J-A23028-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37



COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

               v.

MARK DOUGLAS EVANS,

                          Appellant                  No. 1701 WDA 2013


    Appeal from the Judgment of Sentence entered September 23, 2013,
             in the Court of Common Pleas of Allegheny County,
            Criminal Division, at No(s): CP-02-CR-0005630-2013


BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

DISSENTING MEMORANDUM BY ALLEN, J.:                FILED OCTOBER 30, 2014

         My review of the record reveals that under the totality of the

circumstances, Officer Abraham’s search of the interior of Appellant’s pocket

was supported by probable cause.         Accordingly, I would affirm the trial

court.

         When reviewing the denial of a suppression motion “where the record

supports the trial court's factual findings, we are bound by those facts and

only reverse if the legal conclusions are in error. Moreover, we defer to the

trial judge's credibility determinations.”   In re J.N., 878 A.2d 82, 85 (Pa.

Super. 2005). Here, the record reflects that Officer Abraham conducted a

stop of Appellant’s vehicle after observing that it had an inoperable license

plate light.    N.T., 9/23/13, at 6.   Following the stop, which occurred in a

“very high-crime area”, Officer Abraham saw Appellant make a “feverish”
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stuffing motion towards the left side of his body, and Appellant then put his

coat over the left side of his body. Id. at 5-7. Officer Abraham, fearing that

Appellant might be concealing a weapon, directed Appellant to exit the

vehicle and conducted a pat-down search. During the lawful pat-down of the

exterior of Appellant’s clothing, Officer Abraham felt a bulge in Appellant’s

pocket which the officer considered suspicious. Officer Abraham, whom the

trial court found credible, testified as follows:

      Officer Abraham:                As I patted down his left front
                                      pants pocket area, I felt what I
                                      know from my training and
                                      experience       without       any
                                      manipulation to be crack cocaine.


                                       ***

                                      I asked [Appellant] what was in his
                                      pocket, he said that he had crack
                                      cocaine on him. I then went into
                                      his left pants pocket and recovered
                                      one knotted baggie containing
                                      crack cocaine.

                                       ***

      Assistant District Attorney:    [C]an you please tell the court what if
                                      anything about what you felt led you to
                                      believe that it was crack cocaine?

      Officer Abraham:                It was a small to large chalky white
                                      substance. ... The size of a pea.

      Assistant District Attorney:    Is that consistent with your
                                      training and experience in narcotics
                                      investigation?

      Officer Abraham:                Yes, it is.

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      Assistant District Attorney:   And what is it consistent with?

      Officer Abraham:               Crack cocaine.

      Assistant District Attorney:   And you also testified ... that you
                                     conducted approximately 20 pat-
                                     downs where you seized crack
                                     cocaine is that correct?

      Officer Abraham:               Correct.

                                      ***

      Assistant District Attorney:   And what you felt when you patted
                                     down [Appellant] in this case, was
                                     that consistent with what you felt
                                     on previous occasions?

      Officer Abraham:               Yes it is.


Id. at 8-9, 38-39.

      The Majority contends that during the pat-down, Officer Abraham

could not have determined by plain feel, without manipulation, that the

bulge in Appellant’s pocket was contraband. The plain feel doctrine is “an

extremely narrow exception to the warrant requirement.” Commonwealth

v. Graham, 721 A.2d 1075, 1081 (Pa. 1998) citing Minnesota v.

Dickerson, 508 U.S. at 375, 113 S.Ct. at 2137. “The ‘plain feel’ doctrine

only applies under the limited circumstances where the facts meet the plain

view doctrine requirements that the criminal nature of the contraband is

immediately apparent, and the officer has a lawful right of access to the

object.”   Id.   “[A] Terry frisk will only support the seizure of contraband


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discovered via the officer's plain feel when the incriminating nature of that

contraband is immediately apparent to the officer, based solely on the

officer’s initial pat-down of the suspect’s outer garments.”      Graham, 721

A.2d at 1082.

      The Majority takes issue with the testimony of Officer Abraham

regarding his belief that the bulge in Appellant’s pocket was contraband.

Specifically, the Majority finds it incredible that “a pea-sized object, in and of

itself, and sight unseen, could have a ‘contour or mass’ that was

immediately recognizable as a controlled substance.”             Majority at 7.

Additionally, the Majority disputes that “Officer Abraham’s sense of touch

was definitive enough to determine the chalk-like consistency of a pea-sized

object without manipulating it [and] despite Officer Abraham’s statement

that he immediately identified the object in [Appellant’s] pocket as crack

cocaine without manipulating it, the record reflects that he could not have

determined that the object ‘felt chalky’ unless he, in fact, manipulated it.”

Id.

      My review of the record reflects, however, that the trial court – which

was in the best position to observe the demeanor of the witnesses and

assess their credibility – carefully considered Officer Abraham’s testimony,

weighing    the   testimony     judiciously   before   making     its   credibility

determination. In so doing, the trial court reasoned that “the word [‘chalky’]

seems to suggest something that you would see and it is also suggesting a


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texture and that would be something the officer could feel.             So maybe

[Officer Abraham’s] choice of words isn’t the best but when you talk about

texture he felt, my connotation of that is the officer was describing a texture

more than an appearance.”       N.T., 9/23/13, at 53-54.       Based on Officer

Abraham’s experience, the trial court, within its province as fact-finder,

found credible the officer’s testimony that, without manipulation, he believed

the item in Appellant’s pocket to be crack cocaine. See Commonwealth v.

Parker, 957 A.2d 311, 316 (2008) (where officer during lawful pat-down felt

in the defendant’s pocket hard rigid objects that were consistent with the

size, shape, and texture of packaged crack cocaine, a subsequent search

inside the defendant’s pocket was justified).

      The   Majority,   however,   discounts    the   trial   court’s   credibility

determinations to conclude that Officer Abraham must have manipulated

Appellant’s pocket during the pat-down, despite the trial court’s findings to

the contrary.   Such a determination directly contradicts Officer Abraham’s

testimony that he did not manipulate Appellant’s pocket, that based on the

pat-down he believed the bulge in Appellant’s pocket was suspicious enough

to warrant further investigation, and that he therefore asked Appellant what

the bulge was, to which Appellant responded that it was crack cocaine. The

Majority effectively substitutes its judgment for the finder of fact, making a

credibility determination that the testimony of Officer Abraham (whom the

trial court found believable) was not credible.       See Commonwealth v.


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White, 734 A.2d 374, 381 (Pa. 1999) (“there is no justification for an

appellate court, relying solely upon a cold record, to review the fact-finder's

first-hand credibility determinations”).

      Here, given that the stop occurred in a high crime area, and that

Appellant made furtive efforts to conceal the left side of his body, Officer

Abraham was entirely justified in patting down Appellant. In my view, the

record supports the trial court’s determination that Officer Abraham

believed,   without   manipulation,    that   Appellant’s   pocket   contained

contraband.   Upon his suspicions about the contents of Appellant’s pocket

being aroused, Officer Abraham asked Appellant what was in his pocket, to

which Appellant responded that he had crack cocaine, providing the officer

with probable cause to conduct a more intrusive search. Commonwealth

v. Kondash, 808 A.2d 943, 948 (Pa. Super. 2002) (a police officer is

permitted during Terry search to inquire into the contents of the defendant’s

clothing without first informing the defendant of his Miranda rights, as the

dictates of Miranda do not attach during an investigatory detention and the

defendant’s affirmative response that that he was carrying an intravenous

needle provided probable cause to arrest defendant for possession of drug

paraphernalia).

      In my view, therefore, the officer’s arrest and search of the interior of

Appellant’s pocket was supported by probable cause. See Commonwealth

v. Valentin, 748 A.2d 711, 715 (Pa. Super. 2000) (defendant’s admission


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during investigative detention that he “[had] two bags of dope in [his]

pocket” gave rise to probable cause to arrest the defendant and conduct a

search of defendant's pockets incident to lawful arrest).   Consequently, I

would affirm the trial court’s order denying Appellant’s suppression motion

and I would affirm the judgment of sentence.




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