J-S19011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ANDRE C. GREEN                           :
                                          :
                     Appellant            :   No. 1569 EDA 2018

        Appeal from the Judgment of Sentence November 29, 2012
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0012604-2011


BEFORE:    LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                             FILED JUNE 11, 2019

     Andre C. Green appeals, nunc pro tunc, from his judgment of sentence,

entered in the Court of Common Pleas of Philadelphia County.          After our

review, we affirm.

     The trial court summarized the facts of this case as follows:

     On September 27, 2011, at approximately 6:00 p.m., Officer
     Kevin Devlin and his partner were driving in the area of North 38th
     and Mount Vernon Streets in Philadelphia, an area known to
     Officer Devlin to be a place where narcotics are sold. He saw
     [Green] bent down between the curb and a parked car, but as
     they drove closer to [Green’s] location, someone on the block
     announced the police[] presence. He also saw another unknown
     male appearing to wait near the scene where [Green] was
     crouched. [Green] reacted to the announcement by standing up,
     looking for the police car, and upon seeing the police, grabbing at
     his right waistband and quickly moving eastbound.

     Officer Devlin told his partner that he believed that what they had
     witnessed was an aborted drug transaction, because in his
     experience, cars parked near the curb are a known drug stash
     location utilized by drug traffickers in that area. More importantly,

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        [Green] reacted to the police presence by grabbing at and holding
        his waistband as he moved quickly from the scene. This gave
        Officer Devlin reasonable suspicion that [Green] was armed with
        a gun that was tucked into his waistband rather than being
        properly holstered.

        Officer Devlin did not activate his sirens or lights, he did not honk
        or shout at [Green], and he did not make any other ostentatious
        show of force. He simply watched [Green] walk into a corner store
        while holding his right waistband area, parked his car, and
        followed [Green] into the store. When he entered the store,
        Officer Devlin prudently asked [Green] to put his hands up.
        [Green] complied immediately, and as soon as he did, the handle
        of the gun tucked into his waistband was apparent.

Trial Court Opinion, 10/5/16, at 4-5 (citations omitted).

        Green was charged with carrying a firearm without a license,1

possession of a firearm by a prohibited person,2 and carrying a firearm in

public in Philadelphia.3 He filed a pre-trial motion to suppress the firearm. On

October 4, 2012, the trial court denied the motion and proceeded to trial.

Following a nonjury trial, the trial judge found Green guilty on all charges. On

November 29, 2012, the trial court sentenced Green to two to four years’

incarceration, followed by eight years’ probation. Green did not appeal his

judgment of sentence.         On November 5, 2013, Green filed his first PCRA

petition, which the PCRA court dismissed. This Court reversed and remanded

the PCRA court’s dismissal of Green’s PCRA petition on July 24, 2017. On

March 27, 2018, the Supreme Court denied the Commonwealth’s petition for

____________________________________________


1   18 Pa.C.S.A. § 6106.

2   18 Pa.C.S.A. § 6105.

3   18 Pa.C.S.A. § 6108.

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allowance of appeal. On remand, the PCRA court reinstated Green’s direct

appeal rights nunc pro tunc on May 9, 2018. Now, on appeal, Green argues

that Officer Devlin lacked reasonable suspicion to detain him and, therefore,

the trial court erred in not suppressing the handgun evidence.

     We begin our analysis by reciting our well-settled standard:

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

omitted). Additionally, our review is limited to the record developed during

the suppression hearing. See Commonwealth v. Lukach, 195 A.3d 176,

182-83 (Pa. 2018).    As the prosecution prevailed in the matter, we must

review the record in the light most favorable to the Commonwealth.

Commonwealth v. Rickabaugh, 706 A.2d 826, 832 (Pa. Super. 1997).

“When it is a defendant who has appealed, we must consider only the evidence

of the prosecution and so much of the evidence for the defense as, fairly read

in the context of the record as a whole, remains uncontradicted.”

Commonwealth v. Baker, 963 A.2d 495, 500 (Pa. Super. 2008) (quoting

Commonwealth v. Mayhue, 639 A.2d 421, 435 (Pa. 1994)). If the evidence

supports the trial court’s findings, we may reverse only if the court erred in

reaching its legal conclusions. Commonwealth v. Coleman, 19 A.3d 1111,

1115 (Pa. Super. 2011).




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      Green argues that the police illegally pursued him when they followed

him into a store and ordered him to put his hands up. He argues that the

police engaged in an investigatory detention but did not have reasonable

suspicion or probable cause to believe a crime was about to occur. Therefore,

he argues, the stop was unconstitutional and all evidence seized during the

interaction must be suppressed.

      There   are   three   levels   of   police   interaction   with   citizens.

Commonwealth v. Reed, 19 A.3d 1163, 1166 (Pa. Super. 2011).

      The first of these [interactions] 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. Campbell, 862 A.2d 659, 663 (Pa. Super. 2004). Here,

Officer Devlin discovered the gun after following him to the convenience store.

Therefore, we must determine if the record supports the suppression court’s

findings that the interaction was an investigatory stop and that there was

reasonable suspicion. See id.; Jones, 874 A.2d, at 115.

      It is well-established that in order to perform an investigatory stop, a

police officer must have a reasonable suspicion that criminal activity is afoot.

Terry v. Ohio, 392 U.S. 1, 30 (1968). The totality of the circumstances must

be considered when determining if there was reasonable suspicion. United


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States v. Cortez, 449 U.S. 411, 417 (1981). In determining whether this

level of suspicion has been attained, the officer “must be able to point to

specific and articulable facts which, taken together with rational inferences

from those facts, reasonably warrant that intrusion.”       Id. at 21.      Factors

considered together can generate reasonable suspicion even though each

factor individually may be consistent with innocent behavior.                  See

Commonwealth v. Randolph, 151 A.3d 170, 178 n.2 (Pa. Super. 2016).

We do not view the situation as an ordinary citizen might; instead, we focus

on the circumstances as seen through the eyes of the trained officer. In the

Interest of B.C., 683 A.2d 919, 924 (Pa. Super. 1996).                During an

investigatory stop, an officer can briefly detain an individual and perform a

pat-down if he reasonably believes that the suspect may be armed.              See

Commonwealth v. Spears, 743 A.2d 512, 514 (Pa. Super. 1999); see also

Commonwealth v. Davis,           102    A.3d   996,   999   (Pa.   Super.    2014)

(“A Terry frisk is a type of investigative detention requiring reasonable

suspicion that criminal activity is afoot and that the individual whose

suspicious behavior he is investigating at close range is armed and presently

dangerous to the officer or to others.")

      Based on our review of the record, we find that the circumstances gave

Officer Devlin reasonable suspicion to believe criminal activity was afoot. First

we note that Officer Devlin had been a police officer for twelve years at the

time of the arrest. N.T. Suppression, 10/4/12, at 8. He spent eight of those


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years on the Narcotics Strike Force. Id. In a known drug area, Officer Devlin

saw Green bend down between a curb and a parked car. Id. at 13, 15. Officer

Devlin testified that, based on his experience, observing past drug

transactions, this was likely part of a narcotics transaction. Id. at 15. When

another person alerted Green to the police presence, Green quickly left the

area. Id. As he was leaving the area, he was holding his waistband. Id. at

20. At the suppression hearing, Officer Devlin testified that this was consistent

with carrying a concealed firearm without a holster. Id.

         While each of these facts alone may be innocent, when taken together

under the totality of the circumstances, they give rise to reasonable suspicion

that criminal activity was afoot. Accordingly, Officer Devlin was permitted to

pursue Green and perform an investigatory stop where he temporarily detains

Green and performs a pat-down. See Spears, 743 A.2d at 514; see also

Davis, 102 A.3d at 999. An officer is permitted to seize contraband seen in

plain view during a legal stop. See Commonwealth v. Ballard, 806 A.2d

889, 892.      As discussed above, Officer Delvin’s stop of Green was legal

because there was reasonable suspicion that a crime was afoot. Thus, the

gun seen in plain view during the stop was admissible evidence at trial.

         Accordingly, we find no error with the trial court’s determinations. The

trial court’s findings are supported by the record, and the court properly

concluded Officer Devlin had reasonable suspicion that criminal activity was

afoot.


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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/2019




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