In re MD
Citation | 781 A.2d 192 |
Parties | In the Interest of: M.D., (Juvenile). Appeal of: M.D., (Juvenile). |
Decision Date | 30 July 2001 |
Court | Superior Court of Pennsylvania |
John Packel, Public Defender, Philadelphia, for appellant.
Catherine L. Marshall, Asst. District Atty., Philadelphia, for Com., appellee.
Before: ORIE MELVIN, LALLY-GREEN and POPOVICH, JJ.
¶ 1 This is an appeal from the adjudication of delinquency and commitment entered in the Court of Common Pleas of Philadelphia County on August 9, 2000. Appellant's adjudication of delinquency was based upon his conviction for possession of a controlled substance. Upon review, we reverse and remand for a new trial.
¶ 2 Herein, appellant raises two issues for our consideration. First, appellant questions: "Where there was no evidence introduced concerning the appellant's description, did the lower court err when it denied a motion to suppress physical evidence because, inter alia, the appellant `matched' a description broadcast over police radio?" Appellant's Brief, p. 3. Second, appellant asks: "Even if the appellant had `matched' in every detail a description provided anonymously and broadcast over police radio, was the lower court wrong when it ruled that the description, coupled with appellant's flight, provided the police with a `reasonable suspicion' to chase the appellant, and was the court also wrong when it refused to suppress contraband discarded during the chase?" Appellant's Brief, p. 3.
Commonwealth v. Korenkiewicz, 743 A.2d 958, 962 (Pa.Super.1999) (en banc), appeal denied, 563 Pa. 659, 759 A.2d 383 (Pa.2000) (quoting Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492, 504-05 (Pa.1997)); Commonwealth v. Hayward, 756 A.2d 23, 26 (Pa.Super.2000).
¶ 4 The trial court set forth the facts adduced at the suppression hearing as follows:
The facts established, Philadelphia Police Officer Joseph Rapone was on patrol in the area of 6th and Butler Streets at approximately 6:35 p.m. on April 6, 2000. The officer was patrolling the area looking for a robbery suspect. He observed appellant, who matched the description of the suspect.3 The officer asked appellant to "come here." The officer testified he wanted to ask appellant his name. At that point, appellant ran. The officer briefly followed him in his police car. Appellant reversed his direction and continued running. The officer got out of his car and chased appellant on foot. When the officer came just a few feet behind appellant, he observed appellant spitting objects out of his mouth. Appellant was apprehended and the seven packets of crack cocaine which appellant spit from his mouth were recovered.
3 Upon review of the Notes of Testimony, the Court notes the officer described the clothing of the suspect for whom he was searching. The notes fail to reflect how appellant was dressed. However, in argument on the Motion to Suppress, both appellant's attorney and the District Attorney acknowledged appellant fit the description of the robber. The District Attorney stated. "Your Honor, the Commonwealth would contend the officer responded to a radio call for a robbery." N.T. 8/9/00 at 12. Appellant's attorney stated, "[The officer] had a description, I believe my client partially fit the description." N.T. 8/9/00 at 8.
¶ 5 Initially, we agree with appellant that the record does not support the trial court's conclusion that appellant "matched" the description of the robbery suspect. As admitted by the trial court, the Commonwealth did not offer any evidence of appellant's appearance at the time of the seizure. Officer Joseph Rapone testified that he was responding to a radio call to search for a robbery suspect wearing a "gray hoody and blue jeans." He never described appellant's clothing. While the Commonwealth argued that appellant "matched" the description of the robbery suspect, defense counsel merely stated, "I believe my client partially fit the description." Since the record does not support the trial court's conclusion that appellant matched the description of the robbery suspect, we are not bound by the court's finding of fact relative to appellant's appearance. Rather, the record permits only the conclusion that appellant "partially fit the description" of the robbery suspect as admitted by appellant's counsel.1
¶ 6 Appellant argues that Officer Rapone improperly chased him and that the pursuit constituted an illegal seizure. Appellant then argues that the crack cocaine which he discarded during the chase should have been suppressed as the product of an illegal seizure.
¶ 7 In Commonwealth v. Lynch, 773 A.2d 1240, 2001 PA Super 85 (Pa.Super.2001), we restated the law applicable to this case:
with Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769, 776 (Pa.1996). Under Pennsylvania law, any items abandoned by an individual under pursuit are considered fruits of a seizure. Matos, 672 A.2d at 770. 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. Id. at 771. 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." Commonwealth v. Wimbush, 561 Pa. 368, 750 A.2d 807, 810 n. 5 (Pa.2000).
In deciding whether reasonable suspicion exists for an investigatory stop, our analysis is the same under both Article I, § 8 and the Fourth Amendment. Commonwealth v. McClease, 750 A.2d 320, 324 (Pa.Super.2000). See also Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571, 573 (Pa.1997)
(. )
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.
Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153, 1156 (Pa.2000) (quoting Terry, 392 U.S. at 21-22 ) (citations omitted).
( ); Cook, 735 A.2d at 677 ( ); Commonwealth v. Cottman, 764 A.2d 595 (Pa.Super.2000) ( ); Pizarro, 723 A.2d at 680 ( ).
Lynch, 773 A.2d 1240, 2001 PA Super 85, ¶¶ 7-11; see also Albert, 767 A.2d at 552
.
¶ 8 As our Supreme Court stated in Cook, 735 A.2d at 677:
Case law has established that certain facts, taken alone, do not establish reasonable suspicion. Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769 (Pa. 1996)(flight alone does not constitute reasonable suspicion); Commonwealth v. DeWitt, 530 Pa....
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