J-E01007-14



                             2014 PA Super 265



COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

HYKEEM CARTER

                        Appellee                   No. 2339 EDA 2012


                    Appeal from the Order July 6, 2012
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0000285-2012


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
        PANELLA, J., DONOHUE, J., ALLEN, J., LAZARUS, J., MUNDY, J.,
        and OLSON, J.

OPINION BY MUNDY, J.:                         FILED DECEMBER 02, 2014

     The Commonwealth appeals from the July 6, 2012 order, granting the

motion to suppress filed by Appellee, Hykeem Carter. After careful review,

we reverse and remand for further proceedings.

     We summarize the uncontradicted factual and procedural background

of this case as follows. On November 9, 2011, at approximately 9:00 p.m.,

Officer Matthew Blaszczyk of the Philadelphia Police Department was

patrolling near 700 East Madison Avenue in Philadelphia, at the corner of

Madison Avenue and G Street. N.T., 6/5/12, at 4. Officer Blaszczyk testified

that this is a known drug corner and he personally has made multiple gun

and drug arrests at this corner. Id. at 5-6. At said time, Officer Blaszczyk
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and his partner, Officer White1, were driving northbound on G Street when

they observed Appellee standing on the northeast corner of the intersection.

Id. at 4.    Officer Blaszczyk “immediately observed a bulge in [Appellee’s]

left coat pocket.” Id. at 5. Officer Blaszczyk believed that it was a heavy

object because of “the way it weighed the jacket down and the way it

protruded.”     Id.    As Officers Blaszczyk and White drove northbound by

Appellee, Officer Blaszczyk noted that, “Appellee looked in [their] direction

and began to walk south.”          Id.   The officers circled around the block and

approached the intersection from a different direction. Upon returning to the

intersection, Officer Blaszczyk observed that Appellee was back on the same

corner, with the same bulge in his coat. Id. Officer Blaszczyk noted that he

and Officer White did this multiple times.

              Each time we came down the street, it was a few
              times, maybe three or four times, [Appellee] would
              look in our direction and walk the opposite way
              whichever way we were coming from.

                    And the way he turned his body was so that
              that bulge, you know, we could see it initially. And
              then he’d turn. So he wasn’t in our view.

Id. at 6.

       The officers got out of their vehicle and approached [Appellee], and

again Appellee turned his body away from the officers so they could not see


____________________________________________
1
  We note that Officer White’s first name does not appear in the certified
record.



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the bulge in his coat. Id. at 8. Officer Blaszczyk further testified that based

on the size and shape of the bulge, the way it weighed Appellee’s coat down,

and the way it swung, he believed the bulge to be a firearm.               Officers

Blaszczyk and White stopped Appellee and patted him down.            Id.    During

the pat-down, Officer Blaszczyk noticed upon feeling the bulge, that he could

“immediately feel the shape of a firearm.” Id. Officer Blaszczyk recovered

from Appellee’s person “a 22-caliber Walther handgun, a Walther P-22

model.” Id. at 9. The handgun was also “loaded with eight live rounds[]” of

ammunition. Id.

        Based on the above, Appellee was taken into custody. On January 7,

2012, the Commonwealth filed an information charging Appellee with one

count each of possession of a firearm with manufacturer’s number altered,

firearms not to be carried without a license, and carrying a firearm in public

in Philadelphia.2     On April 19, 2012, Appellee filed an omnibus pre-trial

motion, in part arguing for suppression of all evidence based on a violation

of his Fourth Amendment rights.           On June 5, 2012, the suppression court

conducted an evidentiary hearing at which Officer Blaszczyk testified for the

Commonwealth.         Appellee did not offer any evidence at the suppression

hearing.    At the conclusion of this hearing, the suppression court denied

Appellee’s motion to suppress.             The suppression court concluded that


____________________________________________
2
    18 Pa.C.S.A. §§ 6110.2(a), 6106(a)(1), and 6108, respectively.



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reasonable suspicion existed “based on the totality of the circumstances …

[including the] high crime drug area … [a]nd the behavior of [Appellee].”

Id. at 21. The suppression court also noted that Officer Blaszczyk testified

“very credibly.” Id.

       Appellee sought reconsideration of the suppression court’s order,

which was granted. The next day, on June 6, 2012, the suppression court

heard additional arguments from the Commonwealth and Appellee.                   The

suppression court took the matter under advisement. On July 6, 2012, the

suppression court entered a new order granting Appellee’s motion to

suppress.    On August 6, 2012, the Commonwealth filed a timely notice of

appeal.3    On October 3, 2013, a divided panel of this Court affirmed the

suppression     court’s    order    in   an    unpublished   memorandum.         The

Commonwealth filed a timely petition for reargument en banc on October

17, 2013. On December 6, 2013, this Court entered an order granting the

Commonwealth’s         petition    for   reargument   en     banc   and   the   panel

memorandum was withdrawn.
____________________________________________
3
   We note that the 30th day following the suppression court’s July 6, 2012
order was Sunday, August 5, 2012. It is manifest that when calculating a
filing period, all weekends are excluded from said calculation. 1 Pa.C.S.A.
§ 1908. Therefore, the Commonwealth’s notice of appeal filed on Monday,
August 6, 2012, was timely. We also observe that on August 6, 2012, the
Commonwealth contemporaneously filed a concise statement of matters
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), even though the suppression court had not ordered it to
do so. The suppression court filed its Rule 1925(a) opinion on October 3,
2012.



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      In its substituted brief on reargument, the Commonwealth raises one

issue for our review.

            Did a police officer, who had made more than 75 gun
            arrests, have reasonable suspicion to frisk [Appellee]
            where the officer, while on patrol in a high-crime
            neighborhood at night, observed [Appellee] on a
            street corner known for illegal drug and gun activity,
            and saw a weighted gun-like bulge with a sharp edge
            in [Appellee]’s jacket pocket, and [Appellee], four
            times within a ten-minute period, turned his body to
            conceal the bulge and walked away whenever the
            police drove by?

Commonwealth’s Brief at 3.

      We begin by noting our well-settled standard of review.

            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), appeal denied, 70 A.3d 810 (Pa. 2013). In the instant

case, the Commonwealth argues that the suppression court erred when it

concluded that Officers Blaszczyk and White violated Appellee’s Fourth

Amendment     rights    when   they   stopped   him   and   patted   him   down.




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Commonwealth’s Brief at 12-20. Appellee counters that the officers lacked

any constitutional basis to stop and frisk him. Appellee’s Brief at 14.

      The Fourth Amendment of the Federal Constitution provides, “[t]he

right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated

….”    U.S. Const. amend. IV.         Likewise, Article I, Section 8 of the

Pennsylvania Constitution states, “[t]he people shall be secure in their

persons, houses, papers and possessions from unreasonable searches and

seizures ….” Pa. Const. Art. I, § 8. Under Pennsylvania law, there are three

levels of encounter that aid courts in conducting search and seizure

analyses.

            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 respond. The second, an “investigative
            detention” must be supported by reasonable
            suspicion; it subjects a suspect to a stop and period
            of detention, but does not involve such coercive
            conditions as to constitute the functional equivalent
            of arrest. Finally, an arrest or “custodial detention”
            must be supported by probable cause.

Commonwealth v. Williams, 73 A.3d 609, 613 (Pa. Super. 2013) (citation

omitted), appeal denied, 87 A.3d 320 (Pa. 2014).            In this case, the

Commonwealth and Appellee agree that the seizure that took place was an

investigative detention, requiring reasonable suspicion.      Commonwealth’s

Brief at 6; Appellee’s Brief at 12.




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       “The Fourth Amendment permits brief investigative stops … when a

law enforcement officer has a particularized and objective basis for

suspecting the particular person stopped of criminal activity.” Navarette v.

California, 134 S. Ct. 1683, 1687 (2014). It is axiomatic that to establish

reasonable suspicion, an officer “must be able to articulate something more

than an inchoate and unparticularized suspicion or hunch.” United States

v. Sokolow, 490 U.S. 1, 7 (1989) (internal quotation marks and citation

omitted). Unlike the other amendments pertaining to criminal proceedings,

the Fourth Amendment is unique as it has standards built into its text, i.e.,

reasonableness and probable cause. See generally U.S. Const. amend. IV.

However, as the Supreme Court has long recognized, Terry v. Ohio, 392

U.S. 1 (1968) is an exception to the textual standard of probable cause.

Florida v. Royer, 460 U.S. 491, 498 (1983).          A suppression court is

required to “take[] into account the totality of the circumstances—the whole

picture.” Navarette, supra (internal quotation marks and citation omitted).

When conducting a Terry analysis, it is incumbent on the suppression court

to inquire, based on all of the circumstances known to the officer ex ante,

whether an objective basis for the seizure was present.4          Adams v.


____________________________________________
4
   To further illustrate the scope of the required analysis, we note that
although the officer in this case was correct that the bulge in Appellee’s
jacket was a gun, the Commonwealth does not get rewarded as a
constitutional matter.     Conversely, the Commonwealth would not be
penalized if the officer had been wrong because Terry, by its very nature,
(Footnote Continued Next Page)


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Williams, 407 U.S. 143, 146 (1972). In addition, 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.    United States v. Place, 462 U.S. 696, 702 (1983) (citation

omitted).

      In this case, Officer Blaszczyk testified to the following facts that led to

his decision to stop and pat-down Appellee.

             Q:   I’d like to direct your attention back to
             November 9, 2011 at approximately 9 p.m.[,] were
             you on duty as a Philadelphia police officer?

             A:        Yes, I was.

                                                 …

             Q:    Can you please tell [the suppression court]
             what, if anything, you observed [Appellee] doing?

                                                 …

             A:   Your Honor, on that date and time, I was
             working with my partner Officer White, badge
             number 7097. We were all on routine patrol in the
             area when we drove northbound on “G” Street when
             we observed [Appellee].

                  He was standing on the northeast corner. He
             was wearing all black clothing.        I immediately
             observed a bulge in his left coat pocket.

                   I could tell it was something heavy by the way
             it weighed the jacket down and the way it protruded.
                       _______________________
(Footnote Continued)

“accepts the risk that officers may stop innocent people.”            Illinois v.
Wardlow, 528 U.S. 119, 126 (2000).



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          My partner and I, as we drove northbound on the
          block, [Appellee] looked in our direction.

          Q:    Was he driving or were you?      Was he in a
          vehicle or on the street?

          A:   [Appellee]?

          Q:    Yes.

          A:   He was standing. He was on foot.

          Q:   I thought     you   said   when   he   drove   --
          [Appellee]?

          A:   No. When my partner and I drove northbound
          on “G” Street, he looked in our direction and began
          to walk south. My partner and I stopped. And he
          appeared to have left the area.

               My partner and I circled back around. He
          came from a different direction this time. And he
          was back on that corner. I observed the bulge again
          and got another look at it.

                My partner and I made observations over the
          course of about 10 minutes. And, eventually, my
          partner and I, based on our experience in that area,
          [knew that] “G” and Madison is a known drug corner.

                It’s a corner where I’ve made multiple gun
          arrests, multiple drug arrests. And based on my
          experience in that area, my partner and I decided to
          stop [Appellee].

          Q:   When you were observing [Appellee] was he
          doing anything other than standing on the corner?
          Was he looking at you or anything?

                                   …

          A:    Each time we came down the street, it was a
          few times, maybe three or four times, he would look


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          in our direction and walk the opposite way whichever
          way we were coming from.

                And the way he turned his body was so that
          that bulge, you know, we could see it initially. And
          then he’d turn. So he wasn’t in our view.

          Q:   And about how many times did that happen
          when he turned his body away from you?

          A:   About three or four.

                                      …

          Q:    And how long have you been a Philadelphia
          police officer?

          A:   About six years now.

          Q:   And has it always been in the 25th district?

          A:   Yes.

          Q:    How many gun arrests have you made in that
          area?

          A:   I’d say approximately 75 or more[].

                                      …

          Q:    Have you made any gun arrests in that
          particular area of “G” and Madison?

          A:    Yes, I’ve made about, I’d say, between 8 and
          10 just in that area alone.

          Q:    And, in your experience, and during this arrest,
          where on the person’s person did you find these
          guns?

          A:   Most of the time it’s either in a coat pocket or
          tucked in a waistband. But also I’ve seen people
          have it directly in their pants pocket. But all of my


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            gun arrests, I don’t think any of them were carrying
            a gun in a holster.

                                       …

            Q:    And what occurred when you and your partner
            decided to get out of your vehicle?

            A:    Well, my partner and I approached [Appellee]
            for investigation. He turned his body away. That
            bulge, that we believed was his firearm, he turned
            his body so that that item was away from us.

            Q:   Just one question, what made you believe this
            was a firearm?

            A:    Just based on the size, shape of it, weight. It
            weighed his jacket down. The way it kind of swung.
            Just my experience in that area. My experience in
            dealing with firearms.

                                       …

            Q:    And what did you do when you stopped him?

            A:   Conducted just the pat-down for weapons.
            And immediately when I felt that bulge, I could
            immediately feel the shape of a firearm.

            Q:    And what, if anything, did you recover?

            A:   I recovered a 22-caliber Walther handgun, a
            Walther P-22 model. It was loaded with eight live
            rounds.

N.T., 6/5/12, at 3-9.

      Based on the above-cited testimony, the Commonwealth argues that

“Officer Blaszczyk’s suspicions were aroused when he spotted [Appellee] on

a street corner known for criminal activity, including illegal gun activity, and

observed, in [Appellee]’s coat pocket, a weighted bulge described as having

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a sharply angled contour.”      Commonwealth’s Brief at 13.         However, in

Appellee’s view there was no reasonable suspicion in this case because “[n]o

tips were made, no crime was reported, no criminal conduct was observed,

nor did Appellee engage in any conduct which would even suggest criminal

activity.” Appellee’s Brief at 15.

      The suppression court concluded Officer Blaszczyk did not have

reasonable suspicion, as the observations he testified to making, viewed

individually, were not enough to meet the threshold of reasonable suspicion.

First, the suppression court addressed the Commonwealth’s argument that

“Officer Blaszczyk had reasonable suspicion because [Appellee] turned his

body away from the officer so they would not see his pocket.” Suppression

Court Opinion, 10/3/12, at 7.         The suppression court concluded that

“[Appellee]’s action in moving around to prevent the officer from viewing the

content of his pocket is innocent activity in nature and certainly cannot

under established law lead the officer to believe that criminal activity was

afoot.” Id. The suppression court next addressed “the Commonwealth[’s]

attempt[] to establish reasonable suspicion because the officer noticed the

bulge weighed down Appellee’s pocket.”         Id. at 8.   The suppression court

rejected this factor because Officer Blaszczyk lacked any “expertise or

specialized training that would lead him to believe that anything that is

weighted down is a gun.”      Id.    The suppression court then moved on to

consider “the fact that the officer described the bulge as having a sharp


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angle to indicate that the officer knew Appellee had a gun prior to the pat

down.” Id. The suppression court rejected this factor because “nothing was

presented to [the suppression court] by way of experience or expertise to

establish by the preponderance of the evidence that” the bulge was a gun.

Therefore, the suppression court concluded “[t]he officer’s observation of a

bulge showing a sharp angle that weighed down in Appellee’s jacket is

inadequate.”     Id.     Lastly,   the    suppression   court   rejected   the

Commonwealth’s “attempts to impute experience to Officer Blaszczyk that

he clearly [did] not possess.”      Id.     Although the suppression court

acknowledged Officer Blaszczyk’s six years on the force up to that date, the

court nevertheless concluded, “the Commonwealth failed to provide a nexus

between the officer’s purported experience and his ability to identify a

nondescript bulge as a gun in the circumstances described therein.” Id. at

8-9.

       The Commonwealth argues that the suppression court’s analysis was

flawed in three ways. First, although the suppression court correctly stated

a totality of the circumstances was required, in the Commonwealth’s view,

“the [suppression] court went on to a piecemeal analysis of various factors

that, in its view, were individually insufficient to supply reasonable

suspicion.” Commonwealth’s Brief at 12. The Commonwealth argues that

this cuts against the principles announced by the Supreme Court in United

States v. Arvizu, 534 U.S. 266 (2002).           Id. at 13.      Second, the


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Commonwealth criticizes the suppression court’s rejection of factors because

they were equally consistent with innocent conduct.       Id. at 16-17.   Third,

the Commonwealth avers the suppression court improperly rejected Officer

Blaszczyk’s observations as to the bulge in Appellee’s coat because he lacked

any specialized training in guns. Id. at 15.

      In Arvizu, the defendant “was stopped by a border patrol agent while

driving on an unpaved road in a remote area of southeastern Arizona.”

Arvizu, supra at 268. An eventual search of his van by the border patrol

revealed 100 pounds of marijuana. Id. The District Court denied Arvizu’s

motion to suppress the marijuana based on a lack of reasonable suspicion of

criminal activity by the border patrol.       Id.   However, the Ninth Circuit

reversed after “examin[ing] each [factor] in turn.” Id. at 272. In its view,

“the District Court’s analysis [relied] on a list of 10 factors … [but] seven of

the factors, including [Arvizu]’s slowing down, his failure to acknowledge

[the border patrol agent], the raised position of the children’s knees [inside

the van], and their odd waving carried little or no weight in the reasonable-

suspicion calculus.”    Id.    The Supreme Court granted certiorari and

reversed, concluding that the Ninth Circuit’s mode of analysis was contrary

to the Court’s reasonable suspicion cases.

            We think that the approach taken by the Court of
            Appeals here departs sharply from the teachings of
            these cases. The court’s evaluation and rejection of
            seven of the listed factors in isolation from each
            other does not take into account the totality of the
            circumstances, as our cases have understood that

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              phrase. The court appeared to believe that each
              observation by [the border patrol agent] that was by
              itself readily susceptible to an innocent explanation
              was entitled to no weight.          Terry, however,
              precludes this sort of divide-and-conquer analysis.

Id. at 274.

       After careful review, we agree with the Commonwealth that the

suppression court engaged in the “divide-and-conquer” analysis proscribed

by Arvizu. The suppression court evaluated individual factors, concluded at

the end of each paragraph that they were insufficient to establish reasonable

suspicion in some form and ended its analysis with the conclusion that the

Commonwealth had not established reasonable suspicion as none of the

factors testified to by Officer Blaszczyk were sufficient.     See Suppression

Court Opinion, 10/3/12, at 7-9.            Arvizu and Terry forbid this mode of

analysis.5 See Arvizu, supra; accord Commonwealth v. Walls, 53 A.3d

889, 894-895 (Pa. Super. 2012).

       The suppression court’s conclusion that reasonable suspicion did not

exist, in part, because “[Appellee]’s action in moving around to prevent the

officer from viewing the content of his pocket is innocent activity …” is in

conflict with Arvizu and the Terry line of cases. Suppression Court Opinion,


____________________________________________
5
  We agree with the dissent that the suppression court titled its analysis at
the outset as one concerning the totality of the circumstances.          See
Dissenting Opinion at 2, quoting Suppression Court Opinion, 10/3/12, at 7.
Our disagreement with the suppression court, however, is based on its
subsequent analysis of each factor in isolation.



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10/3/12, at 7. Further, 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 suspicion

nevertheless existed.     See Navarette, supra (stating, “the level of

suspicion the [Terry] standard requires is considerably less than proof of

wrongdoing by a preponderance of the evidence[]”) (internal quotation

marks   omitted;   emphasis   added),     quoting   Sokolow,    supra   at   7;

Commonwealth v. Caban, 60 A.3d 120, 129 (Pa. Super. 2012) (stating,

“even a combination of innocent facts, when taken together, may warrant

further investigation by the police officer[]”) (citation omitted), appeal

denied, 79 A.3d 1097 (Pa. 2013).        As the Supreme Court pointed out in

Arvizu, in Terry itself, the conduct of the defendant could have easily been

characterized as completely innocent.

           The officer in Terry observed [Terry] and his
           companions repeatedly walk back and forth, look
           into a store window, and confer with one another.
           Although each of the series of acts was perhaps
           innocent in itself, we held that, taken together, they
           warranted further investigation. See also Sokolow,
           supra, at 9[] (holding that factors which by
           themselves were quite consistent with innocent
           travel   collectively   amounted      to   reasonable
           suspicion).

Arvizu, supra at 274-275 (internal quotation marks and some citations

omitted); see also Terry, supra at 5-7.

     The    suppression    court   also     disregarded   Officer   Blaszczyk’s

observations as to the bulge in Appellee’s coat because “nothing was

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presented to [the suppression court] by way of experience of expertise to

establish by the preponderance of the evidence that” the bulge was a gun.

Suppression Court Opinion, 10/3/12, at 8. The suppression court exclusively

relied on this Court’s decision in Commonwealth v. Stevenson, 894 A.2d

759 (Pa. Super. 2006), appeal denied, 917 A.2d 846 (Pa. 2007) for its

rationale. See Suppression Court Opinion, 10/3/12, at 8.

     In conducting a reasonable suspicion inquiry, a suppression court is

required to “afford due weight to the specific, reasonable inferences drawn

from the facts in light of the officer’s experience[.]”   Commonwealth v.

Brown, 996 A.2d 473, 477 (Pa. 2010); see also Commonwealth v.

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

reasonable suspicion for a Terry stop existed in part because the defendant

“touched his waist area and sat down on a stoop behind some females …

[and t]he police officer was aware, based upon his experience with armed

suspects, that weapons are often concealed in a person’s waistband[]”),

appeal denied, 990 A.2d 727 (Pa. 2010).      “Among the circumstances that

can give rise to reasonable suspicion are the [officer]’s knowledge of the

methods used in recent criminal activity and the characteristics of persons

engaged in such illegal practices.” United States v. Mendenhall, 446 U.S.

544, 563 (1980).

     In Stevenson, this Court concluded that reasonable suspicion existed

for a Terry stop based upon the following.


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            The Commonwealth’s evidence, which we must
            consider as credible in this appeal, establishes that
            the officers observed that [Stevenson] possessed a
            concealed     weapon;     that   [Stevenson]     acted
            suspiciously and in a manner that suggested that his
            weapon may be illegal or unlicensed; that
            [Stevenson] carried his weapon in a location on his
            person that, in Officer Absten’s experience, indicated
            that the weapon may be illegal or unlicensed; and
            that Officer Absten had the requisite training and
            experience to make the necessary assessments as to
            whether [Stevenson] was carrying an illegal or
            unlicensed weapon.

Stevenson, supra at 772-773 (footnote omitted). Relevant to this appeal,

this Court noted that the officer based his decision to stop Stevenson in part

due to heightened training the officer had received in his career.

            Officer Absten then made his own assessment, based
            on Bureau of Alcohol, Tobacco and Firearms (“ATF”)
            training he had received on identifying armed
            subjects and types of firearms. This training had
            included means of identifying certain mannerisms
            characteristic of persons not professionally familiar
            with carrying handguns. Also, the police officers had
            been trained to be cognizant of apparently weighted
            pockets and the visible outline of firearms pressing
            from inside the pockets.

Id. at 764.     It is from these two passages in Stevenson that the

suppression court rejected Officer Blaszczyk’s observations of Appellee in

this case, because he lacked any specific or special training like the officer in

Stevenson had received.

      We agree with the Stevenson Court that any specialized training

received by an officer is undoubtedly relevant to, and may be critical in,

conducting a reasonable suspicion analysis.         However, the suppression

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court’s decision in this case goes one step beyond Stevenson, insofar that

the suppression court implicitly required Officer Blaszczyk to have similar

heightened training in order for observations to have any significance.     In

the suppression court’s view, “[t]he mere fact that an officer carries [a] gun,

knows other people who carry guns, received training at the academy or has

been in the force for six years do[es] not aid the officer in establishing

reasonable suspicion … in this case.” Suppression Court Opinion, 10/3/12,

at 8.

        The suppression court’s rationale is in tension with the prior cases

cited above. In this case, Officer Blaszczyk formed his suspicions based in

part on his six years’ experience as a Philadelphia police officer, conducting

over 75 gun arrests, eight to ten of which were specifically located at the

corner at which he encountered Appellee. Officer Blaszczyk further testified

that in his experience, many people who carry guns do so in their coat

pockets.    See N.T., 6/5/12, at 7, 8.   Officer Blaszczyk was permitted to

utilize his “knowledge of the methods used in recent criminal activity” in

order to form his decision as to whether to stop Appellee.       Mendenhall,

supra. Officer Blaszczyk was not required to receive specialized training in

order to make his decision. Nothing contained in Stevenson suggests this

Court intended to      impose   such a   burdensome     requirement on     law

enforcement.




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       In the case sub judice, the Commonwealth, through Officer Blaszczyk,

established that Appellee was in a high-crime area, at night, with a weighted

and angled bulge in his coat pocket. Furthermore, Appellee was alerted to

the officers’ presence and intentionally turned his body away from them, at

least three times, to conceal the bulge. The officers also observed Appellee

walking away from the known drug corner whenever the officer’s passed by

it.6   In our view, the Commonwealth sufficiently showed that Officer

Blaszczyk had the reasonable suspicion to first seize Appellee as well as

conduct the limited Terry pat-down, as the entire basis for Officer

Blaszczyk’s seizure before the pat-down was that Appellee was armed and

dangerous. See Place, supra; Foglia, supra at 361 (stating, “[s]ince the

criminal activity in question involved possession of a firearm and since
____________________________________________
6
   We agree with Appellee’s assertion that “[w]here an officer, without
reasonable suspicion or probable cause, approaches an individual, the
individual has a right to ignore the police and go about his business.”
Appellee’s Brief at 15, citing Royer, supra at 497-498. However, we cannot
agree that “[t]he approach urged by the Commonwealth would also allow a
stop and frisk whenever an officer in a high-crime area encounters an
individual who wears baggy clothing … appears nervous in reaction to seeing
the police, but does not try to evade or flee.” Id. at 22. It is axiomatic that
an ordinary citizen may stand on a street corner, even in a high-crime area
as “[o]ur caselaw is quite emphatic that an individual's mere presence in a
high crime area is manifestly insufficient to justify a Terry stop.”
Commonwealth v. Alaya, 791 A.2d 1202, 1210 (Pa. Super. 2002).
Nothing in our decision today circumscribes an individual’s otherwise general
right to stand or be present on a street corner. See, e.g., Commonwealth
v. Chambers, 55 A.3d 1208, 1216 (Pa. Super. 2012) (concluding no
reasonable suspicion existed where the defendant was walking on a street in
a high-crime area and took a step back after a probation officer called out
his name).



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J-E01007-14


[Foglia]’s act of patting his waistband bolstered [the officer]’s reasonable

belief that [Foglia] actually had a gun in his pants, [the officer] was

constitutionally permitted to conduct a patdown search of [Foglia]’s

waistband[]”).

     Additionally, the cases Appellee has cited do not alter our conclusion.

Appellee primarily relies on Commonwealth v. Martinez, 588 A.2d 513

(Pa. Super. 1991), appeal denied, 608 A.2d 29 (Pa. 1992), In re J.G., 860

A.2d 185 (Pa. Super. 2004), and Commonwealth v. Reppert, 814 A.2d

1196 (Pa. Super. 2002) (en banc).     In Martinez, this Court held that the

officer did not have reasonable suspicion of criminal activity where the

defendant “walked quickly away from a group of people on a street corner

after observing a nearby police vehicle … [and] where … officers observed a

bulge in her front pocket[.]” Martinez, supra at 514. In J.G., this Court

reached the same conclusion “where the only evidence of criminal

wrongdoing was [the juvenile]’s presence in a high crime area combined

with his decision to ‘walk away’ from the police officers upon seeing their

approach.” J.G., supra at 187. Finally, in Reppert, this Court held that no

reasonable suspicion existed based on “a police officer’s observation of head

and shoulder movements of the rear seat passenger in a motor vehicle,

coupled with the officer’s conclusion … [that Reppert] appeared ‘very, very

nervous[.]’” Reppert, supra at 1199. In each of these cases, while there

may be one factor in common with the instant case, the totality of


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J-E01007-14


circumstances in each case is not analogous to the case at bar, and

therefore do not control the constitutional analysis here.7 In Martinez, the

defendant did not consistently position or turn her body so as to conceal

something from law enforcement, as Appellee did here. In J.G., the police

did not observe an angled bulge in the juvenile’s coat pocket, as the officers

did here.    Finally, in Reppert, the defendant was not stopped in a high-

crime area, nor was there any type of angled bulge. In sum, as we conclude

that none of the cases cited by Appellee are persuasive in the instant

matter, the suppression court legally erred when it concluded that Appellee’s

Fourth Amendment rights have been violated. See Miller, supra.

       Based on the foregoing, we conclude that the suppression court legally

erred when it granted Appellee’s motion to suppress.         Accordingly, the

suppression court’s July 6, 2012 order is reversed, and the case is remanded

for further proceedings, consistent with this opinion.


____________________________________________
7
  Appellee also relies on the Sixth Circuit’s decision in United States v.
Patterson, 340 F.3d 368 (6th Cir. 2003). In that case, the Court of Appeals
concluded that no reasonable suspicion existed based on the defendant
standing with a group, walking away from the officers as they approached
and where one member of the group, not Patterson, “ma[de] a throwing
motion towards the bushes.” Id. at 369-370. We note, “this Court is not
bound by decisions of federal courts inferior to the United States Supreme
Court, even though we may look to them for guidance.” Commonwealth v.
Huggins, 68 A.3d 962, 968 (Pa. Super. 2013) (citation omitted), appeal
denied, 80 A.3d 775 (Pa. 2013). Additionally, the United States presented
even less than the Commonwealth had in Martinez, as in Patterson, the
Court of Appeals highlighted that the one person who made any tossing
movements was not the defendant.



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J-E01007-14


      Order reversed. Case remanded. Jurisdiction relinquished.

      President Judge Gantman, President Judge Emeritus Ford Elliott,

President Judge Emeritus Bender, and Judges Panella, Allen and Olson join

the opinion.

      Judge Lazarus files a dissenting opinion in which Judge Donohue

concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2014




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