J-S49034-14


                                  2014 PA Super 234

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

NATHANIEL DAVIS

                            Appellee                    No. 3549 EDA 2013


               Appeal from the Order entered November 15, 2013
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0000231-2013


BEFORE: OLSON, OTT, and STABILE, JJ.

OPINION BY STABILE, J.:                               FILED OCTOBER 14, 2014

        The Commonwealth appeals from an order granting a motion to

suppress a handgun.          A police officer discovered the handgun during a

Terry1 frisk he conducted of Appellee, Nathaniel Davis, in the middle of the

night on a West Philadelphia street.           Because the suppression court

erroneously concluded that the officer lacked valid grounds to detain and

frisk Appellee, we reverse and remand.

        At about 2:00 a.m. on December 22, 2012, Officer Sean Devlin and his

partner, Officer Steven Carter, were on routine patrol near 52nd and Arch

Streets in Philadelphia.2      Officer Devlin knew that the neighborhood was a
____________________________________________


1
    Terry v. Ohio, 392 U.S. 1 (1968).
2
  Unless otherwise noted, we take these facts from the Suppression Court
Pa.R.A.P. 1925(a) Opinion, 3/4/14.
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high-crime area based on the “100, if not more” arrests he had made for

“every type” of crime, including DUIs, drug arrests, firearms violations, and

physical assaults.   See N.T., 11/15/13, at 6.   Officer Devlin saw two men

standing over a third, who was lying unconscious in the street.     He later

found out that one of the two men was Appellee.        Unsure of what was

happening, Officer Devlin pulled over his patrol car, turned on the

emergency lights, and got out to investigate.

      As the officers approached the trio, Officer Devlin noticed that one of

the two men was possibly rummaging through the unconscious man’s

pockets. He tried to speak to the unconscious individual, who was unable to

respond.   Officer Devlin thought that the unconscious individual may have

been beaten by the other two men, though he saw no visible injuries. See

id. at 9. He also noticed that an object was weighing down the right breast

pocket of Appellee’s jacket. Officer Devlin approached appellee and began

to pat him down.     In response, Appellee attempted to swat away Officer

Devlin’s hand, and flailed his arms. Officer Devlin immediately recognized

the object in the jacket pocket as a firearm, and yelled, “gun!”     Officers

Devlin and Carter restrained Appellee, and secured the gun, which was a

Rossi .357 Magnum. Appellee escaped, but only briefly. After a short foot

chase, the officers recaptured Appellee and placed him under arrest.     The




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Commonwealth later charged Appellee with two violations of the Uniform

Firearms Act and resisting arrest.3

       Appellee moved to suppress the firearm as the fruits of an illegal

search.    At the hearing on the motion, only Officer Devlin testified.   The

suppression court stated that Appellee “could have been trying to rob the

guy, [but] we didn’t see him stab him, kick him, robbing, shooting.” Id. at

21.   The suppression court granted the motion, concluding Officer Devlin

lacked probable cause sufficient to “get a warrant from a magistrate or

judge.” Id. at 18-19. This appeal followed.4

       In its Pa.R.A.P. 1925(a) opinion, the suppression court stated, for the

first time, that Officer Devlin lacked reasonable suspicion to perform a Terry

frisk. Trial Court Rule 1925(a) Opinion, 3/4/14, at 9-10. The suppression

court concluded that the Commonwealth failed to present specific, articulable

facts to support an investigative detention. It noted that Officer Devlin was

unsure whether Appellee had harmed the unconscious man and was rifling

through his pockets, or was trying to render aid.      The suppression court

similarly found that the bulge in Appellee’s jacket pocket could not support
____________________________________________


3
  18 Pa.C.S.A. §§ 6106(a)(1) (firearms not to be carried without a license),
6108 (carrying firearms on a public street in Philadelphia), and 5104,
respectively.
4
  We have jurisdiction because the Commonwealth certified that the
suppression court’s order terminates or substantially handicaps its
prosecution. See Pa.R.A.P. 311(d); Commonwealth v. James, 69 A.3d
180, 186 (Pa. 2013).



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reasonable suspicion because “a bulge without other evidence of criminal

behavior does not give rise to reasonable suspicion.” Id. at 10 n.4 (citing

Commonwealth v. Maxon, 798 A.2d 761, 768-69 (Pa. Super. 2002)). The

suppression court further found that Officer Devlin observed no weapons and

no visible injuries to the unconscious man.                Id. at 10.      Finally, the

suppression court found that Appellee’s action in pushing away Officer

Devlin’s hand and evading him was a reasonable response to an unlawful

frisk. Id. at 12-13.

       On appeal, the Commonwealth argues that the suppression court erred

as a matter of law in failing to consider the totality of the circumstances

known to Officer Devlin.          It contends Officer Devlin faced an unusual,

potentially    dangerous       situation       deserving   of   investigation.      The

Commonwealth argues that the Officer’s response was reasonable, and

designed to ensure his and his partner’s safety. Appellant’s Brief at 8.

       In appeals from orders granting suppression, our scope of review is

limited to the evidence presented at the suppression hearing.                    In the

Interest of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013).                    Thus, we may

consider only the evidence from the appellee’s witnesses together with the

Commonwealth’s evidence that, when read in context of the record at the

suppression hearing, remains uncontradicted.5               Id.; Commonwealth v.

____________________________________________


5
  Our Supreme Court in L.J. clarified that the scope of review of orders
granting or denying motions to suppress is limited to the evidence presented
(Footnote Continued Next Page)


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Whitlock, 69 A.3d 635, 637 (Pa. Super. 2013).         As for the standard of

review, we apply no deference to the suppression court’s legal conclusions.

Whitlock, 69 A.3d at 637. In contrast, we defer to the suppression court’s

findings of fact, “because it is the fact-finder’s sole prerogative to pass on

the credibility of the witnesses and the weight to be given to their

testimony.” Id.

      Preliminarily, Appellee was not subject to an investigative detention

when Officer Devlin stopped his patrol car, turned on the emergency lights,

and got out to check on the condition of the man lying in the street. Rather,

the interaction at that point was a mere encounter, and mere encounters do

not implicate constitutional prohibitions against unreasonable searches and

seizures.   Cf. Commonwealth v. Coleman, 19 A.3d 1111, 1116-17 (Pa.

Super. 2011) (holding that police officers’ approaching defendant on street

and asking questions was mere encounter).

      Officer Devlin’s action in patting down Appellee’s jacket was a Terry

frisk. A Terry frisk is a type of investigative detention requiring reasonable

suspicion “that criminal activity is afoot and that ‘the individual whose

suspicious behavior he is investigating at close range is armed and presently

dangerous to the officer or to others.’” Commonwealth v. Guess, 53 A.3d

895, 901 (Pa. Super. 2012) (quoting Terry, 392 U.S. at 24). The purpose
                       _______________________
(Footnote Continued)

at the suppression hearing. The suppression hearing in this case post-dates
L.J., so L.J. is applicable here.



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of a Terry frisk is not to discover evidence of a crime, but to protect the

police officer conducting the investigation. Id.; see also Commonwealth

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

      The reasonable suspicion necessary to conduct a Terry frisk and, in

fact, all investigative detentions

      is a less demanding standard than probable cause not only in the
      sense that reasonable suspicion can be established with
      information that is different in quantity or content than that
      required to establish probable cause, but also in the sense that
      reasonable suspicion can arise from information that is less
      reliable than that required to show probable cause.

Commonwealth v. Fell, 901 A.2d 542, 545 (Pa. Super. 2006) (quoting

Alabama v. White, 496 U.S. 325, 330 (1990)).

      “The determination of whether an officer had reasonable suspicion that

criminality was afoot so as to justify an investigatory detention is an

objective one, which must be considered in light of the totality of the

circumstances.” Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011).

In assessing the totality of the circumstances, a court must give weight to

the inferences that a police officer may draw through training and

experience. Id. at 95. “Also, the totality of the circumstances test does not

limit our inquiry to an examination of only those facts that clearly indicate

criminal conduct. Rather, even a combination of innocent facts, when taken

together,   may   warrant    further   investigation   by   the   police   officer.”

Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004) (internal

quotation and alteration omitted); see also Scarborough, 89 A.3d at 684


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(holding that the “single factor of the defendant keeping his hand in his

pocket after being asked to remove it” constituted reasonable suspicion to

stop and frisk).

      Turning to the facts of this case, at 2:00 a.m. in a high-crime area,

Officer Devlin and his partner happened upon Appellee and another

individual standing over an unconscious man in the middle of the street.

Officer Devlin was concerned that the two men may have beaten up or

robbed the third man, and they may have been going through his pockets.

Officer Devlin noticed an object weighing down Appellee’s jacket pocket, and

began to pat down Appellee for safety. He immediately recognized that the

object was a gun, restrained Appellee, and took him into custody.

      We hold the trial court erred as a matter of law in granting the

suppression motion.      The trial court failed to consider the totality of the

circumstances, and give Officer Devlin the benefit of the inferences he drew

from those circumstances. The record shows that Officer Devlin reasonably

suspected that criminal activity was afoot and that Appellee was armed and

potentially dangerous.

      The incident ending in Appellee’s arrest did not occur in a vacuum, and

the facts of the incident did not occur in isolation.    Yet, that is how the

suppression court evaluated the incident and facts. Officer Devlin may have

been unsure whether Appellee had assaulted or robbed the unconscious

man. It could be, as the trial court proposed, that Appellee was merely a

Good Samaritan stopping to render aid.      See N.T., 11/15/13, at 21. It is

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possible that the unconscious man suffered a medical emergency, or had

been waylaid by someone else. Further, the item weighing down Appellee’s

right breast pocket could have been a book. “Of course, one can conceive of

innocent explanations for each one of these facts.”     Rogers, 849 A.2d at

1190.    “Yet, . . . reasonable suspicion does not require that the activity in

question must be unquestionably criminal before an officer may investigate

further. Rather, the test is what it purports to be—it requires a suspicion of

criminal conduct that is reasonable based upon the facts of the matter.” Id.

(emphasis in original).      Potential innocent explanations for Appellee’s

conduct do not negate the reasonableness of Officer Devlin’s suspicion of

criminal activity, which even the suppression conceded as valid. See N.T.,

11/5/13, at 21 (“We also know he could have been trying to rob the guy . . .

.”).

        The suppression court erred as a matter of law in granting Appellee’s

suppression motion. Under the totality of the circumstances, Officer Devlin

reasonably suspected criminal activity and that Appellee was armed and

potentially dangerous. His patting down of Appellee’s jacket leading to the

discovery of the firearm was not an unconstitutional search or seizure.

Accordingly, we reverse the suppression court’s order and remand for

further proceedings.

        Order reversed. Case remanded. Jurisdiction relinquished.




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J-S49034-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2014




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