J-S67043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    CHARLES STOVER                             :
                                               :
                      Appellant                :       No. 3774 EDA 2016

           Appeal from the Judgment of Sentence November 18, 2016
              In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011253-2015


BEFORE:      GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                         FILED NOVEMBER 17, 2017

        Appellant, Charles Stover, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

bench trial convictions of persons not to possess firearms, firearms not to be

carried without a license, and carrying firearms on public streets or public

property in Philadelphia.1 We affirm.

        In its opinion, the trial court fully and correctly sets forth the relevant

facts of this case.         Therefore, we have no reason to restate them.

Procedurally, on November 13, 2015, the Commonwealth charged Appellant

with persons not to possess firearms, firearms not to be carried without a

license, and carrying firearms on public streets or public property in
____________________________________________


1   18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S67043-17


Philadelphia.   Appellant filed an omnibus pre-trial motion on January 8,

2016, which asked the court to suppress the firearm seized from Appellant’s

person on October 24, 2015. Appellant’s suppression motion averred Officer

Momme conducted a stop and frisk of Appellant in violation of Appellant’s

constitutional rights. The court held a suppression hearing on June 6, 2016,

and took the matter under advisement.          The court denied Appellant’s

suppression motion on June 15, 2016, and Appellant immediately proceeded

to a stipulated bench trial.   The court ultimately convicted Appellant of all

charged offenses.

      On November 18, 2016, the trial court sentenced Appellant to an

aggregate term of three (3) to ten (10) years’ imprisonment, followed by

two (2) years’ probation.      Appellant timely filed a notice of appeal on

December 8, 2016. On December 9, 2016, the court ordered Appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and Appellant timely complied on December 29, 2016.

      Appellant raises the following issue for our review:

         DID NOT THE [TRIAL] COURT ERR BY DENYING
         [APPELLANT’S] MOTION TO SUPPRESS INASMUCH AS THE
         ARRESTING OFFICER EXCEEDED THE SCOPE OF A FRISK
         BY IMMEDIATELY SEIZING A CONCEALED FIREARM THAT
         MANIFESTED ITSELF ONLY AS A BULGE, AND WAS NOT
         READILY APPARENT AS A FIREARM, AND THEREFORE THE
         OFFICER’S CONDUCT WAS OUTSIDE THE AUTHORITY OF A
         PLAIN FEEL SEARCH IN VIOLATION OF [APPELLANT’S]
         RIGHTS UNDER THE UNITED STATES AND PENNSYLVANIA
         CONSTITUTIONS.

(Appellant’s Brief at 9).

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J-S67043-17


      Our standard of review of the denial of a motion to suppress evidence

is as follows:

         [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 [the] 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 [trial court
         are] subject to…plenary review.

Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super. 2012),

appeal denied, 618 Pa. 684, 57 A.3d 68 (2012).

      The Fourth Amendment to the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution guarantee the people shall be

secure in their persons, houses, papers, and possessions from unreasonable

searches and seizures. Commonwealth v. Morrison, 166 A.3d 357, 363-

64 (Pa.Super. 2017). Contacts between the police and citizenry fall within

three general classifications:

         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

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J-S67043-17


         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.

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

appeal denied, 632 Pa. 667, 117 A.3d 295 (2015).

      “To institute an investigative detention, an officer must have at least a

reasonable suspicion that criminal activity is afoot.”    Commonwealth v.

Jones, 874 A.2d 108, 116 (Pa.Super. 2005). Importantly,

         Reasonable suspicion exists only where the officer is able
         to articulate specific observations which, in conjunction
         with    reasonable     inferences  derived    from    those
         observations, led him reasonably to conclude, in light of
         his experience, that criminal activity was afoot and that
         the person he stopped was involved in that activity.
         Therefore, the fundamental inquiry of a reviewing court
         must be an objective one, namely, whether the facts
         available to the officer at the moment of intrusion warrant
         a [person] of reasonable caution in the belief that the
         action taken was appropriate.

Id. (internal citations omitted).   “[T]he question of whether reasonable

suspicion existed at the time of an investigatory detention must be answered

by examining the totality of the circumstances to determine whether there

was a particularized and objective basis for suspecting the individual stopped

of criminal activity.” Commonwealth v. Cottman, 764 A.2d 595, 598-99

(Pa.Super. 2000).   Significantly, close spatial and temporal proximity of a

person to the scene of a crime can heighten a police officer’s reasonable

suspicion that criminality is afoot. Commonwealth v. Jackson, 519 A.2d


                                     -4-
J-S67043-17


427, 439 (Pa.Super. 1986). “In assessing the totality of the circumstances,

a court must give weight to the inferences that a police officer may draw

through training and experience.”          Commonwealth v. Green, 168 A.3d

180, 184 (Pa.Super. 2017).

       Additionally,

          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 is armed and dangerous, the officer may
          conduct a pat-down of the suspect’s outer garments for
          weapons. In order to establish reasonable suspicion [to
          conduct a pat-down], the police officer must articulate
          specific facts from which he could reasonably infer that the
          individual was armed and dangerous.

Commonwealth v. Mack, 953 A.2d 587, 590 (Pa.Super. 2008).                        “The

officer need not be absolutely certain that the individual is armed; the issue

is whether a reasonably prudent [person] in the circumstances would be

warranted in the belief that his safety or the safety of others was in danger.”

Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa.Super. 2010), appeal

denied, 608 Pa. 660, 13 A.3d 474 (2010). The sole justification for the pat-

down    is   the   protection   of   the    police   officers   and   others   nearby.

Commonwealth v. Cartagena, 63 A.3d 294, 299 (Pa.Super. 2013) (en

banc), appeal denied, 620 Pa. 728, 70 A.3d 808 (2013). The pat-down of an

individual must be confined in scope to an intrusion reasonably designed to

discover weapons.        Commonwealth v. Wilson, 927, A2d 279, 285

(Pa.Super. 2007).      “Following a protective pat-down search of a suspect’s


                                           -5-
J-S67043-17


person, a more intrusive search can only be justified where the officer

reasonably believed that what he had felt appeared to be a weapon.” Id.

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Donna M.

Woelpper, we conclude Appellant’s issue on appeal merits no relief. The trial

court opinion comprehensively discusses and properly disposes of the

question presented.   (See Trial Court Opinion, filed May 1, 2017, at 3)

(finding: on October 24, 2015, Officer Momme and Officer O’Connor heard

single gunshot near westbound side of Ogontz Avenue; Officer Momme and

Officer O’Connor subsequently observed Appellant riding bicycle at fast pace

away from area of gunshot; after following Appellant for short period of

time, Officer Momme and Officer O’Connor stopped Appellant to investigate;

during stop, Officer Momme observed bulge in outer portion of Appellant’s

clothing that Officer Momme believed to be firearm, based on his experience

as police officer; due to his belief that Appellant was armed and dangerous,

Officer Momme reached for suspicious bulge and discovered firearm; under

these circumstances, Officer Momme had reasonable suspicion to stop and

frisk Appellant for weapons; further, Officer Momme did not exceed scope of

frisk when he reached for suspicious bulge because location of firearm on

Appellant’s person was apparent to Officer Momme; as such, pat-down of

other areas on Appellant’s person would have served no purpose and

unnecessarily jeopardized safety of Officer Momme and Officer O’Connor;


                                    -6-
J-S67043-17


therefore, police did not violate Appellant’s constitutional rights when they

conducted stop and frisk, and court properly denied Appellant’s suppression

motion). Accordingly, we affirm on the basis on the trial court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2017




                                     -7-
                                                                                                     Circulated 11/09/2017 02:21 PM




                                     IN THE COURT OF COMMON PLEAS
                                FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                         CRIMINAL TRIAL DIVISION


            COMMONWEALTH OF                                                  CP-51-CR-0011253-2015
            PENNSYLVANIA                             FILED

                    v.                         MAY   0 1 2017
                                         Office of Judicial                  SUPERIOR COURT
                                                                  Records
            CHARLES STOVER                 Appeals/Post Trial                3774 EDA 2016

                                                                   OPINION


            WOELPPER, J.                                                     MAY 1,9n17
                                                                                    CP-5I-CR-0011253-21315 Comm. v. Stover, Charles
                                                                                                       Opinion




                                                                                         1111111j   ji!011,1111 IN
       I.      PROCEDURAL & FACTUAL BACKGROUND

            On June 15, 2016, this court convicted Charles Stover ("defendant") of violations of
                                                                                                 the
Uniform Firearms Act) Defendant appeals his judgments of sentence, challenging the
                                                                                   court's
denial of his motion to suppress the firearm recovered from his person.

            On October 24, 2015, at approximately 10:00 P.M., Police Officer Brad Momme and his

partner, Officer O'Connor, were in their marked police car in the area of 7600 Ogontz Avenue in

Philadelphia. The neighborhood was known for frequent gun violence and trafficking of both guns

and drugs. Officer Momme heard a single gunshot coming from the westbound
                                                                          side of Ogontz

Avenue. He saw defendant riding a bicycle at a fast pace from the direction of the gunshot.
                                                                                            The
officers began to follow defendant in their car to investigate, losing sight of him for
                                                                                        approximately
one minute before seeing him again at 77th Street and Ogontz Avenue. N.T. 616/16, 8-9,
                                                                                       13.




 18   Pa.C.S. §§ 6105, 6106, and 6108.

                                                              1
            Officer Momme pulled up alongside defendant and told him to stop. He saw a bulge under

defendant's jacket that he immediately believed to be a firearm based on the shape of the object,

its position against defendant's body, and his eight years as a police officer. As Officer Momme

stepped out of his car, defendant dropped his bicycle and tried to run into a nearby bar. Officer

Momme was able to stop him. As the officer reached for the suspicious bulge, defendant said,

"Yeah, it's a gun." Id. at 10. Officer Momme put defendant in handcuffs and recovered the

firearm, which was hanging by a shoelace around defendant's neck. It was a semiautomatic TEC-

9 .9   millimeter, loaded with 21 live rounds. Id at 10-11, 21.

            Defendant moved to suppress the evidence on the ground that Officer Momme did not have

reasonable suspicion to stop him or probable cause to seize the firearm. Id. at 30. This court

denied defendant's motion on June 15, 2016. That same day, the parties proceeded to a stipulated

waiver trial, whereby they agreed to incorporate all relevant non -hearsay testimony from the

motion hearing. The court found defendant guilty of the above charges and deferred sentencing

for a presentence investigation and a mental health evaluation. N.T. 6/15/16, 8, 11. On November

18, 2016, the court sentenced defendant to an aggregate term         of 3 to 10 years of incarceration,

followed by 2 years of probation. This appeal followed.

       H.      DISCUSSION

            Defendant raises the following allegation of error:

                   Did not the lower court err by denying [defendant's] motion to suppress
                   inasmuch as the arresting officer exceeded the scope of a frisk by
                   immediately seizing a concealed firearm that manifested itself only as a
                   bulge, and was not readily apparent as a firearm, and therefore the officer's
                   conduct was outside the authority of a "plain feel search" in violation of
                   [defendant's] rights under the United States and Pennsylvania
                   Constitutions?

Statement of Errors, ¶     1.




                                                     2
          When an officer has stopped a suspect for investigation, he may also frisk the suspect if he

reasonably concludes, in light of his experience, that the suspect may be armed and dangerous.

Commonwealth       v.   Canning, 587 A.2d 330, 331 (Pa. Super. 1991) (citing Terry    v.   Ohio, 392 U.S.

1,   27). This "frisk" is generally limited to a quick pat -down of the suspect's clothing to determine

if he has any weapons. Id.       If, however, the officer has already identified a specific place on the

suspect's person where the weapon is reasonably likely to be, he may search for a weapon directly

in that area. Commonwealth        v.   Houser, 364 A.2d 459, 460 (Pa. Super. 1976). In Houser, while

investigating a burglary, police officers saw Houser and another individual six blocks from the

reported crime scene. Id. at 460. The officers knew both men were on probation for burglary. Id.

As the officers approached, Houser remained in place, but his companion fled. The officer saw a

bulge in Houser's jacket that was shaped like a handgun. Out of concern for his safety, he asked

Houser what was in his pocket. When Houser did not respond, the officer reached into the pocket.

There he found the exact amount of money allegedly taken in the burglary.

          Houser moved to suppress the evidence, arguing it was seized as the result of an illegal

search. Id. The trial court granted Houser's motion, concluding that the officer had exceeded the

permissible scope of a Terry frisk by reaching immediately into Houser's pocket. Id.                 The

Commonwealth appealed. The Superior Court reversed the trial court's ruling, explaining:

                 While it is true that where probable cause to arrest is absent, a search of a
                 suspect must be limited to one of protection for the officer, it does not follow
                 that a police officer must perform a useless pat -down of an individual when
                 his senses have already disclosed that a weapon may be possessed at a
                 certain place on the suspect's person.
Id. at 460.

          The "search" in this case was even less intensive than that in Houser. While the officer in

Houser reached into the suspect's pocket, here, Officer Momme merely reached for the outer

portion of defendant's jacket where he saw what he immediately suspected was a firearm. N.T.


                                                     3
6/6/16, 10-11, 18-19, 22.           As the Supreme Court noted, initiating a pat -down elsewhere on

defendant's person under such circumstances would have served "no purpose" and would have

unnecessarily jeopardized the officers' safety. Houser, 364 A.2d at 461. The court properly denied

defendant's motion.2

     III.      CONCLUSION

            For all of the reasons herein, the defendant's judgments of sentence should be affirmed.




                                                                                  BY THE COURT:



                                                                                  DONNA M. WO LPPER, J.




'Moreover, even if directly reaching for the bulge were improper, the evidence would have been admissible under the
inevitable discovery doctrine. Based on Officer Momme's testimony that defendant was coming from the direction
where a gunshot had just been fired, had attempted to flee from the police, and had a suspicious bulge under his jacket
that was the shape of a firearm, in addition to his testimony that the neighborhood was known for gun violence and
gun trafficking, he was entitled to frisk defendant for his safety and the safety of his partner. See Canning, 587 at 330
(officer may frisk suspect for weapons when he or she reasonably believes suspect may be armed and dangerous). He
would have inevitably uncovered the firearm during the pat-down. Commonwealth v. Gonzalez, 979 A.2d 879, 890
(Pa. Super. 2009) (evidence seized during illegal search may still be admissible if police would have inevitably
discovered it by proper means).

                                                           4
                                IN THE COURT OF COMMON PLEAS
                           FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                    CRIMINAL TRIAL DIVISION


         COMMONWEALTH OF                                      CP-51-CR-0011253-2015
         PENNSYLVANIA

                 v.
                                                              SUPERIOR COURT
          CHARLES STOVER                                      3774 EDA 2016

                                       PROOF OF SERVICE

I   hereby certify that I am this 1st day of May, 2017, serving the foregoing Opinion on the persons
indicated below:


Karl L. Morgan, Assistant Defender
Defender Association of Philadelphia
1441 Sansom Street
Philadelphia, PA 19102

Hugh Bums, Chief, Appeals Unit
District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107




                                               Anna Dillon
                                               Secretary to the Honorable Donna M. Woelpper
