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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                          Appellant        :
                                           :
                     v.                    :         No. 1791 WDA 2017
                                           :
DEMETRIUS ANTONIO ODEM                     :


               Appeal from the Order Entered November 9, 2017,
                 in the Court of Common Pleas of Mercer County
                Criminal Division at No. CP-43-CR-0001034-2017


BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED AUGUST 09, 2018

        The Commonwealth appeals from the November 9, 2017 order entered

in the Court of Common Pleas of Mercer County that granted the omnibus

pretrial    motion   to   suppress    physical   evidence   filed   by   appellee,

Demetrius Antonio Odem. After careful review, we affirm.

        The suppression court set forth the following:

              This case arises out of a search of a vehicle [that
              appellee] was operating on June 27, 2017.
              [Appellee] was charged with possession of cocaine
              with the intent to deliver, possession of heroin with
              the intent to deliver, possession of a controlled
              substance and possession of drug paraphernalia.[1]

              A preliminary hearing was held on June 29, 2017,
              before Magisterial District Judge Ronald Antos. At
              the conclusion of the preliminary hearing, [appellee]
              was ordered held for trial on all counts.

1   18 Pa.C.S.A. 35 P.S. §§ 780-113(a)(3), (a)(16), and (a)(32), respectively.
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          [Appellee] was arraigned on August 29, 2017.

          An omnibus motion seeking to suppress the results
          of the search of [appellee’s] person and his vehicle
          was filed.

          An evidentiary hearing on the motion was held on
          November 8, 2017. At the conclusion of the hearing,
          this court made the following findings of fact:

          1.   Patrolman Joey Brant is employed by the
               City of Farrell Police Department. He has
               been so employed for over a year.

          2.   On June 17, 2017, Officer Brant was
               working the midnight shift which runs
               from 11:00 p.m. to 7:00 a.m.

          3.   At approximately 4:30 a.m., he was
               proceeding north on Fruit Avenue when
               he observed three individuals in the front
               yard of a house that appeared to be
               abandoned.

          4.   The steps to the residence were broken
               down and the grass on the lawn was
               approximately knee height.

          5.   Earlier that night the officer had
               responded to a fire at an abandoned
               house in the area.

          6.   The area is also known to have several
               burglaries.

          7.   The officer observed as he passed the
               house that one of the individuals
               appeared to stumble, which indicated to
               the officer that the individual was under
               the influence.




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          8.    The officer went around the block. When
                he returned, all three individuals were in
                a 2008 Chrysler 200 four[-]door vehicle.

          9.    The officer pulled up next to the vehicle
                and told the occupants they were not
                free to leave.

          10.   [Appellee] was in the driver’s seat.
                There was another individual in the
                passenger front seat and an individual in
                the passenger rear seat.

          11.   The individual in the passenger rear seat
                was the same individual the officer saw
                stumble.

          12.   The officer tried to engage that
                individual, but the individual was close to
                comatose.

          13.   The officer instructed all of the
                individuals to remove their hands from
                their pockets more than once. They did
                so.

          14.   There is no evidence to show they were
                reaching around the vehicle to find
                anything.

          15.   Being concerned that there might be
                something in their pockets because of
                reaching in, the officer got the occupants
                out of the vehicle and conducted a pat
                down search.

          16.   Nothing was found during said pat down
                search.

          17.   The officers then decided to search the
                vehicle for weapons.

          18.   The officer opened the front console and
                found a scale with residue.


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              19.   In the front seat area he also found a
                    cigarette pack which contained several
                    packets of heroin and several packets of
                    cocaine.

              20.   [Appellee] was placed under arrest and
                    money and cell phones were found on his
                    person.

              On the basis of these facts, this court concluded the
              search of the vehicle’s console was unlawful because
              there were no facts to support the search and the
              resulting search of [appellee’s] person was the
              product of the unlawful search.

Suppression court opinion, 12/19/17 at 1-4 (unnecessary capitalization

omitted).

     The record reflects that following entry of the order granting appellee’s

motion to suppress, the Commonwealth filed a motion for reconsideration,

which the suppression court denied. The Commonwealth then filed a timely

notice   of   appeal   to   this   court.     Within   its   notice   of   appeal,   the

Commonwealth certified that the suppression court’s order would terminate

or substantially handicap appellee’s prosecution.             See Pa.R.A.P. 311(d)

(permitting Commonwealth appeal from an interlocutory order if it certifies

that the order will terminate or substantially handicap the prosecution). The

suppression court then ordered the Commonwealth to file a statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).                        The

Commonwealth timely complied. Thereafter, the suppression court filed its

Rule 1925(a) opinion.



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        The Commonwealth raises the following issues for our review:

             1.    Whether the suppression court erred by
                   holding that the scope of the Terry[2] frisk did
                   not include the protective search of the
                   vehicle?

             2.    Whether the suppression court erred by
                   holding that the officer did not have reasonable
                   suspicion to conduct a Terry/Long[3] search
                   of the vehicle?

Commonwealth’s brief at 4.

             When     the   Commonwealth       appeals   from     a
             suppression order, we follow a clearly defined
             standard of review and consider only the evidence
             from the defendant’s witnesses together with the
             evidence of the prosecution that, when read in the
             context of the entire record, remains uncontradicted.
             The suppression court’s findings of fact bind an
             appellate court if the record supports those findings.
             The suppression court’s conclusions of law, however,
             are not binding on an appellate court, whose duty is
             to determine if the suppression court properly
             applied the law to the facts.

             Our standard of review is restricted to establishing
             whether the record supports the suppression court’s
             factual findings; however, we maintain de novo
             review    over   the  suppression    court’s    legal
             conclusions.

Commonwealth v. Korn, 139 A.3d 249, 252-253 (Pa.Super. 2016)

(internal citations and quotation marks omitted).




2   Terry v. Ohio, 392 U.S. 1 (1968).

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


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      With respect to the Commonwealth’s first issue, the suppression court

concluded that the Commonwealth “misstates” the suppression court’s ruling

and the law and that it:

            did not hold that the scope of a Terry search does
            not include a protective search of a vehicle. This
            [c]ourt concluded that there were insufficient facts to
            permit a reasonable prudent man to conclude a
            weapon was in the console.        This conclusion is
            consistent with the existing case law.             See
            Commonwealth v. Morris, 644 A.2[d] 721 (Pa.
            1994).

Suppression court opinion, 12/19/17 at 5.

      Therefore, we proceed to the Commonwealth’s second claim of error,

which is that the suppression court erred when it held that Officer Brant did

not have reasonable suspicion to search the console of the car for weapons.

            In Michigan v. Long, 463 U.S. 1032, 103 S. Ct.
            3469,     77   L.    Ed.  2d   1201    (1983),   and
            Commonwealth v. Morris, 537 Pa. 417, 644 A.2d
            721 (Pa. 1994), the respective Supreme Courts
            promulgated the test for determining whether a
            police officer may conduct a protective search of the
            interior compartment of a car for weapons. In Long,
            the United States Supreme Court applied the test
            announced in Terry v. Ohio, 392 U.S. 1, 88 S. Ct.
            1868, 20 L. Ed. 2d 889 (1968), and held that a
            weapons search may be performed where an officer
            has reasonable suspicion that a firearm may be
            secreted in the car and that the search may
            encompass any area where a weapon could be
            hidden and accessible to the defendant in the
            vehicle. In Long, the High Court made the apt
            observation that “detentions involving suspects in
            vehicles are especially fraught with danger to police
            officers.” Long, supra at 1047. The Long Court’s
            specific holding is that



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                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.       “The issue is
                whether a reasonably prudent man in the
                circumstances would be warranted in the
                belief that his safety or that of others
                was in danger.”

          Long, supra at 1049-50 (partially quoting Terry,
          supra at 21).

          In Morris, supra, our Supreme Court concluded that
          the Long standard comported with the Pennsylvania
          Constitution. In that case, the Supreme Court ruled
          that a protective search of the interior of the car was
          warranted based on the following narrative. After
          being stopped for a traffic infraction, the defendant
          leaned down toward the floor near the center
          console, he briefly placed his hand between his legs
          after being ordered to put them on the steering
          wheel. In the course of the stop, the police observed
          a metal pipe in the car. In upholding the existence
          of reasonable suspicion to conduct a protective
          weapons sweep of the vehicle, our Supreme Court
          ruled that the police officer had sufficient facts at his
          disposal to warrant a reasonably prudent man to
          believe that his safety “was compromised”
          sufficiently to allow the police intrusion in question.
          Morris, supra at 723. The Court stated that the
          defendant’s behavior of leaning down and reaching
          between his legs was consistent with hiding a
          weapon. See also Commonwealth v. Grahame,
          607 Pa. 389, 7 A.3d 810, 816 (Pa. 2010) (a
          protective search is justified under Terry when “the
          officer can articulate facts that establish an


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            individualized, objective basis for perceiving a threat
            of armed violence”). We look at the totality of the
            circumstances facing an officer when we examine
            whether that officer came to a reasonable suspicion
            to search for a weapon.           Commonwealth v.
            Simmons, 2011 PA Super 43, 17 A.3d 399, 403
            (Pa.Super. 2011).

Commonwealth v. Tuggles, 58 A.3d 840, 842-843 (Pa.Super. 2012).

      Here, the suppression court concluded that Officer Brant lacked

reasonable suspicion to believe that appellee may have secreted a weapon in

the console of the automobile based upon the following facts which

Officer Brant articulated at the suppression hearing:

            [I]t was night time, the area was a high crime area,
            and [appellee] and his co-defendants kept their
            hands in their pockets. There is no evidence they
            were moving around the vehicle, reaching into any
            areas of the car or doing anything.[4]

Suppression court opinion, 12/19/17 at 5.

      Our review of the record reveals that Officer Brant failed to articulate

sufficient facts to support a conclusion that he had reasonable suspicion to

believe that a firearm may be secreted in the console of appellee’s vehicle

that would warrant a reasonably prudent man to believe that his safety was




4 We note that during the suppression court’s examination of Officer Brant,
the Officer testified that the back seat passenger was “moving his hand
around inside his pocket.” (Notes of testimony, 11/8/17 at 24.) When
asked whether the front seat passenger was “moving his hands around
anywhere,” the officer stated, “I can’t testify to that at this time.” (Id.)
When asked whether the officer saw appellee “moving his hands around
anywhere other than his pocket,” the officer stated, “I can’t testify that I
saw him reaching in his pocket.” (Id.)


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compromised.      Therefore, the record supports the suppression court’s

factual determinations. We further find that the suppression court properly

applied the law to the facts.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 8/9/2018




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