Com. v. Pine

• Decision Date: 27 January 1988
• Citation: 536 A.2d 811,370 Pa.Super. 410
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Arthur R. PINE.
• Court: Pennsylvania Superior Court

Page 811

536 A.2d 811

370 Pa.Super. 410

COMMONWEALTH of Pennsylvania, Appellant, v. Arthur R. PINE.

Superior Court of Pennsylvania.

Argued Sept. 2, 1987.

Decided Jan. 27, 1988.

Hugh J. Burns, Asst. Dist. Atty., Philadelphia, for Com., appellant.

Owen Larrabee, Philadelphia, for appellee.

Before CAVANAUGH, ROWLEY and MONTEMURO, JJ.

ROWLEY, Judge:

This is an appeal by the Commonwealth of Pennsylvania from an order granting a motion to suppress evidence that was filed by appellee Arthur Pine, who was charged with first degree felony burglary, theft, and criminal trespass after he allegedly stole a television set. ¹ The order effectively suppresses all evidence connecting appellee with the theft. There are two issues in this appeal: 1) whether the identification of appellee by a Philadelphia police officer must be suppressed as the fruit of an unlawful stop and detention of appellee; and 2) whether the serial number of the television set that appellee was carrying when he was stopped by the police officer must be suppressed as the fruit of an unlawful search. We conclude that neither the identification of appellee nor the serial number should be suppressed. Therefore, we reverse the order of the suppression court.

It is settled law that when the Commonwealth asserts in good faith that the granting of a suppression motion substantially impairs or effectively terminates the prosecution because of a lack of evidence, the Commonwealth has the right to appeal the suppression order. Commonwealth v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386 (1985); Commonwealth v. White, 358 Pa.Super. 120, 123, 516 A.2d 1211, 1212 (1986). In the present case the Commonwealth has certified that the suppression order of November 25, 1986, terminates or substantially handicaps its case. The Commonwealth's certification is sufficient, in and of itself, to authorize this appeal. Commonwealth v. Dugger, 506 Pa. at 545, 486 A.2d at 386. Accordingly, we turn to the merits of the case.

The pertinent facts of the case are as follows: On March 4, 1986, at approximately 1:40 a.m., Officer Mark Bugieda was patrolling the area of 200 West York Street, Philadelphia, in his marked police car when he observed appellee sitting on a step at Fourth and York. As the officer approached appellee, appellee looked in the officer's direction, stood up, and walked away. The officer resumed his patrol and, moments later, returned to York and Fourth. Again, he saw appellee sitting on the step. Again, appellee stood and walked away. For a few minutes Officer Bugieda continued to watch appellee, who walked away, looked back at the officer, and kept walking.

Ten or fifteen minutes later, the officer again saw appellee. This time he was walking east on York Street and was carrying a television set on his shoulder. On the basis of appellee's actions and the officer's personal knowledge of numerous burglaries in the area, Officer Bugieda stopped appellee and asked him what he was doing. Appellee replied that he had just come from his grandmother's house at 317 West Lehigh Avenue and that he was taking the television set home to repair it. The officer asked appellee for identification both for himself and for the television set. Appellee said that he had identification for himself but not for the set. The officer then checked his "Part One Sheet," which lists thefts or burglaries reported from the previous night or day, but found no listing for a television set. Officer Bugieda asked appellee where he was going and appellee replied, "Home." Appellee then "allegedly said, 'You can take me back to 317 Lehigh and ask my grandmother.' " Trial Court Opinion at 2; see also N.T. at 6. ² The officer placed appellee and the television set into the police car, drove to 317 West Lehigh Avenue, knocked on the door, and received no response. The officer then attempted to check the television set through the police computer that keeps track of lost or stolen goods, but the computer was inoperative. Officer Bugieda recorded the serial number that was affixed to the rear of the television set and examined appellee's forms of identification.

At this point ten to fifteen minutes had elapsed from the time that Officer Bugieda first spoke to appellee. The officer brought appellee back to the place where he had originally stopped him and allowed him to continue on his way with the television set. Later that day the officer learned that a television set with the same serial number as the one in appellee's possession had been stolen. On that basis an arrest warrant was issued for appellee, and he was subsequently arrested. Because the television set has never been recovered, the only evidence actually linking appellee to the stolen set is the serial number recorded by Officer Bugieda.

Appellee filed an omnibus pre-trial motion seeking to suppress all identifications and physical evidence obtained as a result of his encounter with Officer Bugieda and subsequent arrest. The trial court suppressed all of the evidence related to the encounter because it concluded that both the "stopping" and the "detention" of appellee by Officer Bugieda had been improper. Trial Court Opinion at 3. The court reasoned that because the officer had had no probable cause to justify the stop, the information, including the serial number, obtained as a result of that stop must be suppressed. Id. In the view of the trial court, "[t]he officer had a duty under the circumstances to tell the [appellee] to go on his way and not accede to the [appellee's] 'request' to go to his grandmother's house. The placing of the [appellee] in the police car was an arrest." Trial Court Opinion at 4.

In determining the propriety of a suppression order, we are required to review the unique facts and circumstances of each case. Commonwealth v. Mackie, 456 Pa. 372, 376, 320 A.2d 842, 844 (1974). Our scope of review is limited primarily to questions of law. Commonwealth v. White, 358 Pa.Super. 120, 123, 516 A.2d 1211, 1212 (1986). We are bound by the suppression court's findings of fact, if those facts are supported by the record. Commonwealth v. James, 506 Pa. 526, 533, 486 A.2d 376, 379 (1985); Commonwealth v. White, supra. In determining whether the findings of fact are supported by the record, we may consider only the evidence of appellee and so much of the Commonwealth's evidence as, read in the context of the entire record, remains uncontradicted. Commonwealth v. James, 506 Pa. at 532-33, 486 A.2d at 379; Commonwealth v. White, supra. Questions of credibility are to be resolved by the suppression court as the trier of fact rather than by us as a reviewing court. Commonwealth v. Eden, 456 Pa. 1, 4, 317 A.2d 255, 257 (1974); Commonwealth v. White, supra.

In the case before us, appellee offered no testimony at the suppression hearing. The Commonwealth's testimony was therefore uncontradicted. While the testimony of Officer Bugieda, the Commonwealth's only witness, was subject to the suppression court's evaluation of its credibility, the suppression court did not make a specific finding with regard to the officer's credibility.

The first issue in this case requires us to determine whether either the initial stop or the subsequent transportation of appellee to what was alleged to be his grandmother's residence was unlawful. We conclude, contrary to the trial court, that neither action by the police officer was unlawful. Initially Officer Bugieda made a "Terry " stop of appellee. Such a temporary, investigatory stop may be made in the absence of probable cause for arrest if the police officer reasonably suspects that criminal activity is afoot. Commonwealth v. Hicks, 434 Pa. 153, 158, 253 A.2d 276, 279 (1969); Commonwealth v. Jackson, 359 Pa.Super. 433, 437, 519 A.2d 427, 429 (1986); see also Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). The police officer must be able to point to specific and articulable facts which, in conjunction with rational inferences derived from those facts, reasonably warrant the intrusion. Commonwealth v. Murray, 460 Pa. 53, 61, 331 A.2d 414, 418 (1975); Commonwealth v. Prengle, 293 Pa.Super. 64, 68, 437 A.2d 992, 994 (1981). Given the combination of appellee's actions, the late hour, and Officer Bugieda's knowledge of the character of the neighborhood, we conclude that the officer had a reasonable suspicion that criminal activity was afoot. Although the mere fact that appellee twice walked away upon seeing the officer's police car is insufficient in itself to support a stop, see Commonwealth v. Jeffries, 454 Pa. 320, 325, 311 A.2d 914, 917 (1973) (quickening of one's pace at sight of police officer and starting to run when chased by officer is not enough to justify Terry seizure); Commonwealth v. Stratton, 231 Pa.Super. 91, 95, 331 A.2d 741, 742 (1974) (allocatur denied) (flight alone, even upon seeing police officer, is insufficient to justify a stop and search), the stop of appellee was justified by the fact that on the officer's third sighting of appellee the latter was carrying a television set, it was nearly two a.m., and the officer knew that numerous burglaries had occurred in the area. See also Commonwealth v. LeSeuer, 252 Pa.Super. 498, 500-1, 382 A.2d 127, 128 (1977) (allocatur denied) (reasonable suspicion for stop where police officers observed defendant carrying expensive stereo equipment in a high-crime area and observer told them he had seen defendant running out of a house carrying the equipment); Commonwealth v. Wascom, 236 Pa.Super. 157, 160, 344 A.2d 630, 632 (1975) (allocatur denied) (reasonable suspicion for stop where shortly after midnight police officer saw defendant and a companion walking in a business district that contained clothing and appliance stores, defendant carrying a radio and men's trousers and companion carrying a radio).

We also cannot agree with the suppression court's conclusion that appellee was under arrest when h...