J-A08011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

KENNITH C. MONROE

                                                       No. 712 EDA 2016


                Appeal from the Order Entered February 12, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010262-2015


BEFORE: PANELLA, J., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                               FILED JULY 18, 2017

        The Commonwealth of Pennsylvania appeals1 from the order entered

on February 12, 2016, in the Court of Common Pleas of Philadelphia County.

The order granted Appellee Kennith2 C. Monroe’s pretrial motion to suppress

evidence. We reverse and remand for further proceedings.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  This appeal is permissible as of right because the Commonwealth has
certified in good faith that the suppression order submitted for our review
substantially handicaps the prosecution and the appeal is not intended for
delay purposes. See Pa.R.A.P. 311(d).
2
 There appears to be some discrepancy in the record concerning the correct
spelling of Appellee’s first name. We have adopted the spelling that appears
on Appellant’s Notice of Appeal and in Appellee’s Brief. See Notice of Appeal,
3/10/16; Appellee’s Brief, 12/19/16.
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        The relevant facts and procedural history are as follows. On June 8,

2015, Monroe was arrested and charged with possession of a firearm without

a license and carrying a firearm on the streets of Philadelphia.3 Monroe filed

a motion to suppress. The trial court held a suppression hearing.

        At the hearing, the Commonwealth presented the testimony of Police

Officer Timothy Gibson. Officer Gibson testified that on the evening of June

8, 2015, he and his partner, Officer Loesch, were on patrol in a marked

police vehicle in the area of 1900 North Broad Street in Philadelphia. See

N.T., Suppression Hearing, 2/2/16, at 7-8.4 At approximately 10:50 p.m.,

Officer Gibson observed a male, driving a purple Vespa scooter southbound

on North Broad Street, disregard a red light at the intersection of North

Broad street and Norris street. See id., at 8. The driver, later identified as

Monroe, continued southbound and drove through another red light at the

intersection of North Broad Street and Paulette Walk. See id. The officers

activated the police vehicle’s siren and external lights and directed Monroe

to pull his vehicle to the side of the road. See id. Monroe complied,

disembarked, and stood beside the Vespa. See id.



____________________________________________


3
    18 Pa.C.S.A. §§ 6106(A)(1) and 6108, respectively.
4
  While the record reflects that the suppression hearing took place on
February 2, 2016, the Notes of Testimony indicates that the suppression
hearing took place on February 2, 2015. See N.T., 2/2/16. We will to refer
to the correct date, February 2, 2016, when citing to this document.



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      As Officer Gibson approached Monroe, Monroe, without prompting,

informed Officer Gibson that “[i]t’s my friend’s [sic] Mike’s bike.” Id.

Further, Officer Gibson noted that Monroe appeared “very nervous,” was

“swaying back and forth, continuously reaching into his pockets,” and was

almost “stuttering” as he spoke to the officers. Id., at 8-9. Officer Gibson

informed Monroe that they had pulled him over for running the red lights

and asked Monroe for insurance, registration and his identification. See id.,

at 9, 23. At this point, Monroe calmed down but was unable to find the

insurance or registration for the Vespa and did not have identification on his

person. See id., at 9-11. However, Monroe provided his name for Officer

Gibson, who left Monroe with Officer Loesch and ran Monroe’s name through

the NCIC/PCIC system to check for outstanding warrants. See id., at 12.

      Officer Gibson did not find any warrants, but returned to Monore to

confirm that his identification information was correct. Upon his return,

Officer Gibson noted that Monroe “became extremely nervous swaying back

and forth again, reaching in both of his pockets, and his right hand kept

reaching into his pocket as if he was bringing an object out of his pocket but

then pushing it back in.” Id., at 12, 25-26. Based upon his six years of

experience and his knowledge of robberies in the area, Officer Gibson

believed that Monroe might be concealing a weapon, feared for his life and

the life of his partner, and therefore conducted an open hand frisk for

weapons. See id., at 12-14, 27.




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      During the frisk, Officer Gibson felt a bulge in Monroe’s front right

pocket that he “immediately recognized as possibly being the handle of a

firearm.” Id., at 13. He removed the object from Monroe’s pocket—and

recovered a .22 caliber handgun. See id.

      On cross-examination, Officer Gibson disclosed that although his intent

in stopping Monroe was to discuss the red light traffic violations or to issue

tickets for those violations, he did not ultimately issue a ticket for the red

light violations. See id., at 17-18. Officer Gibson clarified that because he

was still attempting to receive Monroe’s identification immediately prior to

the frisk, he had never indicated that Monroe was free to leave the

interaction. See id., at 23-24. Further, Officer Gibson admitted that he

never saw any object in Monroe’s hand. See id., at 26. Overall, the entire

interaction between Officer Gibson and Monroe lasted approximately five

minutes. See id., at 24. Monroe did not testify or present any testimony on

his behalf.

      Following the hearing, the court granted Monroe’s suppression motion,

stating that because there was no report of the outline of contraband or

criminal activity, Officer Gibson did not have the requisite reasonable

suspicion to frisk Monroe for weapons. See N.T., 2/12/16, at 6. Further, in

its 1925(a) statement, the court clarified that it relied upon the decision in

Commonwealth v. Reppert, 814 A.2d 1196 (Pa. Super. 2002) (en banc),

to conclude that the initial traffic stop had concluded when the frisk

occurred, and that Officer Gibson had not shown renewed reasonable

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suspicion following the conclusion of the traffic stop to justify the protective

frisk. See Trial Court Opinion, 5/18/16, at 6-7. This appeal followed.

       On appeal, the Commonwealth challenges the suppression court’s

decision to suppress the evidence obtained from Officer Gibson’s search of

Appellee. See Commonwealth’s Brief, at 4. Specifically, the Commonwealth

contends Officer Gibson had a reasonable basis for conducting a protective

frisk of Monroe, and that the trial court’s reliance on Reppert is misplaced.

See id., at 13-14. We agree.

       Our scope and standard of review is well settled.

       When the Commonwealth appeals from a suppression order, this
       Court may consider only the evidence from the [Appellee’s]
       witnesses together with the evidence of the prosecution that,
       when read in the context of the record as a whole, remains
       uncontradicted. In our review, we are not bound by the
       suppression court’s conclusions of law, and we must determine if
       the suppression court properly applied the law to the facts. We
       defer to the suppression court’s findings of fact because, as the
       finder of fact, it is the suppression court’s prerogative to pass on
       the credibility of the witnesses and the weight to be given to
       their testimony.

Commonwealth v. Myers, 118 A.3d 1122, 1125 (Pa. Super. 2015)

(citation omitted). Here, the record supports the suppression court’s factual

findings as set forth at the suppression hearing.5 Thus, we proceed to review

the court’s legal conclusions, for which our standard of review is de novo and


____________________________________________


5
 The court did not file a contemporaneous suppression opinion at the time it
granted the suppression motion.



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our scope of review is plenary. See Commonwealth v. Wilson, 101 A.3d

1151, 1153 (Pa. Super. 2014), appeal denied, 121 A.3d 496 (Pa. 2015).

        Neither side disputes that the Vespa was subject to a valid traffic stop,

i.e., investigative detention, due to Monroe’s disregard of two red traffic

lights. See N.T., 2/2/16, at 5; Commonwealth’s Brief, at 9-10. Further, the

parties agree that the frisk at issue constituted a protective weapons search,

or Terry6 frisk. See Appellee’s Brief, at 2; Commonwealth’s Brief, at 9.

Therefore, as we explain below, our focus is whether the frisk occurred

during the initial traffic stop. And if it did, were “the facts available to the

officer at the moment of the [intrusion]” sufficient “to warrant a man of

reasonable caution in the belief that the action taken was appropriate.”

Commonwealth v. Griffin, 954 A.2d 648, 651 (Pa. Super. 2008) (citation

and internal quotation marks omitted; brackets in original). We will proceed

to answer those questions.

        The Fourth Amendment of the United States Constitution guarantees,

“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated….”

U.S. Const. amend. IV. Similarly, the Pennsylvania Constitution assures

citizens of our Commonwealth that “[t]he people shall be secure in their



____________________________________________


6
    Terry v. Ohio, 392 U.S. 1 (1968).



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persons, houses, papers and possessions from unreasonable searches and

seizures….” Pa. Const. art. I, § 8.

         Further, “[t]he reasonableness of a government intrusion varies with

the degree of privacy legitimately expected and the nature of the

governmental intrusion.” Commonwealth v. Fleet, 114 A.3d 840, 844 (Pa.

Super. 2015) (citation omitted). One such government intrusion that has

been recognized as an acceptable interaction between law enforcement and

citizens is an investigative detention, otherwise known as a Terry stop and

frisk.

         A Terry stop permits an officer to briefly detain a citizen for

investigatory purposes if the officer has “reasonable suspicion based upon

specific     and   articulable     facts,     that     criminal      activity   is    afoot.”

Commonwealth v. Stevenson, 894 A.2d 759, 771 (Pa. Super. 2006)

(citation omitted). If at any point during this investigatory detention, an

“officer believes, based on specific and articulable facts, that the individual is

armed and dangerous” the officer may perform a Terry frisk. Id., at 772

(citation omitted). “The purpose of this limited search is not to discover

evidence of crime, but to allow the officer to pursue his investigation without

fear of violence.” Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa.

Super. 2011) (citations omitted). “The fundamental inquiry” in reviewing the

officer’s   decision   “is   an   objective    one,”     utilizing    “a   totality   of   the

circumstances test.” Griffin, 954 A.2d at 651 (citations omitted).


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      In Reppert, the case relied upon by the suppression court, an en banc

panel of this Court set parameters on the length of the investigative

detention caused by the initial traffic stop. There, the defendant was a

passenger in a vehicle that was lawfully pulled over for expired registration

stickers. See 814 A.2d at 1199. While the vehicle was pulling over, the

arresting officer observed the defendant engaging in movements that

suggested that he was secreting an object into the seat cushions. See id.

The arresting officer interacted with the driver of the vehicle, accepted his

explanation, and decided not to issue a citation for the stop. See id. At that

point, the en banc panel determined that the traffic stop had concluded

because the officer “had realized the purpose for the stop and had no further

reasons to detain the driver of the vehicle or its occupants under the guise of

the original traffic infraction.” Id., at 1203. However, the officer then

directed the defendant to exit the vehicle and empty his pockets. See id., at

1199. As the traffic stop, i.e., investigative detention, had concluded, the

panel held that any subsequent search and seizure required a renewed

showing of reasonable suspicion to support an additional detention and frisk.

See id., at 1206.

      Based upon its interpretation of this ruling, the suppression court

concluded that Officer Gibson “had realized the purpose for the stop and had

no further reasons to detain the driver of the vehicle” once Monroe provided

his name, and that therefore any frisk after that point required renewed


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reasonable suspicion, which the suppression court did not find. However, the

record is devoid of any proof that Officer Gibson had realized the purpose of

the stop at the time he frisked Monroe.

      Unlike Reppert, although Officer Gibson ultimately did not issue

citations for the traffic violations, there is no testimony that Officer Gibson

had decided not to issue traffic citations at any time prior to the frisk. The

officers never informed Monroe that he was free to leave. Further, as Monroe

did not have any documentation for himself or the scooter, it is highly

unlikely that the officer would have allowed him to leave prior to confirming

this information. Thus, we cannot conclude, as the suppression court did,

that Officer Gibson realized the purpose of the stop prior to the frisk.

      It is clear from the suppression court’s comments, which highlighted

that Officer Gibson failed to testify regarding any indication that criminal

activity was occurring, that the trial court applied the wrong standard to

determine whether Officer Gibson had the requisite reasonable suspicion to

perform the protective frisk. Therefore, we must analyze whether Officer

Gibson had reasonable suspicion to perform a protective frisk under the

correct standard—whether the officer held an objectively reasonable belief

that the suspect may have been armed and dangerous.

      When assessing the reasonableness of an officer’s decision to frisk an

individual during an investigatory detention, we are not permitted to

consider an officer’s “unparticularized suspicion or hunch,” but rather we


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must consider “the specific reasonable inferences which he is entitled to

draw from the facts in light of his experience.” Stevenson, 894 A.2d at 772

(citations and internal quotation marks omitted). Further, “common sense

concerns” guide the inquiry and “give preference to the safety of the police

officer during an encounter with a suspect where circumstances indicate that

the suspect may have, or may be reaching for, a weapon.” Id (emphasis

and citation omitted).

      Here, the record establishes that Officer Gibson immediately noted

that after Monroe disembarked from his Vespa, he was nervous, stuttering,

swaying back and forth, and reaching into his pockets. After Officer Gibson

asked for his information, Monroe calmed down as he looked for information

for the Vespa. However, once Officer Gibson returned from running Monroe’s

name through the system, Monroe became extremely nervous again,

resumed swaying, and began “reaching into his pocket as if he was bringing

an object out of his pocket but then pushing it back in.” N.T., Suppression

Hearing, 2/2/16, at 12, 25-26. Based upon this behavior and Officer

Gibson’s experience and knowledge of the crime in the area, he believed

Monroe to be concealing a weapon. Officer Gibson conducted a frisk, citing

fear for the safety of Officer Loesch as well as himself, and recovered a

firearm.

      Viewing the totality of the circumstances, we find that Officer Gibson’s

description of Monroe’s nervous behavior during the course of a valid traffic


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stop, coupled with his furtive movements in reaching, and seemingly

pushing an object, into his pocket, justified Officer Gibson’s reasonable

suspicion   that   Monroe   was    armed     and   dangerous.   In   fact   in

Commonwealth v. Wilson, a panel of this court found that a similar furtive

movements, over a similar span of time, when witnesses within the scope of

a lawful traffic stop, provides a reasonable basis for a protective frisk. See

927 A.2d 279, 284-285 (Pa. Super. 2007) (finding that extreme nervousness

and furtive movements, combined with the fact that defendant placed his

hands inside his coat as if reaching for something, sufficient to justify a

frisk). See also Commonwealth v. Simmons, 17 A.3d 399, 404 (Pa.

Super. 2011) (finding passenger’s movements in reaching towards the floor

and across his chest during a traffic stop sufficient to justify a frisk).

Accordingly, we reverse the trial court’s suppression order and remand for

further proceedings.

      Order reversed. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2017



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