Com. v. Gregory Spencer Cook (Concurring Opinion)
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[J-256-98] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT COMMONWEALTH OF PENNSYLVANIA, : : Appellee : : : v. : : : GREGORY SPENCER COOK, : : Appellant : 98 M.D. Appeal Dkt. 1998 Appeal from the Order of Superior Court entered December 31, 1997, at No. 248 HBG 1997, affirming the judgment of sentence imposed February 13, 1997, in the Court of Common Pleas of Dauphin County, Criminal Division, at Nos. 3055, 3055-A CD 1995 ARGUED: November 19, 1998 CONCURRING OPINION MR. JUSTICE SAYLOR DECIDED: JULY 23, 1999 I agree with the majority that the contraband abandoned by Appellant during his flight from police was properly recovered and admitted into evidence at trial. I write only to note my agreement with the logic of the United States Supreme Court s decision in California v. Hodari D., 499 U.S. 621, 625-26, 111 S. Ct. 1547, 1550 (1991)(holding that a seizure did not occur until the police physically restrained a fleeing suspect), and of Mr. Justice Castille s dissenting opinion in Commonwealth v. Matos, 543 Pa. 449, 473, 672 A.2d 769, 781 (1996)(Castille, J., dissenting)(stating that [t]hat a person voluntarily chooses to flee from the mere presence of a police officer should not immunize that person when he abandons contraband, weapons, or other evidence during the course of his flight and a police officer s pursuit ). Thus, I believe that, in the absence of unlawful conduct on the part of the police, and even under the paradigm of a mere encounter, abandoned property, as such, should be subject to lawful recovery by the authorities.
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