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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    QUONZELL LEE                               :
                                               :
                      Appellant                :   No. 658 EDA 2016

            Appeal from the Judgment of Sentence February 19, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007635-2015



BEFORE: OTT, SOLANO, and JENKINS, JJ.

MEMORANDUM BY OTT, J.:                                    FILED MAY 19, 2017

        Quonzell Lee appeals from the judgment of sentence entered on

February 19, 2016, in the Philadelphia County Court of Common Pleas. On

December 16, 2015, the trial court, sitting without a jury, found Lee guilty of

possession with intent to deliver (“PWID”) and possession of a controlled

substance.1      The court sentenced Lee to a term of two to four years’

incarceration, followed by a term of four years’ probation. The sole issue on

appeal is Lee’s contention that the trial court erred in denying his

suppression motion.        After a thorough review of the submissions by the




____________________________________________


1
     35 P.S. §§ 780-113(a)(30) and (a)(16), respectively.
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parties, the certified record, and relevant law, we affirm the judgment of

sentence.

     The trial court set forth the factual history as follow:

           On the evening of July 11, 2015, at approximately 7:50
     p.m., Police Officer Jeffrey Opalski #7122 was on duty in the
     area of North 77th Street and Overbrook Avenue along with his
     partner, Officer D’Alesio #1521. While driving in their marked
     patrol vehicle, the two uniformed officers observed [Lee], who
     was the sole occupant and operator of a red Ford Taurus,
     disregard a stop sign. The officers pulled behind [Lee]’s vehicle
     and, prior to the officer’s activating their overhead lights,
     observed [Lee] proceed northbound on 77th Street at a high rate
     of speed. [Lee] cut through a parking lot and exited at 7700
     City Avenue. The officers activated their overhead lights and
     attempted to catch up with [Lee]’s vehicle. [Lee] pulled over in
     a bank parking lot at 77th and Overbrook.

            Officer Opalski approached [Lee]’s vehicle on the
     passenger’s side and observed that [Lee] had small black rubber
     bands on his right ha[n]d and a wad of cash in his right shorts
     pocket. Upon requesting [Lee]’s paperwork, Office[r] Opalski
     observed [Lee] trembling, breathing heavily, and visibly shaking.
     Officer Opalski testified that he recognized the rubber bands as
     comparable to those used to bundle heroin. After reviewing the
     paperwork, the officers learned that the car was a rental. The
     officers asked [Lee] to step out of the car and Officer Opalski
     performed a frisk for safety. [Officer] Opalski testified that,
     based on [Lee]’s nervousness, the rubber bands, and money,
     there was a “possibility of a weapon in the vehicle.”

           Upon frisking [Lee]’s left short pocket, Officer Opalski
     immediately recognized the item contained within as a bundle of
     heroin. At that point, [Lee] admits that he has a small amount
     of drugs on him. The Officer recovered a bundle of heroin and
     placed [Lee] in custody.

           Officer Opalski testified that the area where he initially
     observed [Lee] is a “high narcotics area, specifically heroin.” He
     further noted, that, as a result of the high drug volume, there
     are nearby “shootings all the time, robberies, stuff involving
     guns.”

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Trial Court Opinion, 5/13/2016, at unnumbered 1-2 (record citations

omitted).

       Lee was arrested and charged with numerous offenses related to the

incident.   On September 9, 2015, he filed a pre-trial motion to suppress

physical evidence as well as his statements to police. The trial court held a

hearing and denied the motion on October 22, 2015. The matter proceeded

to a one-day bench trial on February 16, 2016, at which time the court

convicted Lee of the above-stated crimes. On February 19, 2016, the court

sentenced Lee to a term of two to four years’ incarceration, followed by four

years’ of probation for the PWID conviction.       The court did not impose a

further penalty with regard to the possession offense. Lee did not file post-

sentence motions but did file a timely notice of appeal.2

       In his sole issue on appeal, Lee asserts the trial court erred in denying

his motion to suppress. See Lee’s Brief at 9. Specifically, he states:

       Legally, the facts support neither the officer’s frisk of Mr. Lee for
       weapons because the officer’s belief that Mr. Lee was armed and
       dangerous was not reasonable, nor the search of the left pocket
       of Mr. Lee’s shorts under the plain feel doctrine. Given the
       officer’s illegal actions, the subsequent search of the car Mr. Lee
       was driving, which resulted in the discovery of additional drugs,
       was likewise unconstitutional.
____________________________________________


2
    On February 29, 2016, the trial court ordered Lee to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Lee filed a concise statement and supplemental concise statement on March
21, 2016, and April 15, 2016, respectively. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on May 13, 2016.



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Id. at 10.   In support of his contention that the facts do not support an

inference of reasonable suspicion, Lee points to the following:

             In this case, police stopped Mr. Lee for traffic violations on
      a summer evening. Two officers approached Mr. Lee, who was
      the sole occupant in the car. Mr. Lee provided identification to
      police. He visibly had money in the right pocket of his shorts
      and he had rubber bands around his fingers. The officer testified
      that he frisked Mr. Lee because of the rubber bands (which the
      officer testified were used to package drugs), the money, Mr.
      Lee appeared nervous, and the stop occurred in a high drug
      area.

                                       …

             The [trial] court heard no testimony about the officer’s
      experience, other than the officer’s reference that the rubber
      bands he saw around Mr. Lee’s fingers were used to bundle
      drugs. Rubber bands have legal uses, as does money. There
      was only a reference by the officer that the area where Mr. Lee
      was stopped was a high drug area. Yet, there was no specificity
      about the area. There was no testimony how the officer knew
      the area was a high drug area. No information came forth about
      drug arrests in the area, or any drug surveillance that the
      testifying officer observed, or any arrests that he made. Lastly,
      Mr. Lee’s nervousness could be attributed to being pulled over
      by police in an area known for drugs. The mere presence of
      police in an area known for drugs can create the type of behavior
      regarded as suspicious here. No fact in the record individually or
      under the totality of the circumstances gave the officer
      reasonable suspicion to frisk Mr. Lee. The frisk was improper.

Id. at 11-12 (footnote omitted). Furthermore, Lee argues that even if the

frisk was proper, it exceeded the lawful scope of Terry v. Ohio, 392 U.S. 1

(1968), because it was not immediately apparent to the officer that the

object he felt in Lee’s pocket was contraband.      See Lee’s Brief at 13. He

states the officer just made a general statement regarding what he felt


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during the frisk and “the only evidence of Officer Opalski’s experience about

narcotics was that the rubber bands he noticed around Mr. Lee’s fingers are

used to bundle drugs[,]” which Lee claims is insufficient. Id. Lee concludes,

“As the pat-down of Mr. Lee failed to establish probable cause to establish

that he was carrying identifiable contraband, all of the evidence that flowed

from the illegal search should have been suppressed as fruit of the

poisonous tree.” Id. at 14.

      Our standard of review for a challenge to the denial of a motion to

suppress evidence is well settled:

      In reviewing a ruling on a suppression motion, our standard of
      review is whether the factual findings and the legal conclusions
      drawn therefrom are supported by the evidence. We are bound
      by the factual findings of the suppression court supported by the
      record, but we are not bound by the suppression court’s legal
      rulings, which we review de novo. Further, the reviewing court
      may consider only the Commonwealth’s evidence and so much of
      the evidence for the defense as remains uncontradicted when
      read in the context of the entire record.

Commonwealth v. Irvin, 134 A.3d 67, 71 (Pa. Super. 2016) (citations

omitted). Moreover, our scope of review from a suppression ruling is limited

to the evidentiary record that was created at the suppression hearing. In re

L.J., 79 A.3d 1073, 1086 (Pa. 2013).

      The Fourth Amendment of the United States Constitution guarantees,

“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated[.]”

U.S. Const. amend. IV.    Likewise, the Pennsylvania Constitution promises


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citizens of this Commonwealth “shall be secure in their persons, houses,

papers and possessions from unreasonable searches and seizures[.]”          Pa.

Const. art. I, § 8.   Furthermore, “[t]he reasonableness of a government

intrusion varies with the degree of privacy legitimately expected and the

nature of the governmental intrusion.” Commonwealth v. Fleet, 114 A.3d

840, 844 (Pa. Super. 2015) (citation omitted).

      It is well-settled that a “forcible stop of a motor vehicle by the police

constitutes a second-level seizure, or ‘investigative detention,’ triggering the

constitutional protections of the Fourth Amendment.”       Commonwealth v.

Clinton, 905 A.2d 1026, 1030 (Pa. Super. 2006) (quotation omitted),

appeal denied, 934 A.2d 71 (Pa. 2007). Moreover, during a routine traffic

stop, a police officer may order the driver out of the vehicle for the officer’s

safety. See Commonwealth v. Reppert, 814 A.2d 1196, 1202 (Pa. Super.

2002).    However, before an officer may frisk a driver, the Fourth

Amendment requires another level of protection:

      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.

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

(citations omitted), appeal denied, 102 A.3d 985 (Pa. 2014). Furthermore,

     [a]n overt threat by the suspect or clear showing of a weapon is
     not required for a frisk. It is well-established that “[t]he officer
     need not be absolutely certain that the individual is armed; the
     issue 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, 591 (Pa. Super. 2008) (citations

omitted).

     Additionally, we note that “[w]eapons found as a result of [a Terry]

pat-down may be seized. Nonthreatening contraband may be seized only if

it is discovered in compliance with the plain feel doctrine.” Commonwealth

v. Thompson, 939 A.2d 371, 376 (Pa. Super. 2007), appeal denied, 956

A.2d 434 (Pa. 2008).

            [The United States Supreme Court in Minnesota v.
     Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334
     (1993)] held that a police officer may seize nonthreatening
     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. As
     Dickerson makes clear, the 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.

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

citations omitted).

      Here, the trial court found Officer Opalski possessed the requisite

reasonable suspicion that Lee might be armed and dangerous.         The court

opined:

            Officer Opalski had reasonable suspicion to frisk [Lee] in
      the present matter because: (1) [Lee] fled at [a] high rate of
      speed in response to the officer’s presence; (2) the frisk
      occurred in a high-crime area known for heroin trafficking and
      gun violence; (3) [Lee] behaved suspiciously upon questioning
      by the police; and (4) [Lee] had small black rubber bands on his
      wrist and an observable wad of cash in his pocket.

                                      …

             Officer Opalski’s stop and frisk of [Lee] was proper as he
      had reasonable suspicion that [Lee] was armed and dangerous.
      Several factors would lead a person to reasonably believe [Lee]
      was armed and that criminal activity was afoot. Officer Opalski
      encountered [Lee] after he disregarded a stop sign in an area
      the officer personally knew to be a high crime neighborhood,
      specifically known for heroin trafficking and gun violence. As
      soon as the police vehicle pulled behind [Lee]’s car, [Lee] sped
      off at a high rate. Once [Lee] finally pulled over, Officer Opalski
      observed [Lee] behaving suspiciously. He testified that [Lee]
      was excessively nervous, as indicated by the fact that his voice
      was trembling, he was breathing heavily and was visibly shaking
      when he handed over his paperwork. Further, the officer also
      observed small black rubber bands on [Lee]’s hand, which he
      immediately recognized as those used to bundle heroin, and a
      large wad of cash in his pocket.

            In the instant case, it is clear from the totality of
      circumstances that Officer Opalski reasonably believed his safety
      was in danger. The court does not view the situation as an
      ordinary citizen might, but focuses rather, on the circumstances
      as seen through the eyes of the trained law enforcement officer.
      The defendant’s irregular behavior alone would be insufficient to

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       justify the frisk. However, the officer here had particularized
       knowledge of the types of crime[s] committed in this area,
       observed indications of drug activity afoot, and witnessed [Lee]
       attempt to flee from the police. The officer understood the
       nexus between drug activity and gun violence in this specific
       neighborhood. There was an objective basis for suspecting both
       that [Lee] was in the act of committing a drug crime and a
       reasonable belief that he was armed and dangerous.

Trial Court Opinion, 5/13/2016, at unnumbered 3-5 (citations omitted).

       Based on the totality of the circumstances, we find no error in the trial

court’s analysis.     Initially, we note Lee concedes Officer Opalski observed

Lee’s vehicle failing to stop at a stop sign on July 11, 2015, and therefore,

the stop pursuant to a Motor Vehicle Code violation was proper.3 Moreover,

Lee’s argument conveniently fails to include the fact that he led the police on

a high speed chase after police attempted to stop him for the traffic

violation. Furthermore, as the officer testified: (1) the incident took place

in a high crime area; (2) Lee had small black rubber bands on his right hand

and a wad of cash in his right shorts pocket; and (3) Lee was trembling,

breathing heavily, and visibly shaking. We reiterate the purpose of a Terry

frisk is to protect the police officer conducting the investigation.       See

Scarborough, 89 A.3d at 683. One can easily conclude that based on the

combination of the above-stated facts, Officer Opalski possessed reasonable

suspicion to believe Lee was armed and dangerous. See In Re D.M., 781

A.2d 1161, 1164 (Pa. 2001) (“unprovoked flight in a high crime area is
____________________________________________


3
    See Lee’s Brief at 11 n.2.



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sufficient to create a reasonable suspicion to justify a Terry stop”);4

Commonwealth v. Gray, 896 A.2d 601, 606 n.7 (Pa. Super. 2006) (“while

nervous behavior is a relevant factor, nervousness alone is not dispositive

and must be viewed in the totality of the circumstances”); Commonwealth

v. Washington, 51 A.3d 895, 898 (Pa. Super. 2012) (“nervous, evasive

behavior and headlong flight all provoke suspicion of criminal behavior in the

context of response to police presence”).

       To the extent, Lee argues there was no testimony about Officer

Opalski’s experience, other than the officer’s reference that the rubber bands

he saw around Lee’s fingers were used to bundle drugs, we note this Court is

“guided by common sense concerns, giving preference to the safety of the

officer during an encounter with a suspect where circumstances indicate that

the suspect may have … a weapon.” Commonwealth v. Mack, 953 A.2d at

590. Furthermore, with respect to Lee’s claim that there was no testimony

regarding how the officer knew the area was a high drug area, including the

number of drug arrests in the area, any drug surveillance the officer had

observed, or any arrests that he made,5 it merits mention that Lee cites no

law for the suggestion that an officer must make a certain number of arrests
____________________________________________


4
   An earlier version of the Pennsylvania Supreme Court’s decision was
vacated by the United States Supreme Court. See Commonwealth v.
D.M., 743 A.2d 422 (Pa. 1999) (“D.M. I”), vacated, Pennsylvania v. D.M.,
529 U.S. 1126 (2001).
5
    See Lee’s Brief at 11-12.



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before one may conclude a perpetrator is present in a high crime area.

Likewise, our own review has failed to reveal any such case law.

Accordingly, we discern no abuse on the trial court’s part of finding Officer

Opalski’s testimony credible.6

       Lastly, with regard to Lee’s argument that even if the frisk was proper,

it exceeded the proper scope of Terry, supra, because it was not

immediately apparent to the officer that the object he felt in Lee’s pocket



____________________________________________


6
  Nevertheless, we do note Officer Opalski’s familiarity and experience with
the area, testifying to the following:

       Q.   When you initially observed [Lee] on 77th Street and
       Overbrook Avenue, were you familiar with that area?

       A. Yes.

       Q. What is that area like? How would you characterize it?

       A. High narcotics area, specifically heroin. Just being in close
       proximity to the counties, these sales are made mostly by either
       buyers coming in and meeting up on side streets with someone
       in a vehicle or someone in a house, or the reverse, where the
       bundles are taken outside the city and sold right in the counties
       right on the outskirts of Philadelphia.

       Q. Because of the high drug volume, as you just mentioned, are
       there any other crimes or anything else in that area that you’re
       aware of?

       A. Yeah, up on 75th Avenue, Hartford, shootings all the time,
       robberies, stuff involving guns.

N.T., 10/22/2015, at 10.



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was contraband,7 we disagree.           Officer Opalski specifically testified:   “He

stepped out of the vehicle and I immediately frisked that left short pocket of

his, the mesh pocket. Just from feeling it, right away I recognized there was

a bundle of heroin.” N.T., 10/22/2015, at 9. As such, in accordance with

Stevenson, supra, Officer Opalski’s search and seizure of Lee’s person was

justified and not outside the scope of Terry, supra.           The officer explicitly

testified that it was immediately apparent to him that the object in Lee’s

pocket was contraband.          Accordingly, Lee is not entitled to relief on his

suppression claim.

       Judgment of sentence affirmed.

       Judge Jenkins did not participate in the consideration or decision of

this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2017




____________________________________________


7
    See Lee’s Brief at 13.



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