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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: I.W.                                 :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                                            :
APPEAL OF: I.W.                             :         No. 2701 EDA 2013

              Appeal from the Dispositional Order August 22, 2013
              In the Court of Common Pleas of Philadelphia County
               Juvenile Division at No(s): CP-51-JV-0002137-2013


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY GANTMAN, P.J.:                     FILED DECEMBER 30, 2014

        Appellant, I.W., appeals from the dispositional order entered in the

Philadelphia County Court of Common Pleas, following his adjudication of

delinquency for simple possession.1 We reverse the dispositional order.

        The relevant facts and procedural history of this appeal are as follows.

On May 30, 2013, at approximately 11:00 p.m., Officer Michael Ginter was

on patrol in full uniform when he received information that a homicide had

occurred at 24th and Tasker Streets in Philadelphia.           The only other

information in the flash report indicated the suspect was wearing blue shorts

and a white T-shirt. Approximately one hour later, Officer Ginter observed

Appellant walking eastbound on Ritner Street, approximately two miles east

of the location of the reported homicide. Appellant was wearing blue shorts

and a white T-shirt.     Officer Ginter also recognized Appellant as someone



1
    35 P.S. § 780-113(a)(16).
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who frequented the area of the reported homicide.              Based on this

information, the officer stopped Appellant.       During the stop, Appellant

appeared nervous and moved his hands behind his back out of the officer’s

view. Officer Ginter then performed a pat-down search of Appellant. During

the search, Officer Ginter felt multiple small, hard objects in Appellant’s

pants back pocket.     The officer recognized the objects as crack cocaine.

Officer Ginter removed nine small Ziploc bags from Appellant’s pants pocket.

Each bag contained a white, rocky substance, which tested positive for

cocaine.

      The Commonwealth filed a petition to adjudicate Appellant delinquent.

On June 25, 2013, Appellant filed a motion to suppress.        On August 22,

2013, the juvenile court denied the motion to suppress and adjudicated

Appellant delinquent for the offense of simple possession.      On the same

date, the court entered a dispositional order placing Appellant on probation

for an unspecified period.    Appellant filed a timely notice of appeal on

Monday, September 23, 2013. The court ordered Appellant to file a concise

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

After being granted an extension, Appellant timely complied.

      Appellant raises a single issue for our review:

           DID NOT THE TRIAL COURT ERR IN DENYING THE MOTION
           TO SUPPRESS PHYSICAL EVIDENCE, INSOFAR AS
           APPELLANT WAS STOPPED AND FRISKED WITHOUT
           REASONABLE SUSPICION?

(Appellant’s Brief at 3).

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      In his sole issue, Appellant argues he was subject to an investigatory

detention when Officer Ginter initially stopped Appellant on the street,

because no reasonable person walking alone at night would feel free to leave

under these circumstances. Appellant claims Officer Ginter’s reasons for the

stop were (1) Appellant’s blue shorts and white T-shirt matched the generic

clothing description of a suspect in a reported homicide, which had occurred

one hour earlier and two miles away from the location of the stop; and (2)

Officer Ginter had seen Appellant on unspecified prior occasions in the area

of the homicide.    Appellant asserts the officer relied on flash information,

which originated from an unknown source and failed to specify the homicide

suspect’s age, size, race, or gender. According to Appellant, the information

Officer   Ginter   relied   on   “was   simply   too   vague,   indefinite,   and

uncorroborated” to support reasonable suspicion that Appellant had been or

was involved in any criminal activity.    (Appellant’s Brief at 15).   Appellant

concludes Officer Ginter lacked reasonable suspicion to support the

investigative detention, and the court should have suppressed the items

seized by the officer as a result of the unlawful detention. We agree.

      “Our standard of review in addressing a challenge to a trial court’s

denial of a suppression motion is limited to determining whether the factual

findings are supported by the record and whether the legal conclusions

drawn from those facts are correct.”      Commonwealth v. Williams, 941

A.2d 14, 26 (Pa.Super. 2008) (en banc) (quoting Commonwealth v.



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Jones, 874 A.2d 108, 115 (Pa.Super. 2005)).

           [W]e may consider 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. Where the record supports the findings of the
           suppression court, we are bound by those facts and may
           reverse only if the court erred in reaching its legal
           conclusions based upon the facts.

Williams, supra at 27. “It is within the suppression court’s sole province as

factfinder to pass on the credibility of witnesses and the weight to be given

their testimony.”      Commonwealth v. Clemens, 66 A.3d 373, 378

(Pa.Super. 2013) (quoting Commonwealth v. Gallagher, 896 A.2d 583,

585 (Pa.Super. 2006)).

        Contacts between the police and citizenry fall within three general

classifications:

           The first [level of interaction] is a “mere encounter” (or
           request for information) which need not be supported by
           any level of suspicion, but carries no official compulsion to
           stop or respond. The second, an “investigative detention”
           must be supported by reasonable suspicion; it subjects a
           suspect to a stop and period of detention, but does not
           involve such coercive conditions as to constitute the
           functional equivalent of arrest.      Finally, an arrest or
           “custodial detention” must be supported by probable
           cause.

Commonwealth v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal

denied, 583 Pa. 668, 876 A.2d 392 (2005). To determine if an interaction

rises to the level of an investigative detention, i.e., a Terry2 stop, “the court

must examine all the circumstances and determine whether police action

2
    Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

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would have made a reasonable person believe he was not free to go and was

subject   to   the   officer’s   orders.”     Jones,   supra   at   116   (quoting

Commonwealth v. Stevenson, 832 A.2d 1123, 1127 (Pa.Super. 2003)).

      Police must have reasonable suspicion that a person is engaged in

unlawful activity before subjecting that person to an investigative detention.

Commonwealth v. Cottman, 764 A.2d 595 (Pa.Super. 2000).

          [T]o establish grounds for reasonable suspicion, the officer
          must articulate specific observations which, in conjunction
          with    reasonable     inferences   derived   from    those
          observations, led him reasonably to conclude, in light of
          his experience, that criminal activity was afoot and that
          the person he stopped was involved in that activity. The
          question of whether reasonable suspicion existed at the
          time [the officer conducted the stop] must be answered by
          examining the totality of the circumstances to determine
          whether the officer who initiated the stop had a
          particularized and objective basis for suspecting the
          individual stopped. Therefore, the fundamental inquiry of
          a reviewing court must be an objective one, namely,
          whether the facts available to the officer at the moment
          of the [stop] warrant a [person] of reasonable caution in
          the belief that the action taken was appropriate.

Commonwealth v. Basinger, 982 A.2d 121, 125 (Pa.Super. 2009)

(internal citations and quotation marks omitted) (emphasis added).             To

validate a pat-down search or Terry frisk, an officer “must be able to

articulate specific facts from which he reasonably inferred that the individual

was armed and dangerous.” Commonwealth v. Gray, 896 A.2d 601, 606

(Pa.Super. 2006).

          A police officer need not personally observe unusual or
          suspicious conduct reasonably leading to the conclusion
          that criminal activity is afoot and that a person is armed

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         and dangerous; this Court has recognized that a police
         officer may rely upon information which is broadcast over
         a police radio in order to justify an investigatory stop.

Commonwealth v. Jackson, J., 519 A.2d 427, 430 (Pa.Super. 1986)

(citation and internal quotation marks omitted).

     “While a tip can be a factor [in determining whether reasonable

suspicion existed], an anonymous tip alone is insufficient as a basis for

reasonable suspicion.”   Commonwealth v. Leonard, 951 A.2d 393, 397

(Pa.Super. 2008). “Because an anonymous tip typically carries a low degree

of reliability, more information is usually required before investigating

officers develop the reasonable suspicion needed to support an investigatory

stop of a suspect.” Commonwealth v. Fell, 901 A.2d 542, 545 (Pa.Super.

2006).   See also Commonwealth v. Hawkins, 547 Pa. 652, 656, 692

A.2d 1068, 1070 (1997) (stating, “[A] stop and frisk may be supported by a

police radio bulletin only if evidence is offered at the suppression hearing

establishing the articulable facts which support the reasonable suspicion”).

“A major factor in justifying a Terry stop, when the suspicious conduct has

not been personally observed by the officer, is the specificity of the

description of the suspect.”   Commonwealth v. Jackson, M., 678 A.2d

798, 801 (Pa.Super. 1996), appeal denied, 546 Pa. 663, 685 A.2d 543

(1996) (internal citations and quotation marks omitted). “Close spatial and

temporal proximity of a suspect to the scene of a crime can also heighten a

police officer’s reasonable suspicion that a suspect is the perpetrator for



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whom the police are searching.” Jackson, J., supra at 439. Likewise, “if

the person described by the tipster engages in other suspicious behavior,

such as flight, reasonable suspicion justifying an investigatory detention is

present.” Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa.Super. 2009)

(en banc), appeal denied, 605 Pa. 694, 990 A.2d 727 (2010).

      Instantly, Officer Ginter was in uniform in a marked vehicle when he

received flash information around 11:00 p.m. over police radio that a

homicide had occurred at 24th and Tasker Streets.        The flash broadcast

indicated generally that the suspect was wearing blue shorts and a white T-

shirt. No other information was provided. Approximately one hour later, the

officer observed Appellant walking on Ritner Street, about two miles east of

the scene of the reported homicide. Appellant was wearing blue shorts and

a white T-shirt. Based solely on Appellant’s clothes and the knowledge that

Appellant frequented the area of the reported homicide, Officer Ginter

stopped Appellant.    Contrary to the Commonwealth’s assertion that the

interaction was a “mere encounter” prior to Officer Ginter’s frisk of

Appellant, the officer plainly testified that he “stopped” Appellant and that

“during the stop, [Appellant] appeared to be very nervous.”             (N.T.

Suppression Hearing, 8/22/13, at 6) (emphasis added).       Officer Ginter did

not suggest he merely initiated contact with Appellant. Appellant, a juvenile,

was walking alone along the street at night when a uniformed officer

interacted with Appellant. Under these circumstances, a reasonable person



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would not believe he was free to leave. Accordingly, the record supports the

court’s characterization of the interaction as an “investigatory stop” requiring

reasonable suspicion. See Williams, supra; Jones, supra.

      Nevertheless, the officer’s justification for the stop was based only on

his (1) observation that Appellant’s blue shorts and white T-shirt matched a

generic description of the homicide suspect’s clothing; and (2) knowledge

that Appellant frequented the area of the reported homicide.          The flash

broadcast failed to specify the suspect’s age, gender, or race. Officer Ginter

had no information regarding the suspect’s physical characteristics. Further,

Appellant was not near the location of the reported homicide when he was

stopped; he was two miles away on foot. Officer Ginter observed nothing

suspicious about Appellant’s behavior before the stop—Appellant was simply

walking down the street.3        The only information the officer had to

corroborate the scant flash information was his general knowledge that

Appellant had been in the area of 24th and Tasker Streets on unspecified

previous occasions. Additionally, the Commonwealth produced no evidence

at the suppression hearing regarding the source of the flash information.

Absent more, the Commonwealth failed to establish that the officer had

reasonable suspicion to support his investigatory detention of Appellant.

See Basinger, supra. See also Commonwealth v. Berrios, 437 Pa. 338,

3
  Officer Ginter observed Appellant’s apparent nervousness and suspicious
arm movements during the investigatory detention.          Therefore, these
observations are immaterial to the question of whether the officer had
reasonable suspicion to stop Appellant in the first place.

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341-42, 263 A.2d 342, 344 (1970) (holding investigatory stop was unlawful

where officers received information over police radio that two black males in

dark clothing and one Puerto Rican male in light clothing were involved in

shooting and were observed leaving crime scene walking east, where police

had no reason to connect appellant and his companion to shooting except

that they were walking three blocks from area of shooting twenty minutes

later and they matched races and general clothing description of suspects;

police “had no information of the physical make-up or characteristics of the

men they were seeking”); In re M.D., 781 A.2d 192 (Pa.Super. 2001)

(holding officer lacked reasonable suspicion to stop appellant where

appellant partially matched radio description of robbery suspect; description

of suspect wearing “gray hoody and blue jeans” was too general and of little

use to distinguish appellant’s appearance; basis of radio information

regarding robbery was unknown; and officer did not cite any personal

observations of suspicious conduct before speaking to appellant).

     The cases relied on by the Commonwealth are distinguishable with

respect to the defendant’s close spatial and temporal proximity to the

reported crime at the time of the stop, and/or the level of detail in the

description of the crime suspect. See, e.g., Commonwealth v. Palagonia,

868 A.2d 1212 (Pa.Super. 2005), appeal denied, 584 Pa. 675, 880 A.2d

1238 (2005) (holding stop of appellant was lawful where officer received

police radio broadcast seeking assistance in apprehending two young white



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males who jumped off apartment balcony in middle of night and fled toward

Overlook Road; within minutes, officer observed two young white males in

car on Overlook Road near apartment complex; no other cars were in area);

Commonwealth v. Vinson, 522 A.2d 1155 (Pa.Super. 1987) (holding

police acted lawfully in stopping appellant where cashier reported armed

robbery and gave description of two perpetrators and their car—dark blue

Grand Prix with white pinstripes, vinyl roof, and Pennsylvania license plate;

within minutes after hearing robbery report over police radio, officers saw

car, which fit cashier’s detailed description, at gas station close to crime

scene).    These cases are inapposite and do not alter our conclusion that

Officer Ginter stopped Appellant without reasonable suspicion.    Therefore,

the evidence obtained as a result of the officer’s unlawful detention of

Appellant should have been suppressed.          See Williams, supra.   Based

upon the foregoing, we reverse.

       Dispositional order reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/30/2014




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