J. S76027/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
LINELL CHARLES JAMES,                       :
                                            :
                          Appellant         :
                                            :     No. 295 EDA 2016

           Appeal from the Judgment of Sentence December 21, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0002627-2015

BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.:                           FILED JANUARY 25, 2017

        Appellant, Linell Charles James, appeals from the Judgment of

Sentence entered in the Lehigh County Court of Common Pleas following his

convictions for Persons Not to Possess, Use, Manufacture, Control, Sell or

Transfer Firearms and Firearms Not to be Carried Without a License. 1      On

appeal, Appellant challenges the denial of his motion to suppress the firearm

recovered following a Terry2 stop and frisk of his person.       After careful

review, we affirm.




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6105(a)(1) and 18 Pa.C.S. § 6106(a)(1), respectively.
2
    Terry v. Ohio, 392 U.S. 1, 30 (1968).
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       We summarize the factual and procedural history as follows. Officer

Ryan Koons is a member of the City of Allentown Police Department with

more than a decade of experience, education, and training. N.T., 9/3/15, at

6-7.   In 2015, Officer Koons was assigned to the Strategic Enforcement

Detail (“SED”), which is specially tasked with “investigat[ing] street crimes,

drug dealings, and gangs.” Id.

       On the evening of May 22, 2015, Officer Koons was working alongside

other members of the SED, patrolling near the intersection of 7 th Street and

Turner Street.   Id. at 9-10.    It was a high-crime area, known for drug

activity, and Officer Koons had personally made “many” arrests “for firearms

and drugs” in the area. Id. at 11-12. In addition, as a member of the SED,

Officer Koons was aware that in the months leading up to May 22, 2015, a

number of armed robberies had taken place in bodegas and other businesses

in the area. Id. at 12, 14. These robberies often occurred in the evening

hours, sometimes as frequently as “two armed robberies in one night within

a 15-minute time span . . . .” Id. at 12.

       That evening, Officer Lobach,3 a member of the SED, advised Officer

Koons and other SED members that a male subject (“Subject A”) was seen

loitering outside of “a known drug location” wearing a white T-shirt and

“manipulating something very small in his hand.”     Id. at 10. Members of

3
  The first names of Officer Lobach and other members of the SED do not
appear in the record.




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the SED observed Subject A meet up with a second male and enter Madina

Chicken (“Madina’s”), a fried chicken shop located at the intersection of 7 th

Street and Turner Street. Id. at 15.

        Officer Koons, Officer Lobach, and Officer Murray assembled outside of

Madina’s, and observed Subject A and Appellant inside of the business. Id.

at 16. All of the lights inside of the business were off, which was surprising

to Officer Koons because he knew that Madina’s was normally open at that

hour.     Id.    When officers entered Madina’s, they saw the owner standing

behind the counter, staring at the officers without saying a word, which

Officer Koons also thought was “odd.”       Id. at 16-17.    When one of the

officers asked the owner about the two men, he told officers that “they

weren’t customers, [and] that they weren’t purchasing anything.” Id. at 23.

        While Officers Lobach and Murray spoke with Subject A, Officer Koons

asked Appellant what they were doing in Madina’s while all of the lights were

out. Id. at 17. Appellant told Officer Koons that he was waiting for a friend

who was in the bathroom. Id. at 17-18. Officer Koons noticed “a big sign

on the door that says the bathroom is out of order.”        Id. at 18.   Officer

Howells, who had recently arrived on scene, approached and removed an

obviously intoxicated male (“Subject B”) from the bathroom marked “out of

order.”    Id.     Officer Howells placed Subject B under arrest, and began

searching him incident to arrest. Id. at 19.




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      Until that point, Officer Koons had been standing next to Appellant

inside of the small restaurant, and had not spoken to him other than to ask

him why he was standing in a darkened restaurant. At no point did Officer

Koons or any of the other officers present draw their weapons. When Officer

Howells began placing Subject B under arrest, Officer Koons asked Appellant

to write down his name and date of birth. Id. at 22. Officer Koons observed

Appellant was nervous and his hands were shaking while he wrote. Id. at

29.

      Officer Koons observed Officer Howells removing heroin from Subject

B, and heard him comment on the quantity of heroin recovered. Id. at 20.

At that point, Officer Koons became concerned that Appellant might have a

weapon. Id. at 21. He asked Appellant for permission to search him, and

Appellant “slowly started to put his hands up[.]”       Id.      Officer Koons

conducted “a light pat-down” and immediately recognized the feel of a

firearm handle tucked into Appellant’s waistband.      Id.       Officer Koons

recovered a loaded firearm, and placed Appellant under arrest.

      Appellant was charged with one count each of Persons Not to Possess,

Use, Manufacture, Control, Sell or Transfer Firearms; Firearms Not to be

Carried Without a License; and Disorderly Conduct.4 Appellant filed a Motion

to Suppress, averring that officers lacked reasonable suspicion to stop and


4
  The Disorderly Conduct charge was later withdrawn. See Motion for Leave
to Amend Information, filed 11/10/15.



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then frisk Appellant. Motion to Suppress, filed 8/5/15, at 2 (unpaginated).

Following a hearing, the trial court denied the Motion in a written Opinion.

Opinion and Order Denying Motion to Suppress, filed 9/18/15.

       After a bench trial, the court convicted Appellant of both firearms

charges and sentenced him on December 21, 2015, to a term of 42 to 84

months of incarceration.

      Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      On appeal, Appellant raises a single issue:

      Whether the [t]rial [c]ourt erred in denying Appellant’s Motion to
      Suppress a Firearm where there was no reasonable suspicion to
      detain or search [] Appellant who was merely waiting in a
      restaurant for a friend to come out of the bathroom, thereby
      violating Appellant’s rights under the Fourth and Fourteenth
      Amendments of the United States Constitution and Under Article
      I Section 8 of the Pennsylvania Constitution?

Appellant’s Brief at 4.

      In reviewing the denial of a suppression motion,

      our role is to determine whether the record supports the
      suppression court’s factual findings and the legitimacy of the
      inferences and legal conclusions drawn from those findings. In
      making this determination, we may consider only the evidence of
      the prosecution’s witnesses and so much of the defense as, fairly
      read in the context of the record as a whole, remains
      uncontradicted. When the evidence supports the factual findings
      of the suppression court, we may reverse only if there is an error
      in the legal conclusions drawn from those factual findings. As a
      reviewing court, we are therefore not bound by the legal
      conclusions of the suppression court and must reverse that
      court’s determination if the conclusions are in error or the law is
      misapplied.



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Commonwealth v. Page, 59 A.3d 1118, 1131 (Pa. Super. 2013) (citation

and brackets omitted).

        In the instant case, Appellant avers that the trial court erred in finding

that Officer Koons had reasonable suspicion sufficient to justify (i) subjecting

Appellant to an investigatory detention, and (ii) subsequently patting him

down for weapons. These events, often referred to collectively as a “Terry

stop and frisk,” are distinct legal constructs.      Separate tests govern the

“stop” and the “frisk,” and an officer who is justified in briefly detaining a

suspect is not necessarily justified in patting him down.             See, e.g.,

Commonwealth v. Preacher, 827 A.2d 1235, 1239-40 (Pa. Super. 2003)

(finding that, although officers were justified in conducting an investigatory

stop of the appellant, they lacked the reasonable suspicion required to frisk

him).

        Our Supreme Court has summarized the distinct inquiries as follows:

        It is well established 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-


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      down of the suspect's outer garments for weapons. In order to
      justify a frisk under Terry, 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).

      Reasonable suspicion, a requirement of both the “stop” and the “frisk,”

is a less stringent standard than probable cause.           Commonwealth v.

Foglia, 979 A.2d 357, 360 (Pa. Super. 2009).             “In order to determine

whether   the   police   had   reasonable   suspicion,    the   totality   of   the

circumstances—the whole picture—must be considered.”            Commonwealth

v. Simmons, 17 A.3d 399, 403 (Pa. Super. 2011) (citation omitted). Given

the totality of the circumstances, “the detaining officers must have a

particularized and objective basis for suspecting the particular person[.]”

Id. (quotation omitted).       “[W]e must give due weight to the specific

reasonable inferences the police officer is entitled to draw from the facts in

light of his experience.” Commonwealth v. Kemp, 961 A.2d 1247, 1255

(Pa. Super. 2008) (en banc) (citation and quotation marks omitted).

      Appellant first asserts that officers lacked reasonable suspicion that

Appellant was engaged in criminal activity as required to subject Appellant to

a stop. Appellant’s Brief at 12-14. Although the trial court did not make a

finding regarding when, exactly, Appellant became the subject of an


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investigatory stop, we believe the issue is irrelevant. Upon his first contact

with Appellant, Officer Koons had sufficient reasonable suspicion to believe

Appellant was engaged in criminal activity.

      As Officer Koons testified, he observed Appellant and Subject A sitting

in a darkened restaurant during what Officer Koons knew were the normal

business hours of the restaurant. The restaurant was in a high crime area

that had seen a string of recent armed robberies of bodegas and other

businesses.    When officers entered the restaurant, the owner remained

silent and gave officers a blank stare.   When asked about Appellant and

Subject A, the owner stated that they were not customers.        When asked

what he was doing in the restaurant, Appellant said he was waiting for

Subject B to finish “using” a bathroom clearly marked with an “out of order”

sign. Under the totality of those circumstances, we find no error in the trial

court’s conclusion that Officer Koons had the requisite reasonable suspicion

to conduct an investigatory stop of Appellant.

      Appellant next avers that Officer Koons lacked reasonable suspicion to

conduct a frisk of Appellant for weapons, asserting that Officer Koons

impermissibly relied on the theory that “guns follow drugs” to justify his

belief that Appellant was armed and dangerous. Appellant is correct that our

Supreme Court has stated that, “as a general policy consideration, taking

judicial notice that all drug dealers may be armed as in and of itself a

sufficient justification for a weapons frisk clashes with the totality of the



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circumstances standard, as well as the premise that the concern for the

safety of the officer must arise from the facts and circumstances of the

particular case.”      Commonwealth v. Grahame, 7 A.3d 810, 816 (Pa.

2010) (citation and quotation omitted). Appellant is incorrect, however, in

his characterization of the facts adduced at the hearing on his Motion to

Suppress, and is not entitled to relief on his claim under the facts as they

exist in the record.

      At the hearing on Appellant’s Motion to Suppress, Officer Koons

described his decision to frisk Appellant as follows:

      Well, now with the lights out, you know, the aforementioned
      stuff about my thoughts about potential robberies and that, the
      fact that his - - he’s putting himself with the guy that’s in the
      bathroom now that has what I know now to be a large quantity
      of drugs, and through my training and experience, I know that
      guns sometimes go with drugs, so my concern was that there
      could be either more contraband there or possibly a weapon.

N.T., 9/3/15, at 20-21.

         It is clear from the record that, while Officer Koons did rely in part

on his experience that “guns follow drugs,” his reasonable suspicion was

properly based upon the totality of the circumstances and based upon his

observations of Appellant individually.        Among other relevant facts,

discussed supra, Officer Koons knew that Madina’s was located in a high

crime area beset with armed robberies. Often, these robberies occurred in

the evening hours and targeted businesses.              Officer Koons observed

Appellant waiting in a darkened restaurant with an explanation he believed



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to be implausible given the sign on the bathroom.        He also personally

observed the owner behaving oddly, and saw Appellant’s hands shake as he

wrote down his name and date of birth.         Under the totality of those

circumstances, we find no error in the trial court’s conclusion that Officer

Koons had the requisite reasonable suspicion to conduct a pat-down of

Appellant.

     Based on all of the foregoing, we conclude that the trial court properly

denied Appellant’s Motion to Suppress.

     Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/25/2017




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