J-S77014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JEFFREY AURSBY

                            Appellant                  No. 3082 EDA 2013


      Appeal from the Judgment of Sentence entered September 12, 2013
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0002749-2012


BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.

CONCURRING STATEMENT BY STRASSBURGER J.:FILED FEBRUARY 19, 2015

        I agree with the Majority’s determination that, under the totality of the

circumstances, Officer Telesford’s articulated facts gave rise to reasonable

suspicion, which justified the Terry stop of Appellant. Accordingly, I would

affirm.

        I write separately to express my displeasure with the jurisprudence

surrounding the concept of unprovoked flight. In my view, the instant case

does not turn on the issue of flight as there are a number of other relevant

factors supporting the trial court’s determination that the officers had

reasonable suspicion to stop and frisk Appellant.           However, it seems

fundamentally unfair, and likely discriminatory, that so-called “high-crime
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S77014-14



areas” are held to a lower standard with respect to Fourth Amendment

protections than are areas not designated as such.

      In my view, reliance on unprovoked flight in a high-crime area as a

brightline basis upon which to find reasonable suspicion is dangerously close

to creating a per se rule that the Wardlow Court was careful to avoid.

Illinois v. Wardlow, 528 U.S. 119, 127-28 (2000) (Stevens, J. concurring

in part, dissenting in part).

      As our learned colleagues in the Tennessee Supreme Court observed

correctly,

             [W]hile we do not wish to encourage flight from officers ...,
      we realize from a practical standpoint that flight does not always
      amount to reasonable suspicion. In fact, innocent reasons for
      flight abound in high crime areas, including: fear of retribution
      for speaking to officers, unwillingness to appear as witnesses,
      and fear of being wrongfully apprehended as a guilty party.

State v. Nicholson, 188 S.W.3d 649, 661 (Tenn. 2006) (holding that,

under the totality of the circumstances, the defendant's flight after police

officer asked him to “hold up,” without more, did not provide officer with

reasonable suspicion of criminal activity to justify investigatory stop).




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