J-S49012-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

DONTEZ WINDLE

                         Appellant                   No. 2696 EDA 2013


          Appeal from the Judgment of Sentence August 30, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0002581-2012

BEFORE: OLSON, OTT and STABILE, JJ.

MEMORANDUM BY OLSON, J.:                       FILED SEPTEMBER 17, 2014

      Appellant, Dontez Windle, appeals from the judgment of sentence

entered on August 30, 2013. We affirm.

      The suppression court summarized the factual background of this case

as follows:

      On December 15, 2011, at approximately 9:20 p.m., Police

      partner, Officer [Stephen] Toner, at 29th Street and Girard
      Avenue, which is one block north of Poplar Street, they received
      a radio call that a robbery at [gunpoint] had just occurred at 20th
      and Poplar Street which the officer described as a high crime
      area. The call described the suspect as a black male wearing a
      black hood[ie] and dark blue jeans with a black handgun.
                              oceeded with lights and sirens to 20th and
      Poplar Street. . . .

      While the officers were surveying the area, as they approached
      25th and Poplar Street, they observed Appellant wearing a

      testified looked dark from his location, coming westbound by the
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        Girard College wall which is in close proximity to the location.


        stopped the car several feet in front of Appellant. Before the
        officers said anything, Appellant handed the officers his

        found it strange that Appellant handed him his ID card without
        being asked
        sweating, although it was the middle of December. Officer

        hood[ie] up.

        Officer O'Brien testified at that point[,] because of the proximity
        of the location and the dangerous nature of the crime, the
        officers decided to conduct a Terry[1] frisk of Appellant for their
        safety due to the report of a gun being used in the robbery.
                                         -down on the chest of Appellant.
        While movin
        felt a heavy object hit his wrist. Because the jacket was so thin,


        that it was a gun. The officers then detained Appellant and
        recovered the firearm from the right jacket pocket. The officers
        had other officers bring the complainant down to see if they
        could identify Appellant. When the complainant arrived, he said
        that Appellant was not the robber. Appellant was thereafter
        arrested. . . .

Suppression Court Opinion, 2/7/14, at 2-3.

        The procedural history of this case is as follows.        Appellant was

charged via a criminal complaint with receiving stolen property,2 carrying a

firearm without a license,3 and carrying a firearm on the public streets of


1
    See Terry v. Ohio, 392 U.S. 1 (1968).
2
    18 Pa.C.S.A. § 3925(a).
3
    18 Pa.C.S.A. § 6106(a)(1).




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Philadelphia.4 A criminal information charging those same offenses was filed

on March 13, 2012.

        On December 18, 2012, Appellant orally moved to suppress the

firearm

evidentiary hearing, the suppression court denied the motion that same day.

On July 18, 2013, Appellant proceeded to a bench trial and was found guilty

of carrying a firearm without a license and carrying a firearm on the public

streets of Philadelphia. On August 30, 2013, Appellant was sentenced to an



followed.5

        Appellant raises one issue for our review:

        Did the [suppression] c
        to suppress when the stop and subsequent pat down of
        [Appellant] was not supported by a reasonable suspicion or
        probable cause since [Appellant] did not match the flash
        information provided to the arresting officer and was not
        engaging in any activity consistent with criminal behavior at the
        time of the stop?




4
    18 Pa.C.S.A. § 6108.
5
  On September 26, 2013, the trial court ordered Appellant to file a concise
                                                                        See
Pa.R.A.P. 1925(b).   On October 8, 2013, Appellant filed his concise
statement. On February 7, 2014, the suppression court issued its Rule
1925(a) opinion. See Pa.R.A.P. 1925(a)(1) (trial court may request a judge
who made a prior ruling which is challenged on appeal file a Rule 1925(a)
opinion).
statement.



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J-S49012-14




suppression motion we are limited to determining whether the factual

findings are supported by the record and whether the legal conclusions

                                        Commonwealth v. Brown, 64 A.3d

1101, 1104 (Pa. Super. 2013), appeal denied, 79 A.3d 1096 (Pa. 2013)

(internal alterations and citation omitted).

                                                                       In re

L.J.



defense as remains uncontradicted when read in the context of the record as

            Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation

omitted).

       We note the procedural posture of this case and how that impacts our

scope of review in this case. The suppression hearing in this case occurred

in December 2012 and the bench trial occurred in July 2013.       In October

2013, our Supreme Court decided L.J. In L.J., our Supreme Court held that



suppression motion is limited to the evidence presented at the suppression

hearing.    L.J., 79 A.3d at 1085.   However, our Supreme Court chose to

apply this rule prospectively instead of retroactively. Id. at 1088-1089. As

the suppression hearing and trial in this case occurred prior to L.J., we may

review both the evidence presented at trial and the evidence presented at



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the suppression hearing.      See id.

Commonwealth-wide after the filing of [L.J.], will be considered in accord



      In this case, the difference between the record emerging from



one of the factual findings of the suppression court.        Based upon the

testimony at the suppression hearing, the suppression court found that it



received the flash description of the suspect until they reached Appellant.

See Suppression Court Opinion, 2/7/14, at 2, citing N.T., 12/18/12, at 2.



minutes from the time that he and Officer Toner received the flash

description until they encountered Appellant. N.T., 7/18/13, at 10, 21-22.



which was a transcript of the police dispatch on the night in question. As the

suppression court did not hear the testimony given at trial, we cannot fault it

for relying solely upon the facts presented at the suppression hearing.

However, as the testimony at trial clearly shows that the gap from the time



encountered Appellant was 11 minutes, we will use that timeframe for the

purposes of our analysis.




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      Appellant argues that the police officers detained him, and patted him

down for weapons, without reasonable suspicion or probable cause. Thus,

he   contends   that    the    search     violated   both     the   state    and   federal



States   Constitution   and     Article    I,   Section   8   of    [the    Pennsylvania]

Constitution protect citizens from unreasonable searches and seizures.                 To

safeguard these rights, courts require police to articulate the basis for their



Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013) (internal

alterations, quotation marks, and citation omitted).

      We have described three types of police/citizen interactions, and the

necessary justification for each, as follows:

      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, 613 614 (Pa. Super. 2013),

appeal denied, 87 A.3d 320 (Pa. 2014) (internal alteration, quotation marks,

and citation omitted).        On a motion to suppress, the burden is on the

Commonwealth to prove, by a preponderance of the evidence, that the

evidence seized from Appellant was legally obtained. See Commonwealth




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v. Howard, 64 A.3d 1082, 1087 (Pa. Super. 2013), appeal denied, 74 A.3d

118 (Pa. 2013) (citation omitted).

      In this case:

      There is no dispute between the parties that the frisk at issue
      constituted an investigative detention in the nature of a
      protective weapons search which is governed by Terry . . . and
      requires that police have reasonable suspicion either that
      criminal activity was afoot or that appellant was armed and
      dangerous to them:

      It is well-established that a police officer may conduct a brief
      investigatory stop of an individual if the officer observes unusual
      conduct which leads him to reasonably conclude that criminal
      activity may be afoot. Moreover, if the officer has a reasonable
      suspicion, based on specific and articulable facts, that the
      detained individual may be armed and dangerous, the officer
      may the
      weapons. Since the sole justification for a Terry search is the
      protection of the officer or others nearby, such a protective
      search must be strictly limited to that which is necessary for the
      discovery of weapons which might be used to harm the officer or
      others nearby. Thus, the purpose of this limited search is not to
      discover evidence, but to allow the officer to pursue his
      investigation without fear of violence.

Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)

(citation omitted).

      As we have explained:

      Reasonable suspicion is a less stringent standard than probable
      cause necessary to effectuate a warrantless arrest, and depends
      on the information possessed by police and its degree of
      reliability in the totality of the circumstances. . . . In assessing
      the totality of the circumstances, courts must also afford due
      weight to the specific, reasonable inferences drawn from the
                                                                      that
      innocent facts, when considered collectively, may permit the
      investigative detention.



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     The determination of whether an officer had reasonable
     suspicion . . . is an objective one, which must be considered in
     light of the totality of the circumstances.

Clemens, 66 A.3d at 379 (ellipsis and citation omitted).

     Appellant first argues that the police officers lacked reasonable

suspicion because Appellant did not match the flash description of the

robbery suspect. We disagree. The record reflects that Appellant matched

the flash description of the robbery suspect. Appellant, an African-American,

was wearing a black hoodie, a black jacket, and tan jeans. N.T., 12/18/12,

at 8, 22. The suspect was described as an African-American male wearing a

black hoodie and blue jeans.    N.T., 12/18/12, at 8, 22.   The suppression



appeared dark at first sight. See Suppression Court Opinion, 2/7/14, at 6.

Although not an exact match, the description of the suspect matched the

visual appearance of Appellant and

contention that he did not match the flash description of the suspect is

without merit.

     Appellant next contends that, even if he did match the flash

description of the robbery suspect, this was not enough information for an

investigative detention. Appellant cites several cases, which he argues are

similar to the case sub judice, in which this Court or our Supreme Court

determined that the police lacked reasonable suspicion to conduct an




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investigative   detention.   We    conclude   that   all   of   these   cases   are

distinguishable from the case at bar.

      In Commonwealth v. Jackson, the encounter between the police

officer and the defendant occurred at least 40 minutes after the murder.

331 A.2d 189, 191 (Pa. 1975). Furthermore, the defendant in Jackson did

not match the flash description of the suspect except in the most general

terms. See id. at 190. However, the most important difference between

Jackson and the case at bar was that in Jackson our Supreme Court was

determining whether the police had probable cause to arrest the defendant,

while in the case at bar we are determining whether the police possessed

reasonable suspicion to conduct a Terry frisk.         Thus, the standard our

Supreme Court employed in Jackson was far more demanding than the

standard we must apply in this case.

      In Commonwealth v. Berrios, the officers stopped two suspects

based upon nothing more than a general flash description. 263 A.2d 342,

344 (Pa. 1970). There was nothing else to support a finding of reasonable

suspicion. On the other hand, in the case at bar the officers possessed other

information which formed the basis of their reasonable suspicion.                In

particular, Appellant handed the police officers his identification prior to the

officers requesting it. Furthermore, it was the middle of December and yet

Appellant was sweating. These additional facts, distinguish the case at bar

from Berrios.



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      Similar to Berrios, in Commonwealth v. Ryan, the police officers

stopped the defendant based upon nothing more than a general flash

description. 384 A.2d 1243, 1247 (Pa. Super. 1978). Although the police



the suppression hearing that he went far beyond a Terry frisk to ensure his

safety.     Id.   These measures constituted the functional equivalent of an

arrest of the defendant. Id. Thus, we held that the police officer lacked the

requisite    probable   cause   to   arrest    the    defendant.      Id.   Ryan    is

distinguishable from the case at bar because it involved the higher

substantive standard required to justify an arrest.

      We agree with the suppression court that this case is more akin to

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

appeal denied, 990 A.2d 727 (Pa. 2010), than it is to the cases cited by

Appellant. In Foglia, the defendant matched the description of an individual

with a gun given by an anonymous tipster. Id. at 359. When the defendant

saw the police, he continued walking in the same direction as before, but

exhibited nervous behavior by continually looking back at the police.              Id.

When the police exited their vehicle, the defendant exhibited more nervous

behavior by adjusting his waistband.          Id.    The police officers, fearing that

the defendant may have a weapon, performed a Terry frisk and found the

defendant was carrying a firearm without a license.             Id.   This Court held




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that, under the totality of the circumstances, the police officer had

reasonable suspicion to conduct a Terry frisk. Id. at 361.

      In the case sub judice, like in Foglia, Appellant generally matched the

flash description of the suspect.   As in Foglia, police had reason to believe

that Appellant was armed with a firearm.        Unlike in Foglia, however, this

information came from a known source, the robbery victim, and not an

anonymous tipster. Finally, although the nervous behavior of the defendant

in Foglia differed from the type of nervous behavior exhibited by Appellant,

both individuals exhibited nervous behavior that reasonably could lead an

investigating officer to become concerned for his safety and the safety of

others nearby.

      Likewise, in Scarbourough, the defendant was riding his bicycle when

police pulled him over to issue a citation for speaking on his cell phone while

operating the bicycle.   Scarbourogh, 89 A.3d at 682.          When the police

approached, they noticed that the defendant was acting nervously. Id. This



interaction was occurring in a high crime area, was sufficient to give the

officers reasonable suspicion to conduct a Terry frisk.       Id. at 684.   The

same factors are present in this case.        The interaction between Appellant

                                                  high crime area and Appellant

was acting nervously. In addition, Appellant matched the flash description

of a suspect who had recently committed an armed robbery in the area.



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See also Commonwealth v. Buchert, 68 A.3d 911, 914 (Pa. Super.

2013), appeal denied

multiple occasions we have held that [] furtive movements, when witnessed

within the scope of a lawful traffic stop, provided a reasonable basis for a



      As our Supreme Court has explained:


      which hold that certain factors present in the instant case,
      standing alone, are insufficient to constitute reasonable

      reasonable suspicion must be evaluated based on the totality of
      the circumstances. It is not the function of a reviewing court to
      analyze whether each individual circumstance gave rise to
      reasonable suspicion, but rather to base that determination upon
      the totality of the circumstances the whole picture.

In re D.M.

combination of innocent facts, when taken together, may warrant further

                                        Commonwealth v. Caban, 60 A.3d

120, 129 (Pa. Super. 2012), appeal denied, 79 A.3d 1097 (Pa. 2013)

(citation omitted).

      In this case, the combination of several innocent factors gave Officers



                      d Toner had reliable information, from a known source,

that less than 20 minutes prior to their interaction with Appellant an



robbery in the area.     When the officers exited their vehicle to speak with



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Appellant, he immediately provided his identification.   Although it was the

middle of December, Appellant was sweating. Moreover, the encounter

occurred in a high crime area at night. Thus, the officers reasonably

concluded that Appellant may be armed. In order to protect themselves, the

officers conducted a limited Terry frisk.   The fact that the robbery victim

ultimately declared that Appellant was not the perpetrator is irrelevant to

whether   the   investigating officers possessed reasonable    suspicion to

effectuate a Terry frisk at the time they encountered Appellant. Cf. Miller

v. Harget, 458 F.3d 1251, 1256 (11th Cir. 2006) (acquittal is not

determinative of whether reasonable suspicion existed at the time of the

stop). Thus, Officer

the Terry frisk.       Accordingly, the suppression court correctly denied



     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/17/2014




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