J.A21008/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                :     IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                          Appellee           :
                                             :
                    v.                       :
                                             :
CAMATA MCNEIL,                               :
                                             :
                          Appellant          :     No. 2826 EDA 2014

                   Appeal from the Order September 23, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: MC-51-CR-0000695-2014

BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED AUGUST 28, 2015

        Appellant, Camata McNeil, appeals from the Philadelphia County Court

of Common Pleas’ order denying his petition for writ of certiorari from his

conviction in the Philadelphia Municipal Court. He argues he was entitled to

the suppression of evidence because the arresting officer did not have the

requisite reasonable suspicion or probable cause to remove him from his car,

question him, or conduct a search. We affirm.

        We restate the facts as summarized by the Court of Common Pleas:

              On January 8, 2014 at approximately 11:50 a.m.,
           Officer Cziepel and his partner, Officer Cahill, were on
           patrol in the area of 35 East Chelten Avenue in a marked
           police vehicle.    Officer Cziepel described this area of
           Philadelphia as “high drugs, high any type of illegal activity

*
    Former Justice specially assigned to the Superior Court.
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          that you can think of,” and has made well over 2,300
          arrests in that general area since 2001. The officers saw
          Appellant driving his vehicle with a broken center brake
          light.   They stopped the vehicle and Officer Cziepel
          approached Appellant’s window to request his license and
          registration. While Appellant’s initial reaction of reaching
          towards his pocket seemed to be responsive to the officer’s
          request, it was unrebutted that he quickly began behaving
          in an aggressive, nervous, and furtive manner. He began
          “making movements in and out of all of his pockets, a little
          more than normal into his inner right jacket pocket.”
          Notably, he was nervously fumbling around in his pockets
          for more than thirty seconds—long enough for the officers
          to believe that he was reaching for something other than
          his license and registration. In fact, the way in which he
          was behaving led the officer to suspect that he was
          reaching for something larger than the requested vehicle
          cards.

             Fearing that Appellant was armed, the officers told him
          that he was going to be frisked and removed him from the
          vehicle. Appellant then told the officers that he had two
          bags of marijuana on his person, which the officers
          subsequently recovered from his left jacket pocket.
          Appellant was placed under arrest and a search incident to
          arrest revealed [he was carrying] another bag of
          marijuana along with sixteen bags of cocaine.

Trial Ct. Op., 12/22/14, 1-2 (record citations omitted).

        Appellant was charged with possession of controlled substances. 1 On

April 16, 2014, the Municipal Court denied Appellant’s motion to suppress

after a hearing.    On June 25, 2014, the Municipal Court found Appellant

guilty and sentenced him to eighteen months’ reporting probation. On July

24, Appellant timely filed a writ of certiorari in the Court of Common Pleas,

which denied relief on September 23, 2014. Appellant timely filed his notice

1
    35 P.S. § 780-113(a)(16).



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of appeal and complied with the trial court’s order to submit a Pa.R.A.P.

1925(b) statement.

      Appellant presents the following issue for review:

         Did not [A]ppellant’s attempted compliance with police
         directives to display license, ownership and insurance
         papers by reaching for them on his person during a traffic
         stop provide neither reasonable suspicion nor probable
         cause to support the subsequent search in violation of the
         Fourth and Fourteenth Amendments to the United States
         Constitution and Article I, Section 8 of the Pennsylvania
         Constitution and therefore should not the drugs
         subsequently seized by police have been suppressed and
         the petition for Writ of Certiorari granted?

Appellant's Brief at 3.

      Appellant argues that “the mere act of placing his hand in his pocket to

produce the documents requested by the officer during a traffic stop was not

sufficient to establish reasonable suspicion that [he] was armed and

dangerous to remove him from the car and frisk his person for weapons.”

Id. at 7. Additionally, the Commonwealth did not “provide any information

about the area of the traffic stop, save for his assertion that it was a high

crime area.” Id. at 12. Further, “the fact that the stop was midday . . .

combined with a lack of testimony of any furtive movements, all coalesce to

show there was no reasonable suspicion to frisk [him].”               Id. at 13.

Appellant   thus   claims   that   the   trial   court   erred   in   relying   on

Commonwealth v. Scarborough, 89 A.3d 679 (Pa. Super.), appeal

denied, 102 A.3d 679 (Pa. 2014), and he was entitled to suppression based




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on Commonwealth v. Cartagena, 63 A.3d 294 (Pa. Super.) (en banc),

appeal denied, 70 A.3d 808 (Pa. 2013). No relief is due.

     Our review is governed by the following standards:

        [An appellate court’s] standard of review in addressing a
        challenge to the denial of a suppression motion is limited
        to determining whether the suppression court’s factual
        findings are supported by the record and whether the legal
        conclusions drawn from those facts are correct. Because
        the Commonwealth prevailed before the suppression court,
        we may consider only the evidence of the Commonwealth
        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 suppression court’s factual findings are
        supported by the record, [the appellate court is] bound by
        [those] findings and may reverse only if the court’s legal
        conclusions are erroneous. Where . . . the appeal of the
        determination of the suppression court turns on allegations
        of legal error, the suppression court’s legal conclusions are
        not binding on an appellate court, whose duty it is to
        determine if the suppression court properly applied the law
        to the facts. Thus, the conclusions of law of the courts
        below are subject to [ ] plenary review.

Commonwealth v. Garibay, 106 A.3d 136, 138-39 (Pa. Super. 2014) (en

banc) (alterations in original and citations omitted).     The Commonwealth

bears the initial burden of demonstrating the discovery of evidence did not

violate a defendant’s constitutional rights.      See Pa.R.Crim.P. 581(H).

However, the defendant, in an appeal from an adverse ruling, bears the

burden of demonstrating reversible error. Commonwealth v. Wrecks, 931

A.2d 717, 722 (Pa. Super. 2007).

     Preliminarily, we note an officer may lawfully conduct a traffic stop “for

the purpose of checking the vehicle’s registration, proof of financial



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responsibility . . . or the driver’s license” whenever he “has reasonable

suspicion that a violation of [the Motion Vehicle Code] has occurred[.]” 75

Pa.C.S. § 6308(b). Moreover, “following a lawful traffic stop, an officer may

order both the driver and passengers of a vehicle to exit the vehicle until the

traffic stop is completed, even absent a reasonable suspicion that criminal

activity is afoot.” Commonwealth v. Pratt, 930 A.2d 561, 564 (Pa. Super.

2007). With respect to a request to frisk an individual, this Court recognizes

that “[t]o conduct a pat down for weapons, a limited search or ‘frisk’ of the

suspect, the officer must reasonably believe that his safety or the safety of

others is threatened.”   Commonwealth v. Simmons, 17 A.3d 399, 403

(Pa. Super. 2011) (citations omitted).

       Instantly, as in the Court of Common Pleas, Appellant concedes the

initial traffic stop was lawful, but argues the arresting officer lacked

reasonable suspicion to frisk him by framing the record in a light most

favorable to himself. See Appellant’s Brief at 6. However, he ignores the

Commonwealth’s evidence that the officer told Appellant he “going to be

frisked and brought out of the vehicle and he said he had two bags of weed.”

N.T. Suppression, 4/16/14, at 6. Thus, Appellant seeks relief on a basis that

disregards our standard and scope of review.2     See Garibay, 106 A.3d at

138.


2
  We note, however, Appellant testified at the suppression hearing that he
did not make this statement and claimed the officer began to frisk him while



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     In light of the foregoing, we have no basis to grant Appellant relief.

Even if we were to agree there the officer lacked a reasonable basis to

believe Appellant was armed and dangerous, we could only conclude it was

unreasonable for the officer to issue a verbal order to submit to a frisk

during an otherwise lawful traffic stop. Appellant provides no further legal

argument that his statement was tainted by the verbal order or the

contraband seized by the officer was fruit of a poisonous tree.         See

generally Commonwealth v. Santiago, 980 A.2d 659, 665 (Pa. Super.

2009) (discussing admissibility of derivative physical evidence despite

suppression of defendant’s statements). Because we cannot disregard the

Commonwealth’s evidence that Appellant admitted possessing marijuana

before a physical search took place, we conclude Appellant has not carried

his appellate burden of demonstrating reversible error by the trial court.

See Wrecks, 931 A.2d at 722. Thus, we affirm.

     Order affirmed. Judgment of sentence affirmed.

     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/28/2015


he was seated in the vehicle. Nevertheless, we cannot consider Appellant’s
testimony as it was contradicted by the Commonwealth’s evidence. See
Garibay, 106 A.3d at 138-39.



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