J-A06030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

THAR SOLTANI,

                            Appellee                 No. 3739 EDA 2015


                   Appeal from the Order November 23, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001970-2015


BEFORE: PANELLA, SHOGAN, and RANSOM, JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 24, 2017

       Appellant, the Commonwealth of Pennsylvania, appeals from the

November 23, 2015 order granting the suppression motion filed by Appellee,

Thar Soltani.1 After careful review, we affirm.

       The relevant facts and procedural history of this matter were set forth

by the suppression court as follows:
____________________________________________


1
    The Commonwealth may appeal an interlocutory order suppressing
evidence when it provides a certification with its notice of appeal that the
order    terminates   or    substantially  handicaps      the   prosecution.
Commonwealth v. Whitlock, 69 A.3d 635, 636 n.2 (Pa. Super. 2013);
Pa.R.A.P. 311(d) (commonly referred to as a Dugger certification; see
Commonwealth v. Dugger, 486 A.2d 382 (Pa. 1985) (The
Commonwealth’s appeal of a suppression order is proper as an appeal from
a final order when the Commonwealth certifies in good faith that the
suppression order substantially handicaps its prosecution.)).            The
Commonwealth’s notice of appeal contains the required certification. Notice
of Appeal, 12/14/15, at unnumbered 1.
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            At the suppression hearing, the Commonwealth called its
     lone witness, SEPTA Police Sergeant Andrew Lachowicz, to the
     stand. Sergeant Lachowicz testified that on February 7, 2015 at
     approximately 8:30 p.m., he received a radio call directing him
     to the platform area of 1300 Market Street, which services the
     subway surface/trolley and Market-Frankford lines. The call was
     for “male in the track area”, and provided a description of a
     white male with blue jacket and blue knit hat. When Sergeant
     Lachowicz arrived at the platform, no one was in the track area.
     He was in “radio communication with someone in the video
     room”, who directed him to Appellee, who was standing to his
     left. Sergeant Lachowicz approached Appellee and asked him if
     he was in the track area; Appellee responded, “Yes, I dropped
     my phone.” Sergeant Lachowicz testified that he asked for
     identification to confirm Appellee’s identity before “releasing
     him.” (See N.T. 11/16/15, pp. 8-12).

           Sergeant Lachowicz’s examination by the Commonwealth
     continued as follows:

          Q. So fair to say you checked him and everything
          checked out and he was going to be free to go?

          A. That’s correct.

          Q. During the course of your investigation of this
          defendant to do those checks, ID, name, et cetera,
          did you ask any other questions of him?

          A. I did.

          Q. What were those questions?

          A. I had asked him if that was his phone, and he
          produced the phone, he showed me the phone. I also
          asked him if he had identification and he began to
          hand me paperwork. Then I also asked him if he
          had any knives, guns, needles, drugs or
          anything like that on his person.



          Q. Why did you ask him that question?


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          A. That’s a generalized question I like to ask
          people to see what their demeanor is at that
          point in time.

          Q. So up to that point there was nothing
          specific about your interaction that caused you
          to ask that question?

          A. That’s correct.

     (N.T. 11/16/15, pp. 12-13) (emphasis added).

           Sergeant Lachowicz testified that, at the time of the
     questioning, he was accompanied by Officer Matt Ryan -- and
     the two officers were questioning Appellee within arm’s length,
     with Appellee’s back against the wall, and with both officers
     draped on either side of him. It was in this context that Sergeant
     Lachowicz then asked Appellee about possessing contraband --
     after which, he testified, Appellee started to appear nervous, and
     began looking to the left and right. Appellee thereafter
     attempted to run “between the wall and Officer Matt Ryan”, but
     the officers “both grabbed him simultaneously” and arrested
     him. On his person, they recovered a folding knife and a
     handgun. The Commonwealth also played a video capturing
     most of the above events. (See N.T. 11/16/15, pp. 14-24).

           On cross-examination, Sergeant Lachowicz testified, in
     relevant part, as follows:

          Q. So you said that there were No Trespassing signs
          posted; is that right?

          A. There were No Trespassing signs posted, yes,
          there were.

          Q. Where are they in relation to where the defendant
          was?

          A. I don’t recall that. They’re posted in the track
          areas at every station.

                                  * * *




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          Q. Where in relation to where you found the
          defendant was there a sign?

          A. I don’t recall.

          Q. Was there any sign within 50 feet of him?

          A. I would assume so, yes, they are posted in the
          tracks.

          Q. I’m not asking you to assume. I’m asking you if
          you know.

          A. At this point in time, I couldn’t tell you.

          Q. Was there any trespass sign where the defendant
          would have entered into the station and where he
          was found by you?

          A. I don’t know.

          Q. You don’t know?

          A. I don’t know that, no.

                                   * * *

          Q. So when you testified at the preliminary hearing
          you remember being asked this question, “So you
          asked him to step back against the wall, is that
          true?” I’m on page 16. “So you asked him to step
          back against the wall, is that true?”

                And the answer is, “It is.”

          A. Yes.

          Q. Do you see that?

          A. Yes.

          Q. So contrary to what you said a minute ago he was
          told to get against the wall, wasn’t he?


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          A. Not as a pat down, no. He was asked to basically
          stand back against the wall, yes.

          Q. So you did direct him against the wall area?

          A. That’s correct.

          Q. And you did tell him to get against the wall; is
          that right?

          A. That, I don’t recall if I ever told him to get against
          the wall.

          Q. Well, that’s what your answer is. “You asked him
          to step back against the wall, is that true?”

                Answer, “It is.”

          A. Yes.

                                   * * *

          Q. And up until then he was perfectly compliant with
          you and your partner; is that correct?

          A. He was.

          Q. No threats, no violence, no resistance in any way?

          A. No, none whatsoever.

          Q. You didn’t observe any bulges or anything like
          that on his person?

          A. No, I did not.

          Q. So you had no suspicion of any kind of possession
          of weapons or any kind of criminal activity other than
          the going on the track and getting back up on the
          platform; is that right?

          A. Just the behavior of him appearing nervous and
          looking in either directions of me and not actually
          answering me in the face.

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J-A06030-17



          Q. And when you said he was looking nervous, you
          said he was like looking passed you or Officer Ryan?

          A. Yes.

          Q. You mean he moved his eyes away from direct
          contact with you and the other officer; is that right?

          A. Yes, it is.

          Q. And was          there   any   other   indication   of
          nervousness?

          A. No.

          Q. Just that he looked around?

          A. Correct.

          Q. And this is after you asked him about whether he
          had any of these illegal items on him; is that right?

          A. Yes, it is.

          Q. By the way, while you had him there against the
          wall and you were about to ask him that question
          about whether he had anything on him that would
          incriminate him in a crime and two of you were on
          each side of him, did you tell him he didn’t have to
          say anything about that, that he had a right to
          remain silent or anything of that sort?

                MR. HAAZ: Objection.

                THE COURT: Overruled.

               THE WITNESS: No. We don’t have to inform
          anyone of that at that point in time.

          BY MR. STEIN:
          Q. So your answer is you didn’t inform him of that?

          A. No, I did not.

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J-A06030-17



           Q. And on page 18 I asked you -- when I was asking
           you how you were positioned in regard to when the
           defendant was against the wall, I asked, “So he had
           no ability to move anywhere without passing by you
           or going through either of you; is that right?[“]

                 And your answer was, “Yes,” right?

           A. Yes.

           Q. “And still at that point you weren’t planning to
           detain him, were you?” And your answer was, “No,
           he was stopped for investigation only.”

                 Is that right?

           A. Yes, it is.

           Q. And the investigation included you having him
           with his back to the wall and blocked so that he
           could not move at all in any direction; is that right?

           A. We were, as I stated earlier, about three feet from
           him, arm’s length.

           Q. But he couldn’t get pas[t] you without running
           into one or the other of you; is that right?

           A. No. Because he’s directly next to the cashier so
           there’s really not a whole lot of places to move at
           that point.

     (N.T. 11/16/15, pp. 31-38).

           Upon taking the matter under advisement and carefully
     considering the foregoing evidence, this Court granted Appellee’s
     Motion to Suppress. The Commonwealth thereafter filed the
     instant appeal.

Suppression Court Opinion, 5/20/16, at 2-7.




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J-A06030-17


        The suppression court granted Appellee’s motion on November 23,

2015.     The Commonwealth filed a motion for reconsideration that was

denied on November 30, 2015. On December 14, 2015, the Commonwealth

filed a timely notice of appeal and a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). The suppression court filed its

opinion on May 20, 2016.

        On appeal, the Commonwealth presents the following issue for this

Court’s consideration:

        Did the lower court erroneously suppress [Appellee’s] loaded
        handgun, where officers had probable cause to arrest him based
        on his admission that he had jumped onto the subway track and,
        alternatively, reasonable suspicion to stop and investigate
        [Appellee], which ripened into probable cause when he fled?

The Commonwealth’s Brief at 2.

        Our standard of review of a trial court’s order granting a criminal

defendant’s motion to suppress evidence is well established:

        When the Commonwealth appeals from a suppression order, we
        follow a clearly defined standard of review and consider only the
        evidence from the defendant’s witnesses together with the
        evidence of the prosecution that, when read in the context of the
        entire record, remains uncontradicted. The suppression court’s
        findings of fact bind an appellate court if the record supports
        those findings. The suppression court’s conclusions of law,
        however, are not binding on an appellate court, whose duty is to
        determine if the suppression court properly applied the law to
        the facts. Commonwealth v. Miller, 56 A.3d 1276, 1278–1279
        (Pa. Super. 2012) (citations omitted). “Our standard of review is
        restricted to establishing whether the record supports the
        suppression court’s factual findings; however, we maintain de
        novo review over the suppression court’s legal conclusions.”
        Commonwealth v. Brown, 606 Pa. 198, 996 A.2d 473, 476
        (2010) (citation omitted).

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J-A06030-17



Commonwealth v. Korn, 139 A.3d 249, 252-253 (Pa. Super. 2016).

      Here, Appellee presented no witnesses, and the Commonwealth

presented one. Therefore, the Commonwealth’s evidence is uncontradicted.

See Commonwealth v. Smith, 979 A.2d 913, 917-918 (Pa. Super. 2009)

(The “Commonwealth’s evidence is essentially uncontradicted” because the

defense did not present any witnesses at the suppression hearing).

However, “[i]t 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).   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).

      As described above, the instant case involves a police detention. This

Court has explained:

      “‘Interaction’ between citizens and police officers, under search
      and seizure law, is varied and requires different levels of
      justification depending upon the nature of the interaction and
      whether or not the citizen is detained.” Commonwealth v.
      DeHart, 745 A.2d 633, 636 (Pa. Super. 2000). The three levels
      of interaction are: mere encounter, investigative detention, and
      custodial detention. Id.

            A mere encounter can be any formal or informal
            interaction between an officer and a citizen, but will
            normally be an inquiry by the officer of a citizen.
            The hallmark of this interaction is that it carries no
            official compulsion to stop or respond.




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            In   contrast,    an   investigative    detention,   by
            implication, carries an official compulsion to stop and
            respond, but the detention is temporary, unless it
            results in the formation of probable cause for arrest,
            and does not possess the coercive conditions
            consistent with a formal arrest.            Since this
            interaction has elements of official compulsion it
            requires reasonable suspicion of unlawful activity. In
            further contrast, a custodial detention occurs when
            the nature, duration and conditions of an
            investigative detention become so coercive as to be,
            practically speaking, the functional equivalent of an
            arrest.

      Id. (internal citations and quotation marks omitted).

Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657, 664 (Pa. Super.

2015).

      This Court has stated the following regarding reasonable suspicion:

             [T]o 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 criminal
      activity was afoot and that the person he stopped was involved
      in that activity. The question of whether reasonable suspicion
      existed at the time [the officer conducted the stop] 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. 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 stop warrant a man
      of reasonable caution in the belief that the action taken was
      appropriate.

Commonwealth v. Basinger, 982 A.2d 121, 125 (Pa. Super. 2009)

(internal citations and quotation marks omitted; alterations in original).




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J-A06030-17


      Furthermore, we note that “[p]robable cause for a warrantless arrest

exists if the totality of the circumstances known to the officer is sufficient to

justify a person of reasonable caution in believing the suspect has

committed a crime.” Commonwealth v. Pitner, 928 A.2d 1104, 1110 (Pa.

Super. 2007). Finally:

      [t]he exclusionary rule provides that evidence obtained due to
      an unconstitutional search or seizure cannot be used against a
      defendant. The exclusionary rule also applies to any evidence
      discovered as a result of the original illegal police conduct; such
      evidence is termed “fruit of the poisonous tree.”

Commonwealth v. Williams, 2 A.3d 611, 619 (Pa. Super. 2010).

      Here, the suppression court concluded that the Commonwealth’s claim

that Appellee admitted trespass was specious. Suppression Court Opinion,

5/20/16, at 12.     The suppression court stated that Sergeant Lachowicz

testified that he did not observe any criminal or suspicious activity but was

informed by a radio call to investigate a white male with a blue jacket and

blue knit cap in the track area.     Sergeant Lachowicz and another officer

questioned Appellee near the wall on the train platform, and the suppression

court found that “there quite literally was nowhere for [Appellee] to go.” Id.

at 14 (emphasis original). The suppression court noted: “Indeed, Sergeant

Lachowicz explicitly testified that Appellee was being detained -- which alone

completely debunks the Commonwealth’s claim that the police activity was a

‘mere encounter.’” Id. at 14 n.1 (emphasis original).

      The suppression court opined:


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J-A06030-17


     A person is seized if, in view of all of the circumstances
     surrounding the incident, a reasonable person would have
     believed that he was not free to leave.[] Michigan v.
     Chesternut, 486 U.S. 567, 108 S. Ct. 1975, 1979 (1988)
     (emphasis added) (quoting United States v. Mendenhall, 110 S.
     Ct. at 1877).

           The totality of the circumstances in this case plainly
     establishes that a reasonable person would have believed
     that he was not free to leave. The arresting officer, Sergeant
     Lachowicz, testified that he did not observe any criminal or
     suspicious activity, but was directed via radio call to investigate
     a white male with a blue jacket and blue knit cap in the track
     area. Sergeant Lachowicz did not observe Defendant in the track
     area but saw him on the platform. He could not recall whether
     any “no trespassing” signs were posted anywhere near where
     Appellee retrieved his cell phone. He and his brother officer,
     Officer Ryan, directed Appellee to go with them to the wall of the
     platform for questioning. The two officers, in full uniform with
     handguns exposed, stood within “arm’s length” of Appellee,
     whose back was against the wall; the officers were draped “on
     either side of him.” Thus, there quite literally was nowhere for
     him to go

            It was in this context that the two officers began
     questioning Appellee, who was fully compliant. Sergeant
     Lachowicz testified that there was not enough criminal activity to
     even merit a citation in this case, let alone an arrest. He also
     testified that it was his intention to “release” Appellee upon
     ascertaining his identity. Appellee provided the officers with his
     identification when asked for same. At this point, the questioning
     should have ceased and Sergeant Lachowicz should have verified
     his identification. Instead, Sergeant Lachowicz asked an
     incriminating question -- whether he had any knives, guns,
     needles, drugs, et cetera -- wholly unrelated to his
     “investigation”, and further, in circumstances where he intended
     to “release” Appellee, as opposed to pat him down or search him
     incident to arrest. In that regard, Sergeant Lachowicz also
     testified that he did not discern any “bulges” or any other
     indication to justify such a sweeping interrogation. Nonetheless,
     he asked the incriminating question, and in response, Appellee
     started to act nervous. The resultant struggle, and evidence
     seized, was the fruit of an unconstitutional seizure, pure and
     simple.

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J-A06030-17



            Credibility is another significant factor in this case.
      Sergeant Lachowicz repeatedly testified on both direct and
      cross-examination that Appellee showed signs of nervousness
      only after he asked the incriminating question. Sergeant
      Lachowicz then changed his story much later at the hearing and
      claimed that Appellee was nervous the whole time. As a result,
      this Court found his testimony lacking credibility. For this reason
      alone, and with no other testimony, the motion was properly
      granted.

            The Commonwealth’s second and final claim is equally
      spurious and unavailing. Specifically, it claims, “Irrespective of
      any prior alleged illegality, was there probable cause for arrest
      where, having admitted committing trespass, defendant violently
      resisted the officers’ attempt to prevent him from running
      away?” Here, again, the Commonwealth premises its claim on
      the misplaced notion that Appellee admitted to committing
      trespass. More disconcertingly, the Commonwealth expressly
      discounts any prior illegality, en route to positing that Appellee
      should have been arrested for running away. This of course not
      only ignores the totality of the circumstances which justifies the
      granting of the motion as discussed above -- but completely
      eviscerates the exclusionary rule and fruit of the poisonous tree
      doctrine. The suppression motion was properly granted based on
      the evidence in this case.

Suppression Court Opinion, 5/20/16, at 14-15 (emphasis original) (footnote

omitted).

      As we stated above, the determination as to the credibility of a witness

is left to the discretion of the suppression court.   Gallagher, 896 A.2d at

585. Here, credibility was a determinative factor, and the suppression court

did not find Sergeant Lachowicz credible.        Suppression Court Opinion,

5/20/16, at 15.

      Based on the totality of the circumstances as testified to by the

Commonwealth’s only witness, whom the suppression court did not find

                                    - 13 -
J-A06030-17


credible, we discern no abuse of discretion in the suppression court’s order.

Appellee complied with the sergeant’s commands and was backed up against

a wall in connection with the radio call regarding a person in the track area.

After Appellee produced his identification, and at a point when Sergeant

Lachowicz testified that he was going to release Appellee, the sergeant then

engaged in a secondary line of questioning concerning weapons and needles,

despite having stated that he had no reason to believe that Appellee

possessed those items.     N.T., 11/16/15, at 35.     This secondary line of

interrogation regarding contraband was conducted without reasonable

suspicion or probable cause; thus, Appellee should have been free to refuse

to answer and depart. Tam Thanh Nguyen, 116 A.3d at 664. Instead, the

officers seized Appellee and searched his person unlawfully. Accordingly, we

are constrained to affirm the order of the suppression court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2017




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