Com. v. Robinson

• Decision Date: 13 January 1992
• Citation: 410 Pa.Super. 614,600 A.2d 957
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Charles ROBINSON, Sr.
• Court: Pennsylvania Superior Court

Page 957

600 A.2d 957

410 Pa.Super. 614

COMMONWEALTH of Pennsylvania, Appellant, v. Charles ROBINSON, Sr.

Superior Court of Pennsylvania.

Submitted Sept. 11, 1991.

Filed Oct. 31, 1991.

Reargument Denied Jan. 13, 1992.

Kemal A. Mericle, Asst. Dist. Atty., Pittsburgh, for Com., appellant.

Shelley Stark, Public Defender, Pittsburgh, for appellee.

Before OLSZEWSKI, MONTEMURO and HOFFMAN, JJ.

HOFFMAN, Judge:

This Commonwealth appeal is from an order granting appellee's motion to suppress evidence seized in the search of his person and his vehicle. On appeal, the Commonwealth argues that the police officers who confronted appellee had a reasonable basis for stopping him and thus the evidence seized pursuant to the stop should not have been suppressed. For the reasons that follow, we agree, and, accordingly, we reverse the order below and remand for trial.

Appellee, Charles Robinson, Sr., was charged with one count each of possessing a firearm without a license ¹ and altering or obliterating marks of identification. ² A motion to suppress was filed on July 10, 1989, and a hearing was held on August 16, 1990. Testimony was taken that day and further argument was held on January 25, 1991. The suppression motion was granted on January 25, 1991 (N.T. at 27). ³ The court held that the initial stop was illegal under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny. This appeal followed.

When the Commonwealth appeals the adverse decision of a suppression court, we must consider only the evidence of the defendant's witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole that remains uncontradicted. Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983) (plurality opinion). While we are bound by the lower court's findings of fact if supported by the record, we are not bound by the court's legal conclusions which are drawn from the facts of the case. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985).

In the instant case, the only testimony presented at the suppression hearing was that of Officer Hamman of the Pittsburgh Police Department. Her uncontradicted testimony established that on April 16, 1989 appellee was observed by Officer Hamman while on routine patrol. The officer saw appellee bending over into a van with a gun sticking out of the back of his shorts (N.T. at 12). Because of the presence of children in the area, the officer decided to drive down the street and discuss the situation with her partner (N.T. at 14). The officers turned their vehicle around, headed back toward appellee's van, and stopped the van. Appellee, who was driving, was asked to exit the van. After he stepped out of the van, Officer Hamman informed appellee that she had seen a gun in the back of his pants. She performed a quick pat down of appellee and discovered a holster inside the back of his shorts. The officer then looked into the van and saw a gun lying on the right side of the floor beside the driver's seat. The gun (a .38 caliber revolver) was loaded and had deep scratches through the serial numbers (N.T. at 19).

Preliminarily, we note that there is no dispute that Officer Hamman's actions in stopping appellee constituted a stop under the Fourth Amendment. In the case of Commonwealth v. Barnett, 484 Pa. 211, 398 A.2d 1019 (1979), our Supreme Court stated that:

a policeman may legally stop a person and question him. But he may not without a warrant restrain that person from walking away ..., unless he has 'probable cause to arrest that person or he observes such unusual and suspicious conduct on the part of the person who is stopped ... that the policeman may reasonably conclude that criminal activity was afoot....'

We must thus view the totality of the circumstances to determine whether appellee was being 'stopped' or was merely approached for allowable questioning by the officers.

Id. at 215, 398 A.2d at 1021 (quoting Commonwealth v. Berrios, 437 Pa. 338, 340, 263 A.2d 342, 343 (1970)). See also Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977) (if citizen approached by officer is ordered to stop or is physically restrained, "stop" occurs). Here, appellant was driving his vehicle when he was stopped and ordered to exit by the officer. We find, therefore, that he was "stopped" under the Jones standard.

In limited circumstances, an individual may be stopped, briefly detained, and frisked for investigatory purposes. 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 to the United States Constitution, the police conduct must meet two separate and distinct standards. First, the police officer must point to specific and articulable facts which warrant the initial stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This standard is met "if the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him reasonably to believe that criminal activity may be afoot...." Commonwealth v. Hicks, 434 Pa. 153, 158-59, 253 A.2d 276, 279 (1969). Second, if the reasons for the stop meet the standard and, therefore, it is deemed reasonable for Fourth Amendment purposes, a police officer may frisk the individual to search for weapons. Again, such a belief must be based upon specific and articulable facts indicating that the person may be armed and dangerous. Id. at 159, 253 A.2d at 279. An otherwise reasonable search may be tainted by an illegal stop or arrest. Wong Sun v. United States 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Commonwealth v. Johnson, 474 Pa. 512, 379 A.2d 72 (1977).

The Commonwealth contends that the officer had a reasonable basis to stop appellee based on her observation of the gun stuck in appellee's pants and because the street was crowded with children. The trial court concluded, however, that the officer had no reasonable basis to believe criminal activity was afoot and that the subsequent stop and frisk was illegal thus making the evidence subject to suppression. The Commonwealth bears the burden of proving by a preponderance of the evidence that the seizure did not violate the Fourth Amendment. Commonwealth v. Silo, 480 Pa. 15, 21, 389 A.2d 62, 65 (1978).

While information sufficient to render a stop reasonable cannot be defined to a mathematical certainty, Pennsylvania courts have identified some situations that meet the Terry standard. In Commonwealth v. Mears, 283 Pa.Super. 416, 424 A.2d 533 (1981) our Superior Court held that just as probable cause for an arrest or search may be provided by an informant's tip, so too an informant may provide valuable information which may lead to a justifiable Terry style stop and...