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Commonwealth v. Scarborough

Superior Court of Pennsylvania

April 7, 2014

COMMONWEALTH OF PENNSYLVANIA
v.
BASIL SCARBOROUGH, Appellant

Argued November 12, 2013

Page 680

Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, No. CP-51-CR-0014430-2011. Before McDermott, J.

Peter Rosalsky, Public Defender, Philadelphia, for appellant.

Suzan E. Willcox, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., WECHT AND MUSMANNO, JJ.

OPINION

Page 681

FORD ELLIOTT, P.J.E.

Appellant appeals the judgment of sentence entered June 4, 2012. Finding no error, we affirm.

Page 682

The trial court accurately summarized the facts underlying the issues on appeal in its opinion:

Philadelphia Police Officer Jayson Troccoli testified that on [] December 6th, 2011, around 10:13 a.m. he was on bicycle patrol with Officer Anthony Caffie in the area of 1800 South 22nd Street in Philadelphia. The area is known for high crime, shootings, and narcotics arrests. The officers observed the defendant heading southbound, toward them, on the 1800 block of 22nd Street. The defendant was riding a bicycle and talking on a cellular phone. The officers stopped the defendant in order to issue him a citation for using the phone while operating a vehicle, in violation of a City of Philadelphia ordinance, Phila. Code § 12-1132(3). N.T. April 19, 2012, pp. 5-8.
When asked, the defendant hung up his phone and placed it in his left jacket pocket. The officers also asked for his identification. The defendant began to behave nervously, and put his hand in his right jacket pocket but did not withdraw it. The officers reiterated their request for identification, and asked the defendant to remove his hand from his right pocket. The defendant looked around and appeared extremely nervous. Upon being asked a second time, he removed his hand from his right pocket. Id. at pp. 9-11.
The officers patted down the defendant's pockets for their safety, and Officer Caffie told Officer Troccoli that he felt a hard object. The defendant spontaneously reported that " it's only a cap gun." Officer Troccoli handcuffed the defendant's hands behind his back and removed a small silver revolver from the jacket pocket. Id. The weapon was a .22 revolver with four rounds loaded. According to Officer Troccoli, he felt at risk because of the defendant's apparent nervousness, his looking around, and his refusal upon being asked the first time to remove his hand from his right pocket, combined with the established dangerousness of the area, which had been host to several shootings. Id. at 22.

Trial court opinion, 8/20/12 at 2-3.

On February 13, 2012, appellant filed a pre-trial motion to suppress the evidence against him. On April 19, 2012, the court held an evidentiary hearing and then denied the motion. The case immediately proceeded to a bench trial where appellant was found guilty of firearms not to be carried without a license and carrying firearms on public streets or public property in Philadelphia, 18 Pa.C.S.A. § § 6106 and 6108, respectively. On June 4, 2012, appellant was sentenced to five years' probation at each count, to be served concurrently. This timely appeal followed.

Appellant raises three issues on appeal:

1. Was not appellant subject to an unlawful Terry " frisk" because police lacked reasonable suspicion that appellant was armed and presently dangerous?
2. Was not the Trial Court's felony gradation of Section 6106 of the Pennsylvania Uniform Firearms Act of 1995 violative of federal/state due process and equal protection constitutional guarantees in that this offense was graded as a third degree felony because it occurred in Philadelphia County, but if it had occurred in any other county in Pennsylvania it would have been graded only as a first degree misdemeanor?
3. Should not appellant's Supplemental Statement Of Errors Complained Of On Appeal be deemed ...

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