J-A30023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

BARRY QUARTERBAUM

                            Appellant                    No. 2948 EDA 2013


              Appeal from the Judgment of Sentence July 24, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): MC-51-CR-0004852-2013


BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                             FILED JANUARY 23, 2015

        Appellant, Barry Quarterbaum, appeals from the July 24, 2013

judgment of sentence of 12 months’ probation imposed following a

stipulated trial where he was found guilty of knowingly or intentionally

possessing a controlled substance.1 After careful review, we affirm.

        The trial court set forth the relevant facts as follows.

                     On February 2, 2013, at approximately 7:45
              P.M., Philadelphia Police Officers Steven Cowdery
              and Christopher McGraw, both in plainclothes and in
              an unmarked car, were parked in the middle of the
              1200 block of Catherine Street in Philadelphia in
              response to a shooting that occurred in the area
              earlier that day.       Officer Cowdery observed
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(16).
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           Appellant, who was lingering half a block away,
           begin walking east-bound on Catherine Street and,
           approximately 20 feet away from the officer’s
           position, eventually come into contact with an
           unknown black female. Although he could not hear
           any conversation, Officer Cowdery observed a quick
           hand-to-hand transaction whereby Appellant gave
           the female United States currency in return for small
           objects. At that time, the officer did not know the
           number of small objects or what the small objects
           were.    Appellant placed the small objects in his
           pocket and began walking from whence he came.

                 Officer Cowdery has been a police officer for
           more than a decade.        He testified that he has
           observed numerous narcotics transactions and has
           made two narcotics arrests in the area of 1200
           Catherine Street. Suspecting that they just observed
           a narcotics transaction, the officers pulled out of
           their parking spot in the direction of Appellant. As
           they approached the corner, Officer Cowdery exited
           the vehicle, identified himself as a police officer, and
           requested three times that Appellant remove his
           hands from his pockets.

                 Appellant did not comply with the officer[‘]s
           request to show his hands and was eventually placed
           against a wall and patted-down by Officer Cowdery.
           While patting Appellant’s pants pocket with an open
           palm, the officer felt numerous small bags that his
           experience told him was consistent with narcotics
           packaging. Officer Cowdery asked Appellant if there
           was anything in his pocket that he needed to be
           aware of.    Receiving no answer from Appellant,
           Officer Cowdery stuck his hand in Appellant’s pocket
           and recovered four small plastic bags, rolled and
           taped, that contained a white chalky substance. The
           substance tested positive for narcotics and the bags
           were placed on a property receipt.

Trial Court Opinion, 1/7/14, at 3-4.         Based on the foregoing, the

Commonwealth charged Appellant with knowingly or intentionally possessing


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a controlled substance.          On July 24, 2013, Appellant litigated, in the

Philadelphia Municipal Court, a motion to suppress the four bags of

narcotics.      Following an evidentiary hearing, the trial court denied

Appellant’s motion to suppress. The case proceeded to an open stipulated

trial, and the trial court found Appellant guilty of the aforementioned charge.

Immediately thereafter, the trial court sentenced defendant to 12 months’

probation. Appellant subsequently filed a petition for a writ of certiorari to

the court of common pleas challenging the denial of his motion to suppress.

On October 4, 2013, the court of common pleas denied Appellant’s petition.

Thereafter, on October 23, 2013, Appellant timely filed a notice of appeal. 2

       On appeal, Appellant raises the following two issues for our review.

              1.     Was    not    [A]ppellant   stopped    without
                     reasonable suspicion where he was seen
                     exchanging an unknown item for money in an
                     area not known for drug activity, by an officer
                     with minimal experience with drug arrests, and
                     where [A]ppellant neither ran nor made furtive
                     movements upon seeing police approach him?

              2.     Where, during a frisk, an officer felt a plastic
                     baggie in [A]ppellant’s pocket, did he not lack
                     probable cause to then search the pocket and
                     seize its contents, since a baggie is not per se
                     contraband and its incriminating nature is not
                     immediately apparent?

Appellant’s Brief at 3.

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2
 Appellant and the court of common pleas have complied with Pennsylvania
Rule of Appellate Procedure 1925.



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      Both of Appellant’s issues challenge the denial of his motion to

suppress. Our standard of review is as follows.

                  In addressing a challenge to a trial court’s
            denial of a suppression motion, we are limited to
            determining whether the factual findings are
            supported by the record and whether the legal
            conclusions drawn from those facts are correct.
            Since    the    Commonwealth      prevailed  in  the
            suppression court, we may consider only the
            evidence of the Commonwealth and so much of the
            evidence     for  the    defense     as   it remains
            uncontradicted when read in the context of the
            record as a whole. Where the record supports the
            factual findings of the trial court, we are bound by
            those facts and may reverse only if the legal
            conclusions drawn therefrom are in error.

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

(citation omitted), appeal denied, --- A.3d ---, (Pa. 2014).

      First, Appellant challenges the legality of his stop by Officer Cowdery.

Resolution of this issue is dependent upon the nature of the interaction

between Appellant and the police.

                   The   Fourth    Amendment       of  the    U.S.
            Constitution and Article I, Section 8 of our state
            Constitution protect citizens from unreasonable
            searches and seizures.      To safeguard this right,
            courts require police to articulate the basis for their
            interaction with citizens in increasingly intrusive
            situations:

                        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 a reasonable suspicion; it
                  subjects a suspect to a stop and a period of

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                  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. Downey, 39 A.3d 401, 405 (Pa.
            Super. 2012) (citation omitted)[, appeal denied, 50
            A.3d 124 (Pa. 2012)].

Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012), appeal

denied, 65 A.3d 413 (Pa. 2013).

     The parties and the court of common pleas agree that Officer Cowdery

effected an investigative detention when he confronted Appellant after

observing   the   hand-to-hand    transaction.     Appellant’s   Brief   at   8;

Commonwealth’s Brief at 10; Trial Court Opinion, 1/7/14, at 4. Accordingly,

for the stop to be valid, Officer Cowdery must have possessed a reasonable

suspicion that Appellant was engaged in criminal activity.       See McAdoo,

supra. Our Supreme Court has explained reasonable suspicion as follows.

                   Reasonable suspicion is a less stringent
            standard than probable cause necessary to
            effectuate a warrantless arrest, and depends on the
            information possessed by police and its degree of
            reliability in the totality of the circumstances. In
            order to justify the seizure, a police officer must be
            able to point to specific and articulable facts leading
            him to suspect criminal activity is afoot. In assessing
            the totality of the circumstances, courts must also
            afford due weight to the specific, reasonable
            inferences drawn from the facts in light of the
            officer’s experience and acknowledge that innocent
            facts, when considered collectively, may permit the
            investigative detention.

                                      …

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                  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. It is the duty of the
            suppression    court   to   independently    evaluate
            whether, under the particular facts of a case, an
            objectively reasonable police officer would have
            reasonably suspected criminal activity was afoot.

Commonwealth v. Holmes, 14 A.3d 89, 95-96 (Pa. 2011) (internal

citations, quotation marks, and emphasis omitted).

      According to Appellant, Officer Cowdery did not have reasonable

suspicion that Appellant had just engaged in a narcotics transaction.

Appellant’s Brief at 8. Appellant contends the officer had limited experience,

the officer had not previously made arrests on that block, the officer

witnessed merely one hand-to-hand exchange, and Appellant did not flee or

engage in furtive movements when the police approached him. Id. at 9-10.

      Instantly, we conclude Appellant’s analysis is misguided. Appellant is

focusing on the evidence the Commonwealth did not present rather than the

evidence   the   Commonwealth     actually   presented.   As   we    explained

previously, however, our standard of review requires us to “consider only the

evidence of the Commonwealth and so much of the evidence for the defense

as it remains uncontradicted when read in the context of the record as a

whole.” Scarborough, supra.

      Here, the record supports the trial court’s conclusion that Officer

Cowdery had reasonable suspicion that Appellant had purchased narcotics,

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which justified Officer Cowdery’s investigative detention of Appellant. Officer

Cowdery testified that at 7:45 p.m. on February 2, 2013, he was conducting

surveillance on the 1200 block of Catherine Street in Philadelphia in

response to a shooting that occurred earlier in the day. N.T., 7/24/13, at 5-

6. Officer Cowdery has been a Philadelphia police officer for ten years and

has been involved in approximately 12 undercover narcotics transactions

with his own money. Id. at 7. He also testified that he had previously made

two narcotics arrests in the area of the 1200 block of Catherine Street. Id.

He witnessed Appellant engage in a hand-to-hand transaction that he

believed was a narcotics sale because Appellant quickly exchanged money

for small unknown objects on the street at night.        Id. at 8.   After the

transaction, Appellant “quickly” placed the objects in his pocket and

“quickly” walked toward a parked SUV, which had pulled up and parked just

before the transaction began.      Id.      The totality of the circumstances

surrounding the hand-to-hand exchange viewed in light of Officer Cowdery’s

experience with narcotics transactions, led Officer Cowdery to conclude that

Appellant was engaged in criminal activity. See Holmes, supra. Adhering

to our standard of review, we conclude the record supports the factual

findings of the trial court, and we discern no error in the trial court’s legal

conclusion   that Officer   Cowdery   had reasonable     suspicion   to   detain

Appellant. See Scarborough, supra.




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       In his second issue raised on appeal, Appellant contends that Officer

Cowdery’s tactile impression of the objects in Appellant’s pocket did not

provide probable cause to search Appellant’s pocket and seize the plastic

baggies because baggies are not per se contraband and their incriminating

nature was not immediately apparent. Appellant’s Brief at 11. Initially, we

note that Appellant does not dispute that Officer Cowdery had reasonable

suspicion that justified conducting a protective frisk.3   Instead, Appellant

contends that the “plain feel” doctrine did not justify the seizure of the

plastic baggies.

       “[T]he plain feel doctrine provides a police officer may properly seize

non-threatening contraband ‘plainly felt’ during a Terry frisk for weapons; in

such instances, ‘seizure [is] justified by the same practical considerations

____________________________________________


3
   We observe, even if Appellant challenged this issue, it is without merit.
Officer Cowdery had reasonable suspicion to conduct a protective frisk for
his safety. Officer Cowdery testified that Appellant had his hands in his
pockets when Officer Cowdery approached Appellant, and Appellant did not
respond to requests to remove his hands from his pockets. N.T., 7/24/13,
at 8-9. Officer Cowdery was conducting surveillance of the neighborhood in
response to a shooting earlier that day. Id. at 6. Therefore, Officer
Cowdery was justified in conducting a protective frisk for his safety. See
Commonwealth v. Hall, 713 A.2d 650, 653 (Pa. Super. 1998), reversed on
other grounds, 771 A.2d 1232 (Pa. 2001) (concluding “when [the defendant]
approached [police] 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”); Commonwealth v. Garcia, 661 A.2d 1388, 1392 n.11
(Pa. Super. 1995), appeal denied, 672 A.2d 304 (Pa. 1996) (noting the
defendant’s refusal to remove his hands from his pockets justifies a pat-
down search).



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that inhere in the plain-view context.’”    Commonwealth v. Pakacki, 901

A.2d 983, 985, n.1 (Pa. 2006), quoting Minnesota v. Dickerson, 508 U.S.

366, 375-376 (1993).        Our Supreme Court has explained the plain feel

doctrine.

             [A] police officer may seize non-threatening
             contraband detected through the officer’s sense of
             touch during a Terry frisk if the officer is lawfully in
             a position to detect the presence of contraband, the
             incriminating     nature   of    the    contraband    is
             immediately apparent from its tactile impression and
             the officer has a lawful right of access to the object.
             Dickerson, [supra] at 373–75[]. … [T]he plain feel
             doctrine is only applicable where the officer
             conducting the frisk feels an object whose mass or
             contour makes its criminal character immediately
             apparent. Immediately apparent means that the
             officer readily perceives, without further exploration
             or searching, that what he is feeling is contraband.
             If, after feeling the object, the officer lacks probable
             cause to believe that the object is contraband
             without conducting some further search, the
             immediately apparent requirement has not been met
             and the plain feel doctrine cannot justify the seizure
             of the object.

Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa. 2000) (some

internal    citations   omitted).     Notably,    the   immediately     apparent

determination “is essentially coextensive with a probable cause inquiry,

‘taking into account the totality of the circumstances surrounding the frisk,

including, inter alia, the nature of the object, its location, the conduct of the

suspect, the officer’s experience, and the reason for the stop.’” In re C.C.,

780 A.2d 696, 699 (Pa. Super. 2001) (citation omitted), appeal denied, 792

A.2d 1251 (Pa. 2001)..

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      Here, we conclude that the trial court did not err in finding that Officer

Cowdery properly seized the baggies pursuant to the plain feel doctrine. As

noted above, Officer Cowdery stopped Appellant under suspicion of being

involved in a narcotics transaction in an area where Officer Cowdery had

previously made narcotics arrests.      N.T., 7/24/13, at 6.     Following the

transaction, Officer Cowdery observed Appellant quickly transfer the small

objects he received in exchange for money to his pocket. Id. at 8. After

Officer Cowdery detained Appellant, Appellant would not remove his hands

from his pockets, despite Officer Cowdery asking him three times. Id. at 8-

9.   During the protective frisk, Officer Cowdery stated that he “felt in

[Appellant’s] right front pants pocket what appeared to be narcotics

packaging.”   Id. at 9.   Officer Cowdery further described them as small

bags, and he explained in his experience he was familiar with small bags

being used to package narcotics.     Id.   He testified that he had previously

conducted pat-downs where he felt similar objects through clothing that

contained narcotics. Id. Therefore, the incriminating nature of the baggies

was immediately apparent to Officer Cowdery based on his observations of

Appellant’s actions prior to the investigative detention and frisk, his

experience, and his tactile impression of the size and shape of the objects.

See In re C.C., supra

      Appellant contends that the incriminating nature of the bags could not

be immediately apparent to Officer Cowdery because plastic bags are


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innocuous.      Appellant’s Brief at 12-15.          Appellant’s argument is not

persuasive because he isolates the tactile impression from the surrounding

circumstances that led Officer Cowdery to believe that Appellant was

involved in a narcotics transaction. Id. at 15. He also attempts to isolate

the plastic material of the bags from the manner in which they were

packaged. Id. The cases Appellant relies on in his brief are distinguishable

because in those cases, the reasonable suspicion supporting the initial

detention was unrelated to an officer observing the appellant involved in a

suspected narcotics transaction.4          Moreover, in the cases Appellant cites,

either the objects felt were not immediately recognizable as contraband or

the search exceeded the scope of a Terry frisk.5           In the instant case, in

____________________________________________


4
   See Stevenson, supra at 1263-1264 (noting, in consolidated appeal,
police initially stopped appellants for motor vehicle code violations);
Commonwealth v. E.M., 735 A.2d 654, 657-658 (Pa. 1999) (stating one
juvenile appellant was originally detained by school security guard after
going under bleachers, and the other appellant, in an unrelated case
consolidated for appellate disposition, was stopped for displaying a sandwich
bag in proximity of suspected drug transaction in which appellant did not
participate); Commonwealth v. Guillespie, 745 A.2d 654, 656 (Pa. Super.
2000) (explaining appellant was initially stopped because officer thought he
fit the description of a suspect in a recent robbery); Commonwealth v.
Mesa, 683 A.2d 643, 645 (Pa. Super. 1996) (specifying appellant was the
passenger in a vehicle stopped for erratic driving); Stackfield, 651 A.2d
558, 560 (Pa. Super. 1994) (stating appellant was present in house on which
police executed a search warrant and was handcuffed while officers were
securing the premises and frisked shortly afterwards).
5
  See Commonwealth v. Stevenson, supra at 1265, 1267 (concluding
that incriminating nature of pill bottle, cigar, and cardboard packages was
not immediately apparent); Commonwealth v. E.M., supra at 658
(Footnote Continued Next Page)


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contrast, Officer Cowdery stopped Appellant under reasonable suspicion of

purchasing narcotics and conducted a lawful protective frisk, during which he

felt in Appellant’s pocket small items that he immediately recognized were

small plastic bags packaged in a way common in narcotics trafficking based

on his experience. The plain feel of the objects confirmed Officer Cowdery’s

suspicion that Appellant had engaged in a narcotics transaction. Therefore,

based on the totality of the above circumstances, we conclude that the

seizure of the small packages was proper under the plain feel doctrine

because their incriminating nature was immediately apparent to Officer

Cowdery. See Stevenson, supra at 1265; In re C.C., supra.

      Based on the foregoing, we conclude that the trial court properly

denied Appellant’s motion to suppress.              See Scarborough, supra.

Accordingly, the trial court’s July 24, 2013 judgment of sentence is affirmed.

      Judgment of sentence affirmed.


                       _______________________
(Footnote Continued)

(holding one officer exceeded scope of protective frisk as he admitted the
purpose of the search was to discover whether bag in appellant’s pocket
contained drugs and concluding the other officer, in consolidated case, did
not meet plain feel doctrine because he testified it was not immediately
apparent that bulge in appellant’s pocket was contraband); Commonwealth
v. Guillespie, supra at 659 (concluding the scope of a Terry frisk was
exceeded because the incriminating nature of the items in appellant’s pocket
was not immediately apparent); Commonwealth v. Mesa, supra at 648
(holding the bulge in appellant’s pocket was not immediately recognized as
contraband); Commonwealth v. Stackfield, supra at 562 (concluding that
a zip-lock baggie was not immediately identifiable as contraband).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2015




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