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HomeMy WebLinkAbout98-1837 criminalCOMMONWEALTH Ve JAMES F. MAYS, JR. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-1837 CRIMINAL TERM OPINION PURSUANT TO APPELLATE RULE 1925 The Defendant has filed a timely appeal from our sentencing order of March 2, 1999. On April 20, 1999, the Defendant filed a Concise Statement of Matters Complained of on Appeal pursuant to Pa. Rule of Appellate Procedure 1925(b). The only issue he intends to raise on appeal is the propriety of our refusal to grant his Omnibus Pretrial Motion in the Nature of a Motion to Suppress Evidence. FACTUAL STATEMENT A hearing on Defendant's suppression motion was held before this Court on January 20, 1999. At the outset of the hearing both parties agreed that the focus of our inquiry should be limited to whether or not the stop of Defendant's veh~cle was appropriate.1 In other words, if the investigatory stop was justified everything that followed was appropriate and the motion should be denied. On the other hand, if the officer did not have sufficient grounds to justify the initial stop then all evidence obtained thereafter should be suppressed. Pursuant to Pa. Rule of Criminal Procedure 323(i) we made ~Suppression Hearing transcript p.3. NO. 98-1837 CRIMINAL TERM the following findings of fact at the conclusion of the hearing:2 FINDINGS OF FACT 1. At 1:20 a.m. on August 20, 1998, Officer Tappan of the Upper Allen Township Police Department noticed a vehicle exiting from the parking lot of an auto repair business that was closed. 2. The officer was aware that the business had closed at 6:00 p.m. 3. The officer was aware of several recent complaints of illegal dumping having occurred at that business. However, he had received no such complaint on the evening in question. 4. The officer was in a marked patrol vehicle. 5. The officer made a left hand turn into the driveway of the business. In doing so he passed directly in front of the Defendant · s vehicle. 6. The officer pulled up next to the Defendant's vehicle so that his driver's window was right next tO' the Defendant' s driver' s window. 7. The officer intended to merely ask the Defendant who he was and what he was doing. 8. The Defendant refused to make eye contact with the officer and instead pulled out of the driveway. 2The Findings of Fact were attached to our order of January 20, 1999. NO. 98-1837 CRIMINAL TERM 9. At that point the officer instigated an investigatory stop. DISCUSSION The Pennsylvania Supreme Court has set forth three (3) categories of interaction between citizens and police, each of which must be supported by different levels of suspicion. Com. v. Ellis, 541 Pa. 285, 662 A.2d 1043 (1995). The first is a mere encounter or request for information which need not be supported by any level of suspicion. The second category of interaction is an investigative stop or detention, which must be supported by reasonable suspicion that criminal activity is afoot. The third category of interaction is an arrest or custodial detention which must be supported by probable cause to believe that the suspect is engaged in criminal activity. .See Ellis, supra 662 A.2d at 1047. In this case we were confronted with all three (3) levels of interaction. The sole issue before us was whether th'~ officer had the requisite level of suspicion necessary to justify the escalation of the encounter in the driveway of the repair business to the investigative stop that followed. Based upon the facts set forth above, we were satisfied that he did. Our Appellate Courts have defined reasonable suspicion to be something less than probable cause but more than a hunch. See , ..Com. v. Kearne¥, 411 Pa. Super. 274 601 A.2d 346 (1992). Reasonable suspicion must be based upon specific and articulable NO. 98-1837 CRIMINAL TERM facts. See Com. v. Vasquez, 703 A.2d 25 (Pa. Super. 1997). Officer Tappan's stop was based upon specific and articulable facts that criminal activity was afoot. The Defendant was seen leaving the parking lot of a closed business at 1:20 a.m. The officer was aware of several recent crimes that had occurred at the premises.3 Armed with this knowledge, he attempted to get the Defendant's attention for a mere encounter. We have no doubt that the Defendant saw the officer trying to get his attention. Yet he made an obvious and conscious effort to ignore the officer and drove off. Adding the Defendant's obvious suspicious behavior to the unusual hour of night and the recently reported crimes, we were satisfied that the officer was justified in stopping the vehicle. Since the Defendant conceded that the officer's observations after the stop gave him probable cause to effectuate a lawful arrest, we denied his request to suppress evidence. 3Arguably, the officer had sufficient grounds to stop the Defendant at this point. See Com. v. Higgins, 499 A.2d 585, 346 Pa. Super. 238 (1985) where the Superior Court held that an investigative stop of a truck was proper when it was seen leaving a closed business which had recently reported thefts of scrap metal. NO. 98-1837 CRIMINAL TERM Edward E. Guido, J. David Freed, Esquire For the Commonwealth Timothy L. Clawges, Esquire For the Defendant :sld