J-S79022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                        Appellee

                   v.

NOLTON THOMAS

                        Appellant                        No. 283 EDA 2014


          Appeal from the Judgment of Sentence January 24, 2014
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0007304-2012


BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                              FILED MARCH 13, 2015

       Appellant, Nolton Thomas, appeals from the judgment of sentence

entered on January 24, 2014.        We are constrained to vacate Appellant’s

convictions and remand for a new trial.

       On August 22, 2012, Appellant was arrested and charged with

possession of cocaine and possession of cocaine with the intent to deliver

(hereinafter “PWID”).    On April 29, 2013, Appellant filed a motion to

suppress the physical evidence in his case. As Appellant claimed, all of the

evidence against him must be suppressed because “[Appellant] . . . was

subjected to search and seizure without probable cause or reasonable

suspicion” and because the search of the vehicle that Appellant was driving

“far   exceeded   the   permissible   areas   to    be    searched   under   the

circumstances.” Appellant’s Motion to Suppress, 4/29/13, at 1-2.



*Retired Senior Judge assigned to the Superior Court.
J-S79022-14



       On May 2, 2013, the trial court held an initial hearing on Appellant’s

suppression motion.       During this initial hearing, the Commonwealth relied

solely upon the testimony of City of Chester Police Officer Joshua Dewees,

who was the officer that made the traffic stop of Appellant’s vehicle. From

Officer Dewees’ testimony, the trial court made the following findings of fact:

         1. On August 22, 2012[,] at approximately 5:01 p.m.,
         Officer Joshua Dewees . . . was in [the] area of East 11 th
         Street and Walnut Street[, in the City of Chester,] checking
         the area for a complaint of shots fired. [N.T. Suppression
         Hearing, 5/2/13, at 12-13.]

         2. Officer [James] Fiore of the Chester City Police
         Department also responded to the complaint. [Id. at 16-
         17.]

         3. While responding to the call, the officers were monitoring
         radio transmissions concerning the incident. [Id. at 16-17
         and 39.]

         4. A description was broadcast of the suspect being a black
         male wearing [a] red []shirt fleeing[1] the area on East 12th
         Street toward Potter Street.[2, 3] [Id. at 13, 28, and 31.]

____________________________________________


1
   We note that, during Officer Dewees’ suppression hearing testimony,
Officer Dewees alternatively testified that dispatch described the possible
suspect as “fleeing” the area, “leaving” the area, and “walking away” from
the area. See N.T. Suppression Hearing, 5/2/13, at 13 (testified that
dispatch relayed “a description of a black male . . . seen leaving the area . .
. north on Walnut towards 12th Street”); N.T. Suppression Hearing, 5/2/13,
at 28-32 (testified that dispatch described the possible suspect as “fleeing
the area”); N.T. Suppression Hearing, 5/2/13, at 31 (acknowledged that,
during Appellant’s preliminary hearing, Officer Dewees testified that the
description was of the “possible shooter wearing [a red shirt] walking on
West 12th Street”).




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         5. Officer Fiore observed a suspect matching that
         description operating a maroon Volvo S80 with Pennsylvania
         Registration number [H_____6]. . . .[4] [Id. at 14-15, 16-
         17, and 46.]

                       _______________________
(Footnote Continued)
2
   During the initial suppression hearing, Officer Dewees testified that
dispatch informed him that the possible suspect was seen leaving the area
“north on Walnut towards 12th Street.” N.T. Suppression Hearing, 5/2/13, at
13 and 31. We note that, during the supplemental suppression hearing,
Officer Dewees confirmed that he had earlier testified at Appellant’s
preliminary hearing and that, during Appellant’s preliminary hearing, Officer
Dewees had testified: “[a] description was given to us by dispatch as a
subject leaving the area wearing, I believe it was [a] red shirt headed
westbound on 12th Street towards Potter Street right Walnut.”           N.T.
Suppression Hearing, 7/9/13, at 19.
3
   We have omitted a portion of the trial court’s fourth numbered factual
finding, as it is unsupported by the evidence of record. Within the trial
court’s fourth numbered factual finding, the trial court declared that the
broadcast description of the possible suspect was of “a black male wearing
[a] red t-shirt.” Trial Court Opinion and Order, 6/7/13, at 1 (emphasis
added). However, no record evidence supports the trial court’s declaration
that the broadcast described the possible suspect as specifically wearing a
“t-shirt.”  Rather, the only evidence of record is that the broadcast
description was of “a black male wearing a red shirt.” N.T. Suppression
Hearing, 5/2/13, at 31 (“[o]kay, at this time, Officer [Fiore] reported by way
of radio communication between the parties that the person wearing the red
shirt was walking north on Walnut Street”); N.T. Suppression Hearing,
7/9/13, at 19 (“[a] description was given to us by dispatch as a subject
leaving the area wearing, I believe it was [a] red shirt”); N.T. Trial,
11/20/13, at 50 (“at which time I [saw] the driver matching the description
that was given out, a black male wearing a red shirt”).
4
   We have omitted a portion of the trial court’s fifth numbered factual
finding, as it is unsupported by the evidence of record. With respect to this
factual finding, the trial court declared:

         5. Officer Fiore observed a suspect matching that
         description operating a maroon Volvo S80 with Pennsylvania
         Registration number [H_____6] turn onto Walnut Street
(Footnote Continued Next Page)


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J-S79022-14



         6. Officer Fiore radioed Officer Dewees a description of a
         vehicle including the registration number that Officer Fiore
         believed the subject that matched the description from the
         shots fired was headed in Officer [Dewees’] direction. [Id.]

         7. Officer Dewees spotted the vehicle and conducted a
         traffic stop in the 800 Block of Morton Avenue. [Id. at 17
         and 69.]

         8. Officer Dewees was unable to see into [the] vehicle
         because it had tinted windows. Officer Dewees ordered the
         driver to roll down the windows but received no response.
         [Id. at 19 and 50.]

         9. At this time[,] Captain [Charles] Fell arrived on scene.
         He and Officer Dewees approached the vehicle and ordered
         the driver to exit the vehicle. [Id. at 19-21.]

         10. The driver was identified as [Appellant]. There were no
         other occupants in the vehicle. [Id. at 19.]

         11. It was determined that [Appellant] had a suspended
         driver’s license. [Id. at 24-25.]

         12. [Appellant] was patted down for weapons and none
         were found on his person. [Id. at 19-20.]
                       _______________________
(Footnote Continued)

         from East 12th Street coming from [the] area of Potter
         Street.

Trial Court Opinion and Order, 6/7/13, at 2 (emphasis added).

Officer Dewees was the only witness to testify during the initial and
supplemental suppression hearings – and Officer Dewees never testified that
Officer Fiore witnessed the vehicle “turn onto Walnut Street from East 12 th
Street coming from [the] area of Potter Street.” Id. Rather, with respect to
the direction of the vehicle at the time Officer Fiore spotted the car, the only
evidence that exists was given at trial, by Officer Fiore. Moreover, at
Appellant’s trial, Officer Fiore specifically testified that, when he first spotted
the vehicle, the vehicle was “travel[ing] south down the 1100 block.” N.T.
Trial, 11/20/13, at 50 (emphasis added).



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J-S79022-14



        13. Officer Dewees entered [the] driver’s area of [the]
        vehicle to check for weapons. [Id. at 22.] This was the
        area where [Appellant] was sitting. [Id.]

        14. Officer Dewees found a yellow “[I]ce [B]reakers
        [S]ours” candy container under [the driver’s] seat. [Id.]
        When Officer Dewees moved the item he noticed it had
        more weight to it than an empty container[] but no moving
        objects inside as there would normally be. [Id. at 64-66.]

        15. Officer Dewees looked in [the] container and found
        several bags containing white powder and [a] rock
        substance[, which he] believed [] to be cocaine. [Id. at 22-
        23.]

        16. [Appellant] was arrested and placed into custody. [Id.]

        17. Captain Fell determined [Appellant’s] vehicle posed
        public safety and efficient movement of traffic concerns and
        ordered it towed. [Id. at 25.]

        18. The Chester City Police Department towing procedures
        require that all impounded vehicles be routinely secured and
        the contents inventoried. [Id. at 25 and 91.]

Trial Court Opinion and Order, 6/7/13, at 1-3 (some internal capitalization

omitted).

      Officer Dewees testified that, before he made the initial traffic stop of

Appellant’s vehicle, he did not personally see the driver of the vehicle.

Therefore, Officer Dewees acknowledged that, “at the time [he] stopped

[Appellant’s] vehicle, [he was] not sure if [Appellant] . . . fit the description

of the individual” that was given to dispatch.      N.T. Suppression Hearing,

5/2/13, at 48.    Instead, Officer Dewees testified, he stopped Appellant’s

vehicle because Officer Fiore had told him to stop a maroon Volvo S80 with

Pennsylvania Registration number “H_____6” – and Officer Fiore “indicated

                                      -5-
J-S79022-14



[to Officer Dewees that the vehicle] had a person matching the description”

of the possible suspect.5 Id. at 46.

       On June 7, 2013, the trial court denied Appellant’s motion to suppress.

However, on June 17, 2013, Appellant filed a motion to reconsider the order

denying his motion to suppress.           Within Appellant’s motion to reconsider,

Appellant first claimed that the initial stop of his vehicle was unconstitutional

because “the description [of the possible suspect] was impermissibly vague.”

Appellant’s Motion to Reconsider, 6/7/13, at 1. Appellant also claimed that

he was entitled to relief because Officer Dewees “exceeded the scope of any

permissible search under the circumstances.” Id. at 2.

       By order entered June 28, 2013, the trial court granted Appellant’s

reconsideration motion.        Trial Court Order, 6/28/13, at 1.   The trial court

thus vacated its order denying Appellant’s motion to suppress and scheduled

a second evidentiary hearing on the suppression motion.            Further, as the

trial court’s order declared, the second suppression hearing was to be a

supplemental hearing where “either [Appellant] or the Commonwealth” could




____________________________________________


5
   We note that, during the initial suppression hearing, Officer Dewees
testified that the area in which he finally effectuated the traffic stop – “the
800 Block of Morton Avenue” – constituted a “high crime area.” N.T.
Suppression Hearing, 5/2/13, at 69-73.          However, there is no record
evidence that the area in which Appellant was originally spotted by Officer
Fiore constituted a “high crime area.”




                                           -6-
J-S79022-14



“present additional evidence or argument” on whether suppression was or

was not warranted. Id.

      On July 9, 2013, the trial court held the supplemental suppression

hearing and, during the hearing, the Commonwealth presented additional

testimony from Officer Dewees.     Specifically, Officer Dewees testified that

Appellant was not the registered owner of the Volvo S80 automobile that

was involved in the August 22, 2012 traffic stop.     Instead, the registered

owner of the vehicle was an individual named Lashawn Smith.               N.T.

Suppression Hearing, 7/9/13, at 17. Appellant presented no evidence that

he owned the vehicle or that the registered owner had given him permission

to use the vehicle on the day in question. See id. at 12-47.

      Further, during the supplemental suppression hearing, Officer Dewees

testified that, “[p]rior to getting behind the vehicle in which [Appellant] was

[] driving,” Officer Dewees was able to determine that shots were fired from

the intersection at 11th and Walnut Streets – and Officer Dewees testified

that he was able to determine that shots were fired in this specific area

“[b]ased off the evidence found there, shell casings.” Id. at 22-23.

      The trial court denied Appellant’s motion to suppress on August 9,

2013. As is relevant to the current appeal, the trial court explained that it

denied the suppression motion because it determined that “Officer Dewees

had reasonable suspicion to make [the initial] traffic stop of [Appellant’s

vehicle]” and Appellant failed to demonstrate that he possessed “an




                                     -7-
J-S79022-14



expectation of privacy in the area searched.” Trial Court Opinion, 8/9/13, at

6-7.

       Appellant proceeded to a jury trial.       During this jury trial, the

Commonwealth presented testimony from Officer Fiore.           As Officer Fiore

testified, on August 22, 2012, he “received notice of an emergency situation

in the area of East 11th and Walnut Street[s]” in the City of Chester.

Further, Officer Fiore testified that dispatch informed him that the possible

suspect was a black male “wearing a red shirt” and that the possible suspect

was “fleeing north on Walnut Street in the 1100 block.”             N.T. Trial,

11/20/13, at 48 and 49 (emphasis added).

       Officer Fiore testified that he arrived at the 1100 block of Walnut

Street less than one minute after the dispatch and that, when he reached

the 1100 block of Walnut Street, he exited his patrol car and began to

investigate. Id. at 49-50.    According to Officer Fiore, at some unspecified

time “during the course of that investigation,” he observed a maroon Volvo

automobile “travel[ing] south down the 1100 block [by a] . . . driver

matching the description that was given out, a black male wearing a red

shirt.” Id. at 50 (emphasis added). Officer Fiore testified that he radioed to

officers in the vicinity that he wanted to have the maroon Volvo automobile

pulled over; Officer Fiore testified that he later observed that Officer Dewees

had pulled over the particular vehicle that he had spotted. Id. at 51-52.

       Officer Dewees also testified at Appellant’s trial.   As Officer Dewees

testified: following Officer Fiore’s radio alert, Officer Dewees observed the

                                     -8-
J-S79022-14



maroon Volvo being driven “south on Chestnut Street;” Officer Dewees

pursued the vehicle and initiated a vehicle stop of the automobile on “the

800 block of Morton Avenue;” after stopping the vehicle, Officer Dewees

“activated the [public address] system [on his patrol car] and asked the

driver of the vehicle [(who was later identified as Appellant)] to roll down

the windows;” after Appellant refused Officer Dewees’ third demand to roll

down the windows, Officer Dewees and Captain Fell approached the driver’s

side door and removed Appellant from the vehicle; the officers patted

Appellant down for weapons; following the pat-down, Officer Dewees “went

[into the vehicle] and [] checked the area [that had been within Appellant’s]

wing span;” Officer Dewees found an Ice Breakers Sours candy container

under the driver’s seat of the vehicle; when Officer Dewees opened the

container, Officer Dewees discovered “five zip[-]style bags with suspected

cocaine and two sandwich bags with suspected cocaine;” Officer Dewees

took Appellant into custody and, during the search incident to arrest, Officer

Dewees discovered 25 $20.00 bills and six $1.00 bills (totaling $506.00) on

Appellant’s person; and, the total weight of the cocaine in the bags was 8.9

grams. Id. at 64, 65-72, 76-78, and 180-181.

      Moreover, during Appellant’s trial, the Commonwealth presented the

testimony of Lieutenant Michael Boudwin, whom the trial court accepted as

an expert in the field of drug and drug investigations. Id. at 190-191. As

Lieutenant Boudwin testified, the cocaine that was found in the Ice Breakers




                                    -9-
J-S79022-14



Sours container was possessed with the intent to deliver and had a total

street value of approximately $500.00. Id. at 192 and 195.

        At the conclusion of Appellant’s trial, the jury found Appellant guilty of

possession of cocaine and PWID.6               N.T. Trial, 11/21/13, at 142-143.

Further, the jury specifically found that the cocaine Appellant possessed with

the intent to distribute weighed between two and ten grams. Id. at 143.

        On January 24, 2014, the trial court sentenced Appellant to the

mandatory minimum term of three to ten years in prison, pursuant to 18

Pa.C.S.A. § 7508(a)(2)(i), as Appellant was convicted of possession of

cocaine with the intent to deliver where “the aggregate weight of the

compound or mixture containing the substance involved [was] at least 2.0

grams and less than 10 grams” and, at the time of sentencing, Appellant

“ha[d] been convicted of another drug trafficking offense.”         18 Pa.C.S.A.

§ 7508(a)(2)(i); N.T. Sentencing, 1/24/14, at 32 and 35.

        Appellant filed a timely notice of appeal and Appellant now raises the

following claims to this Court:7

          [1.] Whether the trial court erred in denying [Appellant’s]
          suppression motion[?]
____________________________________________


6
    35 P.S. § 780-113(a)(16) and (30), respectively.
7
  The trial court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Appellant complied with the trial court’s order and,
within his Rule 1925(b) statement, Appellant listed the claims he currently
raises on appeal.



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           [2.] Whether the trial court had sufficient evidence to
           present this case to the jury and if the trial court erred in
           not granting [Appellant’s] motion on weight of the
           evidence[?]

           [3.] Whether the trial court committed error during the trial
           which prejudiced [Appellant] and contributed to his guilty
           verdict which requires reversal for [a] new trial[?]

           [4.] Whether the trial court entered an illegal sentence as to
           the minimum mandatory sentence for subsequent
           conviction for [PWID] in violation of [Alleyne v. United
           States, ___ U.S. ___, 133 S.Ct. 2151 (2013)] and if it
           further abused its discretion in sentencing [Appellant] to a
           lengthy tail[?]

Appellant’s Brief at 4.

      At the outset, Appellant contends that the trial court erred when it

denied his motion to suppress. In particular, Appellant claims that the trial

court should have suppressed the evidence against him, as both the initial

stop and the subsequent search of his vehicle were unconstitutional. We are

constrained to find that the initial stop of Appellant’s vehicle was not

supported by reasonable suspicion. As such, we are compelled to conclude

that Appellant was subjected to an illegal seizure of his person and that the

fruits of this illegal seizure must be suppressed. We must, therefore, vacate

Appellant’s convictions and remand for a new trial.

       “Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant’s

rights.”     Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa.



                                       - 11 -
J-S79022-14



Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H). With respect to an

appeal from the denial of a motion to suppress, our Supreme Court has

declared:

         Our standard of review in addressing a challenge to a trial
         court’s denial of a suppression motion is whether the factual
         findings are supported by the record and whether the legal
         conclusions drawn from those facts are correct. When
         reviewing the ruling of a suppression court, we must
         consider only the evidence of the prosecution and so much
         of the evidence of the defense as remains uncontradicted
         when read in the context of the record as a whole. Where
         the record supports the findings of the suppression court,
         we are bound by those facts and may reverse only if the
         legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (internal citations

omitted).8 “It is within the suppression court’s sole province as factfinder to
____________________________________________


8
  On October 30, 2013, our Supreme Court decided In re L.J., 79 A.3d
1073, 1087 (Pa. 2013). In L.J., our Supreme Court held that our scope of
review from a suppression ruling is limited to the evidentiary record that was
created at the suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa.
2013). Prior to L.J., this Court routinely held that, when reviewing a
suppression court’s ruling, our scope of review included “the evidence
presented both at the suppression hearing and at trial.”                   See
Commonwealth v. Charleston, 16 A.3d 505, 516 (Pa. Super. 2011),
quoting Commonwealth v. Chacko, 459 A.2d 311, 317 n.5 (Pa. 1983).
L.J. thus narrowed our scope of review of suppression court rulings to the
evidence presented at the suppression hearing.

However, L.J. declared that the new procedural rule of law it announced was
not retroactive, but was rather “prospective generally” – meaning that the
rule of law was applicable “to the parties in the case and [to] all litigation
commenced thereafter.” In re L.J., 79 A.3d at 1089 n.19. Since the
litigation in the current case commenced before L.J. was filed, the new
procedural rule of law announced in L.J. does not apply to the case at bar.
See id.



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J-S79022-14



pass on the credibility of witnesses and the weight to be given their

testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.

2006).

        “The Fourth Amendment to the [United States] Constitution and Article

I, Section 8 of [the Pennsylvania] Constitution protect citizens from

unreasonable searches and seizures.”               Commonwealth v. McAdoo, 46

A.3d 781, 784 (Pa. Super. 2012). To safeguard our right to be free from

unreasonable searches and seizures, “courts require police to articulate the

basis for their interaction with citizens in [three] increasingly intrusive

situations.” McAdoo, 46 A.3d at 784. Our Supreme Court has categorized

these three situations as follows:

          The first category, a mere encounter or request for
          information, does not need to be supported by any level of
          suspicion, and does not carry any official compulsion to stop
          or respond.       The second category, an investigative
          detention, derives from Terry v. Ohio[9] and its progeny:
          such a detention is lawful if supported by reasonable
          suspicion because, although it subjects a suspect to a stop
          and a period of detention, it does not involve such coercive
          conditions as to constitute the functional equivalent of an
          arrest. The final category, the arrest or custodial detention,
          must be supported by probable cause.

Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003).

        The parties agree that, when the police initially stopped Appellant’s

vehicle, the police did not have probable cause to believe that Appellant had
____________________________________________


9
    Terry v. Ohio, 392 U.S. 1 (1968).




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J-S79022-14



committed a crime.      See N.T. Suppression Hearing, 5/2/13, at 46-47

(Officer Dewees testified that, prior to stopping Appellant’s vehicle, Officer

Dewees “did not observe . . . [the vehicle] commit[] any moving

violations”).   Moreover, Appellant does not challenge the trial court’s

determination that the initial vehicle stop constituted an investigatory

detention; Appellant claims only that the initial traffic stop – and the

resulting seizure of his person – was unsupported by reasonable suspicion.

Appellant’s Brief at 17; see also Commonwealth v. Cruz, 21 A.3d 1247,

1250 (Pa. Super. 2011) (“the forcible stop of a vehicle constitutes an

investigative detention such that there must be reasonable suspicion that

illegal activity is occurring”); Brendlin v. California, 551 U.S. 249, 263

(2007) (holding that a vehicle passenger was “seized from the moment [the

driver’s] car came to a halt on the side of the road”).       We agree with

Appellant.

      We have explained:

         Our Supreme Court has mandated that law enforcement
         officers, prior to subjecting a citizen to an investigatory
         detention, must harbor at least a reasonable suspicion that
         the person seized is then engaged in unlawful activity. The
         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 the officer who initiated the stop had a
         particularized and objective basis for suspecting the
         individual stopped.      Thus, to establish grounds for
         reasonable suspicion, the officer must articulate specific
         observations which, in conjunction with reasonable
         inferences derived from those observations, led him
         reasonably to conclude, in light of his experience, that

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        criminal activity was afoot and that the person he stopped
        was involved in that activity.

        Although a police officer’s knowledge and length of
        experience weigh heavily in determining whether reasonable
        suspicion existed, our Courts remain mindful that the
        officer’s judgment is necessarily colored by his or her
        primary involvement in the often competitive enterprise of
        ferreting out crime. 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 the
        intrusion warrant a man of reasonable caution in the belief
        that the action taken was appropriate. This inquiry will not
        be satisfied by an officer’s hunch or unparticularized
        suspicion.

Commonwealth v. Reppert, 814 A.2d 1196, 1203-1204 (Pa. Super. 2002)

(en   banc)   (internal   quotations,    citations,   corrections,   and   emphasis

omitted).

      “To have reasonable suspicion, police officers need not personally

observe the illegal or suspicious conduct, but may rely upon the information

of third parties, including ‘tips’ from citizens.”     Commonwealth v. Lohr,

715 A.2d 459, 461 (Pa. Super. 1998).             With respect to these third-party

“tips,” we have held:

        Reasonable suspicion, like probable cause, is dependent
        upon both the content of information possessed by police
        and its degree of reliability. Both factors – quantity and
        quality – are considered in the “totality of the circumstances
        – the whole picture,” that must be taken into account when
        evaluating whether there is reasonable suspicion. Thus, if a
        tip has a relatively low degree of reliability, more
        information will be required to establish the requisite
        quantum of suspicion than would be required if the tip were
        reliable.

        When the underlying source of the officer’s information is an
        anonymous call, the tip should be treated with particular

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        suspicion. However, a tip from an informer known to the
        police may carry enough indicia or reliability for the police
        to conduct an investigatory stop, even though the same tip
        from an anonymous informant would likely not have done
        so.

        Indeed, identified citizens who report their observations of
        criminal activity to police are assumed to be trustworthy, in
        the absence of special circumstances, since a known
        informant places himself at risk of prosecution for filing a
        false claim if the tip is untrue, whereas an unknown
        informant faces no such risk. When an identified third party
        provides information to the police, we must examine the
        specificity and reliability of the information provided. The
        information supplied by the informant must be specific
        enough to support reasonable suspicion that criminal
        activity is occurring. To determine whether the information
        provided is sufficient, we assess the information under the
        totality of the circumstances. The informer’s reliability,
        veracity, and basis of knowledge are all relevant factors in
        this analysis.

Commonwealth v. Barber, 889 A.2d 587, 593-594 (Pa. Super. 2005)

(internal quotations and citations omitted).

      Further, we observe that police may conduct “a vehicle stop based

upon a radio bulletin.”     Id. at 594 (internal quotations and citations

omitted). However, for such a stop to be valid:

        someone in the police department must possess sufficient
        information to give rise to reasonable suspicion. The officer
        with the reasonable suspicion, usually the dispatcher, need
        not convey all of this background information to the officer
        who actually effectuates the stop. Thus, the police may
        justify the search by presenting sufficient evidence at the
        suppression hearing that someone in the chain of command
        had reasonable suspicion before the stop, even if the
        arresting officer did not.

        This is not to say, however, that the Commonwealth may
        generate information giving rise to reasonable suspicion for


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        the first time after the stop took place. In other words,
        even though the evidence of reasonable suspicion may be
        presented at a later suppression hearing, the police must
        have this evidence prior to the stop itself.

Id. (internal quotations and citations omitted).

      Finally, we note that, since reasonable suspicion depends upon the

totality of the circumstances, the facts and circumstances giving rise to (or

failing to give rise to) reasonable suspicion will vary depending upon the

specific facts of the case. In the case at bar, the facts of this case reveal

that a number of different factors are relevant to our reasonable suspicion

analysis. These factors include: the source of the original tip (i.e. whether

the source of the tip was an anonymous caller or was a known caller or

victim of the crime); the source of the tipster’s knowledge; the specificity of

the tip; the investigating officer’s training and experience; the physical

proximity of the individual seized to the scene of the crime or the location

given by the tipster; the temporal proximity from the time of the crime to

the time of the tipster’s call; the temporal proximity from the time of the

receipt of the information to the time the officer came upon the individual

seized; whether the tip was predictive of the individual’s future behavior;

whether, before the seizure, the officer witnessed the individual act

suspiciously or irregularly or whether the officer witnessed the individual act

normally; the time and place of the stop; police corroboration of the tip;

and, police corroboration of any alleged criminal activity.

      Here, the Commonwealth’s evidence was insufficient to prove that the

initial stop of Appellant’s vehicle was supported by reasonable suspicion.

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Therefore, we must conclude that the Commonwealth did not satisfy its

“burden [of] prov[ing], by a preponderance of the evidence, that the

challenged evidence was not obtained in violation of the defendant’s rights.”

Wallace, 42 A.3d at 1047-1048. The trial court thus erred when it denied

Appellant’s motion to suppress.

      In the case at bar, the Commonwealth relied solely upon the testimony

of Officers Dewees and Fiore to oppose Appellant’s suppression motion.

However, Officers Dewees and Fiore were only able to testify that dispatch

had informed them that there was “a complaint of shots fired . . . in [the]

area of East 11th Street and Walnut Street” and that dispatch had

informed them that the possible suspect was “a black male wearing a red

shirt” who was seen fleeing the area either “north on Walnut Street” or “on

East 12th Street toward Potter Street.” Even assuming that the dispatcher’s

source of knowledge originated from a citizen’s 911 call, the Commonwealth

did not introduce the audio recording of the 911 call, a transcription of the

911 call, a report of the 911 call, or the testimony of the dispatcher.

Therefore, there is no evidence as to:        the name of the tipster; the

telephone number from which the tipster placed the call; the source of the

tipster’s knowledge regarding the “shots fired” (i.e. whether the tipster

personally witnessed the shots being fired or whether the tipster heard

another person speak of shots being fired); the time at which the shots were

fired; or, the time at which the possible suspect was seen fleeing the area.




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       Further, even assuming that the source of the dispatcher’s knowledge

originated from a tipster’s telephone call to 911, the tipster here was

anonymous. As explained above, under our precedent, anonymous tips of

criminality have “a relatively low degree of reliability” and must “be treated

with particular suspicion.”   We note that, in this case, Officers Fiore and

Dewees must be commended for not only arriving at the scene so soon after

they were dispatched but for also “treating [the] tip with particular

suspicion”: indeed, Officer Dewees testified that, prior to the vehicle stop,

the officers investigated the scene and discovered shell casings on the 1100

block of Walnut Street. In doing so, Officers Fiore and Dewees were able to

partially corroborate the tipster’s report that shots were fired at that

location.

       However, even though the officers were able to partially corroborate

the report that criminal activity occurred at the particular location, the

officers did not possess reasonable suspicion in this case to stop Appellant.

This is because no one in the chain of command – neither the officers nor

dispatch – had reasonable suspicion to believe that Appellant was involved

in the criminal activity. Indeed, with respect to the remaining factors that

we have identified as relevant to our reasonable suspicion analysis, we

observe:


      The physical description of the possible suspect in this case – a “black

       male wearing a red shirt” – was extraordinarily vague and all-



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      encompassing and could have described any number of men in the

      vicinity.

     As was already explained, since we do not know the source of the

      tipster’s knowledge, there is no evidence as to when the alleged

      shooting occurred; therefore, there is no evidence as to whether

      Appellant’s physical proximity to the scene was also temporally

      proximate to the crime.

     Even though Officer Fiore testified that he arrived at the 1100 block of

      Walnut Street “less than one minute” after the dispatch, Officer Fiore

      did not specifically testify as to when he first observed Appellant;

      instead, Officer Fiore merely testified that he observed Appellant

      “during the course of [his] investigation.” Thus, there is no evidence

      regarding the temporal proximity from the time of the dispatch to the

      time Officer Fiore first viewed Appellant.

     The tip was not predictive of Appellant’s future behavior.

     Officer Fiore was unable to corroborate the tipster’s statement that the

      possible suspect was fleeing the area either “north on Walnut Street”

      or “on East 12th Street toward Potter Street.”

     The tipster did not describe the possible suspect as driving a vehicle

      and, when Officer Fiore first saw Appellant, Appellant was driving a

      vehicle.

     When Officer Fiore first saw Appellant, Appellant was neither traveling

      “north on Walnut Street” nor “on East 12th Street toward Potter

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         Street.” Instead, Appellant was in a vehicle, “travel[ing] south down

         the 1100 block.”

        There is no evidence that Appellant behaved suspiciously or irregularly

         prior to the vehicle stop.10

        There is no evidence that, when Officer Fiore first viewed Appellant,

         Appellant was in a high crime area.

         From the above, after viewing the totality of the circumstances in this

case, we must conclude that the police did not have the necessary

reasonable suspicion to effectuate a traffic stop of the vehicle Appellant was

driving, as no one “in the chain of command had reasonable suspicion before

the stop” to believe that Appellant, in particular, was “involved in [the

reported criminal] activity.” See Reppert, 814 A.2d at 1203-1204; Barber,

889 A.2d at 594.        Moreover, since the police discovered the cocaine as a
____________________________________________


10
    Within the trial court’s opinion, the trial court states that “[w]hen
[Appellant] saw Officer Fiore[, Appellant] began to back up his car and go
down a side street.” Trial Court Opinion, 7/7/14, at 1-2. The trial court’s
statement is unsupported by the evidence of record. During trial, Officer
Fiore testified that, while he was investigating the report of “shots fired,”
Officer Fiore observed Appellant driving a vehicle and traveling towards him.
N.T. Trial, 11/20/13, at 50. Officer Fiore testified that, after he saw
Appellant, he observed Appellant “back up and . . . take another side street
over.” Id. However, Officer Fiore never testified that he believed Appellant
saw him or that Appellant’s actions were either suspicious or irregular;
indeed, there is no evidence as to whether Officer Fiore was in uniform or in
plain clothes at the time he first observed Appellant. Therefore, the trial
court’s statement that “[Appellant] saw Officer Fiore” and the trial court’s
implication that Appellant’s subsequent action was suspicious are
unsupported by the record.




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direct result of the illegal seizure of Appellant’s person, the cocaine

constitutes the fruit of this illegal seizure.11 The trial court thus erred when

it denied Appellant’s motion to suppress.12
____________________________________________


11
    It is of no moment to our holding that Appellant might have failed to
demonstrate that he had an expectation of privacy in the vehicle or in
unlabeled, unclaimed containers within the vehicle. This is because the
initial seizure of Appellant’s person was illegal. Therefore, the evidence
obtained pursuant to the illegal seizure of Appellant’s person was tainted and
must be suppressed. See Brendlin, 551 U.S. at 263 (holding that a vehicle
passenger was “seized from the moment [the driver’s] car came to a halt on
the side of the road”); see also Brendlin, 551 U.S. at 259, quoting 6 W.
LaFave, SEARCH AND SEIZURE § 11.3(e) at 194, 195, and n.227 (4th ed. 2004
and Supp 2007) (noting that, even though a passenger does not have an
expectation of privacy in another person’s vehicle, “[i]f either the stopping of
the car, the length of the passenger’s detention thereafter, or the
passenger’s removal from it are unreasonable in a Fourth Amendment
sense, then surely the passenger has standing to object to those
constitutional violations and to have suppressed any evidence found in the
car which is their fruit”).
12
   On appeal, Appellant also claims that the evidence was insufficient to
support his convictions because “the [C]ommonwealth did not sufficiently
establish [that Appellant] personally or constructively[] possessed the drug
items found under the driver seat.” Appellant’s Brief at 18. This claim is
meritless. As the trial court ably explained, when the evidence is viewed in
the light most favorable to the Commonwealth, the evidence is clearly
sufficient to prove that Appellant constructively possessed the cocaine that
was found underneath his seat:

         The jury as the fact finder determined that [Appellant]
         constructively possessed [] the cocaine found in the yellow
         “[I]ce [B]reakers [S]ours” candy container under [the]
         driver seat. [Appellant] was the operator of the vehicle.
         There were no other occupants of the vehicle. The drugs
         were easily accessible to [Appellant]. . . .          When
         [Appellant’s] vehicle was stopped he did not obey Officer
         [Dewees’] command to exit the vehicle[; instead, Appellant]
         stalled and had to be removed from the vehicle. . . .
(Footnote Continued Next Page)


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        We vacate Appellant’s convictions, reverse the trial court’s order

denying Appellant’s suppression motion, and remand for a new trial.13

        Judgment of sentence vacated.               Case remanded.   Jurisdiction

relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2015




                       _______________________
(Footnote Continued)


          The [Commonwealth also presented the following
          evidence:]     Lieutenant Boudwin’s expert testimony
          regarding how the drugs were packaged[;] the amount of
          money found on [Appellant;] the fact that [Appellant] was
          driving a car that was not registered to him[; and,
          Appellant] was arrested in the area of the largest open air
          drug market in Delaware County. . . .

          [Viewed] in the light most favorable to the Commonwealth[,
          this evidence] was sufficient to sustain [Appellant’s]
          conviction for [simple possession and PWID].

Trial Court Opinion, 7/7/14, at 7.

We agree with the trial court’s cogent analysis and conclude that Appellant’s
sufficiency of the evidence claim fails.
13
     Given our disposition, Appellant’s remaining claims are moot.



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