Appeal from the Judgment of Sentence of September 10, 2010 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0017895-2009
The opinion of the court was delivered by: Ott, J.:
BEFORE: DONOHUE, J., LAZARUS, J., and OTT, J.
Benjamin Washington appeals from the judgment of sentence entered against him following his conviction on multiple counts of possession with intent to deliver (heroin and cocaine) and possession of controlled substances (heroin and cocaine) and a misdemeanor charge of possession of a small amount of marijuana.*fn1 Washington was sentenced to three to fifteen years' incarceration. On appeal he claims: (1) the trial court erred in failing to suppress evidence obtained without reasonable suspicion and (2) that his sentence is illegal due to the failure to provide him notice with intent to invoke a mandatory minimum sentence. After a thorough review of the submissions by the parties, official record, and relevant law, we agree that the evidence was obtained without the requisite reasonable suspicion. Therefore, the trial court erred in failing to suppress the evidence. We reverse the order of the suppression court and vacate the judgment of sentence.
When reviewing the denial of a motion to suppress evidence, we examine "the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in context of the record as a whole." Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010). We then determine "whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct." Id. Our review of the application of the law to the facts is plenary. Id.
At the suppression hearing, the trial court denied the motion and made the following findings of fact and conclusions of law from the bench:
Police officers arrived. Before they arrived, the defendant flees the scene unprovoked, and as the officer is following him in a parallel fashion, the defendant throws over the fence what appears to be a plastic baggie consistent with items that one would use to store narcotics. The officer observed this, and then the officer also observed the defendant as he walked toward the police officer after the officer had identified himself as a police officer and instructed the defendant to stop, and as the defendant continued to approach the police officer, ignoring the officer's commands, he discarded a box which contained Ice Breakers, and the defendant got 15 feet of the officer, who had to draw his gun, and the defendant was finally detained and arrested.
I find that there is sufficient probable cause to support a claim that the defendant was in possession of illegal narcotics. I think the standard, and I may be wrong, is probable cause, not reasonable suspicion. It's clear you have reasonable suspicion because of the fact that you have unprovoked flight in a high- crime area, and the officers didn't have the opportunity to identify themselves or produce badges with respect to this defendant until the first opportunity, and they did what they needed to do.
N.T. Suppression Hearing, 6/7/2010, at 27-28.*fn2
The suppression judge amplified his reasoning in its Pa.R.A.P. 1925(a) opinion, stating:
[Washington] first rests this claim on the alleged lack of either reasonable suspicion or probable cause by the officers in detaining and searching his person. In most instances, in order to establish a reasonable suspicion of criminal activity, police must have specific reasonable inferences which they are entitled to draw from the facts in light of their experience. Terry v. Ohio, 88 S.Ct. 1868, 392 U.S. 1 (1968). However, in a high crime area, unprovoked flight is sufficient to create reasonable suspicion so as to justify Terry stop by police officers. Commonwealth v. Brown, 2006 Pa. Super. 177, 904 A.2d 925 (2006). Moreover, the stopping and pat down of a defendant under such circumstances is not considered a violation of the 4th Amendment, nor is the evidence seized subject to suppression. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Here, [Washington] voluntarily ran from the unmarked police officers in an area that was testified to be a high-crime area by the same officers during trial. In fact, the officers were at the residence on Breker Street because of a report of shots being fired at the same location a few days beforehand. Therefore, a reasonable suspicion was created.
Trial Court Opinion, 7/20/11, at 3.
Washington claims that as a matter of law, the facts testified to by the detectives did not provide an adequate statement of either reasonable suspicion or probable cause of criminal activity to justify the initial police chase. As result of the ...