Com. v. Peterfield

• Decision Date: 16 July 1992
• Citation: 609 A.2d 540,415 Pa.Super. 313
• Parties: COMMONWEALTH of Pennsylvania v. Gregory PETERFIELD, Appellant.
• Court: Pennsylvania Superior Court

Page 540

609 A.2d 540

415 Pa.Super. 313

COMMONWEALTH of Pennsylvania v. Gregory PETERFIELD, Appellant.

Superior Court of Pennsylvania.

Argued May 14, 1991.

Filed May 14, 1992.

Reargument Denied July 16, 1992.

[415 Pa.Super. 314] Owen Larrabee, Asst. Public Defender, Philadelphia, for appellant.

Norman Gross, Asst. Dist. Atty., Philadelphia, for the Com., appellee.

Before McEWEN, KELLY and FORD ELLIOTT, JJ.

KELLY, Judge:

Appellant appeals from an order denying a Writ of Certiorari to the Court of Common Pleas of Philadelphia. We affirm.

The facts and procedural history may be briefly summarized as follows. On November 19, 1988, at approximately 12:50 p.m., Philadelphia Police Officer George Hoy was approached while on duty in his patrol wagon by an unidentified citizen who told him that a six foot tall black male, with a beard, a three-fourth length ski jacket, a blue knit hat, and dark colored pants was in the parking lot of a nearby supermarket acting "suspiciously." N.T. 3/20/89 at 4. Officer Hoy immediately proceeded to the location where he observed appellant, who matched the description, quickly leaving the parking lot. Officer Hoy then directed appellant to stop. He did not. Instead, appellant put his left hand inside his coat pocket and fled. Officer Hoy gave chase, but it was to no avail. Appellant successfully escaped, leaving behind what Officer Hoy later recovered and identified as a loaded .25 caliber automatic handgun.

A short time later, other officers, who had been advised of the foregoing facts, encountered appellant and arrested him. Appellant was charged with carrying a firearm without a license and carrying firearms on the public streets of Philadelphia. ¹ A motion to suppress the handgun was filed and denied. Appellant was thereafter tried and convicted of both charges in Philadelphia Municipal Court. Appellant timely filed a petition for a Writ of Certiorari which was denied by order of the Honorable Edward E. Russell of the Court of Common Pleas. This timely appeal followed.

On appeal, appellant contends that the court erred in failing to suppress the gun which conclusively established his guilt at trial. His sole argument is that his right to be free of unreasonable searches and seizures as guaranteed under both the United States Constitution and the Pennsylvania Constitution was violated because Officer Hoy lacked probable cause or reasonable suspicion to direct him to stop as he was leaving the parking lot. ² Appellant maintains that, notwithstanding the fact that he did not comply and, in fact, successfully eluded Officer Hoy, the gun retrieved after the unsuccessful pursuit of him must be suppressed as fruit of an unconstitutional "seizure." We cannot agree.

Under the United States Constitution, appellant's claim is manifestly flawed. In the recent case, California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the United States Supreme Court was presented with a fact scenario which is The language of the Fourth Amendment, of course, cannot sustain respondent's contention. The word "seizure" readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. ("She seized the purse-snatcher, but he broke out of her grasp.") It does not remotely apply, however, to the prospect of a policeman yelling "Stop, in the name of the law!" at a fleeing form that continues to flee. That is no seizure. Nor can the result respondent wishes to achieve be produced--indirectly, as it were--by suggesting that Pertoso's [the officer's] uncomplied-with show of authority was a common-law arrest, and then appealing to the principle that all common-law arrests are seizures. An arrest requires either physical force (as described above) or, where that is absent, submission to the assertion of authority.

                materially indistinguishable from that sub judice.   In Hodari D., police encountered a group of youths, including Hodari, who had gathered at a street corner.  When police officers approached, the youths quickly dispersed and fled.  Police ran after Hodari who, while being chased, tossed away what appeared to be a small rock, but later proved to be crack cocaine.  An order denying a motion to suppress the cocaine was entered, but later reversed by the intermediate appellate level court of California.  The state thereafter successfully petitioned the United States Supreme Court to review the order which reversed the refusal to suppress.  Hodari, as respondent, argued that although he had not yet been caught when he discarded the cocaine, he was nonetheless "seized" for the purposes of the Fourth Amendment.  A 7-2 majority of the United States Supreme Court disagreed
                

Id., 499 U.S. at ----, 111 S.Ct. at 1550-51, 113 L.Ed.2d at 697 (emphasis added).

Here, no physical force was applied to appellant and he did not submit to the assertion of authority. Rather, when police asserted their authority by requesting him to stop, appellant chose not to comply and immediately fled the scene. Such flight, of course, did not alone give police cause to arrest him. See Commonwealth v. Jeffries, 454 Pa. 320, 325, 311 A.2d 914, 917 (1973); Commonwealth v. Martinez, 403 Pa.Super. 125, 128, 588 A.2d 513, 514 (1991). ³ The success of it, however, does prevent this Court from considering him "seized" for the purposes of the Fourth Amendment. See California v. Hodari D., supra. Thus, under the United States Constitution, appellant's assertion, that probable cause or reasonable suspicion was necessary to justify police action taken before their recovery of the gun must fail. For the purposes of the Fourth Amendment, we need not even evaluate what, if any, suspicion the police had before they retrieved the gun since appellant was not, at that point, "seized." See id.

The flaw in appellant's argument under the Pennsylvania Constitution is perhaps less obvious, but no less fatal. It is of course true that Pennsylvanians' may adopt a state constitution which imposes greater limitations upon the state, and that Pennsylvania courts may (indeed must) give effect to any such decision to do so. As our Supreme Court most recently reaffirmed in Commonwealth v. Edmunds, 526 Pa. 374, 389, 586 A.2d 887, 894-95 (1991),

Here in Pennsylvania, we have stated with increasing frequency that it is both important and necessary that we undertake an independent analysis of the Pennsylvania Constitution, each time a provision of that fundamental document is implicated. Although we may accord weight to federal decisions where they "are found to be logically persuasive and well reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees," Commonwealth v. Tarbert, 517 Instantly, for appellant to gain relief under the Pennsylvania Constitution, he must establish that Article I, Section 8 of the Pennsylvania Constitution, unlike the Fourth Amendment of the federal constitution, must be interpreted so as to consider an individual "seized" in the absence of an application of actual physical force or the submission to the assertion of authority. ⁴ However, appellant has not cited, and we cannot find, support for any such proposition. Indeed, no case which we have uncovered has held, suggested or even intimated that a distinction between the Pennsylvania and United States Constitutions exists with regard to the definition of the term "seizure." Rather, the only Pennsylvania cases defining when a "seizure" of the person occurs are based solely upon interpretations of the term "seizure" as used in the United States Constitution, not the Pennsylvania Constitution. See e.g. Commonwealth v. Barnett, 484 Pa. 211, 398 A.2d 1019 (1979) (interpreting Pennsylvania cases following Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977) (same); Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977) (same); Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973) (same); Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973) (finding Terry v. Ohio, supra, controlling); Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970) (same); Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969) (same); Commonwealth v. Brown, 388 Pa.Super. 187, 565 A.2d 177 (1989) (interpreting Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)); Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984) (quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973)); Commonwealth v. Williams, 287 Pa.Super. 19, 429 A.2d 698 (1981) (interpreting Pennsylvania cases following Terry v. Ohio, supra ); Commonwealth v. Howell, 213 Pa.Super. 33, 245 A.2d 680 (1968) (interpreting Pennsylvania cases following Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963)). These cases are limited to the logic that gave them birth. Thus, to the extent that their holdings conflict with the United States Supreme Court's most recent definition of the term "seizure," they must be seen as having been overruled, sub silentio, by California v. Hodari D., supra, as the United States Supreme Court is always the final arbiter of the United States Constitution. See Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958).

Pa. 277, 283, 535 A.2d 1035, 1038 (1987), quoting, Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 502 (1977), we are free to reject the conclusions of the United States Supreme Court so long as we remain faithful to the minimum guarantees established by the United States Constitution.

Moreover, appellant has not properly asked us herein to declare that such a distinction between the constitutions exists. His failure to do so prevents us from finding any merit to his appeal.

In Commonwealth v. Edmunds, supra, our Supreme Court held,

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