Commonwealth v. Dennis

• Decision Date: 31 July 1981
• Citation: 289 Pa.Super. 305,433 A.2d 79
• Parties: COMMONWEALTH of Pennsylvania, v. Douglas Kent DENNIS, Appellant.
• Court: Pennsylvania Superior Court

433 A.2d 79

289 Pa.Super. 305

COMMONWEALTH of Pennsylvania, v. Douglas Kent DENNIS, Appellant.

Superior Court of Pennsylvania.

July 31, 1981

Submitted Nov. 14, 1980.

Donald R. Calaiaro, Pittsburgh, for appellant.

Kathryn L. Simpson, Asst. Dist. Atty., Pittsburgh, for Commonwealth appellee.

Before SPAETH, JOHNSON and POPOVICH, JJ.

POPOVICH Judge:

Appellant Douglas Kent Dennis, was arrested and charged with robbery ^[1] and possession of a prohibited offensive weapon. ^[2] A timely filed pre-trial motion to suppress evidence was heard and denied. Appellant's first trial ended in a mistrial; thereafter, a second trial was held and a jury found appellant guilty of possessing an offensive weapon and not guilty of robbery. Following denial of post-verdict motions, a sentence of five (5) years probation was imposed. Appellant appeals from said sentence on the basis that the evidence, allegedly obtained as a result of his illegal arrest, was impermissibly admitted into evidence. For the reasons stated herein, we disagree and affirm the judgment of sentence.

The circumstances giving rise to appellant's arrest are as follows: On November 30, 1978, Homestead Police Officers Kelly and Kinney received a radio call at approximately 4:00 A.M. to check out "a suspicious car in the 100 block East Plum Way" this section of the Borough was considered by police to be a "high-crime" area which "had quite a few assaults and strongarms." (N.T. 5/16/79, at 57) When the officers arrived at the site they observed a vehicle blocking access to and from the alley, an individual, later identified as Russell Brooks, leaning into the right front passenger side door and three individuals sitting in the vehicle, i. e., James Teter (the complainant), a Joseph Ellis and the appellant. The police drove within 15 feet of the vehicle and started walking toward it when Brooks alighted completely out of the vehicle and began shouting, "nothing is happening, nothing is going on." Id. at 55. Officer Kelly told him to "Hold it". Brooks became somewhat nervous, e. g., he started "jumping up and down" and "walking back and forth" saying, " 'There's nothing happening here. We just lost something. Everything is all right. You can leave.' " (N.T. 6/13/79, at 113) When Brooks failed to heed a second request to "Hold it", the officers drew their weapons and aimed them in the air; the officers then ordered the occupants out of the vehicle. James Teter ran from the vehicle into the police cruiser yelling, "They have got a gun." (N.T. 6/13/79, at 38) Hearing this, Officer Kelly radioed for assistance and within a short period of time two additional squad cars arrived. The police made arrests and conducted pat-downs. A .20 gauge No. 6 Remington shotgun shell and a piece of string was seized from appellant's person. ^[3] A search of the vehicle produced a .20 gauge sawed-off shotgun located in the right rear section, the exact spot where appellant sat. ^[4]

The appellant contends on appeal that his arrest was unlawful. ^[5] Thus, given the illegality of the arrest, appellant asserts that the evidence seized as a result thereof was tainted and inadmissible at trial, rendering his conviction unwarranted. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We do not agree.

Before discussing the validity of appellant's arrest we will first address the propriety of the "investigatory stop," which appellant assails on the basis that, inter alia, the prosecution failed to prove: "A. That (the police) observed unusual conduct which led (them) to reasonably conclude in light of (their) experience that criminal activity was afoot and that the person with whom (they were) dealing with may (have) be(en) armed and presently dangerous." ^[6] (Emphasis in original) (Appellant's Brief, at 11)

Appellant's assertion is meritless. "Such a contention is undoubtedly true in a situation where the police stop a person and frisk him, because the frisk itself is a search within the context of the Fourth Amendment. See Terry v. Ohio, (392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). However, in a situation such as the one presented in the case at bar, there is no necessity that the police suspect that the person is armed and dangerous before a valid investigatory stop limited solely to questioning can be performed." (Emphasis added) (Citations omitted) Commonwealth v. Galadyna, 248 Pa.Super. 226, 232, 375 A.2d 69, 72 (1977). All that need be shown is "a reasonable suspicion that criminal activity is afoot." Id. Here, such "reasonable suspicion" existed as a result of: 1) the unsolicited statements from Brooks advising the police that "nothing is happening here, you can go"; 2) Brooks' erratic behavior ("jumping up and down, moving back and forth"); 3) the fact that the vehicle was parked in the middle of the alley; 4) the "high-crime" area in which this encounter took place; 5) the lateness of the hour 4:00 A.M.; and 6) the absence of any movement or statement from anyone sitting in the vehicle during the exchange between Brooks and the police. Viewing anyone of the preceding facts in isolation, it cannot be gainsaid that there would be a lack of a reasonable suspicion to believe that criminal activity was afoot, see Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973); Commonwealth v. Williams, --- Pa.Super. ---, 429 A.2d 698, (1981); Commonwealth v. Hunt, --- Pa.Super. ---, 421 A.2d 684 (1980); Commonwealth v. Purnell, 241 Pa.Super. 230, 360 A.2d 737 (1976); Commonwealth v. Cruse, 236 Pa.Super. 85, 344 A.2d 532 (1975); however, taken in concert they legitimize the action of the police. See e. g., United States v. Cortez, --- U.S. ----, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Commonwealth v. Lybrand, 272 Pa.Super. 475, 481, 416 A.2d 555, 558 (1980); Commonwealth v. Stratton, 231 Pa.Super. 91, 94, 331 A.2d 741, 742 (1974); Commonwealth v. Galadyna, supra; see generally Commonwealth v. Gillis, 217 Pa.Super. 159, 163, 269 A.2d 135, 137 (1970) (Hoffman, J., concurring opinion); Commonwealth v. Meadows, 222 Pa.Super. 202, 206, 293 A.2d 365, 367 (1972); Commonwealth v. Massie, 221 Pa.Super. 453, 456, 292 A.2d 508, 510 (1972); Commonwealth v. Howell, 213 Pa.Super. 33, 40-41, 245 A.2d 680, 683-84 (1968).

We consider the actions of the police here consistent with the dictates of the Fourth Amendment, since "(t)he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary Terry(, supra) recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be reasonable in light of facts known to the officer at the time." (Citations omitted) Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972); Commonwealth v. LeSeuer, 252 Pa.Super. 498, 382 A.2d 127 (1977).

Given the fact that " '(s)treet encounters between citizens and police officers are incredibly rich in diversity,' " Commonwealth v. Wascom, 236 Pa.Super. 157, 160, 344 A.2d 630, 632 (1975), one begins to understand why the judiciary has been unable to draw a bright line between police conduct which will be condoned and that which will be deprecated. Nonetheless, there has evolved in this Commonwealth a very strong public policy in favor of permitting police to respond to reports of crime, to investigate, and, hopefully, prevent any injury. Commonwealth v. Daniels, 280 Pa.Super. 278, 421 A.2d 721 (1980). The fact that in the instant case the anonymous call to the police station did not report the commission of any crime is no reason not to apply the same public policy considerations in upholding the actions of the police. Cf. Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2631, 61 L.Ed.2d 357 (1979) (in considering the constitutionality of officers detaining an accused for the purpose of requiring him to identify himself, a court must weigh the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty).

We conclude therefore that, based on all the facts and reasonable inferences to be derived therefrom, when the police directed Brooks to "hold it", it was a proper course of action taken to maintain the status quo momentarily so that the identification and purpose of those present could be ascertained and verified. ^[7] See Commonwealth v. Lybrand, supra; Commonwealth v. Galadyna, supra; Commonwealth v. King, 247 Pa.Super. 443, 447, 372 A.2d 908, 910 (1977) ("The investigatory stop is a useful and necessary police tool. It fills the gap between circumstances where the officer obviously has no right to invade personal privacy. It credits police officers with an instinct developed through years of experience and observation."); see also Commonwealth v. Mackie, 456 Pa. 372, 320 A.2d 842 (1974); Commonwealth v. Hicks, 434 Pa. 153, 158, 160, 253 A.2d 276, 279 (1969); Commonwealth v. Murray, 226 Pa.Super. 101, 313 A.2d 293 (1973). However, before this "intermediate response" could be implemented, James Teter informed the police that the three individuals he was with had a gun. At this point, "the facts and circumstances within the arresting officer's knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that (a) citizen had committed or was committing an offense." Commonwealth v. Mackie, supra, 456 Pa. at 375, 320 A.2d at 843; see also Beck v. Ohio, 379 U.S. 89, 85 S.Ct....