J-A30007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CODY WILLIAM GREEN                         :
                                               :
                          Appellant            :    No. 172 MDA 2019

       Appeal from the Judgment of Sentence Entered December 28, 2018
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0003390-2018

BEFORE:      DUBOW, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.:                                   FILED JANUARY 15, 2020

        Appellant, Cody William Green, appeals from the December 28, 2018

Judgment of Sentence entered in the Court of Common Pleas of York County

following his conviction of one count each of Possession with Intent to Deliver,

Criminal    Use      of   a   Communication    Facility,   and   Possession   of   Drug

Paraphernalia.1 On appeal, Appellant challenges the denial of his Motion to

Suppress. After careful review, we affirm.

        We glean the following factual and procedural history from the trial court

Opinion and evidence from the suppression hearing. On the evening of

December 15, 2017, Patrol Officer Randy Wagner of the West Manheim


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30); 18 Pa.C.S. § 7512(a); and 35 P.S. § 780-
1113(a)(32), respectively.
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Township Police Department was on patrol in a fully marked police cruiser.

Around midnight, he observed two vehicles, a black Toyota sedan and silver

Honda SUV, parked in an unlit area of the Mary Ann Furnace Trail parking lot

of Codorus State Park. Neither vehicle had boating equipment attached or

other signs of park recreation activities. The parking area has posted signs

that it is closed from dusk to dawn unless park patrons are participating in

approved park activities.

      Upon seeing the vehicles in the unlit parking lot, Patrol Officer Wagner

pulled behind the vehicles and activated his emergency lights. A passenger

exited the SUV and informed Patrol Officer Wagner that he and the driver,

Appellant, had met up in the parking lot because he had left his license in the

SUV. While he was talking to the passenger, Officer Wagner smelled marijuana

emanating from the SUV. The passenger informed Officer Wagner that he had

smoked marijuana in his vehicle prior to driving to the park and indicated that

he had some drug paraphernalia in his black sedan. Officer Wagner notified

dispatch and requested a second unit for assistance.

      Patrol Officer Wagner then patted down the passenger. Appellant exited

the SUV, and Officer Wagner also patted him down for weapons; Officer

Wagner felt a bulge in Appellant’s crotch area, which made a noise that

sounded like plastic or paper.

      After the second unit arrived, Officer Wagner searched Appellant and

determined that the bulge was caused by a clear plastic bag containing 61.2


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grams of marijuana wax and paper wrapped around a glass container with

marijuana concentrate and four empty round plastic containers. Officer

Wagner conducted a search of Appellant’s white SUV and found $2,208 in cash

in the armrest.

       The passenger then informed the officers that he was in the park to

purchase marijuana from Appellant and that he had used the telephone

application, Snapchat, to arrange the drug transaction. The officers

subsequently obtained a search warrant for Appellant’s telephone. The search

of his phone confirmed that the drug transaction was arranged through

Snapchat and text messages. Appellant was charged with, inter alia, the above

crimes.2

       Appellant filed an Omnibus Pretrial Motion on August 6, 2018, which

included a Motion to Suppress all evidence seized after Officer Wagner had

turned on his emergency lights. The court held a suppression hearing on

October 3, 2018, at which Officer Wagner testified. On November 19, 2018,

the court denied Appellant’s Motion.

       On December 28, 2018, after a stipulated bench trial, the trial court

found Appellant guilty of the above charges and sentenced him to an

aggregate term of three years of probation.




____________________________________________


2The Commonwealth also charged Appellant with False Identification, but he
was acquitted of that charge.

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      Appellant filed a timely notice of appeal. Appellant and the trial court

complied with Rule 1925.

      Appellant raises the following issue on appeal: “Whether Officer Wagner

had reasonable suspicion to detain [Appellant] because he parked his vehicle

in a state trail parking lot that allows after hour[s] parking for park-approved

activities; and when Officer Wagner could not see inside [Appellant’s] vehicle

and did not observe [Appellant] engaged in any criminal activity.” Appellant’s

Br. at 4.

      We review the trial court’s decision to deny a motion to suppress to

determine “whether the suppression court’s factual findings are supported by

the record and whether the legal conclusions drawn from those facts are

correct.” Commonwealth v. Milburn, 191 A.3d 891, 897 (Pa. Super. 2018)

(citation omitted). “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.” Commonwealth v. Freeman,

150 A.3d 32, 34 (Pa. Super. 2016). We are bound by the suppression court’s

factual findings where they are supported by the record, and we may reverse

only if the court’s legal conclusions are erroneous. Id. at 35. Because this

Court’s mandate is to determine if the suppression court properly applied the

law to the facts, our scope of review is plenary. Id.




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      The Fourth Amendment of the United States Constitution and Article 1,

Section 8 of our state Constitution protect citizens from unreasonable searches

and seizures. In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). “To secure the

right of citizens to be free from . . . [unreasonable searches and seizures],

courts in Pennsylvania require law enforcement officers to demonstrate

ascending levels of suspicion to justify their interactions with citizens as those

interactions become more intrusive.” Commonwealth v. Beasley, 761 A.2d

621, 624 (Pa. Super. 2000). Our Supreme Court has defined three levels of

interaction between citizens and police officers: (1) mere encounter, (2)

investigative detention, and (3) custodial detention. See Commonwealth v.

Boswell, 721 A.2d 336, 340 (Pa. 1998). Both parties agree that when Officer

Wagner parked his police vehicle to block Appellant’s SUV and the black

Toyota sedan, Officer Wagner was engaging in an investigatory detention.

      When evaluating the legality of investigative detentions, Pennsylvania

has adopted the holding of Terry v. Ohio, 392 U.S. 1 (1968), wherein the

United States Supreme Court held that police may conduct an investigatory

detention if they have reasonable suspicion that criminal activity is afoot.

“When conducting a Terry analysis, it is incumbent on the suppression court

to inquire, based on all of the circumstances known to the officer ex ante,

whether an objective basis for the seizure was present.” Commonwealth v.

Carter, 105 A.3d 765, 769 (Pa. Super. 2014). In order to justify an

investigative detention, a police officer must be able to identify “specific and


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articulable facts” leading him to suspect that criminal activity is afoot. Terry,

392 U.S. at 21.

      In determining whether an officer’s stop of a defendant was supported

by reasonable suspicion, the court must consider the totality of the

circumstances, and give due weight to the reasonable inferences the officer

drew from the facts based upon his experience. Commonwealth v. Foglia,

979 A.2d 357, 360 (Pa. Super. 2009) (en banc). “[E]ven a combination of

innocent facts, when taken together, may warrant further investigation by the

police officer.” Id. (citation omitted). The suppression court is not foreclosed

from concluding that a police officer had reasonable suspicion even where the

defendant’s conduct was equally consistent with innocent activity. Carter,

105 A.3d at 772. See also Commonwealth v. Davis, 102 A.3d 996, 1000

(Pa. Super. 2014) (explaining that although the item weighing down the

defendant's pocket could have been something other than a gun, that did not

mean that it was unreasonable for the police officer to suspect, based on the

totality of the circumstances, that it was a gun).

      When evaluating whether reasonable suspicion existed in a particular

case, this Court must “view the circumstances through the eyes of a trained

officer, not an ordinary citizen.” Commonwealth v. Riley, 715 A.2d 1131,

1135 (Pa. Super. 1998). “Reasonable suspicion depends upon both the

content of the information possessed by the police and its degree of




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reliability.” Commonwealth v. Wiley, 858 A.2d 1191, 1194 (Pa. Super.

2004) (citation omitted).

      Moreover, reasonable suspicion is “considerably less than proof of

wrongdoing by a preponderance of the evidence.” Navarette v. California,

572 U.S. 393, 397 (2014). See also Commonwealth v. Fink, 700 A.2d 447,

449 (Pa. 1997) (explaining that reasonable suspicion is less than a “certainty,

a preponderance, or even a fair probability.”).

      Appellant contends that Officer Wagner illegally detained Appellant

because he lacked reasonable suspicion that Appellant was involved in criminal

activity at the time of the search. Appellant’s Br. at 9-11. He asserts that

Officer Wagner was unaware that he was engaged in illegal activity until after

he was detained and that the location of “expected criminal activity” does not

amount to reasonable suspicion. Id. at 13-15.

      The suppression court found that Appellant was parked in an area

marked closed in violation of State Park regulations and concluded that there

were sufficient articulable facts for Officer Wagner to investigate and detain

Appellant. Trial Ct. Op., dated 3/25/19, at 5-6.

      Officer Wagner testified that he had made arrests at the Mary Ann

Furnace Trail parking lot, after hours, related to “drugs and alcohol, underage

and DUIs[.]” Id. Therefore, based on his knowledge of the lot and his

observation of the vehicles parked in violation of the posted signs, he turned




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on his emergency lights, exited the car, and approached the vehicles. Id. at

16.

      The   totality   of   circumstances—Officer   Wagner’s   knowledge   and

experience concerning the reputation of the Mary Ann Furnace Trail parking

lot after hours and his observation of the two vehicles parked side-by-side in

the unlit lot after hours without any obvious signs of park recreational

equipment—establish that Officer Wagner had specific and articulable

reasonable facts that led him to suspect that criminal activity was

afoot. Accordingly, we conclude that the suppression court’s factual findings

are supported by the record and discern no error in its denial of Appellant’s

Motion to Suppress.

      Judgment of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/15/2020




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