J. A21045/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: T.W. , A MINOR :             IN THE SUPERIOR COURT OF
                                   :                   PENNSYLVANIA
APPEAL OF : T.W.                   :
                                   :                  No. 2390 EDA 2018


           Appeal from the Dispositional Order Entered July 10, 2018,
             in the Court of Common Pleas of Philadelphia County
               Juvenile Division at No. CP-51-JV-0001105-2018


BEFORE: BOWES, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED FEBRUARY 04, 2020

        T.W., a juvenile, appeals from the July 10, 2018 dispositional order

entered following his adjudication of delinquency for unlawful possession of a

controlled substance (Oxycodone).1 After careful review, we affirm.

        The juvenile court summarized the relevant facts of this case as follows:

              On June 19, 2018, at approximately 4:15 a.m.,
              Officer [Nicholas] Grant was traveling northeast
              bound with his partner, Officer Heeney[2], in a marked
              police vehicle on Sedgely Avenue in Philadelphia,
              Pennsylvania.      Both officers were in uniform.
              Officer Grant observed a silver Toyota make an illegal
              U-turn. As Officer Grant was preparing to turn on his
              patrol lights and pursue the silver Toyota, he observed
              a green Chevy make the same sharp illegal U-[t]urn.
              Officer Grant followed, making the same U-[t]urn, and
              both the green Chevy and silver Toyota accelerated to
              a high rate of speed. Officer Grant then turned on his
              lights and sirens and began pursuing both vehicles as


1   35 P.S. § 780-113(a)(16).

2   Officer Heeney’s first name is not indicated in the record.
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          they recklessly sped through the streets              of
          Philadelphia, disregarding several traffic signals.

          Both vehicles then made a sharp left onto Dauphin
          Street. While the silver Toyota was able to make the
          turn, the green Chevy was not and crashed into
          several vehicles. Officer Grant then observed two
          males exit the green Chevy and run southbound on
          Lambert Street. Instead of driving on to pursue the
          silver Toyota, Officers Grant and Heeney stopped to
          pursue the two males observed exiting and running
          from the green Chevy. The officers, however, lost the
          two males, but during their search observed the silver
          Toyota stopped at a red light at the intersection of
          20th and Susquehanna streets.

          Officers Grant and Heeney then initiated a vehicle stop
          of the silver Toyota while still on foot. There were
          three individuals in the vehicle: a female driver, a
          female front passenger, and [appellant], who was
          sitting in the rear driver’s-side seat. Officers Grant
          and Heeney approached the vehicle and asked the
          individuals for identification. [Appellant] did not have
          identification. Officer Grant then observed [appellant]
          attempt to shield his body away from the [o]fficers’
          view and reach into his pockets. Officer Grant ordered
          [appellant] to stop reaching into his pockets.
          [Appellant] did not comply. Fearing for his safety,
          Officer Grant removed [appellant] from the vehicle
          and proceeded [to] search [appellant] for weapons by
          conducting an open handed pat down of the outside
          of [appellant’s] clothing. During the open handed
          pat down, Officer Grant felt a hard object in
          [appellant’s] left pants pocket that Officer Grant was
          unable to determine was not a firearm. Fearing that
          the object could be a firearm, Officer Grant reached
          into [appellant’s] pocket and removed a glass bottle
          labeled “Promethazine” that had been prescribed to
          an individual with a different name than the one
          provided to Officer Grant by [appellant].

          Officer Grant then placed [appellant] under arrest for
          possession of a controlled substance and conducted a
          search incident to arrest. During the search incident


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              to arrest, Officer Grant recovered from [appellant’s]
              right pants pocket a pill bottle containing two pills,
              which were identified as Oxycodone, a known
              controlled substance.

Juvenile court opinion, 10/10/18 at 1-3 (citations to notes of testimony,

footnote, and extraneous capitalization omitted).

        Appellant was subsequently charged with unlawful possession of a

controlled substance. On July 10, 2018, appellant proceeded to a juvenile

adjudication hearing before the Honorable Amanda Cooperman, wherein he

made an oral motion to suppress the physical evidence recovered from

Officer Grant’s search of his person.     (Notes of testimony, 7/10/18 at 5.)

Officer Grant was the only witness to testify at the hearing, and the juvenile

court found his testimony credible.     (See juvenile court opinion, 10/10/18

at 1.) Following the hearing, the juvenile court denied appellant’s suppression

motion and adjudicated him delinquent of unlawful possession of a controlled

substance. (Notes of testimony, 10/10/18 at 36, 38-39.) That same day, the

juvenile court placed appellant at the Glen Mills School for Boys. Appellant

did not file a post-dispositional motion.      This timely appeal followed on

August 7, 2018.3

        Appellant raises the following issue for our review:

              Did not the [juvenile] court err in denying the motion
              to suppress physical evidence, insofar as appellant
              was arrested and searched without probable cause?




3   Appellant and the juvenile court have complied with Pa.R.A.P. 1925.


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Appellant’s brief at 3.4

      Our standard of review when addressing a challenge to a court’s denial

of a suppression motion is well settled.

            [An appellate court’s] 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, [the appellate court is] bound by [those]
            findings and may reverse only if the court’s legal
            conclusions are erroneous.

Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation

omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).

      “Both the Fourth Amendment of the United States Constitution and

Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals

freedom from unreasonable searches and seizures.”          Commonwealth v.

Bostick, 958 A.2d 543, 550 (Pa.Super. 2008), appeal denied, 987 A.2d 158

(Pa. 2009) (citation and internal quotation marks omitted). “To secure the

right of citizens to be free from such intrusions, courts in Pennsylvania require

law enforcement officers to demonstrate ascending levels of suspicion to




4We note that appellant’s argument is two-fold and each of his claims will be
addressed accordingly.


                                      -4-
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justify their interactions with citizens to the extent those interactions

compromise individual liberty.” Commonwealth v. Reppert, 814 A.2d 1196,

1201 (Pa.Super. 2002) (citation omitted). Courts in this Commonwealth have

recognized three types of interactions between members of the public and the

police:   a mere encounter, an investigative detention, and a custodial

detention.

             The first of these interactions 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. Ayala, 791 A.2d 1202, 1208 (Pa.Super. 2002) (citations,

brackets, and internal quotation marks omitted).

      In the seminal case of Terry v. Ohio, 392 U.S. 1 (1968), the United

States Supreme Court indicated that police may stop and frisk a person where

they have a reasonable suspicion that criminal activity is afoot and that the

suspect may be armed and dangerous. Id. at 27. A panel of this court has

explained:

             If, during the course of a valid investigatory stop, an
             officer observes unusual and suspicious conduct on
             the part of the individual which leads him to
             reasonably believe that the suspect may be armed
             and dangerous, the officer may conduct a pat-down of
             the suspect’s outer garments for weapons. In order
             to justify a frisk under [Terry] the officer must be able


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             to point to particular facts from which he reasonably
             inferred that the individual was armed and dangerous.
             Such a frisk, permitted without a warrant and on the
             basis of reasonable suspicion less than probable
             cause, must always be strictly limited to that which is
             necessary for the discovery of weapons which might
             be used to harm the officer or others nearby.

Commonwealth v. Preacher, 827 A.3d 1235, 1239 (Pa.Super. 2003)

(internal quotation marks and citation omitted).



I.    Scope of the Terry frisk

      Here, appellant concedes that Officer Grant’s Terry frisk was supported

by reasonable suspicion,5 but contends that the juvenile court erred in denying

his suppression motion because Officer Grant exceeded the scope of a

permissible search by reaching into appellant’s left pants pocket. (Appellant’s

brief at 7-9.) In support of this contention, appellant avers that Officer Grant’s

“fishing   expedition   into   [his   pocket]   was   impermissible”   where   the

incriminating nature of “[t]he hard object that Officer Grant felt” was not

“immediately apparent.” (Id. at 10). We disagree.

      The record establishes that Officer Grant and his partner were on patrol

in a high-crime area in the early morning hours of June 19, 2018, when they

became involved in a high-speed chase with two vehicles; appellant was a

passenger in one of these vehicles. (Notes of testimony, 7/10/18 at 8-11,


5 See notes of testimony, 7/10/18 at 28-29 (stating, “I will concede the frisk
. . . I think this was prudent work. And I think what the officer was trying to
do was make sure that everything was safe during the entirety of this stop.”).


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J. A21045/19

14.) Officer Grant testified that during the ensuing traffic stop, he became

concerned that appellant may be in possession of a weapon after observing

him “turn[] his left shoulder away from [the officers]” and “start to reach into

his pockets.” (Id. at 13-14.) Officer Grant testified that he ordered appellant

to step out of the vehicle and conducted an “open-hand pat down” frisk after

appellant repeatedly disregarded Officer Grant’s instruction to remove his

hands from his pockets. (Id. at 15-16.) Officer Grant noted that during the

course of this safety frisk, he felt a “large” and “hard” object in appellant’s

front left pants pocket. (Id. at 17.) Officer Grant opined that although he did

not immediately recognize what the object was during the pat-down, he was

concerned, based upon his training and experience as a police officer and the

recent spate of violent incidents in this area, that the object was a weapon or

firearm. (Id. at 17-19, 26.) On cross-examination, Officer Grant testified

that he could not recall the exact size of the object he felt but that it was

comparable to the size of a bottle of Nyquil. (Id. at 21.)      Fearing for his

safety, Officer Grant reached into appellant’s pocket and removed the object,

which turned out to be a large glass bottle labelled “Promethazine” that was

prescribed to an individual with a different name than the one appellant had

provided.   (Id. at 18.)   During a subsequent search of appellant’s person

incident to arrest, Officer Grant recovered a second, smaller pill bottle from

appellant’s right pants-pocket that contained two Oxycodone pills.      (Id. at

18-20.)



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      Based on the foregoing, we conclude that Officer Grant articulated a

reasonable belief that what he felt in appellant’s pocket was a weapon.

Accordingly, we discern no error on the part of the juvenile court in concluding

that Officer Grant did not exceed the scope of a permissible search by reaching

into appellant’s left pants pocket during an otherwise valid Terry pat-down.

See, e.g., Commonwealth v. Taylor, 771 A.2d 1261, 1269 (Pa. 2001)

(holding that a police officer was justified in reaching into a defendant’s pocket

during course of Terry frisk, where the defendant reached for his pocket

despite being told not to move several times, and the officer felt a hard,

cylinder-type object in the pocket, which he reasonably believed to be a

weapon), cert. denied, 534 U.S. 994 (2001); but see Commonwealth v.

Wilson, 927 A.2d 279, 285-286 (Pa.Super. 2007) (concluding that an officer’s

search and seizure of drugs in defendant’s coat pocket exceeded lawful scope

of Terry, where the officer’s testimony that he felt a “hard, large ball” failed

to articulate any reasonable belief that the object he felt in defendant’s pocket

appeared to be a weapon.).

      In reaching this conclusion, we note that, contrary to appellant’s

contention, analysis of whether Officer Grant justifiably put his hand into

appellant’s pocket under the “plain feel doctrine” is not warranted in this case.

(See appellant’s brief at 9-11). Under the plain feel doctrine,

            a police officer may seize non-threatening
            contraband detected through the officer’s sense of
            touch during a Terry frisk if the officer is lawfully in a
            position to detect the presence of contraband, the


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            incriminating nature of the contraband is immediately
            apparent from its tactile impression and the officer
            has a lawful right of access to the object.

Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa. 2000) (emphasis

added), citing Minnesota v. Dickerson, 508 U.S. 366, 375 (1993).

      Here, Officer Grant reached into appellant’s left pants pocket under the

reasonable belief that the large and hard object that he felt in appellant’s left

pants pocket was “a weapon . . . [or] a firearm.” (Notes of testimony, 7/10/18

at 26.) As the juvenile court recognized in its opinion:

            It was reasonable for Officer Grant to go into
            [appellant’s] pockets to dispel a reasonable fear for
            his safety and the safety of others during the
            investigatory stop. [Appellant] was a passenger in a
            vehicle that was just in a high[-]speed chase with
            police at 4:15 in the morning in a high[-]crime area
            where Officer Grant has a plethora of personal
            experience with weapons recovered from traffic stops.
            Moreover, the officers made the stop without the
            benefit of a police vehicle. [Appellant] did not comply
            with Officer Grant’s order to stop hiding his body and
            reaching into his pockets. It was only after a limited
            [] search of the outside of [appellant’s] clothes and
            feeling a hard object that was not readily identifiable
            that Officer Grant expanded his search to the inside of
            that particular pocket. Looking at the totality of the
            circumstances, Officer Grant had a reasonable
            suspicion, based on specific and articulable facts, that
            [appellant] may be armed and dangerous, and
            Officer Grant tailored his search to only that which
            was reasonably necessary for the discovery of
            weapons.

Juvenile court opinion, 10/10/18 at 4-5 (citations to notes of testimony

omitted).

      Accordingly, appellant’s first claim must fail.


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II.   Probable cause to arrest

      In his second claim, appellant contends that the juvenile court erred in

denying his suppression motion because Officer Grant lacked probable cause

to arrest him given that it is not a crime to possess a bottle of Promethazine,

even if it is prescribed to another individual. (Appellant’s brief at 11-12.)

      As recognized by the juvenile court and both parties, although the

common mixture of Promethazine and Codeine is a controlled substance,

Promethazine, by itself, is not. (Juvenile court opinion, 10/10/18 at 3 n.1;

appellant’s brief at 11; and Commonwealth’s brief at 13.)               During the

suppression hearing, Officer Grant mistakenly testified to his belief that

Promethazine is a controlled substance and neither party objected to this

testimony. (See notes of testimony, 7/10/18 at 19.) Moreover, the record

reflects that appellant failed to make any argument during his oral suppression

motion that the police lacked probable cause to arrest him because

Promethazine is not a controlled substance. On the contrary, our review of

the   suppression   hearing   transcript   reveals   that   appellant   based   his

suppression motion solely upon Officer Grant’s initial Terry frisk and the

subsequent search of his pocket, and not upon the officer’s purported lack of

probable cause to arrest. (Id. at 5-6, 29-33.) As such, the Commonwealth

was not afforded the opportunity to present any evidence on this issue, nor

elicit specific testimony from Officer Grant with regard to his training and



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experience with respect to Promethazine or how it is commonly mixed with

Codeine on the street. See, e.g., United States v. Achobe, 560 F.3d 259,

261 (5th Cir. 2008) (stating that a mixture of Promethazine and Codeine is a

“major street drug” commonly referred to as “purple” or “syrup”).

Accordingly, because appellant did not raise in the juvenile court the theory

of relief he now argues on appeal, his claim is waived for purposes of our

review. See Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”).

      Dispositional order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 2/4/20




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