J-A31038-17

                                2018 PA Super 18

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                    Appellant            :
                                         :
                                         :
              v.                         :
                                         :
                                         :   No. 2164 EDA 2016
 KAREEM THOMAS

                    Appeal from the Order June 15, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0002442-2016


BEFORE:    PANELLA, J., OLSON, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                      FILED FEBRUARY 01, 2018

      The Commonwealth of Pennsylvania appeals from the order of the Court

of Common Pleas of Philadelphia County granting the pretrial suppression

motion filed by Appellee Kareem Thomas. After careful review, we reverse

and remand for further proceedings.

      The relevant facts and procedural history are as follows: in the early

morning hours of February 21, 2016, at approximately 1:20 a.m., Philadelphia

Police Officer Owen Schaeffer was on patrol in the 12th District of Philadelphia

when he received a radio report of a black male with a gun near 6400

Greenway Avenue. The report indicated that the male was dressed in a blue

hooded sweatshirt and blue pants or blue jeans. Officer Schaeffer, who had

been assigned to the 12th district for ten years, indicated that the reported

location of 6400 Greenway Avenue was known as a high-crime area due to

numerous homicides and shootings. In fact, Officer Schaeffer was aware that


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* Former Justice specially assigned to the Superior Court.
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a shooting had taken place in this area just hours before and a homicide had

been committed in this area just days earlier.

      Officer Schaeffer and his partner, Officer Gresham, responded to the

reported location in their marked police vehicle. When they approached the

block just minutes after receiving the dispatch, Officer Schaeffer took notice

of a black male, later identified as Appellee, walking eastbound on the north

side of Greenway Avenue. Appellee was wearing a black hooded sweatshirt,

a black jacket, and black pants. After Officer Schaeffer circled the block, he

noticed Appellee on the steps of a house. The officers repeatedly circled the

block four or five times, and each time, Appellee would reverse his direction

and look back at the officers. See Notes of Testimony (N.T.), 6/15/16, at 10

(“[h]e just kept changing directions each time I went around the block. He

changed directions and – when I passed him, I could see him looking back at

me in my rear view mirror”).

      On the last time the officers circled the block, they observed Appellee

cross the street and walk westbound towards 65th Street. Officer Schaeffer

pulled his patrol car up next to Appellee, who had his hands in his pockets.

When Officer Schaeffer asked to see Appellee’s hands, Appellee refused to

remove his hands from his pockets. Thereafter, Officer Schaeffer exited his

patrol car, removed Appellee’s hands from his pockets, and patted Appellee

down. When Officer Schaeffer touched Appellant’s right front jacket pocket,

he immediately felt a gun.     Officer Schaeffer recovered a firearm from

Appellee’s pocket and placed him under arrest.

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       Appellee was charged with several violations of the Uniforms Firearm

Act (VUFA).1 Thereafter, Appellee filed a suppression motion, claiming he was

subjected to an unreasonable search and seizure as the officers did not have

reasonable suspicion to stop and frisk him. On June 15, 2016, the lower court

held a suppression hearing at which Officer Schaeffer testified.        At the

conclusion of the hearing, the lower court granted Appellee’s motion.

       The Commonwealth filed this timely appeal, certifying therein that the

suppression court's order would terminate or substantially handicap the

prosecution. See Pa.R.A.P. 311(d) (permitting prosecution to appeal from an

interlocutory order if it certifies the order will terminate or substantially

handicap the prosecution). The lower court ordered the Commonwealth to file

a Pa.R.A.P. 1925(b) statement, and the Commonwealth timely complied.

       The suppression court filed a responsive opinion explaining the reasons

for its ruling. Specifically, the court determined that suppression was

warranted as the radio call did not provide adequate basis for an investigatory

stop, the officers did not observe Appellee participating in criminal activity,

and the officers did not point to any evidence that would suggest Appellee was

armed and dangerous.            The lower court emphasized that the officer’s

description of Appellee walking up and down the street was not indicative of

criminal activity.



____________________________________________


118 Pa.C.S.A. §§ 6105 (Possession of Firearm Prohibited); 6106 (Firearms
not to be Carried Without a License); 6108 (Carrying Firearms in Philadelphia).

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      On appeal, the Commonwealth asserts that the suppression court erred

in granting Appellee’s suppression motion when (1) the officers responded to

a report of a man with a gun in an area of high crime and gun related violence,

(2) the officers observed Appellee suspiciously change direction and watch

their patrol car each of the four or five times they circled the block, and (3)

Appellee refused their request to remove his hands from his pocket.

      In reviewing an appeal from an order granting a suppression motion,

we are guided by the following standard:

            When the Commonwealth appeals a suppression
            order, we consider only the evidence from [Appellee's]
            witnesses together with the portion of the
            Commonwealth's evidence which is uncontroverted.
            Our standard of review is limited to determining
            whether the suppression court's factual findings are
            supported by the record, but we exercise de novo
            review over the suppression court's conclusions of
            law.

      Commonwealth v. Snyder, 599 Pa. 656, 963 A.2d 396, 400
      (2009) (citations omitted). Further, “[a]ppellate courts are limited
      to reviewing only the evidence presented at the suppression
      hearing when examining a ruling on a pre-trial motion to
      suppress.” Commonwealth v. Stilo, 138 A.3d 33, 35–36
      (Pa.Super. 2016) (citation omitted). “It is within the suppression
      court's sole province as factfinder to 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) (quotation marks and quotation omitted).

Commonwealth v. Harris, ___A.3d___, 2017 PA Super 402 (Pa.Super. Dec.

20, 2017)

      In this case, the Commonwealth argues the trial court erred in finding

the arresting officers lacked the requisite suspicion to justify their protective

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frisk of Appellee.   To evaluate the Commonwealth’s challenge to the lower

court’s decision to suppress evidence obtained from the frisk, we begin our

analysis by discussing whether the officers needed any level of requisite

suspicion in their initial approach of Appellee.

      The Fourth Amendment to the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution protect individuals from being

subjected to unreasonable searches and seizures. Commonwealth v. Lyles,

626 Pa. 343, 350, 97 A.3d 298, 302 (2014). Search and seizure jurisprudence

defines three levels of interaction between citizens and police officers and

requires different levels of justification based upon the nature of the

interaction.   Commonwealth v. Baldwin, 147 A.3d 1200, 1202–1203

(Pa.Super. 2016).

      These categories include (1) a mere encounter, (2) an
      investigative detention, and (3) custodial detentions. The first of
      these, 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 to 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. (citation omitted).

      To determine whether and when a seizure has occurred, we employ “an

objective test entailing a determination of whether, in view of all surrounding

circumstances, a reasonable person would have believed that he was free to




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leave.” Commonwealth v. Strickler, 563 Pa. 47, 58, 757 A.2d 884, 889 (Pa.

2000) (citations omitted).

      In evaluating the circumstances, 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.

Id. at 58-59, 757 A.2d at 890 (internal citation and footnotes omitted).

      It is well-established that police officers may approach citizens and ask

them questions without violating the Fourth Amendment:

      Both the United States and Pennsylvania Supreme Courts have
      held that the approach of a police officer followed by questioning
      does not constitute a seizure. Florida v. Bostick, 501 U.S. 429,
      434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (police can
      approach people at random, ask questions, and seek consent to
      search) (collecting cases); Florida v. Royer, 460 U.S. 491, 497,
      103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (“law enforcement officers
      do not violate the Fourth Amendment by merely approaching an
      individual in the street or in another public place, by asking him is
      he is willing to answer some questions, [or] by putting questions
      to him if the person is willing to listen”); Commonwealth v.
      Smith, 575 Pa. 203, 836 A.2d 5, 11 (2003) (“the mere approach
      of police followed by police questioning ... does not amount to a
      seizure”); In re D.M., 566 Pa. 445, 781 A.2d 1161, 1164 (2001)
      (“the police may approach anyone in a public place to talk to him,
      without any level of suspicion”).

Commonwealth v. Coleman, 19 A.3d 1111, 1117 (Pa.Super. 2011).

      In this case, Officer Schaeffer and Officer Gresham responded to a

report of a black male with a gun in area of high crime and violence. Although

Appellee did not match the exact description of the suspect provided in the

radio call, the officers’ suspicions were aroused when they observed Appellee


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repeatedly change his direction and watch the officers closely as they

continued to circle the block in their patrol car.        Consistent with the

aforementioned precedent, Officer Schaeffer did not seize Appellee when he

pulled his patrol car up next to Appellee, who was standing on a public street.

      Moreover, the interaction remained a mere encounter when Officer

Schaeffer requested that Appellee remove his hands from his pockets. An

officer is justified in insisting that a citizen not conceal his hands during an

encounter with police; an officer may make this reasonable request to ensure

his or her own protection in case that individual is armed.

      This Court has stated that if during a mere encounter, an
      individual on his own accord, puts his hands in his pocket, thereby
      creating a potential danger to the safety of a police officer, the
      officer may justifiably reach for his side arm and order the
      individual to stop and take his hand out of his pocket. Such
      reaction by a police officer does not elevate the mere encounter
      into an investigative detention because the officer's reaction was
      necessitated by the individual's conduct.

Coleman, 19 A.3d at 1117 (quoting Commonwealth v. Carter, 779 A.2d

591, 594 (Pa.Super. 2001) (noting that the fact that the officer asked the

appellant to take his hands out of his pockets did not turn the encounter into

a seizure)).   See also Commonwealth v. Blair, 860 A.2d 567, 573

(Pa.Super. 2004) (finding that interaction remained a mere encounter when

an officer approached a parked car and asked its occupants to show their

hands).




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      We now evaluate the Commonwealth’s argument that the trial court

erred in finding Officer Schaeffer lacked reasonable suspicion to stop and frisk

Appellee. The following principles guide our analysis:

      In the seminal case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,
      20 L.Ed.2d 889 (1968), the United States Supreme Court
      indicated that police may stop and frisk a person where they had
      a reasonable suspicion that criminal activity is afoot. In order to
      determine whether the police had a reasonable suspicion, the
      totality of the circumstances—the whole picture—must be
      considered. United States v. Cortez, 449 U.S. 411, 417, 101
      S.Ct. 690, 66 L.Ed.2d 621 (1981). “Based upon that whole picture
      the detaining officers must have a particularized and objective
      basis for suspecting the particular person stopped of criminal
      activity.” Id. at 417–18, 101 S.Ct. 690. Pennsylvania courts have
      consistently followed Terry in stop and frisk cases, including those
      in which the appellants allege protections pursuant to Article 1,
      Section 8 of the Pennsylvania Constitution.

In re D.M., 566 Pa. 445, 449, 781 A.2d 1161, 1163 (2001).

      Moreover, this Court has held that an officer may conduct a limited

search, i.e., a pat-down of the person stopped, if the officer possesses

reasonable suspicion that the person stopped may be armed and dangerous.

Commonwealth v. Carter, 105 A.3d 765, 768–69 (Pa.Super. 2014) (en

banc) (citation omitted).   “In assessing the reasonableness of the officer’s

decision to frisk, we do not consider his 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. Zhahir, 561

Pa. 545, 554, 751 A.2d 1153, 1158 (2000) (quoting Terry, 392 U.S. at 27,

88 S.Ct. at 1883).   Further, “the court must be guided by common sense

concerns that give preference to the safety of the police officer during


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an encounter with a suspect where circumstances indicate that the suspect

may have, or may be reaching for, a weapon.” Commonwealth v.

Stevenson, 894 A.2d 759, 772 (Pa.Super. 2006) (citing Zhahir, 561 Pa. at

555, 751 A.2d at 1158).

      Appellee’s refusal to comply with Officer Schaeffer’s request to remove

his hands from his pockets justified the frisk of his person for the protection

of the officers, so that they could pursue their investigation without fear of

violence. It was reasonable for Officer Schaeffer to infer that Appellee may

have been armed and dangerous, given his refusal to show his hands and his

evasive movements in response to police presence in an area specifically

known for high levels of crime and violence. See also Zhahir, 751 A.2d at

1157-58 (finding Terry frisk justified by the suspect’s attempt to reach into

his pocket in response to approaching officers which was “consistent with

retrieval of a weapon”); Commonwealth v. Hall, 713 A.2d 650, 653

(Pa.Super. 1998) (finding defendant’s persistence in keeping his hand in his

pocket after officer asked to see his hands escalated the mere encounter and

justified a stop and frisk of his person), rev’d on other grounds, 771 A.2d 732.

      We reject the lower court’s rationale that the Commonwealth failed to

show specific and articulable facts that Appellee was armed and dangerous as

it characterized Appellee’s movement in walking up and down the street as

innocent behavior. This Court has held that “even in a case where one could

say that the conduct of a person is equally consistent with innocent activity,

the suppression court would not be foreclosed from concluding that reasonable

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suspicion nevertheless existed. … [E]ven a combination of innocent facts,

when taken together, may warrant further investigation.” Carter, 105 A.3d

at 772 (finding reasonable suspicion existed to stop and frisk the appellee,

who was present in a high crime area, appeared to be concealing a weighted

bulge in his pocket from police officers, and walked away multiple times when

the officers’ patrol car passed by).

      In line with this reasoning, the conduct of the defendant in Terry could

have similarly been characterized as innocent behavior. The officer in Terry

was on patrol in downtown Cleveland at approximately 2:30 p.m., when he

observed Terry and a companion, walking back and forth from a street corner,

looking into a set of store windows, and then returning to converse with each

other. The men repeated this course of conduct five or six times in ten to

twelve minutes in an area known for shoplifting. As the officer suspected that

the men were casing the store for a daylight robbery (which would likely

involve the use of weapons), he stopped and frisked Terry and recovered a

firearm from his pocket.

      The High Court acknowledged that Terry was not prohibited from looking

into the store windows, however, noted that when viewing the totality of the

circumstances, each of the suspects’ actions were “perhaps innocent in itself,

but … taken together warranted further investigation.” Terry, 392 U.S. at 22,

88 S. Ct. at 1881-82. Moreover, the Terry Court emphasized that “[i]t would

have been poor police work indeed for an officer of 30 years' experience in

the detection of thievery from stores in this same neighborhood to have failed

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to investigate this behavior further.” Id. at 23, 88 S. Ct. at 1881. Ultimately,

the Terry Court reasoned that the officer was justified in stopping and frisking

Terry as he reasonably believed that Terry was armed and presented a threat

of danger to himself and to others.

      Likewise, in this case, since we find the Commonwealth demonstrated

that the officers had reasonable suspicion to seize Appellee and conduct a

limited-Terry patdown based on their belief that he was armed and

dangerous, we conclude that the lower court erred in granting Appellee’s

suppression motion. Accordingly, we reverse the suppression court’s order

and remand this case for further proceedings, consistent with this opinion.

     Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/1/18




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