J-A21018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SAMUEL RIVERA

                            Appellant                No. 3079 EDA 2013


            Appeal from the Judgment of Sentence October 31, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006946-2013


BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                          FILED NOVEMBER 06, 2014

        Samuel Rivera appeals from the judgment of sentence imposed

October 31, 2013, in the Philadelphia County Court of Common Pleas. The

trial court imposed a sentence of three years’ reporting probation after

finding Rivera guilty of one count of possession of a controlled substance

(cocaine).1     On appeal, Rivera challenges the trial court’s denial of his

pretrial suppression motion. For the reasons set forth below, we affirm.

        The facts underlying Rivera’s arrest and conviction are summarized by

the trial court as follows:


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(16).
J-A21018-14


               On February 11, 2013, at approximately 10:25 a.m.,
        Officer [Christopher] Daukaus and his partner … were traveling
        northbound on the 2900 block of North 3rd Street when Officer
        Daukaus observed Rivera having a conversation with an
        unknown Hispanic male. Rivera then reached into his pocket,
        removed his hand, and as he was reaching toward the Hispanic
        male, he looked toward Officer Daukaus and immediately put his
        hand back into his pocket and began to walk southbound on
        North 3rd Street.      Believing he had observed a narcotics
        transaction, Officer Daukaus exited his vehicle and told Rivera to
        stop. In response, Rivera began to run and then hopped on a
        nearby bicycle and continued southbound down North 3rd Street.
        He went several blocks … and ultimately ended up on North
        Philip Street where Officer Daukaus and [his partner] attempted
        to apprehend him. As the officers struggled with Rivera, Rivera
        stuffed a clear sandwich baggie containing a white substance
        into his mouth.      After Rivera spit out the baggie, [Officer
        Daukaus’s partner] placed him under arrest and Officer Daukaus
        recovered the baggie, which contained twelve (12) clear packets
        containing a white substance, alleged cocaine. Incident to the
        arrest, Officer Daukaus recovered a number of clear packets with
        a blue insert containing a white substance, alleged heroin, from
        Rivera’s person – one (1) from his left hand, one (1) from his
        left jacket pocket, and fourteen (14) from his right inside jacket
        pocket. The officer also recovered $114 U.S. currency form
        Rivera.

Trial Court Opinion, 1/6/2014, at 2-3.

        Rivera was subsequently charged with one count each of possession of

controlled substances and possession with intent to deliver controlled

substances (“PWID”).2         He filed a timely pretrial motion to suppress the

evidence recovered as a result of what he believed to be an unlawful seizure.

A suppression hearing was conducted on October 31, 2013, and at the close

of the testimony, the trial court denied Rivera’s motion to suppress.        The
____________________________________________


2
    35 P.S. § 780-113(a)(30).



                                           -2-
J-A21018-14



case proceeded immediately to a non-jury trial, at which time the testimony

from the suppression hearing was incorporated into the record and no

further testimony was presented.           Thereafter, the trial court found Rivera

guilty of possession of a controlled substance, but not guilty of PWID.

Rivera was sentenced that same day to a term of three years’ reporting

probation, and this timely appeal followed.3

       Rivera’s sole issue on appeal challenges the trial court’s denial of his

pretrial suppression motion.        Specifically, Rivera contends Officer Daukaus

lacked reasonable suspicion or probable cause to stop him when the officer

observed Rivera simply “put his hand in his pocket, [take] something out

and put his hand back in his pocket.”            Rivera’s Brief at 9.   Therefore, he

asserts the drugs the officers recovered following his subsequent flight were

the fruits of the initial unlawful seizure.

       Our review of an order denying a pretrial motion to suppress is well-

established.

              [We are] limited to determining whether the
              suppression court’s factual findings are supported by
              the record and whether the legal conclusions drawn
              from those facts are correct. Because the
              Commonwealth prevailed before the suppression
              court, we may consider only the evidence of the
              Commonwealth and so much of the evidence for the
____________________________________________


3
  On December 11, 2013, the trial court ordered Rivera to file a concise
statement or errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Rivera complied with the trial court’s directive, and filed a concise statement
on December 31, 2013.



                                           -3-
J-A21018-14


             defense as remains uncontradicted when read in the
             context of the record as a whole. Where the
             suppression court’s factual findings are supported by
             the record, we are bound by these findings and may
             reverse only if the court’s legal conclusions are
             erroneous. Where, as here, the appeal of the
             determination of the suppression court turns on
             allegations of legal error, the suppression court’s
             legal conclusions are not binding on an appellate
             court, whose duty it is to determine if the
             suppression court properly applied the law to the
             facts. Thus, the conclusions of law of the courts
             below are subject to our plenary review.

Commonwealth v. Delvalle, 74 A.3d 1081, 1084 (Pa. Super. 2013)

(citations omitted).

      In the case sub judice, there is no dispute that, after observing what

he believed to be a drug transaction, Officer Dauhaus attempted to make an

investigatory detention of Rivera by ordering Rivera to stop.     Accordingly,

we must determine whether, at that time, Officer Dauhaus had reasonable

suspicion to believe Rivera was engaging in criminal activity.            See

Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000) (“[A] police

officer may, short of an arrest, conduct an investigative detention if he has a

reasonable suspicion, based upon specific and articulable facts, that

criminality is afoot.”).

      When determining whether reasonable suspicion exists to justify a

police stop, we must bear in mind the following:

      A police officer may detain an individual in order to conduct an
      investigation if that officer reasonably suspects that the
      individual is engaging in criminal conduct. “This standard, less
      stringent than probable cause, is commonly known as
      reasonable suspicion.” In order to determine whether the police

                                     -4-
J-A21018-14


       officer had reasonable suspicion, the totality of the
       circumstances must be considered.                In making this
       determination, we must give “due weight to the specific
       reasonable inferences the police officer is entitled to draw from
       the facts in light of his experience.” Also, the totality of the
       circumstances test does not limit our inquiry to an examination
       of only those facts that clearly indicate criminal conduct. Rather,
       “even a combination of innocent facts, when taken together,
       may warrant further investigation by the police officer.”

Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en banc)

(internal citations and quotation omitted).      This Court has held that, in

determining whether a police officer possessed the requisite reasonable

suspicion, “[e]vasive behavior … is relevant[,]” as is an officer’s prior

experience.4 Id. at 361.

       Here, the trial court found that Officer Dauhaus had reasonable

suspicion to believe Rivera was engaged in criminal behavior when he

ordered Rivera to “stop.” The court explained:

       In the instant case, Officer Daukaus observed Rivera reach into
       his pocket, remove his hand and begin to reach toward the
       Hispanic male with whom he was standing. Upon seeing Officer
       Daukaus, Rivera immediately put his hand back into his pocket
       and began to walk away from the area. When told to stop,
____________________________________________


4
  With regard to a police officer’s prior experience in the context of a
weapons frisk, the Foglia Court stated:

       [I]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 occurred.

Foglia, supra, 979 A.2d at 361.




                                           -5-
J-A21018-14


       Rivera began to run from the officer and then hopped on a
       nearby bicycle and continued to flee from police.         Officer
       Daukaus’[s] knowledge of drug sales in the area, for which he
       made numerous arrests, taken in conjunction with his
       observations of Rivera’s hand movements gave rise to Officer
       Daukaus’[s] reasonable suspicion of a narcotics transaction, for
       which he was entitled to conduct an investigative detention.
       Rivera’s ensuing flight from the officers through the
       neighborhood and his ultimately spitting out a baggie containing
       a white substance, alleged cocaine, contributed to the totality of
       the circumstances providing Officer Daukaus[] with probable
       cause to stop and search Rivera.

Trial Court Opinion, 1/6/2014, at 5.

       Rivera contends, however, that Officer Daukaus’s observations prior to

the stop were insufficient to justify a reasonable belief that Rivera was

engaged in criminal behavior.            He emphasizes that the officer did not

witness an “exchange of money or objects,”5 and, therefore, was operating

under an “unparticularized ‘hunch’” that a narcotics transaction was

occurring.    Rivera’s Brief at 11-12.         He describes what Officer Daukhaus

observed as follows: “Mr. Rivera merely spoke with another person, during

the day in a residential neighborhood, took something out of his pocket and

put it back.” Id. at 13.

       Rivera also argues Officer Daukhaus had “fairly limited experience with

drug arrests[,]” so that his observations were not enhanced by his own

experience. Id. at 13. Furthermore, Rivera asserts that his flight should not

have “play[ed] a role in [the officer’s] decision to stop” him because he fled
____________________________________________


5
 Indeed, Officer Daukhaus testified on cross-examination: “I witnessed no
exchange.” N.T., 10/31/2013, at 18.



                                           -6-
J-A21018-14



only after Officer Daukhaus ordered him to stop. Id. at 14. Accordingly, he

contends because the initial seizure was unconstitutional, the drugs

recovered following the subsequent chase should have been suppressed as

“fruit of the poisonous tree.” Id. at 15.

      The decision of the Pennsylvania Supreme Court in Commonwealth

v. Cook, 735 A.2d 673 (Pa. 1999), is instructive. In Cook, two officers, in

an unmarked vehicle, were patrolling a block in the City of Harrisburg

between 8:00 p.m. and 1:00 a.m.        They noticed three individuals, one of

whom was the defendant, conversing on a corner. As the officers passed in

their vehicle,

      they observed [the defendant] take his left hand out of his front
      pocket in a fist position and reach toward one of the other
      individuals. The individual reached out toward [the defendant]
      and attempted to receive the unidentified item from his hand.
      To further investigate this conduct, [the officers] made a U-turn
      and drove to the corner where the group was gathered. As soon
      as [the defendant] spotted the officers and the car, he placed his
      hand back in his pocket and began backing away from the
      group. [One officer] exited the car, identified himself as a
      Harrisburg police officer, and began walking toward the group.
      [The defendant] immediately began to run “in almost a dead
      sprint.”

Id. at 674.      During the chase, the defendant abandoned a sandwich bag,

which contained crack cocaine, and two pagers.           The defendant was

subsequently arrested, and moved to suppress the evidence recovered from

what he described as an illegal seizure. The trial court denied his request,

and this Court affirmed on appeal.     The Supreme Court granted review to




                                     -7-
J-A21018-14



determine whether the police officers “demonstrated reasonable suspicion to

stop” the defendant. Id.

     In holding the seizure was supported by reasonable suspicion, the

Supreme Court emphasized the similarities of the facts before it with those

in the seminal decision, Terry v. Ohio, 392 U.S. 1 (1968).     In Terry, an

officer, with 30 years’ experience patrolling for shoplifters, observed the

defendant and another man “taking turns pacing down the street and

peering into a nearby store window and then walking back to the corner and

rejoining his companion.” Cook, supra, 735 A.2d at 676. They also spoke

briefly with a third man who then walked away.     After the men continued

this routine for 10 to 12 minutes, they walked off together before meeting

up again with the third man. At that point, the officer began to suspect that

the two were “‘casing a job,” and decided to stop them to investigate

further. Id., quoting Terry, supra, 392 U.S. at 6. The officer asked for the

men’s names, and when they mumbled a response, the officer grabbed the

defendant and patted him down, at which time he recovered a firearm.

     The Terry Court concluded that the search was based upon reasonable

suspicion. Relying on Terry, the Cook Court explained:

     [T]he decision in Terry was based, in part, on the “recognition
     that a police officer may in appropriate circumstances and in an
     appropriate manner approach a person for purposes of
     investigating possibly criminal behavior even though there is no
     probable cause to make an arrest.” “It was this legitimate
     investigative function [the officer] was discharging when he
     decided to approach [Terry] and his companions.” In light of
     this recognition, the Court created a test, which balanced the
     need to search against the invasion which the search entails. In

                                    -8-
J-A21018-14


      order to justify the search, the police officer must be able to
      “point to specific and articulable facts which, taken together with
      rational inferences from those facts, reasonably warrant that
      intrusion.” Even a combination of innocent facts, when
      taken together, may warrant further investigation by the
      police officer. Moreover, “in determining whether the officer
      acted reasonably in such circumstances, due weight must be
      given, not to his inchoate and unparticularized suspicion or
      ‘hunch,’ but to the specific reasonable inferences he is
      entitled to draw from the facts in light of his experience.”
      This standard, less stringent than probable cause, is commonly
      known as reasonable suspicion.

Cook, supra, 735 A.2d at 676.

      With regard to the case before it, the Cook Court noted that both of

the officers involved in the stop had been assigned to the “street level drug

interdiction unit” for two years, and one officer had made “prior drug arrests

in the same area where the instant incident occurred.” Id. at 677. Further,

like the officer in Terry, the officers in Cook “made firsthand observations of

completely innocent conduct--[i.e., the attempted hand-off of an unknown

object]-- … which immediately aroused their suspicions” based upon their

experience in drug investigations.    Id. The Court explained:

            Similar to the situation that existed in Terry, it is beyond
      peradventure that it was part of the legitimate investigative
      function of police work for the officers in the instant case to
      investigate the situation further. This belief prompted them to
      make a U-turn and approach the group on the corner, at which
      point appellant withdrew his hand from the other individual and
      began to back away.           When the police officers went to
      investigate, appellant fled. Thus, based on the facts surrounding
      the instant case, including the police officers’ training, expertise
      and past drug arrests in the same area; the attempted exchange
      of an unidentified object in a high crime area, appellant’s
      nervous behavior when the police made a U-turn; and
      appellant’s flight, the police officers were able to point to specific


                                      -9-
J-A21018-14


       and articulable facts, which in light of their police training and
       expertise, supported a finding of reasonable suspicion.

Id. at 677-678.

       We find the facts presented in the instant matter to be substantially

similar to those in Cook. Although Officer Daukaus had been a police officer

for only three years, he testified that he had been assigned to the same

district for that entire time. N.T., 10/31/2013, at 10. More importantly, he

stated that he observed “many” narcotics transactions over that three year

period, and made approximately 10 to 15 arrests on that very block, “almost

all” of which were for narcotics. Id. at 10-11. Furthermore, Officer Daukaus

testified the attempted transaction he observed on the day in question was

“extremely similar” to those he had observed in the past. Id. at 11. While

the officer acknowledged he did not witness an actual hand-to-hand

exchange, he stated that he observed Rivera “reaching in, going to hand

[the other man] something, looking back at us and then bringing, closing his

hand up and putting it back into his pocket.”      Id. at 18. Officer Daukaus

testified that he saw objects in Rivera’s hand, and although he “couldn’t

make out what they were, … [he] knew they weren’t any type of money or

small coins or anything like that.” Id. at 17. Based on his prior experience,

Officer Daukaus believed he had interrupted a hand-to-hand narcotics

transaction.6 Id. at 20.
____________________________________________


6
  We note that Rivera, relying Commonwealth v. Maxon, 798 A.2d 761
(Pa. Super. 2002), contends that Officer Daukaus simply acted on an
(Footnote Continued Next Page)


                                          - 10 -
J-A21018-14



      While we agree that we may not consider Rivera’s subsequent flight in

our reasonable suspicion analysis because Rivera fled after the officer

attempted to stop him, we may consider Rivera’s evasive behavior once he

noticed the uniformed officers nearby.           Notably, Officer Daukhaus testified

that as Rivera began to hand something to the other man, Rivera “turned in

[the officers’] direction, quickly put his hand back into his pocket, quickly put

his body (sic) away and began to walk” in the opposite direction. 7        Id. at 7-

8.   See Foglia, supra, 979 A.2d at 361 (stating “[e]vasive behavior … is

relevant in the reasonable-suspicion mix.”).


                       _______________________
(Footnote Continued)

“unparticularized ‘hunch.’” We disagree. The officers in Maxon, acting on a
tip that the defendant was dealing drugs, conducted surveillance of the
defendant’s vehicle and home. However, the only activity they observed,
before stopping and questioning him, was “Maxon drive to, enter and exit
several buildings … [and] bring a baggie out of his residence but [the
officers] could not see its contents.” Id. at 169. The Court found that
“[a]lthough it was plausible that Maxon was engaged in illegal conduct, there
was nothing irregular or suspicious about his or his passenger’s behavior.”
Id.     Here, Officer Daukaus witnessed an attempted hand-to-hand
transaction, followed by Rivera’s evasive behavior when he discovered the
police were nearby. Therefore, we do not find Maxon controlling.
7
  We recognize that the defendant in Cook fled as soon as the investigating
officer identified himself. Cook, supra, 735 A.2d at 674. See also Rivera’s
Brief at 14 n.4 (arguing Cook is not “on point” because, in that case, “flight
was a critical factor that contributed to the justification for the stop.”).
However, we do not find that distinction to be dispositive. Here, although
Rivera did not begin running until after Officer Daukaus ordered him to stop,
he did “quickly” end his transaction as soon as he saw the officer, and began
to walk away. N.T., 10/31/2013, at 7. We find these actions sufficient to
constitute “evasive behavior.”




                                           - 11 -
J-A21018-14



       Therefore, considering the totality of the circumstances before Officer

Daukaus -- including his observations of Rivera in light of the officer’s

experience and Rivera’s evasive behavior -- we detect no basis upon which

to disturb the finding of the trial court that the officer had reasonable

suspicion to conduct an investigatory stop of Rivera.8 Further, we agree that
____________________________________________


8
  We note that, contrary to Rivera’s suggestion, there is no minimum set of
circumstances required to support a finding of reasonable suspicion. See
Rivera’s Brief at 14 (noting that additional factors suggesting criminal
activity were not present in this case). As the Cook Court explained,

       [C]ircumstances may exist which require a police officer on the
       “beat” who has made on the spot observations to take
       immediate action or investigate further by stopping and perhaps
       frisking the individual involved. Terry v. Ohio, 392 U.S. 1, 20,
       88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

                                         ****

       Case law has established that certain facts, taken alone, do not
       establish reasonable suspicion.    Commonwealth v. Matos,
       543 Pa. 449, 672 A.2d 769 (1996) (flight alone does not
       constitute reasonable suspicion); Commonwealth v. DeWitt,
       530 Pa. 299, 608 A.2d 1030 (1992) (flight alone does not
       constitute reasonable suspicion); Commonwealth v. Kearney,
       411 Pa.Super. 274, 601 A.2d 346 (1992) (mere presence in a
       high crime area does not warrant a stop).           However, a
       combination of these facts may establish reasonable suspicion.
       Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. 1868 (innocent facts,
       when taken together, may warrant further investigation);
       Commonwealth v. Riley, 715 A.2d 1131, 1135 (Pa. Super.
       1998) (“a combination of circumstances, none of which alone
       would justify a stop, may be sufficient to achieve a reasonable
       suspicion”).

Cook, supra, 735 A.2d at 676, 677. As explained above, here, we find that
Officer Daukaus had reasonable suspicion that Rivera was engaging in
criminal behavior.
(Footnote Continued Next Page)


                                          - 12 -
J-A21018-14



Rivera’s subsequent flight and attempt to secrete a baggie containing what

appeared to be narcotics in his mouth, supported the officers’ probable

cause to arrest him. Accordingly, Rivera is entitled to no relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2014




                       _______________________
(Footnote Continued)




                                           - 13 -
