J-S27027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    GARRETTE DWAYNE HOWARD                     :
                                               :
                      Appellant                :   No. 1177 EDA 2016

             Appeal from the Judgment of Sentence March 24, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0007167-2014


BEFORE:       GANTMAN, P.J., OTT, J. and PLATT, J.*

MEMORANDUM BY OTT, J.:                                     FILED JULY 10, 2017

        Garrette Dwayne Howard appeals from the judgment of sentence

imposed on March 24, 2016, in the Court of Common Pleas of Delaware

County following his conviction on charges of possession of a controlled

substance (heroin), possession of a controlled substance (heroin) with intent

to deliver, and possession of drug paraphernalia.1           Howard received an

aggregate sentence of 42 to 84 months’ incarceration. In this timely appeal,

Howard claims he was improperly subjected to an investigatory detention

and therefore the trial court erred in failing to suppress the evidence

obtained from the search of his car.           Following a thorough review of the


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. §§ 780-113 (a)(16), (a)(30), and (a)(32), respectively.
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submissions by the parties, relevant law, and the certified record, we

reverse the order denying Howard’s motion to suppress evidence and

remand for further proceedings.

       We quote the relevant portion of the trial court’s recitation of the

background of this matter.

       On August 9, 2014, at approximately 12:40 p.m., Trooper
       [James] Sparenga was on routine patrol in the area of Interstate
       95 (I-95) South in the area of Ridley Township when he initiated
       a traffic stop of a silver Volkswagen, pulling [Howard] over
       directly in the “gore” adjacent to Exit 4 on I-95 southbound.[2]

       Trooper Sparenga approached the vehicle from the passenger
       side and observed that [Howard] was the driver and sole
       occupant of the vehicle. Trooper Sparenga testified that as, is
       his general practice during traffic investigations, he requested
       license, registration and insurance card from [Howard]. Trooper
       Sparenga advised [Howard] of the reason for the stop and asked
       [Howard] various questions. Trooper Sparenga had difficulty
       understanding what [Howard] was saying, as [Howard] spoke in
       a low, soft voice[3] and was slow to respond to questions.

       [Howard]   provided    Trooper   Sparenga     the   requested
       documentation and then extended his hand to shake Trooper
       Sparenga’s hand.   Trooper Sparenga noted that [Howard’s]
       hands were “very shaky,” and were “wet and clammy.” Trooper
       Sparenga then proceeded back toward his patrol car to process
       the documentation.
____________________________________________


2
  Howard did not challenge the propriety of the traffic stop. The Trooper
claimed Howard changed lanes in an unsafe manner, forcing another car to
brake suddenly.
3
  Trooper Sparenga testified he had trouble hearing Howard over the traffic
noise of I-95. Specifically, “I could hardly hear, being out on I-95. I had to
tell him several times to speak up, like you asked me to speak up today.”
N.T. Suppression Hearing, 6/18/2015 at 25.



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       Upon returning to his patrol vehicle, Trooper Sparenga
       performed an NCIC search revealing [Howard’s] criminal history
       as a convicted felon.[4] During the time that Trooper Sparenga
       was processing [Howard’s] documents, he made a radio request
       for police backup for officer safety purposes.[5]

       After Trooper Sparenga processed the documentation, he exited
       his patrol vehicle, approached the passenger window of
       [Howard’s] vehicle, and requested that [Howard], who was still
       seated in the driver’s seat, to step around [to] the back of the
       vehicle. [Howard] complied with Trooper Sparenga’s request
       and Trooper Sparenga and [Howard] met at the rear of the silver
       Volkswagen, in front of the patrol vehicle. Trooper Sparenga
       returned identification documents to [Howard] as he explained
       and showed [Howard] the written warning.               [Howard]
       simultaneously reached out to shake Trooper Sparenga’s hand.
       Trooper Sparenga noticed that, again, [Howard’s] hands were
       shaking, wet and clammy. Trooper Sparenga mentioned to
       [Howard] that he seemed nervous and asked if there was
       anything else going on that he needed to know about.

Trial Court Opinion, 9/26/2016, at 2-3.6

       Based on the above evidence, the trial court determined that because

Trooper Sparenga, after returning the documents to Howard and explaining

the warning to him, never told Howard he was free to leave and continued
____________________________________________


4
  Specifically, “The NCIC related that [Howard is] a prior felon for
shoplifting.” N.T. Suppression Hearing, 9/18/2015, at 13.
5
  Trooper Sparenga requested backup because he had already determined
he was going to ask Howard for consent to search his vehicle. See N.T.
Suppression Hearing, 6/18/2015, at 32.
6
  The trial court provided additional findings of fact, found on pages 4-5 of
the trial court opinion. However, those facts were developed after the traffic
stop had transitioned into the investigative detention. Therefore, those facts
are immaterial to our analysis, which is to determine whether the
investigative detention was supported by reasonable suspicion.



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contact with Howard in a seamless manner, Howard, at that time, was

subject to an investigatory detention.     See Trial Court Opinion at 7.   The

trial court further found that the investigatory detention was supported by a

reasonable suspicion that criminal activity was afoot. This finding, in turn,

allowed the Trooper to seek permission to search Howard’s car. Accordingly,

the trial court found no cause to suppress the physical evidence obtained as

a result of that search.

      Initially, we relate our scope and standard of review.

          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.

          [W]e may consider only the evidence of the prosecution
          and so much of the evidence for the defense as remains
          uncontradicted when read in the context of the record
          as a whole. Where the record supports the findings of
          the suppression court, we are bound by those facts and
          may reverse only if the court erred in reaching its legal
          conclusions based upon the facts.

         Commonwealth v. Williams, 2008 PA Super 6, 941 A.2d
         14, 26-27 (Pa. Super. 2008) (en banc) (citations,
         quotations, and quotation marks omitted). Moreover, it is
         within the lower court's province to pass on the credibility
         of witnesses and determine the weight to be given to their
         testimony. See Commonwealth v. Clemens, 2013 PA
         Super 85, 66 A.3d 373, 378 (Pa. Super. 2013).

      Commonwealth v. Roberts, 133 A.3d 759, 771 (Pa. Super.
      2016), appeal denied, 145 A.3d 725 (Pa. 2016). Furthermore,
      our Supreme Court in In the Interest of L.J., 622 Pa. 126, 79
      A.3d 1073, 1085 (2013), clarified that the scope of review of
      orders granting or denying motions to suppress is limited to the
      evidence presented at the suppression hearing.

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Commonwealth v. McCoy, 154 A.3d 813, 815-16 (Pa. Super. 2017).

       Here, Howard claims that the investigative       detention was not

supported by any reasonable suspicion of criminal activity.       Therefore,

Howard argues, his consent to search his vehicle was invalid and the

evidence obtained therefrom must be suppressed.

       As noted above, the trial court determined that Howard was subject to

an investigatory detention once Trooper Sparenga returned Howard’s

paperwork to him, gave him the warning and finished explaining the warning

to him. Specifically, the trial court stated:

       This court finds that the Trooper never expressly informed
       [Howard] that he was free to leave the scene, [Howard] was still
       standing outside his vehicle, and Trooper continued contact with
       [Howard] in a seamless interdiction. [Howard] was subjected to
       an investigatory detention.

Trial Court Opinion, 9/26/2016, at 7.

       We agree with the trial court’s finding in this regard.            See

Commonwealth v. Kemp, 961 A.2d 1247, 1253-54 (Pa. Super. 2008)

(describing transition from traffic stop to investigative detention). 7 The

salient question now becomes whether Trooper Sparenga possessed a

reasonable suspicion of criminal activity to support that investigative

detention.

____________________________________________


7
  The fact that Howard was subjected to an investigatory detention is not
instantly at issue. Accordingly, we need not delve into an analysis of that
legal issue.



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     Reasonable suspicion has been defined as follows:

        [T]he officer must articulate specific observations which, in
        conjunction with reasonable inferences derived from these
        observations, led him reasonably to conclude, in light of
        his experience, that criminal activity was afoot ... In order
        to determine whether the police officer had reasonable
        suspicion, the totality of the circumstances must be
        considered. In making this determination, we must give
        due weight ... to the specific reasonable inferences [the
        police officer] is entitled to draw from the facts in light of
        his experience. Also, the totality of the circumstances test
        does not limit our inquiry to an examination of only those
        facts that clearly indicate criminal conduct. Rather, even a
        combination of innocent facts, when taken together, may
        warrant further investigation by the police officer.

     Commonwealth v. Smith, 917 A.2d 848, 852 (Pa. Super.
     2007) (citations omitted). The officer “may ask the detainee a
     moderate number of questions” during a traffic stop “to
     determine his identity and to try to obtain information confirming
     or dispelling the officer's suspicions.” Berkemer v. McCarty,
     468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). “[I]f
     there is a legitimate stop for a traffic violation ... additional
     suspicion may arise before the initial stop's purpose has been
     fulfilled; then, detention may be permissible to investigate the
     new suspicions.” Commonwealth v. Chase, 599 Pa. 80, 960
     A.2d 108, 115, n.5 (2008). Even innocent factors, viewed
     together, may create reasonable suspicion that criminal activity
     is afoot. See Commonwealth v. Caban, 60 A.3d 120, 129-30
     (Pa. Super. 2012) (following valid traffic stop for speeding,
     officer had reasonable suspicion of criminal activity to justify
     continued detention of driver and passenger; driver acted
     nervously, car was owned by third party not present in vehicle,
     answers provided by driver and passenger to basic questions
     regarding their destination were inconsistent, and various
     masking agents, including air fresheners, canisters of perfume,
     and bottle of odor eliminator, were present in vehicle).

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

     Additionally,



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      Thus, we find no basis to conclude that excessive nervousness
      and furtive movements, even considered together, give rise to
      reasonable suspicion of criminal activity. A police officer's
      observation of a citizen's nervous demeanor and furtive
      movements, without more, establishes nothing more than a
      “hunch,” employing speculation about the citizen's motive in the
      place of fact. Were we to validate such a practice, we would
      open every occupant of a motor vehicle in this Commonwealth to
      law enforcement officers' wholly subjective interpretation of
      inoffensive conduct, and undermine our Supreme Court's time-
      honored insistence that police officers may stop our citizens only
      on the basis of objective criteria. See Sierra, 723 A.2d at 647;
      DeWitt, 608 A.2d at 1034. This we cannot do. This we will not
      do.

Commonwealth v. Reppert, 814 A.2d 1196, 1206 (Pa. Super. 2002).

      With these standards in mind, we examine the trial court’s stated

reasoning to determine if it is supported by the facts of record and comports

with legal precedent. The trial court stated:

      Trooper Sparenga testified to reasonable suspicion beyond the
      original reasonable suspicion, which led to the traffic stop. The
      Trooper provided the Court with unrebutted, credible testimony.
      The facts adduced by Trooper Sparenga during the valid traffic
      stop provided him with sufficient reasonable suspicion that
      criminal activity was afoot, justifying the continuing investigatory
      detention. The facts included:

      Initially, Trooper Sparenga noted that [Howard] appeared
      extremely nervous, spoke in a low voice, was slow to answer
      questions, and that [Howard’s] hands were physically shaking
      and were wet and clammy when he handed over his documents
      to Trooper Sparenga and shook his hand. Trooper Sparenga
      discovered through NCIC search that [Howard’s] status as a
      convicted felon [sic]. Howard’s hands were still shaking and
      clammy during the second handshake.       [Howard] provided
      Trooper Sparenga with a myriad of unsolicited information
      entirely unrelated to their conversation.

Trial Court Opinion, 9/26/2016, at 8-9.



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       Our review of the certified record shows that the “unsolicited

information” was not relayed until after the inception of the investigatory

detention. Accordingly, that factor cannot be used to support the detention

in the first place.8 See Commonwealth v. Chase, 960 A.2d 108, 115 n.5

(Pa. 2008) (“additional suspicion may arise before the initial stop's purpose

has been fulfilled; then, detention may be permissible to investigate the new

suspicions.”) (emphasis added). Therefore, the information of record that

Trooper Sparenga possessed prior to the investigatory detention is that

Howard displayed nervous behavior and had previously been convicted of a

charge of felony shoplifting.

       The law is clear that merely exhibiting nervous behavior cannot

support reasonable suspicion to support an investigatory detention.    While

nervous behavior can be considered, there must be more.        Instantly, the

only “more” is a conviction for shoplifting.

       Trooper Sparenga never testified as to what specific criminal activity

he suspected was afoot. However, neither he, the Commonwealth, nor the

trial court provide any logical or legal connection between prior shoplifting
____________________________________________


8
  Further, we have viewed the video submitted as evidence. It does not
support the trial court’s statement that Howard “provided Trooper Sparenga
with a myriad of unsolicited information entirely unrelated to their
conversation.” See Trial Court Opinion at 9. Trooper Sparenga asked
Howard why he was nervous and Howard related how a prior arrest had
been resolved, yet remained open causing him problems with law
enforcement. Howard was worried that such was the case instantly. This
response was directly relevant to Trooper Sparenga’s inquiry.



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conviction and a reasonable suspicion of criminal activity at a traffic stop on

an interstate highway.          Without that connection, we are unwilling to

presume that any prior conviction automatically provides authorities with

grounds to detain a citizen.9              In its brief, the Commonwealth has

acknowledged that nervous behavior, furtive movement (not present

instantly)10 and a prior drug conviction, does not support reasonable

suspicion for an investigatory detention.11 If the presence of those factors

cannot support an investigatory detention, then we cannot see how nervous

behavior, a shoplifting conviction and no furtive movements can support an

investigatory detention.

        Because the investigative detention of Howard was unsupported by a

reasonable suspicion that criminal activity was afoot, all evidence obtained

as a result of that improper detention must be suppressed. Accordingly, the

____________________________________________


9
   Clearly, prior convictions can be relevant to determining reasonable
suspicion. For example, in Commonwealth v. Rogers, 849 A.2d 1185 (Pa.
2004), cited by the Commonwealth, the defendant was nervous, had
shaking hands, provided incomplete, inconsistent and false information
regarding his car, had a prior drug conviction and had items in the car
typically used to mask the smell of marijuana. In Rogers, the drug
conviction was especially relevant in light of other information that generally
suggested criminal activity and specifically suggested drug trafficking. None
of those additional factors are present instantly.
10
   Trooper Sparenga testified that Howard displayed no suspicious activity in
his car while the trooper was conducting the background check. See N.T.
Suppression Hearing, 6/18/2105, at 30.
11
     Commonwealth v. Moyer, 954 A.2d 659 (Pa. Super. 2008).



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trial court’s order denying Howard’s motion to suppress evidence must be

reversed, and Howard’s judgment of sentence must be vacated.

     Order reversed; judgment of sentence vacated; this matter is

remanded   to   the   trial   court   for   further   proceedings.   Jurisdiction

relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2017




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