J-S59040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellant

                      v.

LAMAR BATCHLER
                                                      No. 2200 EDA 2015


                      Appeal from the Order June 25, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0002120-2015

BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 06, 2016

        The Commonwealth appeals from the order entered in the Philadelphia

County Court of Common Pleas granting Appellee Lamar Batchler’s motion

for suppression of evidence. The Commonwealth contends that the officers

had reasonable suspicion to conduct a protective frisk of Appellee.          We

affirm.

        We adopt the facts and procedural history set forth in the trial court’s

opinion.    See Trial Ct. Op., 12/2/15, at 1-3.     Appellee was charged with

possession of a firearm prohibited,1 firearms not to be carried without a

license,2 and carrying firearms on public streets in Philadelphia.3    Appellee


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6105.
2
    18 Pa.C.S. § 6106.
J-S59040-16


filed an omnibus pretrial motion to suppress.        Following a hearing, the

motion was granted. The Commonwealth filed a notice of appeal, certifying

that the ruling terminated or substantially handicapped the prosecution of

this case.4 The Commonwealth filed a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal, and the trial court filed a responsive opinion.

        The Commonwealth raises the following issue for our review:

               Did the suppression court err in ruling that experienced
           officers lacked reasonable suspicion to conduct a protective
           frisk where, upon stopping a car in a high crime, high drug
           area at night for a vehicle code violation, they saw
           [Appellee], the front seat passenger, act nervous and
           slump to his left as if to conceal a weapon in his left
           waistband?

Commonwealth’s Brief at 1.

        The Commonwealth contends that




3
    18 Pa.C.S. § 6108.
4
 In Commonwealth v. Bender, 811 A.2d 1016 (Pa. Super. 2002), this
Court noted

           that the Commonwealth has an absolute right of appeal to
           the Superior Court to test the validity of a pre-trial
           suppression order. Such an appeal is proper as an appeal
           from a final order when the Commonwealth certifies in
           good faith that the suppression order terminates or
           substantially handicaps its prosecution.

Id. at 1018 (quotation marks and citations omitted); see also Pa.R.A.P.
311(d). Instantly, the Commonwealth has complied with this procedural
requirement, and therefore, the appeal is properly before us. See id.




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J-S59040-16


             [Appellee’s] bizarre “Superman type” gesture, and
         appearing “very nervous, very scared” at Officer [Daniel]
         Sweeney’s first approach; the inability of his companion to
         produce any proof of registration or insurance for the SUV,
         which the officers stopped at night in a high-crime area;
         and [Appellee’s] “sitting awkwardly” slumped to his left
         with both arms resting on the center console as if
         concealing something on his left side upon the officer’s
         second approach were all danger signals to which the
         officers responded with appropriate caution as authorized
         by the Constitution. Yet, the suppression court found that
         [Appellee] gave the seventeen-year veteran police officer
         no reasonable basis to fear he might be armed. This ruling
         was incorrect.

Commonwealth’s Brief at 9-10.

      Our review is governed by the following principles:

         When reviewing an Order granting a motion to suppress
         we are required to determine whether the record supports
         the suppression court’s factual findings and whether the
         legal conclusions drawn by the suppression court from
         those findings are accurate. In conducting our review, we
         may only examine the evidence introduced by appellee
         along with any evidence introduced by the Commonwealth
         which remains uncontradicted. Our scope of review over
         the suppression court’s factual findings is limited in that if
         these findings are supported by the record we are bound
         by them. Our scope of review over the suppression court’s
         legal conclusions, however, is plenary.

Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)

(citation omitted).

      After careful review of the record, the parties’ briefs, and the decision

by the Honorable Daniel J. Anders, we affirm on the basis of the trial court’s




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J-S59040-16


opinion.5    See Trial Ct. Op. at 3-6 (holding (1) there were insufficient

specific and articulable facts for Officer Sweeney to have reasonably believed

Appellee was armed and dangerous; and (2) there was insufficient evidence

to support the Terry6 frisk of Appellee). Accordingly, we affirm the order of

the trial court granting Appellee’s motion to suppress.

        Order affirmed.

        P.J.E. Bender joins the Memorandum.

        Judge Olson files a Dissenting Memorandum.




5
  We note that the citation referring to Commonwealth v. Clinton is the
citation for Commonwealth v. Gray. See Trial Ct. Op. at 5.
6
    Terry v. Ohio, 392 U.S. 1 (1968).



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J-S59040-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/6/2016




                          -5-
                                                                                                Circulated 11/10/2016           04:03 PM

'   .,...
                                                                                     CP-5l-CR-00:>2!20.2015 Comm. v. llatch!e<. Lamar
                                                                                                          Opin;()n

                        IN THE COURT OF COMMON PLEAS OF PHILADEI
                                FIRST JUDICIAL DISTRICT OF PENNSYL,
                                        TRIAL DIVISION - CRIMINAL                         II 111111111111111 11111111
                                                                                                   7376945531

            COMMONWEALTH OF PENNSYLVANIA                                 CP-5l-CR-0002120-2015

            vs.                                                          2200 EDA 2015                   FILED
            LAMAR BATCHLER                                                                                 DEC          2 20\5
                                                                                                  Criminal Appeals Unit
                                                         OPINION                                First Judicial District of PA
                    Following a suppression hearing, the trial court granted Defendant Lamar Batchler's

            motion to suppress a firearm recovered from his person. The Commonwealth filed a timely

            appeal in which it argues that the trial comi erred in granting Defendant's motion to suppress

            because the police officer had a reasonable suspicion that Defendant was armed and dangerous.

            For the reasons stated below, the Superior Court should affirm the trial court's decision to grant

            Defendant's motion to suppress.

            FACTUAL BACKGROUND

                    On February 10, 2015, at approximately 9:35pm, Police Officer Daniel Sweeney was on

            routine patrol when he observed a red Ford Expedition on the 3600 block of North Broad Street.

            After inputting the vehicle license plate number into the database of Bureau of Motor Vehicles,

            Officer Sweeney determined that the vehicle was unregistered, Based upon this information,

            Officer Sweeney stopped the vehicle. N.T. 07/25/2015 at 6-7.

                   After stopping the vehicle, Officer Sweeney approached the passenger side of the vehicle,

            where Defendant was seated. As Officer Sweeney approached the vehicle, Defendant had his

            arms extended and was looking straight ahead, as in a superman-type motion. Id. at 8-9, 12.

            Officer Sweeney testified:

                           As I approached, the defendant had his arms extended looking
                           straight ahead and I asked him if he had something on him because
                   it made me a little suspicious. He appeared very nervous, very
                   scared and said he didn't have anything on him. I told him I
                   appreciate you showing me your hands but you can just relax and
                   put them on your thighs and everything will be okay.

 Id. at 9. Officer Sweeney asked Defendant for identification. Defendant retrieved his

 identification from his back pocket and provided it to the officer. After receiving the

identification, Officer Sweeney returned to his police vehicle. While inside the police vehicle,

Officer Sweeney realized that he had not received registration or insurance for the vehicle or for

the driver of the vehicle. Officer Sweeney approached the vehicle again. Id. at I 0.

        During the second approach, Officer Sweeney noticed Defendant was "sitting awkwardly

like as if he was concealing something from either my vantage point or my partner's vantage

point." Id. at 11. Defendant was sitting back in his chair and leaning over to the left side with his

hands crossed on the armrest. Officer Sweeney asked Defendant to step out of the vehicle and

then searched him by conducting a pat down. During the pat down, Officer Sweeney discovered

a firearm on the left side of Defendant's waist. Officer Sweeney searched the waist area because

he believed Defendant was hiding something in his waistband and that "he possibly had some

type of weapon on him." Based upon Defendant's initial "superman-type motion" and then

leaning to the left side of the vehicle, Officer Sweeney testified that, "I knew something wasn't

right" so he "had more than enough reason to pull [Defendant] out of the vehicle to pat him

down to see if he had a weapon on him." Id. at 13-14.

       On cross-examination Officer Sweeney conceded that:

               •     Defendant was cooperative and complied with all of Officer Sweeney's
                     commands and orders during the entire stop. Id. at 21-22.

               •     Defendant's identification was valid and that Defendant had no outstanding
                     warrants. Id. at 23.

               •     Defendant did not make any attempt to flee or escape at any point during the
                     stop. Id. at 24.

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                 •   Officer Sweeney never observed "any movement inside the car that looked
                     suspicious." Id. at 24.

                 •   Officer Sweeney never observed a bulge or firearm on Defendant at any time
                     during the stop, including when Defendant was seated inside the vehicle and
                     when he exited the vehicle. Id. at 24-25.

         Officer Sweeney had 17 years of experience with the Philadelphia Police Department and

 approximately one year of experience in the 39th district. Based upon his experience, Officer

 Sweeney regarded the area of Broad and Erie as a high narcotic, high crime area. He has made

 several arrests for firearms in that area and, in the majority of those arrests, recovered the firearm

 from the front of the waistband. Id. at 15-18.

 DISCUSSION

        On appeal, the Commonwealth argues that the trial court erred in granting the motion to

 suppress because Officer Sweeney had a reasonable suspicion that Defendant was aimed and

 dangerous, which permitted him to frisk Defendant for weapons. In reviewing suppression

orders, appellate courts apply the following standard ofreview:

               When the Commonwealth appeals from a suppression order, we
               follow a clearly defined standard of review and consider only the
               evidence from the defendant's witnesses 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. Byrd, 987 A.2d 786, 790 (Pa. Super. Ct. 2009).

       A Terry frisk is a police search that is strictly limited to "that which is necessary for the

discovery of weapons which might be used to harm the officer or others nearby." Co111111011wealth

v. E.M, 735 A.2d 654, 659 (Pa. 1999) (citing Teny v. Ohio, 392 U.S. 1 (1968)). A police officer

may conduct a Terry frisk to ensure his safety if the officer reasonably believes-based on


                                                  -3-
 specific and articulable facts-that the person may be armed and dangerous. Commonwealth v.

 Grahame, 7 A. 3d 810, 814 (Pa. 2010). In determining whether a sufficient articulable basis

 exists to support a Terry search, courts examine the totality of the circumstances of the facts of

 record developed during the hearing on the motion to suppress. Id. Moreover, "it is the duty of

 the suppression court to independently evaluate whether, under the particular facts of a case, an

 objectively reasonable police officer would have reasonably suspected" that the defendant was

 armed and dangerous. Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011).

        "When assessing the reasonableness of an officer's decision to frisk a suspect during an

 investigative detention," courts do not consider an officer's "unparticularized suspicion or

 'hunch,' but rather ... the specific reasonable inferences which he is entitled to draw from the

 facts in light of his experience." Commonwealth v. Stevenson, 894 A.2d 759, 771 (Pa. Super. Ct.

2006) (quoting Commonwealth v. Zahir, 751 A.2d 1153, 1158 (Pa. 2000)). The Pennsylvania

Supreme Court has recognized that "an individual's location, standing alone, does not provide

sufficient grounds for a Terry search." Grahame, 7 A.3d at 816 (noting that even high crime

areas require an individualized, reasonable suspicion that a suspect is armed and dangerous).

Even a suspect's nervous behavior is not sufficient by itself Commonwealth v. Gray, 896 A.2d

601, 607 (Pa. Super. Ct. 2006); but see Commonwealth v. Rogers, 849 A.2d 1185 (Pa. 2004)

( extreme nervousness combined with other factors can be sufficient).

        1.     There Are Insufficient Specific And Articulable Facts To Support
               A Reasonable Belief That Defendant Was Armed And Dangerous

       Here, there are insufficient specific and articulable facts to support the Terry frisk of

Defendant. First, there is no evidence that Officer Sweeney observed anything resembling a

firearm or a weapon on Defendant or even in the vehicle. In fact, there was no evidence that he

observed a bulge or unknown object anywhere on Defendant. Second, there is no evidence that


                                                -4-
 Defendant failed to comply with any order by Officer Sweeney. To the contrary, Officer

 Sweeney testified that Defendant complied with every command and order that he gave to

 Defendant. Third, Officer Sweeney testified that he never observed "any movement inside the

 car that looked suspicious." Fourth, Defendant's "superman pose" cannot be objectively

 regarded as a furtive movement. Indeed, officers often order individuals to show their hands or to

 put their hands up when conducting a traffic stop. Thus, the pose that Defendant took by

 extending his arms is exactly what you would expect a person to do in anticipation of being

 asked by an officer to show your hands. Fifth, although the vehicle was located in an area that

Officer Sweeney regarded as a high crime area, the vehicle was stopped for a motor vehicle

violation and not anything related to the use or possession of a firearm. At most, Defendant was

nervous during the traffic stop; his nervousness resulted in Defendant being found in two,

perhaps unnatural, seating positions: the Superman pose and then leaning up against the armrest,

        In sum, there are insufficient specific and articulable facts for Officer Sweeney to have

objectively and reasonably believed that Defendant was aimed and dangerous. Instead, Officer

Sweeney had an unparticularized suspicion or hunch that Defendant may have been aimed based

upon the unnatural position that he was sitting, which was likely the result of the nervousness

that typically is experienced when being stopped by a police officer. This evidence is insufficient

to conduct a Terry frisk of Defendant. See, e.g., Gray, 896 A.26 at 607; Commonwealth v.

Cooper, 994 A.2d 589 (Pa. Super. Ct. 2010) (reversing trial court's denial of motion to suppress

where there was insufficient evidence to support the frisk of the defendant for weapons);

Commonwealth v. Clinton, 896 A.2d 601 (Pa. Super. Ct. 2006) (same); Commonwealth v.

Carter, 779 A.2d 591 (Pa. Super. Ct. 2001) (same).




                                                -5-
CONCLUSION

       Based on the foregoing, the order granting the motion to suppress should be affirmed.

BYT   fcoURT·:


                     '
Dated: December 2, 2015




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