J-S02024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TOSHA VERNEE GRAYS

                            Appellant                 No. 711 EDA 2016


       Appeal from the Judgment of Sentence Entered February 23, 2016
                In the Court of Common Pleas of Lehigh County
               Criminal Division at No: CP-39-CR-0002225-2015


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.

MEMORANDUM BY STABILE, J.:                           FILED MARCH 23, 2017

        Appellant Tosha Vernee Grays appeals from the February 23, 2016

judgment of sentence entered in the Court of Common Pleas of Lehigh

County (“trial court”), following her bench conviction for possession of a

controlled substance.1 Upon review, we affirm.

        On August 25, 2015, following her arrest for possession of a controlled

substance (narcotic analgesics), Appellant filed a motion to suppress,

claiming that Officer John Leonard III of the Allentown Police Department

violated her rights under the Pennsylvania and United States Constitutions

by stopping and frisking her without reasonable suspicion. On October 14,



____________________________________________


1
    35 P.S. § 780-113(a)(16).
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2015, the trial court held a hearing on Appellant’s suppression motion, at

which the Commonwealth offered the testimony of Officer Leonard.

       Officer Leonard testified that, on November 8, 2014, he was in a

marked police vehicle patrolling the 400 block of Liberty Street in Allentown

“because of recent shooting, [and] high-level drug activity[.]”            N.T.

Suppression, 10/14/15, at 7. At approximately 3:52 p.m. on that day, he

observed Appellant walking east on Liberty Street. Id. at 4-8. He testified

that he knew her from a previous incident on August 12, 2014, where

“[Appellant] was a witness to a domestic assault between her sister and her

nephew.”     Id. at 6.     Upon recognizing Appellant, Officer Leonard testified

that he exited his patrol vehicle and approached her to ask how she and her

family were doing. Id. at 8. Officer Leonard further testified that Appellant

stopped and spoke to him. Id. He described the conversation as friendly.

Id.   Officer Leonard testified that, during the conversation, Appellant was

“reaching into her [right jacket] pocket[2] and she was visibly shaking.” Id.

at 8-9.   She appeared to be readjusting something.         Id. at 10.   Officer

Leonard explained that he observed the shaking because Appellant “was

holding a cup of coffee in her one hand.”            Id. at 9.    Based on his

observations, Officer Leonard concluded that Appellant appeared nervous.

Id. Consequently, Officer Leonard asked her whether she was carrying any

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2
  Appellant was wearing a zippered fleece jacket.            N.T. Suppression,
10/14/15, at 16.



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firearms on her person.        Id.   According to Officer Leonard, Appellant was

unresponsive, became “very pale” and “just took a step back.” Id. at 9-10.

She then asked “[w]hat is this?” and “[w]hy are you asking me that?” Id.

      Officer Leonard further testified that he instructed Appellant to remove

her hand from the pocket. Id. He explained that after Appellant failed to

comply with his command, “I grabbed that arm, that—the hand was in the

pocket.     While I grabbed it, I felt something hard, and it was—

simultaneously, I looked down and I was able to see, without manipulating

that outermost garment, that there was white pills in there.”         Id. 10-11

(“When I grabbed her hand, I felt with my fingers what felt like something

hard, like a pill, and when I looked down that’s what I saw, I saw a couple

white pills.”).     Officer Leonard testified that he grabbed Appellant’s hand

“[b]ecause [he] didn’t know what was in the pocket.” Id. at 11. According

to his testimony, Appellant’s hand “was like half in, half out” when he

grabbed it.       Id.   Upon Officer Leonard’s discovery of the pills, Appellant

remarked that they were her mother’s Percocet pills. Id. Officer Leonard

testified that Appellant did not have a prescription for them.       Id. at 12.

Officer Leonard clarified that when he first encountered Appellant, her hand

was not in her pocket. Id. at 10. Officer Leonard further clarified that he

ordered Appellant to remove her hands from the pocket because he feared

for his safety. Id. at 13. He explained “[b]ecause we were on a directed

patrol because there’s recent shootings in the area and because I was




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encountered with this individual before at an incident that involved a firearm

that was never located by the police, it was just very—I was nervous.” Id.

      On cross-examination, Officer Leonard acknowledged that he initiated

the encounter with Appellant by saying “hello” to her.         Id. at 15.    He

conceded that at the time of the August 12, 2014 domestic dispute incident,

Appellant was not believed to have possessed any firearms as she was only

a witness.   Id.   In fact, Officer Leonard acknowledged that the firearm in

question was imputed to Appellant’s nephew.       Id.   He also acknowledged

that Appellant put her hand in her jacket pocket only once before he

grabbed the hand. Id. at 17.

      On December 10, 2015, the trial court denied Appellant’s motion to

suppress the pills. In so doing, the trial court concluded:

      Prior to Officer Leonard grabbing [Appellant’s] hand, this
      interaction was a mere encounter, requiring no level of suspicion
      on the part of the police. It was only after [Appellant] refused to
      remove her hand from her pocket that the interaction rose to the
      level of an investigatory detention, which was supported by
      reasonable suspicion.       [Appellant] was in an area where
      numerous shootings and drug activity had recently occurred; she
      was exhibiting nervous and evasive behavior; and she refused to
      remove her hand from her pocket despite [Officer] Leonard’s
      instructions to remove it.           Under the totality of the
      circumstances, . . . Officer Leonard possessed reasonable
      suspicion that [Appellant] might be armed and dangerous and
      was justified in frisking [Appellant]. . . . As such, suppression is
      not warranted.

Trial Court Order, 12/10/15, at n.1. The case proceeded to a non-jury trial,

following which, on January 21, 2016, the trial court found Appellant guilty

of possession of a controlled substance.     On February 23, 2016, the trial




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court sentenced Appellant to one year of probation.          Appellant timely

appealed to this Court.

      On appeal, Appellant raises only a single issue for our review:

      [I.] Whether the [trial court] erred by denying [Appellant’s]
      suppression motion by determining that the officer, in stopping
      [Appellant], had reasonable suspicion that criminal activity was
      afoot or that [Appellant] might be a danger and was therefore
      permitted to grab [Appellant] and search her for contraband?

Appellant’s Brief at 7.

      In reviewing appeals from an order denying suppression, our standard

of review is limited to determining

      whether [the trial court’s] factual findings are supported by the
      record and whether [its] legal conclusions drawn from those
      facts are correct. When reviewing the rulings of a [trial] court,
      the appellate court considers only the evidence of the
      prosecution and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record
      as a whole. When the record supports the findings of the [trial]
      court, we are bound by those facts and may reverse only if the
      legal conclusions drawn therefrom are in error.

Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015). Our

scope of review is limited to the evidence presented at the suppression

hearing. In the interest of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013).

      Article I, Section 8 of the Pennsylvania Constitution and the Fourth

Amendment to the United States Constitution protect the people from

unreasonable searches and seizures.     Commonwealth v. Lyles, 97 A.3d

298, 302 (Pa. 2014) (citation omitted). The Lyles Court explained:

      Jurisprudence arising under both charters has led to the
      development of three categories of interactions between citizens
      and police. The first, a “mere encounter,” does not require any
      level of suspicion or carry any official compulsion to stop and
      respond. The second, an “investigatory detention,” permits the
      temporary detention of an individual if supported by reasonable

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     suspicion. The third is an arrest or custodial detention, which
     must be supported by probable cause.

           In evaluating the level of interaction, courts conduct an
     objective examination of the totality of the surrounding
     circumstances. . . . The totality-of-the-circumstances test is
     ultimately centered on whether the suspect has in some way
     been restrained by physical force or show of coercive authority.
     Under this test, no single factor controls the ultimate conclusion
     as to whether a seizure occurred—to guide the inquiry, the
     United States Supreme Court and [our Supreme] Court have
     employed an objective test entailing a determination of whether
     a reasonable person would have felt free to leave or otherwise
     terminate the encounter. What constitutes a restraint on liberty
     prompting a person to conclude that he is not free to leave will
     vary, not only with the particular police conduct at issue, but
     also with the setting in which the conduct occurs.
            [Our Supreme] Court and the United States Supreme
     Court have repeatedly held a seizure does not occur where
     officers merely approach a person in public and question the
     individual or request to see identification. Officers may request
     identification or question an individual so long as the officers do
     not convey a message that compliance with their requests is
     required. Although police may request a person’s identification,
     such individual still maintains the right to ignore the police and
     go about his business.

Id. at 302-03 (internal citations and quotation marks omitted).     Instantly,

Appellant asserts, and the Commonwealth agrees, that Officer Leonard’s

interaction with her began as a mere encounter, which escalated to an

investigative detention when Officer Leonard grabbed her hand. Appellant,

however, challenges Officer Leonard’s reasonable suspicion to conduct the

investigative detention under Terry v. Ohio, 392 U.S. 1 (1968).

     It is settled that reasonable suspicion necessary for investigative

detentions

     is a less demanding standard than probable cause not only in the
     sense that reasonable suspicion can be established with
     information that is different in quantity or content than that
     required to establish probable cause, but also in the sense that
     reasonable suspicion can arise from information that is less
     reliable than that required to show probable cause.


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Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014) (citations

omitted).   “In order to justify an investigative detention, the police must

have reasonable suspicion that criminal activity is afoot.         Reasonable

suspicion must be based on specific and articulable facts, and it must be

assessed based upon the totality of the circumstances viewed through the

eyes of a trained police officer.”   Commonwealth v. Williams, 980 A.2d

667, 672 (Pa. Super. 2009) (citation omitted), appeal denied, 990 A.2d

730 (Pa. 2010); see Commonwealth v. Reppert, 814 A.2d 1196, 1203

(Pa. Super. 2002) (noting that prior to subjecting citizens to an investigatory

detention, the police “must harbor at least a reasonable suspicion that the

person seized is then engaged in unlawful activity”).            Thus, “[t]he

determination of whether an officer had reasonable suspicion that criminality

was afoot so as to justify an investigatory detention is an objective one,

which must be considered in light of the totality of the circumstances.”

Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011) (emphasis added);

see Reppert, 814 A.2d at 1204 (noting that the officer who stops an

individual must have “a particularized and objective basis for suspecting the

individual stopped”).

      In assessing the totality of the circumstances, a court must give

weight to the inferences that a police officer may draw through training and

experience.   Id. at 95.   Reasonable suspicion does not require that the

activity in question must be unquestionably criminal before an officer may

investigate further. Davis, 102 A.3d at 1000 (citations omitted). “Rather,

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the test is what it purports to be—it requires a suspicion of criminal conduct

that is reasonable based upon facts of the matter.”        Id. (citation and

emphasis omitted). Thus, an officer’s “hunch or unparticularized suspicion”

does not satisfy the objective reasonable suspicion standard required for

investigative detentions. Reppert, 814 A.2d at 1204. We remain cognizant

that police officers’ “judgment is necessarily colored by his or her primary

involvement in the ‘the often competitive enterprise of ferreting out crime.’”

Id.

      Here, based on the totality of the circumstances and our review of the

record, we agree with the trial court’s conclusion that Officer Leonard had

reasonable suspicion that criminal activity was afoot and that Appellant was

engaged in such activity when he grabbed her hand.         As recited, Officer

Leonard initiated the encounter with Appellant to inquire about her and her

family’s wellbeing.   As he was talking with Appellant, who held a cup of

coffee in one hand, he noticed that her other hand was in her jacket pocket

and that she was readjusting something.       According to Officer Leonard,

Appellant was shaking and appeared nervous. Officer Leonard then asked

her whether she was carrying a firearm.     Appellant did not respond.    She

became pale and took a step back.      She then questioned Officer Leonard

why he was asking her that. Officer Leonard instructed her to remove her

hand from the pocket.      Appellant failed to comply.   As a result, Officer

Leonard grabbed her hand—a fact both parties agree constituted an

investigatory detention.    Given our objective standard for reasonable

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suspicion, Officer Leonard reasonably believed that Appellant could have

been armed when she refused to comply with his command to remove her

hand from the pocket wherein she was readjusting something.             The

reasonableness of Officer Leonard’s suspicion also was bolstered by the fact

that Appellant “was in an area where numerous shootings and drug activity

had recently occurred.” Trial Court Order, 12/10/15, at n.1. Accordingly,

we hold that the trial court did not err in denying Appellant’s motion to

suppress the pills.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2017




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