J-S18002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ROBERT SAUNDERS,

                        Appellant                  No. 1602 EDA 2013


       Appeal from the Judgment of Sentence Entered May 14, 2013
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0009749-2012


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

MEMORANDUM BY BENDER, P.J.E.:                         FILED MAY 01, 2015

      Appellant, Robert Saunders, appeals from the judgment of sentence of

6-12 months’ incarceration following his conviction for possession of, and

possession with intent to deliver (PWID), marijuana.        In this appeal,

Appellant challenges the weight and sufficiency of the evidence supporting

his conviction, and he also claims that the trial court erred when it denied

his suppression motion. After careful review, we reverse.

      The trial court summarized the events leading to Appellant’s conviction

as follows:

            On February 2, 2012, at around 1:50 p.m., Highway Patrol
      Officer Joseph Wolk and his partner[,] Officer George Soto[,]
      were on routine patrol of the 2700 block of North 26 th Street in
      the City and County of Philadelphia. Officer Wolk testified that
      this was a high crime and violence area with a number of
      shootings. Both officers were in full uniform and driving a
      marked highway patrol vehicle westbound on Lehigh Avenue
      approaching 26th Street.     Officer Wolk testified that upon
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     reaching the middle of the 2500 block of West Lehigh Avenue he
     noticed a tan 2001 Lincoln Navigator driving in reverse and
     proceeding northbound against the one-way direction of North
     26th Street. Officer Wolk observed the vehicle back through a
     red signal [and] proceed onto the 2700 block of 26 th Street.
     Officer Wolk followed the vehicle onto 26th Street. He then
     pulled directly in front of the vehicle, and followed it as it
     reversed, coming almost bumper to bumper with it. Officer Wolk
     observed [Appellant], operate the vehicle alone with his head
     turned to the rear and one hand on the steering wheel. When
     [Appellant] stopped the car, he finally faced forward and saw the
     officers. The officers then stopped and exited their patrol car.

           Officer Wolk approached the passenger side of the vehicle
     while Officer Soto approached the driver's side door. Officer
     Soto spoke to [Appellant], and Officer Wolk observed [Appellant]
     from the passenger side but could not see the right side of
     [Appellant]'s body because it was blocked by the center console.
     Officer Wolk opened the passenger side door in order to ensure
     that there was nothing hidden next to [Appellant] which could
     threaten his or Officer Soto's safety. Officer Wolk immediately
     noticed two boxes of baking soda and a "Foot Locker”-type bag
     (i.e. plastic sneaker bag with a drawstring used to carry
     shoeboxes) approximately 16 inches high and 10 or 12 inches
     wide on the passenger seat. Officer Wolk saw that the sneaker
     bag was open, but he could not see into the bag from where he
     was standing outside the car. Officer Wolk leaned into the car
     and looked down into the bag, where he saw a large, clear heat-
     sealed bag containing marijuana.

            Officer Wolk signaled to Officer Soto who had [Appellant]
     step out of the car. [Appellant] was handcuffed and placed in
     the back of the patrol car. [Appellant] and his vehicle were
     relocated to 25th and Lehigh Avenue because a crowd had been
     forming during the traffic stop.          Officer Wolk searched the
     vehicle after the arrest and recovered "four small sandwich bags,
     all tied up with knots, all with green weedy substance inside of
     alleged marijuana." Officer Wolk also recovered $245 from
     [Appellant]'s pockets. The recovered money consisted of thirty-
     five $1 bills, six $5 bills, four $10 bills, and seven $20 bills. The
     vehicle [Appellant] was operating was owned and registered by
     him, and he was issued a traffic ticket for disregarding a red
     signal.


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            At trial, Officer Kevin Keyes testified as an expert witness
     for the Commonwealth. He testified that he has worked in
     narcotics for 19 years, has been a police officer for 24 years, and
     works or has worked throughout the entire city of Philadelphia.
     He testified that he is quite familiar with the location of the
     traffic stop and the surrounding area. Officer Keyes opined that
     the marijuana possessed by [Appellant] was consistent with that
     of a low-level distributor, and that it was possessed with the
     intent to deliver. He testified that the combined weight of the
     bulk marijuana found in the front seat and the smaller sandwich
     bags containing marijuana found in the center console was 219
     grams — a little under half a pound. He estimated the value of
     the recovered marijuana to be "anywhere from $500-1500,
     depending on [its] quality and the THC level, which is the
     compound that produces the high in the cannabis plant." He
     also testified that the four individual small bags found in the
     center console weighed 1.2 grams each for a total of 4.8 grams,
     and constituted a "$40 investment." He testified that in his
     experience, "if an individual has access to bulk, they would not
     be purchasing small bags [of 1.2 grams each]," but would use
     that $40 to purchase a quarter of an ounce bag (approximately 7
     grams). Officer Keyes testified that in his experience, when an
     individual has bulk bags and small bags, the intention is to break
     down the bulk into smaller bags for distribution. Furthermore,
     Officer Keyes testified that the denominations in which the
     money was recovered was "consistent with a distributor."

           Frank Wallace testified as an expert witness for the
     Defense.    It was his opinion that "there was no material
     evidence that would indicate that [Appellant] was anything other
     than a user, albeit a heavy user." He testified that he has
     extensive experience as an investigator, undercover agent, and
     supervisor in the narcotics squad, and has conducted very large
     narcotics surveillances or investigations with the DEA and with
     FBI agents. On cross-examination he testified he did not know
     the street value of a bag of marijuana in Philadelphia, and did
     not appear to have current knowledge of the denominations in
     which marijuana is sold locally.

Trial Court Opinion (TCO), 9/19/14, 1-4 (citations to the record omitted).

     The trial court denied Appellant’s suppression motion on January 23,

2013. He was tried non-jury on the same day, and ultimately convicted of


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possession of marijuana, 35 P.S. § 780–113(a)(16), and PWID (marijuana),

35 P.S. § 780–113(a)(30).       On May 14, 2013, the trial court sentenced

Appellant to 6-12 months’ incarceration and a consecutive term of 3 months’

probation.    Appellant filed a timely appeal on June 3, 2013, and a timely

Pa.R.A.P. 1925(b) statement of errors complained of on appeal on April 10,

2014.     The trial court issued its Rule 1925(a) opinion on September 19,

2014.

        Appellant now presents the following questions for our review:

        1. Did the Court err by denying [A]ppellant’s motion to suppress
        – based upon the Constitutions of the United States and the
        Commonwealth of Pennsylvania – the narcotics in the bag
        allegedly on the front seat; as the police did not have reasonable
        suspicion or probable cause to stop [A]ppellant nor were the
        police legally allowed to be where they were when they allegedly
        saw the narcotics in the bag thus the plain view doctrine does
        not apply?

        2. Did the Court err by denying [A]ppellant’s motion to suppress
        – based on the Constitutions of the United States and the
        Commonwealth of Pennsylvania – the narcotics that were
        secreted inside the console of the vehicle as [Appellant] was
        already in custody, under arrest and/or its functional equivalent
        and as such, a warrant would have been necessary to search the
        vehicle.

        3. Was the evidence adduced at trial sufficient to sustain the
        conviction of Possession with Intent to Deliver a Controlled
        Substance as the evidence indicated it was just as likely that
        narcotics were possessed for personal use?

        4. Was the verdict against the weight of the evidence as the
        [A]ppellant’s expert provided evidence that was as credible as
        the expert called by the Commonwealth and no reasonable juror
        could find otherwise?




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Appellant’s Brief, at 11 (footnote omitted).     In a footnote to his second

issue, Appellant notes that he has abandoned that claim “in light of recent

development in Pennsylvania case law.” Id. at 11 n.1.

      Appellant’s first claim presents multiple challenges to the the denial of

his suppression motion before the trial court.

      Our 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 a whole. Where the suppression court's factual findings are
      supported by the record, we are bound by these findings and
      may reverse only if the court's legal conclusions are erroneous.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010).

      Although Appellant’s statement of the first question presents multiple

theories of relief, he now concedes “the stop was supported by probable

cause to believe that [Appellant] violated” the Motor Vehicle Code.

Appellant’s Brief, at 19.   Thus, Appellant’s sole suppression-related legal

claim is that the plain view doctrine did not apply because the police did not

observe the seized contraband from a lawful vantage point. He also argues

that one of the trial court’s factual findings—that he had engaged in evasive

behavior during the stop—lacked support in the record.          We begin our

analysis by resolving the factual issue as it is critical to the legal question

before us.



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      In its treatment of Appellant’s claim, the trial court states as follow:

             In the present case, the Commonwealth provided specific
      facts by which to support a search of [Appellant]'s vehicle for
      officer safety. First, [Appellant] was driving dangerously, and
      had driven in reverse through a red light at an intersection.
      Furthermore, [Appellant] did not immediately stop his
      vehicle even after the officers had pulled in front of him to
      pull him over. Such behavior typifies evasiveness, and
      provides additional grounds for the officers to develop a
      reasonable suspicion that further criminal activity is afoot.
      Finally, the area was known for being a high-crime location with
      many shootings.

TCO, at 7 (emphasis added). Appellant contends that the above-emphasized

‘fact’ is not supported by the record.

      Initially, we note that the trial court’s reliance on Appellant’s

purportedly evasive behavior, his failure to immediately stop when police

began pursuit, is not accompanied by any citation to the record. Id. The

matter was not even mentioned in the trial court’s otherwise detailed factual

summary. Id. at 2-5. Indeed, that more comprehensive factual summary

suggests the opposite conclusion regarding Appellant’s alleged evasiveness.

It indicates that Appellant was not aware of the police following him because

his head was turned to the rear of his vehicle while being followed.

Additionally, when the trial court summarized its factual findings at the

conclusion of the suppression hearing, it made no mention of Appellant’s

purported failure to promptly stop. N.T., 1/23/13, at 62-65. At that time,

the court did not even once suggest that Appellant engaged in evasive

behavior at any time during his encounter with the police. Id.



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       Officer Wolk testified regarding what happened after he saw Appellant

drive his car in reverse through an intersection, as follows:

       I then got in front of the vehicle, still reversing on 26 th Street. I
       was directly in front of the vehicle. [Appellant] was operating
       the vehicle but he had his head turned to the rear of the vehicle
       backing up the street. As he turned around, [he] looked in my
       direction. I was in front of it. We exited the vehicle.

N.T., 1/23/13, at 11.

   During the cross-examination of Officer Wolk, he was asked, “And we can

agree based on – and I’ve asked you this four or five times in different ways

but we can agree at the point in time that the car is stopped and your car is

stopped, there’s no exigency, meaning, you haven’t seen anything that

[Appellant] has engaged [in] that would raise your suspicions other than he

had violated the traffic law, right?” Id. at 34-35. Officer Wolk responded,

“That’s correct.” Id. at 35.

       Thus, there appears to be no support in the record for the trial court’s

finding that Appellant engaged in evasive behavior.          The Commonwealth

scoffs at this conclusion, stating that “[t]he only thing unsupported by the

record is [Appellant’s] specious proposition.” Commonwealth’s Brief, at 14

n.2.     The   Commonwealth       concedes    Officer   Wolk’s   observation    that

Appellant’s “head was turned as he was backing dangerously in reverse

down the one-way street[,]” but contends that “Officer Wolk did not-and

could not-testify to what [Appellant] did or did not see prior to or during his

reckless jaunt.” Id. Thus, the Commonwealth argues, “[r]ecognizing this,

the lower court properly made the following factual finding, which is entirely

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supported by the record: ‘[Appellant] did not immediately stop his vehicle

even after the officers had pulled in front of him,’ [behavior which] “typifies

evasiveness[.]’” Id. (quoting TCO, at 7).

      The Commonwealth’s argument is absurd on its face. It suggests that

the factual foundation for the trial court’s finding that Appellant engaged in

evasive behavior somehow arises out of a complete lack of evidence

concerning Appellant’s evasiveness.    Yet, there is not even any support in

the record for the proposition that the police were following Appellant for any

significant period of time, or that Appellant failed to immediately stop.

Officer Wolk, the only witness to testify during the suppression hearing, did

not once indicate that Appellant failed to immediately stop when Officer Wolk

began to follow him. He only stated that Appellant stopped once Appellant

had turned his head to face Officer Wolk’s vehicle. Accordingly, we conclude

that the record does not support the trial court’s factual finding regarding

Appellant’s purported evasiveness.

      We now turn to the legal question before us. We begin with a review

of the plain view doctrine, upon which the trial court relied in denying

Appellant’s suppression motion.       “A warrantless search or seizure is

presumptively unreasonable under the Fourth Amendment and Article I, § 8,

subject to a few specifically established, well-delineated exceptions.”

Commonwealth v. McCree, 924 A.2d 621, 627 (Pa. 2007).                One such

exception to the presumptive unreasonableness of a warrantless search or

seizure is the “plain view doctrine.” Id. An object may be seized by police

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without a warrant if (1) the police observe the object from lawful vantage-

point; (2) the incriminating character of the object is immediately apparent;

and (3) the police have a lawful right of access to the object. Id. at 625.

      Here, Appellant contends that Officer Wolk did not have the authority

to conduct a protective search of his vehicle. This implicates both the first

and third prong of the plain view doctrine.       If Officer Wolk lacked the

authority to conduct a protective sweep of Appellant’s vehicle, then he did

not have a lawful right of access to the seized marijuana.        Relatedly, if

Officer Wolk was not justified in conducting a protective sweep, which had

enabled him to view the contraband, then the marijuana was not observed

from a lawful vantage point.

      The authority to conduct a warrantless “search of the passenger

compartment of a vehicle for weapons” prior to an arrest is governed by

Michigan v. Long, 463 U.S. 1032 (1983):

      Our past cases indicate then that protection of police and others
      can justify protective searches when police have a reasonable
      belief that the suspect poses a danger, that roadside encounters
      between police and suspects are especially hazardous, and that
      danger may arise from the possible presence of weapons in the
      area surrounding a suspect.        These principles compel our
      conclusion that the search of the passenger compartment of an
      automobile, limited to those areas in which a weapon may be
      placed or hidden, is permissible if the police officer possesses a
      reasonable belief based on “specific and articulable facts which,
      taken together with the rational inferences from those facts,
      reasonably warrant” the officers in believing that the suspect is
      dangerous and the suspect may gain immediate control of
      weapons.




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Long, 463 U.S. at 1049.      Long represents an extension of the principles

first announced in Terry v. Ohio, 392 U.S. 1 (1968).            In Terry, the

Supreme Court of the United States granted authority to police officers to

pat-down or frisk an individual for weapons based upon the reasonable belief

that the suspect may be armed and dangerous and/or that criminal activity

is afoot.

      In the present case, the trial court found that Officer’s Wolk’s breach

of the threshold of Appellant’s passenger-side door was justified under the

Long/Terry standard for the following reasons:

      In the present case, the Commonwealth provided specific facts
      by which to support a search of the defendant's vehicle for
      officer safety. First, the defendant was driving dangerously, and
      had driven in reverse through a red light at an intersection.
      Furthermore, the defendant did not immediately stop his vehicle
      even after the officers had pulled in front of him to pull him over.
      Such behavior typifies evasiveness, and provides additional
      grounds for the officers to develop a reasonable suspicion that
      further criminal activity is afoot. Finally, the area was known for
      being a high-crime location with many shootings. When viewing
      these facts in their totality, the Court finds that the officers had
      reasonable suspicion not only that the defendant was engaged in
      criminal activity, but that the defendant may also have been in
      possession of a weapon in furtherance of that activity.
      Therefore, when the officers finally pulled the defendant over
      and noticed that the right side of the defendant's body was
      obscured from view by the center console, Officer Wolk was
      justified in opening the passenger side door to conduct an officer
      safety sweep for weapons.

TCO, at 7.

      The trial court found that Officer Wolk possessed a reasonable

suspicion that Appellant was armed and dangerous and may have been



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concealing a weapon based on the following factors: 1) Appellant’s motor

vehicle code infraction; 2) Appellant’s evasive behavior; and 3) Appellant’s

presence in a high-crime area. Id. As previously decided, the record does

not support the trial court’s finding that Appellant engaged in evasive

behavior. However, the Commonwealth also argues that it is also relevant

that Appellant’s right hand was shielded from Officer Wolk’s view.          To a

limited extent, we agree that the fact is relevant, insofar as it suggests the

intended target of Officer Wolk’s search as well as the permissible contours

of any limited search to assuage the officer’s fears. Thus, certainly, the fact

that Appellant’s hand was obscured from Officer Wolk’s view is relevant to

our analysis.

       Additionally, however, the Commonwealth attempts to portray this fact

as intentional and secretive behavior on Appellant’s part, when it suggests

that Appellant “shielded his right arm from Officer Wolk’s view by keeping it

behind the center console[.]” Appellant’s Brief, at 15. Yet, there is nothing

in the record supporting this characterization. If Officer Wolk had testified

that he observed something to suggest intentionality, such as an unnatural

hand    position   or   furtive   movements,   then   we   could   accept    the

Commonwealth’s characterization as a reasonable inference deriving from

the record. However, the Commonwealth has not pointed to any portion of

Officer Wolk’s testimony from which that characterization could be inferred.

Indeed, the trial court did not even attempt to characterize this fact as an

intentional act in its Rule 1925(a) opinion. See TCO, at 7 (stating that the

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officers “noticed that the right side of [Appellant’s] body was obscured from

view by the center console”).         In our own careful review of Officer Wolk’s

testimony,     we    have    not    discovered     any   testimony   supporting   the

characterization that Appellant was intentionally trying to obscure his right

hand from Officer Wolk’s view.1

       It is not a reasonable inference from the fact that Appellant’s right

hand was shielded from Officer Wolk’s view that Appellant was trying to

secrete anything. Indeed, this fact, or something quite similar, will likely be

present during every traffic stop. Objects located under seats or near the

occupants’ feet will likewise be obscured from any officer standing alongside

a passenger vehicle. The mere inability of an officer to observe every inch of

an individual’s body, or every area of the passenger compartment where a

weapon might be secreted, does not, by itself, constitute “‘specific and

articulable fact[] which, taken together with the rational inferences from

th[at] fact[], reasonably warrant’ the officers in believing that the suspect is

dangerous and the suspect may gain immediate control of weapons.” Long,

463 U.S. at 1049. Thus, the legal question before us, properly framed by

facts actually supported by the record, is whether the observation of a motor

vehicle infraction in a high crime area reasonably warrants the belief that the
____________________________________________


1
  Whether Officer Wolk’s partner, Officer Soto, was able to see Appellant’s
right hand from his vantage point on the driver’s side of Appellant’s vehicle
is unresolved by the record. Officer Soto did not testify at the suppression
hearing.



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driver is armed and dangerous or engaged in criminal activity so as to justify

a limited search for weapons.

       While none of the following cases are directly on point, they are

instructive.   In Commonwealth v. Mesa, 683 A.2d 643 (1996), police

stopped a car due to erratic and “evasive” driving.      Id. at 645.    When

stopped, Mesa “was moving around ‘a lot’ in the passenger seat.” Id. When

the police officers attempted to speak to Mesa, they realized that he could

not speak English. Id. The officers removed Mesa from the car, patted him

down for weapons, and discovered marijuana and drug paraphernalia. Id.

Addressing the permissibility of the pat-down, this Court relied on

Commonwealth v. Morris, 619 A.2d 709 (Pa. Super. 1992), in holding that

Mesa’s furtive movements constituted an “‘articulable’ suspicion that [Mesa]

might be armed and dangerous.” Mesa, 683 A.2d at 646.

       In Morris, the appellant was a passenger in a vehicle stopped for the

driver’s failure to use a turn signal. “When [the] [o]fficer … approached the

stopped car he saw Morris stuffing a brown paper bag under the seat.”

Morris, 619 A.2d at 710.     Morris was ordered out of the car, and police

discovered drugs in the secreted bag. Id. This Court held that “the officer's

actions … were justified after observing Morris's furtive movements in

stuffing a brown bag under the front passenger seat of the vehicle.” Id. at

712.

       By contrast, in Commonwealth v. Cartagena, 63 A.3d 294 (Pa.

Super. 2013) (en banc), the Commonwealth appealed from the trial court’s

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granting of Cartagena’s suppression motion. Cartagena was stopped at 1:50

a.m. for a tinted windows violation. He was asked to lower his window, but

he did not respond until a second request was issued. When asked for his

license and registration, he initially opened his center console, “looked inside

‘like he was going to retrieve paperwork out of there[,] [ ... ] looked stunned

and then closed it.’” Id. at 296. He then retrieved the documentation from

his glove box. Officer Johncola testified that Appellant appeared extremely

nervous during the encounter. He was tripping over his words and shaking.

Based      on   these   factors,   Officer   Johncola   searched   the   passenger

compartment of Cartagena’s vehicle for weapons.            Contraband, a firearm

with an altered manufacturer’s number, was discovered in the center

console.

      An en banc panel of this Court affirmed the trial court’s granting of

Cartagena’s suppression motion because the police lacked reasonable

suspicion that Cartegena was armed or dangerous:

      In contrast to the Commonwealth's recitation of the facts, our
      review of the record in this case reveals that it is significantly
      lacking in articulable facts that would allow us to reverse the
      suppression court's decision. The entirety of Officer Johncola's
      testimony comprises little more than six pages of transcript, with
      the direct examination conducted by the Commonwealth
      covering just over three pages.        The suppression hearing
      transcript contains no information about Officer Johncola's level
      of training or experience in conducting traffic stops (or even
      years of service) and is devoid of any testimony that Officer
      Johncola believed, based on his training and experience, that
      Cartagena possessed a weapon or had access to a weapon in his
      vehicle. See Terry, 392 U.S. at 30–31[]; Long, 463 U.S. at
      1049–50[]; see also In re O.J., 958 A.2d [561,] 563 [(Pa.


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       Super. 2008)] (officer testifying that police “normally” conduct a
       protective weapons search of a vehicle where they observe
       furtive hand movements during a stop, as “that behavior
       creates a fear that a weapon may be located where the
       movements occurred.”). There was also no testimony describing
       the neighborhood in which this stop occurred, i.e., there is no
       testimony that it was a high-crime area; only that police stopped
       Cartagena in the 100 block of Lehigh Avenue in Philadelphia.
       Furthermore, there is no indication that Cartagena did not
       immediately stop for the police (see In re O.J., 958 A.2d at
       563); that the police saw any weapons in the vehicle prior to
       conducting [] the protective search (see Long, 463 U.S. at
       1051, 103 S.Ct. 3469; Morris, 537 Pa. at 419, 644 A.2d at 722;
       Commonwealth v. Rosa, 734 A.2d 412, 413 (Pa.Super.
       1999)); or that he made any movements that caused Officer
       Johncola to believe that Cartagena was in possession of a
       weapon or that Cartagena posed a safety threat (see
       Commonwealth v. Foglia, 979 A.2d 357, 359 (Pa. Super.
       2009) (en banc); In re O.J., 958 A.2d at 563; Commonwealth
       v.    Wilson,   927    A.2d     279,   284     (Pa.  Super.2007);
       Commonwealth v. Boyd, 17 A.3d 1274, 1276 (Pa. Super.
       2011)).

Cartagena, 63 A.3d at 302-04 (footnotes and some citations omitted).

       After reviewing these and many other similar cases involving limited

searches for weapons during routine traffic stops, it is apparent that the

primary (but not exclusive2) touchtone for determining whether reasonable

suspicion exists to justify a limited weapons search is the evasiveness and/or




____________________________________________


2
   For instance, independent evidence of a defendant’s (or other vehicle
occupant’s) history of possessing weapons, or specific instances of prior
criminal conduct, would not only be relevant but likely controlling factors, in
any determination of whether a reasonable belief exists that a person is
armed and dangerous.




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secretive behaviors of the vehicle’s occupants. In the present case, no such

behavior is established by the record.

      There is no testimony by Officer Wolk that Appellant was acting

nervously or that he made furtive movements consistent with the secretion

of contraband.   There was no testimony by the officer suggesting that he

was led to believe, through his training and experience, that some particular

aspect of Appellant’s behavior was consistent with the secretion of a weapon

or criminal activity.   Officer Wolk merely testified that he could not see

Appellant’s hand because it was obstructed by the center console. He did

not testify that the hand appeared to be in an unnatural position, or that

Appellant had moved his hand to that position as the police approached.

While this stop did occur in a high crime area, it did not occur at night when

additional safety concerns might arise.

      Given these facts, we conclude that Officer Wolk did not have a

reasonable suspicion that Appellant was armed, dangerous, or otherwise

engaged in criminal activity unrelated to the minor traffic violation when he

opened Appellant’s passenger side door and leaned into the vehicle. Thus,

Officer Wolk did not seize the marijuana from plain view, because he neither

observed it from a lawful vantage point, nor did he have a lawful right of

access to the place from which the contraband was seized.       McCree, 924

A.2d at 627.

      We emphasize that we do not disregard Appellant’s motor vehicle code

infraction or the fact that the stop occurred in a high crime neighborhood.

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However, while Appellant’s motor vehicle code infraction was dangerous,

there was no evidence that it in any way increased the likelihood that

Appellant was armed or engaged in unrelated criminal activity.          Turning

without signaling, running red lights or stop signs, and all other sorts of

motor vehicle violations are inherently dangerous, which is precisely the

reason such actions are illegal. However, there is nothing about Appellant’s

infraction in this case that presents specific articulable facts, or justifies

inferences, that bear upon Appellant’s dangerousness or whether he was

engaged in other criminal activity.3

       Appellant’s mere presence in a high-crime neighborhood, although

relevant to our analysis, also does not provide any particularized fact or

reasonable inference concerning Appellant’s dangerousness or potential

criminality. There will certainly be cases where some potentially innocuous

act is justifiably treated with heightened scrutiny in high-crime areas. For

instance, we have held that flight from police in a high crime area gives rise

to a reasonable suspicion that criminal activity is afoot.   See In re D.M.,

781 A.2d 1161, 1162 (Pa. 2001). However, in this case, there is no evasive

act analogous to the flight from police at issue in D.M. – there is only Officer
____________________________________________


3
  This is not to say that traffic infractions can never provide such facts or
inferences. For instance, running red lights after police pursuit has begun,
or going the wrong way down a one-way street in reaction to police, are
examples of how the context in which the infraction occurs is of paramount
importance. Such actions constitute evasive behavior, which is always a
relevant factor to consider when conducting an analysis under Long.



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Wolk’s inability to see Appellant’s hand – a fact which, as discussed above, is

likely to occur with some minor variation in virtually every traffic stop. Most

importantly, however, there was no evidence of evasiveness, nervousness,

or   other    behavior   that    suggests     additional   criminality   or   potential

dangerousness     beyond     the    underlying     motor   vehicle   code     violation.

Moreover, despite the location, this traffic stop occurred in the middle of the

afternoon on a public street.

      To hold that Officer Wolk was reasonable in his belief that Appellant

was armed, dangerous, or engaged in other criminal activity, would be to

permit police to enter vehicles to search for weapons any time a motor

vehicle infraction occurs in a high crime neighborhood. No such rule exists

to our knowledge, and neither the trial court nor the Commonwealth cite a

single case that even suggests the existence of such a rule. Furthermore,

neither the trial court nor the Commonwealth cites a case with substantially

similar facts in which a search for weapons was condoned.

      Accordingly, we conclude that the trial court erred when it denied

Appellant’s    suppression      motion.     Because    Appellant’s   conviction    and

judgment of sentence must be reversed as a result of our holding,

Appellant’s remaining weight and sufficiency of the evidence claims are

rendered moot.

      Judgment of sentence reversed.

      Judge Allen joins this memorandum.

      Judge Mundy concurs in the result.

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J-S18002-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2015




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