J-A18006-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BENJAMIN HAROLD RANDOLPH                   :
                                               :
                       Appellant               :   No. 865 WDA 2019

          Appeal from the Judgment of Sentence Entered May 9, 2019
      In the Court of Common Pleas of Fayette County Criminal Division at
                        No(s): CP-26-CR-0001469-2017


BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED AUGUST 24, 2020

        Appellant, Benjamin Harold Randolph, appeals from the judgment of

sentence of 72 to 144 months’ incarceration, imposed after he was convicted,

following a non-jury trial, of possession with intent to deliver a controlled

substance (PWID), 35 P.S. § 780-113(a)(30).             Herein, Appellant solely

challenges the trial court’s denial of his motion to suppress the evidence in

this case. After careful review, we affirm.

        Briefly, Appellant was arrested after he fled from two Pennsylvania State

Troopers attempting to detain him, and discarded a bag later determined to

contain 103 grams of cocaine. Prior to trial, Appellant filed an omnibus pretrial

motion contending, inter alia, that the troopers lacked reasonable suspicion to

conduct the initial Terry1 stop and frisk that instigated Appellant’s flight. A
____________________________________________


1   Terry v. Ohio, 392 U.S. 1 (1968).
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suppression hearing was conducted on March 9, 2018. There, Pennsylvania

State Trooper Adam Kezmarsky testified that at approximately 10:00 p.m. on

June 5, 2017, he and Trooper Clarence Hughes were patrolling on Dunlap

Street in Uniontown City. N.T. Hearing, 3/9/18, at 4, 5, 6. Trooper Kezmarsky

testified that that area is “a hot spot,” which means it is “a very high crime

area. A lot of violent crimes take place there. There’s multiple shootings that

take place there, as well as a lot of drug transactions in that area.” Id. at 5.

The trooper explained that as he and Trooper Hughes patrolled that location

in their marked police cruiser with the windows down, they observed “three

males standing on the sidewalk.” Id. at 6. As the police car passed the men,

Trooper Kezmarsky smelled “a strong odor of marijuana coming from the area

where they were standing.” Id. Trooper Hughes also smelled marijuana. Id.

at 53.

         The troopers stopped their vehicle and began to approach the three

men. Id. at 6-7. At that point, Appellant “started to walk away from the

other two individuals. He [was] distancing himself from them[,] at which time

[Trooper Kezmarsky] told him to stop.” Id. at 10. Appellant looked over his

shoulder and “made eye contact” with the trooper, but continued to walk

away. Id. As the trooper got closer to Appellant, “[h]e stopped with his body

bladed towards [the trooper]. The right side [of Appellant’s body] was facing

away and as [the trooper] was trying to move with [Appellant], his right side

continued to move away from [the trooper, as if Appellant was] distancing

that side of his body [from the trooper].” Id. at 11. Eventually, Appellant

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stopped moving, and Trooper Kezmarksy began a pat-down of Appellant’s

body for his and Appellant’s safety. Id. at 12. When the officer felt along the

“waist[-]band area” on Appellant’s right side, he “felt something hard. … As

soon as [the trooper] touched it[, Appellant] jerked away from [the trooper]

and started running on foot.”     Id.    Trooper Kezmarsky chased Appellant,

telling “him to stop several times.” Id. During the chase, Trooper Kezmarsky

“saw [Appellant] throw a clear … bag with a white substance in it….”          Id.

Eventually, the trooper caught and arrested Appellant, after which he

retrieved the bag Appellant had thrown. Id. at 13, 14. The contents of the

bag were later determined to be approximately 103 grams of cocaine. Id. at

15.

      At the conclusion of the suppression hearing, the trial court entered an

order denying Appellant’s motion to suppress. His case proceeded to a non-

jury trial and he was ultimately convicted of PWID. Appellant was sentenced

as set forth supra.

      Appellant thereafter filed a timely, pro se notice of appeal. His privately-

retained trial counsel filed a petition to withdraw, which the court granted.

The court then appointed new appellate counsel, but that attorney failed to

comply with the court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. As such, the trial court deemed Appellant’s

claims waived in its Rule 1925(a) opinion.       Additionally, the brief filed by

Appellant’s attorney set forth only conclusory statements that were

inadequate for this Court to meaningfully review his issues. Accordingly, this

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Court remanded for the trial court to appoint new counsel for Appellant, who

would then file a Rule 1925(b) statement on Appellant’s behalf.             See

Commonwealth v. Randolph, No. 865 WDA 2019, unpublished judgment

order at *3 (Pa. Super. filed 12/17/19).

      On remand, the court appointed present counsel, who filed a Rule

1925(b) statement. The court then filed a Rule 1925(a) opinion on February

10, 2020, and Appellant thereafter filed a new brief stating one issue for our

review: “Whether the trial court erred by denying Appellant’s omnibus pre-

trial motion in which Appellant sought to suppress the evidence in this case,

when the arresting officer, Trooper … Kezmarsky, lacked the reasonable

suspicion necessary for an investigatory detention and lacked the reasonable

belief that Appellant may be armed and dangerous necessary for a frisk?”

Appellant’s Brief at 3.

      To begin, we note:
      [An appellate court’s] standard of review in addressing a
      challenge to the denial of a suppression motion is limited to
      determining whether the suppression court’s factual findings are
      supported by the record and whether the legal conclusions drawn
      from those facts are correct.      Because the Commonwealth
      prevailed before the suppression court, we may consider only the
      evidence of the Commonwealth and so much of the evidence for
      the defense as remains uncontradicted when read in the context
      of the record as a whole. Where the suppression court’s factual
      findings are supported by the record, [the appellate court is]
      bound by [those] findings and may reverse only if the court’s legal
      conclusions are erroneous.       Where ... the appeal of the
      determination of the suppression court turns on allegations of
      legal error, the suppression court’s legal conclusions are not
      binding on an appellate court, whose duty it is to determine if the
      suppression court properly applied the law to the facts. Thus, the


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      conclusions of law of the courts below are subject to plenary
      review.

Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa. Super. 2015) (citation

omitted).

      In this case, Appellant contends that he was subject to a Terry stop and

frisk that were not supported by reasonable suspicion. He stresses that the

troopers never saw him or his two companions smoking marijuana. Thus, he

reasons that, “[w]ithout a source for the marijuana odor, a reasonable person

could only conclude that at least one of these males had recently smoked

marijuana. Such a conclusion was at most a mere hunch, and does not lead

to a rational inference that criminal activity was afoot.” Appellant’s Brief at

13. Appellant also argues that his walking away from the troopers as they

approached does not amount to reasonable suspicion that a crime is being, or

has been, committed.     Accordingly, he contends that his Terry stop was

unlawful.

      Additionally, Appellant contends that his Terry frisk was not supported

by reasonable suspicion that he could be armed. According to Appellant, the

troopers stopped to investigate the crime of possession of marijuana, which

he claims “does not typically involve violence or the use of a weapon,

especially since marijuana is legal in many states.” Id. He also claims that

Trooper Kezmarsky gave no reason to suspect he was armed and dangerous,

other than his presence in a high-crime area. Id. Thus, Appellant concludes

that his Terry stop and frisk were both illegal.

      We do not agree.

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      In order to conduct a legitimate Terry stop and frisk, an officer
      must have reasonable suspicion supporting two beliefs: first, that
      there is “criminal activity afoot,” and second, that the individual
      subject to the investigative stop is “armed and presently
      dangerous.” Commonwealth v. Guess, 53 A.3d 895, 901 (Pa.
      Super. 2012) (internal citations omitted). Our Supreme Court
      stated it another way in ... Hicks...:

         First, the investigatory stop must be lawful.          That
         requirement is met in an on-the-street encounter, Terry
         determined, when the police officer reasonably suspects
         that the person apprehended is committing or has
         committed a criminal offense. Second, to proceed from a
         stop to a frisk, the police officer must reasonably suspect
         that the person stopped is armed and dangerous.

Hicks, 208 A.3d at 921. “[T]he purpose of this limited search is … to allow

the officer to pursue his investigation without fear of violence.” Guess, 53

A.3d at 901 (quoting Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa.

Super. 2011)).

      Here, we conclude that the investigatory stop began at the moment

Trooper Kezmarsky first directed Appellant to stop as he began walking away

from the approaching troopers, as no reasonable person in Appellant’s position

would have felt free to leave upon that command. See Hicks, 208 A.3d at

926–27 (“For purposes of the Fourth Amendment, a person is ‘seized’ when,

‘in view of all the circumstances surrounding the incident, a reasonable person

would have believed that he was not free to leave.’ When a police officer

‘accosts an individual and restrains his freedom to walk away, he has “seized”

that person.’”) (citations omitted). Indeed, Appellant was not free to leave,

as he attempted to keep walking and was pursued by the trooper. Thus, we

must discern if Trooper Kezmarsky had reasonable suspicion that Appellant


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had committed, or was committing, an offense at the point he directed

Appellant to stop.

      At that time, Trooper Kezmarsky knew that Appellant was located in a

high crime area where there were often violent crimes, guns, and drugs.

Additionally, there was a strong odor of marijuana emanating from the area

where Appellant and his companions were standing, and Appellant began to

walk away as the troopers approached. In In re J.G., 860 A.2d 185 (Pa.

Super. 2004), we held that an individual’s “presence in a high crime area,

coupled with his decision to walk away from approaching police officers, does

not, absent more, provide reasonable suspicion of criminal activity to justify

an investigatory stop and search.” Id. at 189 (emphasis added). Here, there

was more — Trooper Kezmarsky’s smelling marijuana coming from the area

where Appellant and his cohorts were standing.     The fact that the trooper

could not see the source of that odor did not make it unreasonable for him to

stop to further investigate.   Thus, we conclude that the fact of Trooper

Kezmarsky’s smelling marijuana, coupled with the high crime location and

Appellant’s walking away as the troopers approached, provided Trooper

Kezmarsky with reasonable suspicion to conduct the Terry stop of Appellant.

See In Interest of A.A., 195 A.3d 896, 904 (Pa. 2018) (finding that “the

odor of marijuana alone, particularly in a moving vehicle, is sufficient to

support at least reasonable suspicion, if not the more stringent requirement

of probable cause”) (citations omitted).




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      We additionally conclude that Trooper Kezmarsky reasonably suspected

that Appellant could be armed and dangerous, thereby justifying the Terry

frisk of Appellant.   Contrary to Appellant’s argument on appeal, Trooper

Kezmarsky suspected he might be armed not only because Appellant was in a

high crime area, but also because Appellant continued to walk away from the

trooper after repeated commands to stop, and then ‘bladed’ his body to keep

his right side away from the trooper. The totality of these facts were sufficient

to establish Trooper Kezmarsky’s reasonable suspicion to conduct a Terry

frisk of Appellant’s person. Therefore, the trial court did not err in denying

Appellant’s motion to suppress the evidence in this case.

      Judgment of sentence affirmed.

      Judge Dubow joins this memorandum.

      Judge Nichols concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2020




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