J-S19005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SAMUEL ANDINO                              :
                                               :
                       Appellant               :   No. 1541 EDA 2018

              Appeal from the Judgment of Sentence May 8, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0003625-2017


BEFORE:      LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                                FILED MAY 17, 2019

       Samuel Andino appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, after he was convicted in a

non-jury trial of various firearms charges.1 On appeal, Andino challenges the

trial court’s denial of his pre-trial motion to suppress, claiming that the police

did not have reasonable suspicion to conduct a “pat-down” where Andino was

not armed and dangerous and that the arresting officer did not have probable

cause to subsequently conduct a search of his vehicle. After careful review,

we vacate Andino’s judgment of sentence and reverse the order denying

suppression.




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1  18 Pa.C.S. §§ 6105(a)(1) (persons not to possess firearms); 6106(a)(1)
(firearms not to be carried without license); 6108 (carrying firearms on public
streets in Philadelphia); and 6106.1 (carrying loaded weapon).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       On the evening of April 10, 2017, Philadelphia Police Officers Sharrod

Davis and Timothy Murphy were on routine patrol duty in their marked police

cruiser near North Dover Street in Philadelphia, a high-drug/crime area.

Officer Davis observed a Chevy Malibu, with a Pennsylvania license plate,

double-parked on the 2800 block of Cecil B. Moore Avenue. The officers pulled

their cruiser behind the Malibu; the driver of the vehicle, Andino, drove off,

turning northbound onto the 1700 block of Dover Street without using turn

signals. At that time, Officer Murphy activated the cruiser’s overhead lights

and sirens and followed Andino’s vehicle, which had pulled over and parked

on the sidewalk. Officer Davis conducted a motor vehicle check that revealed

the Malibu’s registration had been suspended.          At that time, Officer Davis

exited the cruiser and approached the Malibu.          As he neared the Malibu’s

driver’s side window, Officer Davis testified that he smelled an odor of burnt

marijuana.2 At that point, Officer Davis told Andino that he and his vehicle

were going to be searched. Officer Davis then opened the car door and, as

he attempted to pat down Andino, noticed Andino “kind of lean[] over towards

the driver – the steering wheel.”          N.T. Suppression Hearing/Waiver Trial,

12/14/17, at 11. Officer Davis then put his hand on Andino, told him to move




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2 Officer Murphy testified that he did not recall an odor of marijuana emanating
from Andino’s vehicle during the encounter. N.T. Suppression Hearing/Waiver
Trial, 12/14/17, at 36.



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back and patted down his right front pants pocket, recovering a firearm

magazine that contained 15 live rounds. Id. at 11-12.

       At that point, Officer Davis asked Andino to exit the vehicle, telling him

that he needed to pat him down further because he was not able to reach all

the way down Andino’s pant legs while he was seated in the Malibu. Officer

Davis then handed Andino over to his partner, Officer Murphy, telling him to

perform a full pat-down on Andino. Id. at 14. When Officer Murphy conducted

his pat-down of Andino, he recovered a black 9mm Glock handgun with an

extended magazine loaded with 23 rounds from Andino’s right leg. Id. At the

same time Officer Murphy was patting down Andino, Officer Davis performed

a search of the vehicle. Id. at 28. No contraband was uncovered during the

search of the Malibu. Id. at 29.

       Andino filed a pre-trial motion to suppress, arguing that the police

lacked both reasonable suspicion to pat him down and probable cause to

conduct, what amounted to, a search of his person. On December 14, 2017,

the Honorable J. Scott O’Keefe denied the suppression motion, stating,

“[A]fter reviewing my notes, I’m going to deny the motion to suppress.” 3


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3 We remind Judge O’Keefe that pursuant to Pa.R.Crim.P. 581(I), “[a]t 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, and shall make an order granting or denying the relief sought.”
Pa.R.Crim.P. 581(I) (emphasis added).




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Immediately following the suppression ruling, Andino proceeded to a waiver

trial where the parties incorporated all relevant testimony from the

suppression hearing. After admitting exhibits, the parties rested and the court

rendered its guilty verdict.

        On April 25, 2018, the trial court sentenced4 Andino to 3½-7 years’

incarceration and two years of probation for his section 6106 conviction, with

two separate concurrent terms of five years of probation for his section 6105

and section 6108 violations.5 Andino filed a timely notice of appeal and court-

ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. He presents one issue for our consideration:

        Did not the lower court err in denying [Andino’s] motion to
        suppress the physical evidence insofar as [Andino] was frisked
        without reasonable suspicion that he was armed and dangerous
        and assuming arguendo that a frisk was lawful under the
        circumstances, the police officer exceeded the scope of the frisk
        by performing an admitted search which required probable
        cause.[6]

Appellant’s Brief, at 3.

        In an appeal from the denial of a motion to suppress, our Court’s role is

to determine whether the record supports the suppression court’s factual

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4 The trial court amended its sentence that originally imposed 4-8 years’
imprisonment on the section 6106(a)(1) offense, a third-degree felony.

5   No further penalty was imposed on Andino’s section 6106.1 conviction.

6Andino does not contest the legal validity of the car stop where he committed
a Motor Vehicle Code violation and the car’s registration had been suspended
due to a returned check. N.T. Suppression Hearing/Waiver Trial, 12/14/17,
at 9.

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findings and the legitimacy of the inferences and legal conclusions drawn from

those findings. Commonwealth v. Turner, 772 A.2d 970 (Pa. Super. 2001).

Moreover,

        [s]ince the prosecution prevailed in the suppression court, we 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 factual findings of the trial court, we are bound by those facts
        and may reverse only if the legal conclusions drawn therefrom are
        in error.

Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003).

        Andino argues that neither officer had reasonable suspicion to frisk him

or probable cause to search him where Andino was nothing but cooperative

with the police and there was no evidence to support the claim that Andino’s

movement in the car was “out of the ordinary.” Andino also claims that Officer

Davis did not have “reasonable individualized suspicion” to justify a frisk for

weapons where the officer’s real motive in frisking Andino was to find

marijuana.     Finally, Andino claims that even if the frisk were justified, the

scope of the pat-down well exceeded the permissible range under Terry,7

which is “limited to that which is necessary for the discovery of weapons which

might be used to harm the officer or others nearby.” Terry, 392 U.S. at 26.8
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7   Terry v. Ohio, 392 U.S. 1 (1968).

8 Notably, the Commonwealth concedes that Andino is entitled to relief on
appeal. Specifically, the Commonwealth states that although the police
lawfully stopped Andino’s car, “the record does not support the conclusion that
[Andino] appeared to be armed and dangerous.” Commonwealth’s Brief, at



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       It is well established that “to 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).

       Instantly, Officer Davis and Officer Murphy contradicted each other on

two portions of their testimony: (1) whether they smelled an odor of burnt

marijuana emanating from the car during the stop; and (2) whether Andino

had been handcuffed at the time Officer Davis handed him over to Officer




____________________________________________


4. Additionally, the Commonwealth does not find support in the record for the
trial court’s conclusion that Andino made a furtive movement when Andino
leaned toward the steering wheel, but, rather, would find that Andino’s “hands
remained in the officer’s view and all times” and, thus, “the police lacked
reasonable suspicion to frisk [Andino].” Id.




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Murphy.9 Thus, this contradicted testimony from prosecution witnesses shall

not be considered. Turner, supra.

       With regard to whether Officer Davis had “a reasonable suspicion, based

on specific and articulable facts, that [Andino] may be armed and dangerous,”

Stevenson, supra, we note that Officer Davis testified that in approximately

one-third of the narcotics arrests he has made on the force, he has also

recovered firearms. Therefore, he acknowledged that he had a heightened

concern about the possibility of a firearm being in Andino’s vehicle. Id. at 20.

Officer Davis also testified that he was concerned for his safety when, as he

attempted to pat Andino down, Andino “kind of leaned over towards . . . the

steering wheel.” Id. at 11.

       An officer need not be absolutely certain that an individual is armed; the

issue is whether a reasonably prudent man in the circumstances would be

warranted in the belief that his safety or the safety of others was in danger.

Commonwealth v. Taylor, 771 A.2d 1261 (Pa. 2001). Here, the trial judge,

as the fact finder, chose to believe Officer Davis when he testified that he was

concerned for his safety. However, Judge O’Keefe ultimately concluded that

the officers had probable cause to search the Malibu due to “the officer’s

detection of the odor of marijuana” and that once probable cause was

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9 Compare N.T. Suppression Hearing/Waiver Trial, 12/14/17, at 13 (Officer
Davis testified that as Andino exited the vehicle he “believed the defendant
was going to become a little hostile[, so he] handcuffed him . . . for my safety
and his safety.”) with id. at 35-36 (Q”: And was he in handcuffs at that time
[Officer Davis passed him off to you]. A: No.”).

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established “the officers possessed the requisite authority to require the driver

to exit the vehicle and had a reasonable basis to conduct a protective pat[-

]down for their safety.”   Trial Court Opinion, 8/21/18, at 5. Because Officer

Murphy testified that he did not remember smelling marijuana coming from

Andino’s car and there are no facts to support Officer Davis’s testimony that

he smelled an odor of marijuana emanating from the car, we conclude that

the trial court erroneously relied on this fact to conclude that there was

probable cause and conduct a protective pat-down.          Commonwealth v.

Trenge, 451 A.2d 701 (Pa. Super. 1982) (collecting cases standing for

proposition that odor of marijuana, without more, usually will not provide

probable cause).   Here, the only other fact that Officer Davis had prior to

conducting his pat-down was that Andino’s vehicle registration was suspended

for failure to pay.    This fact, alone, does not create probable cause.

Commonwealth v. Bailey, 545 A.2d 942, 947 (Pa. Super. 1988) (to justify

a search of movable vehicle, officer must have independent probable cause to

believe: felony has been committed by occupants of vehicle, that it has been

used in furtherance of commission of felony, or officer must have basis for

believing evidence of a crime is concealed within vehicle, or that there are

weapons within vehicle accessible to occupants).

      Moreover, because Officer Davis had already commenced patting Andino

down at the time he observed Andino lean toward the steering wheel, he

cannot rely on that subsequent fact to justify the pat-down. See Stevenson,

supra (“[I]f the officer has a reasonable suspicion, based on specific and

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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.”).      Simply put, an officer’s reasonable suspicion is a condition

precedent to a lawful Terry frisk.

       Now that we have taken the alleged “furtive” movement out of the

equation, we are left with the following facts to support Officer Davis’

justification for the pat-down: the stop occurred in a high-crime area at night

and Officer Davis had a heightened concern that there may be a firearm in the

Malibu where, in his experience, 33% of narcotics arrests also result in the

recovery of firearms.10 These facts do not justify a Terry pat-down. See

Commonwealth v. Brown, 904 A.2d 925 (Pa. Super. 2006) (absence of

flight in high crime area negates presence of reasonable suspicion and

invalidates police’s Terry stop of defendant); see also Commonwealth v.

Grahame, 7 A.3d 810 (Pa. 2010) (where officer conducted protective search

based on generalization that firearms commonly found in close proximity to

illegal drugs, and where there were no facts supporting objectively reasonable

belief that defendant was armed and dangerous, officer lacked reasonable


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10 While we recognize that officers may draw specific, reasonable inferences
from facts in light of their training and experience, here Officer Davis’ concern
that weapons may have been present on Andino’s person or in his vehicle is
predicated on the disputed testimony that there was an odor of marijuana
emanating from the car. Again, this finding is not supported in the record.
Turner, supra.




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suspicion to conduct Terry search).11 Thus, under the specific facts of this

case, we conclude that Officer Davis did not have a particularized, objective

basis for his pat-down of Andino and any further search of the Malibu was

unlawful. Stevenson, supra.

       Judgment of sentence vacated. Order denying motion to suppress

reversed. Case remanded for further proceedings consistent with this

memorandum. Jurisdiction relinquished.

       Judge Kunselman joins this Memorandum.

       Judge Strassburger files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/19




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11While Andino initially “t[oo]k off” after the officers pulled up behind the
Malibu when it was double-parked on Cecil B. Moore Avenue, neither officer
characterized the action as “flight.”



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