J-S44033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                       Appellant

                  v.

DESMOND GREENE

                       Appellee                   No. 207 WDA 2015


             Appeal from the Order Entered January 7, 2015
             In the Court of Common Pleas of Mercer County
           Criminal Division at No(s): CP-43-CR-0001130-2014


                                   *****

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                       Appellant

                  v.

DESMOND GREENE

                       Appellee                   No. 208 WDA 2015


             Appeal from the Order Entered January 7, 2015
             In the Court of Common Pleas of Mercer County
           Criminal Division at No(s): CP-43-CR-0001299-2014


BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                  FILED NOVEMBER 18, 2015

     The Commonwealth appeals from the order entered in the Court of

Common Pleas of Mercer County granting Desmond Greene’s motion to

suppress evidence. After careful review, we reverse and remand for further

proceedings.
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       The suppression court set forth the facts of this matter as follows:

       Officer Adam Zazado of the Sharon Police Department was on
       patrol on July 18, 2014, in Zone 5 of the City. Zone 5 is a high
       crime area. At approximately 5:30 p.m., he observed two black
       males walking south through the alley leading to Morrison
       Street. One had no shirt and the other was wearing jeans with a
       long sleeve hoodie with the hood up. The black males glanced in
       the officer’s direction and kept on walking.

       It was a sunny day and the temperature was 78 degrees.

       Officer Zazado drove around the block to see where the two
       were headed. The two were still walking down the alley. At that
       point, the officer decided he wanted to talk to the two black
       males. He turned his vehicle around and drove up the alley.

       When Officer Zazado entered the alley, only one of the black
       males remained. It was the individual wearing the hoodie. The
       officer observed that individual fidgeting with his clothing.

       The officer identified this black male as [Greene].

       As the officer drove toward [Greene], [Greene] began walking
       east through some yards. The officer drove around the block to
       get in front of [Greene].[1] He did so on South Oakland.

       The officer exited his vehicle and asked [Greene] if he could talk
       to him. [Greene] agreed.

       As the officer was talking to [Greene], he noticed [Greene] was
       pressing his legs tightly together. When asked why he was
       doing so, he indicated he had to go to the bathroom. The officer
       told [Greene] if he had to go to the bathroom, he could have
       gone in the alley when no one was watching.

       [Greene] was fidgety and avoided eye contact. In addition,
       [Greene] continued to put his hands in his pants pockets even
       though instructed not to do so by the officer.
____________________________________________


1
  Officer Zazado actually testified that he parked his cruiser behind, not in
front of, Greene, who was continuing to walk. See N.T. Suppression
Hearing, 1/7/15, at 16.



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        As a result of all the above factors, the officer felt he needed to
        pat-down [Greene] to determine if he was armed. He instructed
        [Greene] to walk over to the officer’s cruiser so he could be
        patted down. As [Greene] walked over, Office[r] Zazado saw a
        large bulge in the thigh area of [Greene’s] left leg. [Greene]
        was ordered to stop. A second officer, Officer Zych, who had
        just arrived on the scene, articulated [Greene’s] left leg and
        found a hand gun.

Trial Court Opinion, 2/24/15, at 2-3.

        Greene was subsequently charged with one count each of carrying a

firearm without a license,2 possession of a firearm prohibited,3 and receiving

stolen property4 after a records search of the firearm’s serial number showed

it to be stolen.

        On December 1, 2014, Greene filed an omnibus pre-trial motion and

on January 7, 2015, the suppression court held that there was no basis to

believe that criminal activity was afoot, and therefore the pat down and

discovery of Greene’s firearm was unlawful.         The Commonwealth filed a

timely notice of appeal asserting that the grant of Greene’s suppression

motion would substantially handicap the prosecution, see Pa.R.A.P. 311(d),

as well as a court-ordered statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

        On appeal, the Commonwealth raises the following claim:

____________________________________________


2
    18 Pa.C.S. § 6106.
3
    18 Pa.C.S. § 6105.
4
    18 Pa.C.S. § 3925.



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      Whether [Officer Zazado] lacked reasonable suspicion that
      criminal activity may have been afoot or that [Greene] may have
      been armed and dangerous to police based upon the totality of
      the circumstances that included, but were not limited to,
      [Greene’s] failure to remove his hands from his pockets in a high
      crime area after being told to do so?

Brief of Appellant, at 4.

      Our standard of review when evaluating a suppression order is well

settled:

      When reviewing the propriety of a suppression order, an
      appellate court is required to determine whether the record
      supports the suppression court’s factual findings and whether
      the inferences and legal conclusions drawn by the suppression
      court from those findings are appropriate. Where the [appellee]
      prevailed in the suppression court, we may consider only the
      evidence of the [appellee] and so much of the evidence for the
      Commonwealth as remains uncontradicted when read in the
      context of the record as a whole. Where the record supports the
      factual findings of the suppression court, we are bound by those
      facts and may reverse only if the legal conclusions drawn
      therefrom are in error. However, where the appeal of the
      determination of the suppression court turns on allegations of
      legal error, the suppression court’s conclusions of law are not
      binding on an appellate court, whose duty it is to determine if
      the suppression court properly applied the law to the facts.

Commonwealth v. Walls, 53 A.3d 889, 892 (Pa. Super. 2012) (citations

omitted).

      The Commonwealth argues that Officer Zazado possessed reasonable

suspicion that criminal activity was afoot and that Greene was armed and

dangerous. The Commonwealth claims that there is no dispute that Officer

Zazado’s initial contact with Greene was lawful as a mere encounter, and the

suppression court agreed.      However, the Commonwealth asserts that

“Greene’s failure to keep his hands out of his pockets . . . has been held


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J-S44033-15



sufficient cause to conduct a pat down” and, even if that factor alone did not

establish reasonable suspicion, the totality of the circumstances did.    We

agree.

      There are three categories of interactions between citizens and police:

      The first of these 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 to
      respond. The second, an “investigative detention” must be
      supported by reasonable suspicion; it subjects a suspect to a
      stop and a period of detention, but does not involve such
      coercive conditions as to constitute the functional equivalent of
      an arrest. Finally, an arrest or “custodial detention” must be
      supported by probable cause.

Commonwealth v. Mendenhall, 715 A.2d 1117, 1119 (Pa. 1998)

(citations omitted).

      In order to determine whether an investigative detention has occurred,

circumstances to be examined include any which may “evidence a show of

authority or exercise of force including such subtle factors as the demeanor

of the police officer, the location of the confrontation, the manner of

expression used by the officer in addressing the citizen, and the content of

the interrogatories or statements.”    Commonwealth v. Jones, 378 A.2d

835, 839-40 (Pa. 1977). After examining the circumstances, the standard to

be used is whether “a reasonable man, innocent of any crime, would have

thought [he was being restrained] had he been in the defendant’s shoes.”

Id. at 840.

      To establish reasonable suspicion, an officer must “articulate specific

observations which, in conjunction with reasonable inferences derived from

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those observations, led him to reasonably conclude, in light of his

experience, that criminal activity was afoot and that the person he stopped

was involved in that activity.” Commonwealth v. Basinger, 982 A.2d 121,

125 (Pa. Super. 2009), quoting Commonwealth v. Reppert, 814 A.2d

1196, 1203 (Pa. Super. 2002).        In such an inquiry, the totality of the

circumstances must be considered. In re D.M., 781 A.2d 1161, 1163 (Pa.

2001). “[T]he 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), quoting Commonwealth v.

Cook, 735 A.2d 673, 676 (Pa. 1999). We must give “due weight . . . to the

specific reasonable inferences [the police officer] is entitled to draw from the

facts in light of his experience.” Commonwealth v. Cook, 735 A.2d 673,

676 (Pa. 1999), quoting Terry v. Ohio, 392 U.S. 1, 27 (1968).

      Here, we agree with the Commonwealth and the suppression court

that Officer Zazado’s initial interaction with Greene was a mere encounter.

Officer Zazado, suspicious that Greene was wearing a hoodie on a sunny,

78-degree day, decided to investigate further.        Officer Zazado took his

cruiser to the alley where Greene was walking and, as Officer Zazado began

following him (without lights or sirens), Greene began cutting through yards

of residences in the other direction. Ultimately, Officer Zazado stopped his

vehicle behind Greene as Greene continued to walk on.           Officer Zazado

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J-S44033-15



asked Greene if he could speak with him and Greene agreed. At this point,

Officer Zazado had made no show of authority or exercise of force such as

would cause a reasonable person to believe he was being restrained. See

id. Greene could have simply continued to walk on, unimpeded by Officer

Zazado or his vehicle, without responding to the officer’s request to speak

with him. Greene, however, agreed to speak with Officer Zazado.

      As Greene’s interaction with Officer Zazado progressed, Greene began

exhibiting signs of nervousness, fidgeting with his shoes, avoiding eye

contact and awkwardly standing with his knees pressed tightly together.

Most notably, during his encounter with Officer Zazado, Greene “repeatedly

put his hands into his [pants] pockets approximately three times,” despite

Officer Zazado’s instruction to remove them.     N.T. Suppression Hearing,

1/7/15, at 9.

      Based on the foregoing behavior exhibited by Greene – particularly his

refusal to remove his hands from his pockets – and the fact that the

encounter was occurring in a high-crime neighborhood, Officer Zazado

testified that he became fearful for his own safety.    As a result, Officer

Zazado advised Greene that he wished to pat him down.           After Officer

Zazado directed Greene to walk over to his cruiser for a pat-down, Greene

unlocked his legs and began to walk, at which point Officer Zazado “saw a

large bulge in [Greene’s] left leg towards his thigh area like something fall

[sic].” Id. at 12.




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J-S44033-15



      The pertinent facts in Commonwealth v. Hall, 713 A.2d 650 (Pa.

Super. 1998), rev’d on other grounds, 771 A.2d 1232 (Pa. 2001), are

analogous to the matter before the Court. In that case,

      [t]wo Reading police officers, patrolling in their cruiser, saw
      defendant and a companion conversing in an alley near a café.
      The police parked their vehicle, the conversants [sic] broke up,
      and appellant approached the police car while getting his I.D.
      out of his wallet and asked “Is everything all right, officer?”
      After a brief exchange, the officer removed from his vehicle and
      noticed Hall had his hands in his pocket. He asked if he was
      armed and Hall said he was not. Hall was asked to take his
      hands out of his pocket, but only removed his left hand. As the
      officer came to him, Hall pivoted with his hand in his pocket.
      After being asked again to remove his hand, he did, but became
      confrontational and stated that he would not be searched. The
      officer replied that he would not search him, but only pat him
      down for weapons.

Id. at 652-53.   The Court concluded that “when Hall approached with his

hand thrust in his pocket and refused to remove it, the encounter escalated

into a situation where the totality of circumstances involved a reasonable

suspicion and justified a detention to stop and frisk.” Id. at 653. Thus, “the

single factor of the defendant keeping his hand in his pocket after being

asked to remove it escalated the encounter into one of reasonable

suspicion.”   Commonwealth v. Scarborough, 89 A.3d 679, 684 (Pa.

Super. 2014), citing Hall, supra.

      The result in Scarborough, supra, similarly militates in favor of a

finding that Officer Zazado possessed reasonable suspicion to perform a

weapons pat-down. In Scarborough, two officers were on bicycle patrol in

a high-crime area of Philadelphia when the following transpired:


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J-S44033-15


         The officers observed the defendant heading southbound, toward
         them, . . . riding a bicycle and talking on a cellular phone. The
         officers stopped the defendant in order to issue him a citation for
         using the phone while operating a vehicle, in violation of a City
         of [a] Philadelphia ordinance[.]

         When asked, the defendant hung up his phone and placed it in
         his left jacket pocket.        The officers also asked for his
         identification. The defendant began to behave nervously, and
         put his hand in his right jacket pocket but did not withdraw it.
         The officers reiterated their request for identification, and asked
         the defendant to remove his hand from his right pocket. The
         defendant looked around and appeared extremely nervous.
         Upon being asked a second time, he removed his hand from his
         right pocket.

Id. at 682. The officers proceeded to conduct a pat-down for their safety

and discovered a firearm.       On appeal of the suppression court’s refusal to

exclude the firearm discovered during the pat-down, this Court emphasized

the significance of the defendant’s refusal to remove his hand from his

pocket and concluded that the police had the right to perform a weapons

frisk.

         Here, as in Hall and Scarborough, we conclude that, based on the

totality of the circumstances present at the time of the interaction, when

Greene repeatedly placed his hands in his pockets despite Officer Zazado’s

instructions to remove them, Officer Zazado possessed reasonable suspicion

that Greene might be armed and dangerous.            Accordingly, Officer Zazado

was justified in requesting that Greene submit to a weapons pat-down.

Thus, the suppression court erred by concluding that Officer Zazado lacked

reasonable suspicion and suppressing the evidence obtained as a result of

the pat-down.

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J-S44033-15



     Order reversed; case remanded for proceedings consistent with the

dictates of this memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2015




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