J-A08014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

DANNY DEVINE

                            Appellant                 No. 2300 EDA 2015


             Appeal from the Judgment of Sentence March 27, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): MC-51-CR-0034500-2014


BEFORE: PANELLA, J., LAZARUS, J., and STEVENS, P.J.E.*


MEMORANDUM BY PANELLA, J.                               FILED JUNE 16, 2017

        Appellant, Danny Devine, appeals from the judgment of sentence

entered in the Philadelphia County Municipal Court, as confirmed by the

Philadelphia County Court of Common Pleas, following denial of his petition

for writ of certiorari. In that petition, Devine argued that the Municipal Court

erred in failing to suppress evidence against him. Devine contends that the

Court of Common Pleas erred in concluding that the arresting officer had

reasonable suspicion to stop Devine and conduct a Terry1 stop and frisk. We

agree. Accordingly, we reverse the order denying the petition for writ of

certiorari and vacate the judgment of sentence.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    Terry v. Ohio, 392 U.S. 1 (1968).
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      The relevant facts and procedural history are as follows. On October 8,

2014, Devine was arrested and charged through the filing of a criminal

complaint with possession of a controlled substance. Devine filed a motion to

suppress. The Municipal Court of Philadelphia held a suppression hearing.

      At the hearing, the Commonwealth presented the testimony of Police

Officer Anthony Mergiotti. At approximately 9:35 a.m. on October 8, 2014,

Officer Mergiotti and his partner were on patrol in a marked police vehicle in

South Philadelphia. See N.T., 3/27/15, at 6. Officer Mergiotti noted that they

were assigned to patrol the area due to recent gang-related shootings. See

id., at 9. As the officers approached the 1600 Block of 5 th Street, Officer

Mergiotti observed Devine standing on a corner, having a conversation with

another man. See id., at 7-8, 12.

      The officers continued northbound at which point Devine turned to face

the police vehicle and began to walk “briskly” southbound—towards the

police vehicle. Id., at 8, 11-12. Officer Mergiotti observed that as Devine

was walking, his left arm was swinging freely, but his right arm was

“pressed completely against the right side of his body.” Id. Based upon his

eight years of experience as a police officer, and his knowledge that people

carrying illegal firearms need to hold the firearm as they walk, as they do

not typically holster their weapons, Officer Mergiotti believed that Devine’s

body movements indicated that he was concealing a firearm. See id., at 8,

11.




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      Officer   Mergiotti   stopped   Devine    after   Devine    had   walked

approximately ten feet from where he had previously been standing and

asked him to place his hands on a vehicle. See id., at 13. Devine complied,

and Officer Mergiotti frisked him for weapons. See id., at 14. Officer

Mergiotti began his frisk on Devine’s right side, the side Devine had clutched

his arm against as he was walking, and felt a small two-by-two inch packet

in Devine’s pocket. See id. Through his prior experience with drug

packaging, Officer Mergiotti testified that it was “readily apparent” that the

object was narcotics. Id., at 14-15. As such, he removed the object from

Devine’s pocket and discovered that Devine had a clear Ziploc packet

containing a glassine insert with a white substance, later identified as heroin.

See id., at 14. Devine did not testify at the suppression hearing or present

any additional evidence.

      Following the hearing, the Honorable Robert Blasi of the Philadelphia

County Municipal Court denied Devine’s suppression motion, stating that

Officer Mergiotti had the requisite reasonable suspicion to stop Devine and

search him for weapons. The parties immediately proceeded to a bench trial,

following which Judge Blasi found Devine guilty of possession of a controlled

substance and imposed a one-year probationary sentence. Devine filed a

writ of certiorari with the Philadelphia Court of Common Pleas from the

denial of his suppression motion. On July 13, 2015, the court reviewed the




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findings of the Municipal Court and denied Devine’s writ. 2 This timely appeal

follows.

       On appeal, Devine argues that the Court of Common Pleas erred in

denying his pre-trial motion to suppress evidence gained from the arresting

officer’s stop and subsequent search of Devine’s person. See Appellant’s

Brief, at 3, 6-18. Specifically, Devine contends that the officer did not have

the requisite reasonable suspicion to conduct the stop, and further, that

once Devine was stopped, the officer did not have probable cause to perform

the search. See id., at 3, 11-18.

       Our standard of review of the denial of a motion to suppress evidence

is as follows.

       Our standard of review in addressing a challenge to the denial of
       a suppression motion is 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 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 … the appeal of the determination of the suppression
____________________________________________


2
  “If the defendant files a certiorari petition challenging the denial of a
suppression motion, the Court of Common Pleas of Philadelphia County sits
as an appellate court and reviews the record of the suppression hearing in
the Municipal Court.” Commonwealth v. Neal, 151 A.3d 1068, 1070 (Pa.
Super. 2016) (citations omitted). In performing the review, the court
“applies precisely the same standard that the Superior Court applies in
appeals from common pleas court orders denying motions to suppress.” Id.



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      court turns on allegations of legal error, the suppression court’s
      legal conclusions are not binding on the 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 [trial]
      court[ ] … are subject to our plenary review.

Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa. Super. 2012)

(citation omitted). Here, the record supports the Court of Common Pleas’

factual findings. Thus, we proceed to review the court’s legal conclusions.

      The Fourth Amendment to the United States Constitution guarantees,

“[t]he right of 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. Similarly, the Pennsylvania Constitution assures the

citizens of our Commonwealth that “[t]he people shall be secure in their

persons, houses, papers and possession from unreasonable searches and

seizures….” Pa. Const. art. I, § 8.

      “The reasonableness of a government intrusion varies with the degree

of privacy legitimately expected and the nature of the governmental

intrusion.” Commonwealth v. Fleet, 114 A.3d 840, 844 (Pa. Super. 2015)

(citation omitted). Interactions between law enforcement and citizens fall

into one of three following categories.

      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 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.

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Id., at 845 (citation omitted).

      Here, Officer Mergiotti testified that he asked Devine to stop and place

his hands on a vehicle. It is clear from Officer Mergiotti’s own testimony that

Devine was not free to leave, and was thus subject to an investigative

detention when stopped and searched for weapons. As such, we must next

determine whether Officer Mergiotti had articulable and reasonable suspicion

to justify his stop of Devine. Devine contends that the totality of the

circumstances does not support Officer Mergiotti‘s conclusion that he had

reasonable suspicion to perform an investigative detention, otherwise known

as a Terry stop and frisk. See Appellant’s Brief, at 11-12.

      When this Court evaluates whether a Terry stop is constitutional,

      [o]ur inquiry is a dual one—whether the officer’s action was
      justified at its inception, and whether it was reasonably related
      in scope to the circumstances which justified the interference in
      the first place. Regarding the stop, 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. The fundamental inquiry is an objective
      one, namely, whether the facts available to the officer at the
      moment of the [intrusion] warrant a man of reasonable caution
      in the belief that the action taken was appropriate. This
      assessment, like that applicable to the determination of probable
      cause, requires an evaluation of the totality of the
      circumstances, with a lesser showing needed to demonstrate
      reasonable suspicion in terms of both quantity or content and
      reliability.

            An individual’s suspicious and furtive behavior that, in the
      opinion of an experienced police officer under certain
      circumstances, indicates criminal activity, reasonably justifies an
      investigative detention.



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             Further, the delicate balance between protecting the right
      of citizens to be free from unreasonable searches and seizures,
      on the one hand, and protecting the safety of our citizens and
      police officer by allowing police to make limited intrusions on
      citizens while investigating crime, on the other hand, requires
      additional considerations when the police have a reasonable
      suspicion that a person may be armed. …

                                      ***

            Thus, … a police officer may frisk an individual during an
      investigatory detention when the officer believes, based on
      specific and articulable facts, that the individual is armed and
      dangerous. When assessing the reasonableness of an officer’s
      decision to frisk a suspect during an investigatory detention, and
      appellate court does not consider the officer’s unparticularized
      suspicion or hunch but rather the specific reasonable inferences
      which he is entitled to draw from the facts in light of his
      experience.

Commonwealth v. Stevenson, 894 A.2d 759, 771-772 (Pa. Super. 2006)

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

      Here, the only articulable facts that Officer Mergiotti offered to support

his reasonable suspicion that criminal activity was afoot was that Devine was

in a high crime area and walked “briskly” away from a corner while holding

his right arm against his body. Officer Mergiotti testified that he believed this

arm movement to be indicative of concealing a firearm because of his

knowledge that people carrying illegal firearms do not use holsters.

Immediately following this observation, and before Devine had walked more

than ten feet, Officer Mergiotti ordered Devine to stop and conducted a

search of Devine’s person.

      While this Court has examined the totality of the circumstances to

support a finding of reasonable suspicion to perform an investigative

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detention in a variety of situations, we find the circumstances present in

Commonwealth v. Martinez to be most analogous to the case at hand.

588 A.2d 513 (Pa. Super. 1991). Notably, this Court held that a situation in

which the defendant “walked quickly away from a group of people on a

street corner after observing a police vehicle . . . [and] where . . . officers

observed a bulge in her front pocket[,]” does not constitute reasonable

suspicion of criminal activity necessary for an investigative detention. Id., at

514. This fact pattern is almost identical to the case at hand, except instead

of noting a bulge, Officer Mergiotti noted an arm movement, which he felt

was indicative of secreting a firearm. However, we do not find that this one

factor is significant enough to change the ultimate result. As such, based

upon the solid reasoning of Martinez, we find that Officer Mergiotti lacked

the reasonable suspicion necessary to stop Devine.

      Further, while the Commonwealth cites several cases to support the

finding that the totality of the circumstances establishes reasonable

suspicion of criminal activity, we find that all of these cases are readily

distinguishable. For instance, the officers were not responding to a radio

broadcast reporting probable criminal activity in progress when he stopped

Devine. Cf. Commonwealth v. Ranson, 103 A.3d 73, 80 (Pa. Super.

2014). Devine did not turn and walk away from the police, but rather turned

and   walked   in   the   direction   of   the   oncoming   police   vehicle.   Cf.

Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa. Super. 2008) (en banc)

(finding “evasive behavior” in walking away from police contributes to

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reasonable suspicion). Nor, obviously, did Devine run from the officers. Cf.

Commonwealth v. Tucker, 883 A.2d 625, 630-631 (Pa. Super. 2005)

(finding unprovoked flight in a high crime area suffices to satisfy the Terry

standard of reasonable suspicion).

       Viewing the proposed basis for the investigative detention of Devine

within the totality of the circumstances, we do not find that Officer Mergiotti

had the requisite reasonable suspicion that Devine was engaging in criminal

activity. Accordingly, Devine was subject to an illegal detention, and the

court erred in failing to suppress the physical evidence obtained from

Devine’s person during the subsequent search. We therefore reverse the

order and vacate the judgment of sentence.3

       Order reversed. Judgment of Sentence vacated. Case remanded for

further    proceedings      consistent     with   this   memorandum.   Jurisdiction

relinquished.




____________________________________________


3
  Due to our disposition of Devine’s appeal, we need not address Devine’s
second issue on appeal, i.e., that Officer Mergiotti did not have the requisite
probable cause necessary to remove the contraband following a search of
Devine’s person.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2017




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