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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

MARCUS WOMACK,

                        Appellant                  No. 1068 EDA 2015


          Appeal from the Judgment of Sentence March 27, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0012593-2014


BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED APRIL 01, 2016

     Marcus Womack appeals from the judgment of sentence imposed on

March 27, 2015, after he was convicted at a bench trial of possession of a

controlled substance with intent to manufacture or deliver (“PWID”) and

intentional possession of a controlled substance. We affirm.

     The record establishes the following.        On August 7, 2014, at

approximately 9:05 p.m., Officer Jason Tomon stopped Appellant near the

4300 block of Wayne Avenue in Philadelphia, Pennsylvania. Officer Tomon

observed that Appellant matched flash information provided the night before

through other officers operating in the area.   That flash indicated a black

male, wearing a white shirt and tan shorts, had fled from police on a silver

bicycle. At the time of his encounter with Officer Tomon, Appellant, a black


* Retired Senior Judge assigned to the Superior Court.
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male, was wearing a white shirt and tan shorts. He was also riding a silver

bicycle, which Officer Tomon determined was in violation of the Motor

Vehicle Code § 3507(a), requiring lights on a bicycle.1

       After stopping Appellant, Officer Tomon directed Appellant to remain

on his bicycle.     He observed Appellant holding his legs tightly against the

frame of the bicycle and a bulge near Appellant’s rear. Believing the bulge

concealed contraband or a firearm, Officer Tomon attempted to frisk

Appellant, eliciting the response, “I have a boil; don’t touch me.” N.T. Trial,

11/26/15, at 8.        Officer Tomon persisted, and upon frisking Appellant,

“immediately recognized the presence of narcotics.” Id. Fifty-four bags of

crack cocaine, five bags of marijuana, and thirty-eight dollars in cash were

recovered from Appellant.

       Based on this encounter, Appellant was charged with the above-

mentioned crimes and a traffic violation report (“TVR”) was filed against him

as a result of the traffic code violation. Appellant filed a pretrial motion to

suppress the physical evidence obtained by Officer Tomon, arguing that he

was arrested without probable cause or a legally issued warrant, and that

the search of his person was conducted on less than reasonable suspicion,
____________________________________________


1
  75 Pa.C.S. § 3507(a) reads, in pertinent part, “Every pedalcycle when in
use between sunset and sunrise shall be equipped on the front with a lamp
which emits a beam of white light intended to illuminate the pedalcycle
operator’s path.” Appellant does not contend he was in compliance with this
subsection at the time of his arrest.



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without probable cause, and without a warrant. A suppression hearing was

conducted, and after hearing argument on the motion, the trial court

declined    to   suppress   the   physical   evidence.   Appellant   immediately

proceeded to a bench trial where he was found guilty of the above-named

offenses.    Thereafter, the court sentenced Appellant to two to four years

state incarceration and thirty-six months probation.        This timely appeal

followed.

      The Appellant raises the following issue for our consideration:

            1. Where the defendant was detained and searched solely
               on the basis of flash information from one day prior
               (which alleged no illegal behavior), riding a bicycle
               without headlights and a bulge in his pants, was not
               such detention and search unsupported by reasonable
               suspicion or probable cause, in violation of the Fourth
               and Fourteenth Amendments of the United States
               Constitution and Article I, Section 8 of the Pennsylvania
               Constitution, and therefore should not the drugs
               subsequently seized by the police have been
               suppressed?

Appellant’s brief at 3.

      In cases involving a review of the denial of a defendant’s suppression

motion, we are subject to the following standard of review:

      [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

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      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 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 []
      plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa.Super. 2015),

quoting Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal

citations and quotation marks omitted).

      In the present case, the suppression court concluded Officer Tomon

had reasonable suspicion to stop Appellant because he matched the flash

description provided by fellow officers working in the same area the night

before.   Furthermore, the court determined Officer Tomon had reasonable

suspicion to stop the Appellant and investigate further based on the motor

vehicle violation.

      Appellant argues the generic identifying information and lack of any

indication of criminal activity provided in the flash information does not

support that Officer Tomon had reasonable suspicion of criminal activity. For

the reasons set out below, Appellant’s argument is beside the point, as he

concedes that “officers in the instant case saw appellant riding a bike

without lights in violation of 3507-A of the Motor Vehicle Code.” Appellant’s

brief at 9.




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       Initially we note, the level of suspicion that a police officer must

possess before stopping a vehicle2 is codified at 75 Pa.C.S. § 6308(b), which

states:

       Whenever a police officer is engaged in a systematic program of
       checking vehicles or drivers or has reasonable suspicion that a
       violation of this title is occurring or has occurred, he may stop a
       vehicle, upon request or signal, for the purpose of checking the
       vehicle's registration, proof of financial responsibility, vehicle
       identification number or engine number or the driver's license, or
       to secure such other information as the officer may reasonably
       believe to be necessary to enforce the provisions of this title.

Id.

       This Court clarified this general rule in Commonwealth v. Feczko, 10

A.3d 1285 (Pa.Super. 2010) (en banc). In Feczko, this Court determined

that the language of Section 6308(b), as interpreted by our Supreme Court,

establishes that mere reasonable suspicion is required to effectuate a traffic

stop based on suspicion of criminal activity or a suspected violation of the

Motor Vehicle Code requiring additional investigation. Id. at 1291. On the

other hand, where a traffic stop “cannot serve an investigatory purpose

relevant to the suspected violation,” reasonable suspicion is not sufficient to

justify the stop.      Id.    Rather, the officer must “articulate specific facts

possessed by him, at the time of the questioned stop, which would

provide probable cause to believe that the vehicle or the driver was
____________________________________________


2
  Under 75 Pa.C.S. § 3501(a), the provisions of the Motor Vehicle Code apply
to individuals riding a bicycle on a roadway.



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in violation of some provision of the Code.”            Id. (citation omitted,

emphasis original).

      Probable cause exists when the facts and circumstances are sufficient

in themselves to warrant a person of reasonable caution in the belief that

the driver or the vehicle has violated the vehicle code. Commonwealth v.

Weaver, 76 A.3d 562, 565 (Pa.Super. 2013) aff’d, 105 A.3d 656 (Pa.

2014). Probable cause is determined by the totality of the circumstances,

and it is “the facts and circumstances within the personal knowledge of the

police officer that frames the determination of the existence of probable

cause.” Id. (citation omitted).

      Here, Appellant was stopped due to Officer Tomon’s observation that

he was operating his bicycle after dusk without headlights.       The officer’s

personal observation and knowledge of the Motor Vehicle Code violation

supplied probable cause for him to initiate the traffic stop. Thus, we find the

suppression court erred in determining Officer Tomon had mere reasonable

suspicion to stop Appellant. Instead, the stop of Appellant was supported by

probable cause.

      In the course of the traffic stop, Officer Tomon noted Appellant held

his legs extremely tight to the frame of the bicycle and had an unnatural

bulge in his back. Officer Tomon testified, and the trial court credited, that

he believed Appellant was “hiding contraband, possibly a firearm.”        N.T.

Trial, 1/26/15, at 8. Under Terry v. Ohio, 392 U.S. 1 (1968), “[w]hen an

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officer is justified in believing that the individual whose suspicious behavior

he is investigating at close range is armed and presently dangerous to the

officer or to others,” the officer may conduct a protective search “to

determine whether the person is in fact carrying a weapon.”         Id. at 24;

Commonwealth v. Pakacki, 901 A.2d 983, 988 (Pa.Super. 2006).                As

Appellant was lawfully stopped at the time Officer Tomon observed his

suspicious behavior and conducted a lawful protective search of a bulge he

suspected contained a firearm, we find Appellant’s rights were not violated. 3

       In sum, Appellant’s traffic stop was valid, and the reasonable suspicion

for the ensuing protective frisk is supported by the record. Although the trial

court applied the wrong standard to the facts at issue, we may affirm on any

grounds supported by the record, even grounds not suggested to or known

by the trial court.       Commonwealth v. Gatlos, 76 A.3d 44, 62 n.14

(Pa.Super. 2013). Therefore, we affirm the judgment of sentence.

       Judgment of sentence affirmed.




____________________________________________


3
  We note Appellant raised an additional issue in his 1925(b) statement, that
the seizure at issue here cannot be supported by the “plain feel” doctrine.
Appellant did not brief this issue, and accordingly, it is waived.       See
generally, Appellant’s brief; see also Commonwealth v. Berry, 887 A.2d
479, 485 (Pa.Super. 2005) (issues not briefed are waived).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2016




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