J-S72020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    TIFFANY ROWAN,                             :
                                               :   No. 379 EDA 2016
                       Appellant               :

            Appeal from the Judgment of Sentence January 21, 2016
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0003672-2014


BEFORE:      BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.

DISSENTING MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 28, 2018

        In the case sub judice, as the Majority properly holds, Officer Anthony

Space had the authority to order the passengers, including Appellant Tiffany

Rowan, to exit the subject vehicle and conduct a Terry1 frisk.        However,

Officer Space did not exceed the scope of a permissible pat-down or

improperly question Appellant about the contents of her pocket. Accordingly,

as the suppression court properly denied Appellant’s motion to suppress, I

would affirm her judgment of sentence, and thus, respectfully dissent.

        As the suppression court relevantly held:

               [A]fter feeling what he believed to be narcotics packaging,
        Officer Space asked Appellant what was in her pocket. When
        Appellant replied that it was money, based upon Officer Space’s
        training and experience, he believed her answer to be false. After
____________________________________________


1   Terry v. Ohio, 392 U.S. 1 (1968).
____________________________________
* Former Justice specially assigned to the Superior Court.
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      confronting Appellant about the falsehood, Officer Space observed
      Appellant begin to back away, blading her body in such a way that
      Officer Space believed she was about to run. It was at this point
      that Officer Space seized Appellant by the arm, and she then
      admitted to him that the lump he had felt in her pocket was
      narcotics.

Lower Court Opinion, filed 5/31/17, at 17-18.

      The Majority indicated that “when Officer Space, while feeling the lump

during the pat-down search, asked [Appellant] ‘what it was,’ and physically

restrained [Appellant], we conclude that [Appellant] was, at that point,

subject to a custodial interrogation.”      Majority’s Memorandum at 14.

However, in making this determination, the Majority has not properly applied

this Court’s standard of review.

            [We are] limited to determining whether the suppression
      court’s factual findings are supported by the record and whether
      the legal conclusions drawn from those facts are correct. . . Where
      the suppression court’s factual findings are supported by the
      record, the appellate court is bound by those finding and may
      reverse only if the court’s legal conclusions are erroneous.

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (quotation

omitted).

      Here, the suppression court found the officer first asked Appellant “what

it was” and grabbed her arm only after she lied to him and tried to flee. The

record supports the suppression court’s factual finding.    Thus, at the point

when the officer asked “what it was,” and concluded Appellant lied when she

responded “money,” Appellant was not in custody or deprived of her freedom

in any significant way. As such, she was not subjected to custodial


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interrogation. See Commonwealth v. Ingram, 814 A.2d 264 (Pa.Super.

2002) (discussing custodial interrogation).

      Officer Space grabbed Appellant’s arm after Appellant lied about the

contents of her pocket and attempted to flee. Still, under prevailing case law,

Appellant was not in custody, or the functional equivalent thereof, when

Officer Space grabbed her arm. Commonwealth v. Valentin, 748 A.2d 711

(Pa.Super. 2000) (where officer held the appellant’s clothing during the

detention and directed him to place his hands on a nearby car it was not the

functional equivalent of an arrest). Appellant then stated she had drugs in

her pocket, and now supported by probable cause, Officer Space properly

arrested her, as well as searched her incident to the arrest. See id. (where

the appellant admitted he had drugs in his pocket the officer had probable

cause to arrest).

      For all of the foregoing reasons, contrary to the Majority’s substitution

of their own determinations for that of the suppression judge, I conclude the

suppression judge properly denied Appellant’s motion to suppress, and I would

affirm Appellant’s judgment of sentence. Therefore, I respectfully dissent.




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