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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
KENNETH DEVORE,                         :          No. 1985 EDA 2013
                                        :
                        Appellant       :


           Appeal from the Judgment of Sentence, June 24, 2013,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0010504-2012


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED APRIL 10, 2015

      Kenneth Devore challenges the judgment of sentence entered on

June 24, 2013, in the Court of Common Pleas of Philadelphia County. We

affirm.

      The facts, as summarized by the trial court, are as follows:

                  At the [suppression] motion hearing, the
            Commonwealth       presented    the    testimony   of
            Philadelphia Police Officer George Gee, establishing
            the following. On August 17, 2012 around 4:25 PM,
            Officer Gee and his partner were patrolling the high
            crime area of 2000 South Alden Street in
            Philadelphia’s 12th Police District, as part of their
            routine tour of duty in a marked police vehicle. At
            that time, the officer came in contact with
            [appellant] who was standing with a crowd of males
            that the officers intended to disperse, on the
            2000 block of South Cecil Street. [Appellant] looked
            in the officer’s direction before walking away
            eastbound on Greenway Street and adjusting his
            waistband on the right side. On the stand, the
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            officer demonstrated this “adjusting” motion by
            taking his right hand, grabbing the right front of his
            waistband and making a circular motion. The officer
            continued to observe [appellant] for a few more
            minutes and during that time, [appellant] again
            stopped, raised up his right foot, adjusted his pants
            in a similar manner, and looked in the officer’s
            direction for the second or third time. As the officer
            proceeded in [appellant’s] direction, [appellant]
            continued onto the 2000 block of Alden Street,
            adjusted his waistband one more time in the manner
            previously described. At that time, the officer then
            told [appellant] to “come here, and [appellant] came
            to [him].” Believing that [appellant] was carrying a
            firearm on his person, the officer then touched and
            recovered a Colt .38 revolver, with the serial number
            defaced, containing six live rounds, from the area
            where he had seen [appellant] adjusting himself.

                  Officer Gee testified credibly that he had been
            assigned to this area . . . for his entire sixteen year
            career. He described it as a “very high crime area”
            explaining that prior to this incident, while patrolling
            the same block, he had made two other gun arrests
            and been the first responder on multiple shootings.
            The officer testified that in his vast experience in this
            area, he has had at least fifty opportunities to
            observe individuals making similar movements as
            those made by [appellant] in “the exact same way”
            that resulted in the recovery of a firearm.           His
            suspicion of [appellant] was additionally heightened
            from his own knowledge of carrying a firearm as a
            police officer. A gun being carried in a holster, as he
            does while on duty, does not require any adjustment
            of the waistband.       From reliable experience, he
            knows that “when [most] people adjust their pants,
            they grab [them] from the sides and pull up, not
            [just] a specific area [as the appellant did in this
            instance].”

Trial court opinion, 4/3/14 at 2-3 (citations omitted).




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     Appellant was arrested and charged with multiple counts of violating

the Uniform Firearms Act. On January 22, 2013, appellant litigated a motion

to suppress. The trial court denied the motion to suppress and found that,

based on Officer Gee’s experience, he had reasonable suspicion to believe

appellant had a weapon. On May 10, 2013, a bench trial was conducted and

the Commonwealth relied on the above-stated evidence.         Appellant was

convicted of the following firearms offenses:    possessing a firearm while

prohibited from doing so, possessing a firearm with an altered manufacturer

number, firearm not to be carried without a license, and carrying a firearm

on the public streets of Philadelphia. Thereafter, appellant was sentenced to

five to ten years of probation for carrying a firearm while prohibited,

followed by consecutive terms of two years’ probation for possessing a

firearm with an altered manufacturer number and three years’ probation for

carrying a firearm without a license. The court imposed a concurrent term

of probation for the remaining offense.

     A timely notice of appeal was filed, and the following issues have been

presented for our review:

           1.    Did the lower court err in denying [appellant’s]
                 motion to suppress where the Commonwealth
                 failed to establish that the police had specific
                 and articulable facts upon which to reasonably
                 believe that criminal activity was afoot to
                 support    the    investigatory   detention   of
                 [appellant]?

           2.    Did the lower court err in denying [appellant’s]
                 motion to suppress where the Commonwealth


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                    failed to show that [appellant] was armed and
                    dangerous and[,] thus[,] lawfully subjected to
                    a Terry frisk?

Appellant’s brief at 4.

      The role of this court in reviewing the denial of a suppression motion is

well established:

                    An appellate court’s standard of review in
                    addressing a challenge to a trial court’s
                    denial of a suppression motion is limited
                    to determining whether the factual
                    findings are supported by the record and
                    whether the legal conclusions drawn
                    from those facts are correct. Since the
                    prosecution prevailed in the suppression
                    court, we may consider only the evidence
                    of the prosecution 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
                    record supports the factual findings of
                    the trial court, we are bound by those
                    facts and may reverse only if the legal
                    conclusions drawn therefrom are in error.

            Commonwealth v. Stevenson, 894 A.2d 759, 769
            (Pa.Super.2006) (citation omitted). Although we are
            bound   by    the   factual    and    the  credibility
            determinations of the trial court which have support
            in the record, we review any legal conclusions
            de novo. Commonwealth v. George, 878 A.2d
            881, 883 (Pa.Super.2005), appeal denied, 586 Pa.
            735, 891 A.2d 730 (2005).

Commonwealth v. Wells, 916 A.2d 1192, 1194-1195 (Pa.Super. 2007).

      We will address appellant’s two claims together as they essentially

both challenge the same concern: that the officer did not have reasonable

suspicion to justify a stop and frisk. There is no dispute between the parties


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that the frisk at issue constituted an investigative detention in the nature of

a protective weapons search which is governed by Terry v. Ohio, 392

U.S. 1 (1968), and requires that police have reasonable suspicion either that

criminal activity was afoot or that appellant was armed and dangerous:

            It is well-established that a police officer may
            conduct a brief investigatory stop of an individual if
            the officer observes unusual conduct which leads him
            to reasonably conclude that criminal activity may be
            afoot. Moreover, if the officer has a reasonable
            suspicion, based on specific and articulable facts,
            that the detained individual may be armed and
            dangerous, the officer may then conduct a frisk of
            the individual’s outer garments for weapons. Since
            the sole justification for a Terry search is the
            protection of the officer or others nearby, such a
            protective search must be strictly limited to that
            which is necessary for the discovery of weapons
            which might be used to harm the officer or others
            nearby. Thus, the purpose of this limited search is
            not to discover evidence, but to allow the officer to
            pursue his investigation without fear of violence.

Commonwealth v. Clemens, 66 A.3d 373, 381 (Pa.Super. 2013), quoting

Commonwealth v. Stevenson, 744 A.2d 1261, 1264-1265 (Pa. 2000).

Reasonable suspicion is determined by the totality of the circumstances. Id.

As such, each case is fact-specific, but a number of common circumstances

have been identified; and where a sufficient number of them coalesce,

reasonable suspicion will be found.

      Here, we conclude that the investigatory detention was supported by

reasonable suspicion of criminal activity and a justifiable belief in the need to

protect officer safety.   Officer Gee, a 16-year veteran in the police force,



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testified that he was patrolling with his partner in the high-crime area of

2000 South Alden Street in Philadelphia’s 12th Police District in a marked

police vehicle.   The officers stopped their vehicle to disperse a group of

males; Officer Gee observed appellant, who was in the crowd, continually

looking in his direction while adjusting his waistband. (Notes of testimony,

1/22/13 at 8-9.) Appellant turned and walked away; he stopped soon after

and adjusted the right side of his pants, looked back and adjusted the right

side of his pants again in the exact same motion. (Id. at 9.) Officer Gee

described, and demonstrated for the court, the manner in which appellant

adjusted his waistband, which led him to believe he was in possession of a

handgun while in a public area. The officer testified that based on his years

of experience, appellant’s motion was consistent with a concealed weapon.

(Id. at 13.)

      We have previously determined that “if a suspect engaged in hand

movements that police know, based on their experience, are associated with

the secreting of a weapon, those movements will buttress the legitimacy of a

protective weapons search of the location where the hand movements

occurred.” In Interest of O.J., 958 A.2d 561 (Pa.Super. 2008) (en banc).

Moreover, “whether the defendant was located in a high crime area similarly

supports the existence of reasonable suspicion.”        Commonwealth v.

Foglia, 979 A.2d 357, 361 (Pa.Super. 2009) (en banc), appeal denied,

990 A.2d 727 (Pa. 2010).



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     While none of these factors, by themselves, gives rise to reasonable

suspicion or is necessarily illegal in nature, when viewed in light of the

totality of the circumstances, the officer’s suspicion of appellant was

reasonable. See Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999)

(circumstances which alone would be insufficient may combine to show

reasonable suspicion).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/10/2015




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