J-S27029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    MARKIDA THOMAS                             :   No. 1192 EDA 2016

                     Appeal from the Order March 16, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012195-2014


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

MEMORANDUM BY OTT, J.:                                     FILED JULY 11, 2017

        The Commonwealth appeals from the order entered March 16, 2016,

in the Philadelphia County Court of Common Pleas, granting appellee

Markida Thomas’s motion to suppress a firearm recovered during an illegal

search.1    On appeal, the Commonwealth contends the trial court erred in

concluding the search was illegal because the officer had reasonable

suspicion to suspect Thomas’s purse might contain an illegal firearm when,

minutes earlier, an off-duty officer observed the weapon in Thomas’s

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   Pursuant to Pennsylvania Rule of Appellate Procedure 311(d), the
Commonwealth properly certified in its notice of appeal that the order
“terminates or substantially handicaps the prosecution.” Notice of Appeal,
4/14/2016. See Pa.R.A.P. 311(d).
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companion’s waistband, and a subsequent pat-down of the companion

revealed no weapon. Based on the following we affirm.

      The facts underlying Thomas’s arrest are aptly summarized by the trial

court as follows:

             On October 10, 2014, Police Officer Rainford Thomas
      #3268 was in his unmarked personal vehicle on the 1200 block
      of North 52nd Street in Philadelphia. Officer Thomas was off-duty
      at the time, stopping to pick up food from a neighborhood
      eatery. While parking, Officer Thomas got into a verbal dispute
      with another individual attempting to park his car. The unknown
      driver exited his vehicle and began to yell in Officer Thomas’s
      direction while gesturing with his hands. During this encounter,
      Officer Thomas observed a black semiautomatic weapon in the
      man’s waistband. The unknown male did not, however, indicate
      toward the weapon in any way. He did not make any verbal
      threats and no physical altercation ensued. After the brief
      interaction, the man got back into his vehicle, drove northbound,
      and made a U-turn. At that point, Officer Thomas went into the
      store and called the police. Subsequent to calling the police,
      Officer Thomas observed that male exit the vehicle along with
      another female, later identified as [] Thomas. It wasn’t until
      that moment that Officer Thomas realized there was another
      individual in the car with the male. The car had tinted windows,
      which obscured Officer Thomas’s ability to see inside the vehicle.
      He had not provided a description of [] Thomas to the back-up
      officers. Upon exiting the car, Officer Thomas observed the two
      individuals walk into Tasties Restaurant. Officers arrived less
      than 5 minutes later.

            Officer Michelle Barker #2872 testified that she received a
      flash description for a black male in a gold Crown Vic who was
      armed with a silver and black handgun. At the direction of
      Officer Thomas, Officer Barker entered Tasties Restaurant and
      searched the male. Officer Thomas then explained that there
      was a female with the male suspect, and described her as having
      braided hair or possibly dreadlocks.      Officer Barker initially
      approached the wrong female but was then directed to approach
      [] Thomas. Officer Barker asked [] Thomas to step outside of
      the restaurant and explained that “she was said to have been
      with the male with the gun.” [] Thomas gripped her purse and

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        Officer Barker told her she needed to take it from [Thomas].
        The Officer took her purse an escorted [] Thomas outside. The
        bag was then placed in the back seat of the patrol car. Officer
        Barker frisked [] Thomas’s person and recovered nothing. She
        then explained to [] Thomas that they would need to search her
        purse. Officer Barker went through the purse and recovered a
        firearm.

Trial Court Opinion, 10/4/2016, at 1-2 (record citations omitted).

        Thomas was subsequently arrested and charged with firearms not to

be carried without a license, and carrying firearms on a public street in

Philadelphia.2    On March 10, 2015, Thomas filed a motion to suppress the

firearm. The trial court conducted a suppression hearing on March 16, 2016,

at the conclusion of which it entered an order granting Thomas’s motion to

suppress. This timely Commonwealth appeal follows.3

        The Commonwealth’s sole issue on appeal challenges the trial court’s

suppression of the firearm recovered from Thomas’s purse. Specifically, the

Commonwealth contends Officer Barker had reasonable suspicion that

Thomas might be armed in order to justify an investigatory detention, and

conduct a “momentary inspection” of Thomas’s purse.         Commonwealth’s

Brief at 12. The Commonwealth emphasizes that the officer spoke directly

to an “off-duty colleague who had personally observed Andre Bivens

[Thomas’s companion] bearing a semi-automatic weapon on 52nd Street just
____________________________________________


2
    See 18 Pa.C.S. §§ 6106 and 6108, respectively.
3
  The Commonwealth filed a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b) the same day as its notice of appeal.




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before she arrived on the scene.”     Id. at 10-11.   When a frisk of Bivens

revealed no weapon, the Commonwealth insists “[a]n obvious inference was

that Bivens had passed it to [Thomas], who was with him immediately

before and after the armed confrontation with the off-duty officer, and who

had a bag in which the weapon could be conveniently deposited.”         Id. at

11. The Commonwealth further maintains the “likelihood that the gun was

in the bag appeared greater still” when a patdown of Thomas revealed no

weapon. Id. It argues: “The key points were that Bivens had been seen

with the gun, that there was probable cause to arrest him, and that, as the

weapon was not on his or [Thomas’s] person, it was likely in [Thomas’s]

handbag.”   Id. at 14.   Additionally, the Commonwealth contends the case

law the trial court relied upon is distinguishable. See id. at 15-16.

      Our review of the Commonwealth’s appeal from a pretrial order

suppressing evidence is well-established:

      When the Commonwealth appeals from a suppression order, we
      follow a clearly defined standard of review and consider only the
      evidence from the defendant’s witnesses together with the
      evidence of the prosecution that, when read in the context of the
      entire record, remains uncontradicted. The suppression court’s
      findings of fact bind an appellate court if the record supports
      those findings. The suppression court’s conclusions of law,
      however, are not binding on an appellate court, whose duty is to
      determine if the suppression court properly applied the law to
      the facts.

Commonwealth v. Vetter, 149 A.3d 71, 75 (Pa. Super. 2016) (quotation

omitted).




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      It is well-settled that “[t]he Fourth Amendment to the United States

Constitution and Article I, Section 8 of the Pennsylvania Constitution protect

citizens from unreasonable searches and seizures[,]” so that, generally, the

police must secure a warrant supported by probable cause before conducting

a search.   Commonwealth v. Shiflet, 670 A.2d 128, 129 (Pa. 1995)

(footnote omitted). However,

      [i]n Terry v. Ohio, [392 U.S. 1 (1968)], the United States
      Supreme Court created an exception to the Fourth Amendment
      requirement that police have probable cause before conducting a
      search of a citizen. The Terry exception permits a police officer
      to briefly detain a citizen for investigatory purposes if the officer
      “observes unusual conduct which leads him to reasonably
      conclude, in light of his experience, that criminal activity may be
      afoot.”

             In order for a stop and frisk to be reasonable, the police
      conduct must meet two separate and distinct standards.
      Specifically, the police officer must have a “reasonable,
      articulable suspicion” that criminal activity may be afoot and that
      the suspect may be armed and dangerous.

In re N.L., 739 A.2d 564, 566–567 (Pa. Super. 1999) (internal citations

omitted), appeal denied, 753 A.2d 819 (Pa. 2000). Moreover,

      Pennsylvania has also embraced a rule which permits a police
      officer, during an arrest, to (1) briefly detain and direct the
      movement of an “arrestee’s companion” regardless of whether a
      reasonable suspicion exists that the companion is involved in
      criminal activity; and (2) conduct a pat-down search of the
      companion if the officer has a reasonable and articulable
      suspicion that the arrestee’s companion is armed and
      dangerous.

Commonwealth v. Mathis, 125 A.3d 780, 789 (Pa. Super. 2015) (citation

omitted and emphasis supplied), appeal granted, 134 A.3d 51 (Pa. 2016).



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          Upon our review of the record, the parties’ briefs, and the relevant

case law, we conclude the trial court thoroughly addressed and properly

disposed of the Commonwealth’s issue on appeal. See Trial Court Opinion,

10/4/2016, 4-11 at (finding (1) an officer is permitted to frisk the

companion of an arrestee when the officer has “independent reasonable

belief that the companion was armed and dangerous as determined by the

totality of the circumstances[;]”4 (2) here, officers had no reason to believe

Thomas was armed and dangerous, or engaged in criminal activity; (3)

officers did not observe Thomas exhibit “any suspicious behavior or furtive

movements[;]”5 (4) Thomas’s “mere proximity to an individual suspected of

carrying an unlicensed firearm was insufficient to justify a protective

search[;]”6 (5) the search was not incident to arrest as neither Thomas nor

Bivens was under arrest at the time; and (6) even if the officers were

justified in conducting a Terry frisk of Thomas, “the subsequent search of

her bag went far beyond what is permissible during a Terry search.”).7

Accordingly, we rest on the court’s well-reasoned basis.
____________________________________________


4
    Id. at 4.
5
    Id. at 7.
6
    Id.
7
  Trial Court Opinion, 10/4/2016, at 9. We emphasize Officer Barker offered
no testimony justifying the search of Thomas’s purse. See N.T., 3/16/2016,
at 22-27. Indeed, the officer testified that when she told Thomas they
needed to step outside of the restaurant, Thomas simply “went to grab for
(Footnote Continued Next Page)


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      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2017




                       _______________________
(Footnote Continued)

her purse.” Id. at 24. However, Officer Barker “grabbed it due to the fact
that it was a person with a gun” and placed it on the backseat of her patrol
car. Id. at 24, 26. After the pat-down of Thomas revealed no weapon, the
officer told her, “We have to check your pocketbook.” Id. at 24. Officer
Barker did not state Thomas made any furtive movements or attempted to
secrete the purse. Compare Mathis, supra, 125 A.3d at 791 (parole
agent’s search of defendant’s jacket was proper; defendant was at parolee’s
home during routine check, appeared nervous, and picked up his jacket
gently and held it “against his side like a football” as he moved into another
room, when agent noticed a bulge in the jacket).




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0023_Opinion
               Circulated 06/19/2017 10:51 AM
