J-S81010-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

DARREA LAWRENCE

                        Appellee                     No. 604 EDA 2016


                  Appeal from the Order February 1, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0007113-2015



BEFORE: BOWES AND MOULTON, JJ., AND STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                       FILED DECEMBER 16, 2016

     The Commonwealth appeals from the February 1, 2016 order granting

Darrea Lawrence’s motion to suppress. We reverse.

      The following facts were adduced by the Commonwealth. On May 30,

2015, at approximately 8:50 p.m., Philadelphia police officer Edward Oleyn

responded to a burglary. When he arrived, another patrol unit was present,

and that officer was speaking to the victim in front of her residence. As the

burglary victim spoke with the other officer, Appellee came into view further

up the street walking toward the scene of the incident. The burglary victim

observed Appellee approaching her position, pointed him out to police, and

stated that Appellee was violating the terms of a protection from abuse

(“PFA”) order by nearing her residence.

* Former Justice specially assigned to the Superior Court.
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       Upon hearing that Appellee was in violation of a PFA, Officer Oleyn and

his partner advanced toward him.               When Appellee observed the officers

proceeding in his direction, he abruptly stopped and retreated down the

street. Officer Oleyn directed Appellee to stop, but he did not immediately

do so. As he withdrew, Appellee repeatedly reached for his right-hand pants

pocket. The officer then apprehended Appellee and immediately conducted

a pat-down search.           Officer Oleyn recovered a silver handgun from

Appellee’s pocket, and placed him under arrest.1

       Based on the foregoing, the Commonwealth charged Appellee with

firearms not to be carried without a license and carrying firearms on public

streets or public property in Philadelphia. Appellee filed a pre-trial motion to

suppress the evidence against him.              A suppression hearing was held on

February 1, 2016, and after hearing Officer Oleyn’s testimony, the trial court

granted Appellee’s motion. This timely appeal followed. The Commonwealth

complied with the trial court’s directive to file a Rule 1925(b) concise

statement of errors complained of on appeal, and the trial court authored its

Rule 1925(a) opinion. This matter is now ready for our review.

       The Commonwealth presents one question for our consideration: “Did

the lower court err in suppressing [Appellee’s] handgun on the basis the

____________________________________________


1
  Subsequent to his arrest, Officer Oleyn discovered there was no protection
from abuse order in place against Appellee.



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police lacked reasonable suspicion to frisk [Appellee] where a reliable

informant told the officers he was in violation of a protection from abuse

order, he disregarded an officer’s instruction to stop, and repeatedly reached

into his pants pocket?” Commonwealth’s brief at 3.

      This Court reviews the grant of a suppression motion under well-

established principles.   We consider the evidence of the defendant, as the

prevailing party below, and any evidence of the prosecution that is

uncontradicted in the context of the suppression record. Commonwealth

v. Walls, 53 A.3d 889, 892 (Pa.Super. 2012) (citation omitted).        We are

bound by the factual findings of the suppression court where the record

supports those findings and may only reverse when the legal conclusions

drawn from those facts are in error.    Id.   We are not bound by the legal

conclusions of the suppression court. Id.

      Initially, we observe that Appellee concedes his seizure by the police

amounted to an investigatory stop, and that it was justified by reasonable

suspicion.   It is well established that a police officer may conduct a brief

investigatory stop of an individual if the officer observes conduct which leads

him to reasonably conclude, in light of his experience, that criminal activity

may be afoot.     Terry v. Ohio, 392 U.S. 1 (1968); Commonwealth v.

Lewis, 636 A.2d 619, 623 (Pa. 1994). The Commonwealth contends, on the

other hand, that the immediate search of Appellee’s person was supported

by reasonable suspicion.

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      A law enforcement officer may pat down an individual whose

suspicious behavior he is investigating on the reasonable belief that the

individual is presently armed and dangerous.       Commonwealth v. Gray,

896 A.2d 601, 605-606 (Pa. 2006) (citing Terry, supra at 24).          A police

officer may conduct such a so-called “Terry frisk” for weapons if

      he or she reasonably fears that the person with whom he or she
      is dealing may be armed and dangerous. The 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 the safety of others
      was in danger. The existence of reasonable suspicion to frisk an
      individual must be judged in light of the totality of the
      circumstances confronting the police officer.

Commonwealth v. Cooper, 994 A.2d 589, 592-593 (Pa.Super. 2010)

(citation omitted). In order to justify a Terry frisk, “the police need to point

to specific and articulable facts indicating the person they intend to frisk may

be armed and dangerous; otherwise, the talismanic use of the phrase ‘for

our own protection,’ a phrase invoked by the officers in this case, becomes

meaningless.” Id. at 593 (citation omitted).

      The Commonwealth alleges that the trial court’s determination that the

police lacked reasonable suspicion to frisk Appellee ignored the totality of

the circumstances. In support of this position, the Commonwealth highlights

that the burglary victim was known to police, and her statement that

Appellee was allegedly in violation of a PFA was therefore reliable. It asserts

that a PFA implied Appellee had a history of violent behavior. Finally, the



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Commonwealth maintains that Appellee’s evasive conduct coupled with his

repeated placement of his hand in his pants pocket supplied reasonable

suspicion for the Terry frisk.

        In finding that the pat-down of Appellee’s person was not supported by

reasonable suspicion, the trial court determined the police did not have

specific and articulable facts to reasonably believe Appellee was armed and

presently dangerous.        The court notes that Appellee was not connected to

the   burglary   call     that   first   brought    law   enforcement         to   the   area.

Immediately prior to the search, the police knew only that Appellee may

have been in violation of a PFA, and that he began walking away when

Officer Oleyn approached him.             The court emphasized that there was no

other information indicating Appellee possessed a weapon.                          Hence, it

concluded that, in light of the totality of the circumstances, there was

insufficient evidence for a reasonable police officer to objectively conclude

that Appellee was armed and dangerous at the time Officer Oleyn

apprehended, and simultaneously frisked, Appellee. We disagree.

        As the trial court relied on Cooper, supra, to support its position, we

begin    our   analysis    there.        In   Cooper,     police   officers    patrolling   a

neighborhood received complaints that somebody was stealing copper from

dumpsters in the area. That evening, two officers observed Cooper near a

dumpster. When they exited their patrol car, Cooper turned away from the

officers and reached for his pocket. The officers ordered Cooper to stop and

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conducted a pat-down search for the officers’ safety. The officers discovered

marijuana during the frisk, and after charges were filed, Cooper moved to

suppress that evidence.

      In finding that Cooper’s movement toward his pocket in broad daylight

did not provide the officers with sufficient reason to believe that he was

armed and dangerous, we noted that “the officer cited no other reason to

believe that [Cooper], even if he was suspected of stealing trash or copper,

was reaching for a weapon.” Cooper, supra at 594. The trial court relied

on our decision in Commonwealth v. Carter, 779 A.2d 591 (Pa.Super.

2001), for the proposition that officers would be justified in patting down an

individual who puts his hand in his pocket during an encounter.           We

cautioned that the Carter court “did not ipso facto sanction the frisking of a

defendant who puts his hand in his pocket.” Cooper, supra at 594.

      Contrary to the trial court’s holding, we find the dispute herein

analogous to Commonwealth v. Wilson, 927 A.2d 279 (Pa.Super. 2007).

In Wilson, an officer observed a vehicle failing to stop at a stop sign at

approximately 7:43 p.m. After initiating a traffic stop, the officer observed

that the defendant appeared nervous. The defendant was seen repeatedly

checking his mirrors.   In addition, he had placed his hand in his pockets.

After conducting a pat-down search, the officer discovered crack cocaine in

the defendant’s pocket. On appeal, the defendant challenged the Terry frisk




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asserting that the officer lacked reasonable suspicion that he was armed and

dangerous.

      In Wilson, this Court found that the officer had reasonable suspicion

to perform a pat-down search of the defendant. The officer testified that the

defendant appeared nervous and fidgety.      During the course of the traffic

stop, the officer noted that the defendant had placed his hands in his pocket,

“like he was reaching around for something[.]” Id. at 284. This behavior

raised the officer’s suspicion since, in his experience, “people usually put

their hands in their pocket to conceal a weapon, among other things.” Id.

Based on the defendant’s apprehensive gestures and movements, and the

placement of his hand in his pocket, we held that the officer could

reasonably believe that his safety was in jeopardy. Hence, he was justified

in performing a Terry frisk for his own safety.

      Instantly,   the   Commonwealth      adduced   evidence   that   officers

investigating an unrelated burglary were made aware by a known individual

that Appellee was purportedly in violation of a PFA. Upon observing police

approaching his position, Appellee abruptly turned, walked away from police,

and repeatedly placed his hand in his pocket. While walking away, Appellee

ignored commands by Officer Oleyn to stop.        Upon observing Appellee’s

behavior, Officer Oleyn performed the Terry frisk “for officer safety.” N.T.

Suppression Hearing, 2/1/16, at 6.




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     The allegation, from a reliable source, that Appellee was in violation of

a PFA indicated to Officer Oleyn that Appellee had a history of violent

conduct.   Therefore, it was reasonable for the officer to suspect, at the

outset, that Appellee posed a threat to officer safety.   Furthermore, as in

Wilson, supra, Appellee’s behavior evinced articulable signs that would lead

an officer to reasonably believe he was armed and dangerous.         Appellee

attempted to evade police and ignored repeated orders to stop.          While

walking away from the police, Appellee continually placed his hand in his

right pocket. Appellee’s suspicious behavior supported the inference that he

was concealing a weapon in that pocket, and therefore, based on the totality

of the circumstances, Officer Oleyn was justified in subjecting him to a pat-

down search.

     Order reversed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2016




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