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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                    Appellant              :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 DARIAN SMITH                              :         No. 523 EDA 2018

                   Appeal from the Order January 16, 2018
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0006271-2017

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED MARCH 28, 2019

      The Commonwealth of Pennsylvania appeals from the Order granting

the Motion to Suppress filed by Darian Smith (“Smith”). We affirm.

      The evidence adduced at the suppression hearing reveals that at

approximately 10:00 p.m. on July 8, 2017, Philadelphia Highway Patrol Officer

Clifford Gilliam (“Officer Gilliam”) and his partner, Officer Antoine Small

(“Officer Small”), were on routine patrol, in full uniform, in their marked police

cruiser. See N.T., 1/16/18, at 5-9. Officer Gilliam had ten years of police

experience at that time. Id. at 6. The officers were travelling southbound on

32nd Street in North Philadelphia, and proceeded to turn onto Norris Street.

Id. at 7, 22. Officer Gilliam stated that this particular area was well-known

for being a high-crime area, including unlawful firearms possession and violent

crimes. Id. at 7. The Officers were assigned to patrol this particular area due

to two or three recent shootings. Id. at 7-8.
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      While driving the police cruiser on Norris Street, which was illuminated

with streetlights, Officer Gilliam observed Smith walking between two parked

cars, from a distance of approximately one car-length away. Id. at 9-10.

Officer Gilliam stated that

      what brought my attention to [Smith], when he came around the
      car, he had both hands in the front of his pants, … and appeared
      to be clutching a heavy object. Now, when I saw that …, it was
      no doubt in my mind what he was clutching. It appeared to be a
      firearm.

Id. at 10. Officer Gilliam testified that based upon his police experience, “the

actions of [Smith] that night [were] consistent with someone … trying to

conceal a firearm[.]” Id. at 11. Notably, however, on cross-examination,

Officer Gilliam clarified that he never saw the “heavy object” that he suspected

Smith was clutching. Id. at 25. Officer Gilliam further agreed that he “didn’t

see any type of angulation in [Smith’s] pants[,] such as an outline of a gun

….” Id. Moreover, Smith did not run or flee in response to seeing the police.

Id. at 26. But see also id. at 12 (wherein Officer Gilliam stated that he saw

another man standing on the side of the street near Smith, and that “[Smith]

was quickly approaching the male. Kind of trying to blade his body away from

my position to get to the other male.”).




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       Upon making the above observations, Officer Gilliam exited his vehicle,1

followed by Officer Small, to approach Smith. Id. at 13-14. Officer Gilliam

immediately came up behind Smith, patted him down,2 and felt in Smith’s

basketball shorts an item that the Officer immediately knew to be a firearm.

Id. at 14, 16. Officer Gilliam then pushed Smith up against a parked car,

placed him in handcuffs, and discovered in his shorts a loaded .45 caliber

handgun. Id. at 17-18.

       The suppression court also heard testimony from Officer Small. Officer

Small, who had over twenty years of police experience at the time, testified

that after he exited the police cruiser to follow Officer Gilliam, he saw Smith

holding the handle of a black gun. Id. at 31-33, 37-38. Officer Small testified

that he then alerted Officer Gilliam to the presence of a gun by yelling out the

word “Yo.”     Id. at 33-34.       However, on cross-examination, Officer Small

admitted there was no mention, in any of the police reports filed in this case,

that he had seen the handle of a gun on Smith’s person, and that the Officer’s




____________________________________________


1 Officer Gilliam testified that it was only a few seconds between the time he
first saw Smith and when the Officer exited his vehicle to encounter Smith.
Id. at 24.

2There is no indication in the transcript that Officer Gilliam said anything to
Smith prior to patting him down.



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testimony at the suppression hearing was the first time that this had been

mentioned. Id. at 41-43.3

        Following his arrest, the Commonwealth charged Smith with firearms

not to be carried without a license and carrying a firearm on public streets in

Philadelphia.4 On August 7, 2017, Smith filed a Motion to Suppress the firearm

evidence.     He asserted that the search of his person was unlawful and

unsupported by probable cause, or reasonable suspicion that he was armed

and dangerous, and therefore, the firearm must be suppressed as fruit of the

poisonous tree.

        On January 16, 2018, after considering the foregoing testimony, the

suppression court granted Smith’s Motion to Suppress.        In response, the

Commonwealth timely filed a Notice of appeal,5 followed by a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal. The

suppression court then issued a Rule 1925(a) Opinion in support of its ruling.




____________________________________________


3 As we explain below, the suppression court found Officer Small’s testimony
to be incredible.

4   18 Pa.C.S.A. §§ 6106(a)(1), 6108.

5 We note that in filing this interlocutory appeal, the Commonwealth complied
with Pennsylvania Rule of Appellate Procedure 311(d), which provides that
“[i]n a criminal case, under the circumstances provided by law, the
Commonwealth may take an appeal as of right from an order that does not
end the entire case where the Commonwealth certifies in the notice of appeal
that the order will terminate or substantially handicap the prosecution.”
Pa.R.A.P. 311(d).

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      On appeal, the Commonwealth presents the following issue for our

review:     “Whether the [suppression] court erred by suppressing [Smith’s]

firearm after police officers saw him clutch a heavy object in his shorts and

‘blade’ his body away from the officers[,] late at night[,] in a high[-]crime

neighborhood[?]” Brief for the Commonwealth at 7.

             When the Commonwealth appeals from a suppression order,
      we follow a clearly defined standard of review and consider only
      the evidence from the defendant’s witnesses[,] together with the
      evidence of the prosecution[,] that, when read in the context of
      the entire record, remains uncontradicted. The suppression
      court’s findings of fact bind an appellate court if the record
      supports those findings. The suppression court’s conclusions of
      law, however, are not binding on an appellate court, whose duty
      is to determine if the suppression court properly applied the law
      to the facts. Our standard of review is restricted to establishing
      whether the record supports the suppression court’s factual
      findings; however, we maintain de novo review over the
      suppression court’s legal conclusions.

Commonwealth v. Petty, 157 A.3d 953, 955 (Pa. Super. 2017) (internal

citations and quotation marks omitted). Additionally, “it is the sole province

of the suppression court to weigh the credibility of the witnesses.”

Commonwealth v. Caple, 121 A.3d 511, 517 (Pa. Super. 2015) (citation

omitted).

      “It is well settled that an officer may pat-down an individual whose

suspicious behavior he is investigating on the basis of a reasonable belief that

the individual is presently armed and dangerous to the officer or others.”

Commonwealth v. Gray, 896 A.2d 601, 605-06 (Pa. Super. 2006)

(citing Terry v. Ohio, 392 U.S. 1 (1968) (holding that police may conduct an


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investigatory detention and frisk if they have reasonable suspicion that

criminal activity is afoot)). In order to prove reasonable suspicion, “the police

officer must be able to point to specific and articulable facts[,] and reasonable

inferences     drawn   from    those    facts[,]    in    light     of   the    officer’s

experience.” Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999). “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.” Commonwealth v. Walls, 53 A.3d 889, 893 (Pa. Super.

2012).

               Further, the delicate balance between protecting the right
       of citizens to be free from unreasonable searches and seizures, on
       the one hand, and protecting the safety of our citizens and police
       officers[,] by allowing police to make limited intrusions on citizens
       while investigating crime, on the other hand, requires additional
       considerations when the police have a reasonable suspicion that a
       person may be armed.

                                     ***

       Thus, under Terry …[,] a police officer may frisk an individual
       during an investigatory detention when the officer believes, based
       on specific and articulable facts, that the individual is armed and
       dangerous. When assessing the reasonableness of an officer’s
       decision to frisk a suspect during an investigatory detention, an
       appellate court does not consider the officer’s unparticularized
       suspicion or “hunch” but rather[,] the specific reasonable
       inferences which he is entitled to draw from the facts in light of
       his experience.

Commonwealth v. Stevenson, 894 A.2d 759, 771-72 (Pa. Super. 2006)

(internal citations, ellipses, and quotation marks omitted).



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      The Commonwealth contends that Officer Gilliam had reasonable

suspicion to perform a Terry stop and frisk due to the fact that he was

patrolling a known high-crime area at night, and observed Smith with his

hands in his waistband area, apparently clutching a heavy object in a manner

that indicated to Officer Gilliam, an officer with a decade of law enforcement

experience, that Smith was armed. See Brief for the Commonwealth at 11-

19.

      In its Opinion, the suppression court stated as follows in support of its

ruling that the police lacked reasonable suspicion:

      [T]he only specific, articulable fact that Officer Gilliam possessed
      was that [Smith] had his hands in front of him grabbing an object.
      The police officer could not make out the form of the object, [and]
      did not see a bulge, but just “knew” it was a gun. [Smith] did not
      attempt to flee, was not looking around furtively, nor was he the
      subject of a radio call or complaint. There was absolutely no
      interaction between the police officers and [Smith]. Officer Gilliam
      was clear. He did not ask [Smith] to stop, did not inquire of
      [Smith] what was in his waist, or any other inquiry. The [O]fficer
      got out of his car, immediately went to [Smith] and grabbed him
      from behind, reaching around Smith in a bear hug to retrieve
      whatever was in [Smith’s] waist. The police further agreed with
      defense counsel that they were patrolling a particular area, based
      upon an unknown shooting, at an unknown time, at an unknown
      location, when they saw a group of guys[,] and the police made a
      decision to stop them. There was a complete lack of specific,
      articulable facts which would warrant a man of reasonable caution
      in the belief that criminality was afoot[,] and that the action of
      grabbing [Smith] from behind[,] with no other interaction, was
      the appropriate action to be taken. Accordingly, the court acted
      within its discretion in granting [Smith’s] [M]otion to suppress.

Suppression Court Opinion, 4/11/18, at 6 (paragraph break omitted).

Moreover, the suppression court stated that it found Officer Small’s testimony


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to be incredible. See id. at 3 (stating that “Officer Small’s testimony was not

credible given the inconsistencies and his lack of recollection regarding the

incident, along with the absence of any of these observations[, i.e., concerning

his seeing the handle of a firearm in Smith’s waistband,] in any of the police

reports.”).

      Initially, to the extent that the suppression court discredited the

testimony of Officer Small, we may not disturb this finding.         See Caple,

supra.

      Further, we agree with the suppression court’s legal determination that

Officer Gilliam failed to state sufficient articulable facts to reasonably suspect

that Smith was engaged in criminal activity necessary for an investigative

detention. Our review discloses that the cases the Commonwealth cites to

support a contrary finding are all distinguishable. Officer Gilliam did not (1)

actually see Smith holding a firearm; (2) describe seeing any particular shape

or characteristic that was consistent with a firearm; (3) see Smith flee or take

evasive actions; and (4) the Officer only observed Smith for a matter of

seconds before coming up behind him without a word, and stopping and

frisking him. Cf. Commonwealth v. Carter, 105 A.3d 765, 766, 774-75 (Pa.

Super. 2014) (en banc) (holding that police officer had reasonable suspicion

to conduct a Terry frisk, where the defendant was standing on a street corner

in a high-crime area at night, had a weighted and angled bulge in his coat

pocket, was alerted to the officer’s presence and intentionally turned his body


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away several times to conceal the bulge in his coat pocket, and the officer

observed the defendant walking away from the known drug corner when the

officer repeatedly circled the area for ten minutes); Commonwealth v.

Foglia, 979 A.2d 357, 361 (Pa. Super. 2009) (en banc) (finding “evasive

behavior” in walking away from police contributes to reasonable suspicion).

Aside from seeing Smith with his hands in his waistband area, allegedly

holding some unidentified heavy object, Officer Gilliam did not see any indicia

of criminal activity. Cf. Commonwealth v. E.M., 735 A.2d 654, 657 (Pa.

1999) (finding reasonable suspicion existed where the police, after observing

plastic bags of what appeared to be marijuana bulging out of the jacket pocket

of the friend with whom E.M. had been smoking, saw a bulge that “could have

been characteristic of a small semi-automatic” in E.M.’s front pants pocket).

Further, our Courts have repeatedly emphasized that mere presence in a high-

crime area is alone insufficient to establish reasonable suspicion. See In re

D.M., 781 A.2d 1161, 1163 (Pa. 2001); see also Commonwealth v. Key,

789 A.2d 282, 289-90 (Pa. Super. 2001) (stating that “[a]n individual’s act of

merely walking away from police officers in a ‘high crime area’ is manifestly

insufficient to justify an investigative detention of that individual.”).

      Rather, we find that the instant case is more analogous to this Court’s

decision in Commonwealth v. Martinez, 588 A.2d 513 (Pa. Super. 1991).

The Martinez Court held that a situation in which the defendant “walked

quickly away from a group of people on a street corner after observing a police


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vehicle …[, and] where … officers observed a bulge in her front pocket[,]” does

not constitute reasonable suspicion of criminal activity necessary for an

investigative detention. Id. at 514; see also id. at 516 (stating that an

officer’s mere belief that a person might be armed cannot serve as an

additional articulable fact to justify an initial stop). The facts in Martinez are

similar to the instant case, except, instead of seeing an unidentified “bulge,”

Officer Gilliam saw Smith holding his hands in his waistband area, apparently

holding an unidentified heavy object, which the Officer believed was indicative

of secreting a firearm.    Moreover, Officer Gilliam observed less suspicious

activity than the officers in Martinez, in that Smith was not seen “walking

quickly away” upon noticing the police.

      Additionally, contrary to the Commonwealth’s protestations, see Brief

for the Commonwealth at 17-18, there is no evidence that the suppression

court disregarded Officer Gilliam’s experience, or the nature of the

neighborhood being a high-crime area, in weighing the totality of the

circumstances. Rather, in considering the totality of the circumstances, the

suppression court ostensibly disbelieved Officer Gilliam’s contention that he

reasonably suspected that Smith’s actions and appearance were indicative of

his secreting a firearm. Again, it is not within our purview to question the

suppression court’s credibility determinations. See Caple, supra.




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     Based upon the foregoing, because we discern no error in the

suppression court’s factual findings or its application of the law to these

findings, we affirm its Order granting Smith’s Motion to Suppress.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/19




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