Commonwealth v. Taggart

• Decision Date: 17 June 2010
• Citation: 997 A.2d 1189
• Parties: COMMONWEALTH of Pennsylvania, Appelleev.Richard TAGGART, Appellant.
• Court: Pennsylvania Superior Court

997 A.2d 1189

COMMONWEALTH of Pennsylvania, Appelleev.Richard TAGGART, Appellant.

Superior Court of Pennsylvania.

Submitted Sept. 21, 2009.

Filed June 17, 2010.

COPYRIGHT MATERIAL OMITTED

Karl Baker, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J., PANELLA and DONOHUE, JJ.

OPINION BY DONOHUE, J.:

¶ 1 Appellant, Richard Taggart (“Taggart”) appeals from the trial court's January 11, 2008 judgment of sentence. The trial court imposed an aggregate six to 12 years of incarceration followed by 5 years of probation for persons not to carry firearms,¹ carrying a firearm without a license, ² carrying a firearm on public streets in Philadelphia,³ and carrying a firearm with an obliterated serial number.⁴ We affirm in part, vacate in part, and remand.

¶ 2 The trial court's Pa.R.A.P. 1925(a) opinion includes the following recitation of facts:

On October 26, 2005, police received a radio call with “flash information” describing robbery suspects. Responding officers went to the location and saw the defendant and others who matched the flash information. When the officers attempted to investigate, this defendant fled. An officer pursued on foot and during the pursuit saw the defendant grabbing at his waistband. The defendant fell to the ground and the officer saw a gun fall out from his person. The officer told the defendant not to move, but the defendant picked up the gun and continued running. The defendant ran into a vacant lot, gun in hand, and fell again. Then the defendant tried to throw the gun on a roof, but it hit a wall. Police arrested the defendant and recovered the firearm, which was a Smith & Wesson .40 caliber gun with an obliterated serial number.

Trial Court Opinion, 1/12/09, at 2.

¶ 3 A jury found Taggart guilty of the aforementioned offenses after a two day trial ending on January 11, 2008. The trial court imposed sentence immediately following trial. Taggart did not file post-sentence motions and filed a timely notice of appeal on February 11, 2008.⁵ Taggart raises four issues for our review:

A. Did not the lower court err in denying the defendant's motion to suppress physical evidence in that the gun recovered by the police was a product of forced abandonment where the gun fell from the defendant's person after the police initiated a stop of the defendant in the absence of either reasonable suspicion or probable cause and thereby unlawfully provoked the defendant's flight?

B. Did not the lower court err in permitting the police officers to testify at trial as to the contents of the radio call they received since this constituted inadmissible hearsay whose prejudicial impact outweighed its probative value?

C. Was not the evidence insufficient to prove beyond a reasonable doubt the crime enumerated under [18 Pa.C.S.A. § 6117] since insufficient evidence was admitted to prove that it was the defendant who had obliterated the serial number of the purported firearm, notwithstanding the prima facie presumption that derived from possession of the weapon pursuant to § 6117(b); furthermore, should not the aforementioned presumption existing under the version of § 6117 extant at the time of the defendant's sentencing have no effect upon the determination of the sufficiency of the evidence since that presumption was removed from the current version of § 6117 and the defendant should therefore enjoy the ameliorative effect of the deletion of that presumption from the statute?

D. Did not the lower court err by imposing a separate sentence for the offense enumerated under [18 Pa.C.S.A. § 6106] since that offense should have merged for purposes of the sentencing act with the offense enumerated under § 6105?

Taggart's Brief at 4.

¶ 4 Before we discuss the merits of Taggart's constitutional law claim, we address the Commonwealth's argument that he has waived any claim that Article 1, § 8 of the Pennsylvania Constitution provides broader protection than the Fourth Amendment of the United States Constitution. We observe that well-settled Pennsylvania precedent establishes that a police officer's pursuit of a fleeing suspect constitutes a seizure. Commonwealth v. Cook, 558 Pa. 50, 55, 735 A.2d 673, 675 (1999); Commonwealth v. Matos, 543 Pa. 449, 461-62, 672 A.2d 769, 775-76 (1996). In this regard, Article 1, § 8 of the Pennsylvania Constitution affords broader protection than the Fourth Amendment. See, e.g., California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (holding that an attempted seizure by a police officer does not trigger the protection of the Fourth Amendment).

¶ 5 The Commonwealth argues, however, that Taggart has waived this argument because his brief does not include an analysis, pursuant to Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), to establish that the Pennsylvania Constitution provides broader protection than the federal constitution in this case. We disagree. Our Supreme Court in Matos concluded, after conducting an Edmunds analysis, that pursuit by a police officer of a fleeing suspect constitutes a seizure. Because Matos established a point of law that is now well-settled and controlling, it would serve no purpose to require Taggart to copy and paste the Matos Court's Edmunds analysis into his brief. Moreover, Taggart specifically relies on Matos in his brief in support of his argument that pursuit of a suspect constitutes a seizure in Pennsylvania. Taggart's Brief at 24-25.

¶ 6 Thus, this is not a situation, as the Commonwealth contends, in which an appellant “offers neither caselaw nor reason to hold that [the Pennsylvania Constitution] offers protection different from the federal constitution.” Commonwealth v. Laney, 729 A.2d 598, 600, n. 1 (Pa.Super.1999) appeal denied, 561 Pa. 690, 751 A.2d 187 (2000). Taggart has not waived his state constitutional law argument. As a result, the Commonwealth's argument pursuant to federal law that no seizure occurs until the suspect submits to police authority is not a basis upon which we can affirm the trial court's order denying the motion to suppress. See Commonwealth's Brief at 7-10.

¶ 7 For his first argument on appeal, Taggart argues that the trial court erred in denying his motion to suppress the gun that Taggart discarded while the police were chasing him on foot. Taggart argues that his pursuit by a police officer constituted a seizure and was not supported by reasonable suspicion. We review the trial court's decision according to the following standard:

Our standard of review of a denial of suppression is whether the record supports the trial court's factual findings and whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

Commonwealth v. Page, 965 A.2d 1212, 1217 (Pa.Super.2009).

¶ 8 This Court has addressed the right to be free from unreasonable search and seizure, pursuant to the Fourth Amendment of the United States Constitution and Article 1, § 8 of the Pennsylvania Constitution, as follows:

Article I, § 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution afford protections against unreasonable searches and seizures. Among the protections is the requirement that an officer have reasonable suspicion before an investigatory stop.

Our supreme court has interpreted Article I, § 8 protection more broadly than the Fourth Amendment and has found that a seizure occurs when an officer gives chase. Under Pennsylvania law, any items abandoned by an individual under pursuit are considered fruits of a seizure. Those items may only be received in evidence when an officer, before giving chase, has at least the reasonable suspicion necessary for an investigatory stop. Stated another way, when one is unconstitutionally seized by the police, i.e. without reasonable suspicion or probable cause, any subsequent flight with the police in pursuit continues the seizure and any contraband discarded during the pursuit is considered a product of coercion and is not admissible against the individual.

In deciding whether reasonable suspicion exists for an investigatory stop, our analysis is the same under both Article I, § 8 and the Fourth Amendment. The fundamental inquiry is an objective one, namely, whether the facts available to the officer at the moment of the [intrusion] warrant a man of reasonable caution in the belief that the action taken was appropriate. This assessment, like that applicable to the determination of probable cause, requires an evaluation of the totality of the circumstances, with a lesser showing needed to demonstrate reasonable suspicion in terms of both quantity or content and reliability.

In re M.D., 781 A.2d 192, 197 (Pa.Super.2001) (internal citations and quotation marks omitted). Flight by the suspect can be considered suspicious activity, but flight alone does not give rise to reasonable suspicion. Id. ¶ 9 In In re D.M., 566 Pa. 445, 451, 781 A.2d 1161, 1164 (2001) (“ D.M. II ”),⁶ the defendant matched the description of a black male with a white t-shirt, blue jeans, and white sneakers. Police, who were only a block away when they received the call, found the defendant at the intersection where the radio call indicated he would be. D.M. II, 566 Pa. at 447, 781 A.2d at 1162. The defendant ran away as police approached. Id. Our Supreme Court concluded that the defendant's “unprovoked flight in a high crime area” was sufficient to create reasonable suspicion for police to pursue him and stop him. Id. at 450-52, 781 A.2d at 1164-65.

¶ 10 Likewise, in ...