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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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