J-A27001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

THOMAS HOLLINGSWORTH

                                                      No. 2049 EDA 2015


                   Appeal from the Order Entered June 9, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011209-2014


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

MEMORANDUM BY PANELLA, J.                          FILED JANUARY 10, 2017

        The Commonwealth of Pennsylvania appeals1 from the order entered

on June 9, 2015, in the Court of Common Pleas of Philadelphia County,

which granted Appellee Thomas Hollingsworth’s pretrial motion to suppress

evidence. After careful review, we affirm.

        The suppression court summarized the relevant facts and procedural

history as follows.

        On August 26, 2014, [Hollingsworth] was arrested and was
        charged with Firearms not to be Carried Without a License [18
____________________________________________


*
 Former Justice specially assigned to the Superior Court.
1
  This appeal is permissible as of right because the Commonwealth has
certified in good faith that the suppression order submitted for our review
substantially handicaps the prosecution and the appeal is not intended for
delay purposes. See Pa.R.A.P. 311(d).


*
    Former Justice specially assigned to the Superior Court.
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     Pa.C.S.A. § 6106] and Carrying Firearms on Public Streets or
     Public Property in Philadelphia [18 Pa.C.S.A. § 6108]. The
     evidence established that on August 26, 2014, at approximately
     9:20 p.m., Police Officer Reuban Ondarza and an unidentified
     partner[] were on duty in the area of the 6500 block of Stiles
     Street in Philadelphia. Officer Ondarza testified that he was in
     that area because of a “war” going on in the area between [the]
     66th Street heroin [dealers] and the Monte Vista 64th and
     Jefferson Streets heroin [dealers]. There were numerous
     shootings and homicides in the area. From where he was parked
     on 66th Street, Officer Ondarza observed [Hollingsworth]
     walking on the 6500 block of Stiles Street. [Hollingsworth] was
     walking toward [Officer Ondarza] and from approximately 25
     feet away, Officer Ondarza noticed [Hollingsworth] adjusting a
     large bulge on the left side of his waistband. Officer Ondarza
     believed [Hollingsworth] had a gun in his waistband based on his
     [7] years of experience as an active police officer and the
     approximately 50 gun arrests he had made in the past.
     According to Officer Ondarza, the way [Hollingsworth] was
     adjusting the bulge and touching it, made him believe
     [Hollingsworth] had a gun. [Hollingsworth] crossed Haverford
     Avenue onto the 600 block of 66th Street. Officer Ondarza made
     a U-turn and came within 10 feet of [Hollingsworth]. Officer
     Ondarza exited the unmarked police vehicle, identified himself as
     a police officer (by displaying his badge and saying he was a
     police officer), and told [Hollingsworth] to stop. [Hollingsworth]
     looked at him and proceeded to walk briskly away from Officer
     Ondarza. When [Hollingsworth] ignored Officer Ondarza’s
     commands, Officer Ondarza ran up to him, grabbed him, and
     conducted a frisk wherein he immediately detected a gun. A
     black Colt 357 revolver was recovered from [Hollingsworth’s]
     waistband. [Hollingsworth] told Officer Ondarza that his license
     to carry a weapon had been revoked. [Hollingsworth] was
     subsequently arrested.

            [Hollingsworth] filed a [m]otion to [s]uppress which was
     granted on June 9, 2015. The trial was suspended pending the
     Commonwealth’s appeal. On July 8, 2015, the Commonwealth
     filed a Notice of Appeal accompanied by a Statement of Errors
     Complained of on Appeal pursuant to P[a].R.A.P. Rule 1925(b).

Suppression Court Opinion, 7/29/15, at 1-2 (footnotes omitted).




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       On appeal, the Commonwealth challenges the suppression court’s

decision to suppress the evidence obtained from Officer Ondarza’s search of

Hollingsworth. See Commonwealth’s Brief, at 2. The Commonwealth

contends that the suppression court failed to credit Officer Ondarza’s

experience and failed to examine the totality of the circumstances

surrounding the search. See id. Hollingsworth counters that the suppression

court correctly held that Officer Ondarza lacked the requisite reasonable

suspicion necessary to stop and frisk him. See Appellee’s Brief, at 5.

       Our scope and standard of review is well settled.

       When the Commonwealth appeals from a suppression order, this
       Court may consider only the evidence from the defendant’s
       witnesses together with the evidence of the prosecution that,
       when read in the context of the record as a whole, remains
       uncontradicted. In our review, we are not bound by the
       suppression court’s conclusions of law, and we must determine if
       the suppression court properly applied the law to the facts. We
       defer to the suppression court’s findings of fact because, as the
       finder of fact, it is the suppression court’s prerogative to pass on
       the credibility of the witnesses and the weight to be given to
       their testimony.

Commonwealth v. Myers, 118 A.3d 1122, 1125 (Pa. Super. 2015)

(citation omitted). Here, the record supports the suppression court’s factual

findings.2 Thus, we proceed to review the court’s legal conclusions, for which
____________________________________________


2
  We note that the suppression court made several factual findings based
upon the property receipts presented as exhibits by the Commonwealth at
the suppression hearing. Our review of the record reveals that the exhibits
from the suppression hearing were not included in the certified record on
appeal. It was the Commonwealth’s duty to ensure that all documents
essential to the case were included in the certified record. See Fiore v.
(Footnote Continued Next Page)


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our standard of review is de novo. See Commonwealth v. Wilson, 101

A.3d 1151, 1153 (Pa. Super. 2014), appeal denied, 121 A.3d 496 (Pa.

2015).

      The Fourth Amendment of the United States Constitution guarantees,

“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated….”

U.S. Const. amend. IV. Similarly, the Pennsylvania Constitution assures

citizens of our Commonwealth that “[t]he people shall be secure in their

persons, houses, papers and possessions from unreasonable searches and

seizures….” Pa. Const. art. I, § 8. Further, “[t]he reasonableness of a

government intrusion varies with the degree of privacy legitimately expected

and the nature of the governmental intrusion.” Commonwealth v. Fleet,

114 A.3d 840, 844 (Pa. Super. 2015) (citation omitted). Interactions

between law enforcement and citizens fall into one of three following

categories.

                       _______________________
(Footnote Continued)

Oakwood Plaza Shopping Ctr., 585 A.2d 1012, 1019 (Pa. Super. 1991)
(“It is the obligation of the appellant to make sure that the record forwarded
to an appellate court contains those documents necessary to allow a
complete and judicious assessment of the issues raised on appeal.”) Because
the Commonwealth failed to include the exhibits in the certified record, we
are unable to determine if the factual findings based upon the exhibits are
supported by the record. Thus, we cannot consider these findings.

       However, we have determined that the factual findings made by the
trial court in relation to the exhibits do not go to the crux of the suppression
issue.



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        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 a period
        of detention, but does not involve such coercive conditions as to
        constitute the functional equivalent of an arrest. Finally, an
        arrest or “custodial detention” must be supported by probable
        cause.

Id., at 845 (citation omitted).

        Here, both parties agree that Officer Onadrza placed Hollingsworth

under investigative detention when he stopped Hollingsworth and searched

him for weapons. See Commonwealth’s Brief, at 7; Appellee’s Brief, at 6-7.

The Commonwealth’s sole issue on appeal is whether Officer Ondarza had

reasonable      suspicion      to    stop      and   search   Hollingsworth.   See

Commonwealth’s Brief, at 2. The Commonwealth contends that Officer

Ondarza had reasonable suspicion to perform a “Terry stop and frisk”3 due

to the fact that he was patrolling a high crime area at night and observed

Hollingsworth touching a bulge in his waistband in a manner that indicated

to Officer Ondarza, an officer with extensive firearms experience, that

Hollingsworth was armed. See id.

        When this Court evaluates whether an investigative detention is

constitutional, the following principles guide our decision.

        Our inquiry is a dual one – whether the officers’ action was
        justified at its inception, and whether it was reasonably related
        in scope to the circumstances which justified the interference in
____________________________________________


3
    Terry v. Ohio, 392 U.S. 1 (1968).



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      the first place. Regarding the stop, a police officer may, short of
      an arrest, conduct an investigative detention if he has a
      reasonable suspicion, based upon specific and articulable facts,
      that criminality is afoot. The fundamental inquiry is an objective
      one, namely, whether the facts available to the officer at the
      moment of the [intrusion] warrant a man of reasonable caution
      in the belief that the action taken was appropriate. This
      assessment, like that applicable to the determination of probable
      cause, requires an evaluation of the totality of the
      circumstances, with a lesser showing needed to demonstrate
      reasonable suspicion in terms of both quantity or content and
      reliability. An individual’s suspicious and furtive behavior that, in
      the opinion of an experienced police officer under certain
      circumstances, indicates criminal activity, reasonably justifies an
      investigative detention.

             Further, the delicate balance between protecting the right
      of citizens to be free from unreasonable searches and seizures,
      on the one hand, and protecting the safety of our citizens and
      police officers by allowing police to make limited intrusions on
      citizens while investigating crime, on the other hand, requires
      additional considerations when the police have a reasonable
      suspicion that a person may be armed.

                                      ***

            Thus, … a police officer may frisk an individual during an
      investigatory detention when the officer believes, based on
      specific and articulable facts, that the individual is armed and
      dangerous. When assessing the reasonableness of an officer’s
      decision to frisk a suspect during an investigatory detention, an
      appellate court does not consider the 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, 771-772 (Pa. Super. 2006)

(internal quotations and citations omitted).

      This Court has examined similar situations in which we have examined

the suppression court’s analysis of the totality of the circumstances in order


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to determine whether a police officer did, or did not, have the requisite

reasonable suspicion to perform an investigatory detention and Terry stop

and frisk. In Commonwealth v. Carter, this Court found that a defendant’s

presence in a high-crime area at night, coupled with a weighted bulge in

defendant’s pocket, and defendant’s consistent efforts to conceal the

weighted bulge from police officers constituted the reasonable suspicion

necessary for an investigative detention. See 105 A.3d 765, 774-775 (Pa.

Super. 2014). Conversely, in Commonwealth v. Martinez, this Court held

that a situation in which the defendant “walked quickly away from a group of

people on a street corner after observing a nearby police vehicle . . . [and]

where . . . officers observed a bulge in her front pocket[,]” does not

constitute reasonable suspicion of criminal activity necessary for an

investigative detention. 588 A.2d 513, 514 (Pa. Super. 1991).

      In this case, the relevant evidence shows that Officer Ondarza

observed Hollingsworth walking alone at 9:20 at night in a high crime area.

From 25 feet away, Officer Ondarza noted that he saw Hollingsworth touch a

“bulge” in Hollingsworth’s waistband. Officer Ondarza testified that he

believed the “bulge” to be a firearm because of its location in Hollingsworth’s

waistband. Immediately following this observation, Officer Ondarza turned

his unmarked police cruiser around, ordered Hollingsworth to stop, and

conducted a search of Hollingsworth’s person. From these facts, the

suppression court concluded that:


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     I believe that the officer, in the facts presented may have been
     justified with a mere encounter, but he skipped right over that to
     an investigatory detention for a one time stop (sic), 25 feet
     away, without articulating the clothing that the defendant was
     wearing to justify the ability to see a bulge with a holstered
     weapon. And I think under the Constitution, just a one-time
     touching in an area where guns are generally carried, without
     anything more, was not sufficient to justify the investigatory
     detention and the frisk that happened at that time.

N.T., Suppression Hearing, 6/9/15, at 47.

     Based upon these facts, we find that this case is most analogous to the

totality of the circumstances present in Martinez, and we agree with the

suppression court that Officer Ondarza did not have reasonable suspicion to

perform an investigatory detention. There was no evidence, as in Carter,

that Hollingsworth was aware of the police presence at the time he touched

the “bulge” and that he ever attempted to conceal the “bulge” from the

police. Instead, as in Martinez, there is only a mention of a “bulge” and an

inclination that the “bulge” could be a weapon. And, unlike in Carter, there

was no consistent effort to touch the “bulge”; this was a one-time touch.

     We do not find that this “hunch” is sufficient grounds to infringe upon

a citizen’s Fourth Amendment rights. Further, despite the Commonwealth’s

contentions to the contrary, there is no evidence that the suppression court

disregarded Officer Ondarza’s experience in weighing the totality of the

circumstances; the trial court considered the totality of the circumstances;

the suppression court simply did not believe Officer Ondarza’s contention

that he reasonably believed that a non-descript “bulge” in Hollingsworth’s


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waistband was a weapon. As an appellate court, it is not within our purview

to question the suppression court’s credibility determinations. See Myers,

118 A.3d at 1125. Thus, because we find no fault in the suppression court’s

factual findings or its application of the relevant law to these findings, we

find the Commonwealth’s sole issue on appeal meritless.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/2017




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