Commonwealth v. Cotton

• Citation: 740 A.2d 258
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Kymmar COTTON, Appellant.
• Decision Date: 12 October 1999
• Court: Pennsylvania Superior Court

740 A.2d 258

COMMONWEALTH of Pennsylvania, Appellee, v. Kymmar COTTON, Appellant.

Superior Court of Pennsylvania.

Submitted September 23, 1998.

Filed October 12, 1999.

John W. Packel, Asst. Public Defender, Philadelphia, for appellant.

Peter J. Gardner, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before FORD ELLIOTT and STEVENS, JJ., and CERCONE, President Judge Emeritus.

CERCONE, President Judge Emeritus:

¶ 1 Appellant Kymmar Cotton appeals from the judgment of sentence of eighteen months probation imposed after his conviction for the offenses of carrying a loaded firearm without a license and carrying a loaded firearm on the streets of Philadelphia.¹ We affirm.

¶ 2 The Suppression Court has aptly summarized the facts surrounding Appellant's arrest which were adduced at his suppression hearing held July 17, 1997:

On January 22, 1997, at approximately 6:49 p.m., Philadelphia Police Officer Gary Harrison and his partner were in plainclothes, driving an unmarked vehicle in the 6600 block of Ardleigh Street in Philadelphia. While stopped at the corner of Johnson and Ardleigh Streets, Officer Harrison observed a black Acura Vigor operated by the [Appellant], run through a stop sign while traveling north on Ardleigh Street. (N.T. 7/1[7]/97 p. 5).

At this time, Officer Harrison signaled the car with his lights and siren to pull to the side of the road. (N.T. 7/1[7]/97 p. 6). In addition to the driver, there was another passenger in the car. A uniform (sic) officer was called to the scene. Officer Harrison approached the car and asked the [Appellant], the driver, to produce his license, vehicle registration, and insurance identification. [Appellant] identified himself by name and handed over paperwork for the vehicle. (N.T. 7/1[7]/97 p. 7).

Before asking the [Appellant] to step out of the car, Officer Harrison ran [Appellant's] name and birth date through the N.C.I.C. ¹ database which reported that [Appellant] had two outstanding bench warrants. At this point, Officer Harrison and his partner asked [Appellant] to step out of the car and placed him under arrest. During a search incident to that arrest, a Lorcin .25 caliber semiautomatic pistol loaded with 7 live rounds was recovered from [Appellant's] coat pocket. (N.T. 7/1[7]/97 p. 8).

Suppression Court Opinion, filed 1/13/98 at 1-2 (footnote in original).

¶ 3 Appellant waived his right to a jury trial. The next day he was convicted by The Honorable Lynn B. Hamlin Jr. of the aforementioned offenses and given the above referenced sentences. On August 1, 1997 Appellant filed this timely appeal.²

¶ 4 On appeal to our Court Appellant presents one issue for our consideration:

[I.] Did not the lower court err in denying a Motion to Suppress physical evidence illegally seized from appellant where appellant, the driver of a motor vehicle, was stopped for a traffic violation by a non uniformed police officer who lacked legal authority to initiate such a stop, and where the Commonwealth failed to introduce sufficient evidence at the motion to suppress to establish probable cause for appellant's arrest, presenting only the arresting officer's reliance on hearsay information gathered from a National Crime Information Center radio report that appellant was wanted on two bench warrants, warrants that were neither produced in court nor proven to be valid through competent testimony, in violation of appellants rights under Article 1, § 8 of the Pennsylvania Constitution and the Fourth and Fourteenth Amendments to the United States Constitution.

Appellant's Brief at 3.

¶ 5 We have stated, in prior cases, our standard of review for the denial of a suppression motion as follows:

When we review the ruling of a suppression court, we must determine whether its factual findings are supported by the record. Where the [appellant] challenges an adverse ruling of the suppression court, we will consider only the evidence for the prosecution and whatever evidence for the defense which is uncontradicted on the record as a whole; if there is support on the record, we are bound by the facts as found by the suppression court, and we may reverse that court only if the legal conclusions drawn from those facts are erroneous.

Commonwealth v. Roman, 714 A.2d 440, 442 (Pa.Super.1998); Commonwealth v. Perry, 710 A.2d 1183, 1184 (Pa.Super. 1998). Moreover, as factfinder, it is within the suppression court's sole province to pass on the credibility of witnesses and the weight to be accorded their testimony. Commonwealth v. Benton, 440 Pa.Super. 441, 655 A.2d 1030, 1032 (1995). The factfinder is free to believe all, some, or none of the evidence presented. Id.

¶ 6 Appellant first argues that Officer Harrison and his partner had no authority to stop him for disregarding a stop sign because they were out of uniform in an unmarked car. Appellant asserts that "[t]he Motor Vehicle Code of Pennsylvania expressly limits the authority to enforce the Motor Vehicle Code to those police officers who are `in uniform'." Appellant's Brief at 10. We do not interpret the relevant Motor Vehicle Code provision which authorizes a police officer to make an investigative traffic stop so restrictively.

Section 6308(b) of the Motor Vehicle Code provides:

(b) Authority of police officer.— Whenevera police officer is engaged in a systematic program of checking vehicles or drivers or has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle's registration, proof of financial responsibility, vehicle identification number or engine number or the driver's license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.

75 Pa.C.S.A. § 6308(b) (emphasis supplied).

¶ 7 Nowhere in the plain language of this statutory section does a requirement appear that a police officer be in uniform to effectuate a traffic stop. It is axiomatic that "[w]hen interpreting a statute words must be given their plain meaning, unless doing so would create an ambiguity, and we must interpret statutes in accordance with the legislative intent." MacAleer v. MacAleer, 725 A.2d 829, 832 (Pa.Super.1999). See also 1 Pa.C.S. § 1921(a) (stating that when interpreting and construing statutes, the object must be to "ascertain and effectuate the intention of the General Assembly"). Moreover, it is not within the province of an appellate court to add words to a statute where the legislature failed to supply them. Guinn v. Alburtis Fire Company, 531 Pa. 500, 503, 614 A.2d 218, 220 (1992). We see no reason to impose such a requirement in the absence of a legislative mandate to do so ¶ 8 There is no dispute that Officer Harrison and his partner were on duty City of Philadelphia Police Officers, who were acting within the scope of their jurisdiction, when they observed Appellant proceed through the intersection without stopping at the stop sign. Thus, they were unquestionably police officers within the meaning of 75 Pa.C.S.A. § 6308. See Commonwealth v. Frombach, 420 Pa.Super. 498, 617 A.2d 15, 19 (1992)

("Traditional police are government employees empowered by statute to enforce all Commonwealth laws[.] Today traditional police in Pennsylvania include state police, municipal police, township police, borough police and county district attorney's detectives"). Officer Harrison and his partner therefore lawfully stopped Appellant's vehicle to investigate the vehicle code violation which they observed. Commonwealth v. Steinmetz, 440 Pa.Super. 591, 656 A.2d 527, 528 (1995) ("An officer may conduct a lawful traffic stop if he or she reasonably believes that a provision of the Motor Vehicle Code has been violated.") See also Commonwealth v. Gommer, 445 Pa.Super. 571, 665 A.2d 1269 (1995),

appeal denied, 546 Pa. 676, 686 A.2d 1308 (1996) (off duty state police officer, though not in uniform, had authority to stop vehicle when she had a reasonable and articulable basis to suspect that the driver was intoxicated.)³

¶ 9 Appellant next argues that his arrest by the two officers due to the existence of the outstanding bench warrants was invalid because the Commonwealth did not produce the warrants at his suppression hearing. Appellant asserts that because the Commonwealth failed to produce the warrants, the Commonwealth therefore did not satisfy its burden of demonstrating probable cause to justify Appellant's arrest. We cannot agree.

¶ 10 Appellant relies on three cases to support his argument. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) and Commonwealth v. Queen, 536 Pa. 315, 639 A.2d 443 (1994).

¶ 11 In Whiteley the appellant was arrested by a police officer in the town of Laramie, Wyoming who was acting on a radio bulletin which named the appellant as an individual who had participated in the robbery of a number of businesses in another Wyoming county, Carbon County. This radio bulletin was issued after the sheriff of Carbon County had obtained an arrest warrant for appellant and his accomplice from a justice of the peace in Carbon County. The Laramie Police Officer who arrested the appellant relied solely on the radio bulletin to effectuate the arrest.

¶ 12 The Supreme Court however, held that the arrest warrant, which was the subject of the radio bulletin, was not supported by probable cause because the sheriff did not set forth enough operative facts in his complaint to justify the arrest warrant being issued. The Court ruled that, as a consequence, the arrest of the appellant in reliance on the radio bulletin about this defective warrant was invalid as a violation of appellant's constitutional rights under the Fourth and Fourteenth Amendments of the United States Constitution. The Court also rejected the argument that the arrest was valid because the...