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Commonwealth v. Price

Superior Court of Pennsylvania

December 31, 2019


          Appeal from the Judgment of Sentence Entered December 30, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009035-2014

          BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS [*] , P.J.E.


          McLAUGHLIN, J.

         This case comes to us on remand from the Pennsylvania Supreme Court, which vacated our previous disposition and instructed us to reconsider this case in light of the Court's interim decision in Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), cert. denied, No. 19-426, 2019 WL 6689877 (U.S. Dec. 9, 2019). Consistent with Hicks, we conclude the Commonwealth failed to establish that the law enforcement officers in this case had reasonable suspicion to stop Price, and the trial court therefore erred in denying Price's motion to suppress. We vacate Price's judgment of sentence, reverse the order denying suppression, and remand for further proceedings.

         Our recitation of the procedural history and relevant facts remains nearly identical to our previous recitation. See Commonwealth v. Price, 203 A.3d 264, 266-68 (Pa.Super.), vacated, 217 A.3d 193 (Pa. 2019). In 2014, Price was charged with possession of a firearm by a prohibited person, firearms not to be carried without a license, and possession of a firearm in the City of Philadelphia.[1] Prior to trial, Price filed a Motion to Suppress Physical Evidence, claiming that he had been seized and searched without probable cause or reasonable suspicion. The trial court held a hearing on January 15, 2015, at which the Commonwealth presented the testimony of Philadelphia Police Officer Kevin Klein.

         Officer Klein testified that on the night in question, [2] he was working in an unmarked patrol vehicle with his partner, Officer Christopher Ficchi, when they received a radio broadcast to respond to the 5100 block of Willows Avenue. See N.T., 1/15/15, at 15-16. According to Officer Klein, who had been a Philadelphia Police Officer for seven years at the time of the hearing, violent crime is prevalent in that area. Id. at 13, 28-29. The radio broadcast reported that a black male, wearing a white T-shirt and gray shorts, was driving a silver Lexus with a license plate reading "GWL8569," and was carrying a firearm. Id. at 15-16, 29. Officer Klein indicated that the radio broadcast was the result of a 911 call. Id. at 30.

         Officer Klein testified that he and Officer Ficchi arrived at the intersection of 51st Street and Willows Avenue within a minute of receiving the radio broadcast and saw a silver Lexus, facing westbound, stopped at a stop sign. Id. at 17-18. The Lexus proceeded through the intersection and past the unmarked police vehicle, which was stopped at the same intersection, facing eastbound. Id. at 18. As the Lexus passed the officers' car, Officer Klein observed that the driver was a black male, later identified as Price, who was wearing a white T-shirt. Id. Officer Klein also saw that the car had a license plate reading "GWL8568," which Officer Klein noted differed by only one digit from the number provided by the radio broadcast. Id. The officers turned their vehicle around and followed the Lexus until it pulled into a parking spot. Id. at 18-19, 27. The officers stopped their vehicle and activated their lights. Id. at 19, 27.[3]

         Officer Klein exited the police car and approached the passenger side of the Lexus. Id. at 19. The window was down, and Officer Klein could see that Price was wearing gray shorts in addition to wearing a white T-shirt. Id. Price had his hands on the steering wheel, and did not respond when Officer Klein asked if he was carrying a firearm. Id. Officer Klein walked to the driver's side of the Lexus, opened the door, and asked Price to step out. Id. at 20. Price stood up, and as he turned, Officer Klein could see that he had a large bulge in the stomach area of his waistband. Id. Officer Klein testified that in his experience, most individuals carry firearms in the waistband area. Id. at 14-15. Officer Klein told his partner that he observed the bulge, and they both grabbed Price's arms. Id. at 20. Officer Klein felt the bulge, and found that it felt like a hard metal object. Id. The officers handcuffed Price and removed from his waistband a Kel-Tec 9-millimeter gun. Id.

         As Officers Klein and Ficchi were arresting Price, they were approached by a woman named Rachel Clark, who told the officers that she had called 911. Id. at 21-22, 28. She pointed to Price and said, "[T]hat's him," and asked the officers if they had recovered the gun. Id. at 22. Officer Klein noted that Clark appeared to be standing out of Price's view, and initially appeared to be nervous, but was relieved once the officers told her they had obtained the firearm. Id. Clark informed the officers that she had called 911 because she observed Price "put an item in the trunk of the vehicle" and that "he loaded bullets into a brown bag and placed that item into the trunk of the vehicle." Id. Clark was taken to a police station, where she gave a statement.[4] Id. at 28.

         Officer Klein asked Price if he had any other bullets in the vehicle. Id. at 23. Price responded that there were bullets in the trunk, and gave Officer Klein written permission to retrieve them. Id. In the trunk, Officer Klein found a brown corduroy bag containing 41 live rounds of 9-millimeter ammunition, six blue latex gloves, and one pair of black leather gloves. Id.

         Relying on Navarette v. California, 572 U.S. 393 (2014), the trial court found that the police had reasonable suspicion to stop Price based on the 911 call. The court explained that the 911 center in Philadelphia can "track [911 calls] if it's a landline," and that "they have caller ID if it's not a landline." N.T., 1/15/15, at 54. The court also noted that 911 callers have their voices recorded, and the police may be able to establish a 911 caller's identity through tracing and tracking systems, which minimize the possibility that a caller would be dishonest. Id. The court therefore determined that the 911 call was sufficiently reliable to support reasonable suspicion to justify stopping Price's car, and denied Price's Motion to Suppress.[5]

         Price proceeded to a non-jury trial. The court found Price guilty of the above offenses and thereafter sentenced him to a minimum of five to ten years' incarceration followed by five years' probation.

         Price filed a timely notice of appeal.[6] His first issue on appeal was whether the trial court erred in denying his motion to suppress, because, according to Price, the stop leading to his arrest was based on an anonymous and unreliable phone call and therefore not supported by reasonable suspicion or probable cause.

         We affirmed Price's judgment of sentence on January 28, 2019. Price, 203 A.3d at 272. We concluded the trial court did not err in denying Price's motion to suppress, because the totality of the circumstances ...

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