J-S49024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                        OF PENNSYLVANIA
                             Appellee

                        v.

    DAVID WILLIS GROFF

                             Appellant                  No. 1554 MDA 2017


      Appeal from the Judgment of Sentence imposed September 27, 2017
               In the Court of Common Pleas of Lancaster County
                Criminal Division at No: CP-36-CR-0004088-2016


BEFORE: SHOGAN, J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                         FILED NOVEMBER 30, 2018

        Appellant, David Willis Groff, appeals from the judgment of sentence

imposed on September 27, 2017 in the Court of Common Pleas of Lancaster

County, following his conviction of possession with intent to deliver (“PWID”)

and possession of drug paraphernalia.1 Appellant asserts trial court error for

refusing to suppress evidence taken from him following an unlawful detention

and illegal search. Following review, we reverse and remand.

        In its Rule 1925(a) opinion, the trial court stated, “Here, the officer had

articulable facts that supported the stop of [Appellant].” Trial Court Opinion,




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* Former Justice specially assigned to the Superior Court.

1   35 P.S. §§ 780-113(a)(30) and 780-113(a)(32), respectively.
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1/2/18, at 3 (unnumbered). The court proceeded to summarize the facts of

the case, with references to the suppression hearing transcript, as follows:

       Officers Michael Zimmerman and Jed Custer were dispatched at
       1:45 a.m. [on March 13, 2016,] after receiving a call from a
       private citizen, Donald Meier, who observed a man laying (sic) in
       the middle of the road. Mr. Meier reported that he rolled down his
       window and asked the man if he was okay, and the man shouted
       an obscenity at him and ran behind a nearby building. Mr. Meier
       described the man as a white scruffy male wearing a coat and hat.
       About two minutes after talking to Mr. Meier, Officer Custer
       located two men behind a nearby bank, both matching the
       description that Mr. Meier gave to the Officers.

       Officer Zimmerman spoke with [Appellant] and testified that he
       “seemed extremely nervous” and was “also getting very agitated”
       and pacing back and forth. After checking warrants, Officer
       Zimmerman went back to speak with [Appellant], and noticed the
       smell of burnt marijuana.      Officer Zimmerman then asked
       [Appellant] if he had any marijuana, and [Appellant] pulled out a
       glass pipe that appeared to have marijuana residue in it. After
       finding the glass pipe, Officer Zimmerman placed [Appellant]
       under arrest and searched him incident to arrest.         Officer
       Zimmerman found two           clear   plastic bags containing
       methamphetamine, and a small digital scale in [Appellant’s] left
       pocket.

Trial Court Opinion, 1/2/18, at 3 (unnumbered) (emphasis added) (references

to notes of testimony omitted).2


____________________________________________


2 The court’s factual findings are set forth in full in the above-quoted excerpt
from the court’s Rule 1925(a) opinion. We note the court did not enter a
statement of findings of fact and conclusions of law at the conclusion of the
suppression hearing in accordance with Pa.R.Crim.P. 581(I). However, where
the suppression court fails to abide by Rule 581(I), we may look to the trial
court’s Rule 1925(a) for its findings of fact as well as its conclusions of law.
See Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002)
(en banc).



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     Appellant was arrested and charged with PWID (methamphetamine) and

possession of drug paraphernalia. In a counseled omnibus pretrial motion

filed on October 6, 2016, Appellant sought to suppress identification

information and statements Appellant provided to police at the time of his

arrest as well as items located on his person, i.e., a glass smoking device

containing suspected marijuana residue, a digital scale, and a pouch

containing suspected methamphetamine.          He also sought suppression of

statements made subsequent to his arrest. The court conducted a suppression

hearing on July 10, 2017.

     At the conclusion of the hearing, the court heard argument and then

denied the suppression motion, announcing:

     Now, I mean, I’ll allow this is a close call, but honestly, I think the
     hour of the morning, the location they’re found, it seems to me
     that it was reasonable for the officers to look into this further to
     see whether there was anything unlawful going on here. And as
     they did, they determined certain things that, in my opinion, don’t
     violate your client’s constitutional rights.

Notes of Testimony (“N.T.”), Suppression Hearing, 7/10/17, at 38.

     In its Rule 1925(a) opinion, the trial court explained:

     Under the totality of the circumstances, the officers possessed the
     necessary amount of reasonable suspicion to stop and detain
     [Appellant]. During his initial encounter with Officer Zimmerman,
     [Appellant] was extremely agitated and nervous, and was pacing
     back and forth. The court noted that very little time elapsed from
     the time Mr. Meier observed a man lying in the street, to when
     [Appellant] and another man were found nearby.15 The court
     remarked further that given “the hour of the morning, the location
     they’re found, it seems to me that it was reasonable for the
     officers to look into this further to see whether there was anything
     unlawful going on here.”16

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      15
           N.T. at 38.
      16
           Id.

Id. at 3-4 (unnumbered) (some capitalization omitted).

      A bench trial on the drug charges immediately followed the suppression

hearing. The trial court found Appellant guilty and, on September 27, 2017,

sentenced Appellant to a term of one year less one day to two years less one

day in county prison plus two years’ probation for PWID, and one year of

probation for possession of drug paraphernalia, concurrent with the probation

imposed for PWID. This timely appeal followed. Appellant and the trial court

complied with Pa.R.A.P. 1925.

      In this appeal, Appellant asks us to consider one issue:

      Did the trial court err in denying the Appellant’s omnibus pretrial
      motion seeking to suppress evidence taken from the Appellant
      when members of the New Holland Police Department subjected
      the Appellant to an unlawful detention and attendant illegal search
      because they lacked reasonable suspicion based on specific and
      articulable facts to believe that the Appellant was engaged in
      criminal activity?

Appellant’s Brief at 5 (some capitalization omitted).

      As a challenge to denial of suppression, we apply the following standard

of review:

      [An appellate court’s] standard of review in addressing a challenge
      to the denial of a suppression motion is limited to determining
      whether the suppression court’s factual findings are supported by
      the record and whether the legal conclusions drawn from those
      facts are correct. Because the Commonwealth prevailed before
      the suppression court, we may consider only the evidence of the
      Commonwealth and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record as

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      a whole. Where the suppression court’s factual findings are
      supported by the record, [the appellate court is] bound by [those]
      findings and may reverse only if the court’s legal conclusions are
      erroneous.

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (quoting

Commonwealth v. Jones, 121 A.3d 524, 526 (Pa. Super. 2015) (alterations

in original) (citation omitted)). “Factual findings wholly lacking in evidence,

however, may be rejected.” Commonwealth v. Burnside, 625 A.2d 678,

680 (Pa. Super. 1993) (quoting Commonwealth v. Bennett, 604 A.2d 276,

277 (Pa. Super. 1992) (citations omitted). Further:

      Where . . . the appeal of the determination of the suppression
      court turns on allegations of legal error, the suppression court’s
      legal conclusions are not binding on an appellate court, whose
      duty it is to determine if the suppression court properly applied
      the law to the facts. Thus, the conclusions of law of the courts
      below are subject to [ ] plenary review.

Smith, 164 A.3d at 1257 (quoting Jones, 121 A.3d at 526-27) (alteration in

original) (additional citations omitted).

      Appellant argues that the police unlawfully detained and searched him

without reasonable suspicion. Therefore, they lacked probable cause to arrest

him without a warrant and the fruits of that arrest should have been

suppressed. As required by Smith and Jones, we must first consider the

Commonwealth’s      uncontradicted    evidence   to   determine   whether   the

suppression court’s factual findings are supported by the record.           As

authorized by Burnside, we may reject the findings that are unsupported in

the record.

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         Having reviewed the transcript of the suppression hearing, we conclude

the trial court’s factual findings are unsupported by the evidence in one

important respect.       Officer Zimmerman stated that both men fit the

dispatcher’s description as scruffy white males wearing a coat and hat. Notes

of Testimony (“N.T.”), Suppression Hearing, 7/10/17, at 11. While Officer

Custer acknowledged that “technically, both of them could have possibly been

the person that was laying (sic) in the middle of the road[,]” id. at 28, his

report reflects that the male who best fit the description was Sizemore. Id.

at 29. The court appeared to recognize that fact when it entertained argument

regarding reasonable suspicion following the testimony and commented,

“Well, that - - the reasonable suspicion is what? They’re the only two guys

that were in the vicinity when the police arrived, and one of them, not

[Appellant], happens to fit the description perhaps that they were given?” Id.

at 32.

         Again, the trial court stated, “About two minutes after talking to Mr.

Meier, Officer Custer located two men behind a nearby bank, both matching

the description that Mr. Meier gave to the Officers.”     Trial Court Opinion,

1/2/18, at 3 (unnumbered). However, the transcript reflects that, while both

“technically” could have been the person in the road, the one who best fit the

description identified himself as Sizemore.       N.T., Suppression Hearing,

7/10/17, at 28-29. To the extent the trial court’s factual finding is not an

accurate reflection of the testimony of record, we are not bound by its finding


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in that regard. In re M.D., 781 A.2d 192, 195-96 (Pa. Super. 2001) (where

record did not support trial court’s conclusion that appellant matched the

description of the robbery suspect, this Court was not bound by the court’s

finding of fact relative to appellant’s appearance where “the record permits

only the conclusion that appellant ‘partially fit the description’ of the robbery

suspect”).

        We next consider whether the suppression court properly applied the

law to the facts. As explained above, the suppression court’s conclusions of

law are subject to plenary review. Smith, 164 A.3d at 1256.

        The trial court explained that Pennsylvania courts have long followed

Terry v. Ohio, 392 U.S. 1 (1968), which stands for the proposition that

“officers may stop an individual for an investigatory detention if they have

reasonable suspicion that criminal activity is ‘afoot.’”     Trial Court Opinion,

1/2/18, at 2 (unnumbered). The court continued:

        Reasonable suspicion exists where a police officer can point to
        specific and articulable facts which, taken together with rational
        inferences from those facts, justify an intrusion. In order for a
        stop to be reasonable, the officer’s reasonable and articulable
        belief that criminal activity was afoot must be linked with his
        observation of suspicious behavior on the part of the defendant.

Id. (citing Terry, 392 U.S. at 22,3 and Commonwealth v. Ayala, 791 A.2d

1202, 1209 (Pa. Super. 2002)).           As this Court recognized in Ayala, “This

____________________________________________


3   In Terry, the Supreme Court explained:




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standard is very narrow, however, in that it requires a ‘particularized and

objective basis for suspecting the particular person stopped of criminal

activity.’” Id. at 1209 (citations and internal quotations omitted) (emphasis

in original).

       As this Court reiterated in Commonwealth v. Davis, 102 A.3d 996 (Pa.

Super. 2014):

       The reasonable suspicion necessary to conduct a Terry frisk and,
       in fact, all investigative detentions is a less demanding standard
       than probable cause not only in the sense that reasonable
       suspicion can be established with information that is different in
       quantity or content than that required to establish probable cause,
       but also in the sense that reasonable suspicion can arise from
       information that is less reliable than that required to show
       probable cause.

Id. at 999 (quoting Commonwealth v. Fell, 901 A.2d 542, 545 (Pa. Super.

2006) (in turn quoting Arizona v. White, 496 U.S. 325, 330 (1990)). “Yet,

. . . reasonable suspicion does not require that the activity in question must


____________________________________________


       [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?

Id., 392 U.S. at 21-22 (footnotes omitted).

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be unquestionably criminal before an officer may investigate further. Rather,

the test is what it purports to be—it requires a suspicion of criminal conduct

that is reasonable based upon the facts of the matter.” Id at 1000 (quoting

Commonwealth v. Rogers, 849 A.2d 1185, 1190 (Pa. 2004) (emphasis in

original)).

      Moreover:

      In order for a stop to be reasonable under Terry [], the police
      officer’s reasonable and articulable belief that criminal activity was
      afoot must be linked with his observation of suspicious or irregular
      behavior on the part of the particular defendant stopped. Mere
      presence near a high crime area . . . or in the vicinity of a recently
      reported crime . . . does not justify a stop under Terry.
      Conversely, an officer’s observation of irregular behavior without
      a concurrent belief that crime is afoot also renders a stop
      unreasonable.

Ayala, 791 A.2d at 1209 (quoting Commonwealth v. Espada, 528 A.3d 968,

970 (Pa. Super. 1987) (additional citations omitted)).

      At the suppression hearing, there was no mention of any crime afoot at

the time Appellant was detained.      The only “specific and articulable facts”

mentioned by Officer Zimmerman were the report of a scruffy white male lying

in a street who shouted an obscenity at a vehicle operator before running off,

the vehicle operator’s account of the male running from the scene to an area

behind M&T Bank, Officer Custer’s radioed message that he encountered two

men standing in the M&T parking lot, Appellant’s denial of being the male lying

in the street, and Officer Zimmerman’s sense that Appellant was very nervous

and agitated as he expressed his desire to take items to his girlfriend’s place


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approximately 30 yards away. N.T., Suppression Hearing, 7/10/17, at 8-14.

The only “specific and articulable facts” reported by Officer Custer were that

he received the radio report of an unshaven, scruffy-faced male lying in the

road wearing a dark blue hat and a coat, that he located two males in the M&T

parking lot, and that he asked Appellant if he would agree to be searched.

Appellant declined and asked to leave to go to this girlfriend’s apartment.

Officer Custer also acknowledged that his written report reflected that the

male who fit the description given by the dispatcher identified himself as

Sizemore. Id. at 26-29.

      Other than the fact of a male lying in a roadway, an event that ended

prior to the arrival of Officers Zimmerman and Custer, neither officer pointed

to any specific and articulable facts that justified an intrusion. There was no

suggestion whatsoever that there was criminal activity afoot.      Essentially,

there was nothing other than Officer Zimmerman’s assessment that Appellant

was nervous and agitated—something Officer Custer did not mention or even

suggest—prompting Officer Zimmerman to pat down Appellant.           Although

Officer Zimmerman did not detect anything in the course of his pat down

search, he obtained identification information from Appellant and conducted a

warrant search. Up to that point in time, the only articulated basis for the

detention was Appellant’s nervousness. However, nervousness alone is not

sufficient to support a reasonable suspicion that Appellant was engaged in

unlawful activity.   Commonwealth v. Gray, 896 A.2d 601, 606 n.7 (Pa.


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Super. 2006) (“while nervous behavior is a relevant factor, nervousness alone

is not dispositive and must be viewed in the totality of the circumstances. See

In re M.D., 781 A.2d 192 (Pa. Super. 2001).”)

      As this Court observed in Commonwealth v. DeHart, 745 A.2d 633

(Pa. Super. 2000),

      the initial questioning of Appellees yielded no tangible information
      that would provide “reasonable suspicion” of criminal activity.
      Rather, as testified to by [the trooper], he believed that [the
      vehicle’s driver] was acting suspiciously because he avoided eye
      contact and was speaking softly. As indicated by the trial court,
      Commonwealth v. Sierra, 555 Pa. 170, 723 A.2d 644 (1999),
      reasonably suggests that a police officer’s assessment that the
      occupants of a vehicle appear nervous does not provide
      reasonable suspicion for an investigative detention.

Id. at 637.

      At the conclusion of the suppression hearing, the court mentioned that

“the hour of the morning [and] the location they’re found” lent support to a

finding that the officers acted reasonably “to look into this further to see

whether there was anything unlawful going on here.”          N.T., Suppression

Hearing, 7/10/17, at 38. While the time of day was mentioned, neither the

time nor the location was articulated by the officers as a reason for the

detention. While there is no question that the encounter occurred shortly after

1:45 a.m., there is nothing in the record to suggest that the location was

anything other than a bank parking lot. There was no testimony suggesting

the bank parking lot was located in a high crime area. Rather, it appears the

court was attempting to defend its conclusion that the officers were justified


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in trying to determine “whether there was anything unlawful going on.” Trial

Court Opinion, 1/2/18, at 4 (unnumbered) (quoting N.T., Suppression

Hearing, 7/10/17, at 38).

      Based on the totality of the circumstances, we conclude there was no

reasonable or articulable belief that there was any criminal activity linked to

any suspicious behavior on the part of Appellant to warrant an investigatory

detention.    Therefore, we find the suppression court erred in denying

Appellant’s omnibus pretrial motion.

      Judgment of sentence vacated. Order denying suppression reversed.

Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2018




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