Commonwealth v. Scarborough

• Decision Date: 07 April 2014
• Citation: 89 A.3d 679,2014 PA Super 65
• Parties: COMMONWEALTH of Pennsylvania v. Basil SCARBOROUGH, Appellant.
• Court: Pennsylvania Superior Court

89 A.3d 679

2014 PA Super 65

COMMONWEALTH of Pennsylvania

v.Basil SCARBOROUGH, Appellant.

Superior Court of Pennsylvania.

Argued Nov. 12, 2013.

Filed April 7, 2014.

Peter Rosalsky, Public Defender, Philadelphia, for appellant.

Suzan E. Willcox, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., WECHT and MUSMANNO, JJ.

OPINION BY FORD ELLIOTT, P.J.E.:

Appellant appeals the judgment of sentence entered June 4, 2012. Finding no error, we affirm.

The trial court accurately summarized the facts underlying the issues on appeal in its opinion:

Philadelphia Police Officer Jayson Troccoli testified that on [ ] December 6th, 2011, around 10:13 a.m. he was on bicycle patrol with Officer Anthony Caffie in the area of 1800 South 22nd Street in Philadelphia. The area is known for high crime, shootings, and narcotics arrests. The officers observed the defendant heading southbound, toward them, on the 1800 block of 22nd Street. The defendant was riding a bicycle and talking on a cellular phone. The officers stopped the defendant in order to issue him a citation for using the phone while operating a vehicle, in violation of a City of Philadelphia ordinance, Phila. Code § 12–1132(3). N.T. April 19, 2012, pp. 5–8.

When asked, the defendant hung up his phone and placed it in his left jacket pocket. The officers also asked for his identification. The defendant began to behave nervously, and put his hand in his right jacket pocket but did not withdraw it. The officers reiterated their request for identification, and asked the defendant to remove his hand from his right pocket. The defendant looked around and appeared extremely nervous. Upon being asked a second time, he removed his hand from his right pocket. Id. at pp. 9–11.

The officers patted down the defendant's pockets for their safety, and Officer Caffie told Officer Troccoli that he felt a hard object. The defendant spontaneously reported that “it's only a cap gun.” Officer Troccoli handcuffed the defendant's hands behind his back and removed a small silver revolver from the jacket pocket. Id. The weapon was a .22 revolver with four rounds loaded. According to Officer Troccoli, he felt at risk because of the defendant's apparent nervousness, his looking around, and his refusal upon being asked the first time to remove his hand from his right pocket, combined with the established dangerousness of the area, which had been host to several shootings. Id. at 22.

Trial court opinion, 8/20/12 at 2–3.

On February 13, 2012, appellant filed a pre-trial motion to suppress the evidence against him. On April 19, 2012, the court held an evidentiary hearing and then denied the motion. The case immediately proceeded to a bench trial where appellant was found guilty of firearms not to be carried without a license and carrying firearms on public streets or public property in Philadelphia, 18 Pa.C.S.A. §§ 6106 and 6108, respectively. On June 4, 2012, appellant was sentenced to five years' probation at each count, to be served concurrently. This timely appeal followed.

Appellant raises three issues on appeal:

1. Was not appellant subject to an unlawful Terry “frisk” because police lacked reasonable suspicion that appellant was armed and presently dangerous?

2. Was not the Trial Court's felony gradation of Section 6106 of the Pennsylvania Uniform Firearms Act of 1995 violative of federal/state due process and equal protection constitutional guarantees in that this offense was graded as a third degree felony because it occurred in Philadelphia County, but if it had occurred in any other county in Pennsylvania it would have been graded only as a first degree misdemeanor?

3. Should not appellant's Supplemental Statement Of Errors Complained Of On Appeal be deemed to have been timely filed?Appellant's brief at 2. We will resolve these issues in the order presented.

In addressing a challenge to a trial court's denial of a suppression motion, we are limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Since the Commonwealth prevailed in the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as it remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Weaver, 76 A.3d 562, 565 (Pa.Super.2013), appeal granted,––– Pa. ––––, 86 A.3d 862 (2014), quoting Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa.Super.2013), appeal denied,––– Pa. ––––, 79 A.3d 1096 (2013).

There is no dispute between the parties that the frisk at issue constituted an investigative detention in the nature of a protective weapons search which is governed by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and requires that police have reasonable suspicion either that criminal activity was afoot or that appellant was armed and dangerous to them:

It is well-established that a police officer may conduct a brief investigatory stop of an individual if the officer observes unusual conduct which leads him to reasonably conclude that criminal activity may be afoot. Moreover, if the officer has a reasonable suspicion, based on specific and articulable facts, that the detained individual may be armed and dangerous, the officer may then conduct a frisk of the individual's outer garments for weapons. Since the sole justification for a Terry search is the protection of the officer or others nearby, such a protective search must be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby. Thus, the purpose of this limited search is not to discover evidence, but to allow the officer to pursue his investigation without fear of violence.

Commonwealth v. Clemens, 66 A.3d 373, 381 (Pa.Super.2013), quoting Commonwealth v. Stevenson, 560 Pa. 345, 744 A.2d 1261, 1264–1265 (2000).

Reasonable suspicion is determined by the totality of the circumstances. Id. As such, each case is fact-specific, but a number of common circumstances have been identified; and where a sufficient number of them coalesce, reasonable suspicion will be found. Recently, in Commonwealth v. Buchert, 68 A.3d 911 (Pa.Super.2013), appeal denied,––– Pa. ––––, 83 A.3d 413 (2014), this court found that the police acted with reasonable suspicion during a night time traffic stop. Police initially stopped the vehicle for a broken tail light. Buchert, 68 A.3d at 912–913. As police approached the vehicle, the defendant could be seen making furtive movements under the car seat, and he appeared very nervous after exiting the vehicle. Id. The Buchert court found that the frisk of the defendant and a search of the area of the car where he was sitting was valid. Thus, the Buchert court found reasonable suspicion based upon 1) night time stop; 2) furtive movements; and 3) extreme nervousness.

A similar set of circumstances obtains instantly. First, we note that the initial stop itself was absolutely justified as in Buchert as the police witnessed appellant committing a violation of the law. Here, appellant was stopped in a high crime area. This factor enhances the danger that police may encounter an armed subject in a fashion similar to, but greater than, a night time stop. Appellant reached into his right hand jacket pocket and kept it there even after police initially directed him to remove it. This is not only tantamount to the furtive movements described in Buchert, but is actually more alarming because it suggests that the suspect may have a weapon on his person rather than merely hidden in the vehicle. Finally, as in Buchert, appellant appeared extremely nervous.

We also note the fact situation recited in Commonwealth v. Hall, 713 A.2d 650 (Pa.Super.1998), reversed on other grounds,565 Pa. 92, 771 A.2d 1232 (2001):

Two Reading police officers, patrolling in their cruiser, saw defendant and a companion conversing in an alley near a café. The police parked their vehicle, the conversants broke up, and appellant approached the police car while getting his I.D. out of his wallet and asked “Is everything all right, officer?” After a brief exchange, the officer removed from his vehicle and noticed Hall had his hands in his pocket. He asked if he was armed and Hall said he was not. Hall was asked to take his hands out of his pocket, but only removed his left hand. As the officer came to him, Hall pivoted with his hand in his pocket. After being asked again to remove his hand, he did, but became confrontational and stated that he would not be searched. The officer replied that he would not search him, but only pat him down for weapons.

Hall, 713 A.2d at 652–653.

The Hall court found that “when Hall approached with his hand thrust in his pocket and refused to remove it, the encounter escalated into a situation where the totality of circumstances involved a reasonable suspicion and justified a detention to stop and frisk.” Hall, 713 A.2d at 653. Thus, in Hall, the single factor of the defendant keeping his hand in his pocket after being asked to remove it escalated the encounter into one of reasonable suspicion. Certainly, not only is that same factor present here, but as we have discussed, there are additional factors. See also Commonwealth v. Zhahir, 561 Pa. 545, 555, 751 A.2d 1153, 1158 (2000). We find that under these circumstances, the police had the right to frisk appellant.¹

In his second argument, appellant argues that the interplay of Sections 6106 and 6108 of the Uniform Firearms Act work to violate his constitutional rights of due process and equal protection. We begin our analysis by examining claims by the Commonwealth that appellant has waived this issue and that appellant's issue...