J-S18024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.W.                         IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

APPEAL OF D.W.,

                           Appellant                 No. 1486 EDA 2014


       Appeal from the Dispositional Order entered February 3, 2014,
           in the Court of Common Pleas of Philadelphia County,
            Juvenile Division, at No(s): CP-51-JV-0000204-2014


BEFORE: BENDER, P.J.E., ALLEN and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED MARCH 30, 2015

      D.W. (“Appellant”) appeals from the dispositional order entered

following his adjudication of delinquency for possession of a controlled

substance with the intent to deliver in violation of 35 P.S. § 780–113(a)(30),

and providing false identification to law enforcement authorities in violation

of 18 Pa.C.S.A. § 4914(a). We affirm.

      The juvenile court summarized the pertinent facts and procedural

history as follows:

             On January 21, 2014, First Judicial District Warrant Officer,
      Scott Palmer, was working in the 2800 block of North Rosehill
      Street in the city and county of Philadelphia. Officer Palmer
      testified that his experience in the section of the city led him to
      believe that the area was known for narcotics, and that as a
      direct result his awareness was heightened.

             Officer Palmer and his partner, Sgt. Facetti (whom did not
      testify at either the suppression hearing or adjudicatory hearing)
      were in the area looking for a wanted individual known to
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        frequent the area, Thomas Shultz.         While patrolling, [the]
        officers [saw] two males walking in the 2800 block of Rosehill
        Street, [and] one of the males fit[] the description of the wanted
        individual. Sgt. Facetti exit[ed] his vehicle, approache[d] the
        males and identified himself as an officer. Appellant, D.W.,
        immediately fle[d,] and [was] stopped by Officer Scott Palmer
        within a short distance. Appellant, D.W., made multiple furtive
        hand movements in the area of his waistband and pockets and
        gave Officer Palmer a false name.

              Based on the actions of [Appellant], Officer Palmer patted
        down [Appellant] for safety reasons. Officer Palmer felt a bulge
        in the waistband of [Appellant], was unsure if the bulge was [a]
        weapon, and upon inspection recovered a packet with 21 vials of
        crack cocaine. [Appellant] was arrested and charged.

Juvenile Court Opinion, 7/30/14, at 2-3 (citations to notes of testimony

omitted).

        Appellant filed a suppression motion on January 30, 2014.            The

juvenile court conducted a hearing on February 3, 2014, at the conclusion of

which the juvenile court denied Appellant’s motion.               Appellant was

adjudicated delinquent that same day.        On February 12, 2014, Appellant

filed a timely post-sentence motion, which the juvenile court denied

following a hearing on April 11, 2014.       Appellant filed a timely notice of

appeal. Both Appellant and the juvenile court have complied with Pa.R.A.P.

1925.
        Appellant presents the following issues for our review:

  1. Did not the Commonwealth fail to sustain its burden at the
     motion to suppress [hearing] to demonstrate that Investigator
     Palmer’s actions were lawful, by not providing any authority (at
     either the hearing on the motion to suppress or in subsequent
     legal memoranda) as to his powers to stop, detain, frisk or
     search [A]ppellant?



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   2. As Investigator Scott Palmer from the First Judicial District
      Warrant Unit, is not a police officer, who did not have the
      authority to stop, detain, frisk or search [A]ppellant, were his
      actions unreasonable and violative of both the Pennsylvania and
      Federal Constitutions, and should the motion to suppress have
      been granted?

   3. Did not the suppression court err in denying the motion to
      suppress physical evidence, as both the Pennsylvania and
      Federal Constitutions prohibit the search and seizure of evidence
      where there was neither reasonable suspicion nor probable
      cause to stop, detain, frisk or search [A]ppellant?

   4. Did not the investigator’s action exceed the scope of a Terry v.
      Ohio frisk in that the warrant officer had no indication that
      [A]ppellant was armed or dangerous, and the “plain touch”
      doctrine was violated as it was not immediately apparent that
      the bulge in [A]ppellant’s waistband was a weapon or
      contraband?

Appellant’s Brief at 3.

      Appellant challenges the juvenile court’s denial of his suppression

motion. Appellant’s Brief at 11-32. Our scope and standard of review of this

claim is well settled:

             An appellate court's 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. [Because] the prosecution prevailed in
      the suppression court, we 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 factual findings of
      the trial court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) (citations

omitted).



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      Appellant’s first two issues are interrelated. Therefore, we will address

them together. Appellant argues that Officer Palmer, a warrant officer from

the First Judicial District Warrant Unit, did not have the statutory authority

to detain him, and thus the juvenile court erred in denying his suppression

motion. Appellant’s Brief at 11-18. The juvenile court, however, found this

claim waived, and indicated that Appellant raised the issue for the first time

in his post-sentence motion. We agree with the juvenile court.

      This Court has explained that “appellate review of an order denying

suppression is limited to examination of the precise basis under which

suppression initially was sought; no new theories of relief may be considered

on appeal.”     Commonwealth v. Little, 903 A.2d 1269, 1272-1273 (Pa.

Super. 2006). Here, the juvenile court explained:

              Prior to the motion to suppress, [Appellant’s] attorney,
              Philadelphia Public Defender’s Officer (hereinafter PD)
              stated:

                   I move to suppress any physical evidence
                   which the commonwealth seeks to introduce
                   against my client at trial. I move under Article
                   1, section 8 of the Pennsylvania Constitution
                   and the Fourth and Fourteenth Amendments of
                   the United States Constitution, to suppress the
                   packets of crack cocaine and $102.00 United
                   States Currency, allegedly recovered from my
                   client. I move to suppress physical evidence
                   because [Appellant] was stopped and searched
                   by police without reasonable suspicion or
                   probable cause.      This is a case where the
                   arresting officer, warrant officer for the First
                   Judicial District, saw [Appellant] standing near
                   a person which they believed to have a
                   warrant. And even though [Appellant] didn’t

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                     have a warrant and the other person ended up
                     not having a warrant, the officer stopped and
                     searched [Appellant].

       [N.T. 2/13/13 at 5-6].


       Nowhere in his statement of grounds did the PD state the officer
       lacked official authority because he did not possess the power to
       arrest as a ground for suppression. The issue is waived. Section
       350A of the Juvenile Code requires that the grounds for
       suppression be stated with specificity.


Juvenile Court Opinion, 7/30/14, at 4-5.

       We agree with the juvenile court’s determination that this issue is

waived.       “It is well-settled law that motions to suppress evidence are

decided prior to the beginning of trial.         Moreover, pre-trial rulings on the

suppression of evidence are final.             In sum, suppression motions must

ordinarily be made before the trial to the suppression court, they must be

made with specificity and particularity as to the evidence sought to be

suppressed and the reasons for the suppression, and the suppression court's

determination is to be final, except in the case of evidence not earlier

available.”     Commonwealth v. Metzer, 634 A.2d 228, 233 (Pa. Super.

1993) (citations omitted).1 “[W]hen a motion to suppress is not specific in

____________________________________________


1
  While Metzer pertained to suppression of evidence pursuant to Pa.R.Crim
P. 581, and this case pertains to suppression pursuant to Pa.R.J.C.P. No.
350, the language in both rules of procedure are identical insofar as they
require that suppression motions “shall state specifically and with
particularity the evidence sought to be suppressed, the grounds for
(Footnote Continued Next Page)


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asserting the evidence believed to have been unlawfully obtained and/or the

basis    for   the   unlawfulness,      the      defendant   cannot   complain   if   the

Commonwealth fails to address the legality of the evidence the defendant

wishes to contest. [A]ppellant must meet this threshold requirement before

the Commonwealth must bear the burden ... of going forward with the

evidence and of establishing that the challenged evidence was not obtained

in violation of the defendant's rights.” Commonwealth v. McDonald, 881

A.2d 858, 860-861 (Pa. Super. 2005) (citations and internal quotations

omitted).

        Here, Appellant's failure to advance at the suppression hearing his

theory that the warrant officer lacked legal authority or police power to stop

Appellant, renders this claim waived.                At the time of the suppression

hearing, neither the Commonwealth nor the juvenile court were aware that a

basis for Appellant's motion was that the warrant officer lacked authority to

arrest, and therefore neither the juvenile court nor the Commonwealth had

the opportunity to address that theory. Rather, in his suppression motion

and at the suppression hearing, Appellant asserted that Officer Palmer

lacked reasonable suspicion or probable cause to stop him.                  See N.T.,

                       _______________________
(Footnote Continued)

suppression, and the supporting facts and events”. Pa.R.J.C.P. No. 350(a),
Pa.R.Crim.P. 581(D) (“The motion shall state specifically and with
particularity the evidence sought to be suppressed, the grounds for
suppression, and the facts and events in support thereof.”). Therefore, we
find Metzer to be instructive and persuasive.



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2/3/14, at 4-34; Motion to Suppress, 1/30/14.            Appellant’s attempt to

advance for the first time in his post-sentence motion and on appeal, a new

theory not raised in his suppression motion and at the suppression hearing,

would permit Appellant to circumvent the requirements of Pa.R.J.C.P. No.

350(a), which required him to “state specifically and with particularity ... the

grounds for suppression, and the supporting facts and events.” Accordingly,

Appellant’s claim that the warrant officer lacked authority to conduct a stop

is waived. See also Pa.R.A.P. 302(a); Commonwealth v. Shamsud–Din,

995 A.2d 1224, 1228 (Pa. Super. 2010) (“in order for a claim of error to be

preserved for appellate review, a party must make a timely and specific

objection before the trial court at the appropriate stage of the proceedings;

the failure to do so will result in waiver of the issue”) (citation omitted).

      In his third and fourth issues, Appellant argues that Officer Palmer

lacked reasonable suspicion or probable cause to stop and search him.

Appellant’s Brief at 18-26. Appellant further asserts that, even if his Terry

stop was valid, the officer’s search exceeded the scope of a lawful frisk in

that Officer Palmer had no indication that Appellant was armed or

dangerous, and it was not immediately apparent that the bulge in

Appellant’s waistband was a weapon or contraband to justify the officer’s

reaching into his pocket under the “plain feel” doctrine. Appellant’s Brief at

27-32.




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      Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889

(1968), a police officer may stop and briefly detain an individual in order to

conduct a limited investigation where the officer possesses reasonable

suspicion that criminal activity is afoot. Commonwealth v. Pakacki, 901

A.2d 983, 988 (Pa. 2006).     “Specifically, this standard is met if the police

officer's reasonable and articulable belief that criminal activity was afoot is

linked with his observation of suspicious or irregular behavior on behalf of

the particular defendant stopped.” Commonwealth v. Kearney, 601 A.2d

346, 348 (Pa. Super. 1992).       “If, during [the] stop, the officer observes

conduct which leads him to believe the suspect may be armed and

dangerous, the officer may pat down the suspect's outer garments for

weapons.” Pakacki, 901 A.2d at 988.

      Here, the juvenile court, concluding that Officer Palmer possessed

reasonable suspicion to stop Appellant and search his pocket, explained:


      [Appellant] was present in an area known to the officers to be a
      high crime area and immediately fled upon observing the officer
      exit his vehicle. ... The officers were justified in conducting a
      Terry stop of [Appellant].

                                       ***
      Officer Palmer testified that after stopping [Appellant’s] flight, he
      observed [Appellant] making furtive hand movements in the
      area of his waist band and pocket and gave the officer a false
      name. Given the totality of the circumstances (presence in a
      high crime area, unprovoked flight, furtive hand movements and
      giving a false name) it is clear that the officer was justified in
      conducting a pat down of [Appellant].

                                      ***


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      Lastly, [Appellant] alleges that Officer Palmer’s pat-down/frisk
      exceeded the permissible boundaries allowed by the ‘plain feel’
      doctrine of Terry.

                                     ***

      [Appellant] was lawfully stopped and frisked by Officer Palmer.
      Officer Palmer testified that during the frisk of [Appellant], he
      felt a bulge that “could have been a weapon.” Upon removing
      this object it was discovered to be the contraband at the heart of
      this case.      Therefore, the seizure of the contraband was
      permissible.

Juvenile Court Opinion, 7/30/14, at 8-10 (citation to notes of testimony

omitted).

      After careful review, we agree with the juvenile court that Officer

Palmer possessed reasonable suspicion to subject Appellant to a Terry stop.

“Reasonable suspicion must be based on specific and articulable facts, and it

must be assessed based upon the totality of the circumstances ... viewed

through the eyes of a trained police officer.” Commonwealth v. Williams,

980 A.2d 667, 671 (Pa. Super. 2009) citing Commonwealth v. Johnson,

734 A.2d 864, 869 (Pa. Super. 1999). Here, Officer Palmer testified that on

the date of the incident, he and Sergeant Facetti were in separate vehicles in

the area of Rosehill Street looking for an individual named Thomas Shultz,

when they observed Appellant walking with an individual who matched

Shultz’s description. N.T., 2/3/14, at 7-8. When Sergeant Facetti exited his

vehicle and stopped Appellant’s companion, Appellant immediately ran away

and was stopped by Officer Palmer.      Id. at 9-10.    Appellant then “kept

reaching into his pockets ... putting his hands back in his pockets and up

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towards his waistband”, prompting Officer Palmer to pat him down for

safety. Id. at 11.    In addition, Appellant provided the officer with a false

name, and the encounter occurred in a high crime area. Id. at 10. These

facts, taken together, support the juvenile court’s determination that the

officers possessed reasonable suspicion to subject Appellant to a Terry stop-

and-frisk.   See Commonwealth v. Murray, 936 A.2d 76, 80 (Pa. Super.

2007) citing United States v. Caruthers, 458 F.3d 459, 466 (6th Cir.

2006), cert. denied, 549 U.S. 1088, 127 S.Ct. 752, 166 L.Ed.2d 582 (2006)

(furtive movements made in response to a police presence may properly

contribute to an officer's suspicions); Commonwealth v. Foglia, 979 A.2d

357, 361 (Pa. Super. 2009) (evasive behavior, location of encounter in a

high crime area, and suspect engaging in hand movements that police know,

based on their experience, are associated with the secreting of a weapon,

contribute to reasonable suspicion).

      Appellant next asserts that the pat-down exceeded the scope of a

lawful Terry frisk.    Appellant’s Brief at 27-32.       Appellant argues that

because Officer Palmer could not tell by “plain feel” that the bulge in

Appellant’s waistband was a weapon, the officer’s intrusion into Appellant’s

waistband was not warranted. Id.

      Under the plain feel doctrine, a police officer may seize non-
      threatening 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

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      object. [T]he 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.

Commonwealth v. Pakacki, 901 A.2d 983, 989 (Pa. 2006) (internal

citations and quotation marks omitted).

      As explained above, “the purpose of a frisk under Terry is not to

discover evidence, but to allow the officer to pursue his investigation without

fear for his or her safety.   In keeping with that purpose, the scope of a

Terry frisk is limited to that which is necessary for the discovery of

weapons. Therefore, in order to reach into a suspect's pocket during a frisk,

the officer would have to feel something that reasonably appears to be a

weapon.” Commonwealth v. Taylor, 771 A.2d 1261, 1269 (Pa. 2001).            In

Taylor, our Supreme Court explained that where a lawful Terry frisk is

being conducted, we need not analyze whether the officer justifiably put his

hand into the suspect’s pocket under the “plain feel exception”, where the

officer who reached into the suspect’s pocket did so under the reasonable

belief that the hard object was a weapon, and not contraband.

      Here, at the suppression hearing, Officer Palmer testified that based

on Appellant’s furtive movements around his waistband, in conjunction with

Appellant’s flight from the police officers and his providing a false name, the


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officer believed that Appellant may be armed and dangerous, and that when

he felt the bulge in Appellant’s waistband, he believed it could have been a

weapon.   N.T., 2/3/14, at 12-13.    The juvenile court found Officer Palmer

credible, and concluded that he possessed the requisite reasonable belief to

justify the intrusion into Appellant’s waistband. The record supports the trial

court’s determination. See Taylor, 771 A.2d at 1270 (“an officer need only

be reasonably, and not absolutely, certain that an individual is armed in

order to investigate for weapons”). For the foregoing reasons, we find no

error in the trial court’s assessment that the search did not exceed the scope

of a lawful Terry frisk. Therefore, we affirm the dispositional order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2015




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