Com. v. Wiley

• Decision Date: 23 August 2006
• Citation: 904 A.2d 905
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Allen WILEY, Appellee.
• Court: Pennsylvania Supreme Court

904 A.2d 905

COMMONWEALTH of Pennsylvania, Appellant v. Allen WILEY, Appellee.

Supreme Court of Pennsylvania.

Submitted January 19, 2006.

Decided August 23, 2006.

Appeal No. 26 EAP 2005 from the Judgment of Superior Court on August 23, 2004 at No. 3036 EDA 2003, 858 A.2d 1191 (reargument denied on October 7, 2004) Vacating and Remanding the Judgment of Sentence entered on October 1, 2003 in the Court of Common Pleas of Philadelphia County, Criminal Division at No. 0303-0833 1/1; Chris R. Wogan, Judge.

Grady John Gervino, Hugh J. Burns, Jr., Philadelphia Dist. Attorney's Office, for the Com., appellant.

Karl Baker, Defender Ass'n of Philadelphia, Lori Mach, Philadelphia, for Allen Wiley, appellee.

Before: CAPPY, C.J., CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER and BALDWIN, JJ.

ORDER

PER CURIAM:

Appeal dismissed as having been improvidently granted.

Justice NEWMAN files a dissenting statement.

Justice EAKIN files a dissenting statement.

Justice NEWMAN dissenting.

I respectfully dissent from the Majority of this Court in its decision to dismiss the above matter as improvidently granted. In particular, I feel that this case gives the Court an opportunity to clarify the law regarding the differences between the independent source doctrine and the inevitable discovery doctrine, as well as to confirm the validity of both doctrines.

The facts reveal that on March 11, 2003, Lawrence Thompson (Thompson) saw Appellee with a gun protruding from his waistband inside of Daniel's Restaurant, located near 900 Godfrey Avenue in Philadelphia. Thompson followed Appellee to a barbershop and immediately called 911 on his cell phone, described Appellee, and informed the police of his current location. Thompson then parked his car across from the barbershop and watched until the police arrived. Police office Edward Fidler (Officer Fidler) testified that he had received a radio call about a male matching Appellee's description carrying a gun inside the barbershop at 906 Godfrey Avenue. Officer Fidler arrived at the shop, entered with his gun drawn, frisked Appellee, and discovered a black .22-caliber revolver loaded with eight live rounds. Approximately one and one-half minutes elapsed between the time of the radio call and the recovery of the gun. After the police arrested Appellee, Thomson approached the police and informed them that he had called 911.

Thereafter, Appellee was charged with Carrying a Firearm without a License, 18 Pa.C.S. § 6106, a third-degree felony, and Carrying a Firearm on Public Streets or Property in Philadelphia, 18 Pa.C.S. § 6108, a first-degree misdemeanor. Appellee filed a Motion to Suppress the physical evidence, alleging an illegal search and seizure and that no reasonable suspicion existed for Officer Fidler to make a Terry¹ stop.

On September 10, 2003, the Court of Common Pleas of Philadelphia County (trial court) denied the Motion to Suppress. After a bench trial, Appellee was convicted on both charges and sentenced to a term of two to six months' incarceration, followed by a concurrent three years of reporting probation. Appellee appealed, claiming that the trial court erred in denying his Motion to Suppress.

On August 23, 2004, the Superior Court, in a published Opinion, vacated the sentence and remanded. Commonwealth v. Wiley, 858 A.2d 1191 (Pa.Super.2004). Specifically, the Superior Court found that Officer Fidler did not have reasonable suspicion to justify the search because the caller was, at all relevant times, anonymous. Id. at 1194-95 (citing Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571 (1997), and Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068 (1997)). Specifically, the Superior Court cited Hawkins for the proposition that an anonymous call describing a person engaged in criminal activity at a specified location is by itself, not sufficient reasonable suspicion to perform a Terry stop. Although it has been argued that there should be a "firearms exception," this Court has explicitly rejected on constitutional grounds that the degree of danger from armed criminals justifies a Terry stop. Id.; see also Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). Accordingly, the Superior Court held that the search was unconstitutional, as Officer Fidler did not have any information in his possession at the time of his search to give him reasonable suspicion. The court emphasized that reasonable suspicion is to be determined based on information known to police before a detention and/or search, and, therefore, Mr. Thompson's conduct in identifying himself to the arresting officer after Appellee's arrest was irrelevant to the inquiry. Wiley, 858 A.2d at 1196 (citing J.L., 529 U.S. at 271, 120 S.Ct. 1375) ("The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search.").

The Superior Court focused on the fact that the additional information as to Mr. Thompson's identity was wholly irrelevant because it came after the fact of the arrest. However, the independent source and inevitable discovery doctrine exist to allow the admission of evidence where no deterrent effect would be achieved from the illegal arrest or search because that evidence would have otherwise been seized lawfully. Presently, the Superior Court addressed the Commonwealth's claim of inevitable discovery in a footnote

Before concluding, we will briefly address the Commonwealth's argument that the seizure was lawful pursuant to the "inevitable discovery" doctrine. "The inevitable discovery doctrine, or independent source rule, states that illegally seized evidence may be admissible, if the prosecution can demonstrate that the evidence in question was procured from an independent origin. Application of the `independent source doctrine' is proper only in the very limited circumstances where the `independent source' is truly independent from both the tainted evidence and the police or investigative team which engaged in the misconduct by which the tainted evidence was discovered." Commonwealth v. Lehman, 820 A.2d 766, 771 (Pa.Super.2003) (citations omitted).

The Commonwealth argues that "as soon as Officer Fidler had reemerged from the barbershop and placed [Appellee] in his police car, Mr. Thompson went up to the officer and identified himself as the person who had made the 911 call. Thus, it is clear that had Officer Fidler not immediately run into the barbershop, or had reemerged from the barbershop without detaining and arresting [Appellee], Mr. Thompson would have approached him, identified himself, and personally provided him with the information that would have warranted the investigatory stop and protective frisk. This, of course, would have led to the discovery of the gun." Commonwealth's Brief at 10-11.

In our view, the Commonwealth has not identified an actual "independent source" so much as it has identified an hypothetical, alternate reality under which the seizure would have been lawful. This claim fails.

Wiley, 858 A.2d at 1197 n. 5 (emphasis added). As can be seen, the Superior Court spoke of an independent source but did not address the true inevitable discovery exception.²

Presently, the Commonwealth argues that the Superior Court erroneously applied the independent source exception rather than the inevitable discovery exception to the exclusionary rule. Specifically, the Commonwealth contends that the Superior Court created a hybrid test, which erroneously denied the Commonwealth's argument that the evidence would have been inevitably discovered, although not from an independent source. I agree that the Superior Court erred in applying an independent source analysis to the instant matter, even though it acknowledged that the Commonwealth argued for an alternate reality where the evidence would have been inevitably discovered. Moreover, that error has the danger of being repeated due to the obfuscation by various courts of these two similar but distinct rules. Part of the Superior Court's confusion stems from the hybrid definition used by this Court in Melendez. We have never truly adopted an inevitable discovery exception. Rather, the decisions, as noted by the Superior Court, apply a hybrid definition with the analysis incorporating pieces of both tests.

This Court in Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226, 230 (1996) stated that "[t]he inevitable discovery rule, sometimes referred to as the `independent source rule,' is that if the prosecution can demonstrate that the evidence in question was procured from an independent origin, such evidence is admissible." Moreover, Melendez relied in part on Commonwealth v. Mason, 535 Pa. 560, 637 A.2d 251 (1993), in which this Court discussed the independent source and inevitable discovery doctrine and implicitly adopted both. Id. at 255 (citing Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988)).

Melendez, in fact, discussed the independent source doctrine and held that evidence was tainted when an independent source would not have discovered the evidence had it not been for the initial illegal stop by the police. Essentially, this Court held that the police may not create their own exigent circumstances or independent source if it is predicated upon illegal police conduct. However, despite labeling the exception in question as one of inevitable discovery, the Melendez Court proceeded to discuss and analyze the independent source exception.

In the case sub judice, the Superior Court also couched an independent source analysis in terms of the inevitable discovery exception. However, the inevitable discovery exception actually requires no independent source.³ Specifically, as stated by the Third Circuit

Accordingly, under the independent source doctrine, evidence that was in fact discovered lawfully, and not as a direct or indirect result of illegal activity, is admissible. In contrast, the inevitable discovery doctrine, applied in ...