J-A12008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellant

                    v.

SHAUN JACKSON,

                         Appellee                     No. 1678 EDA 2015


                Appeal from the Order Entered May 19, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0012272-2014


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

DISSENTING MEMORANDUM BY STEVENS, P.J.E.:FILED SEPTEMBER 16, 2016


      I respectfully disagree with the Majority’s conclusion the suppression

court did not err in granting Appellee’s suppression motion.         Because I

believe the Commonwealth has met its burden of persuasion that the

suppression court’s decision constituted a legal error, I dissent.

      The record reveals that Officers Smith and Dill were acting upon

information received directly from the Victim that a bearded, African-

American male who was approximately twenty-eight years old and wearing a

black hoodie and black pants had just broken into a car at 1127 East Tioga

Street and was heading eastbound.          Within five minutes, the officers

encountered Appellee who matched the description the Victim had provided

to police walking alone in the 3400 block of Kensington Avenue which



*Former Justice specially assigned to the Superior Court.
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location was within a block of 1127 East Tioga Street and consistent with the

direction of travel in which the Victim had indicated the perpetrator was

proceeding.    Officer Smith testified that when he made contact with

Appellee, Officer Smith “just casually said, “Hey, can I, you know, speak to

you a minute?” And [Appellee] applied [sic] and stopped.” N.T., 5/8/15, at

14. Officer Smith explained to Appellee why he was being detained, asked

him for identification, and directly questioned whether Appellee “had

anything on his person that [Officer Smith] needed to be concerned about.”

      At that time, Appellee indicated he was armed and informed Officers

Smith and Dill a firearm was in his right, rear pants pocket. N.T., 5/8/15, at

14-15. Shortly thereafter, the Victim indicated Appellee was not the person

involved in the vehicle theft, and Appellee was placed under arrest for

firearms violations. No other individuals present in the vicinity matched the

flash description broadcast over police radio. Id. at 19.

      Thus, the officers possessed at least the minimum level of objective

justification necessary to create the reasonable suspicion to justify a stop of

Appellee as part of their investigation of the theft of the Victim’s vehicle.   It

is axiomatic that:

      [a]n officer who lacks the level of information required for
      probable cause to arrest need not “simply shrug his shoulders
      and allow a crime to occur or a criminal to escape.” Adams v.
      Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 32 L. Ed. 2d 612
      (1972). Where an officer reasonably suspects that criminal
      activity is afoot, the officer may temporarily freeze the status
      quo by preventing the suspect from leaving the scene in order to
      ascertain his identity and gather additional information. Terry v.

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      Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
      The officer may also conduct a quick frisk for weapons if he
      reasonably fears that the person with whom he is dealing may
      be armed and dangerous. Id. The question of whether
      reasonable suspicion existed at the time of an investigatory
      detention must be answered by examining the totality of the
      circumstances to determine whether there was a particularized
      and objective basis for suspecting the individual stopped of
      criminal activity. United States v. Cortez, 449 U.S. 411, 417,
      101 S. Ct. 690, 66 L. Ed. 2d 621 (1981). There is no ready test for
      determining reasonableness other than by balancing the need to
      search or seize against the invasion to which the search or
      seizure entails. Terry, 392 U.S. at 21, 88 S. Ct. 1868. Police are
      generally justified in stopping an individual when relying on
      information transmitted by a valid police bulletin. United States
      v. Hensley, 469 U.S. 221, 232, 105 S. Ct. 675, 83 L. Ed. 2d 604
      (1985).

In re D.M., 556 Pa. 160, 164, 727 A.2d 556, 557–58 (1999).

      The Majority agrees with the suppression court’s acknowledgement

that Appellee’s race, clothing and direction of travel matched the general

description of the thief that the Victim had provided police and which was

transmitted subsequently via police radio.       Notwithstanding, the Majority

stresses   that   the   Victim’s   description   lacked   “particularly   unique”

characteristics, such as skin tone, physical markings, height or weight, and

that Officer Smith never testified as to whether Appellee had a beard, as the

Victim had indicated. However, the absence of unique characteristics in the

flash description is of no moment, for it is possible that Appellee neither had

any or, if he did, that his dark clothing concealed them.        Requiring such

detail would severely hamper law enforcement in the performance of their

duties in cases such as this. In addition, officers initially observed Appellee


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from behind wearing a black hooded jacket, black sweatpants and black

sneakers and upon this basis decided to make contact with him.

       In Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068 (1997)

officers stopped the appellant based upon an anonymous caller’s tip, and the

Majority relies upon that case for its discussion of the relationship between

an accurate description of a suspect and evidence of criminal conduct in the

within matter.       Here, it is the Victim who made the report, not an

anonymous source.1 Our Supreme Court has stressed that a report from the

crime victim imparts a “a high degree of reliability to the report.      In re

D.M., 556 Pa. at 165, 727 A.2d at 558. In addition, this Court has found

that knowing the identity of the informant sufficiently heightens the

reliability of the information, for where the informant’s identity is known, he

or she risks prosecution for giving false information to police.           See

Commonwealth v. Cruz, 21 A.3d 1247, 1251 (Pa.Super. 2011) citing

Commonwealth v. Altadonna, 817 A.2d 1145, 1152 (Pa.Super. 2003);

Commonwealth v. Hayward, 756 A.2d 23, 34 (Pa.Super. 2000).

       Moreover, the Majority fails to recognize the time constraints the

police officers were under.         While the Majority recognizes there was an

assertion there was an attempted break-in to the car, by the time the police

____________________________________________


1
  The suppression court compounded its error by its confusion over whether
the source was anonymous. The record is clear the source was never
anonymous.



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officers would have tried to verify further the crime, the perpetrator could

have been long gone.

      Clearly, the record shows there was an assertion of a crime, a physical

description reasonably identifying Appellant, and a stop close in time and

place to the crime location.       Therefore, the police officers had reasonable

suspicion to stop Appellant.

      Moreover,       Appellee’s   compliance   with   the   officers’   request   for

identification and the lack of evasive behavior on his part are not

determinative of whether police possessed reasonable suspicion briefly to

detain Appellee at the outset.          Indeed, this Court has found that the

detention and limited investigation of a suspect is not rendered illegal even

though     his   activity    is    consistent   with   innocent    behavior.       See

Commonwealth v. White, 516 A.2d 1211 (Pa.Super. 1986). Rather, this

Court views the circumstances through the eyes of a trained officer, not an

ordinary   citizen.    Commonwealth        v.   Kemp,    961 A.2d 1247,   1255

(Pa.Super. 2008) (en banc).

      Appellee’s behavior must be considered along with the totality of the

circumstances, including the fact that he is a black male who was alone

wearing a black hooded jacket and black sweatpants and traveling

eastbound within a block of the reported car theft when Officers Smith and

Dill spotted him moments later. Relying upon the radio dispatch based upon

information from the victim, the officers did not simply stop Appellee on a


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mere hunch; the fact that they had not verified prior thereto whether a

break-in had occurred does not detract from their reasonable suspicion that

criminal activity may be afoot.

      As I would find the suppression court improperly applied the law to the

facts herein and its resultant legal conclusions were erroneous, I would

reverse and remand for trial.




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