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HomeMy WebLinkAboutCP-21-CR-2215-2002COMMONWEALTH V. JOHN M. PETONYAK II IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-2215 CRIMINAL TERM IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., May ,2003 After a bench trial in which the parties stipulated to the facts, the defendant was convicted of possessing a small amount of marijuana. ~ He was sentenced to pay the costs of prosecution plus a fine of $25. He has filed this timely appeal seeking review of our denial of his pretrial motion to suppress evidence.2 Specifically, he alleges that we erred in denying the suppression motion because the "stop, detention and pat-down of the defendant" was not justified.3 This opinion will address the reasons for our decision as required by Pennsylvania Rule of Appellate Procedure 1925(a). FACTUAL BACKGROUND On January 16, 2003, we held an evidentiary hearing on defendant's motion to suppress. We will summarize the relevant facts established by the testimony. On June 21, 2002, at 11:19 p.m., a Mr. JeffBeitler called the Carlisle Police to report that a male and female were fighting in the area of his residence at 143 North West Street.4 Several Carlisle police officers responded to the scene, arriving within one minute of the call. 5 35 Pa. § 780 - 113(a)(31). See "Concise Statement of Matters Complained of on Appeal". See "Concise Statement of Matters Complained of on Appeal". Suppression Hearing, Transcript pp. 4, 11-12. Suppression Hearing, Transcript p. 5. NO. 2002-2215 CRIMINAL The defendant and his girlfriend were about 50 yards from 143 North West Street walking toward the Dickinson College campus.6 They were involved in a "heated discussion.''? As the officers approached the couple, the defendant had one hand in his pocket.8 For safety reasons, defendant was directed to take his hand out of his pocket.9 He complied immediately, l0 The officers advised the couple that they were investigating a report of possible domestic violence. ~ While they initially denied it, the couple quickly admitted that they had been fighting and "were just walking it off and talking now". 12 In accordance with standard procedure for domestic violence calls, the parties were separated in order to be interviewed. ~3 Officers O'Leary and Parsons took the defendant aside to ask him questions. Shortly after the separation, defendant again placed his hand in his pocket.TM Officer O'Leary immediately directed him to remove his hand and Officer Parsons proceeded to pat him down. 15 Officer Parsons felt a large bulge in his pocket, which he suspected to be marijuana. 16 Officer Parsons turned to Officer O'Leary and commented "I wonder what that is?" ~? Defendant immediately responded that it was marijuana and produced it for the police.18 Suppression Hearing Transcript, pp. 7, 11. Suppression Hearing Transcript, p. 16. Suppression Hearing Transcript, p. 14. Suppression Hearing Transcript, p. 9. lo Suppression Hearing Transcript, p. 14. Suppression Hearing Transcript, p. 8. ~2 Suppression Hearing Transcript, p. 14. ~ Suppression Hearing Transcript, p. 8. ~4 Suppression Hearing Transcript, p. 9. ~5 Suppression Hearing Transcript, p. 9. 16 Suppression Hearing Transcript, p. 9. ~7 Suppression Hearing Transcript, p. 9. ~8 Suppression Hearing Transcript, p. 9. Defendant questions only the legality of the pat down search, not the seizure of the marijuana. In any event, we were satisfied that the marijuana was voluntarily produced by the defendant before the police had the chance to request or seize it. See Commonwealth v. ~ashington, 438 Pa. Super. 131,651 A.2d 1127 (1994). NO. 2002-2215 CRIMINAL DISCUSSION In Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d 1043 (1995) our Supreme Court described three levels of interaction between citizens and the police: The first of these is a "mere encounter" (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or respond. The second, an "investigative detention" must be supported by reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or "custodial detention" must be supported by probable cause. Com. v. Ellis, 541 Pa. 285, 293-94, 662 A.2d 1043, 1047-48 (1995) (footnote and citations omitted). In the instant case, the defendant argued that he was subjected to an unlawful investigative detention. While we agreed that the encounter rose to the level of an investigative detention, we were satisfied that it was lawful. In order for an investigatory stop and detention to be lawful, a police officer must have reasonable suspicion to believe that criminal activity is afoot. Commonwealth v. Ellis, supra. In determining whether a reasonable suspicion exists, we were guided by the following: 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." The 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, 751 A.2d 1153, 1156 (Pa. 2000)(quoting Terry, 392 U.S. at 21-22) (citations omitted). NO. 2002-2215 CRIMINAL Based upon the totality of the circumstances, we were satisfied that Officers Parsons and O'Leary had the requisite reasonable suspicion to conduct an investigatory stop. A borough resident, who gave both his name and address, reported an altercation between a man and a woman on the street in his neighborhood. Within a minute of receiving the call, the officers observed the defendant and his girlfriend in the same general vicinity. One officer, whose testimony we found to be credible, described them as being involved in a heated discussion. Under the circumstances, the officers were certainly justified in detaining both defendant and his girlfriend to investigate possible criminal activity. ~9 The defendant next argued that the pat down search was improper. The Pennsylvania Supreme Court articulated the applicable law on that issue as follows: A police officer may conduct a quick frisk for weapons if he or she reasonably fears that the person with whom he or she is dealing may be armed and dangerous. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Hicks, 434 Pa. 153,253 A.2d 276, 279 (1969). "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or the safety of others was in danger." Terry, 392 U.S. at 27, 88 S.Ct. 1868. The existence of reasonable suspicion to frisk an individual must be judged in light of the totality of the circumstances confronting the police officer. United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); In the Interest of D.M., 556 Pa. 160, 727 A.2d 556, 557 (1999). Commonwealth v. Taylor, 565 Pa. 140, 771 A.2d 1261, 1268-69 (2001). In the instant case we were convinced that the officers were justified in conducting a pat down search of the defendant. They were investigating a public altercation, possibly involving domestic violence. In such cases the officers are always 19 Several possible violations spring to mind, including disorderly conduct (18 Pa. C.S.A. § 5503), harassment (18 Pa. C.S.A. § 2709), and simple assault (18 Pa. C.S.A. § 2701). NO. 2002-2215 CRIMINAL concerned for their own safety and are alert to the possibility of weapons.2° As they approached the defendant, he had his hand in his pocket. Using reasonable caution for their own safety, the officers directed him to take his hand out of his pocket into plain view. It was not until he placed his hand back into his pocket that he was patted down. Under those circumstances, the frisk was entirely proper. For the reasons set forth in the above opinion, we denied the defendant's pretrial motion to suppress evidence. DATE: Edward E. Guido, J. Matthew P. Smith, Esquire For the Commonwealth Arla M. Waller, Esquire For the Defendant :sld 2o Suppression Hearing Transcript, p. 9.