J-S60025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

JERRY YELVERTON

                         Appellant                     No. 2930 EDA 2014


            Appeal from the Judgment of Sentence July 14, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0006515-2014,
                          MC-51-CR-0006515-2014


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                         FILED OCTOBER 20, 2015

      Jerry Yelverton appeals from the judgment of sentence entered in the

Municipal Court of Philadelphia on July 14, 2014.           On appeal, Yelverton

challenges the court’s denial of his motion to suppress evidence.          Upon

careful review, we vacate Yelverton’s judgment of sentence.

      The Honorable Ann Butchart of the Court of Common Pleas of

Philadelphia set forth the facts of this case as follows:

      This case arises out of a routine patrol on February 28, 2014 by
      Philadelphia Police. Officers James O’Neill [and Padilla] were in
      full uniform in a marked patrol vehicle on the 1500 block of
      Capital Street in Philadelphia at approximately 6:40 p.m. At the
      suppression hearing, Officer O’Neill testified that he observed
      [Yelverton] and an unknown black female standing side by side.
      [Yelverton] was on a bicycle. [Yelverton] and the unknown black
      female had their hands extended toward each other. Officer
      O’Neill, who was driving, testified that as he turned onto the
      1500 block of Capital Street, the unknown black female looked in
      the officers’ direction and [Yelverton] immediately turned around
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        and rode off on his bike. While still in the patrol vehicle, Officer
        O’Neill stopped [Yelverton]. Officer O’Neill testified that at this
        point the stop was an “investigation.”

        As Officer O’Neill spoke to him, [Yelverton’s] left hand was out of
        view. Officer O’Neill asked [Yelverton] to show his left hand
        several time[s] but [Yelverton] did not comply. Officer O’Neill
        asked [Yelverton] to step off the bicycle. When [Yelverton] did
        not comply, Officer O’Neill exited the patrol vehicle and grabbed
        [Yelverton’s] left hand.        When Officer O’Neill grabbed
        [Yelverton], he could see a box of Newport cigarettes in
        [Yelverton’s] left hand. While the cigarette box was still in
        [Yelverton’s] hand, Officer O’Neill could see that inside the box
        was a bundle of heroin. The bundle was wrapped in a plastic
        rubber band and contained thirty-seven clear baggies with a blue
        glassine insert with white powder inside.          The heroin was
        stamped “bad boy” and later placed on Philadelphia Property
        Receipt number 3125678.

Common Pleas Court Opinion, 4/8/15, at 2-3 (citations to record omitted).

        Yelverton was charged with knowing and intentional possession of a

controlled substance.1        He subsequently filed a motion to suppress the

physical evidence obtained by Officer O’Neill. The court held a hearing on

July 14, 2014, after which it denied Yelverton’s motion. Yelverton proceeded

directly to trial before the Honorable Jacquelyn Frazier-Lyde and was found

guilty of knowing and intentional possession of a controlled substance.

Yelverton was sentenced to eighteen months of reporting probation.

        On August 12, 2014, Yelverton filed a petition for writ of certiorari to

the Court of Common Pleas of Philadelphia County,2 which was denied on


____________________________________________


1
    35 P.S. § 780-113(a)(16).
2
    See Pa.R.Crim.P. 1006(1).



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October 6, 2014. This timely appeal followed, in which Yelverton challenges

the denial of his suppression motion.

      When reviewing the denial of a motion to suppress evidence, our

responsibility is as follows:

      to determine whether the record supports the suppression
      court’s factual findings and the legitimacy of the inferences and
      legal conclusions drawn from those findings. If the suppression
      court held for the prosecution, we consider only the evidence of
      the prosecution’s witnesses and so much of the evidence for the
      defense as, fairly read in the context of the record as a whole,
      remains uncontradicted.      When the factual findings of the
      suppression court are supported by the evidence, the appellate
      court may reverse if there is error in the legal conclusions drawn
      from those factual findings.

Commonwealth v. Tither, 671 A.2d 1156, 1157-58 (Pa. Super. 1996).

      An officer [has] the authority to approach or briefly detain a
      citizen without probable cause for investigatory purposes. Terry
      v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968);
      Commonwealth v. Arch, 439 Pa. Super. 606, 654 A.2d 1141,
      (1995). “In order for such a stop to be reasonable under the
      Fourth Amendment to the United States Constitution, the police
      officer must point to specific and articulable facts ‘which in
      conjunction with rational inferences deriving therefrom’ warrant
      the initial stop.” Arch, supra, 654 A.2d at 1143 (quoting
      Commonwealth v. Prengle, 293 Pa. Super. 64, 437 A.2d 992,
      994 (1981)). To meet this standard, the officer must observe
      unusual and suspicious conduct by the suspect which leads the
      officer to reasonably believe that criminal activity may be afoot.
      Arch, supra, 654 A.2d at 1144. Furthermore, the officer’s
      conclusion cannot be based upon an “unparticularized suspicion”
      or “hunch.” Id. (quoting Terry, 392 U.S. at 27, 88 S. Ct. at
      1883).

Id. at 1158.

      Here, Officer O’Neill initiated an investigative detention based upon his

observation of Yelverton standing with an unidentified black female with

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their hands extended towards each other.        After the woman observed the

police, she and Yelverton left the area.      Officer O’Neill testified that this

incident occurred in a high-crime area where he had made “dozens” of

narcotics arrests.   N.T. Suppression Hearing, 7/14/14, at 10.         Yelverton

argues that these facts were insufficient to establish a reasonable suspicion

on the part of Officer O’Neill that criminal activity was afoot.

      In support of his claim, Yelverton highlights two decisions of this

Court, Commonwealth v. Tither, 671 A.2d 1156 (Pa. Super. 1996), and

Commonwealth v. Carter, 779 A.2d 591 (Pa. Super. 2001). In Tither, a

veteran police officer was on routine patrol in an area known for frequent

drug transactions and problems with prostitution and where the officer had

made previous drug arrests.      The officer heard someone yell, “5-0, 5-0,”

which he knew to be street jargon warning that police are in the area. The

officer observed an automobile stopped in the middle of the one-way street

about 100 feet in front of him and a male standing in the street, reaching

into the car. Upon hearing “5-0, 5-0,” the male left the car and walked into

the nearest building and the car immediately pulled away.          In concluding

that the officer’s observations did not establish probable cause, this Court

noted that “the officer did not even observe an exchange between appellant

and the man leaning into her window,” nor did he witness “any actions which

would suggest a transaction, let alone a drug transaction.”        Id. at 1158.

“[W]hile the officer’s curiosity might have been aroused by the action that




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was witnessed, and while he may have had a hunch that illegal contraband

was involved, that is not sufficient.” Id. at 1159.

      In Carter, a police officer witnessed the defendant speaking to two

individuals in a truck, one of whom was a known heroin user, situated in a

high crime area.     The defendant then placed his hand in his pocket and

began to remove the hand when he saw the officer and mouthed the word

“popo.”     The defendant then walked away.     The defendant was ultimately

discovered to have been carrying a sandwich baggie containing packages of

heroin.     This Court concluded that the interaction at the truck did not

establish reasonable suspicion and affirmed the trial court’s suppression of

the drugs.

      With regard to the officer’s observation of [Carter’s] interaction
      with the occupants of the vehicle, such observation could not
      have given rise to a reasonable suspicion that [Carter] was
      engaged in criminal activity.      The officer observed [Carter]
      talking to the occupants of parked vehicle in a notoriously drug
      infested area of the city. The officer knew that [Carter] and his
      mother resided in this area of the city. The officer saw [Carter]
      put his hand in his pocket as he spoke to the occupants of the
      vehicle but did not observe exchange of items. Neither did he
      observe any furtive activity by the occupants of the vehicle. The
      officer observed [Carter] mouth the word “popo” (meaning
      police) and walk away from the vehicle shortly thereafter. When
      considered in conjunction with the officer’s education, training
      and experience in drug law enforcement, these observations
      may lead to an educated hunch but are insufficient to create a
      reasonable suspicion that [Carter] was engaged in the sale of
      illegal drugs on the date in question.

Carter, 779 A.2d at 594-95 (Pa. Super. 2001) (citations to the record

omitted).



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       The Commonwealth attempts to distinguish Tither and Carter based

on subtle factual differences.   The Commonwealth argues that in Tither,

there were no actions which would suggest a transaction, whereas here both

Yelverton and the unidentified black female had their hands extended.

Likewise, in Carter, the Commonwealth argues that the defendant’s act of

placing his hand in his pocket and then removing it before fleeing did not

give rise to reasonable suspicion, whereas here, “Officer O’Neill saw

[Yelverton] and the woman in the middle of an exchange[.]”           Brief of

Appellant, at 15. We are unconvinced.

      First, the Commonwealth neglects to note that, in Tither, the

defendant was observed to be reaching into the car with one hand. We find

this to be as suggestive of a transaction as the fact that Yelverton and the

unidentified woman had their arms outstretched. Moreover, Officer O’Neill

did not observe either party’s hand to contain any items, such as a baggie of

drugs or cash. Nor did he observe any indication, such as a cupped hand or

a balled fist, that any items might be hidden in either party’s hand.

Compare Commonwealth v. Cook, 735 A.2d 673 (Pa. 1999) (reasonable

suspicion found where officer observed defendant take his left hand out of

his front pocket in fist position and reach toward other individual, who

attempted to receive unidentified item from his hand). Yelverton’s mere

presence in a high crime area in no way establishes his involvement in

criminal activity.   See Commonwealth v. Key, 789 A.2d 282, 289 (Pa.

Super. 2001). Neither does the fact that Yelverton rode off on his bicycle

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upon observing police constitute reasonable suspicion of criminal activity.

Id. at 289-90.      In sum, we find that, based on the totality of the

circumstances, Officer O’Neill’s observations “may lead to an educated hunch

but are insufficient to create a reasonable suspicion” that Yelverton was

engaged in an illicit transaction. Carter, 779 A.2d at 595.

     Judgment of sentence vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2015




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