J-S20021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

BRIAN BANTUM,

                         Appellant                   No. 1123 WDA 2014


     Appeal from the Judgment of Sentence Entered on June 10, 2014
               In the Court of Common Pleas of Blair County
            Criminal Division at No.: CP-07-CR-0000331-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ.

DISSENTING MEMORANDUM BY WECHT, J.                     FILED JULY 14, 2015

      The learned Majority holds that the initial interaction between Officer

Thomas Venios and Brian Bantum on November 4, 2012, was supported by

reasonable suspicion. In reaching that conclusion, the Majority appropriately

recites the well-established principle espoused by our Supreme Court: a

police officer must be able to point to specific facts and reasonable

inferences drawn from those facts in light of the officer’s experience, in order

to demonstrate reasonable suspicion. Commonwealth v. Cook, 735 A.2d

673, 677 (Pa. 1999).       Officer Venios articulated many facts, including

Bantum’s presence in a high-crime area, which the learned Majority relies

upon to support its finding of reasonable suspicion. However, those facts,

and any reasonable inferences drawn therefrom, were insufficient to support

Officer Venios’ belief that criminal activity was afoot. Because Officer Venios
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could not proffer any reasonable inference to support his belief of criminal

activity, I respectfully dissent.

      As a preliminary matter, I agree with the Majority’s choice to analyze

the initial interaction between Officer Venios and Bantum as an investigative

detention.   However, I do not, as the Majority did, need to assume this

classification. See Maj. Mem. at 6. Clearly, the initial interaction between

Officer Venios and Bantum on November 4, 2012, was an investigative

detention. The relevant inquiry in distinguishing between a mere encounter

and an investigatory detention is “whether a reasonable person would have

believed that [he] was free to leave, and to this end the inquiry must focus

on whether the police officer, either by physical force or by show of

authority,   has   restricted   the   defendant’s   movement   in   some   way.”

Commonwealth v. Caben, 60 A.3d 120, 128 (Pa. Super. 2012).

      Officer Venios testified that he noticed Bantum standing in front of a

church located in a high-crime area, which caused him to drive towards

Bantum to investigate. Notes of Testimony (“N.T.”), 10/11/2013, at 19, 24.

At approximately 1:17 a.m., Officer Venios stopped his car “in the opposite

lane of travel” approximately five to ten feet from Bantum, turned his

spotlight on, directed the spotlight at Bantum, exited his vehicle, and

approached Bantum. Id. at 22, 24-25. Officer Venios was driving a marked

car and in full uniform that evening. Id. at 3-4. Bantum did not attempt to

move or flee at any point during this encounter. Id. at 23, 35.




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       In viewing all of the surrounding circumstances, it is clear that a

reasonable person standing in Bantum’s shoes would not have felt that he or

she was free to depart.1        Officer Venios did not use any physical force to

restrain Bantum during this initial interaction; however, his display of

authority and the location and timing of the interaction clearly demonstrate

that Officer Venios effectuated an investigative detention when he initially

approached Bantum on November 4, 2012.

       As previously mentioned, an investigative detention must be supported

by reasonable suspicion. Commonwealth v. Hudson, 995 A.2d A.2d 1253,

1256 (Pa. Super. 2010).           The inquiry into whether a police officer had

reasonable suspicion to stop a defendant is a dual one, which requires us to

determine whether the officer’s action was justified at its inception, and

whether it was reasonably related in scope of the circumstances that

____________________________________________


1
      This Court, in Commonwealth v. Lyles, 54 A.3d 76 (Pa. Super
2012), highlighted the inherent difficulty in attempting to objectively analyze
an individual’s subjective perception of restraint. Lyles, 54 A.3d at 84. In
an interesting but non-binding concurring opinion, Judge Strassburger
attempted to reconcile this difficulty by pointing out an undeniable
perception of police authority:

       When a police officer initiates an encounter, an individual as a
       practical matter never feels free to leave. The police officer has
       a weapon.     The police officer’s testimony is almost always
       believed in court. No responsible person would walk away from
       an encounter with a police officer.

Id. (emphasis in the original).




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justified the interference in the first place. Commonwealth v. Guzman, 44

A.3d 688, 692-93 (Pa. Super. 2012).              Accordingly, a review of Officer

Venios’ investigative detention of Bantum is, in part, temporal in nature.

Concluding that Officer Venios effectuated an investigative detention when

he initially approached Bantum, he must at that moment be able to, as the

Majority notes, point to specific facts and reasonable inferences drawn from

those facts in light of his experience, in order to demonstrate reasonable

suspicion. See Cook, 735 A.2d at 677.

       In the instant case, Officer Venios and numerous other police officers

from the Altoona Police Department responded to a disturbance call at a

local bar on November 4, 2012, at approximately 1 a.m.. N.T., 10/11/2013,

at 2-4. Upon arrival, Officer Venios and the other police officers defused the

situation and dispersed the patrons from the bar. Id. After dispersing the

patrons from the bar, Officer Venios returned to his patrol car and “started

circling around the area just to make sure that the people were moving

along.” Id. at 4.

       At approximately 1:17 a.m., Officer Venios observed Bantum standing

in front of a church approximately one block away from the bar.2 Id. at 6.


____________________________________________


2
     It is unclear precisely how much time passed between Officer Venios’
response to the bar and Bantum’s arrest. Officer Venios testified that he
responded to the bar disturbance at approximately 1:15 or 1:17 a.m. and
that he arrested Bantum at 1:17 a.m..        N.T., 10/11/2013, at 3, 28.
Notwithstanding this minor discrepancy, it is reasonable to conclude that
(Footnote Continued Next Page)


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Officer Venios testified that the church was located in a high-crime area. Id.

at 5-6. Bantum, Officer Venios testified, was standing under a dark recess

near a set of stairs connected to the church and appeared to be speaking on

a cell phone. Id. 6-7, 17, 24. Officer Venios also testified that Bantum’s

presence in front of the church was suspicious because the church was

closed at the time. Id. at 7. Specifically, Officer Venios testified, “I couldn’t

tell if it was somebody who was not dispersing from the area[,] which is

what I was looking for[,] or if it was someone who [was] trying to break into

the church.” Id. Upon arriving at the church, Officer Venios illuminated his

spotlight towards Bantum, exited his vehicle, and immediately approached

Bantum. Id. At some point during his approach, Officer Venios recognized

Bantum as an individual who was present in front of the local bar that he

had just departed. Id. 14-15.

         Officer Venios’ suspicion that Bantum was involved in some criminal

activity was not a reasonable inference to draw from the totality of these

facts.    At the onset of Officer Venios’ investigative detention of Bantum,

Officer Venios did not observe any illegal or unusual activity. Id. at 25-26.

In fact, Officer Venios witnessed no signs of Bantum attempting to break




                       _______________________
(Footnote Continued)

Officer Venios’ response to the bar and Bantum’s arrest all occurred between
1:00 a.m. and 1:17 a.m..




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into the church. Id. at 26. Officer Venios merely observed Bantum standing

in front of the church while, perhaps, speaking on a cell phone. Id. at 24.

     Considering the totality of the circumstances, Officer Venios did not

have reasonable suspicion to believe that criminal activity was afoot. Officer

Venios sighted Bantum minutes after dispersing the many patrons from the

local bar. The church where Bantum was standing was located only a block

away from that bar.     At some point while approaching Bantum, Officer

Venios recognized Bantum as a patron present at the bar that night. Officer

Venios maintains that he wanted to ensure that Bantum was not breaking

into the church; however, a police officer’s determination of reasonable

suspicion must be based upon common sense and inferences about human

behavior.   In re M.D., 781 A.2d 192, 199 (Pa. Super. 2001).          Neither

Bantum’s geographic proximity to the bar nor the closeness in time between

Officer Venios’ response to the bar and Bantum’s arrest precluded Bantum

from engaging in criminal activity.      However, considering the totality of

these circumstances, common sense can yield no reasonable inference to

support a belief of criminal activity.    The impetus behind Officer Venios’

suspicion was Bantum’s presence in a high-crime area, which by itself does

not form the basis for reasonable suspicion.        See Commonwealth v.

Leonard, 951 A.2d 393, 396 (Pa. Super. 2008) (holding that presence in a

high-crime area alone does not form the basis for reasonable suspicion).

Consequently, Officer Venios effectuated an investigative detention of

Bantum, which was not supported by reasonable suspicion.

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      For the foregoing reasons, I would find that the totality of the

circumstances do not give rise to specific and articulable facts supporting

reasonable suspicion that Bantum was engaged in or about to engage in

criminal activity, and that the investigative detention, therefore, was

unconstitutional. Accordingly, I would reverse the trial court’s order denying

Bantum’s motion to suppress. The Majority having concluded otherwise, I

respectfully dissent.




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