J-A04035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TARA MARIE BURDETTE,

                            Appellant                 No. 1557 EDA 2016


             Appeal from the Judgment of Sentence April 22, 2016
               in the Court of Common Pleas of Chester County
              Criminal Division at No.: CP-15-CR-0000068-2016


BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED APRIL 11, 2017

        Appellant, Tara Marie Burdette, appeals from the judgment of

sentence imposed after her bench conviction of one count of possession of

drug paraphernalia, 35 P.S. § 780-113(a)(32). Specifically, she challenges

the court’s April 14, 2016 order denying her motion to suppress evidence

obtained as the result of an investigative detention. We reverse the order,

vacate the judgment of sentence, and remand.

        We take the following facts from the trial court’s April 14, 2016 order,

and our independent review of the certified record.

              On October 23, 2015[,] the Tredyffrin Township Police
        received a report of a suspicious vehicle in the area of
        Brookmeade Road and Valley Forge Road in that township. A
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        concerned citizen informed police that a white Toyota Camry,
        unfamiliar to the caller and occupied by three individuals, drove
        slowly past a residence in that neighborhood and then parked on
        a nearby street[]corner. When the contents of the call were
        dispatched on police radio at approximately 3:39 p.m., Officer
        Neil Jackson of the Tredyffrin Township Police Department
        responded to the dispatch and headed towards the area to
        investigate. While stopped at a traffic light en route, Officer
        Jackson observed a white Toyota Camry in the opposite lane. . .
        . Although he observed no violations of the [] Vehicle Code,[ 1]
        he chose to initiate a traffic stop at approximately 3:43 p.m. for
        the purposes of investigating the report of a suspicious vehicle.
        [Appellant] was a passenger in that vehicle, and her arrest arose
        out of the circumstances of the stop.

(Trial Court Opinion, 4/14/16, at unnumbered pages 1-2 n.1).

        The Commonwealth filed an information on January 22, 2016, charging

Appellant with one count of possession of drug paraphernalia. On March 3,

2016, Appellant filed a motion to suppress evidence seized as a result of the

investigative stop, on the basis that Officer Jackson lacked reasonable

suspicion that the occupants of the vehicle were engaged in criminal activity.

(See Motion for Suppression of Evidence, 3/03/16, at 1-2).

        The trial court denied Appellant’s motion on April 14, 2016. On April

22, 2016, based on the denial of the suppression motion, the parties

stipulated to the facts and the court convicted Appellant of possession of

drug paraphernalia. The same day, the court sentenced her to one year of




____________________________________________


1
    75 Pa.C.S.A. §§ 3101-3817.



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probation, and ordered her to undergo drug and alcohol evaluation and to

follow any recommended treatment. Appellant timely appealed.2

       Appellant raises one issue for this Court’s review: “Did the trial court

err in denying [her] motion for suppression of physical evidence and or

statements?” (Appellant’s Brief, at 2).

       Our standard of review of this matter is well-settled:

                    In reviewing a suppression ruling, we are
              bound by the suppression court’s factual findings,
              unless they are without support in the record. We
              may reverse the legal conclusions reached by the
              suppression court, however, if they are in error.
              Thus, our standard of review of the legal conclusions
              reached by the suppression court is de novo. Where,
              as here, the defendant is appealing the ruling of the
              suppression court, we consider only the evidence of
              the prosecution, and so much of the evidence for the
              defense which remains uncontradicted when fairly
              read in the context of the [suppression] record.

              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. This Court’s scope of review from a
       suppression ruling is limited to the evidentiary record that was
       created at the suppression hearing.

Commonwealth v. Roche, 2017 WL 34931, at *4 (Pa. Super. filed Jan. 4,

2017) (citations and quotation marks omitted).

            An investigative detention occurs when a police officer
       temporarily detains an individual by means of physical force or a
       show of authority for investigative purposes. Such a detention
____________________________________________


2
  On July 15, 2016, Appellant filed a timely concise statement of errors
complained of on appeal, pursuant to the court’s order. The court filed an
opinion on July 18, 2016, in which it relied on the reasons stated in its April
14, 2016 order denying the motion to suppress. See Pa.R.A.P. 1925.



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     constitutes a seizure of a person and thus activates the
     protections of the Fourth Amendment and the requirements of
     Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
     (1968).

                                 *    *    *

            The appellate courts have mandated that law enforcement
     officers, prior to subjecting a citizen to an investigatory
     detention, must harbor at least a reasonable suspicion that the
     person seized is then engaged in unlawful activity. To meet this
     standard, the officer must point to specific and articulable facts
     which, together with the rational inferences therefrom,
     reasonably warrant the intrusion. In ascertaining the existence
     of reasonable suspicion, we must look to the totality of the
     circumstances to determine whether the officer had reasonable
     suspicion that criminal activity was afoot.

          To have reasonable suspicion, police officers need not
     personally observe the illegal or suspicious conduct, but may rely
     upon the information of third parties, including tips from citizens.
     ...

Commonwealth v. Barber, 889 A.2d 587, 592-93 (Pa. Super. 2005)

(quotation marks and most citations omitted).

     In this case, at the hearing on the motion to suppress, Officer Jackson

testified that Tredyffrin Township is “very wealthy[,]” and that a lot of the

homes there, including “multiple” in the neighborhood in question, had been

subject to burglaries.   (N.T. Hearing, 3/17/16, at 10-11).    He stated that

some of the burglaries were perpetrated during the day, with individuals

casing the houses to determine if the residents were home, before breaking

into them. (See id. at 11).

     On the day of the incident, Officer Jackson responded to a radio

dispatch about an unfamiliar white Toyota Camry with three occupants,

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which drove very slowly down the street, before stopping at the corner of

Brookmeade and Valley Forge Roads. (See id. at 14). On his way to the

scene, the officer was travelling north on Route 202, when he observed a

white “older model” Toyota Camry driving southbound on Route 202. (Id.

at 19).     After observing the car, Officer Jackson called in to dispatch and

asked if the complainant could still see the Toyota Camry parked in her

neighborhood. (See id.). The complainant said the car had left, travelling

southbound on 202. (See id.).

      Officer Jackson “did not see any traffic violation based on the totality

of the circumstances of the entire incident[.]”       (Id. at 22).    However, he

turned his vehicle around to get behind the Camry, and initiated a stop “to

establish    [why   the   occupants]   were    back   there   in   that   residential

neighborhood because there is no reason for you to be back there unless

you live there. . . . It makes no sense to cut through that neighborhood to

cut off five minutes of your time.” (Id. at 22-23). On cross-examination,

Officer Jackson admitted that the Camry was not involved in any criminal

activity, and that there were several legitimate reasons to be in the subject

neighborhood, even if not a resident.         (See id. at 27-29).     However, he

explained that, if he had not stopped the Camry, he possibly would have lost

the opportunity to identify a burglary suspect. (See id. at 30).

      We are constrained to conclude that the above facts do not establish

reasonable suspicion.     The decisions in Commonwealth v. DeWitt, 608


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A.2d 1030 (Pa. 1992), and Commonwealth v. McClease, 750 A.2d 320

(Pa. Super. 2000), provide guidance to our disposition. In DeWitt:

      . . . On May 13, 1989, at approximately 11:50 p.m., while on
      routine patrol in South Manheim Township, State Troopers
      Reichert and Hartzel observed an automobile parked partially on
      the berm of the road and partially in the parking lot of St. Paul’s
      Church. The vehicle was faced in the opposite direction of
      travel. The vehicle’s interior lights were illuminated but the
      exterior lights were not. Trooper Reichert testified that he was
      concerned because he thought that the vehicle might be
      disabled, and also because he had received notice from St. Paul’s
      Church to check for suspicious vehicles.        Trooper Reichert
      testified that in order to investigate, he pulled alongside the
      vehicle, whereupon the interior lights were extinguished and the
      four occupants made furtive movements and suspicious
      movements as if they were trying to hide something. The
      vehicle then began to pull away from the scene. At that point,
      Trooper Reichert became suspicious of criminal activity and
      stopped the vehicle.

DeWitt, supra at 1031-32 (quotation marks and record citation omitted).

Based on the above facts, the trial court granted Appellant’s motion to

suppress, and the Commonwealth appealed. A panel of this Court reversed

the trial court, finding that, “[t]he combination of furtive movements, time of

night, previous notice from the property owner, potential parking violation,

and attempted movement from the scene when the police arrived,

sufficiently justified the legality of the stop.”   Id. at 1034 (record citation

omitted).    However, our Supreme Court concluded that this was error,

observing:

            We find [the Superior Court’s] conclusion unsupported by
      the record. Although the police had previous notice from the
      property owner of criminal behavior in the church parking lot,[a]


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     there was absolutely no evidence that the vehicle in question
     was engaged in the type of activity complained of. . . .
           [a]
               Trooper Reichert testified that the police had
           received notice from St. Paul’s Church to check for
           suspicious vehicles, i.e., kids, underage drinking,
           laying rubber, doing donuts in the parking lot and
           [things of] that nature.

           We hold, therefore, that the police did not have . . .
     reasonable suspicion of criminal conduct to justify the stop made
     in the instant case[.] . . .

Id. (quotation marks and record citation omitted).

     Similarly, in McClease, supra:

     . . . On October 24, 1998, shortly after midnight, Detective
     Randy Morris and Officer Joseph Moors of the Bristol Borough
     Police Department drove their police cruiser down Spruce Street,
     a residential street within their jurisdiction. The car, although
     unmarked, was readily identifiable as a police cruiser. Spruce
     Street is a narrow one-way street with parking on both sides and
     a narrow travel lane down the middle. As the officers drove
     down Spruce Street, they observed McClease sitting alone in his
     vehicle. McClease’s vehicle was legally parked under a railroad
     overpass. The overpass causes this part of Spruce Street to be
     darker than other parts of the street. The police had received
     complaints about ongoing illegal activities around this part of
     Spruce Street including persons drinking alcohol in public,
     persons possessing and displaying weapons, and persons
     involved in drug transactions.

            McClease’s vehicle was parked on the left side of the road.
     Detective Morris, who was driving, noticed that McClease’s head
     was lowered as if he was looking at his hands. As the police
     vehicle passed McClease’s vehicle, McClease raised his head and
     looked at Detective Morris. As McClease did so, his eyebrows
     raised, his eyes got wider, and he immediately lowered his body.
     Upon observing these movements, Detective Morris stopped the
     police cruiser and backed it up until it was abreast with
     McClease’s vehicle. Detective Morris and Officer Moors exited
     their vehicle and approached McClease’s vehicle.


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J-A04035-17


                                 *      *   *

            Upon further approaching the vehicle, Detective Morris
      noticed an open container of alcohol in the vehicle and the blunt
      on the street below the driver’s door. Detective Morris then
      ordered McClease out of the vehicle so that Detective Morris
      could pat McClease down. McClease complied. . . .

McClease, supra at 322-23.

      Applying DeWitt to the above facts, this Court concluded that: “the

specific and articulable facts observed by Detective Morris and Officer Moors,

and any rational inferences drawn therefrom, are insufficient for us to

conclude that the officers possessed the requisite reasonable suspicion that

McClease was currently engaged in criminal activity. Consequently, the stop

of McClease was illegal.” Id. at 326.

      Likewise, here, based on the binding caselaw of our Supreme Court,

we must conclude that Officer Jackson lacked reasonable suspicion to

conduct an investigatory detention. The only activity that the complainant

reported was that, in the middle of the afternoon, a car she did not

recognize slowly drove by her home in a wealthy residential neighborhood

and parked at the corner for a few moments.        The vehicle then left the

location of its own accord, and moments later, when Officer Jackson

observed the car, he did not see any Vehicle Code violations. Finally, when

the officer initiated a traffic stop, the occupants immediately cooperated and

made no attempt to flee.




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J-A04035-17


      We    recognize     that   multiple   burglaries    had     occurred    in   the

neighborhood in which the subject vehicle initially was observed. However,

to assume that passengers of a vehicle who were briefly stopped in a

wealthy residential neighborhood might be planning to burglarize a home at

some future time, or had done so previously, merely because burglary is a

common crime in the area, requires a degree of speculation that cannot

sustain reasonable suspicion.        See DeWitt, supra at 1034; McClease,

supra at 326. In short, “there was absolutely no evidence that the vehicle

in question was engaged in the type of activity complained of.”               DeWitt,

supra at 1034; see also Commonwealth v. Reppert, 814 A.2d 1196,

1204 (Pa. Super. 2002) (“Although a police officer’s knowledge and length of

experience weigh heavily in determining whether reasonable suspicion

existed, . . .   [Our] inquiry will not be satisfied by an officer’s hunch or

unparticularized       suspicion.)    (emphasis     and         citation     omitted);

Commonwealth v. Donaldson, 786 A.2d 279, 284 (Pa. Super. 2001),

appeal denied, 800 A.2d 931 (Pa. 2002) (police officer’s observation of

individual entering and exiting defendant’s vehicle in area known for drug

dealing might have been “fishy” or have created an “educated hunch” of

illegal activity, but this did not equate to reasonable suspicion justifying

investigative detention); McClease, supra at 326 (stop illegal where police

lacked reasonable suspicion that defendant “was currently engaged in

criminal activity”).


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      Therefore, under the facts presented in this case, we are constrained

to conclude that the trial court erred in finding that Officer Jackson had

reasonable suspicion to effectuate a traffic stop, and in denying Appellant’s

motion to suppress any resulting evidence.       Hence, we reverse the trial

court’s April 14, 2016 order, and, because the parties stipulated to the facts

of this case based on the trial court’s improper denial of the motion to

suppress, we vacate the judgment of sentence and remand for proceedings

consistent with this decision.

      Order reversed.        Judgment of sentence vacated.   Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2017




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