Commonwealth v. Cunningham
| Decision Date | 13 December 2022 |
| Docket Number | 86 MDA 2022 |
| Citation | 287 A.3d 1 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant v. Dwayne CUNNINGHAM |
| Court | Pennsylvania Superior Court |
Michael J. Stine, Assistant District Attorney, Pottsville, for appellant.
Hank J. Clarke II, Pottsville, for appellee.
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
The Commonwealth appeals from the December 8, 2021, order entered in the Court of Common Pleas of Schuylkill County, which granted the pre-trial omnibus suppression motion filed by Appellee Dwayne Cunningham ("Cunningham").1 After a careful review, we reverse the order granting the suppression motion, and we remand for further proceedings consistent with this decision.
The relevant facts and procedural history are as follows: On April 6, 2021, a criminal complaint was filed against Cunningham charging him with receiving stolen property, 18 Pa.C.S.A. § 3925(a), and firearms not to be carried without a license, 18 Pa.C.S.A. § 6106(a)(1). On October 12, 2021, Cunningham filed a counseled omnibus pre-trial suppression motion. Therein, Cunningham averred the police did not have reasonable suspicion to conduct a Terry2 stop and frisk. Relevantly, Cunningham specifically argued:
Cunningham's Omnibus Pre-Trial Suppression Motion, filed 10/12/21, at 4-5 (footnote added).
On October 27, 2021, the suppression court held a suppression hearing at which Minersville Borough Police Officer Michael Bucek was the sole testifying witness. Specifically, Officer Bucek testified he was on duty with his partner during the evening of April 5, 2021, and at approximately 10:30 p.m., he was driving slowly with the police vehicle's windows down. N.T., 10/27/21, at 4. As he traveled down the 200 block of North Street, which is in a residential area with vehicles parked on both sides of the road, he detected an odor of burnt marijuana coming from the area. Id. at 4-5. Officer Bucek scanned the area and "observed three hooded males on the left side of the sidewalk" in the middle of the block. Id. at 5. Cunningham was one of the males in the group. Id. Officer Bucek testified that, as he drove closer to the three males, "the odor of burnt marijuana grew, grew stronger." Id.
Officer Bucek testified he drove past the three men in the direction they were walking, and he parked the police vehicle near the intersection at the end of the block on the left side, which is the same side of the street on which the men were walking. Id. He testified that, as he and his partner exited the police vehicle, he observed the three men, including Cunningham, cross to the opposite side of the street as though trying to avoid the officers. Id. As the men continued walking down the right side of the street, Officer Bucek and his partner walked across the crosswalk at the intersection and met them at the bottom of the block. Id. at 6, 15.
Officer Bucek testified he said to the whole group, "Hey, man, give me a second," and, in response, "they all kind of started yelling at [him]." Id. at 6. He noted the three men were "aggressive" and shouted profanities, including "Fuck you, Officer," and "Get the fuck out of here." Id. at 6, 11. He testified he "told them to stop at that point," and he announced his suspicions that they were smoking marijuana. Id. at 6, 15. He specifically asked them, "Are you guys smoking?" Id. at 15.
Officer Bucek testified that after he asked the men to stop and articulated his suspicions about the burnt marijuana, Id. at 8. Officer Bucek testified he attempted to get identifications from the men. Id. at 6. In response, the men said, Id.
Officer Bucek noted that, because of the men's aggression and the fact they had encircled him and his partner, he was concerned for his safety and the safety of his partner, who had been on the force for less than a month at that point. Id. at 7-8. He testified he turned to his partner to ensure he had the radio, told him to "get [his] back," and instructed him to contact County if "something happens here[.]" Id. at 7.
Officer Bucek testified that, believing he and his partner were "in danger[,]" he decided to frisk the men for weapons. Id. at 8. He testified:
Officer Bucek testified Cunningham was standing the "farthest away from [him] and the other officer," so he approached him last to pat him down. Id. Officer Bucek indicated that "right before" he turned to pat-down Cunningham, "he kept moving away from [the officer]." Id. at 7. Officer Bucek indicated he told Cunningham to put his hands on a pole, and Cunningham complied; however, when the officer attempted to pat him down, Cunningham tried to evade him by "scooting around the pole...away from [the officer]." Id. Officer Bucek told him, "Hey, stop moving." Id. He testified that "[e]ventually, he stopped moving[,] [a]nd then [he] ended up patting him down." Id.
Officer Bucek testified he immediately felt a handgun in Cunningham's sweatshirt front pocket. Id. at 9. He clarified that, based on his training and experience, he could immediately identify the item as a weapon when he patted it. Id. Officer Bucek testified he seized the weapon, which was a .380 Ruger. Id. at 10.
On cross-examination, Officer Bucek clarified he was approximately ten feet from the three men when he first smelled the odor of burnt marijuana. Id. at 12. He neither observed any of the men smoking any substance nor observed any "wafting smoke." Id. During the time he smelled the odor of marijuana while he was driving, there were no cars behind him, no cars in front of him, and no cars that passed him. Id. at 13. Officer Bucek noted the odor of burnt marijuana grew stronger as he drove slowly past the three men. Id. at 13-14. Officer Bucek clarified he did not ask for the men's identifications or seek to pat them down for weapons until they began to circle around the two officers. Id. at 16.
On redirect examination, Officer Bucek testified that, after he seized the handgun, he also found a lighter and a large amount of cash totaling $4,820.00 on Cunningham's person. Id. at 19. He indicated Cunningham indicated after the pat down that he had not been smoking marijuana; however, his "two friends were smoking it and they pitched it out while [the police] were passing [them]." Id.
At the conclusion of all testimony, by order entered on December 8, 2021, the suppression court granted Cunningham's pre-trial suppression motion and specifically directed that "all evidence obtained as a result of the Terry frisk of the defendant is suppressed." Suppression Court Order, filed 12/8/21 (unnecessary capitalization omitted).
In its opinion in support of the order, the suppression court held "[t]he interaction between Officer Bucek and [Cunningham] began as a mere encounter with [the officer] asking [the men] to give him a second; however, when he ordered them to stop, it became an investigative detention for which the officer must possess reasonable suspicion of criminal activity." Suppression Court Opinion, filed 12/8/21, at 4. The suppression court also concluded that, under "[t]he totality of the circumstances...Officer Bucek had reasonable suspicion of criminal activity to justify an investigative detention." Id. at 6.
However, as it pertained to the frisk of Cunningham for weapons, the suppression court concluded:
Officer Bucek did not state any specific and articulable facts indicating Cunningham might be armed. Cunningham's hands were on the pole when he was frisked. There was no testimony that he had reached into his pockets or concealed them at any time during his interaction with the police. Bucek testified that he felt threatened by the men's aggression. He and his partner had weapons if they felt their use was necessary to control the situation, but they had no justification to frisk them.
The Commonwealth filed a notice of appeal on January 7, 2022, and all Pa.R.A.P. 1925 requirements have been met.
On appeal, the Commonwealth sets forth the following issue in its "Statement of...
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