Appeal from the Judgment of Sentence of November 14, 1986 in the Court of Common Pleas of Berks County, Criminal Division, at No. 90/86.
James P. Kearney, Assistant Public Defender, Pittsburgh, for appellant.
George C. Yatron, District Attorney, Reading, for Com., appellee.
Brosky, Del Sole and Hoffman, JJ.
[ 364 Pa. Super. Page 606]
This is an appeal from the judgment of sentence for carrying a firearm without a license and owning a firearm despite being a former convict. Appellant contends that the lower court erred in denying his motion to suppress evidence because in stopping and frisking him the police violated Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We agree and, accordingly, reverse the judgment of sentence and order a new trial.*fn*
Appellant, a Hispanic male, along with three other Hispanic males, was observed by police standing on a street corner in a high crime area of Reading. Two of the four men noticed the police car approaching and fled. Appellant and the fourth man walked toward the police car. When they reached the car, the police ordered the two to stop. They obeyed the order. After the stop, police observed an object protruding from appellant's companion's waistband. They also saw appellant place his hand in his pocket. The police frisked appellant and seized a handgun. Appellant was arrested and charged with the above-stated weapons offenses. His pretrial motion to suppress evidence was denied, and he was convicted and sentenced to two concurrent terms of two-to-five years incarceration and a fine of $250.00. This appeal followed.
Appellant contends that the lower court erred in denying his pre-trial motion to suppress evidence. He argues
[ 364 Pa. Super. Page 607]
that as the police officers' reasons for stopping him were constitutionally deficient under Terry v. Ohio, supra, evidence seized pursuant to the stop should have been suppressed. We agree. In reviewing an order denying a motion to suppress evidence we must determine whether the factual findings of the lower court are supported by the evidence of record. Commonwealth v. Cavalieri, 336 Pa. Superior Ct. 252, 254-55, 485 A.2d 790, 791 (1984). In making this determination, we may only consider the evidence of the Commonwealth witnesses and so much of the witnesses for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Id. If the evidence supports the findings of the lower court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are in error. Id.
In limited circumstances, an individual may be stopped, briefly detained, and frisked for investigatory purposes. Commonwealth v. Prengle, 293 Pa. Superior Ct. 64, 68, 437 A.2d 992, 994 (1981). In order for such a stop to be reasonable under the fourth amendment to the United States Constitution, the police conduct must meet two separate and distinct standards. Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1879. First, the police officer must point to specific and articulable facts which warrant the initial stop. Id. This standard is met "if the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him reasonably to conclude that criminal activity may be afoot . . . ." Commonwealth v. Hicks, 434 Pa. 153, 158-59, 253 A.2d 276, 279 (1969). Such a conclusion may not be based upon an "unparticularized suspicion or 'hunch'." Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct. at 1883. Second, if the reasons for the stop meet this standard and, therefore, it is deemed reasonable for fourth amendment purposes, a police officer may frisk the individual to search for weapons if "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. at 27, 88 S.Ct. at 1883. Again, such a belief must be based
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upon specific and articulable facts indicating that the person frisked is armed and dangerous. Commonwealth v. Hicks, supra 434 Pa. at 159, 253 A.2d at 279. "[O]therwise, the talismanic use of the phrase 'for our own protection' . . . becomes meaningless." ...