J-A21016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: M.K.                                        IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA




APPEAL OF: M.K.

                                                        No. 504 EDA 2013


             Appeal from the Dispositional Order December 18, 2012
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-JV-0003810-2012


BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                              FILED OCTOBER 01, 2014

        M.K. appeals from the dispositional order, entered on December 18,

2012, in the Family Division, Juvenile Branch, of the Court of Common Pleas

of Philadelphia County, after he was adjudicated delinquent of possession

with intent to deliver a controlled substance (PWID), and possession of a

controlled substance.1       The court ordered M.K. to remain at Mid Atlantic

Western PA Child Care.         M.K. challenges (1) the denial of his suppression

motion, and (2) the sufficiency of the evidence.       Based upon the following,

we affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30), (a)(16), respectively.
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     The juvenile court has aptly summarized the evidence, which was

presented at the suppression hearing, as follows:

          During the course of the hearing held on a Motion to
     Suppress on [December] 18, 2012, this Court heard testimony
     from one witness, Philadelphia Police Officer Ernest Brown.

           Officer Ernest Brown, Badge Number 926, testified that he
     was assigned to the Narcotics Field Unit North on August 1, 2012
     and that he and his partner, Officer Sumpter came in contact
     with [M.K.] on that date. Officer Brown identified [M.K.] in court.

           The Narcotics Unit was investigating potential narcotics
     sales at 3269 Byberry Road in Philadelphia on July 31, 2012 and
     witnessed suspected sales by several males. On August 1, 2012,
     the Narcotics Unit obtained a search warrant for that address.
     The search warrant identified several items to be searched for
     and seized, including narcotics, paraphernalia, and weapons.

           While the Philadelphia Police officers were executing a valid
     search warrant, [M.K.], who was not initially present in the
     home, walked up on to the porch of the house. According to the
     police report admitted by stipulation of the counsel, Officer
     Sumpter observed a bulge in the right hand pocket of [M.K.].
     The police officer then stopped [M.K.] and patted him down for
     his own personal safety and the safety of his fellow officers. On
     the porch, Officer Sumpter stopped and frisked [M.K.]. After
     patting [M.K.] down, the officer recognized the bulge to be
     narcotics and recovered sixteen (16) Ziploc bags, each
     containing marijuana.

Juvenile Court Opinion, 9/25/2013, at 4–5 (record citations omitted).

     After hearing argument on the motion to suppress, the juvenile court

denied the motion and the matter proceeded to an adjudicatory hearing,

where the Commonwealth incorporated the suppression testimony with

respect to all nonhearsay testimony from Officer Brown and stipulations from

the Philadelphia Police Department Arrest Report (“PARS”), and introduced

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property receipts and seizure analyses.          See N.T., 12/18/2012, at 34–35.

Thereafter, the court adjudicated M.K. delinquent of PWID, possession, and

conspiracy,2 and ordered him to remain at Mid Atlantic Western PA Child

Care. Subsequently, in response to the post-dispositional motion filed by

M.K., the court vacated the adjudication of delinquency based upon

conspiracy only, and this appeal followed.3

        The first issue raised by M.K. is a challenge to the denial of his

suppression motion. M.K. asserts police “frisked [him] without reasonable

suspicion that he was armed and dangerous where he was merely present as

a visitor during the execution of a search warrant, he had no involvement in

the drug activity under investigation, and police saw a bulge in his pocket

but did not observe him behaving in an unusual, suspicious, or furtive

manner.” M.K.’s Brief at 11.        M.K. argues “[his] mere presence in the home

during the execution of the search warrant does not justify frisking him. Nor

does an innocuous bulge in his pocket establish a per se basis for suspecting

that he was armed and dangerous.” Id. at 14.

        Our standard of review is well settled:

____________________________________________


2
    18 Pa.C.S. § 903.
3
 M.K. timely filed a concise statement of errors complained of on appeal, in
accordance with Pa.R.A.P. 1925(b), and, a petition for extension of time,
which was granted by the juvenile court.         M.K. subsequently filed a
supplemental statement, following transcription of the notes of testimony.




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      In addressing a challenge to a trial court’s denial of a
      suppression motion, we are limited to determining whether the
      factual findings are supported by the record and whether the
      legal conclusions drawn from those facts are correct. Since the
      Commonwealth prevailed in the suppression court, we may
      consider only the evidence of the Commonwealth and so much of
      the evidence for the defense as it remains uncontradicted when
      read in the context of the record as a whole. Where the record
      supports the factual 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. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)

(citations omitted).

      The facts set forth above, as found by the juvenile court, are

supported by the record, and therefore we turn to examine the court’s legal

conclusions.   The juvenile court explained the rationale for its ruling as

follows:

      It is well established that a police officer may briefly detain an
      individual and conduct a pat-down search for weapons if the
      officer[] has “reasonable articulable suspicion” that an individual
      is armed and dangerous. Terry v Ohio, 392 U.S. [1], 88 S. Ct.
      1868, 20 L.Ed. [2d] 889 (1968). In order to justify a protective
      pat-down search or “frisk” for weapons, “the police officer must
      be able to point to specific and articulable facts which, taken
      together with rational inferences from those facts reasonable
      warrant the intrusion.” 392 U.S. at 21.

      In Terry, the Unites States Supreme Court emphasized that the
      “sole justification for the frisk” is the protection of the officer and
      others nearby, and it must be confined in scope to an intrusion
      reasonably designed to discover guns, knives, clubs or other
      hidden [instruments] for the assault of the police officer. Id. at
      29. To determine whether the search in this case was
      reasonable, the Court must evaluate the totality of the
      circumstances and the need to balance the need for the search
      against the degree of the intrusion it entails.


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     Nothing in Terry can be understood to allow a generalized
     “cursory search or patdown” or indeed, any search whatever for
     anything but weapons. The “narrow scope” of the Terry
     exception does not permit a frisk for weapons on less than a
     reasonable suspicion or belief directed at the person to be
     frisked, even though that person happens to be on the premises
     when an authorized narcotics search is taking place. Ybarra v.
     Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979).

     In considering whether the Police Officer Sumpter possessed the
     requisite suspicion to frisk [M.K.] for weapons, the Court found
     that the police officer had no specific knowledge or information
     that [M.K.] might have drugs on his person before he frisked
     [M.K.] for weapons. The Police Officer Sumpter observed a
     “bulge” and it was the “sole justification” for the frisk to protect
     the police officers. The initial pat-down search of [M.K.] was
     confined in a reasonable intrusion reasonably designed to
     uncover guns, or other hidden objects, that could be used to
     assault of the police officers who were in the process of
     executing a search warrant at 3269 Byberry Road in
     Philadelphia, PA.

Juvenile Court Opinion, supra, at 7-8.

     For the following reasons, we find no error in this analysis.

         It is well-established that a police officer may conduct a
         brief investigatory stop of an individual if the officer
         observes unusual conduct which leads him to reasonably
         conclude that criminal activity may be afoot. Moreover, if
         the officer has a reasonable suspicion, based on specific
         and articulable facts, that the detained individual may be
         armed and dangerous, the officer may then conduct a
         frisk of the individual’s outer garments for weapons.
         Since the sole justification for a Terry search is the
         protection of the officer or others nearby, such a
         protective search must be strictly limited to that which is
         necessary for the discovery of weapons which might be
         used to harm the officer or others nearby. Thus, the
         purpose of this limited search is not to discover evidence,
         but to allow the officer to pursue his investigation without
         fear of violence.




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Scarborough,     supra,    89    A.3d   at   683    (citations   omitted).

Furthermore,

      [a]n overt threat by the suspect or clear showing of a weapon is
      not required for a frisk. It is well-established that “[t]he officer
      need not be absolutely certain that the individual is armed; the
      issue is whether a reasonably prudent man in the circumstances
      would be warranted in the belief that his safety or that of others
      was in danger.”

Commonwealth v. Mack, 953 A.2d 587, (Pa. Super. 2008) (citations

omitted).

      Here, M.K.’s arguments asserting his “mere presence” and “innocuous

bulge” are based upon the facts taken in isolation. We recognize “a police

officer must have a particularized, objective basis for a protective search; an

individual’s mere proximity to others engaged in criminal activity is

insufficient” to justify a protective search. Commonwealth v. Grahame, 7

A.3d 810, 817 (Pa. 2010) (finding search of appellant’s purse was

unreasonable when she was sitting in the living room during consent search

of a house where another person had sold illegal drugs ten minutes prior;

disapproving a “guns follow drugs” presumption in order to justify a

protective search for weapons”). However, the appropriate analysis requires

the suppression court to view the facts in the light of the totality of the

circumstances. See Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa.

Super. 2011), appeal denied, 25 A.3d 328 (Pa. 2011) (“In order to

determine whether the police had reasonable suspicion, the totality of the

circumstances — the whole picture — must be considered.”).

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       The Commonwealth’s evidence regarding the frisk and recovery of

drugs from M.K. was entered into evidence by stipulation between counsel

as to the contents of the police report, known as the PARS. The PARS states,

in relevant part:

       During the execution of the search warrant[,4] a male identified
       as [M.K.] walked into the residence and was stopped by P/O
       Brown #1926. The officer arrested this male after the officer
       observed a bulge in his right hand shorts pocket.[5] The officer
       patted him down and immediately recognized the bulge to be
       narcotics. Recovered was a clear plastic baggie containing
       sixteen (16) clear zip lock packets with green markings on one
       side each containing marijuana. Also recovered from the same
       pocket was $15.00 US currency.

Exhibit C-1, PARS.        See N.T., 12/18/2012, at 19–20.      Contrary to the

position   of   M.K.,    the   Commonwealth’s    evidence   comprises   specific,

articulable facts from which the officer could reasonably infer that M.K. was

a safety threat. While M.K. characterizes the evidence in terms of his “mere

____________________________________________


4
 The PARS does not indicate the precise time of the execution of the search
warrant. The PARS indicates that at 7:25 p.m. the resident of the house,
who was under surveillance, exited the house, met and entered a vehicle
across the street, and police converged on the scene as a drug transaction
was occurring in the vehicle. After arrests were made of the resident, driver
and passenger of the vehicle, the search warrant for the residence was
executed, and at that time, M.K. entered the residence. See Exhibit C-1,
PARS.
5
  At the suppression hearing, Officer Brown testified that he did not stop
M.K., and that it was Officer Sumpter who had “stopped” and frisked M.K.,
and made the recovery. N.T., 12/18/2012, at 11. We note that there is no
contention in this case that M.K. was placed under arrest prior to the pat-
down.




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presence” and an “innocuous bulge,” under the totality of the circumstances

analysis, innocent facts, when taken together, may warrant further

investigation.6 See Terry, 392 U.S. at 22.

       Nor are we persuaded by the argument of M.K. that “the minimalist

record is devoid of even the officer’s own assertion that he believed —

whether reasonably or not — that [M.K.] was armed and dangerous.” M.K.’s

Brief at 16.      In this regard, we note that this Court has instructed:

“Reasonable suspicion is based upon an objective standard, not subjective

intent.” Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa. Super. 2009)

____________________________________________


6
  The noticeable bulge in M.K.’s pocket distinguishes the present case from
Grahame, wherein the Pennsylvania Supreme Court determined that “the
courts below erred in concluding that Officer Russell had reasonable
suspicion to conduct a protective search of Appellant’s handbag pursuant to
Terry.” 7 A.3d at 817. The Grahame Court explained:

       By her own admission, Officer Russell conducted a protective
       search of Appellant’s purse based on a generalization that
       firearms are commonly found in close proximity to illegal drugs.
       No one from the task force knew if Appellant had a criminal
       record, and there was no indication that D.W. and Appellant
       were involved in a common enterprise. Indeed, the police
       witnessed a single drug transaction, and it occurred outside of
       Appellant’s presence. Furthermore, upon entering the house,
       Officer Russell did not detect any unusual behavior or furtive
       movements on Appellant’s part nor did she observe a
       suspicious bulge in Appellant’s purse. Since the
       Commonwealth failed to elicit any facts that supported an
       objectively reasonable belief that Appellant was armed and
       dangerous, the Superior Court's decision cannot be sustained.

Id. at 817 (emphasis added) (footnote and citation omitted).




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(en banc), appeal denied, 990 A.2d 727 (Pa. 2010). The Foglia Court

opined:

      As the United States Supreme Court noted in Maryland v.
      Macon, 472 U.S. 463, 470-471, 105 S. Ct. 2778, 86 L. Ed. 2d
      370 (1985), “Whether a Fourth Amendment violation has
      occurred ‘turns on an objective assessment of the officer’s
      actions in light of the facts and circumstances confronting him at
      the time,’ Scott v. United States, 436 U.S. 128, 136, 98 S.Ct.
      1717, 1722, 56 L.Ed.2d 168 (1978), and not on the officer’s
      actual state of mind at the time the challenged action was taken.
      Id. at 138 and 139, n.13, 98 S.Ct. at 1724, n.13.”

Id. at 361. Therefore, M.K.’s argument regarding the absence of testimony

regarding the officer’s subjective intent is unavailing.

      Furthermore, although M.K. relies on Commonwealth v. Cartagena,

63 A.3d 294 (Pa.Super. 2013), appeal denied, 70 A.3d 808 (Pa. 2013), we

find the present case is distinguishable from Cartagena.       In Cartagena,

this Court held the nervousness of the driver, stopped late at night for a

suspected tinted window violation, was insufficient justification for police to

conduct a Terry frisk and a protective weapons search of the vehicle. The

Cartegena Court, in reaching its conclusion, explained:

      Absent some combination of evidence to give context to
      the encounter - for example, testimony that the stop occurred
      in a high-crime area; testimony regarding Officer Johncola’s
      training and experience and its role in formulating a reasonable
      suspicion that Cartagena was armed and dangerous; and/or
      testimony illuminating the length of the delay in Cartagena
      lowering his windows - we cannot overturn the suppression
      court’s decision to suppress the gun found during the search of
      the passenger compartment of the vehicle. To do so would
      require an unwarranted expansion of police officers’ ability to
      conduct Terry frisks and protective vehicle searches, and a


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      concomitant erosion of the rights of citizens of Pennsylvania to
      be free of unreasonable search and seizure.

Cartagena, supra, 63 A.3d at 306 (footnote omitted) (emphasis added).

Here, there is a combination of evidence, namely, that M.K. walked onto the

porch of a house where suspected drug trafficking was occurring, during the

execution of a search warrant, and at that time police observed a bulge in

his pocket.    Viewing these facts in the light of “the totality of the

circumstances,” we find no basis upon which to disturb the ruling of the

juvenile court that determined the protective frisk in this case was

constitutionally permissible.

      M.K. next challenges the sufficiency of the evidence as to his

conviction for possession with intent to deliver a controlled substance.

      In evaluating a challenge to the sufficiency of the evidence
      supporting an adjudication of delinquency, our standard of
      review is as follows:

         When a juvenile is charged with an act that would
         constitute a crime if committed by an adult, the
         Commonwealth must establish the elements of the crime
         by proof beyond a reasonable doubt. When considering a
         challenge to the sufficiency of the evidence following an
         adjudication of delinquency, we must review the entire
         record and view the evidence in the light most favorable
         to the Commonwealth.

         In determining whether the Commonwealth presented
         sufficient evidence to meet its burden of proof, the test to
         be applied is whether, viewing the evidence in the light
         most favorable to the Commonwealth, and drawing all
         reasonable inferences therefrom, there is sufficient
         evidence to find every element of the crime charged. The
         Commonwealth may sustain its burden of proving every


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           element of the crime beyond a reasonable doubt by
           wholly circumstantial evidence.

           The facts and circumstances established by the
           Commonwealth need not be absolutely incompatible with
           a defendant’s innocence. Questions of doubt are for the
           hearing judge, unless the evidence is so weak that, as a
           matter of law, no probability of fact can be drawn from
           the combined circumstances established by the
           Commonwealth.

In re V.C., 66 A.3d 341, 348–349 (Pa. Super. 2013) (citation omitted),

appeal denied, 80 A.3d 778 (Pa. 2013).

       M.K. contends that the amount of marijuana found on his person,7 “in

conjunction with other surrounding circumstances, such as the fact that he

had only fifteen dollars and no drug selling paraphernalia, only weakens the

inference that [he] intended to sell the marijuana in his pocket.” M.K.’s Brief

at 19-20. M.K. further asserts “the most significant factor undermining the

conclusion that [M.K.] intended to sell marijuana is the absence of any

expert testimony to that effect.” M.K.’s Brief at 20. Our review, however,

leads us to conclude that these arguments fail to present any basis upon

which to overturn the decision of the juvenile court.



____________________________________________


7
  M.K. argues that the total amount of marijuana in the 16 baggies — “just
over fifteen grams” — equals half of a “small amount of marijuana,” i.e., 30
grams of marijuana, as defined by the Pennsylvania Legislature in 35 P.S. §
780-113(a)(31) (“possession of small amount of marijuana”), and
punishable by a maximum of thirty days’ imprisonment under 35 P.S. § 780-
113(g). See M.K.’s Brief at 19.



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     With regard to PWID, evidence is sufficient “where the Commonwealth

proves beyond a reasonable doubt that the defendant possessed a controlled

substance he was not licensed to possess, and that he did so under

circumstances demonstrating an intent to deliver that substance.”        In the

Interest of R.N., 951 A.2d 363, 367 (Pa. Super. 2008) (citations omitted).

“Factors which may be relevant in establishing PWID include the form of the

drug, the particular method of packaging, and the behavior of the

defendant.” Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa. Super.

2005) (citation omitted).   Furthermore,

     [a]lthough expert testimony can be beneficial, it is by no means
     necessary. Pointedly, while many cases have opined that expert
     testimony is an important consideration in determining whether
     a person intended to deliver a controlled substance, no case has
     ever held that the absence of such testimony automatically
     renders the evidence insufficient to sustain a PWID conviction.
     Indeed, determining whether a person possesses a drug
     for personal use or with intent to deliver is based upon
     the totality of circumstances. Commonwealth v. Ratsamy,
     594 Pa. 176, 934 A.2d 1233 (Pa. 2007). In Ratsamy, the
     Supreme Court opined,

         The amount of the controlled substance is not “crucial to
         establish an inference of possession with intent to deliver,
         if ... other facts are present.” Commonwealth
         v. Ariondo, 397 Pa.Super. 364, 580 A.2d 341, 350—51
         (1990). The Superior Court’s own cases follow this
         reasoning. See, e.g., Commonwealth v. Brown, 2006
         PA Super 177, 904 A.2d 925, 931—32 (Pa.Super. 2006),
         appeal denied, 591 Pa. 710, 919 A.2d 954 (2007) (the
         totality of the circumstances established sufficient evidence
         to support a conviction for possession with intent to
         deliver);     Commonwealth v. Drummond, 2001 PA
         Super 122, 775 A.2d 849, 853—54 (Pa.Super. 2001),
         appeal denied, 567 Pa. 756, 790 A.2d 1013 (2001) (the
         Commonwealth may establish the essential elements of

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           the crime wholly by circumstantial evidence; the court
           looks to all facts and circumstances in each case
           surrounding the possession of the controlled substance).

       Id. at 1237.

Commonwealth v. Watley, supra, 81 A.3d 108, 114–115 (Pa. Super.

2013) (emphasis added), appeal denied, ___ A.3d ___ (Pa. 2014).

       The juvenile court, in reaching its conclusion that M.K. had the intent

to deliver, considered (1) that the marijuana was bagged individually, (2)

that M.K. was also observed by Officer Brown and identified as a potential

target for arrest for selling narcotics during an investigation the day before

his arrest, and (3) that M.K. entered a home where drug sales were

occurring, while carrying the sixteen (16) individual bags of marijuana. Our

review leads us to conclude the record supports the court’s first and third

considerations, and we agree with the court’s determination.8

       While M.K. argues the fact of “the individual bags of marijuana” carries

little weight, and “[M.K’s] presence in a drug house has little bearing,” these

arguments are again based upon the facts viewed piecemeal, rather than in

the light of the totality of the circumstances.         See Watley, supra.

Furthermore, our standard of review requires us to view the evidence

presented at the hearing, and all reasonable inferences derived therefrom, in
____________________________________________


8
    With regard to the court’s second consideration, we note the PARS
indicates that another individual — not M.K. — was the “target” of the police
investigation. See Exhibit C-1, PARS.




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the light most favorable to the verdict winner — here, the Commonwealth.

Accordingly, on this record, we conclude the evidence is sufficient to sustain

the adjudication of delinquency for PWID.     See Interest of Evans, 717

A.2d 542, 546 (Pa. Super. 1998), appeal denied, 736 A.2d 604 (Pa. 1999)

(evidence that juvenile was found with nine individually wrapped rocks of

crack cocaine, totaling 1.03 grams, in an area notorious for drug activity,

and without drug paraphernalia for drug use was sufficient to sustain

adjudication of delinquency for PWID). Therefore, we affirm.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/1/2014




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