J-S81029-16

                                   2017 PA Super 403


    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    STEPHEN MACKEY                             :
                                               :   No. 1460 EDA 2015
                       Appellant

             Appeal from the Judgment of Sentence April 13, 2015
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0010023-2014


BEFORE:      BOWES, J., MOULTON, J., and STEVENS*, P.J.E.

DISSENTING OPINION BY STEVENS, P.J.E.:               FILED DECEMBER 20, 2017

       In a 1999 Pennsylvania Supreme Court case, Commonwealth v.

Hawkins, 692 A.2d 1068 (Pa. 1997), the Opinion Announcing the Judgment

of the Court dismissed as “fanciful and histrionic” the Commonwealth’s

references to schoolyard shootings and assassination of public figures as

possible consequences if Terry1 jurisprudence always required independent

corroboration of “man with gun” anonymous tips.




____________________________________________


1 Terry v. Ohio, 392 U.S. 1, 88 S.Ct 1868, 20 L.Ed 2d. 889 (1968) (holding
an officer may, consistent with the Fourth Amendment, conduct a brief,
investigatory stop when the officer has reasonable, articulable suspicion that
criminal activity is afoot).



____________________________________
* Former Justice specially assigned to the Superior Court.
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       Sadly, the Commonwealth’s references in 1997 were neither fanciful nor

histrionic; they were, instead, prescient.2 If anything, our law enforcement

officers, our children, and our law-abiding citizens are at risk of serious danger

more than ever before from indiscriminate gun use by violent criminals. Such

violence, especially the vicious targeting of our law enforcement officers,

cannot be tolerated.

       The touchstone of Terry is reasonableness, a standard derived from

balancing the government’s interest in intruding, the degree of the intrusion,

and the citizen’s counterveiling privacy interest. On balance, the totality of

circumstances pertinent to the reasonableness inquiry in the instant case

weighed in favor of the government’s interest in promoting public safety by

securing Appellant for a Terry frisk. The “man with gun” tip not only described

the suspect’s appearance and location specifically, it also placed him on a

crowded bus in a high crime neighborhood.

       To invalidate a weapons pat-down under these facts, occurring as they

did against a backdrop of escalating acts of random gun violence in our

society, would place an undue restraint on law enforcement’s ability to

____________________________________________


2 Columbine High School, Colorado, April 1999: 15 fatally shot victims;
Tucson, Arizona, January 2011: assassination attempt of U.S. Representative
Gabby Giffords leaves six dead and 13 wounded; Sandy Hook Elementary
School, Connecticut, December 2012: 28 fatally shot victims; Blooming
Grove, Pennsylvania, September 2014: State Trooper Bryon Dickson II fatally
shot, State Trooper Alex Douglass critically injured; Washington, D.C., June
2017: armed attack of congressional staff baseball team and capitol police;
October 2017, Las Vegas, Nevada: 58 people fatally shot, 546 injured.


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respond effectively to a report of imminent danger and, consequently, would

jeopardize both the public’s and police safety.

      As former Justices Sandra Newman and Ron Castille so cogently noted:

      I can think of no more compelling reason for the police to conduct
      a Terry stop and frisk than in a situation where they receive a tip
      that a man with a gun is lingering around a schoolyard. I shudder
      to think what might happen if the police were forced, as the
      Majority suggests, to wait for the man to use the gun before they
      could act.

      Accordingly, I would hold that under the totality of the
      circumstances here, where police immediately found Hawkins,
      who matched the informant’s description of a “man with a gun” at
      an exact location in the middle of the night and, given the
      likelihood that the gun was illegal, police had sufficient reasonable
      suspicion that there was a reasonable suspicion of criminal activity
      to stop Hawkins and conduct a protective frisk.

      ….

      …[W]e must consider the nominal intrusion that occurs when
      police conduct a protective frisk. During a pat-down, police simply
      feel the outer surface of a suspect’s garments. They do not enter
      pockets of interior clothing unless they feel an object that could
      be a concealed weapon. Further, as noted [in United States v.
      Clipper, 973 F.2d 944 (D.C.Cir. 1992)], mere surveillance or
      attempts to approach and question “man with gun” suspects could
      have grave consequences. Clearly the safety interests of the
      police in a “man with gun” case outweigh the limited invasion of
      privacy that occurs during a patdown search.

      …[T]he balancing test in Terry should be resolved in favor of the
      police in “man with gun” cases. The Majority’s interpretation of
      Terry in “man with gun” cases ties the hand of the police and
      leaves them susceptible to ambush and assault.

      ….

      I agree with the Majority that Article I, Section 8 of the
      Pennsylvania Constitution vigorously protects each citizen’s

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      personal privacy, but I believe the Majority has failed to properly
      weigh the countervailing safety interests of the public and the
      police when responding to a “man with a gun” tip in its analysis
      pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
      889 (1968). The reality of law enforcement in today’s society is
      that bank robbers, fanatics and other gunmen are fully armed and
      ready to indiscriminately kill citizens and police. [] The Majority
      loses sight of the fact that Terry was written to help protect police
      from the dangers of armed suspects. Therefore, I respectfully
      dissent and call out for the protection of people in law enforcement
      and in our entire society through a proper evaluation of their
      safety interests pursuant to the Fourth Amendment to the U.S.
      Constitution and Article I, Section 8 of the Pennsylvania
      Constitution.[]

Hawkins, 692 A.2d at 1071-76 (Newman, J., dissenting) (citations and

footnotes omitted).

      Twenty years after Hawkins, society’s interest in protecting its law

enforcement officers and citizens from arbitrary acts of gun violence has

clearly become more compelling, more urgent, and more serious than ever

before. Waiting for the man to use the gun would only lead to another tragic

loss of innocent lives.

      Accordingly, because I find the totality of circumstances made the “man

with gun” tip sufficiently reliable to justify the police response in the present

case, I would affirm judgment of sentence.




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