J-A23031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellant

                      v.

RAHIM McGILBERRY

                                                  No. 9 EDA 2017


                   Appeal from the Order November 17, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007639-2016

BEFORE: PANELLA, DUBOW, and FITZGERALD*, JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED NOVEMBER 16, 2017

        The Commonwealth appeals from the order entered in the Philadelphia

County Court of Common Pleas granting Appellee Rahim McGilberry’s motion

for suppression of evidence. The Commonwealth contends that the officers

had reasonable suspicion to conduct a protective frisk of Appellee.        We

affirm.

        The trial court summarized the facts of this case as follows:

              A motion-to-suppress hearing was conducted before
           this court on November 17, 2016. . . . Police Officer
           Eugene Roher and his partner, Police Officer Jeremy
           Olesik, were on routine patrol, sitting at a red light at the
           intersection of 52nd Street and Larchwood Avenue, when
           Officer Roher observed [Appellee] driving a black Toyota
           Camry, northbound on 52nd Street with heavy tinted
           windows, at a high rate of speed. Officer Roher testified

*
    Former Justice specially assigned to the Superior Court.
J-A23031-17


       that he also observed the vehicle traveling in the left lane
       to get around other vehicles that were also traveling
       northbound. Officer Roher made a left-hand turn onto
       52nd Street and got behind [Appellee’s] car. He then
       activated lights and sirens and [Appellee] pulled over at
       52nd and Spruce Streets. . . .

          Upon approaching the vehicle, Officer Roher could see
       [Appellee’s] body; he could see his shoulders shifting from
       side-to-side. Because of the shifting, Officer Roher had
       [Appellee] roll down the windows. As soon as the windows
       went down, Officer Roher testified that he smelled an odor
       of burnt marijuana. No one else was in the vehicle.
       Officer Roher also observed 25-30 very small black rubber
       bands in a cup holder on the floor of the passenger side.
       Officer Roher also observed three (3) cell phones, one (1)
       of which was ringing consistently. . . . According to Officer
       Roher, [Appellee] was acting nervous and some things he
       said didn’t make sense. . . .          Officer Roher asked
       [Appellee] to exit the vehicle . . . . Officer Roher testified
       that he decided to frisk [Appellee.]

           Officer Roher frisked [Appellee] and in his groin area
       felt a small hard object consistent with narcotics
       packaging. Officer Roher recovered 30 blue-tinted packets
       all containing an off-white chunky substance. From inside
       the vehicle, Officer Roher recovered two thousand three
       hundred ($2,300.00) dollars from the cup holder, three
       hundred eleven ($311.00) dollars from his person and
       three (3) cell phones.       [Appellee] was subsequently
       arrested.

          On cross-examination, Officer Roher conceded that he
       did not see any marijuana in the vehicle nor did he believe
       that [Appellee] was under the influence of marijuana. The
       vehicle was thoroughly searched and no marijuana or
       remnants of marijuana were found. He agreed that it is
       not uncommon for someone to appear nervous during a
       traffic stop. He did not see any weapons in the vehicle
       before taking [Appellee] out, nor were there was [sic] no
       visible “bulges.” He felt [Appellee’s] groin area and felt
       hard packaging consistent with narcotics─the narcotics
       were packaged in small plastic bags inside a sandwich bag.
       Additionally, nowhere on the police record (the 48A) does


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J-A23031-17


           it say that [Appellee] went into oncoming traffic; the arrest
           memo says “crossing the southbound lane”─like tires
           crossed the center lane . . . .

              After the Commonwealth rested, Police Officer Jeremy
           Olesik (Officer Roher’s partner) testified on behalf of
           [Appellee]. According to Officer Olesik, on July 1, 2016,
           he and Officer Roher were on routine patrol when they
           pulled [Appellee] over on the 5200 block of Spruce Street;
           [Appellee] was pulled over because of the way he was
           driving─he appeared to be in a rush. He stated that he
           was not present when his partner asked [Appellee] any
           questions. . . .      On cross-examination Officer Olesik
           testified that [Appellee] was pulled over for tinted windows
           and that he passed traffic crossing into the southbound
           lanes.

Trial Ct. Op., 3/23/17, at 2-4 (citations to the record and footnote omitted).

         Appellee was charged with manufacture, delivery or possession with

intent    to   deliver   a   controlled   substance,1   knowingly   or   intentionally

possessing a controlled or counterfeit substance by a person not registered

under this act,2 and possession of drug paraphernalia.3             Appellee filed an

omnibus pretrial motion to suppress. Following the hearing, the motion was

granted.       The Commonwealth filed a notice of appeal, certifying that the

ruling terminated or substantially handicapped the prosecution of this case.4


1
    35 P.S. § 780-113(a)(30).

2
    35 P.S. § 780-113(a)(16).

3
    35 P.S. § 780-113(a)(32).

4
 In Commonwealth v. Bender, 811 A.2d 1016 (Pa. Super. 2002), this
Court noted




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J-A23031-17


The   Commonwealth     filed   a   Pa.R.A.P.   1925(b)   statement   of    errors

complained of on appeal, and the trial court filed a responsive opinion.

      The Commonwealth raises the following issue for our review: “Did the

suppression court err by concluding there was no reasonable suspicion to

conduct a protective frisk, where [Appellee] made furtive movements during

a night time traffic stop, gave nervous/contradictory answers to the officers’

questions, and possessed indicia of drug dealing?” Commonwealth’s Brief at

4. The Commonwealth contends that

         the officers had, at a minimum, reasonable suspicion that
         criminal activity was afoot. After stopping [Appellee’s]
         vehicle at night, police shined a spotlight and observed
         [Appellee] shifting his shoulders from side to side in an
         apparent attempt to conceal something.        The officers
         asked [Appellee] to roll down his windows, and upon
         approach they immediately smelled marijuana.         They
         observed 25 to 30 small rubber black rubber bands, which
         are commonly used to package drugs. There was also a
         large stack of cash and three cell phones. When the
         officers posed questions to [Appellee], he was extremely
         nervous and gave contradictory answers. He claimed that
         he was going home to get money, but there was a large
         stack of cash in the cup holder. He also claimed that he
         was going to “South Philly,” when in fact he was going in
         the opposite direction. This combination of circumstances

         that the Commonwealth has an absolute right of appeal to
         the Superior Court to test the validity of a pre-trial
         suppression order. Such an appeal is proper as an appeal
         from a final order when the Commonwealth certifies in
         good faith that the suppression order terminates or
         substantially handicaps its prosecution.

Id. at 1018 (citations and quotation marks omitted); see also Pa.R.A.P.
311(d). Instantly, the Commonwealth has complied with this procedural
requirement, and therefore, the appeal is properly before us.



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J-A23031-17


         afforded reasonable suspicion that criminal activity was
         afoot.

                                  *    *    *

            Here, any reasonably prudent officer would have frisked
         [Appellee] for his safety.

                                 *    *     *

         Under the totality of the circumstances, this evidence was
         sufficient for the officer to reasonably conclude that his
         safety was at risk. Accordingly, his protective frisk was
         lawful.

Id. at 9-12.

      Our review is governed by the following principles:

         When reviewing an Order granting a motion to suppress
         we are required to determine whether the record supports
         the suppression court's factual findings and whether the
         legal conclusions drawn by the suppression court from
         those findings are accurate. In conducting our review, we
         may only examine the evidence introduced by appellee
         along with any evidence introduced by the Commonwealth
         which remains uncontradicted. Our scope of review over
         the suppression court’s factual findings is limited in that if
         these findings are supported by the record we are bound
         by them. Our scope of review over the suppression court’s
         legal conclusions, however, is plenary.

Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)

(citation omitted).5


5
   We note the holding of In re L.J., 79 A.3d 1073 (Pa. 2013), that after
October 30, 2013, the scope of review for a suppression issue is limited to
the record available to the suppression court. Id. at 1085, 1089 (stating
holding applies to “all litigation commenced Commonwealth-wide after the
filing of this decision”).




                                      -5-
J-A23031-17


        Further, Pennsylvania Rule of Criminal Procedure 581, which addresses

the suppression of evidence, provides, in relevant part, as follows: “The

Commonwealth shall have 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.” Pa.R.Crim.P. 581(H).

        “Both Article I, Section 8 of the Pennsylvania Constitution,[6] Security

from searches and seizures, and the Fourth Amendment of the United

States Constitution,[7] Unreasonable searches and seizures, protect

citizens of [Pennsylvania] from unwarranted seizures by law enforcement




6
    Article I, Section 8 of the Pennsylvania Constitution provides:

           The people shall be secure in their persons, houses, papers
           and possessions from unreasonable searches and seizures,
           and no warrant to search any place or to seize any person
           or things shall issue without describing them as nearly as
           may be, nor without probable cause, supported by oath or
           affirmation subscribed to by the affiant.

Pa. Const. Art. I, § 8.

7
  The Fourth Amendment of the United States Constitution provides in
relevant part:

           The right of people to be secure in their persons, houses,
           papers, and effects against unreasonable searches and
           seizures, shall not be violated, and no warrants shall issue,
           but upon probable cause, supported by oath or affirmation,
           and particularly describing the place to be searched, and
           the person or things to be seized.

U.S. Const. Amend. IV.




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J-A23031-17


officials.”   Commonwealth v. Bailey, 947 A.2d 808, 810-11 (Pa. Super.

2008) (footnotes omitted).

       In Commonwealth v. Simmons, 17 A.3d 399 (Pa. Super. 2011), this

Court opined:

          [T]he Terry “stop and frisk,” permits a police officer to
          briefly detain a citizen for investigatory purposes if the
          officer “observes unusual conduct which leads him to
          reasonably conclude, in light of his experience, that
          criminal activity may be afoot.”       Commonwealth v.
          Fitzpatrick, [ ] 666 A.2d 323, 325 (Pa. Super. 1993);
          Terry v. Ohio, 392 U.S. 1, 30 [ ] (1968).

          Terry further held that “[w]hen an officer is justified in
          believing that the individual whose suspicious behavior he
          is investigating at close range is armed and presently
          dangerous to the officer or to others” the officer may
          conduct a pat down search “to determine whether the
          person is in fact carrying a weapon.” Terry, 392 U.S. at
          24. “The purpose of this limited search is not to discover
          evidence of a crime, but to allow the officer to pursue his
          investigation without fear of violence.”

          In order to conduct an investigatory stop, the police must
          have reasonable suspicion that criminal activity is afoot.
          Terry, 392 U.S. at 30. In order to determine whether the
          police had reasonable suspicion, the totality of the
          circumstances—the whole picture—must be considered.
          “Based upon that whole picture the detaining officers must
          have a particularized and objective basis for suspecting the
          particular person stopped of criminal activity.” To conduct
          a pat down for weapons, a limited search or “frisk” of the
          suspect, the officer must reasonably believe that his safety
          or the safety of others is threatened.

Id. at 403 (some citations omitted). Furthermore,

          to justify a frisk incident to an investigatory stop, the
          police need to point to specific and articulable facts
          indicating that the person they intend to frisk may be
          armed and dangerous; otherwise, the talismanic use of the


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J-A23031-17


         phrase “for     our   own       protection,”   .   .   .   becomes
         meaningless.

Commonwealth v. Jackson, 519 A.2d 427, 431 (Pa. Super. 1986)

(citations omitted).

      In the case sub judice, the trial court opined:

             Here, the Commonwealth has failed to provide specific
         facts by which to support a finding of reasonable suspicion
         that criminal activity was afoot.      Although the police
         legitimately pulled [Appellee] over for a motor vehicle
         violation, they did not have enough evidence to suspect
         [Appellee] had weapons in his possession, which may have
         provided the requisite reasonable suspicion to ask
         [Appellee] to exit his vehicle and be patted down for the
         officer’s safety.

                                   *      *     *

         It was not until after he observed 25-30 very small black
         rubber bands in a cup holder on the floor of the passenger
         side and three (3) cell phones, one (1) of which was
         ringing that he could see that the number was stored on
         the phone as “Locust Street” that Officer Roher asked
         [Appellee] to exit the vehicle. He did not testify that he
         was fearful for his safety or the safety of his fellow officer.

                               *     *      *

         When viewing these facts in their totality, this court found
         that Officer Roher did not have reasonable suspicion that
         [Appellee] was engaged in criminal activity, or that
         [Appellee] may have been in possession of a weapon in
         furtherance of criminal activity.

Trial Ct. Op. at 7 (foot note omitted). We agree no relief is due.

      At the hearing on the motion to suppress, Officer Roher testified, inter

alia, as follows:




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J-A23031-17


       [Appellee’s counsel:] So, now, as I understand it, you’re
       on just a routine patrol on Larchwood facing east, correct?

       A: Yes.

       Q: You see this car driven by─at that point, could you see
       who was driving the car?

       A: No.

       Q: Because the windows were tinted, correct?

       A: Correct.

       Q: And when you saw that the car went around─when you
       say it went into the lane, are you saying that it just passed
       cars on the left?

       A: Yes, it passed, I would say, about three─two, three cars
       on the left.

       Q: That’s a little different than going into the other lane?

       A: Well, it’s only two lanes, so he would have to go to the
       other lane to pass them.

       Q: Well, let me ask you this: You prepared the 75-48(A),
       correct?

       A: Most likely my partner because he’s the recorder.

       Q: Did you have an opportunity to review it prior to today?
       In fact, you identified it today?

       A: Yes.

       Q: Okay.

          Is it accurate?

       A: Let me just read over it.

       ---



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J-A23031-17


       (Brief pause.)

       ---

       The Witness: Yeah. I would say yes.

       [Appellee’s counsel:] Okay.

                               *     *      *

       Q: So we can agree that nowhere in the 48(A) does it
       indicate the car went into oncoming traffic, correct?

       A: Correct.

       Q: All that it said was that it past the car on the left side,
       correct?

       A: Correct.

                               *     *      *

       Q: But you never said in this report that the car had to go
       into the oncoming lane when it passed the car on the left,
       right? We can agree on that?

       A: Correct.

       Q: Okay.

          Going to your arrest memo.

                               *     *      *

       Q: Would you agree . . . that that’s an accurate reflection
       of what happened that night?

       A: Yes.

                               *     *      *

       Q: Anywhere in your arrest report does it say he went into
       oncoming traffic?



                                   - 10 -
J-A23031-17


       A: Crossing the southbound lane.

       Q: Crossing. It didn’t say he went into, it says crossing.
       Like, maybe perhaps the tires crossed the center line,
       correct?

       A: Yes.

                              *    *       *

       Q: Now, what happens is, as I understand it, as soon as
       you turn on your signals, [Appellee] complies, correct?

       A: Absolutely. Yes.

                              *    *       *

       Q: You approach the car. And as I understand it when you
       get to the car, you asked him to roll down the window,
       correct?

       A: No. Before I got to the car, I yelled out roll the
       windows down.

       Q: Okay.

         So he rolls the windows down.         He complies, as I
       understand it?

       A: Yes.

       Q: Now, at that point, you say you now smell marijuana,
       right?

       A: Yes. Burnt marijuana.

                              *    *       *

       Q: Did you ever test him to determine whether he was
       under the influence of marijuana?

       A: No, I didn’t believe he was under the influence upon
       investigation.



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J-A23031-17


                                 *       *       *

       Q: My question to you is, going to those same documents,
       the 75-48 and your arrest report, does it say anywhere in
       there that [Appellee] ever said to you or your fellow officer
       or anyone in the world, that he was going to pick his
       daughter up or that he needed to get money?

       A: No.

                             *       *       *

       Q: Now, you indicated that you say that you─did you─you
       indicated that you saw rubberbands?

       A: Yes.

       Q: Okay.

          Which    you     believe, in your  opinion,    was
       some─associated with some kind of elicit activity like
       covering─you know, housing rubberband─you know,
       packets of drugs, correct?

       A: It’s commonly used─

       Q: Okay.

       A:─to package narcotics.

       Q: My question to you is, did you receipt those so we can
       see what they look like?

       A: No, I didn’t.

                                 *       *       *

       Q: Now you indicate to me, by the way, now that
       [Appellee] appeared to be nervous, right?

       A: Yes.

       Q: Which, by the way, you know is not uncommon in
       almost any kind of traffic stop, correct.


                                     - 12 -
J-A23031-17



       A: Not at all.

       Q: “Not at all” meaning I’m right?

       A: Correct.

       Q: Okay.

          So you indicated something about his heart beating?

       A: Yes.

                             *    *   *
       Q: So, now, your testimony─and, again, that would be
       that, you know, you could actually see a heart beat.

         So what you do is you decide, at that point, you’re
       going to take him out and frisk him?

       A: I took him out because of the shuffling of the
       shoulders before I approached the vehicle.

                            *     *      *

       Q: Had you seen any weapons in the car?

       A: From my position, no.

       Q: Did you see anything that resembled a weapon that
       could be used defensively against you? A crowbar or
       anything like that?

       A: No. Not that I remember, no.

       Q: Did you see any contraband at that point?

       A: It depends on what we consider contraband is.

       Q: Contraband is drugs. . . .

       A: No. No drugs.

       Q: Okay.


                                      - 13 -
J-A23031-17



           How about on his person? Before you actually put a
        hand on him, did you see any unusual bulges about his
        person that would indicate that he was armed and
        dangerous?

        A: No.

        Q: And, in fact, what happened was when you turned
        around, he complied completely, correct?

        A: Yes, sir. Absolutely.

        Q: So now, at this point, you’re doing a full patdown,
        correct?

        A: Yes.

R.R. at 14a-17a (emphasis added).8

     Officer Roher testified on direct examination as follows:

        [The Commonwealth:] Officer, how─during this entire
        interaction, how is [Appellee] acting?

        A: He was in a nervous manner. The questions that I was
        asking, quite didn’t make sense. For the speed he was
        traveling, I was asking him what was he in such a rush for.
        He said he was going to get his daughter from South
        Philly. However, he was traveling northbound on 5-2 and
        then turned to go west on Spruce. So like that didn’t
        make sense.

           Also, he said he needed to run home and get money.
        But I also observed that there was money in the
        cupholder, I believe.

                                   *     *      *

        Q: Okay.

8
  For the parties’ convenience, we refer to the reproduced record where
applicable.



                                       - 14 -
J-A23031-17



            And at that point, what did you do?

         A: Because of his─the questions─the way he was
         answering the questions, the nervousness, his breathing
         pattern, I decided to take him out [sic] the vehicle to
         conduct a frisk.

                                 *     *      *

         Q: And when you removed [Appellee] from the
         vehicle and frisked him, tell this [c]ourt why you
         decided to do that?

         A: Well, once I observed the shuffling of the
         shoulders, I didn’t know what he was doing. He may
         have been taking his seat belt off, concealing something. I
         didn’t know. So I wanted to just check him out.

         Q: Okay.

            And this was─the shuffling was prior to you
         reaching the vehicle, correct?

         A: Yes.

         Q: And prior to [Appellee] rolling his tinted windows down,
         correct?

         A: Yes.

         Q: And when you decided to frisk him, can you tell
         this [c]ourt why you made that decision?

         A: For weapons to make sure I’m safe.

R.R. at 11a, 13a (emphasis added).

      We find the suppression court’s findings are supported by the record

and discern no error of law.    See Gutierrez, 36 A.3d at 1107.        Officer

Rohrer lacked reasonable suspicion to believe that criminal activity was afoot



                                     - 15 -
J-A23031-17


to justify his decision to frisk Appellee. See Simmons, 17 A.3d at 403. The

officer did not point to specific and articulable facts to indicate that Appellee

was armed and dangerous. See Jackson, 519 A.2d at 431. The officer’s

bald assertion that his decision was based upon his desire to make sure he

was safe did not justify the frisk of Appellee incident to the stop of Appellee’s

vehicle. See id.   Accordingly, we affirm the order of the trial court granting

Appellee’s motion to suppress.

      Order affirmed.

      Judge Panella joins the Memorandum.

      Judge Dubow Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2017




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