J-S63008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHAHEED COLEMAN,

                            Appellant                 No. 377 MDA 2014


           Appeal from the Judgment of Sentence January 24, 2014
              In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0003784-2012


BEFORE: BOWES, PANELLA, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                           FILED OCTOBER 15, 2014

        Shaheed Coleman appeals from the judgment of sentence of five to

ten years incarceration imposed by the trial court after it found him guilty of

possession with intent to deliver (“PWID”) heroin and possession of a

controlled substance. We affirm.

        On August 26, 2012, Officer Robert Collins of the Wilkes-Barre police

department observed Appellant seated in the driver’s side of a parked

vehicle with another individual leaning into the passenger side of the car

with the car door open.        The location is known as a high crime and drug

area.     Officer Collins exited his own car and approached the vehicle.

Officer Collins asked Appellant, “What’s happening?” N.T., 7/11/13, at 6.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Appellant responded that he was talking with his friend, the passenger.

Officer Collins asked Appellant where his friend lived and Appellant replied

that his friend lived on South Welles Street, Wilkes-Barre. The passenger,

however, now seated in the passenger side of the car with the door open,

informed      Officer   Collins   that   he    resided   in   Plymouth,   Pennsylvania.

Officer Collins noticed that both men appeared nervous and that a large

bulge was evident in the passenger’s right front pants pocket. In addition,

Officer Collins saw the passenger reaching in the area of the bulge.

Accordingly, Officer Collins asked the passenger to stop moving.

      Officer Collins then inquired with both men if there was anything illegal

in the car.     Neither man responded.          Thereafter, Officer Collins asked the

passenger to exit the car and subjected him to a pat-down search.                 Upon

doing so, Officer Collins immediately felt the presence of a gun.              He then

recovered a loaded 9 mm pistol.                In addition, Officer Collins seized a

package of suspected heroin.

      Based on these findings, Officer Collins placed the passenger under

arrest.    As he did so, Officer David Morris arrived on the scene.

Officer Morris witnessed Appellant making furtive movements inside the

vehicle by reaching for his waist and making additional movements

consistent with concealing an item.                 As a result, Officer Morris asked

Appellant to alight from the car. Officer Morris next performed a pat-down

search of Appellant. In patting down Appellant, Officer Morris felt an item

that appeared to be a handgun.            However, the item was seven bricks of

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heroin bundled in an L-shape.       Accordingly, the officer placed Appellant

under arrest.    Police recovered three cell phones from the car, and also

seized $1,080 from Appellant’s front left pants pocket and $400 from his

wallet.

      Appellant filed a motion to suppress the evidence. After the conclusion

of a suppression hearing, the suppression court found that the interaction

between the officers and Appellant began as a mere encounter.        It then

ruled that this ripened into an investigative detention based on reasonable

suspicion. The court held that the pat-down search of Appellant was lawful

and suppression was unwarranted.

      Appellant proceeded to a non-jury trial.        The court adjudicated

Appellant guilty of the aforementioned offenses.       Thereafter, the court

sentenced Appellant to five to ten years incarceration.     Appellant timely

appealed. The court directed Appellant to file and serve a concise statement

of errors complained of on appeal. Appellant complied, and the trial court

penned its opinion.       The matter is now ready for this Court’s review.

Appellant presents one issue for our consideration.

      I.    Whether the finder of fact erred in determining that at the
            initiation of Appellant’s detention Appellee had specific,
            individualized facts constituting reasonable suspicion or
            probable cause, under the Fourth Amendment of the
            United States Constitution and Article I[,] § 8 of the
            Pennsylvania Constitution, to stop and detain Appellant or
            believe that he was engaged in criminal activity.

Appellant’s brief at 4.



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     In evaluating a suppression ruling, we consider the evidence of the

Commonwealth, as the prevailing party below, and any evidence of the

defendant that is uncontradicted when examined in the context of the

suppression record.    Commonwealth v. Sanders, 42 A.3d 325, 330

(Pa.Super. 2012).     This Court is bound by the factual findings of the

suppression court where the record supports those findings and may only

reverse when the legal conclusions drawn from those facts are in error. Id.

     Appellant argues that Officer Collins’ “actions constituted a ‘seizure’

and not a mere encounter.” Appellant’s brief at 9. He maintains that Officer

Collins’ question, “What’s happening?” followed by additional questions was

an investigative detention. In his view, “no reasonable person would have

felt free to terminate the encounter with Officer Collins and depart the

scene.”   Id.   Appellant continues that Officer Collins lacked reasonable

suspicion to conduct an investigative detention and that he “offered no

particularized objective basis for believing that either of the men were

engaged in any criminal activity.” Id. at 11.

     The Commonwealth responds that Officer Collins’ initial approach and

question to Appellant was a mere encounter. It maintains that once

Appellant’s friend was arrested, he could be frisked as the arrestee’s

companion since Appellant made furtive movements “as if he was concealing

something in his waist band[.]” Commonwealth’s brief at 8.




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      In evaluating interaction between law enforcement and other citizens,

Pennsylvania courts look to whether the interaction is a mere encounter, an

investigatory detention, or a custodial detention, i.e., an arrest. The latter is

not in question herein. A mere encounter does not require police to have

any level of suspicion           that   the    person is engaged in wrongdoing.

Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.Super. 2012). At the

same time, such an encounter does not carry any official compulsion for the

party to stop or respond. Id. An investigative detention, however, subjects

an individual to a stop and short period of detention. Id. This seizure does

not involve actions that are so coercive as to comprise the equivalent of an

arrest.   Id.     To conduct an investigative detention, police must have

reasonable suspicion of criminal activity. Id. We determine what level of

interaction     occurred    under       a   totality   of    the   circumstances        test.

Commonwealth v. Williams, 73 A.3d 609, 615-616 (Pa.Super. 2013).

      We agree with the Commonwealth that Officer Collins’ initial approach

of Appellant was a mere encounter. Officer Collins was originally alone, did

not display his weapon, or make any show of force. He neither used his car

to prevent Appellant from leaving, nor activated his lights or siren. Rather,

he simply approached and asked a question.                     Appellant’s reliance on

Commonwealth v. Dales, 830 A.2d 807 (Pa.Super. 2003), for the

proposition     that   Officer   Collins’     continued     questions   resulted   in     an

investigative detention is unpersuasive. Dales is wholly dissimilar factually.


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It involved a vehicle stop with multiple police officers. The reason for the

initial stop, tinted windows, had concluded. However, the officer continued

to question the defendant therein.

       Appellant’s contention that this case is analogous to Commonwealth

v. Jones, 378 A.2d 835 (Pa. 1977), and Commonwealth v. DeWitt, 608

A.2d 1030 (Pa. 1992), is equally unavailing. Jones involved an unusual set

of circumstances.    Initially, police responded to a call regarding Jones’

alleged discovery of his deceased aunt.       The next day police traveled to

Jones’ residence to conduct additional questioning; however, Jones had fled

the area. Police issued an arrest warrant after discovering a stolen firearm

that same day. Two days later, Jones was picked up in Missouri by Missouri

highway police.   Specifically, the officer stopped his police car and asked

Jones for identification.   After Jones provided the identification, the officer

directed him to be seated in the back of the officer’s car. He then conducted

a check and discovered the outstanding arrest warrant.         The officer then

asked Jones to exit the vehicle at which point Jones admitted to having a

gun.

       The suppression court suppressed the gun from the stop and

additional statements Jones made to the officer.           The Commonwealth

appealed, and the Supreme Court affirmed. In doing so, it found that the

officer’s placement of Jones in the backseat of the police car after asking for

identification subjected Jones to a stop that was not supported by


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reasonable suspicion.       Here, Officer Collins did not direct Appellant’s

movement or sit him in his police car. Jones is inapposite.

      In DeWitt, Pennsylvania State Police witnessed a car parked partially

in a parking lot of a church and partly on the berm of a road. The car was

facing in the opposite direction of travel and did not have its exterior lights

illuminated.   The interior lights of the car were on, and police had been

notified by the church on prior occasions to check for suspicious vehicles.

The state police officers pulled their vehicle alongside the vehicle, which then

began to pull away. Those inside the car also turned off the interior lights.

The officers stopped the car. Inside the car, in plain view, the troopers saw

beer, cocaine, and a marijuana cigarette. The DeWitt Court held that the

initial vehicle stop was illegal.

      Unlike DeWitt, Officer Collins did not stop Appellant’s vehicle as he

attempted to leave since Appellant never sought to leave.       Officer Collins’

walking up to the car without turning on his siren or overhead lights and

asking Appellant what was happening was not an investigative detention.

Appellant’s investigative detention did not arise until after his companion

was arrested. DeWitt is not controlling.

      Having determined that Officer Collins’ initial interaction with Appellant

was not an investigative detention, we now analyze whether the subsequent

events led to reasonable suspicion to justify the later Terry frisk. A Terry

frisk is permissible of an arrestee’s companion where there is reasonable


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suspicion that the companion is armed and dangerous. Commonwealth v.

Jackson, 907 A.2d 540, 545 (Pa.Super. 2006). Instantly, Appellant and his

companion were in a high crime area. Appellant’s friend was found with a

loaded 9 mm handgun. Appellant made furtive movements consistent with

concealing something as Officer Morris approached, and acted nervously

throughout his encounter with Officer Collins. Appellant and his companion

gave inconsistent responses as to where Appellant’s friend lived. In light of

these circumstances, we find that the suppression court did not err in

concluding that the totality of the circumstances supported the Terry frisk.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2014




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