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                             2014 PA Super 265



COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

HYKEEM CARTER

                        Appellee                   No. 2339 EDA 2012


                    Appeal from the Order July 6, 2012
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0000285-2012


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
        PANELLA, J., DONOHUE, J., ALLEN, J., LAZARUS, J., MUNDY, J.,
        and OLSON, J.

DISSENTING OPINION BY LAZARUS, J.:             FILED DECEMBER 02, 2014

     I respectfully dissent. 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, in light of his

experience, that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1,

30 (1968); Commonwealth v. Lewis, 636 A.2d 619, 623 (Pa. 1994).

However, an investigatory stop is justified only if the detaining officer can

point to specific and articulable facts which, in conjunction with rational

inferences derived from those facts, give rise to a reasonable suspicion of

criminal activity and therefore warrant the intrusion.   Commonwealth v.
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Ellis, 662 A.2d 1043 (Pa. 1995). Because the articulable facts,1 taken as a

whole, did not support Officer Blaszczyk’s conclusion that criminal activity

was afoot, I would affirm the order suppressing the evidence obtained from

the pat down of Carter.

       The majority characterizes the suppression court’s legal inquiry as one

that employs a “divide-and-conquer” analysis.         Majority Opinion, at 15.

Essentially, the majority interprets the court’s approach as analyzing the

evidence piecemeal, rather than taking into account the totality of the

circumstances.      I disagree.     Here, the suppression judge, the Honorable

Carolyn H. Nichols, states in her Pa.R.A.P. 1925(a) opinion:

       Reviewing the totality of the circumstances, there exists no
       combinations of factors to justify reasonable suspicion in this
       case. Mr. Carter’s decision to be left alone and hide the content
       of his pocket does not establish that he was engaged in criminal
       activity. Furthermore, Mr. Carter’s action in moving around to
       prevent the officer from viewing the content of his pocket is
       innocent activity in nature and certainly cannot under
       established law lead the officer to believe that criminal activity
       was afoot.

Trial Court Opinion, 11/3/2012, at 7 (emphasis added).

____________________________________________


1
  We recognize that when the Commonwealth appeals from a suppression
order “[w]e may consider the evidence of the witnesses offered by the
defendant, as verdict winner, and only so much of the evidence presented
by the Commonwealth that is not contradicted when examined in the
context of the record as a whole.” Commonwealth v. Feczko, 10 A.3d
1285, 1287 (Pa. Super. 2010) (en banc) (citation omitted). However, here
the Commonwealth presented the sole witness at the suppression hearing,
Officer Blaszczyk.




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      Not only do I agree with Judge Nichols’ legal conclusion that, based on

the facts of record, Officers Blaszczyk and White did not have reasonable

suspicion to stop and frisk Carter, but I believe it is our duty as an appellate

court to defer to the suppression judge’s credibility determination where

those findings, as here, are supported by the record.

      The relevant evidence shows that the officers observed Carter standing

alone on a street corner in an area known for drug activity; Officer Blaszczyk

had made several prior gun and drug arrests at that location. As the officers

drove by Carter, they observed a bulge that weighed down Carter’s jacket

pocket, saw Carter look in the officers’ direction and then watched Carter

walk in the opposite direction from their vehicle.       This series of events

occurred three to four times.    Based upon this evidence, Officer Blaszczyk

concluded that that he had reasonable suspicion to stop Carter and pat him

down.

      This   case   is   most   analogous   with   our   Court’s   decision   in

Commonwealth v. Martinez, 588 A.2d 513 (Pa. Super. 1991).                     In

Martinez, the defendant was also standing on a street corner, in an area

known for drug activity, late at night. Policemen, who knew the defendant

and had spoken with her in the past, approached the defendant who quickly

turned away from them and walked up the street. As the defendant walked

away, the officers noticed that she held her hands in front of her coat and

that there was a bulge in her pocket. The police commanded defendant to

stop and, as she leaned over the police car, contraband fell out of her coat.

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On appeal, the defendant contended that the court should have suppressed

the evidence seized by the police during the stop. Our Court found that the

defendant’s flight from the street corner and the bulge in her jacket were

insufficient facts to support the conclusion that criminal activity was afoot.

      Here, like in Martinez, the facts are simply insufficient to support the

conclusion that Officer Blaszczyk had reasonable suspicion to stop and frisk

Carter at that time. At most, the officers had a mere “hunch” that Carter,

who turned away as the officers drove by him, may have had a gun in his

pocket.   Because the Commonwealth’s evidence falls short of proving that

Carter was engaged in criminal activity and that he was armed and

dangerous, I would affirm the suppression court.

      Judge Donohue concurs in the result.




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