J-S47022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

DWAYNE SMITH,

                        Appellee                   No. 2186 EDA 2013


               Appeal from the Order Entered June 27, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0002062-2013


BEFORE: MUNDY, OLSON AND WECHT, JJ.

MEMORANDUM BY OLSON, J.:                      FILED SEPTEMBER 03, 2014




granted a motion to suppress physical evidence filed by Appellee, Dwayne



remand for additional proceedings.

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

            On December 27, 2012, at approximately 7:20 P.M.,
                                                         k him to a
        residence at 4731 Salem Street, in Philadelphia. Officer
        Apostolou had been a police officer for almost seven years
        at this time. He was familiar with the area and described it
        as a violent, high crime neighborhood, with frequent
        shootings and narcotic sales.

           Officer Apostolou, along with three other officers, went
        to the Salem Street residence to look for a victim of a
        reported gang-related Molotov cocktail firebomb and
        shooting that had occurred at 600 Foulkrod Street in
J-S47022-14


         Philadelphia.    The officers arrived at the Salem Street
         address based upon information Sergeant Cerutti[1] had
         received.     Officer Apostolou did not know what that
         information was, nor did he personally observe any signs of
         an individual in distress at the Salem Street property.

              Sergeant Cerutti knocked on the door and announced

         search warrant for the property or the occupants. An
         individual named Keith Bennett, whom Sergeant Cerutti
         identified as the resident of the home, answered the door
         within approximately ten seconds of the knock. A few
         seconds after law enforcement explained that they were
         looking for a victim from the 600 Foulkrod Street incident,

         house.

             Sergeant Cerutti entered first, followed by Officer
         Apostolou and two other officers.        Upon entering the
         residence, Officer Apostolou observed approximately ten
         individuals, an estimated five of which were running out the
         back of the residence.       Officer Apostolou also noticed
         [Appellee], who was a couple of feet away from him,
         leaning over and reaching his left hand down toward the
         bottom of a recliner. [Appellee] lifted his left hand and

         an
         for his safety when, in conjunction with the individuals
         running out of the house, he saw [Appellee] put his hand in
         his pocket. After seeing this gesture, Officer Apostolou
         decided to stop and frisk [Appellee], at which point

         Apostolou felt a handful-
         his experience from hundreds of prior narcotics arrests, he
                                                       icer Apostolou
         handcuffed [Appellee], searched the left pocket of his pants,
         and recovered twenty-
         containing an off-
         analysis confirmed that the substance was crack cocaine.

____________________________________________


1




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J-S47022-14


         Officer Apostolou also recovered $217.00 of United States


Trial Court Opinion, 11/5/2013, at 203 (record citations, brackets and



recovered from the residence, that [weapon was] not subject to the

                            Id. at 3 n.3.

       The Commonwealth charged Appellee with four firearm violations, two

narcotics charges, and possessing an instrument of crime.2     On May 24,

2013, Appellee filed a motion to suppress the narcotics and cash seized from

his person, but not the firearm which was also recovered.3 The trial court

held a suppression hearing on June 13, 2013, wherein Officer Apostolou and

Appellee testified.     On June 27, 2013, the trial court granted A

motion. This timely appeal resulted.4
____________________________________________


2
    18 Pa.C.S.A. §§ 6105(a)(prohibited possession of a firearm),
6106(a)(1)(firearms not to be carried without a license), 6106.1(a)(carrying
a loaded weapon), 6108 (carrying a firearm on public streets or property in
Philadelphia); 35 P.S. §§ 780-113(a)(30)(possession of a controlled
substance with intent to deliver) and 780-113(a)(16)(intentional possession
of a controlled substance); 18 Pa.C.S.A. § 907 (possession of an instrument
of crime).
3

firearm] because it was not his house [and] [i]t was not found on his

and/or lacked a reasonable expectation of privacy. Id. Thus, the firearm is
not at issue herein.
4
  The Commonwealth filed a notice of appeal on July 29, 2013. Because the
30-
appeal was timely filed on Monday, July 29, 2013. See 1 Pa.C.S.A. § 1908
(computation of time). In its notice of appeal, the Commonwealth certified
(Footnote Continued Next Page)


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        On appeal, the Commonwealth presents the following issue for our

review:

          Did the lower court err in suppressing evidence on the
          ground that there was no reasonable suspicion for a
          Terry[5] frisk where police responded to a report of a
          firebomb/shooting victim entering an address in a high
          crime area, entered with permission, saw a large group of
          occupants, many of whom fled through the back of the
          house, and [Appellee], seated on a recliner, made reaching
          motions toward the floor and toward his pants pocket?




evidence because it evaluated the circumstances in isolation and focused on

factors    not   p

                       Id. at 7. The Commonwealth argues that officers entered



                                                        Id. at 8. The officers

                                                                             -



                                                       Id. at 10-11. Thus, the


                       _______________________
(Footnote Continued)

that the suppression order terminated or substantially handicapped the
prosecution as required. See Pa.R.A.P. 311(d). Simultaneously with its
notice of appeal, the Commonwealth filed a statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on November 5, 2013.
5
    Terry v. Ohio, 392 U.S. 1 (1968).



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to believe that [Appellee] was armed and dangerous when he reached to the

                                                                            Id.

at 8.     The Commonwealth points



warranted a protective frisk by police pursuant to Terry. Id. at 12-13. The

Commonwealth avers that the trial court erred by focusing on the facts that

Appellee did not flee and that Officer Apostolou did not see an object in

                   Id. at 14.

        Our standard of review is as follows:

          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. Boulware, 876 A.2d 440, 442 (Pa. Super. 2005)

(internal citation omitted).

        Regarding protective frisks under Terry, this Court has previously

stated:


          It is hornbook law that the Fourth Amendment to the United
          States Constitution as well as Article I, § 8 of the
          Pennsylvania     Constitution    protect  citizens   from
          unreasonable searches and seizures. Warrantless searches
          and seizures (such as occurred in this case) are
          unreasonable per se, unless conducted pursuant to

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        specifically established and well-delineated exceptions to
        the warrant requirement. One such exception, the Terry

        citizen for investigatory purposes if the officer observes
        unusual conduct which leads him to reasonably conclude, in
        light of his experience, that criminal activity may be afoot.

        Terry further held that when an officer is justified in
        believing that the individual whose suspicious behavior he is
        investigating at close range is armed and presently
        dangerous to the officer or to others the officer may conduct
        a pat down search to determine whether the person is in
        fact carrying a weapon. The purpose of this limited search
        is not to discover evidence of crime, but to allow the officer
        to pursue his investigation without fear of violence.

Commonwealth v. Simmons, 17 A.3d 399, 402-403 (Pa. Super. 2011)

(internal citations omitted).

      Our Supreme Court has stated:

        The officer need not be absolutely certain that the individual
        is armed; the issue is whether a reasonably prudent man in
        the circumstances would be warranted in the belief that his
        safety or the safety of others was in danger. The existence
        of reasonable suspicion to frisk an individual must be judged
        in light of the totality of the circumstances confronting the
        officer.

Commonwealth v. Taylor, 771 A.2d 1261, 1268 1269 (Pa. 2001).



movements, in conjunction with the fact that [the defendant] placed his

hands inside his coat pocket as if he were reaching for something, could lead

[po

Commonwealth v. Wilson, 927 A.2d 279, 284-285 (Pa. Super. 2007).



a person, but rather the nature of those actions. Where a person performs

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an activity that is indicative of an attempt to secrete a weapon, that

movement, regardless of whether it is singular or multiple, can support a

                                               Commonwealth v. Tuggles, 58 A.3d

840, 844 (Pa. Super. 2012).              f a suspect engages in hand movements

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

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

protective weapons search of the location where the hand movements

             In Interest of O.J., 958 A.2d 561 (Pa. Super. 2008) (en banc).6



                                                        Commonwealth v. Foglia,

____________________________________________


6
 Appellee cites to Commonwealth v. Cooper, 994 A.2d 589 (Pa. Super.
2010), appeal denied, 13 A.3d 474 (Pa. 2010) as support for his argument

was armed and dangerous at the time of                                  -7.
The facts and circumstances in Cooper, however, are clearly distinguishable
from the instant case.     In Cooper, police officers were patrolling a
neighborhood at 9:00 a.m. because of complaints that people were stealing
copper from street dumpsters. The appellant was observed standing next to


officer ordered him to stop and he complied.            In looking at the totality of


his pocket in broad daylight gave the officer reason to believe [a]ppellant
                                   Id. at 594. In reaching this conclusion, we
noted that the incident occurred at 9:00 a.m., there was no testimony that
the appellant was in a dangerous neighborhood, the officers simply found
the appellant next to a dumpster where he was in no position to retrieve a
weapon, and the appellant merely moved toward his pocket but did not
actually reach into his pocket. Id. The totality of circumstances in the case
sub judice are significantly different.



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979 A.2d 357, 361 (Pa. Super. 2009) (en banc), appeal denied, 990 A.2d

727 (Pa. 2010).



was unlawful and opined as follows:

            At    the   suppression hearing in this case, Officer
                                      o articulate a reasonable belief
        that [Appellee] was armed and dangerous at the time of the
        frisk.  The interaction between Officer Apostolou and
        [Appellee] took place inside a residence located in a high
        crime neighborhood after an incident thought to be gang
        related. At the time of the interaction, however, Officer
        Apostolou also testified that he was looking for a victim of
        the crime, not the perpetrator of the crime.           Officer
        Apostolou also testified that he became concerned for his
        safety when he saw approximately five individuals fleeing,
        he saw [Appellee] reach his left hand down toward the floor
        and then shove that hand into his pocket.              Officer
        Apostolou, however, who was just a couple of feet from
                                                            and, nor
        did he testify to seeing anything protruding or bulging on

        something dangerous. Because Officer Apostolou failed to
        articulate specific facts giving rise to a reasonable belief
        that [Appellee] was armed and dangerous at the time of the
        frisk, the frisk itself was unlawful.

Trial Court Opinion, 11/5/2013, at 4 (citations, quotations, and bracket

omitted).

     Upon review of the record, we conclude that the trial court erred as a

matter of law by failing to view the totality of the circumstances as

presented by the Commonwealth.          Officer Apostolou testified, without

contradiction, that police were responding to gang-related violence including

a firebombing and shooting. N.T., 6/13/2013, at 8. He characterized the



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                                                                   Id. at 7. Upon

entering the subject property with consent from the resident, Officer

                                                                               Id.

at 10. While Officer Apostolou acknowledged that police were looking for a

potential victim of the rep

we went in, due to people running out the back and due to the fact that we

                                                             Id. at 27. Appellee,



making a downward motion toward the bottom of the recliner. Id. Later,

upon cross-

actually leaning on the recliner. And his left hand was leaning on the ground

where he                                 Id. at 27. Officer Apostolou did not see a

firearm.   Id.

                                 Id. at 11. Officer Aposotlou decided to conduct a

frisk for his safety, because he saw Appellee put his hand in his pocket.7 Id.
____________________________________________


7
  Appellee testified on his own behalf. He testified, in contrast to Officer
Apostolou, that when a resident of the subject house, Keith, answered the

[Keith] and tackled him down. N.T., 6/13/2013, at 39. He further testified
that three police officers came into the residence and swept through the
dwelling. Id.
                                                                       Id.
Appelle
                         Id. at 41. Police uncovered the firearm and police

(Footnote Continued Next Page)


                                           -9-
J-S47022-14



      Here, it is undisputed that police were in a high-crime area in response

to gang-related violence.         Although the police were admittedly looking for

the victim of a violent crime, this did not preclude the possibility that they

might encounter an armed and dangerous individual. Moreover, under the

circumstances, it would not be unreasonable for them to fear for their safety

when investigating.        Certainly, a victim of gang-violence could have been

armed or even provoked the altercation in his or her own right. In addition,

the overall chaotic scenario that police entered into, with multiple people



armed and dangerous individuals.

      Most    importantly,      Officer    Apostolou   testified,   unequivocally    and

without dispute, that he witnessed Appellee make two separate furtive

movements        one toward the bottom of the chair upon which he was

seated;8 the other motion occurred when Appellee placed his left hand in his

pocket. Both locations were potential locations to secrete a weapon. While


                       _______________________
(Footnote Continued)

                   Id.   The factual findings made by the trial court as
announced in open court on June 27, 2013 and as set forth in its 1925(a)

                                 Boulware                                           ssion



8

                                                           -3. However, as indicated
above,



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J-S47022-14




reaso

Taylor, 771 A.2d at 1268 1269.          Taking all the evidence together, we

conclude     that   the    Commonwealth   presented   evidence   showing   the

                                                       hat his safety or the

safety of others was in danger. Thus, Officer Apostolou possessed a

reasonable suspicion to conduct a lawful frisk of Appellee pursuant to Terry.

Hence, we reverse the order granting suppress and remand this matter for

trial.

         Order reversed.    Remanded for additional proceedings.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/3/2014




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