J-S67012-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

EDWARD ROMAN GARZA,

                            Appellant                No. 661 MDA 2015


            Appeal from the Judgment of Sentence March 11, 2015
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0000460-2014


BEFORE: BOWES, PANELLA, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED JANUARY 19, 2016

       Edward Roman Garza appeals from his March 11, 2015 judgment of

sentence of three to ten years imprisonment imposed after he was found

guilty of two counts of possession with intent to deliver (“PWID”) (heroin and

cocaine).    He challenges the trial court’s denial of his motion to suppress

evidence obtained as a result of a Terry frisk. We affirm.

       The facts, as gleaned from the record, are summarized as follows. 1 At

11:30 p.m. on November 12, 2013, a white Ford Explorer was proceeding

westbound on Route 30. It was the third of four vehicles traveling twenty
____________________________________________


1
 The entire traffic stop was videotaped from a dashboard camera located on
Trooper Long’s cruiser that commenced recording when the vehicle’s lights
were activated. The trial court viewed the video prior to ruling on the
suppression motion.


*
    Retired Senior Judge assigned to the Superior Court.
J-S67012-15



miles in excess of the posted speed limit in front of a Pennsylvania State

Police cruiser occupied by Trooper Nicholas Long and Trooper Jared Fluck.

The Ford Explorer drew the troopers’ particular attention when, in addition to

speeding, it swerved several times over the fog line and center line and then

made a right turn from a non-turning lane onto Route 896, both of which

constitute violations of the Motor Vehicle Code.        Having witnessed three

Motor Vehicle Code violations, Trooper Long decided to pull over the vehicle.

        Trooper Long approached the driver’s side of the vehicle and Trooper

Fluck stationed himself at the passenger side.        Trooper Long smelled the

scent of air fresheners as he neared the vehicle. The driver2 was unable to

provide a license, registration, or insurance card. However, he did comply

with Trooper Long’s request that he write down his identification. Trooper

Long questioned the driver about where they had been. Appellant, the front

seat passenger, responded that they were coming from the Tanger Outlets,

a response that aroused the troopers’ suspicion because the Outlets had

been closed for two hours and the vehicle was traveling toward the Outlets

rather than away from them.

        Trooper Long was unable to locate information on the driver.

Eventually, the driver admitted that he had provided a false name because

his license was suspended.          Appellant, together with his brother Michael
____________________________________________


2
    The record does not contain the identity of the driver.



                                           -2-
J-S67012-15



Garza, the rear-seat passenger, produced identification upon the troopers’

request. After checking all three names, Trooper Long ascertained that the

driver had three active traffic warrants; Appellant’s brother had two.   All

three had criminal histories.   Appellant had prior drug paraphernalia and

theft charges and his brother had numerous charges, including PWID.

     Based on the foregoing circumstances, Trooper Long asked the driver

to step outside of the car and he questioned him again about where they

had been. The driver advised that they were coming from Quarryville, which

the trooper did not believe, since the vehicle had been proceeding

westbound and Quarryville was located southwest of their location.

     Trooper Jeffrey Swope arrived at the scene shortly after Trooper Long

requested a K-9 dog for a vehicle sniff. Trooper Long asked the driver for

permission to search the car and the driver consented. All three occupants

were directed to exit the vehicle.   Trooper Long testified that he normally

would request permission to do a pat down for weapons and Trooper Swope

confirmed that a pat down would increase the safety of the K-9 trooper that

would have its back to the occupants during a sniff. When Appellant stood

next to the guardrail, Trooper Swope observed a rectangular bulge in his

pants near his groin that appeared to be the slide of a gun. Trooper Swope

grabbed the bulge and immediately knew it was not a firearm but a package

of many individual baggies, which contained drugs.      He believed it was

heroin.   When he confronted Appellant with “This is heroin,” Appellant

                                     -3-
J-S67012-15



denied it and responded that the trooper was touching a particular part of

his body.    N.T. Suppression Hearing, 1/12/15, at 45.        When the trooper

insisted, Appellant admitted that it was heroin and a black plastic bag fell

from his pants. It was later confirmed that the baggies contained heroin and

cocaine.

      Appellant conceded that the traffic stop was lawful, but filed a motion

to suppress based on a lack of reasonable suspicion of a weapon to justify a

pat-down search. A hearing was held on January 12 and 13, 2015. The trial

court denied the motion and Appellant proceed to a non-jury trial that day.

The court found him guilty of the aforementioned charges and sentenced

him as aforesaid on March 11, 2015.

      Appellant timely appealed and complied with the trial court’s order to

file a Pa.R.A.P. 1925(b) concise statement of issues complained of on

appeal. On May 29, 2015, the trial court penned its Rule 1925(a) opinion,

and this matter is ripe for disposition. Appellant’s sole contention on appeal

is that the trial court erred “in denying [his] motion to suppress when the

police performed a weapons frisk on a passenger of a vehicle at the scene of

a traffic stop pursuant to a standardized policy and not pursuant to

reasonable suspicion based on particularized facts.” Appellant’s brief at 4.

      In reviewing the denial of a suppression motion, our standard of

review is limited to whether the record supports the trial court’s factual

findings    and   whether   the   legal   conclusions   are   free   from   error.

                                      -4-
J-S67012-15



Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa.Super. 2014). In making

that determination, we consider only the evidence of the party that prevailed

before the suppression court, herein the Commonwealth, and so much of the

evidence for the defense that remains uncontradicted when read in the

context of the suppression record as a whole. Id. Where the suppression

court’s factual findings are supported by the record, we are bound by them.

Id. If the alleged error involves a legal issue, the suppression court’s legal

conclusions are not binding on this Court, and we will determine whether the

court properly applied the law to the facts.

      The issue herein is whether the pat-down search for weapons was

justified under the circumstances. “When an officer is justified in believing

that the individual whose suspicious behavior he is investigating at close

range is armed and presently dangerous to the officer or to others,” the

officer may conduct a pat down search "to determine whether the person is

in fact carrying a weapon."    Terry v. Ohio, 392 U.S. 1, 30 (1968). "The

purpose of this limited search is not to discover evidence of crime, but to

allow the officer to pursue his investigation without fear of violence."

Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa.Super. 2011) (quoting

Adams v. Williams, 407 U.S. 143, 146 (1972)).         Such pat-downs, which

are permissible "without a warrant and on the basis of reasonable suspicion

less than probable cause, must always be strictly limited to that which is

necessary for the discovery of weapons" that might present a danger to the

                                     -5-
J-S67012-15



officer or those nearby.      Commonwealth v. Parker, 957 A.2d 311, 315

(Pa.Super. 2008).     When an appellate court is examining the validity of a

pat-down search, “we examine the totality of the circumstances . . . giving

due consideration to the reasonable inferences that the officer can draw

from   the   facts   in   light   of   his    experience,   while   disregarding   any

unparticularized suspicion or hunch.”              Id. (quoting Commonwealth v.

Wilson, 927 A.2d 279, 284 (Pa.Super. 2007)).

       Preliminarily, Appellant argues that it was during the course of the

unlawful frisk that Trooper Swope observed a rectangular bulge in

Appellant’s groin area and that the suppression court had no basis for its

factual finding that the Trooper observed the suspicious bulge prior to the

frisk. The record refutes that contention. Trooper Swope testified that, prior

to patting down Appellant, he looked Appellant up and down to see if he

noticed any bulges in his pockets.            He observed a rectangular bulge that

looked like the slide of a gun toward the groin of his pant.             The trooper

testified that he thought the bulge was a gun. He immediately grabbed it

and realized at once that it was not a gun, but individual baggies that he

believed to be heroin.      When he confronted Appellant with his suspicions,

Appellant initially denied the accusation and insisted that it was a part of his

anatomy.




                                             -6-
J-S67012-15



      The suppression court specifically credited Trooper Swope’s testimony

that he looked Appellant up and down prior to patting him down and noted

a rectangular bulge in his groin area beside his leg and extending to the

groin, which he believed to be the slide of a firearm.      Thus, the record

supports the trial court’s factual findings, and we are bound by them.

      Appellant’s primary contention is that the pat down for weapons

violated his Fourth Amendment rights because the state troopers had no

reasonable suspicion that he was armed and dangerous but conducted the

weapons search pursuant to a standard policy. In support of that position,

Appellant points to Trooper Swope’s testimony that he always pats down a

suspect when he removes him from the car prior to conducting a search.

Appellant maintains that since the trooper intended to pat him down before

he saw a suspicious bulge, the frisk was unjustified. We find no merit in this

position.

      “Reasonable suspicion to conduct a pat down search is based upon an

objective standard, not subjective intent.” Commonwealth v. Foglia, 979

A.2d 357, 361 (Pa.Super. 2009).      In Foglia, we relied upon the United

States Supreme Court’s reasoning in Scott v. United States, 436 U.S. 128,

138-39 n.13 (1978), that "[w]hether a Fourth Amendment violation has

occurred 'turns on an objective assessment of the officer's action in light of

the facts and circumstance confronting him at the time' and not the officer's

actual state of mind at the time the challenged action was taken.” The issue

                                    -7-
J-S67012-15



is whether a reasonably prudent man in the circumstances would be

warranted in the belief that his safety or that of others was in danger.

Commonwealth v. Mack, 953 A.2d 587 (Pa.Super. 2008).

      This was a valid investigatory stop.   In examining the totality of the

circumstances, we note the following.      It was late at night.   The driver

provided a false name to police and he and Appellant gave conflicting

information regarding their whereabouts.        All three men had criminal

histories. Since the driver had consented to a search of the vehicle, either a

trooper or a K-9 officer would have his back to the occupants while

conducting the search. Most importantly, Trooper Swope observed what he

believed to be the slide of a firearm in Appellant’s groin area.          See

Commonwealth v. Graham, 721 A.2d 1075 (Pa. 1998) (early morning

frisk for weapons justified where single police officer had to turn his back on

two individuals to arrest a third for an outstanding warrant and officer

observed a bulge in one of the individual’s pockets consistent with a

weapon); see also Commonwealth v. Davis, 102 A.3d 996 (Pa.Super.

2014) (holding reasonable a frisk of individual standing over unconscious

victim where it was 2:00 a.m. in a high crime area and individual had a

heavy object in his breast pocket). Since the trooper was able to articulate

specific facts from which he reasonably believed that Appellant was armed

and dangerous, the pat down for weapons to ensure officer safety was

justified.   See Commonwealth v. E.M./Hall, 735 A.2d 654 (Pa. 1999);

                                     -8-
J-S67012-15



Commonwealth v. Wilson, 927 A.2d 279, 284 (Pa.Super. 2007). No relief

is due.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2016




                                  -9-
