J-A24015-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                       Appellee         :
                                        :
                  v.                    :
                                        :
FREDDIE KING,                           :
                                        :
                       Appellant        :      No. 2080 EDA 2014


           Appeal from the Judgment of Sentence June 26, 2014,
           in the Court of Common Pleas of Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0000712-2014

BEFORE: PANELLA, WECHT, and STRASSBURGER,* JJ.

CONCURRING MEMORANDUM BY STRASSBURGER, J.:FILED NOVEMBER 23, 2015

      I agree that King’s judgment of sentence should be affirmed, albeit on

a somewhat different basis than that offered by the Majority.       I disagree

with the Majority’s determination that King’s admission that he possessed a

gun was the linchpin that provided Officer Chadderton with the requisite

suspicion to conduct a Terry frisk. Because the stop was supported by

reasonable suspicion, and because the totality of the circumstances

reasonably led Officer Chadderton to believe that a pat-down was warranted

to ensure officer safety, I find the Majority’s determination of when the frisk

occurred, i.e. after King’s admission rather than when King was ordered to




* Retired Senior Judge assigned to the Superior Court.
J-A24015-15


place his hands on the fence, to be immaterial.1 Accordingly, I respectfully

concur.

      It is well-settled that

      a police officer may conduct a brief investigatory stop of an
      individual if the officer observes unusual conduct which leads
      him to reasonably conclude, in light of his experience, that
      criminal activity may be afoot. An investigatory stop subjects a
      person to a stop and a period of detention, but does not involve
      such coercive conditions as to constitute the functional
      equivalent of an arrest. Such an investigatory stop is justified
      only if the detaining officer can point to specific and articulable
      facts which, in conjunction with rational inference derived from
      those facts, give rise to a reasonable suspicion of criminal
      activity and therefore warrant the intrusion.

             If, during the course of a valid investigatory stop, an
      officer observes unusual and suspicious conduct on the part of
      the individual which leads him to reasonably believe that the
      suspect may be armed and dangerous, the officer may conduct a
      pat-down of the suspect's outer garments for weapons. In order
      to justify a frisk … the officer must be able to point to particular
      facts from which he reasonably inferred that the individual was
      armed and dangerous. Such a frisk, permitted without a warrant
      and on the basis of reasonable suspicion less than probable
      cause, must always be strictly limited to that which is necessary
      for the discovery of weapons which might be used to harm the
      officer or others nearby.

Commonwealth v. E.M., 735 A.2d 654, 659 (Pa. 1999) (citations and

quotations omitted).

      Here, officers approached King at his home after observing potentially

criminal activity. Unlike situations involving uncorroborated tips from third

parties or mere encounters with citizens while on patrol, the officers in this


1
  So too did the suppression judge who did not rely on King’s admission to
find that the frisk was valid.


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case had reason to believe criminal activity was afoot, which elevated their

subsequent interaction with King to an investigative detention. 2 During that

detention, King began acting suspiciously, especially in approaching the

officers with his body at a forty-five degree angle as if to hide something.

Trial Court Opinion, 11/10/2014, at 3. The officers also observed blood on

2
    Section 5511 provides as follows.

        1) A person commits an offense if he wantonly or cruelly
        illtreats, overloads, beats, otherwise abuses any animal, or
        neglects any animal as to which he has a duty of care, whether
        belonging to himself or otherwise, or abandons any animal, or
        deprives any animal of necessary sustenance, drink, shelter or
        veterinary care, or access to clean and sanitary shelter which will
        protect the animal against inclement weather and preserve the
        animal's body heat and keep it dry.

        (2) (i) Except as provided in subparagraph (ii), a person
        convicted of violating paragraph (1) commits a summary
        offense.
              (ii) A person convicted for a second or subsequent
              time of violating paragraph (1) commits a
              misdemeanor of the third degree if all of the
              following occurred:

              (A) The action or omission for which the person was
              convicted for a subsequent time was performed on a
              dog or cat.

              (B) The dog or cat was seriously injured, suffered
              severe physical distress or was placed at imminent
              risk of serious physical harm as the result of the
              person's action or omission.

18 Pa.C.S. § 5511(c). Although typically a summary offense, as subsection
(c)(2)(ii) explains, repeat commission rises to the level of a misdemeanor.
That the officers initially intended to cite King is a red herring, as the facts
establish that they witnessed the abuse and were, therefore, justified in
investigating further to determine how the offense could be charged.



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J-A24015-15


his lip and detected an odor of alcohol on his person. These circumstances,

taken together with the location of the detention in a known high-crime

area, were sufficient to permit a pat-down for weapons long before King’s

admission that he possessed a gun.




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