Com. v. Brookin, K., II ( 2017 )

J-A30031-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KEITH AUBREY BROOKIN II
Appellant No. 588 MDA 2016
Appeal from the Judgment of Sentence March 31, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0005005-2015
BEFORE: BOWES, OLSON AND STABILE, JJ.
DISSENTING MEMORANDUM BY BOWES, J.: FILED APRIL 07, 2017
I respectfully dissent. While my esteemed colleagues present a
perceptive expression of rationale, from my perspective, Swatara Police
Officer Patrick Walsh’s decision to initiate the investigatory detention that
was the genesis of Appellant’s DUI conviction was based upon intuition
rather than articulable facts that Appellant was engaged in unlawful activity.
As the majority cogently explained, in order to justify the interdiction
based upon reasonable suspicion, the Commonwealth was required to
demonstrate that Officer Walsh could point to the specific and articulable
facts that led him to suspect criminal activity was afoot. See Terry v. Ohio,
392 U.S. 1, 21 (1968). I add, however, that singularly, Officer Owen’s
suspicion of criminal activity is insufficient unless he linked that suspicion to
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Appellant’s individualized conduct. Commonwealth v. Arch, 654 A.2d
1141, 1144 (Pa.Super. 1995) (“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[.]’”) (quoting Commonwealth v. Hicks, 253 A.2d 276, 279 (Pa.
1969)). Thus, even where suspicious circumstances exist, an individual may
not be seized “unless his or her personal conduct substantiates involvement
in that activity.” Commonwealth v. Maxon, 798 A.2d 761, 768 (Pa.Super.
2002). Moreover, while a police officer’s investigatory detention can be
sustained by evidence of specific and articulable facts, unparticularized
suspicion is insufficient. Commonwealth v. Arch, 654 A.2d 1141, 1144
(Pa.Super. 1995) (“A police officer cannot reach such a conclusion based
upon an ‘unparticularized suspicion’ or ‘hunch.’”).
Stated plainly, I do not believe that the circumstances surrounding
Officer Walsh’s justification for the interdiction, i.e., “to make sure that
everything was okay with the female [passenger] and [the] people that were
in the car[,]” was supported by specific facts that suggest that Appellant was
involved in criminal activity. See N.T., 3/31/16, at 9. The certified record
does not establish that the traffic stop occurred in a high crime area or
reveal any evidence to support the view that Appellant exhibited irregular
behavior. During the suppression hearing, Officer Walsh testified that, as he
drove his marked patrol vehicle on High Street in Steelton, Pennsylvania, at
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approximately 1:00 a.m., he overheard a woman yelling in an automobile
that was occupied by Appellant and another man. The officer observed a
fourth person standing outside of the driver’s-side window talking with
Appellant. None of the people fled as the patrol car drove past Appellant’s
vehicle.
Officer Walsh could not decipher what the woman was shouting inside
the car, and he did not immediately stop to investigate the incident.
Instead, he decided to circle around the block, and upon his return, he
stopped behind the car without activating his emergency lights or siren. The
two passengers, which included the women, exited the car and, along with
the man who had been standing outside the vehicle talking to Appellant, the
three individuals hurried from the scene. Appellant drove away.
Notwithstanding Officer Walsh’s stated concern for the woman’s
safety, the policeman did not hail her or either of the two gentlemen that
were walking away from Appellant’s car. Instead, Officer Walsh pursued
Appellant for approximately 100 to 200 feet, and initiated the underlying
traffic stop. As noted, the stated purpose for the interdiction was to “inquire
about . . . why the female was yelling [or determine] [w]hat was the matter,
if anything was the matter.” Id. at 11.
Unlike my learned colleagues, I do not believe that the Commonwealth
presented specific and articulable facts to suggest that Appellant was
engaged in unlawful activity. From my perspective, Officer Walsh stopped
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Appellant based upon on a hunch that something, which “seemed to be like
an argument [or] a domestic type of situation[,]” was in process. Id. at 9.
While Officer Walsh plainly had an intuitive feeling about what was occurring
in Appellant’s automobile when he first drove passed it, his estimation was
not based on evidence that implicated Appellant’s behavior. Indeed, the
entirety of Officer Walsh’s observation of Appellant’s ostensibly suspicious
actions were the paired facts that 1) Appellant was in the driver’s seat of the
parked car as a female passenger berated him, his passenger, or a third
person standing outside the vehicle; and 2) Appellant drove away after the
two passengers exited the car and all three companions hurriedly dispersed.
In my view, this evidence falls short of the specific and articulable facts
required to establish that Officer Walsh possessed reasonable suspicion that
Appellant was engaged in criminal activity when he effectuated the
investigatory detention. Accordingly, I respectfully dissent.
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