J-A08004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

VERQUEL JOHNSON

                            Appellee                  No. 3446 EDA 2015


                    Appeal from the Order October 15, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000968-2015


BEFORE: PANELLA, J., LAZARUS, J., and STEVENS, P.J.E.*

DISSENTING MEMORANDUM BY LAZARUS, J.:               FILED AUGUST 14, 2017

        I respectfully dissent. In my opinion, the suppression court properly

concluded that Officer Marchetti did not have reasonable suspicion to believe

that Johnson was involved in criminal activity to support an investigative

detention. I would affirm the suppression court’s order.

        Officer Marchetti responded to a report of a burglary in progress on

the 6500 block of Linmore Avenue in Philadelphia.        The flash information

described the suspects as two black males.      As Officer Marchetti proceeded

to that street, he saw two people in a silver Chevy Malibu, which was parked

on that block, but not at the address where the robbery in progress was

reported.    Officer Marchetti was asked whether he could tell whether the

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A08004-17



occupants of the Chevy were male or female when he saw them, to which

Officer Marchetti responded, “Initially I couldn’t tell who they were.”   N.T.

Suppression Hearing, 10/15/15, at 12.      Officer Marchetti, who was in full

uniform, backed up his patrol car to “block them in” because he had decided

he was going to “investigate the two gentlemen.”         Id. at 10.   Officer

Marchetti acknowledged that the occupants of the Chevy were not at the

scene of the reported burglary. He testified:

      Q:    So the 75-48 says you’re doing a vehicle investigation,
      correct?

      A:    Correct.

      Q:    The notes from the preliminary hearing said that you back
      up to block them in, correct?

      A:    Correct.

      Q:    Because you wanted to investigate them, right?

      A:    Yes.

      Q:    They weren’t at the scene of the burglary, right?

      A:    No.

                                ****

      Q:  You didn’t see either one of the people in the car
      committing any crime, did you?

      A:    At that time, no.

      Q:    Okay.     So you were going to do either a vehicle
      investigation or block them in for what charge?

      A:    At that time I was just going to investigate them.

Id. at 26-27.




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        The law in this Commonwealth is clear: in order to effectuate an

investigative detention, an officer must have reasonable suspicion that

criminal activity is afoot and that the person seized is involved in such

activity.   In re M.D., 781 A.2d 192, 196 (Pa. Super. 2001) (citing Terry v.

Ohio, 392 U.S. 1, 30 (1968); see also Commonwealth v. Hicks, 253 A.2d

276, 280 (Pa.1969); Commonwealth v. Ranson, 103 A.3d 73 (Pa. Super.

2014); Commonwealth v. Taggart, 997 A.2d 1189 (Pa. Super. 2010);

Commonwealth v. Martinez, 588 A.2d 513 (Pa. Super. 1991).

        As this Court has previously stated:

        [I]n order for a stop to be reasonable under Terry [1], the police
        officer's reasonable and articulable belief that criminal activity
        was afoot must be linked with his observation of suspicious or
        irregular behavior on the part of the particular defendant
        stopped. Mere presence near a high crime area ... or in the
        vicinity of a recently reported crime ... does not justify a
        stop under Terry. Conversely, an officer's observation of
        irregular behavior without a concurrent belief that crime is afoot
        also renders a stop unreasonable.

Commonwealth v. Espada, 528 A.2d 968, 970 (Pa. Super. 1987)

(citations omitted) (emphasis added).

        Here, the suppression court determined that Officer Marchetti’s

blocking the Chevy amounted to an investigative detention, which the

Commonwealth does not dispute.             The suppression court also determined

that Officer Marchetti was unable to base that detention on specific and

____________________________________________


1
    Terry v. Ohio, 392 U.S. 1 (1968).



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J-A08004-17



articulable facts that Johnson was involved in criminal activity. The fact that

Johnson was sitting in a parked car on the same block of the reported

burglary in progress does not amount to specific and articulable facts that

Johnson was engaged in illegal activity or that criminal activity was afoot.

Glaringly absent is some independent corroborating basis that gave rise to a

reasonable belief on Officer Marchetti’s part that the two individuals sitting in

a parked car were engaged in criminal activity.       See Commonwealth v.

Ayala, 791 A.2d 1202 (Pa. Super. 2002).          Simply put, the investigative

detention was not supported by reasonable suspicion.          I agree with the

suppression court’s reasoning, and therefore, I would affirm.




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