J-S94041-16
                                2017 PA Super 132
COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

DONTE LAMAR PARKER

                              Appellant                No. 877 MDA 2016


             Appeal from the Judgment of Sentence April 27, 2016
      in the Court of Common Pleas of Lancaster County Criminal Division
                                  at No(s):
                           CP-36-CR-0005814-2014
                           CP-36-CR-0005837-2014

BEFORE: LAZARUS, RANSOM, and FITZGERALD,* JJ.

OPINION BY FITZGERALD, J.:                               FILED MAY 01, 2017

        Appellant, Donte Lamar Parker, appeals from the judgment of

sentence entered in the Lancaster County Court of Common Pleas following

his convictions for possession of a controlled substance with the intent to

deliver (“PWID”),1 criminal use of a communication facility2 and criminal

conspiracy.3 Appellant challenges the trial court’s order denying his motion

to suppress information that he provided to police officers during an

encounter on the street on August 1, 2014. We reverse the order denying

suppression.



*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 7512(a).
3
    18 Pa.C.S. § 903(a)(1).
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      On November 20, 2014, Appellant was arrested for committing drug-

related offenses on June 24, 2014 and July 17, 2014. The Commonwealth

filed (1) an information at No. 5814-2014 charging Appellant with

committing PWID and criminal use of a communication facility on June 24,

2014, and (2) an information at No. 5837-2014 charging Appellant with

committing PWID, criminal conspiracy and criminal use of a communication

facility on July 17, 2014.        Subsequently, the trial court granted the

Commonwealth’s motion to consolidate both informations for trial.

      Prior to trial, Appellant filed a motion to suppress evidence that police

officers obtained during an encounter on the street with Appellant on August

1, 2014.4 Mot. to Suppress, 7/17/15. On February 1, 2016, the trial court

held an evidentiary hearing and denied the motion.

      The trial court did not enter findings of fact and conclusions of law at

the conclusion of the suppression hearing, but it found the following facts in

its Pa.R.A.P. 1925(a) opinion:5



4
   The data obtained on August 1, 2014 was important to the
Commonwealth’s case because police officers used it to connect Appellant to
the drug-related offenses on June 24, 2014 and July 24, 2017. See, e.g.,
N.T., 2/2/16, at 281 (Commonwealth’s closing argument that phone number
provided by Appellant on August 1, 2014 was the same number that was
used to set up drug sales on June 24, 2014 and July 17, 2014).
5
  When the trial court does not enter findings of fact and conclusions of law
during suppression proceedings, this Court may garner the trial court’s
findings of fact and conclusions of law from its Pa.R.A.P. 1925(a) opinion.
See Commonwealth v. Stevenson, 832 A.2d 1123, 1126 (Pa. Super.



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       On June 24, 2014, Officer James Hagy was the secondary
       surveillance officer for a “buywalk” operation[1] in the first
       block of West James Street in the City of Lancaster. The
       primary surveillance officer that day was Officer James
       Boas.     Officer Hagy testified that the target of the
       investigation was a dealer that went by the street name of
       “Heart”. Officer Boas radioed to his fellow officers the
       following description of the target that was received from
       the undercover officer involved in the drug buy: “black
       male, dreadlock style hair, wearing an orange shirt, [and]
       camo shorts.” Officer Hagy testified that he then observed
       the individual leaving the location where the buy occurred,
       and noticed that he walked with a limp or “unique gait”.
                [1]
                  0fficer Hagy described a “buy-walk”
                operation as one where the police utilize an
                undercover police officer and sometimes a
                confidential informant to go out and make
                street-level drug buys. After that buy, the
                individual that sold drugs to the undercover
                or the informant is allowed to leave and is
                identified at a later time, whether it’s using
                investigatory     means      with   cameras,
                researching     databases     with   different
                addresses, phone numbers, et cetera. As
                an absolute last resort, they are stopped
                and identified.

       On August 1, 2014, Officer Hagy was parked in a police
       van at the McDonald’s parking lot on West King Street in
       the City of Lancaster when he observed the individual from
       June 24, 2014, whom he knew by the street name “Heart”.
       Officer Hagy was “100 percent positive that [this man] was
       the same individual” he had observed on June 24th.
       Because “Heart” was the subject of an ongoing felony drug
       investigation by the Selective Enforcement Unit, Officer
       Hagy instructed Officer Boas, who was on bike patrol at
       the time, to stop the individual.




2003) (citing Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa.
Super. 2002)).



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         Officer Boas testified that on August 1, 2014, at
         approximately 10:00 p.m., he was on bike patrol in the
         vicinity of the McDonald’s on West King Street. Officer
         Boas was informed by Officer Hagy at that time that their
         target, known on the street as “Heart,” was observed
         walking from the McDonald’s parking lot east on West King
         Street. Officer Boas followed this individual for a short
         time and then stopped him at the corner of Prince and
         King Streets. As a pretext for stopping him, Officer Boas
         testified that he told the individual “there was a
         disturbance at McDonald’s and he was a part of the
         disturbance.” Officer Boas asked for the man’s name, date
         of birth, address, telephone number and Social Security
         number because the suspect did not have any
         identification on him at the time. After the suspect’s
         identity was confirmed, he was released. At all times, the
         suspect was cooperative and provided the information
         requested of him. The detention lasted no longer than five
         minutes. Officer Boas conceded on cross-examination that
         the sole purpose for the stop was to identify the suspect
         for purposes of their felony drug investigation.

Trial Ct. Op., 7/18/16, at 5-7 (with minor grammatical revisions and record

citations omitted).   These findings of fact are accurate except for one

omission. Officer Boas did not stop Appellant by himself on August 1, 2014.

Instead, both Officer Boas and Officer Mease stopped Appellant by stationing

their bicycles in front of him. N.T. Suppression Hr’g, 2/1/16, at 29-30.

      Appellant moved to suppress the information that he gave Officer Boas

on August 1, 2014, i.e., his name, date of birth, address, telephone number

and Social Security number, on the grounds that Officer Boas (1) lacked

reasonable suspicion to detain Appellant, and (2) gave a pretextual reason

for stopping Appellant.   Id. at 3-4.   Following an evidentiary hearing, the




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trial court found that Officer Boas had reasonable suspicion to stop Appellant

and denied Appellant’s motion. Id. at 37.

      On February 2, 2016, a jury found Appellant guilty of all charges. The

trial court sentenced Appellant on April 27, 2016 to an aggregate term of

sixteen months’ to three years’ imprisonment followed by two years’

probation. On May 27, 2016, Appellant timely appealed. Both Appellant and

the trial court complied with Pa.R.A.P. 1925.

      Appellant raises one issue in this appeal, a challenge to the evidence

obtained from him on August 1, 2014:

          Did the trial court err in denying [Appellant’s] Motion to
          Suppress, where police subjected him to an investigative
          detention without reasonable suspicion that he was
          involved in any illegal activity on August 1, 2014?

Appellant’s Brief at 5.

      When this Court addresses a challenge to the denial of a suppression

motion,

          [we are] 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 an
          appellate court, whose duty it is to determine if the


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J-S94041-16


          suppression court properly applied the law to the facts.
          Thus, the conclusions of the courts below are subject to [ ]
          plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa. Super. 2015)

(citation omitted).      When reviewing the suppression court's rulings, we

consider only the suppression record. In re L.J., 79 A.3d 1073, 1085 (Pa.

2013) (“it is inappropriate to consider trial evidence as a matter of course,

because it is simply not part of the suppression record, absent a finding that

such evidence was unavailable during the suppression hearing”).6

      “The Fourth Amendment of the Federal Constitution and Article I,

Section   8   of   the   Pennsylvania   Constitution   protect   individuals   from

unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012). In Fourth Amendment jurisprudence, there are

three categories of interactions between citizens and the police:

          The first [category] is a “mere encounter” (or request for
          information) which need not be supported by any level of
          suspicions, but carries no official compulsion to stop or
          respond. The second, an “investigative detention,” must
          be supported by a 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.




6
  In accordance with L.J., the trial court limited the discussion in its
Pa.R.A.P. 1925(a) opinion to the evidence adduced during the suppression
hearing.



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J-S94041-16


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

(citation omitted).

         Reasonable suspicion is a less stringent standard than
         probable cause necessary to effectuate a warrantless
         arrest, and depends on the information possessed by
         police and its degree of reliability in the totality of the
         circumstances. In order to justify the seizure, a police
         officer must be able to point to specific and articulable
         facts leading him to suspect criminal activity is afoot. In
         assessing the totality of the circumstances, courts must
         also afford due weight to the specific, reasonable
         inferences drawn from the facts in light of the officer’s
         experience and acknowledge that innocent facts, when
         considered collectively, may permit the investigative
         detention.

Commonwealth v. Clemens, 66 A.3d 373, 379 (Pa. Super. 2013) (citation

omitted).

      The   Pennsylvania   Supreme      Court   has   adopted   the   objective

Jones/Mendenhall7 standard “in determining whether the conduct of the

police amounts to a seizure or whether there is simply a mere encounter

between citizen and police officer.”    Commonwealth v. Matos, 672 A.2d

769, 774 (Pa. 1996) (citations omitted). The Matos court elaborated:

         In [Commonwealth v. Hicks, 253 A.2d 276 (Pa. 1969)],
         this Court adopted the United States Supreme Court’s
         decision in Terry v. Ohio, 392 U.S. 1, [] (1968), which
         permits a police officer to effect a precautionary seizure
         where the police have a reasonable suspicion that criminal
         activity is afoot. Terry, and by analogy Hicks, recognized
         that there are some instances in which an individual may

7
 United States v. Mendenhall, 446 U.S. 544 (1980); Commonwealth v.
Jones, 378 A.2d 835 (Pa. 1977).




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J-S94041-16


         not be arrested, but will still be considered to be “seized.”
         In Jones, this Court adopted an objective standard[8] for
         determining what amount of force constitutes the initiation
         of a Terry stop: whether a reasonable [person] innocent
         of any crime, would have thought he was being restrained
         had he been in the defendant’s shoes. This case, which
         preceded the United States Supreme Court’s decision in. . .
         Mendenhall, . . . was a precursor to the so-called
         “Mendenhall” test posited by the United States Supreme
         Court: ‘a person has been ‘seized’ within the meaning of
         the Fourth Amendment only if, in view of all the
         circumstances surrounding the incident, a reasonable
         person would have believed he was not free to leave.”

Id. at 773-74 (some punctuation and citations omitted).

      In applying this “totality of the circumstances” test,

         the focus is directed toward whether, by means of physical
         force or show of authority, the citizen-subject’s movement
         has in some way been restrained.           In making this
         determination, courts must apply the totality-of-the-
         circumstances approach, with no single factor dictating the
         ultimate conclusion as to whether a seizure has occurred.

Commonwealth v. Strickler, 757 A.2d 884, 890 (Pa. 2000) (footnotes and

citation omitted).    “The totality-of-the-circumstances test is ultimately

centered on whether the suspect has in some way been restrained by

physical force or show of coercive authority.”        Lyles, 97 A.3d at 302

(citation omitted).




8
  The subjective beliefs of the officer, e.g., a belief that a seizure occurred
and the seized individual is not free to leave, “are immaterial to an objective
seizure determination.” Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa.
2014).




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J-S94041-16


      Factors examined in the totality-of-the-circumstances approach include

“all circumstances evidencing a show of authority or exercise of force,

including the demeanor of the police officer, the manner of expression used

by the officer in addressing the citizen, and the content of the interrogatories

or statements.”   Commonwealth v. Mendenhall, 715 A.2d 1117, 1119

(Pa. 1998).   The Superior Court has also provided a non-exclusive list of

factors, which includes:

         the number of officers present during the interaction;
         whether the officer informs the citizen they are suspected
         of criminal activity; the officer’s demeanor and tone of
         voice; the location and timing of the interaction; the visible
         presence of weapons on the officer; and the questions
         asked. Otherwise inoffensive contact between a member
         of the public and the police cannot, as a matter of law,
         amount to a seizure of that person.

Commonwealth v. Collins, 950 A.2d 1041, 1047 n.6 (Pa. Super. 2008)

(en banc) (citation omitted).

      Importantly, one combination of factors constitutes an investigatory

detention as a matter of law.        “[T]he combination of the threatening

presence of several officers and the indication that appellant was suspected

of criminal activity [requires the conclusion that] a reasonable person would

believe that he was not free to leave.”     Commonwealth v. Martin, 705




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A.2d 887, 891 (Pa. Super. 1997) (citing Commonwealth v. Wright, 672

A.2d 826, 829 (Pa. Super. 1996)).9

      In the present case, Officers Boas and Mease confronted Appellant on

the street at night.   Officer Boas falsely stated10 to Appellant that he was

part of a disturbance at a McDonald’s and requested information pertaining

to Appellant’s identity. The presence of two officers, along with Officer Boas’

suggestion that Appellant was suspected of criminal activity, gave rise to an

investigative detention, because a reasonable person in Appellant’s position

would not have felt free to leave. Martin, 705 A.2d at 891; Wright, 672

A.2d at 829.   Moreover, the officers did not have reasonable suspicion to

stop Appellant. Although Officer Hagy observed Appellant engage in a drug

transaction on June 24, 2014, over one month earlier, there was no criminal

activity afoot on the evening of August 1, 2014.        Appellant was simply

walking down the street.     Indeed, his lack of criminal activity prompted

9
  This precept is consistent with decisions from other jurisdictions. See,
e.g., United States v. Brown, 448 F.3d 239, 245 (3d Cir. 2006)
(investigatory detention took place where officer made “clear show of
authority” by telling defendant and his companion “that a robbery victim was
being brought over to identify them as possible suspects and, if they were
not identified, they would be free to go”); United States v. Saperstein,
723 F.2d 1221, 1226 (6th Cir. 1983) (defendant seized where agent made
“the definite statement that he had information concerning the [defendant]
and his probable activities as a drug courier”); State v. Walker, 251 P.3d
618, 623 (Kan. 2011) (investigatory detention where officer “told Walker he
was talking to Walker because he fit the suspect’s description in a nearby
criminal incident and immediately asked for Walker’s ID”).
10
   When asked whether he “made up a ruse” in order to ask for Appellant’s
information, Officer Boas answered: “Yes.” N.T. Suppression Hr’g, at 31.



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Officer Boas to invent the pretext that Appellant had been part of a recent

disturbance at a McDonald’s.

      We recognize that multiple recent decisions have held that police

officers do not need reasonable suspicion to ask individuals for identification.

See Lyles, 97 A.3d at 306-07; Commonwealth v. Au, 42 A.3d 1002, 1007

(Pa. 2012); Commonwealth v. Baldwin, 147 A.3d 1200, 1204 (Pa. Super.

2016). For example, in Au, a police officer had an encounter late at night

with occupants of a parked vehicle, who responded that they were hanging

out and that there were juveniles in the vehicle. Au, 42 A.3d at 1003. The

officer approached, asked what was going on and requested identification

from the occupants. Id. The officer did not activate the emergency lights

on his cruiser, position his cruiser so as to block the vehicle from exiting

parking lot, brandish his weapon, make intimidating movements, threats, or

commands, or speak in authoritative tone.       Id.   Our Supreme Court held

that the officer’s request for identification did not, by itself, transform the

encounter into an investigatory detention. Id. at 1009; see also Lyles, 97

A.3d at 304-06 (interaction in which officers approached defendant and

another man in front of abandoned building in area where numerous

burglaries had recently occurred, asked what they were doing there, and

requested identification did not escalate beyond mere encounter; officer’s

jotting down of identification information, as opposed to attempting to

memorize it, did not restrain defendant’s freedom of movement, officer’s



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request was not accompanied by physical restraint, manifestation of

authority, or a mandate to comply, and officer did not tell defendant that he

was not free to leave, or brandish a weapon); Baldwin, 147 A.3d at 1201,

1204 (police officers’ request for identification from defendant was mere

encounter, where officers approached defendant in their marked patrol car in

parking lot without activating their emergency lights, believing that he may

have discarded contraband behind a vehicle, and officers did not block

defendant’s path).

     These decisions are distinguishable from the present case for a simple

reason: the investigating officers in these cases did not suggest that the

defendants were suspected of criminal wrongdoing, and therefore the

encounters did not transform into investigatory detentions.     In contrast,

Officer Boas insinuated that Appellant was involved in a criminal disturbance

at McDonald’s, and therefore a reasonable person in Appellant’s position

would not have felt free to leave. See Martin, 705 A.2d at 891; Wright,

672 A.2d at 829.

     For these reasons, we conclude that the trial court erred in denying

Appellant’s motion to suppress. This error prejudiced Appellant, because the

Commonwealth used the information obtained from Appellant on August 1,

2014 to connect him to the drug transactions on June 24, 2014 and July 17,

2014. Accordingly, we reverse and remand for a new trial.




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      Judgment of sentence vacated.      Suppression order reversed.   Case

remanded for further proceedings consistent with this opinion. Jurisdiction

relinquished.

      Judge Lazarus joins the Opinion.

      Judge Ransom Concurs in the Result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/1/2017




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