular defendant stopped." Id., 364 Pa. Super. at 609, 528 A.2d at 970. Mere presence near a high crime area or in the vicinity of a recently reported crime, is not enough to warrant a Terry stop. See Commonwealth v. Williams, 287 Pa.Super. 19, 429 A.2d 698 (1981); Commonwealth v. Hicks, supra. An officer must observe irregular behavior before he initiates a stop and, concurrently to his observation, he must hold a belief that criminal activity is afoot. See Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977); Commonwealth v. Espada, supra.

Here, the trial court based the validity of the Terry stop of appellant on the testimony of Lieutenant Hartman of the Narcotics Field Unit of the Philadelphia Police Department. Lieutenant Hartman testified that, on September 20, 1989, at approximately 8:00 p.m., he and five other...

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27 practice notes
  • Com. v. Revere
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 28, 2005
    ...there was also reasonable suspicion to stop appellant as he was Felder's companion. Id. at 201 (citing Commonwealth v. Kearney, 411 Pa.Super. 274, 601 A.2d 346, 348 (1992) ("When a person is suspected of presently committing a crime, a reasonable suspicion develops that his companion is als......
  • Com. v. Vasquez
    • United States
    • Superior Court of Pennsylvania
    • January 5, 1998
    ...presence near a high crime area or in the vicinity of a recently reported crime does not warrant a Terry stop. Commonwealth v. Kearney, 411 Pa.Super. 274, 278, 601 A.2d 346, 348 Commonwealth v. Allen, supra at 209-10, 681 A.2d at 783. As determined by the trial court, Agent Paret "explained......
  • Com. v. Jackson
    • United States
    • Superior Court of Pennsylvania
    • August 16, 2006
    ...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......
  • Com. v. Allen
    • United States
    • Superior Court of Pennsylvania
    • September 19, 1996
    ...presence near a high crime area or in the vicinity of a recently reported crime does not warrant aTerry stop. Commonwealth v. Kearney, 411 Pa.Super. 274, 278, 601 A.2d 346, 348 A police officer need not personally observe the illegal or suspicious conduct which leads him or her to believe t......
  • Request a trial to view additional results
27 cases
  • Com. v. Revere
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 28, 2005
    ...there was also reasonable suspicion to stop appellant as he was Felder's companion. Id. at 201 (citing Commonwealth v. Kearney, 411 Pa.Super. 274, 601 A.2d 346, 348 (1992) ("When a person is suspected of presently committing a crime, a reasonable suspicion develops that his companion is als......
  • Com. v. Vasquez
    • United States
    • Superior Court of Pennsylvania
    • January 5, 1998
    ...presence near a high crime area or in the vicinity of a recently reported crime does not warrant a Terry stop. Commonwealth v. Kearney, 411 Pa.Super. 274, 278, 601 A.2d 346, 348 Commonwealth v. Allen, supra at 209-10, 681 A.2d at 783. As determined by the trial court, Agent Paret "explained......
  • Com. v. Jackson
    • United States
    • Superior Court of Pennsylvania
    • August 16, 2006
    ...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......
  • Com. v. Allen
    • United States
    • Superior Court of Pennsylvania
    • September 19, 1996
    ...presence near a high crime area or in the vicinity of a recently reported crime does not warrant aTerry stop. Commonwealth v. Kearney, 411 Pa.Super. 274, 278, 601 A.2d 346, 348 A police officer need not personally observe the illegal or suspicious conduct which leads him or her to believe t......
  • Request a trial to view additional results

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