J-A24015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FREDDIE KING

                            Appellant                No. 2080 EDA 2014


             Appeal from the Judgment of Sentence June 26, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000712-2014

BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                       FILED NOVEMBER 23, 2015

        Appellant, Freddie King, appeals from the judgment of sentence

entered June 26, 2014, in the Court of Common Pleas of Philadelphia

County. No relief is due.

        We take the underlying facts in this matter from the trial court’s Rule

1925(a) opinion.

                On December 19, 2013, shortly after 7:00 p.m.,
        Philadelphia Police Officers Devon Chadderton and his partner,
        Officer Ryan Hamill, were on foot patrol in the area of 57 th and
        Hoffman Streets in Philadelphia, when they observed [King]
        approximately twenty feet away riding a bicycle south on 57th
        Street.    Officer Chadderton described the neighborhood as
        having a high rate of gun, drug, and gang violence. At the time,
        [King] had a dog on a leash trailing behind him as he rode down
        the street. The officers observed [King] dragging the dog “like
        literally head over heels until [the dog] could regain its own
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        balance….” Instead of stopping after the dog stumbled, [King]
        continued pedaling and dragged the dog behind him for
        approximately thirty yards before the animal was able to regain
        its footing.
               Based upon their observations the two officers followed
        [King] to cite him for cruelty to animals. [King] proceed to a
        residence on Ashland Avenue, where the officers saw him
        standing on the porch. The officers asked him if he had been
        riding a bicycle and if he had a dog.          [King] responded
        affirmatively at which time the officers asked [King] to speak to
        them. Officer Chadderton saw that [King] had blood on his lip
        and smelled of alcohol.

               As he approached the officers [King] did so hesitantly with
        his body at a forty-five degree angle as if to hide something or
        as if he was about to flee. Based upon these observations, the
        officers asked [King] to exit the fence that surrounded the
        property.

               [King] complied with the officers’ request and produced his
        identification card. Based on their observations, the officers
        asked [King] to place his hands on the fence so that they could
        perform a pat down of his clothing for their safety. Prior to
        conducting the frisk, [King] was asked if he was armed. [King]
        admitted that he had a gun in his pocket. Officer Chadderton
        then observed a gun in [King’s] pocket and immediately
        confiscated it.

Trial Court Opinion, 11/10/14 at 2-3.

        King was subsequently arrested and charged with carrying a firearm

without a license, carrying a firearm on a public street, and cruelty to

animals.1 Prior to trial, King filed a motion to suppress physical evidence,

which the trial court denied. Following a bench trial, the trial court convicted

King of all charges. The trial court sentenced King to an aggregate term of

11½ to 23 months in prison. This timely appeal followed.
____________________________________________


1
    18 Pa.C.S.A. §§ 6106, 6108, and 5511, respectively.



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      King raises the following issues for our review.

      1. Where police stopped appellant on his porch in order to issue
         a citation for a non-violent summary offense, and appellant
         behaved cooperatively throughout the detention, was he not
         unconstitutionally frisked as police lacked reasonable
         suspicion that he was armed and dangerous?

      2. Where appellant, after having complied with a police order to
         place his hands against a fence, was asked by an officer if he
         had a weapon, did not his affirmative response constitute
         mere acquiescence to the officer’s authority rather than
         consent to be frisked?

Appellant’s Brief at 3.

      We review the denial of a motion to suppress physical evidence as

follows.

           Our standard of review in addressing a challenge to a trial
           court’s denial of a suppression motion is limited to
           determining whether the factual findings are supported by
           the record and whether the legal conclusions drawn from
           those facts are correct.

           [W]e may consider only the evidence of the prosecution
           and so much of the evidence for the defense as remains
           uncontradicted when read in the context of the record as a
           whole. Where the record supports the findings of the
           suppression court, we are bound by those facts and may
           reverse only if the court erred in reaching its legal
           conclusions based upon the facts.

           Further, [i]t is within the suppression court’s sole province
           as factfinder to pass on the credibility of witnesses and the
           weight to be given their testimony.

Commonwealth v. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal

citations and quotations omitted).

      The suppression court’s factual findings are supported by the record.

We therefore proceed to examine the propriety of the suppression court’s

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legal conclusions.    Preliminarily, we note that King does not challenge the

constitutionality of his detention. See Appellant’s Brief at 14 n.4. Rather,

he argues that the police lacked reasonable suspicion to conduct a valid

frisk. We disagree.

             We observe that—in this case—the issue of when the
      “frisk” began is a pure question of law. See, e.g.,
      Commonwealth         v.   Collins,   950    A.2d    1041,    1046
      (Pa.Super.2008) (en banc) (determination of whether a
      police/citizen interaction was a “mere encounter” or an
      “investigative detention” is a question of law); see also
      Crawford Cent. Sch. Dist. v. Commonwealth, 585 Pa. 131,
      888 A.2d 616, 620 (2005) (“[s]ince the facts are undisputed, we
      are left with a question of law”). Therefore, with respect to this
      issue, our standard of review is de novo and our scope of review
      is plenary. Commonwealth v. Bullock, 590 Pa. 480, 913 A.2d
      207, 212 (2006).

      As our Supreme Court has explained:

         It is well-established that a police officer may conduct a
         brief investigatory stop of an individual if the officer
         observes unusual conduct which leads him to reasonably
         conclude that criminal activity may be afoot. Moreover, if
         the officer has a reasonable suspicion, based on specific
         and articulable facts, that the detained individual may be
         armed and dangerous, the officer may then conduct a frisk
         of the individual’s outer garments for weapons. Since the
         sole justification for a Terry search is the protection of the
         officer or others nearby, such a protective search must be
         strictly limited to that which is necessary for the discovery
         of weapons which might be used to harm the officer or
         others nearby. Thus, the purpose of this limited search is
         not to discover evidence, but to allow the officer to pursue
         his investigation without fear of violence.

      Commonwealth v. Stevenson, 560 Pa. 345, 744 A.2d 1261,
      1264–1265 (2000) (internal citations and quotations omitted).

Commonwealth v. Clemens, 66 A.3d 373, 381 (Pa. Super. 2013).


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      Instantly, the undisputed facts reveal that although King did indeed

cooperate     with   Officer   Chadderton’s   orders   to   approach   and   show

identification, his hesitant manner in doing so led the officer to believe that

King was about to flee. King’s behavior, coupled with the fact that the stop

occurred in a high crime area, led the officer to conclude that it was

necessary to conduct a frisk to ensure his safety. It is important to note,

however, that the frisk did not commence the moment Officer Chadderton

ordered King to place his hands on the fence so that he could perform the

pat down.


      Indeed, by its very definition, the term “frisk” requires tactile
      contact. See BLACK’S LAW DICTIONARY 692 (8th ed.2004) (defining
      a “frisk” as “[a] pat-down search to discover a concealed
      weapon.—Also termed pat-down.”) (emphasis added) (italics in
      original); MERRIAM–WEBSTER’S COLLEGIATE DICTIONARY 502 (11th
      ed.2003) (defining the noun “frisk” as “an act of frisking” and
      the transitive verb “frisk” as “to search (a person) for something
      (as a concealed weapon) by running the hand rapidly over the
      clothing and through the pockets”); see also Terry [v. Ohio,
      392 U.S. 1, 24–25, 88 S.Ct. 1868 (1968)] (defining a frisk as an
      officer’s “carefully limited search of the outer clothing of [an
      individual] in an attempt to discover weapons which might be
      used to assault [the officer];” further reasoning that an officer's
      justification for a “Terry frisk” must be greater than—or, at
      least, in addition to—that required for a “Terry stop” because a
      frisk is more intrusive than a detention).

Id. at 382.

      What occurred here is that immediately prior to conducting the frisk,

Officer Chadderton asked King if he possessed a weapon, to which King

responded in the affirmative. At this point, Officer Chadderton certainly had

reasonable suspicion to conduct the ensuing protective search for the

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discovery of weapons.2        See id. at 382 (“[I]f the officer has a reasonable

suspicion, based on specific and articulable facts, that the detained individual

may be armed and dangerous, the officer may then conduct a frisk of the

individual's outer garments for weapons.”).       As King’s admission provided

Officer Chadderton with the requisite reasonable suspicion to conduct the pat

down, it is simply irrelevant whether the admission amounted to consent to

the search or “mere acquiescence to police authority.” Appellant’s Brief at

13.   Accordingly, we find no error in the lower court’s denial of King’s

suppression motion.

       Judgment of sentence affirmed.

       Judge Wecht joins the memorandum.

       Judge Strassburger files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2015




____________________________________________


2
  We reiterate that King does not contest the constitutionality of his
detention. His argument on appeal focuses solely on the legality of the frisk.



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