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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

KHYREE GARDENHIRE

                        Appellant                 No. 1598 WDA 2016


        Appeal from the Judgment of Sentence September 27, 2016
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0003073-2016


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                    FILED DECEMBER 12, 2017

     Khyree Gardenhire appeals from the September 27, 2016 judgment of

sentence of three to six months imprisonment imposed following his bench-

trial convictions for possession of a controlled substance with intent to

deliver (“PWID”) and possession of a controlled substance. We affirm.

     The trial court succinctly summarized the facts adduced at the

suppression hearing as follows:

     [At approximately 7:00 p.m.] on November 17, 2015, Detective
     Joseph Brown, and his partner, Detective Robinson, entered an
     establishment known as Red's [Ringside Café] on Warrington
     Avenue, Pittsburgh, PA, to apprehend a suspect wanted under an
     active arrest warrant and who fit the description given by
     another detective. (N.T., [9/27/16, at] 5) Upon entering,
     Detective Brown observed two males sitting next to each other
     within several feet of the entrance of the door. ([Id. at] 5) One
     male fit the description for the arrest warrant, and the other
     male was Appellant who was wearing a ski mask [covering his
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     face]. ([Id.]) Once the detectives approached the men, the man
     who fit the arrest warrant description spontaneously uttered, "I
     have a gun[.]" ([Id. at 5-6]). Thereafter, Detective Robinson
     began to frisk [that] suspect for firearms.

           At that point, Detective Brown observed Appellant, with his
     hand in his pocket, clenching on an unknown object. ([Id. at] 6)
     Furthermore, Detective Brown testified to the fact that the
     establishment is located in a high-crime area, for it was well
     known that the establishment had a history of violence. ([Id. at]
     7) Due to this circumstance and because Detective Brown feared
     for his safety, he said to Appellant, "Sir, get your hand out of
     your pocket. Take your hands out. Let me see your hands." ([Id.
     at] 6) Appellant then removed his left hand from his pocket[,
     holding “89 stamp bags of heroin.”] ([Id].) At that time,
     Detective Brown, who had experience with the packaging and
     appearance of heroin, believed Appellant possessed heroin.
     ([Id.]) Appellant was then handcuffed and placed under arrest
     by Detective Brown. [Id. at 7].

Trial Court Opinion, 6/16/17, at 1 (footnote omitted).

     The trial court made credibility determinations in favor of Detective

Brown regarding his account of the interaction with Appellant, found that the

interdiction was constitutional, and denied Appellant’s motion to suppress

the physical evidence of the heroin.    Following a non-jury trial, Appellant

was convicted of possession of a controlled substance with intent to deliver

and possession of a controlled substance. Appellant waived the presentence

investigation, and the trial court immediately imposed the above-referenced

sentence of three to six months imprisonment for PWID. No further penalty

was imposed on the possession conviction. This timely appeal followed.

     Appellant complied with the trial court’s directive to file a concise

statement of matters complained of appeal pursuant to Pa.R.A.P. 1925(b).

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While    the    Rule   1925(b)    statement    leveled   four    interrelated   issues

challenging the trial court’s denial of his motion to suppress the physical

evidence, Appellant condensed these claims into one question on appeal,

“Whether the trial court erred in denying appellant’s motion to suppress.”

Appellant’s brief at 3.

        Our    standard   of   review   when   reviewing   an     order   denying   a

suppression motion is well settled.

        An appellate 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 record
        as a whole. Where the record supports the factual findings of
        the trial court, the appellate court is bound by those facts and
        may reverse only if the legal conclusions drawn therefrom are in
        error. However, it is also well settled that the appellate court is
        not bound by the suppression court's conclusions of law.

Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657, 663-64 (Pa.Super.

2015) (citations omitted). Further, “[w]ith respect to factual findings, . . . it

is the sole province of the suppression court to weigh the credibility of the

witnesses[, and] the suppression court judge is entitled to believe all, part or

none of the evidence presented.” Id. at 664 (quoting Commonwealth v.

Benton, 655 A.2d 1030, 1032 (Pa. 1995)). Our scope of review is limited to

the evidence presented at the suppression hearing.              In re L.J., 79 A.3d

1073, 1080 (Pa. 2013).

        At the outset, we review the three categories of police interdiction and

the corresponding levels of suspicion required to support those interactions.



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      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 respond.
      The second, an “investigative detention” must be supported by
      reasonable suspicion; it subjects a suspect to a stop and period
      of detention, but does not involve such coercive conditions as to
      constitute the functional equivalent of arrest. Finally, an arrest or
      “custodial detention” must be supported by probable cause.

Commonwealth v. Williams, 73 A.3d 609, 613 (Pa.Super. 2013).

      Appellant’s first contention is that Detective Brown was not entitled to

the benefit of the good faith exception to the exclusionary rule, which is not

currently recognized in Pennsylvania.       This argument is wholly misplaced

because it assumes inaccurately that the detective’s interaction with

Appellant was based upon an invalid arrest warrant. Appellant equates the

case at bar with the scenarios in Commonwealth v. Edmunds, 586 A.2d

887 (Pa. 1991) and Commonwealth v. Johnson, 86 A.3d 182 (Pa. 2014),

two cases where our High Court refused to apply the good faith exception to

the exclusionary rule as a result of the Commonwealth’s execution of an

invalid search warrant.    In Edmunds, the High Court rejected the trial

court’s application of the good faith exception to admit marijuana found in a

home pursuant to a search warrant as the warrant did not list that particular

structure.    Similarly, in Johnson, the Supreme Court concluded that

Pennsylvania would not adopt the good faith exception for the purpose of

admitting physical evidence obtained incident to an invalid arrest warrant




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that was executed following the traffic stop of a car in which the appellant

was a passenger.

      Relying upon Edmunds and Johnson, Appellant argues that, since

the only reason Detective Brown was at Red’s Ringside Café was to execute

an arrest warrant on a person who matched the description of a possible

suspect, the evidence seized from the subsequent interdiction with him must

be suppressed.     He reasons that all three cases align because Detective

Brown was “operating under the good faith as to the validity of a warrant”

when he initiated the interdiction with Appellant. Appellant’s brief at 13. We

disagree.

      Appellant’s fixation with the good faith exception is a red herring.

First, unlike the private residence in Edmunds or the automobile in

Johnson, Appellant was sitting in a bar, a place of public accommodation,

wearing a ski cap over his face when Detective Brown approached him and

his companion, who spontaneously volunteered that he was armed. At that

point, Detective Brown’s purpose for entering the bar was immaterial.      In

reality, unless there was some show of force leading a person to feel

compelled to answer, when Detective Brown approached Appellant and his

companion in a public place, it was a mere encounter that required no level

of suspicion. Terry v. Ohio, 392 U.S. 1, 34, (1968) (“There is nothing in

the Constitution which prevents a policeman from addressing questions to

anyone on the streets.”). As Detective Brown was authorized to be present

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in the bar regardless of his possession of an arrest warrant, valid or not, the

case law that Appellant seeks to invoke is inapt because the warrant was not

the basis for the seizure.    Stated plainly, unlike the contacts in Edmunds

and Johnson, the initial interaction between Appellant and Detective Brown

was constitutional notwithstanding the arrest warrant.

      Appellant’s second argument actually addresses the pertinent question

in this appeal, i.e., whether Detective Brown was justified in requesting that

Appellant remove his hands from his pockets.              Appellant claims that

Detective Brown lacked reasonable and articulable suspicion pursuant to

Terry, supra, to justify the seizure.        Appellant’s perspective is founded

squarely upon the assertion that Detective Brown brandished his sidearm

and leveled it at him while the detective repeated his directive for Appellant

to remove his hands from his pocket. Unfortunately for Appellant, Detective

Brown categorically denied that he brandished his service weapon during the

exchange, and the trial court made an explicit credibility determination in

the detective’s favor. N.T., 9/27/16, at 10, 23. In light of our deference for

the trial court’s role as the ultimate arbiter of fact, we are bound by its

decision.    See Tam Thanh Nguyen, supra.                 Thus, this aspect of

Appellant’s argument is baseless.

      Nevertheless, we agree that Appellant was seized when Detective

Brown demanded that Appellant remove his hands from his pockets.                 The

relevant    question   is   whether   the   directive   was   so   restrictive   and

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authoritative that a reasonable person would feel compelled to comply.

Florida v. Bostick, 501 U.S. 429, 436 (1991) (“the appropriate inquiry is

whether a reasonable person would feel free to decline the officers' requests

or otherwise terminate the encounter”); Commonwealth v. Mathis, 2017

WL 5617623, at *10 (Pa. 2017) (quoting Commonwealth v. Mendenhall,

715 A.2d 1117, 1120 (Pa. 1998)) (“the pivotal inquiry is whether,

considering all the facts and circumstances evidencing the exercise of force,

a reasonable person would have thought he was being restrained.”).

      In Mathis, supra our Supreme Court recently addressed this precise

issue and concluded that Mathis had not been detained when parole officers

interacted with him while conducting a routine home visit of another

individual.   The High Court reasoned that a reasonable person would not

have felt restrained from leaving the home when left alone in the kitchen

with clear access to an exit while the agents focused attention on the

parolee, and, when an agent spoke to Mathis, he used a conversational tone

and polite requests explained in terms of ensuring safety.

      The instant scenario is different from the relaxed interaction depicted

in Mathis.    There was no indication that Appellant could access the bar’s

exit, that Detective Brown used a conversational tone, or that he politely

explained the request in terms of safety.         Instead, Detective Brown

approached Appellant while he was seated at a table in the bar and prior to

initiating the encounter, Detective Brown immediately and repeatedly

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demanded that Appellant reveal his hands.       Under these circumstances, a

reasonable person would not have believed he was free to ignore Detective

Brown’s request.

      Once the encounter escalated to a seizure, the interaction needed to

be justified or supported by reasonable suspicion to be constitutional

pursuant to Terry.     “To establish reasonable suspicion, the officer must

articulate specific observations which, in conjunction with reasonable

inferences derived from those observations, led him to reasonably conclude,

in light of his experience, that criminal activity was afoot and that the person

he stopped was involved in that activity.” Commonwealth v. Caban, 60

A.3d 120, 128 (Pa.Super. 2012) (citation omitted). The applicable test is an

objective one. As the Supreme Court explained in Terry:

      [I]n justifying the particular intrusion the police officer must be
      able to point to specific and articulable facts which, taken
      together with rational inferences from those facts, reasonably
      warrant that intrusion. The scheme of the Fourth Amendment
      becomes meaningful only when it is assured that at some point
      the conduct of those charged with enforcing the laws can be
      subjected to the more detached, neutral scrutiny of a judge who
      must evaluate the reasonableness of a particular search or
      seizure in light of the particular circumstances. And in making
      that assessment it is imperative that the facts be judged against
      an objective standard: would the facts available to the officer at
      the moment of the seizure or the search ‘warrant a man of
      reasonable caution in the belief’ that the action taken was
      appropriate?

Terry, supra at 21-22.




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        Instantly, Appellant’s detention was justified due to the danger posed

by Appellant and his companion. Upon entering a bar that is considered a

high-crime location, Detective Brown observed Appellant sitting with a ski

mask covering his face despite the mild temperature. Appellant was in close

proximity with another male who, after seeing detectives approaching, stood

up and exclaimed, “I have a gun!” N.T., 9/27/16, at 6, 8, 16.              Almost

simultaneously, Detective Brown observed Appellant set down the object

that he had been holding, place his hand in the pocket of his hooded

sweatshirt, and clench a concealed object.                The detective made the

reasonable inference that Appellant posed a threat, and since Appellant’s

movements placed Detective Brown in fear for his safety, he instructed, “Sir,

get your hand out of your pocket. Take your hands out. Let me see your

hands.” Id. at 6. We have no doubt that a safety concern was presented

when Appellant’s cohort announced that he was armed because that

statement necessarily contributes to the totality of the circumstances

analysis when assessing whether Appellant posed a safety risk to Detective

Brown.     See Mathis, supra at *9 (“parole agents have the authority to

conduct a protective Terry frisk of non-parolees within the course of

executing their statutorily imposed duties, so long as reasonable suspicion

supports the agents' conduct.”).1              Thus, examining the totality of the
____________________________________________


1
    Notably, the detective herein did not conduct a frisk, he simply asked that
(Footnote Continued Next Page)


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circumstances, it is obvious that the foregoing scenario established that

Appellant posed a danger and that a legitimate fear for the detectives’ safety

existed to support a custodial seizure pursuant to Terry, supra.         See

Mathis, supra at *11 (collectively, nervous behavior, speech, and furtive

movements suggesting a concealed weapon “justified . . . investigating

further in order to ensure that the object was not a firearm.”). Appellant’s

claim that the seizure was unjustified is unavailing.

      Finally, we observe that Detective Brown’s directive for Appellant to

expose his hands was not tantamount to a search insofar as the detective

did not frisk Appellant or order him to remove the items from his pocket.

Accordingly, to the extent that Appellant voluntarily removed the heroin

from his pocket in bringing his hands into view, the contraband was

discovered in plain sight. Thus, inasmuch as the temporary detention was

constitutional under Terry, no basis existed to suppress the physical

evidence found in plain sight.

      Judgment of sentence affirmed.




                       _______________________
(Footnote Continued)

Appellant show his hands.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017




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