J-S70039-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
             v.                            :
                                           :
ORION GREEN,                               :
                                           :
                   Appellant               :            No. 2383 EDA 2015

             Appeal from the Judgment of Sentence April 13, 2015
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division, No(s): MC-51-CR-0034320-2014

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED NOVEMBER 23, 2016

        Orion Green (“Green”) appeals from the judgment of sentence,

entered by the Philadelphia Municipal Court, following his conviction of

possession of a small amount of marijuana, as confirmed by the trial court’s

denial of Green’s Petition for Writ of Certiorari.1 We affirm.

        In its Opinion, the trial court summarized the facts underlying the

instant appeal as follows:

              On October 7, 2014, at approximately 1:30 a.m., Officer
        [Anthony] Woltman [“Officer Woltman”] and his partner … were
        on duty in the area of 100 West Seymour Street in Philadelphia.
        The officers were in plainclothes and an unmarked car, and were
        on duty in that specific area due to a gun-point robbery that
        occurred the night before. The earlier robbery occurred on the
        100 block of Queen Lane, which is located three blocks away
        from the 100 block of West Seymour Street. The area is
        considered a high-crime and drug area. The description of the
        perpetrator of the robbery consisted of a black male in a dark
        hoodie riding a bicycle.



1
    35 P.S. § 780-113(a)(31).
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             As the officers were traveling east on West Seymour
      Street, Officer Woltman observed [Green], who matched the
      description of the robbery suspect: [Green] was wearing a dark
      hoodie and was peddling westbound on a bicycle. When the
      officers and [Green] were both in the middle of the block, Officer
      Woltman got out of the car, identified himself and [his partner]
      as police officers, and asked whether they could talk to [Green]
      for a minute. While the officers were speaking to [Green],
      Officer Woltman observed a bulge in [Green’s] front pant pocket.
      They believed the bulge was large enough to be a weapon[,] and
      decided to frisk [Green] for their safety. While conducting an
      open-palm frisk, Officer Woltman immediately recognized the
      bulge to be drug packaging. On that basis, Officer Woltman
      removed the packaging, recovering ten pink-tinted Ziploc
      packages of marijuana. He also recovered new and unused
      packaging from the same pocket. At that point, [Green] was
      placed into custody for possession of marijuana.

Trial Court Opinion, 2/29/16, at 1-2.

      Prior to trial before the municipal court, Green presented a Motion to

suppress evidence, which the municipal court ultimately denied. See N.T.,

4/13/15, at 1-17.    On the same record, the municipal court found Green

guilty of the above-stated crime, and sentenced him to no further penalty.

Green filed a Petition for Writ of certiorari to the trial court. In his Petition,

Green claimed that the evidence seized from him was the result of an

investigative stop, which was not supported by the required reasonable

suspicion. Petition for Writ of Certiorari, ¶ 4. The trial court denied Green’s

Petition, after which Green filed the instant timely appeal.

      On appeal, Green presents the following claim for our review:

      Did not the [trial] court err as a matter of law and abuse its
      discretion by denying [Green’s] [M]otion to suppress physical
      evidence where the police officer seized [Green] based upon a



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      legally deficient generic description of a perpetrator of a robbery
      that occurred at an unspecified time prior to the stop?

Brief for Appellant at 3.

      Green argues that he was stopped by police officers “based on a

generic description,” which, Green contends, was inadequate under the

Pennsylvania and United States Constitutions. Id. at 8. According to Green,

      Philadelphia police had the most generic description of a
      perpetrator possible:     a black man of no determinate age,
      height, weight, body type, skin-tone, or facial hair, wearing a
      dark hoodie of no particular color and with no description of any
      other clothing, riding a bicycle of no particular color or type.

Id.   Green states that the officers caused him to dismount his bicycle, “in

order to be questioned by them concerning a robbery that had occurred at

some unspecified time the night before.”      Id.   Green contends that this

investigative detention was not supported by the requisite reasonable

suspicion of criminal activity. Id. Because his detention was illegal, Green

argues, the recovery of marijuana should have been suppressed. Id. at 8-9.

      In reviewing an order denying a suppression motion,

      [a]n appellate court may consider only the Commonwealth’s
      evidence 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, the appellate court is bound by those facts and
      may reverse only if the legal conclusions drawn therefrom are in
      error. However, it is also well settled that an appellate court is
      not bound by the suppression court’s conclusions of law.

Commonwealth v. Caple, 121 A.3d 511, 516-17 (Pa. Super. 2015)

(citations omitted).



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      With respect to factual findings, we are mindful that it is the sole
      province of the suppression court to weigh the credibility of the
      witnesses. Further, the suppression court judge is entitled to
      believe all, part or none of the evidence presented. However,
      where the factual determinations made by the suppression court
      are not supported by the evidence, we may reject those findings.
      Only factual findings which are supported by the record are
      binding upon this Court.

Id. (citation omitted). “In addition, we are aware that questions of the

admission and exclusion of evidence are within the sound discretion of the

trial court and will not be reversed on appeal absent an abuse of discretion.”

Id.

      The Supreme Court of Pennsylvania has identified three distinct

categories of interactions between citizens and the police. Commonwealth

v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995).

      The first of these is 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 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.

Id. (internal citations omitted).

      The line between a “mere encounter” and an “investigative detention”

is “not subject to a precise definition” and thus “[e]ach factual situation must

be examined to determine if force was used to restrain the citizen in some

way.” Commonwealth v. Jones, 378 A.2d 835, 839 (Pa. 1977).




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      In determining whether a “mere encounter” has risen to the
      level of an “investigative detention,” the focus of our inquiry is
      on whether a “seizure” of the person has occurred.
      Commonwealth v. Mendenhall, 552 Pa. 484, 715 A.2d 1117,
      1120 (Pa. 1998). Within this context, our courts employ the
      following objective standard to discern whether a person has
      been seized:      “Whether, under all the circumstances
      surrounding the incident at issue, a reasonable person
      would believe he was free to leave.” Commonwealth v.
      Smith, 1999 PA Super 96, 732 A.2d 1226, 1232 (Pa. Super.
      1999) (emphasis added). See also Commonwealth v. Matos,
      543 Pa. 449, 672 A.2d 769, 774 (Pa. 1996). Thus, “a seizure
      does not occur simply because a police officer approaches an
      individual and asks a few questions.” United States v. Kim, 27
      F.3d 947, 950 (3d Cir. 1994).

      Examples of circumstances that might indicate a seizure, even
      where the person did not attempt to leave, would be the
      threatening presence of several officers, the display of a weapon
      by an officer, some physical touching of the person of the
      citizen, or the use of language or tone of voice indicating that
      compliance with the officer’s request might be compelled.

Commonwealth v. McClease, 750 A.2d 320, 324-25 (Pa. Super. 2000).

      Our Supreme Court has adopted an objective test for
      determining whether a police officer has restrained the liberty of
      a citizen such that a seizure occurs. The pivotal inquiry in
      making this determination is whether a reasonable [person]
      innocent of any crime, would have thought he [or she] was being
      restrained had he [or she] been in the defendant’s shoes. A
      Court must examine all surrounding 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. If a reasonable person would not feel free to
      terminate the encounter with police and leave the scene, then a
      seizure of that person has occurred.

Commonwealth v. Key, 789 A.2d 282, 288-89 (Pa. Super. 2001).

      Our review of the record discloses that, at the suppression hearing,

Officer Woltman testified as follows regarding his interaction with Green:


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        I was in the area working with my partner, Officer Toto, Badge
        6731. We were assigned to plain clothes, unmarked car. I was
        assigned to the specific area due to a gun-point robbery that
        occurred the previous night. The description on that robbery
        was a black male in a dark hoody riding a peddle bicycle. That
        happened on the 100 Block of Queen Lane, which is
        approximately three blocks away from Seymour Street. Around
        that time[,] I think it was 1:38 ish [sic][,] I was traveling
        eastbound on Seymour.            I observed [Green] peddling
        westbound, it was a red peddle bike[,] if I’m not mistaken. He
        was wearing a dark hoody. Based on the reason I was in the
        area[,] I decided to stop him for investigation. [We] got out of
        the car [and] identified ourselves as police officers. I asked him
        if we could talk to him for a minute. I don’t recall initially what
        our conversation was about, but as I’m talking to him, in his
        right front pants pocket, I observed a bulge. The bulge to me
        appeared to be enough that it could have been a weapon. For
        my safety[,] I decided to do a frisk….

N.T., 4/13/15, at 5-6. During cross-examination, Officer Woltman testified

that “[d]ue to the reason I was in the area[,] it grabbed my attention, with

[Green] on a bike in a dark hoody. So, yes, at that time I decided to stop

him.”     Id. at 9.       During argument on the suppression Motion, the

Commonwealth did not contest that Officer Green had effectuated an

investigative detention, but argued that the detention was supported by

reasonable suspicion. Id. at 15-17.

        Notwithstanding    the   parties’   assumption   that   the   interaction

constituted an investigative detention, the record lacks objective support for

such a determination. The evidence of record established that, upon seeing

Green, the two officers exited a vehicle and asked if they could ask Green a

few questions. There is no evidence of the “threatening presence of several

officers, the display of a weapon by an officer, some physical touching of the


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person of the citizen, or the use of language or tone of voice indicating that

compliance with the officer’s request might be compelled.” See McClease,

750 A.2d at 325.    In fact, there is no evidence upon which to conclude that

the officers compelled Green to stop.   Based upon this sparse evidence of

record, we discern no error or abuse of discretion by the trial court in

denying Green’s suppression Motion, based upon its determination that the

interaction constituted a mere encounter.    Accordingly, we affirm Green’s

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/23/2016




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