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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                     v.                    :
                                           :
IRVIN GOULBOURNE,                          :             No. 644 EDA 2015
                                           :
                           Appellant       :


           Appeal from the Judgment of Sentence, January 28, 2015,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0001843-2013


BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED MARCH 15, 2016

        Irvin Goulbourne appeals from the judgment of sentence entered

January 28, 2015, following his conviction in a waiver trial of possession of a

controlled    substance,    possession   with   intent   to   deliver   a   controlled

substance, and possession of paraphernalia.1 We affirm.

        The suppression court provided the following:

                    On August 3, 2012, approximately 3:48 p.m.,
              Police Officer Shaun McPhillips testified that while on
              duty with his partner, Officer Wissman, their tour of
              duty took them to the area of the 1900 block of
              Sansom Street in response to a radio flash about a
              male who had committed a burglary earlier in the
              day. The flash the officers had received was a black
              male with an orange shirt and orange sneakers and
              also put over the radio was that two firearms were
              taken. Approximately one hour and forty minutes
              after the flash came out for the burglary, Officer

1
    35 Pa.C.S.A. § 780-113(a)(16), (30) & (32), respectively.
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            McPhillips testified that they observed the Appellant
            walking westbound on Sansom Street wearing an
            orange shirt, khaki shorts, and orange sneakers.
            The officers then observed the Appellant enter a bar,
            O’Shea’s Tavern, at 1907 Sansom Street.          The
            officers went into the bar and approached the
            Appellant and identified themselves as police
            officers. They then asked the Appellant to exit the
            bar and the Appellant complied. Once outside the
            bar, the officers told Appellant that he had been
            stopped for meeting a description of a prior burglary
            and they asked the Appellant for his identification.
            Appellant claimed he did not have any identification
            so the officers then asked for his name and date of
            birth for an NCIC/PCIC check. Appellant provided
            the name of Reginald Goldberg but no results came
            back for that name.

                   Officer McPhillips testified that at that point
            based on the fact that Defendant provided a name
            that was not coming up on the system that he met
            the general flash of the burglary, the officers decided
            to bring the Appellant to the 9th District for further
            investigation. Officer McPhillips testified that it was
            his intent to get fingerprints of the Appellant to
            verify his identity and determine if he had any
            outstanding warrants.          For safety purposes,
            Officer McPhillips patted Appellant down before
            placing him in the marked patrol vehicle. When
            Officer McPhillips conducted the pat down, he felt a
            plastic bag of “soft powder” that was knotted, which
            Officer McPhillips testified he knew based on his
            experience to immediately be narcotics.            Upon
            arrest, the officers recovered one clear bag with
            alleged cocaine, one Marlboro cigarette box with
            thirty four clear bags of alleged cocaine, one green
            mint tin canister containing ten clear bags of alleged
            cocaine, and one brown marijuana grinder, as well as
            $1,010.00 in currency.

Trial court opinion, 6/4/15 at 2-3 (citations omitted).

      Appellant raises the following issues for our review:



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            A.     Did not the lower court err in denying
                   Appellant’s motion to suppress evidence where
                   Appellant was subjected to an unconstitutional
                   investigatory detention outside the bar without
                   reasonable suspicion, the detention was
                   continued without either reasonable suspicion
                   or probable cause to believe that Appellant had
                   committed the crime of giving a false name,
                   and he was frisked without objectively
                   reasonable suspicion that he was armed and
                   dangerous[?]

            B.     Even if there was a lawful basis to conduct a
                   Terry frisk, did not the lower court err in
                   denying Appellant’s motion to suppress
                   evidence where there was insufficient evidence
                   under the plain feel rule to permit the officer to
                   seize a small soft bag from Appellant’s pants
                   pocket?

            C.     Did not the lower court err in denying
                   Appellant’s motion to suppress evidence where
                   law enforcement officers’ actions in taking
                   Appellant    into   the   police   station for
                   fingerprinting and identification check was a
                   full blown arrest, which was not supported by
                   probable cause, and the resulting search and
                   seizure from his person was not incident to a
                   lawful arrest?

Appellant’s brief at 3.

      Our standard of review for challenges to the denial of a suppression

motion is as follows:

            Our 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


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            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, we are
            bound by these 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 conclusions of law of the courts
            below are subject to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),

quoting Commonwealth v. Hoppert, 39 A.3d 358, 361-362 (Pa.Super.

2012) (citations omitted).

      Here, appellant complains that the suppression court erred in denying

appellant’s suppression motion because the investigatory detention and

subsequent frisk were not supported by reasonable suspicion, there was an

insufficient basis under the plain feel rule for the officer to seize a plastic bag

containing narcotics from appellant’s person, and the police lacked probable

cause to take appellant to the police station for fingerprinting and an

identification check. These issues constitute purely factual issues on appeal.

As noted in McAdoo, supra, this court is bound by the suppression court’s

factual findings so long as the record supports those findings.

      Our careful review of the record reveals that Officer McPhillips’

testimony, found credible by the suppression court, provides ample support

for the suppression court’s factual determinations. Specifically, appellant’s



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clothing and proximity to the burglary location justified the officer’s

encounter in the bar.      This coupled with appellant’s failure to provide

identification outside of the bar supported the reasonable suspicion

necessary for further investigation and detention. The information regarding

the theft of guns in the robbery justified the Terry frisk, and the experience

of Officer McPhillips allowed him to immediately identify contraband on plain

feel.    Following the discovery of the contraband, nothing further was

required to support arresting appellant, and he was properly taken into

custody for identification and fingerprinting.     We are bound to those

determinations, and, therefore, find that the suppression court did not err in

denying appellant’s motion to suppress evidence.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/15/2016




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