J-A08031-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellee              :
                                        :
                     v.                 :
                                        :
VICTOR ROJAS,                           :
                                        :
                  Appellant             :   No. 2644 EDA 2017

              Appeal from the Judgment of Sentence July 19, 2017
              in the Court of Common Pleas of Montgomery County
               Criminal Division at No(s): CP-46-CR-0005781-2016

BEFORE:       PANELLA, LAZARUS, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                    FILED MARCH 04, 2019

      Victor Rojas (Appellant) appeals from the judgment of sentence

imposed following his conviction for possession of drug paraphernalia.

Specifically, he challenges the trial court’s order denying his motion to

suppress the paraphernalia discovered during a frisk of his person incident to

a traffic stop.     We vacate the judgment of sentence, reverse the order

denying the motion to suppress, and remand for further proceedings

consistent with this memorandum.

      The trial court summarized the relevant factual history of this matter

as follows.

      On June 25, 2016, around 12:45 [a.m.], Sergeant Brian
      Rathgeb, police officer of [25 years] and sergeant with the
      Pottstown Police Department since 2009, was in full police
      uniform and patrolling in his squad vehicle the area near the
      intersection of King and York Streets in Pottstown borough. This
      specific area of Pottstown borough is a high-crime area, e.g.,
      prostitution, drug sales, shootings.


* Retired Senior Judge assigned to the Superior Court.
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            As the sergeant was approaching the intersection of King
     and York Streets, he happened upon Appellant’s vehicle, a red
     Kia, which was illegally parked ‘right up against the stop sign’ at
     the intersection, with the parking lights on and still in the lane of
     traffic. Notably, there was no one else on the street at this time.
     As the sergeant passed Appellant’s Kia, the squad vehicle’s
     headlights lit up the interior of Appellant’s vehicle, and it
     appeared to the sergeant that Appellant had his head down and
     was possibly unconscious.        Given these observations, the
     sergeant suspected a potential emergency situation, i.e., an[]
     overdose, particularly give[n] the rampant ‘opioid abuse and
     people that are overdosing in that general area, as well as
     throughout Pottstown.’      So, the sergeant made a U-turn,
     activated his emergency lights, called in the information for the
     stop, and then after parking his squad car, approached
     Appellant’s vehicle.

           The sergeant asked Appellant through his window whether
     he was having a medical emergency, to which Appellant, whilst
     apparently manipulating his cell phone, responded he was fine
     and that he was waiting to pick up and take a friend to Walmart
     to get groceries. At this time, Appellant did not appear to be
     impaired to the sergeant but was ‘slightly nervous.’        The
     sergeant asked Appellant the name of his alleged friend he was
     picking up[.]    Appellant indicated he was unaware of the
     person’s real name, and instead gave multiple nicknames. The
     sergeant then asked for the alleged friend’s address, to which
     Appellant did not give a numerical address, but instead
     [generally pointed to] a building located on the corner of the
     intersection. The entire encounter at this point was several
     minutes, and at no time did anyone come out of the alleged
     friend’s house and jump into Appellant’s vehicle to be taken to
     Walmart to get groceries as Appellant claimed.

           The sergeant checked the registration of the vehicle
     Appellant was driving and discovered it was registered to
     another person with a Pittsburgh, Pennsylvania address, which
     was significant to the sergeant because, according to his
     testimony, there is an ‘influx of people from other larger cities
     coming to Pottstown for the purpose of getting involved in the
     drug trade.’ Based upon all the circumstances, the sergeant
     believed Appellant was stopped at this particular intersection to
     purchase narcotics. Furthermore, given the sergeant’s belief,
     and his extensive experience and particularized training with

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       drug investigations and violent crime, the sergeant was also
       concerned for the presence of potential weapons, which are
       often used as protection in the drug trade[,] or for needles [] or
       other ingestion paraphernalia that are involved in heroin
       overdoses common in the area. With that, the sergeant asked
       Appellant to exit the Kia and explained that he would pat
       Appellant down for both of their safety, to which Appellant
       complied without objection. As the sergeant conducted the [pat
       down] and made his way to Appellant’s right pockets, Appellant
       spontaneously admitted he had his ‘weed pipe’ and the sergeant
       also found and removed from Appellant’s person another item –
       a glass pipe with both ends charred and copper filtering on one
       end.[1]   After finding said drug paraphernalia, the sergeant
       handcuffed Appellant and placed him under arrest.

Trial Court Opinion, 1/3/2018, at 1-3 (emphasis in original; record citations

omitted).

       Appellant    was    arrested     and    charged   with   possession   of   drug

paraphernalia. Prior to trial, Appellant filed a motion to suppress evidence,

contending that the frisk of Appellant’s person was unconstitutional.

Sergeant Rathgeb and Appellant testified at the suppression hearing. At the
____________________________________________


1 Our review of the record reveals that the trial court’s factual findings are
supported by the testimony at the suppression hearing, except its finding
that Sergeant Rathgeb recovered two items on Appellant’s person. At the
suppression hearing, Sergeant Rathgeb testified that when he put his hand
on Appellant’s right pockets, Appellant “indicated that was his weed pipe.”
N.T., 2/14/2017, at 14. Appellant was wearing shorts underneath his pants;
the testimony is not clear whether the weed pipe was located in Appellant’s
inner or outer layer. See id. at 14-15; 24-26. During his description of his
pat down of Appellant, Sergeant Rathgeb stated that he “removed … a glass
pipe with charred ends on both sides …and copper filtering on the one end.”
Id. at 14. In response to the district attorney’s next question, Sergeant
Rathgeb reiterated his response, stating, “Like I said, once I had my hand on
that particular item, [Appellant] offered it and said that was his weed pipe.
And then I retrieved it.” Id. at 15. Thus, it is apparent that Sergeant
Rathgeb retrieved only one item.



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conclusion of the suppression hearing, the trial court denied Appellant’s

motion to suppress with minimal elaboration as to its reasons.2          On the

same day as the suppression hearing, February 14, 2017, the trial court

conducted a stipulated bench trial, and found Appellant guilty of possession

of drug paraphernalia. On July 19, 2017, the trial court sentenced Appellant

to one year of probation. This timely-filed appeal followed. Both Appellant

and the trial court complied with the mandates of Pa.R.A.P. 1925.

       Appellant presents one issue for this Court’s consideration: “Did the

[trial] court erroneously deny Appellant’s motion to suppress physical




____________________________________________


2 At the conclusion of the suppression hearing, the only explanation offered
by the trial court was Sergeant Rathgeb’s testimony that drug activity often
occurs in the area in which he stopped and frisked Appellant.               N.T.,
2/14/2017, at 40, 42-43. This is insufficient to comply with Pa.R.Crim.P.
581(I).    A trial court has a duty to explain its factual findings and
conclusions of law on the record at the conclusion of a suppression hearing.
Pa.R.Crim.P. 581(I) (“At the conclusion of the hearing, the judge shall enter
on the record a statement of findings of fact and conclusions of law as to
whether the evidence was obtained in violation of the defendant’s rights, or
in violation of these rules or any statute….”). Although in this case the trial
court’s failure to abide by Rule 581 has not impeded our appellate review
due to the trial court’s subsequent explanation of its rationale in its Pa.R.A.P.
1925(a) opinion, both our Supreme Court and this Court have strongly
disapproved of trial court’s failure to abide by Rule 581’s “unambiguous
mandate.” See Commonwealth v. Millner, 888 A.2d 680, 688 (Pa. 2005)
(explaining the purpose of the rule); Commonwealth v. Grundza, 819
A.2d 66, 68 n.1 (Pa. Super. 2003) (“We note that the filing of a 1925(a)
opinion is no substitute for the failure to make findings of fact and
conclusions of law on the record at the conclusion of a suppression hearing
in accordance with Pa.R.Crim.P. 581(I).”).



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evidence where the arresting officer conducted a Terry[3] frisk without

reasonable suspicion to believe that crime was afoot and that Appellant was

armed and dangerous?”           Appellant’s Brief at 4.   We consider this issue

mindful of the following.

        Our 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, we are bound by these 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 court[]
        below are subject to our plenary review.

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).

        Appellant focuses his challenge on the frisk portion of the encounter.

In his brief, Appellant argues that even if Sergeant Rathgeb had justification

for his initial seizure of Appellant, his subsequent frisk of Appellant’s person

was unconstitutional because Sergeant Rathgeb lacked reasonable suspicion

that criminal activity was afoot and that Appellant was armed and

____________________________________________


3   Terry v. Ohio, 392 U.S. 1 (1968).



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dangerous.    Appellant’s Brief at 13-14.     Appellant contends neither his

presence in a high-crime area, nor his commission of a traffic violation

justified the frisk. Id. at 15-19. According to Appellant, he was coherent

and cooperative, and therefore his behavior could not have served as

reasonable suspicion.      Id. at 19-20.   Specifically, Appellant argues that

Sergeant Rathgeb had no justification to frisk him, because “there was no

furtive   movement,   no    undue   nervousness,   no   suspicious   bulge,   no

intoxication, no suspicious transaction, and no attempt to avoid contact with

the police.” Id. at 23.

      Article I, § 8 of the Pennsylvania Constitution and the Fourth

Amendment to the United States Constitution both protect people from

unreasonable searches and seizures. Commonwealth v. Lyles, 97 A.3d

298 (Pa. 2014). During the course of a valid investigatory stop, if an officer

observes unusual and suspicious conduct on the part of the individual, which

leads the officer to believe reasonably that the individual may be armed and

dangerous, the officer may conduct a pat down of the suspect’s outer

garments for weapons. Commonwealth v. E.M., 735 A.2d 654, 659 (Pa.

1999). “In order to establish reasonable suspicion, the police officer must

articulate specific facts from which he could reasonably infer that the

individual was armed and dangerous.”        Commonwealth v. Wilson, 927

A.2d 279, 284 (Pa. Super. 2007).




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       At    the    suppression      hearing,    Appellant   conceded   that    the

Commonwealth had “met its burden in terms of initial contact” based upon

the parking infraction and concern that Appellant was unconscious.             N.T.,

2/14/2017, at 32, 35. Having determined quickly that Appellant was not in

peril, Sergeant Rathgeb proceeded to address Appellant’s traffic violation.

Appellant acknowledges that Pennsylvania v. Mimms, 434 U.S. 106

(1977), permits a police officer to order the driver to exit the vehicle during

a lawful traffic stop, even absent reasonable suspicion that criminal activity

is afoot. See Appellant’s Brief at 17. However, Appellant argues that the

authority to conduct the traffic stop and order the driver out of the car does

not automatically give an officer the authority to conduct a Terry frisk.4

____________________________________________


4 Appellant also argues, alternatively, that the frisk was illegal because by
the time he was frisked, the traffic stop should have concluded already.
Appellant’s Brief at 23. According to Appellant, once he explained why he
was parked illegally, the officer should have issued him a parking ticket or
ordered him to move the car to a legal spot. Id.

  “Once the primary traffic stop has concluded … the officer’s authority to
order either driver or occupant from the car is extinguished.”
Commonwealth v. Reppert, 814 A.2d 1196, 1202 (Pa. Super. 2002) (en
banc). “Thus, if … the officer directs or requests the occupants to exit the
vehicle [after the traffic stop has concluded, the officer’s] show of authority
may constitute an investigatory detention subject to a renewed showing of
reasonable suspicion.” Id. “Authority for the seizure thus ends when tasks
tied to the traffic infraction are - or reasonably should have been -
completed.” Rodriguez v. United States, __ U.S. __, 135 S.Ct. 1609,
1614 (2015).

 Appellant has waived any challenge to the stop by not including such
challenge in his concise statement and question presented. See Pa.R.A.P.
(Footnote Continued Next Page)


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      Appellant is correct. “[T]o proceed from a stop to a frisk, the police

officer must reasonably suspect that the person stopped is armed and

dangerous.” Arizona v. Johnson, 555 U.S. 323, 326-27 (2009).             As our

Supreme Court has explained,

      [I]f the officer has a reasonable suspicion, based on specific and
      articulable facts, that the detained individual may be armed and
      dangerous, the officer may then conduct a frisk of the
      individual’s outer garments for weapons.           Since the sole
      justification for a Terry search is the protection of the officer or
      others nearby, such a protective search must be strictly limited
      to that which is necessary for the discovery of weapons which
      might be used to harm the officer or others nearby. Thus, the
      purpose of this limited search is not to discover evidence, but to
      allow the officer to pursue his investigation without fear of
      violence.

Commonwealth v. Stevenson, 744 A.2d 1261, 1264-65 (Pa. 2000)

(citations and quotation marks omitted).

      In its Rule 1925(a) opinion, the trial court explained that it found

Sergeant Rathgeb’s testimony to be credible, whereas it rejected Appellant’s

testimony because he could not recall whether the encounter occurred

during day or night and he failed to provide an adequate explanation as to

why he never called or texted the person he purportedly was picking up to

go grocery shopping at quarter-to-one in the morning. Trial Court Opinion,
(Footnote Continued) _______________________

1925(b)(4)(vii), 2116(a). Further, Appellant’s legal analysis in his brief
relates to the issue of whether Sergeant Rathgeb had independent
reasonable suspicion to justify the frisk, not to whether Sergeant Rathgeb
had prolonged the traffic stop unlawfully. Appellant’s Brief at 20-23. Thus,
Appellant has also waived this argument for failure to develop it in his brief.
See Pa.R.A.P. 2119.



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1/3/2018, at 8-9. The trial court relied upon the following “totality of the

circumstances”   to   conclude   that   Sergeant    Rathgeb    had   adequate

“reasonable suspicion of criminal activity” to request that Appellant step out

of his vehicle and undergo a Terry frisk: (1) Appellant’s illegally parking his

vehicle at almost 1:00 a.m. at an intersection known to police to be a high-

crime area related to drugs, prostitution, and violent crime; (2) the deserted

streets around Appellant’s vehicle; (3) Appellant’s appearing slumped over

and unconscious in his vehicle in an area known for overdoses; (4)

Appellant’s non-credible excuse for being parked illegally; (5) Appellant’s

appearing nervous and not knowing the full name of the friend he was

purportedly picking up; (6) Appellant’s never calling or texting the friend

during the stop and the friend’s failure to appear; (7) Appellant’s failure to

provide his friend’s exact address; (8) Appellant’s car being registered to

another person with a Pittsburgh address, when there is an influx of people

from larger cities coming to Pottstown to get involved with the drug trade;

and (9) Sergeant Rathgeb’s fear that Appellant was associated with the drug

trade and possessed a weapon or needles.        Id. at 9-10.    Based on the

foregoing, the trial court concluded that the “Commonwealth met its burden

of proving there was reasonable, individualized suspicion that Appellant was

pursuing a criminal exercise in the moment that ultimately supported the

sergeant’s actions, including the search of Appellant’s person revealing drug

paraphernalia.” Id. at 8.


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     However, even if the trial court is correct that Sergeant Rathgeb had

adequate reasonable suspicion to conclude that Appellant was engaged in

criminal activity, such reasonable suspicion is not enough to justify frisking

Appellant. Commonwealth v. Preacher, 827 A.2d 1235, 1239 (Pa. Super.

2003)   (concluding   that   even   if   officer   was   justified   in   conducting

investigatory stop based on reasonable suspicion that Preacher was selling

cocaine, officer still needed reasonable suspicion that Preacher was armed

and dangerous to conduct pat down). In order to frisk Appellant, Sergeant

Rathgeb needed “specific and articulable facts indicating” that Appellant may

have been “armed and dangerous.” Id. Thus, the trial court erred by using

an incorrect standard to assess Sergeant Rathgeb’s decision to frisk

Appellant.

     Furthermore, even if the trial court used the correct standard, the trial

court erred in applying that standard.             Sergeant Rathgeb’s specific

articulated reason for frisking Appellant was “for [the sergeant’s] safety and

[Appellant’s] safety.” N.T., 2/14/2017, at 13. A general statement that a

frisk was required for officer safety and the safety of the person searched

does not provide a sufficient basis for conducting a frisk incident to an

investigatory stop. Preacher, 827 A.2d at 1239. It is imperative that the

police “point to specific and articulable facts indicating the person they

intend to frisk may be armed and dangerous; otherwise, the talismanic use

of the phrase ‘for our own protection,’ … becomes meaningless.” Id. “While


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this Court acknowledges the importance of protecting police officers in the

performance of their duties, the law requires that an officer have some

reason to believe that a particular suspect is armed and dangerous.” Id.

(emphasis added).

      Upon further questioning, Sergeant Rathgeb specified that he was

“[a]bsolutely” concerned that Appellant had a weapon because people

“involved with the drug trade normally will carry some type of weapon for

protection[.]”   N.T., 2/14/2017, at 14.           Specifically, Sergeant Rathgeb

believed Appellant may have been in the area to purchase drugs. Id. at 13

(“So, in myself [sic] opinion and my belief, I felt that criminal activity was

afoot, possibly [Appellant] was there for the purpose of meeting somebody

to purchase narcotics.”).      Sergeant Rathgeb concluded that Appellant may

have been present to buy drugs based upon his skepticism of Appellant’s

excuse for being in a high-crime area late at night, Appellant’s slight

nervousness during his conversation with Sergeant Rathgeb, and the

registration of Appellant’s car to someone with a Pittsburgh address.          In

addition to his concern about weapons, when asked if he has encountered

people   carrying    needles    in   the   area,   Sergeant   Rathgeb   responded

affirmatively. Id.

      Sergeant Rathgeb’s concern that Appellant may have been present at

King and York Streets to purchase drugs, or was somehow otherwise

generally involved in the drug trade, is insufficient to form reasonable


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suspicion that Appellant specifically was armed and dangerous.         “Even in

high crime areas, where the possibility that any given individual is armed is

significant, Terry requires individualized, reasonable suspicion before a frisk

for weapons can be conducted.” Commonwealth v. Grahame, 7 A.3d 810,

816 (Pa. 2010) (quoting Maryland v. Buie, 494 U.S. 325, 334 n.2 (1990)).

Notwithstanding the presence of violence in the illegal drug industry, our

Supreme Court has refused to justify an intrusion on privacy based solely on

the seriousness of the criminal activity under investigation, including the sale

of drugs. Commonwealth v. Rodriguez, 614 A.2d 1378, 1383 (Pa. 1992).

“[C]ourts cannot abandon the totality-of-the-circumstances test and rely

exclusively upon the preconceived notion that certain types of criminals

regularly carry weapons.” Grahame, 7 A.3d at 816 (citing Commonwealth

v. Zhahir, 751 A.2d 1153, 1162 (Pa. 2000)).

      Further, while Sergeant Rathgeb noted that he has encountered others

in the area carrying needles, he never articulated a concern that he

suspected Appellant specifically of carrying a needle, or that Appellant’s

conduct conveyed a threat of danger to the sergeant. While Appellant acted

slightly nervous when Sergeant Rathgeb encountered him, there is no

indication that Sergeant Rathgeb detected unusual behavior or furtive

movements, observed a suspicious bulge, or had knowledge of any past

violence from Appellant.    See Grahame, 7 A.3d at 817 (examining the

presence of such factors because generalization that firearms are commonly


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found in proximity to illegal drugs is insufficient without additional facts

supporting an objectively reasonable belief that person had been presently

armed and dangerous).      C.f. Zhahir, supra (holding that, where officers

confronted Zhahir in area known for drug activity at eight p.m. during

investigation of narcotics trafficking, and in response to police presence

Zhahir discarded an item, surveilled the street, retrieved the item, and

turned to face officer with his hand in his jacket pocket, officer’s concern

that Zhahir may have been retrieving a weapon from his pocket was

justified). Because the Commonwealth failed to elicit facts that sufficiently

supported an objectively reasonable belief that Appellant was armed and

dangerous, the trial court’s decision cannot be sustained.   Accordingly, we

vacate the judgment of sentence and reverse the order denying the motion

to suppress.

     Judgment of sentence vacated.       Order denying motion to suppress

reversed.      Case remanded for further proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2019




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