J-A08022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: J.S., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: COMMONWEALTH OF                 :
    PENNSYLVANIA                               :
                                               :
                                               :
                                               :   No. 1996 EDA 2016

                 Appeal from the Order Entered June 10, 2016
      In the Court of Common Pleas of Lehigh County Criminal Division at
                        No(s): CP-39-JV-0000216-2016


BEFORE:      PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                                  FILED MAY 04, 2018

       The Commonwealth of Pennsylvania (Commonwealth) appeals from the

order,1 entered in the Court of Common Pleas of Lehigh County, granting

Appellee J.S.’s motion to suppress physical evidence and statements obtained

as a result of an allegedly unlawful search and seizure. After careful review,

we affirm.

       The suppression judge made the following findings of fact in the matter:2

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1  The Commonwealth has certified that the order will terminate or
substantially handicap the prosecution. See Commonwealth’s Brief, at 8; see
also Pa.R.A.P. 311(d).

2 On September 26, 2017, this Court remanded the instant matter for
preparation of a Pa.R.Crim.P. 581(I) record statement of findings of fact and
conclusions of law from the suppression judge. See Commonwealth v. J.S.,
No. 1996 EDA 2016 (Pa. Super. filed Sept. 26, 2017). The suppression judge
complied with our directive and prepared a Pa.R.A.P. 1925(a) opinion detailing


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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             On March 21, 2016, Officer Jacoby Glenny, a City of
              Allentown police officer, was assigned the nightshift of the
              Fourth Platoon.

             At approximately 1:40 a.m., Officer Glenny pulled up to the
              traffic light at the intersection of Tenth and Turner Streets
              and observed a white Chevy Malibu in the parking lane at
              the corner of the intersection.

             While watching the vehicle, Officer Glenny further observed
              an individual drop a foil wrapper out of the driver-side car
              window onto the street.

             The vehicle had a dark-window tint, but Officer Glenny could
              see a person in the driver’s seat of the vehicle.

             Officer Glenny continued driving as he ran the vehicle’s
              registration. The registration did not match the white sedan.
              Officer Glenny drove around the block and parked on Tenth
              Street.

             Officer Glenny had mistakenly run the wrong registration.
              He ran the correct registration while parked on Tenth Street.
              Again, the registration did not match the vehicle.

             Officer Glenny turned his vehicle onto Turner Street and
              observed three males walking toward the white sedan.
              When the individuals saw the marked police vehicle and/or
              the uniformed officer, they turned around and began
              walking [in] the opposite direction.

             Officer Glenny notified the communications center that he
              was going to stop and talk to three males in the 900 block
              of Turner Street.

             Two additional officers responded that they were en route.
              The males began to walk through the park located in the
              900 block of Turner Street.




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his findings of fact and conclusions of law in the matter.      See Trial Court
Opinion, 1/30/18.


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          The park was closed at that hour. Officer Glenny called to
           the three males; he told them to stop and to come toward
           him so he could talk to them.

          The males continued to walk south into the park. Officer
           Glenny followed them.

          The park was dark with no street lights.

          The individuals each separately complied with the officer’s
           requests for them to stop. J.S. was the last person to stop
           and walk toward the officer.

          Officer Glenny spoke to the three males for approximately
           one to two minutes.

          J.S. was asked and he confirmed that he was the driver of
           the white sedan, it was his vehicle, and that he had recently
           purchased it.

          J.S. was not asked to provide his name, date of birth,
           address, or to show identification.

          J.S. approached Officer Glenny with his hands in his
           pockets. Officer Glenny asked J.S. to remove his hands
           from his pockets; J.S. complied.           However, J.S.
           subsequently put his hands back in his pockets while talking
           to Officer Glenny. Officer Glenny repeated his request for
           J.S. to remove his hands from his pockets; J.S. again
           complied.

          J.S. was cooperative[,] but standoffish with Officer Glenny.

          J.S. stood approximately five feet away from Officer Glenny.

          After a few minutes of questioning, Officer Glenny asked J.S.
           to come closer. Instead, J.S. took a step away from Officer
           Glenny. The officer reached out to grab J.S.’s arm, but J.S.
           ducked away from Officer Glenny, put his hands down at his
           waist, and ran west through the park.

          J.S. ran for approximately 100 feet. He was chased by
           Officer Glenny who deployed his Taser. J .S. was hit by the
           Taser and collapsed face-first in the middle of Hazel Street.
           He was bleeding from his face, nose, and mouth.

          J.S. was put in handcuffs.


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                A firearm was recovered from J.S.’s waistband, along with
                 five live rounds and an extended magazine. Nine bags of
                 marijuana were found in his shorts.

Trial Court Opinion, 1/30/18, at 1-3 (citations to notes of testimony omitted).

        On April 8, 2016, the Commonwealth filed a juvenile petition charging

J.S. with firearms not to be carried without a license,3 possession of a firearm

with altered manufacturer’s number,4 possession of a small amount of

marijuana,5 and disorderly conduct.6 On May 2, 2016, J.S. filed a pre-trial

motion to suppress physical evidence and/or statements. After a hearing, the

court granted J.S.’s motion to suppress. This timely appeal follows.

        On appeal, the Commonwealth presents the following issue for our

review: “Did the trial court err in concluding that police unlawfully searched

and seized [J.S.], where [J.S.] was stopped based on probable cause that he

had violated various ordinances, the Crimes Code, and the Vehicle Code, and

the     police     gathered    reasonable      suspicion   [J.S.]   was   armed[?]”

Commonwealth’s Brief, at 4.

        An appellate court's standard of review in suppression matters is well-

settled:

        When the Commonwealth appeals from a suppression order, an
        appellate court follows a clearly defined standard of review and
        considers only the evidence from the defendant’s witnesses
____________________________________________


3   18 Pa.C.S. § 6106(a)(1).

4   18 Pa.C.S. § 6110.2(a).

5   35 P.S. § 780-113(a)(31).

6   18 Pa.C.S. § 5503(a)(4).

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     together with the evidence of the prosecution that, when read in
     the context of the entire record, remains uncontradicted. The
     suppression court's findings of fact bind an appellate court if the
     record supports those findings. The suppression court’s
     conclusions of law, however, are not binding on an appellate court,
     whose duty is to determine if the suppression court properly
     applied the law to the facts.

Commonwealth v. Carter, 105 A.3d 765, 768 (Pa. Super 2014) (citations

omitted).

     Instantly, the Commonwealth asserts that the police had probable cause

to stop J.S. where he had “violated various ordinances, the Crimes Code and

the Vehicle Code, and the[y] had gathered reasonable suspicion that [J.S.]

was armed.” Commonwealth’s Brief, at 4.

     Under Pennsylvania law, there are three levels of encounters that aid

courts in conducting search and seizure analyses.

     The first of these is a “mere encounter” (or request for
     information) which need not be supported by any level of
     suspicion, but carries no official compulsion to stop or respond.
     The second, an “investigative detention” must be supported by
     reasonable suspicion; it subjects a suspect to a stop and period of
     detention, but does not involve such coercive conditions as to
     constitute the functional equivalent of arrest. Finally, an arrest or
     “custodial detention” must be supported by probable cause.

                                 *    *    *

     When an officer, by means of physical force or show of authority,
     has restrained the liberty of an individual, a “seizure” has
     occurred. Any curtailment of a person’s liberty by the police must
     be supported at least by a reasonable and articulable suspicion
     that the person seized is engaged in criminal activity.

     Our Supreme Court has adopted an objective test for determining
     whether a police officer has restrained the liberty of a citizen such
     that a seizure occurs. The pivotal inquiry in making this
     determination is whether a reasonable person innocent of any

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      crime, would have thought he . . . [wa]s being restrained had he
      . . . been in the defendant’s shoes. A Court must examine all
      surrounding circumstances evidencing a show of authority or
      exercise of force, including the demeanor of the police officer, the
      manner of expression used by the officer in addressing the citizen,
      and the content of the interrogatories or statements. If a
      reasonable person would not feel free to terminate the encounter
      with police and leave the scene, then a seizure of that person has
      occurred.

Commonwealth v. Chambers, 55 A.3d 1208, 1214-15 (Pa. Super. 2012)

(citations and headnote omitted).

      Instantly, Officer Glenny was driving in a marked police cruiser, at 1:30

a.m., in an area known for drug activity. He observed an occupant of a parked

vehicle toss a foil wrapper out onto the street; he testified that the cigars

inside such wrappers are used to smoke marijuana. Id. at 9. The officer ran

the car’s registration in the PennDot database; the state records indicated that

the car associated with the registration was not the same as the parked

vehicle.   The car, however, was not designated as stolen. Id. at 39. Officer

Glenny then observed three individuals walking toward the vehicle.           When

they noticed the officer, they turned around and walked into a nearby, closed

park. At that point, Officer Glenny effectuated an encounter, asked the three

individuals to stop, and initiated a conversation with them. J.S. acknowledged

that he owned the parked car and that he had recently purchased it. Id. at

8. Although the registration did not match the car on the system, Officer

Glenny never asked J.S. for any identification, proof of vehicle ownership, or

insurance or registration information. Id. at 32, 40.




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      During his interaction with Officer Glenny, J.S. kept his hands in his

pockets. Officer Glenny asked J.S. to remove his hand from his pockets; he

complied. However, J.S. put his hands back in his pockets again; when asked

to remove them a second time, J.S. again complied. Minutes later, back-up

officers arrived on the scene and saw Officer Glenny talking to the three males.

Just as Officer Glenny asked J.S. to “come here,” J.S. took a step back away

from him. Id. at 39. At that point, the officer “reached out to grab ahold of

[J.S.’s] arm;” J.S. immediately took his hands towards his waist, ducked away

from Officer Glenny, and turned and ran. Id. J.S. ran for approximately 100

feet, chased by Officer Glenny, and was hit with the officer’s Taser. J .S., who

was now bleeding from his face, nose, and mouth, was put in handcuffs. A

search incident to his arrest uncovered a firearm, live rounds, an extended

magazine, and nine bags of marijuana on J.S.’s person.

      Based on the evidence, Officer Glenny was effectuating a mere

encounter when he approached J.S. and his two compatriots as they were

walking toward the car. He had neither reasonable suspicion nor probable

cause at that point. Chambers, supra. However, when J.S. walked away

from the officer and entered a park after closing, potentially violating a city

ordinance prohibiting persons from being in a closed park, the officer was

justified in detaining J.S. for questioning. Cf. See In the Interest of J.G.,

860 A.2d 185 (Pa. Super. 2004) (officers do not have reasonable suspicion of

criminal activity “where the only evidence of criminal wrongdoing was [a

juvenile]’s presence in a high[-]crime area combined with his decision to ‘walk

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away’ from the police officers upon seeing their approach.”); Commonwealth

v. DeWitt, 608 A.2d 1030, 1034 (Pa. 2000) (flight, in and of itself, does not

constitute reasonable suspicion of criminal conduct to justify stop). Moreover,

once J.S. admitted he owned the car, Officer Glenny had further reasonable

suspicion to stop the three men and investigate further.

      Our Court has held that:

      [t]he allowable scope of an investigative detention by police differs
      with every set of facts. See Commonwealth v. Dangle, 700
      A.2d 538, 540 (Pa. Super. 1997)[.] This Court has further stated
      that the scope of an investigative detention “[t]ypically means
      that the officer may ask the detainee a moderate number of
      questions to determine his identity and to try to obtain information
      confirming     or    dispelling     the    officer's    suspicions.”
      Commonwealth v. Douglass, [] 539 A.2d 412, 420 (Pa. Super.
      1988)[.] However, the United States Supreme Court defined the
      permissible scope of an investigative detention when it stated:

         An investigative detention must be temporary and last no
         longer than is necessary to effectuate the purpose of the
         stop. Similarly, the investigative methods employed should
         be the least intrusive means reasonably available to verify
         or dispel the officer's suspicion in a short period of time. It
         is the State's burden to demonstrate that the seizure it
         seeks to justify on the basis of a reasonable suspicion was
         sufficiently limited in scope and duration to satisfy the
         conditions of an investigative seizure.

Commonwealth v. Stevenson, 832 A.2d 1123, 1130 (Pa. Super. 2003),

citing Florida v. Royer, 460 U.S. 491, 500 (1983) (internal citations omitted)

(emphasis added).

      While Officer Glenny initially had reasonable suspicion to stop and

investigate the situation, after talking with J.S. for a few minutes, he failed to

obtain further information to confirm or dispel his suspicions regarding the


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park violation and also never asked J.S. for any identification, proof of vehicle

ownership, or insurance or registration information on the white Chevy Malibu.

Moreover, Officer Glenny did not uncover any additional facts that would

reasonably lead him to believe that a crime was being or had been committed.

Finally, the officer failed to issue any city ordinance citation, or criminal code

or vehicle code violations during the duration of the stop.              Under these

circumstances, the Commonwealth did not demonstrate that the detention

“lasted no longer than what was necessary to effectuate the purpose of the

stop.” Stevenson, supra.

        The Commonwealth contends that “[b]ased on J.S.’s mannerisms,

repeated refusal to respond to the officer’s requests and furtiveness, Officer

Glenny acted reasonably in reaching to stop J.S.’s hands from returning to his

waistband     area    and    pockets,    and     then   chasing   him   as   he   fled.”

Commonwealth’s Brief, at 18. Specifically, the Commonwealth claims that at

the point Officer Glenny reached for J.S.’s arm, he was, in effect, conducting

a Terry7 frisk, a limited search for weapons believing that J.S. may be armed

or that his own safety was in jeopardy. We disagree.

        Under Terry, if the police reasonably believe that a suspect legally

detained may be armed and dangerous, then they are permitted to conduct a

limited pat-down search of the suspect’s outer clothing for weapons to ensure

their safety.    In the Interest of J.V., 762 A.2d 376 (Pa. Super. 2000).

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7   Terry v. Ohio, 392 U.S. 1 (1968).

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However, in order to assess whether an officer has a reasonable belief,

“consideration is given to specific reasonable inferences which the officer can

draw from the facts in light of his experience.” Id. at 380. No consideration

is given, however, to an officer’s unparticularized suspicions or hunches. Id.

      Instantly, Officer Glenny never testified at the suppression hearing that

he believed J.S. was potentially armed and dangerous or that he feared for

his safety during the encounter. In fact, the officer testified that J.G. was

cooperative, compliant, and did not display signs of nervousness, intoxication

or being under the influence of drugs. N.T. Suppression Hearing, 5/4/16, at

9-12. Accordingly, we do not find Officer Glenny had the right to conduct a

frisk or pat-down of J.S. where he did not have a reasonable belief that J.S.

might be armed and dangerous. Terry, supra.

      Officer Glenny testified that he reached for J.S.’s arm because J.S.: kept

putting his hands in and out of his pockets after being requested to remove

them; seemed “standoffish;” and took a step back from the officer when he

asked him to “come here.” Id. at 11. At the point Officer Glenny reached out

to grab J.S.’s arm, J.S. was, in effect, the subject of a custodial interrogation,

which must be supported by probable cause.            See Commonwealth v.

Ingram, 814 A.2d 264, 270 (Pa. Super. 2002), quoting Commonwealth v.

Gonzalez, 546 A.2d 26, 29 (Pa. 1988), (the “test for custodial interrogation

is ‘whether the suspect . . . reasonably believes his freedom of action or

movement is being restricted[.]’”). Officer Glenny testified that right before

he reached out to grab J.S.’s arm, he believed J.S. had committed only

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summary offenses (littering, registration problem and walking through a

closed park). Id. at 40. Under such circumstances, we do not find that Officer

Glenny had probable cause.

      In addition, when Officer Glenny struck J.S. with the Taser as he ran

from him, he effectuated the functional equivalent of an arrest. Chambers,

55 A.3d at 1217; Ingram, supra. However, J.S.’s attempt to abscond, by

itself, did not give rise to probable cause.   DeWitt, supra.     Under such

circumstances, the unlawful arrest tainted any search that followed.

Therefore, the trial court properly granted J.S.’s motion to suppress any and

all statements and physical evidence recovered as a result of Officer Glenny’s

stop of J.S.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/18




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