J-A11018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

MICHAEL WARREN

                          Appellant                 No. 2246 EDA 2015


             Appeal from the Judgment of Sentence June 25, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0001483-2015


BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED JULY 22, 2016

        Appellant, Michael Warren, appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas after the trial court

convicted him of possession of a small amount of marijuana1 and possession

of drug paraphernalia.2    Appellant contends he was subject to an unlawful

stop without reasonable suspicion. We reverse.

        On February 19, 2015, Appellant was arrested for the above offenses.

On May 13, 2015, Appellant filed a motion to suppress contending his arrest

resulted from an illegal seizure and search. Pre-Trial Mot., 5/13/13, at 1-2

(unpaginated). The trial court held a hearing on May 21, 2015, at which the

* Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(31).
2
    35 P.S. § 780-113(a)(32).
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only evidence presented was the testimony of Upper Darby Police Officer

Michael DeHoratius. At the time of the hearing, Officer DeHoratius had been

a patrol officer for Upper Darby Police Department for three years, and spent

the previous seven years as a police officer in Tredyffrin Township.      N.T.,

3/21/15, at 4-5.    He received training in the packaging and recognition of

illegal narcotics and has been involved in “hundreds of arrests” during his

career. Id. at 5. In his experience patrolling the east side of Upper Darby,

he has “seen shootings, shots fired, aggravated assaults, guns, robberies,

burglaries, home invasions, typically violent crimes.” Id. at 6.

      He testified on direct-examination, in relevant part, as follows:

         Q. And around February 29, 2015, were you aware of any
         incidents that were going on in specifically the area of
         Clover Lane and Crosley . . . Road?

                                  *    *    *

         A. Yes. In and around that area there were businesses
         being robbed at gunpoint. There was also pedestrians
         being robbed. I believe three nights earlier I took a
         robbery of a plow driver right at . . . Clover and
         Greenwood a plow driver was robbed with an implied gun
         in that area.

         Q. And was that during that incident, that robbery, was
         that person apprehended?

         A. No.

         Q. So they just gave you information on that robber?

         A. That’s correct.

         Q. And what information did you receive?


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       A. There was two black males, both kind of generic
       description of all dark clothing and skinny?

       Q. All dark clothing and skinny?

       A. Yes.

       Q. Besides the one three [d]ays beforehand and you said
       there were other robberies in the area?

       A. Yes. The stores on Baltimore Pike which is probably a
       quarter to half a mile from that area were being robbed by
       males at gunpoint.

       Q. And with a similar description?

       A. Similar description, yes.

       Q. And on that night around 9:00 . . . in the evening did
       you observe anything at this time?

       A. Yes. I was on patrol in the area specifically due to some
       of the robberies and I observed a male kind of wandering
       around the areas. He was later identified as [Appellant] . .
       .

                                *      *    *

       Q. . . . What exactly did you notice [Appellant] doing?

       A. Well, it was February. It was a very cold winter and
       there’s not much pedestrian traffic in that area as there is
       during a spring, fall or summer time. I noticed that he
       was walking in the area. He was in the middle of the
       street. I then lost sight of him. I observed him then
       walking on Clover Lane towards Rawling . . . I lost sight of
       him and then I observed him walking back down Clover
       Lane towards Crosley.

       Q. When you say he was in the middle of the street, how
       long was he in the middle of the street for?

       A. I would say for a matter of seconds.


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       Q. Was he doing anything while he was – was he just
       walking straight ahead?

       A. No. The first time I observed him he was just kind of
       looking around.

       Q. Looking around. And then you lost him a couple times
       you said, correct?

       A. Yes. This was over a time about between 10 and 20
       minutes.

       Q. Ten and 20 minutes. And then you observed—did you
       observe him doing anything else? Was he just walking by
       himself or—

       A. No. One of the last times I observed him walking down
       Clover Lane, he’d be walking east, he was starting to
       become very close to another male that was walking down
       the street to the rear of him.

       Q. How close would you say?

       A. I would say within a matter of feet.

       Q. One foot, two feet, three feet?

       A. I would say within three to five feet. Definitely closer
       than anybody would typically walk behind another person.

       Q. And he was behind the person?

       A. Yes.

       Q. And then what did you see – what did you do after you
       saw that?

       A. Well, at that point, I decided to go stop and find out
       what was going on and I had to drive down another one-
       way street and then come back and drive up Clover which
       was one-way.

       Q. Okay. And then did you do that?


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        A. Yes.   So at that point [Appellant] was stopped on the
        street.

        Q. Okay. And was there only the one pedestrian you saw
        him walk by or was there anyone else?

        A. No, just the one.

        Q. Okay. And then so you stopped and what happened
        when you stopped?

        A. I stopped him.       I asked him not to move.         He
        immediately was patted—when I observed him he had a
        winter coat on and kind of the nature of the winter coat he
        had bulky pockets. And at that point for my safety he was
        patted down for weapons. When he was patted down for
        weapons, I felt in his right pocket two small glass
        containers which from my training and experience I knew
        it’s typical for packaging illegal narcotics. After the pat-
        down for weapons was done they were seized and in them
        was a small amount of marijuana.

Id. at 7-10.

     He further testified that he personally witnessed a robbery of a woman

in Upper Darby, approximately one and one-half to two miles from where he

stopped Appellant, two-and-one-half years before. Id. at 11. He described

Appellant as wearing “dark clothing” the night he was stopped and agreed

with the Commonwealth that the suspects in the recent robbery, three days

prior, were described as wearing “dark clothing.” Id. at 11-12.

     On cross-examination, Officer DeHoratius reiterated what drew his

attention to Appellant: “he originally caught my attention by walking

throughout the area while it was cold. It was in the middle of February and

again he caught my attention . . . by walking a short distance behind


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somebody.” Id. at 16. He could not recall a description of the individual he

observed Appellant was near, and he testified he did not “believe” Appellant

made any movement toward the individual. Id.

      With regard to his decision to pat down Appellant, he testified as

follows.

           Q. . . . And you indicated that you ended up patting him
           down for your safety, correct?

           A. Yes.

           Q. And that was based on the fact that there were these
           robbery reports in the area?

           A. Correct.

           Q. And you also testified that he had a winter coat on,
           correct?

           A. Yes.

           Q. And it’s cold outside, its February?

           A. Yeah, it’s the middle of February during the very cold
           winter we just had.

Id. at 19.

      The trial court denied Appellant’s motion, and Appellant proceeded

immediately to a stipulated-bench trial. Id. at 24. The Commonwealth and

Appellant stipulated that the glass vials seized from Appellant contained

marijuana, and the trial court found Appellant guilty of the above crimes.

Id. at 29, 32; Trial Ct. Order, 5/21/15.




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      On June 25, 2015, the trial court sentenced Appellant to fifteen to

thirty days’ imprisonment on possession of small amount of marijuana and a

consecutive   term of time-served to      six months’ probation on drug

paraphernalia.    Sent. Order, 6/25/15.   Appellant filed a timely notice of

appeal on July 23, 2015. Appellant filed a court-ordered Pa.R.A.P. 1925(b)

statement on August 13, 2015, and the trial court issued a responsive

opinion on August 28, 2015.         The trial court concluded that Officer

DeHoratius possessed reasonable suspicion that criminal activity was afoot.

Trial Ct. Op., 8/28/16, at 6.

      On appeal, Appellant raises the following issue:

            Whether the [trial c]ourt erred in denying [Appellant’s]
         motion to suppress evidence where the stop in question,
         as well as the subsequent search of his person, violated
         the precepts of Terry v. Ohio[, 392 U.S. 1 (1968)] and,
         as such, violated his rights under the Fourth and
         Fourteenth Amendments of the United States Constitution,
         and Article 1, Section 8 of the Pennsylvania Constitution?

Appellant’s Brief at 5.

      Appellant argues Officer DeHoratius “detained [Appellant] without

reasonable suspicion that criminal activity was afoot and patted him down

without reasonable suspicion that he was armed and dangerous.” Id. at 11.

Specifically, he contends the stop was “based on nothing more than a

hunch” and Officer DeHoratius “cited no specific or articulable facts to

establish any kind of belief that [Appellant] was armed and dangerous.” Id.

at 18-19. Appellant further contends the seizure of the items in his pocket


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was impermissible because their incriminating nature was not immediately

apparent to Officer DeHoratius. Id. at 22-28. For the reasons that follow,

we agree the trial court erred in denying Appellant’s suppression motion.

          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 legal conclusions are erroneous. 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. Jones, . . . 988 A.2d 649, 654 ([Pa.]
        2010) . . . . Moreover, appellate courts are limited to
        reviewing only the evidence presented at the suppression
        hearing when examining a ruling on a pre-trial motion to
        suppress. See In re L.J., . . . 79 A.3d 1073, 1083-87
        ([Pa.] 2013).

Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014), appeal

denied, 117 A.3d 296 (Pa. 2015).

           The Fourth Amendment of the Federal Constitution
        provides, “the 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

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        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). . . .

        The Fourth Amendment permits brief investigative stops[3]
        . . . when a law enforcement officer has a particularized
        and objective basis for suspecting the particular person
        stopped of criminal activity.    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.      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, . . . is
        an exception to the textual standard or probable cause. A
        suppression court is required to take[] into account the
        totality of the circumstances—the whole picture. When
        conducting a Terry analysis, it is incumbent on the
        suppression court to inquire, based on all of the


3
  The parties agree Appellant was subjected to an investigative stop, which
requires reasonable suspicion. See Appellant’s Brief at 11; Commonwealth’s
Brief at 8-9.



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        circumstances known to the officer ex ante, whether an
        objective basis for the seizure was present. In addition, an
        officer may conduct a limited search, i.e., a pat-down of
        the person stopped, if the officer possesses a reasonable
        suspicion that the person stopped may be armed and
        dangerous.

Commonwealth v. Carter, 105 A.3d 765, 768-69 (Pa. Super. 2014) (en

banc) (some quotation marks and citations omitted), appeal denied, 117

A.3d 295 (Pa. 2015).

            Review of an officer’s decision to frisk for weapons
        requires balancing two legitimate interests: that of the
        citizen to be free from unreasonable searches and
        seizures; and that of the officer to be secure in his
        personal safety and to prevent harm to others. To conduct
        a limited search for concealed weapons, an officer must
        possess a justified belief that the individual, whose
        suspicious behavior he is investigating at close range, is
        armed and presently dangerous to the officer or to others.
        In assessing the reasonableness of the officer’s decision to
        frisk, we do not consider his 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. Zhahir, 751 A.2d 1153, 1158 (Pa. 2000) (citations and

quotation marks omitted).

     We conclude the trial court erred in determining there was reasonable

suspicion to subject Appellant to an investigative stop and search.    See

Ranson, 103 A.3d at 76. Instantly, the uncontradicted testimony of Officer

DeHoratius reveals three days before he encountered Appellant, there was a

robbery reportedly committed by “two black males” who were “skinny” and

wearing “all dark clothing.” N.T. at 7. On February 19, 2015, he observed


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Appellant “for a matter of seconds” walking in the street. Id. at 8.    Officer

DeHoratius surveyed the area for approximately ten to twenty minutes after

initially observing Appellant and, at times, lost sight of Appellant. Id. at 9.

He observed Appellant walk “within three to five feet” of another individual

and “at that point[,] [he] decided to . . . stop” Appellant.      Id.   Officer

DeHoratius testified the reason his attention turned to Appellant was

because it was cold outside, but the officer observed that he had a winter

coat and reasoned, “it’s the middle of February during the very cold winter

we just had.” Id. at 16, 19. Further, Officer DeHoratius did not articulate

any suspicious or furtive movements by Appellant, with the exception of

“walking a short distance behind somebody.” Id. at 16.

      Under the totality of the circumstances, there was no objective basis

for the stop and search of Appellant’s person. See Carter, 105 A.3d at 768-

69.   Moreover, the fact that Appellant wore a coat during “the very cold

winter” is insufficient to establish a reasonable suspicion that he was armed

and dangerous. See id.; N.T. at 16. Officer DeHoratius’ testimony failed to

demonstrate that his investigation of Appellant’s “suspicious behavior [that]

he [was] investigating at close range” led him to the justified belief that

Appellant was armed and dangerous.4          See Zhahir, 751 A.2d at 1158.



4
   We recognize Appellant was in the vicinity where robberies had recently
been reported. However, we are unpersuaded that the generic description
of “two black males” wearing dark clothing bears much weight in a
(Footnote Continued Next Page)


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Accordingly, we reverse the trial court’s denial of Appellant’s suppression

motion, vacate the judgment of sentence, and remand for proceedings

consistent with this memorandum.5

      Judgement of sentence vacated.                Case remanded.   Jurisdiction

relinquished.

      Judge Shogan joins the Memorandum.

      Judge Mundy notes her dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2016




                       _______________________
(Footnote Continued)

reasonable suspicion inquiry when the generic description was reported
three days prior to Appellant’s encounter with police. Cf. In re D.M., 727
A.2d 556, 557-58 (Pa. 1999) (finding reasonable suspicion to stop the
appellant when he and “companions matched the number of suspects . . . ,
they matched the race of the suspects; they were the only individuals
observed in the vicinity of the robbery; they were seen a mere one-half
block away within approximately one minute of the crime; and they
acted evasively when they saw the police vehicle.” (emphasis added)) .
5
  Because we conclude Officer DeHoratius subjected Appellant to an
unconstitutional stop and search, we need not address the portion of
Appellant’s argument pertaining the incriminating nature of the items seized.



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