Com. v. Ings, J. ( 2017 )

J-A32019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOEL G. INGS
No. 2253 EDA 2015
Appeal from the Order June 26, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011613-2012
BEFORE: DUBOW J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY RANSOM, J.: FILED MARCH 09, 2017
The Commonwealth of Pennsylvania appeals from the June 26, 2015
order granting Appellee’s motion to suppress physical evidence. We affirm.
In September 2012, Joel G. Ings, Appellee, was arrested and charged
with possession of a controlled substance and possession with intent to
distribute.1 In June 2014, Appellee filed a motion to suppress physical
evidence, namely, narcotics recovered in conjunction with the arrest. In the
motion, Appellee averred that police lacked reasonable suspicion or probable
cause to stop him, and the narcotics discarded in his ensuing flight from
police were the fruits of an illegal seizure. A suppression hearing was held
on June 26, 2015, before the Honorable Sean F. Kennedy. That same day,
____________________________________________
1
35 Pa.C.S. §§ 780-112(a)(16), and 780-112(a)(30), respectively.
* Retired Senior Judge assigned to the Superior Court.
J-A32019-16
upon hearing the testimony of the Commonwealth’s only witness, arresting
officer Jeffrey Opalski (“Officer Opalski”), the court granted Appellee’s
motion to suppress. Thereafter, in July 2015, the Commonwealth filed a
notice of appeal and a Pa.R.A.P. 1925(b) statement. The lower court
reviewed the suppression hearing transcript and issued supplemental
findings of facts and conclusions of law in January 2016. In February 2016,
the court issued a responsive opinion, which incorporated its findings of facts
and conclusions of law.
On appeal, the Commonwealth raises the following issue for our
review:
1. Where officers patrolling a high[-]crime area asked [Appellee]
to stop, and he responded by fleeing on his bicycle, did the lower
court improperly suppress the crack cocaine that he abandoned
mid-flight?
Commonwealth’s Brief at 4.
When reviewing the propriety of a suppression order, we are required
to determine whether the record supports the suppression court's factual
findings and whether the inferences and legal conclusions drawn by the
suppression court from those findings are appropriate. Commonwealth v.
Peterson, 17 A.3d 935, 937 (Pa. Super. 2011) (citing Commonwealth v.
Moyer, 954 A.2d 659, 663 (Pa. Super. 2008). Where the record supports
the factual findings of the suppression court, we are bound by those facts
and may reverse only if the legal conclusions drawn therefrom are in error.
Id.
-2-
J-A32019-16
On appeal, the Commonwealth raises a single issue for our review,
alleging the court improperly suppressed the narcotics Appellee discarded in
flight from the police. We have reviewed the certified record, the briefs of
the parties, the applicable law, and the well-reasoned opinion authored by
the Honorable Sean F. Kennedy of the Court of Common Pleas of
Philadelphia County, filed February 18, 2016. We conclude that Judge
Kennedy’s comprehensive opinion is dispositive of the issue presented in this
appeal. Accordingly, we adopt the opinion as our own for purposes of
further appellate review and affirm the order granting Appellee’s suppression
motion on that basis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2017
-3-
Circulated 02/17/2017 01:57 PM
IN THE COURT OF COMMON PLEAS FILED
PHILADELPHIA COUNTY FEB 18
FIRST JUDICIAL DISTRICT OF PENNSYL ANIA v ·cnm1, . ZOl6
CRIMINAL TRIAL DIVISION First Ju``:~'lf.eats Unit
istrict of PA
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0011613-2012
v.
SUPERIOR COURT
JOEL G.INGS NO. 2015
KENNEDY, SEAN F., J. FEBRUARY 15, 2016
PROCEDURAL IDSTORY
On September 2, 2012, Joel Ings (the Defendant) was arrested and charged with
possession of a controlled substance (possession) and possession with intent to distribute
(PWID).1 On June 10, 2014, the Defendant filed a motion to suppress physical evidence,
namely, narcotics, recovered by the police, contending that the police lacked reasonable
suspicion or probable cause to stop him and the item discarded in his subsequent flight with the
police in pursuit where the fruits of an illegal seizure. A suppression hearing was held before
this Court on June 26, 2015. At that time, the Commonwealth presented the testimony of
Philadelphia Police Officer Jeffrey Opalski (Officer Opalski). The Defendant presented no
testimony. CP.SI-CR-0011613-2012 Comm. .
Opinion Y. Ing,, Jee, 0 G.
Ill/ mt/ll/llll/1/ II//I
7408371741
135
Pa.C.S. § 780-112(a)(l6) and 35 Pa.C.S. § 780-l l2(a)(30), respectfully.
1
... After hearing Officer Opalski's testimony and personally observing him testify, this
Court granted the Defendant's motion to suppress and ordered the narcotics suppressed.2 On
July 27, 2015, the Commonwealth filed a notice of appeal, as well as a 1925(b) statement,
challenging the Court's suppression ruling. Upon receipt of the Commonwealth's notice of
appeal and 1925(b) statement, the Court ordered the June 26, 2015 suppression hearing
transcript. Following a review of the suppression hearing transcript, this Court issued
supplemental findings of fact and conclusions oflaw, which were filed on January 15, 2016.3
FACTS
On September 2, 2012, Officer Opalski and his partner, Officer Murray, were in plain
4
clothes and an unmarked vehicle, on routine patrol in the 19th District N.T. 6/25/2015 at 5-6.
On said date, Officer Opalski had obtained Information that a week prior to September 2, 2012,
several gunpoint robberies were reportedly committed by two suspects - described as black
males, five-ten to six feet, thin build- at bus stops off of 54th Street, in the area of 54th and Berks
5
Street Id. at 5-6, 12. Officer Opalski was looking out for these alleged robbery suspects
during his patrol. Id. at 5-6.
Officer Opalski saw the Defendant at approximately 1:00 a.m. Id. At that time, Officer
Opalski was patrolling in the area 56UJ. and Berks Street, heading southbound on 56th Street and
2The Court's findings and conclusion were stated on the record See, N.T. 6126fl0 IS at 17-20.
3
The supplemental findings of fact and conclusions oflaw are incorporated as though fully set forth herein.
(Courtesy copy attached hereto). Although the supplemental findings and conclusions were clearly designated as
such, the filing was erroneously docketed as a 1925(b) Opinion.
• A!. of September 2, 2012, Officer Opalski had been a Philadelphia Police Officer for two years. N.T. 6/2&2012 nt
8. The summer of2012 was his first experience out in the District. lg. During that summer, Officer Opalski and his
yartner had close to 20 gun arrests. Id.
Officer Opalski testified that he did not personally investigate the week-old crimes or prepare any reports relative
to said crimes; he obtained the information regarding the crimes from the white papers disseminated through the 19di
District. Id. at 12· 13.
2
the Defendant was at 55lh and Berks Street, riding a bicycle westbound. towards 56th Street. 6 Id.
at 5, 6, 11-12, 14. The Defendant turned northbound on 561h Street and came by the driver's side
of the officers' vehicle, which was facing southbound, windows down and at that point, the
officers yelled "police," flashed their badges and ordered the Defendant to stop.7 Id. at 7.
Officer Opalski had not observed the Defendant engage in any criminal activity before he
ordered the Defendant to stop. Id. at 13. The Defendant looked in the direction of Officer
Opalski and continued to peddle northbound on 56th Street, behind the officers' vehicle.8 Id. at
7. The officers pursued the Defendant Id. During the pursuit, Officer Opalski. saw the
Defendant throw a glass jar to the ground. Id. The officers apprehended the Defendant at 56th
and Arlington Streets.9 Id. Officer Opalski returned to the area where he saw the Defendant
throw the glass jar, Id. at 7-8. He recovered a glass jar containing crack cocaine. Id. at 8. The
Defendant was arrested.l'' Id.
ISSUE
The Commonwealth's contends that the Court erred in granting the Defendant's motion
to suppress and in suppressing the narcotics discarded by the Defendant, asserting:
6
Officer Opalski claimed that in the darkness of night, as he was heading southbound on 56tb Street end the
Defendant was riding a bicycle westbound towards 56tb Street, he noticed a bulge in the Defendant's front waistband
that could have been a gun and further, he observed that the Defendant matcbc d the description of the week-old
robbery suspects. Td. ot 6-7. This Court found said testimony to be not credible. N.T. 612612015 at 18-20;
Supplemental Findings at nos. 14-16.
7
Officer Opalski did not indicate that he was responding to a crime in progress when he saw the Defendant or when
he ordered the Defendant to stop. In fact, Officer Opalsld testified that he did not see the Defendant engage in nny
criminal activity before he ordered the Defendant to stop. Id. at 13. Officer Opalski's testimony demonstrated that
his reason for stopping the Defendant was the infonnation he possessed regarding the week-old robberies. Jg. at 5-7.
I
On cross examination, Officer Opnlski testified that as the Defendant pulled alongside of the unmarked vehicle's
window and as he passed the unmarked vehicle, he maintained the same pace of motion. Id. at 13.
9
The Defendant did not possess e gun. Id. et 15.
10
Subsequent to the Defendant's arrest, Officer Opalski completed a 75-229, based on information he had obtained
from the Defendant Id. at 9-10. The Defendant reported that he was six feet tall and that he resided at 5876
Malvern Road, which was approximately four blocks from when, the events in question took place. Id. at 10, 15.
The Defendant's reported address indicated that he resided in the neighborhood where the events in question
occurred. Id. at 15.
3
Plainclothes police officer investigating a series of gunpoint robberies within 2
blocks of their location saw defendant, who matched a flash description of the
robbery suspect, approaching on a bicycle with a bulge in his waistband area, at
approximately 1 a.m.; the officers called to defendant to come over to them and in
response he fled and, while doing so, threw drugs on the ground. The issue on
appeal is whether the lower court erred in granting defendant's motion to suppress
the drugs he abandoned.
1925(b) Statement
DISCUSSION
When reviewing the propriety of a suppression order, an appellate court is required to
determine whether the record supports the suppression court's factual findings and whether the
inferences and legal conclusions drawn by the suppression court, from those findings, are
appropriate. Commonwealth v. Peterson, 17 A.3d 935, 937 (Pa.Super, 2012) (quoting
Commonwealth v. Moyer. 954 A.2d 659, 663 (Pa.Super, 2008). Where the record supports the
factual findings of the suppression court, the appellate court is bound by those facts and may
reverse only if the legal conclusions drawn therefrom are in error. Id.
It is within the suppression court's sole province to pass on the credibility and weight to
be given to testimony. Commonwealth v. Elmbody, 823 A.2d 180, 184 (Pa.Super. 2003). The
suppression court is free to believe all, part or none of the evidence presented at the suppression
hearing. Id. "[C]redibility at a suppression hearing is an important determination best resolved
through the suppression court's personal observations. An appellate court will not reverse a
suppression court's assessment of credibility absent a manifest abuse of discretion."
Commonwealth v. Camacho, 625 A.2d 1242, 1245 (PaS~per. 1993).
Moreover, the suppression court has the duty to independently evaluate whether, under
the particular facts of a case, an objectively reasonable police officer would have reasonably
suspected criminal activity was afoot. Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011).
4
The appellate courts look to the factual findings made by the suppression court, recognizing that
those findings are dependent on the suppression court's credibility determinations. In the
Interest ofL.J (L.J.). 79 A.3d 1073, 1085 (Pa.Super. 2013).
When we state that part of our "task" is to determine whether the record supports
the suppression court's factual findings, this is another way of expressing that our
standard of review is highly deferential to the suppression court's factual findings
and credibility determinations. In other words, if the record supports the
suppression court's findings, we many not substitute our own findings.
[Commonwealth v.] Hughes, 836 A.2d [893,] at 898 [Pa. 2003] ("[w]here the
record supports findings of the suppression court, we are bound by those facts.")
(citation omitted). In stark contrast, our standard of review of the suppression
court's legal conclusions is de nova: the appellate courts give no deference to the
suppression court's legal conclusions. Commonwealth v. Brown. 996 A.2d'473.
476 (Pa. 2010).
L.J.. 79 A.3d at 1080 n. 6.
The Fourth Amendment of the United States Constitution and Article 1, § 8 protect
against unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1 (1968); Commonwealth v.
Hicks, 253 A.2d 276, 280 (Pa. 1969). Among the protections is the requirement that an officer
have reasonable suspicion that criminal activity is afoot and that the person seized in involved in
such activity before an investigative stop. In re M.D., 781 A.2d 192. 196 (Pa.Super. 2001)
(citing~ 392 U.S. at 30; Hicks, 253 A.2d at280); See also, Commonwealth v. Ranson. 103
A.3d 73 (Pa.Super. 2014); Commonwealth v. Taggart, 997 A.2d 1189 (Pa.Super. 201 O); ·
Commonwealth v. Martinez. 588 A.2d 513 (PaSuper. 1991); Commonwealth v. Espada, 528
A.2d 968 (Pa.Super. 1987).
Where "a citizen approached by a police officer is ordered to stop ... obviously a 'stop'
(seizure] occurs." Ranson, 103 A.3d 73, 77 (Pa.Super. 2014) (quoting Commonwealth v .. Jones,
378 A.2d 835, 839 (Pa. 1977)). Furthermore:
s
.•
Under Pennsylvania law, any items abandoned by the individual under pursuit are
considered fruits of a seizure. Those items may only be received in evidence
when an officer, before giving chase, has at least the reasonable suspicion
necessary for an investigative stop. Stated another way, when one is
unconstitutionally seized by the police, i.e. without reasonable suspicion or
probable cause, any subsequent flight with the police in pursuit continues the
seizure and any contraband discarded during the pursuit is considered the product
of coercion and is not admissible.
Taggart, 997 A.2d at 1193 (Pa.Super. 2010) (quoting In re M.D., 781 A.2d at 196 (Pa.Super.
2001) (internal citations and quotation marks omitted); See also, Ranson. 103 A.3d at 77 ("[ A]s
pursuit by police constitutes a seizure under the law of this Commonwealth, a person may be
seized even though he is moving away from the police.") (citing Conunonwealth v. Matos, 679
A.2d 769 (Pa. 1996).
In determining whether a police officer had reasonable suspicion, the court must examine
the totality of circumstances. Ranson. supra; Taggart, supra; In re M.D., sl}Pm; Martinez. supra;
Espada, supra. The officer must be able to articulate specific facts which led him reasonably to
suspect that criminal activity was afoot and that the person seized was involved in that activity.
Id. Reasonable suspicion depends on the information possessed by the officer, and its degree of
reliability. Ranson, 103 A.3d at 78; Taggart, 997 A.2d at 1193; In re M.D., 781 A.2d at 196;
Martinez, 588 A.2d at 516; Espada, 528 A.2d at 970. In assessing the totality of circumstances,
the court must give due weight to the specific reasonable inferences drawn from the facts in light
of the police officer's experience. n Ranson. 103 A.3d at 77; In re M.D .• supra.
Although information sufficient to render a stop reasonable cannot be defined to a
mathematical certainty, Pennsylvania case law clearly establishes that "in order for a stop to be
11
"Although a police officer's knowledge and length of experience weigh heavily in determining whether
reasonable suspicion existed, our [courts] retnllin mindful that the officer's 'judgment is necessarily colored by his
or her primary involvement in the often competitive enterprise of ferreting out crime." Commonwealth v. Reppert.
814 A.2d 1196, 1204 (Pa.Super. 2002)(citing In re D,E.M. 729 A.2d 570, 578 n.19 (Pa.Super. 1999)(quotingTurl,
332 U.S. at 11·12).
6
reasonable, and therefore legal, under Terry v. Ohio, filll!m, the police officer's reasonable and
articulable belief that criminal activity was afoot must be Jinked with his observation of
suspicious or irregular behavior on behalf of the particular defendant stopped.n12 Espada, 528
A.2d at 970; See also, Ranson, ~ Taggart, fil!.P!lh Inre M.D., rn Martinez, supra.
"Conversely, an officer's observation of irregular behavior without a current belief that a crime
is afoot also renders a stop unreasonable. Espada, fillm (citing Jones, 378 A.2d at 840-841).
Instantly, the suppression record consists of the testimony oftbe Commonwealth's
witness, Officer Opalski. At the conclusion of Officer Opalski's testimony, this Court granted
the Defendant's motion to suppress. The Court concluded that an investigative stop occurred
when the officers identified themselves as police, flashed their badges and ordered the Defendant
to stop. (N.T. 6/26/2015 at 7, 17; See also, Supplemental Findings/Conclusions, 1/15/2016, at 2,
5). This conclusion is consistent with Pennsylvania case law. Jones: Ranson.
This Court found that under the particular facts of this case, an objectively reasonable
police officer would not have reasonably suspected criminal activity was afoot and that the
Defendant was engaged in criminal activity. The Court considered the totality of the
circumstances giving due weight to the reasonable inferences Officer Opalski was entitled to
draw from the facts, in light of his experience. (N.T. 6/26/2015 at 18-20; See also, Supplemental
12
A police officer's observation of the defendant in a high crime area or in the vicinity of recently reported crimes
did not justify an investigative stop where the officer had no information of a crime in progress and the defendant
had not acted in a suspicious manner, ~ 528 A.2d at 970; Commonwealth v. Jackson, 519 A.2d 427
(Pa.Super. 1986); Commonwealth v. Williams, 444 A.2d 1278 (Pa.Super. 1982); Commonwealth v. WiUlams, 429
A.2d 698 (Pa.Super, 1981). An unsubstantiated tip constituted unreasonable grounds for au investigative slop where
the description of the perpetrator was overly general and there was no !nfonnatioo linking the defendant with any
suspicious or illegal activity. Commonwealth v. Lagnna, 514 A.2d 179 (Pa.Super. 1986). A police officer's
observation of the defendant on a known drug comer, coupled with the officer's observation of a nondescript bulge
in the defendant's pocket, constituted unreasonable ground for an investigative stop where the officer had no
information ofa crime in progress and the defendant bad not acted in a suspicious manner. Commonwealth v,
Martinez, 588 A.2d 513 (Pa.Super. 1991). In Mnrt!ner, the Superior Court explalned that an officer's belief that 11
person might be armed cannot serve as an additional articulable fact to justify an initial stop absent sufficient
articulable facts to reasonably warrant a belief that criminal activity is afoot Id. at 516 (citing Hicks, 253 A.2d at
279). .
7
-•
Findings/Conclusions, l/15not6, at 2-6). Based thereon, this Court determined that Officer
Opalski did not demonstrate a reasonable belief that criminal activity was afoot and that the
Defendant was engaged in criminal activity at the time the Defendant was ordered to stop. (N.T.
6/26/2015 at 20; See also, Supplemental Findings/Conclusions, 1/15/2016, at 4-5). Accordingly,
this Court concluded that the contraband discarded by the Defendant was the fruit of an illegal
investigative stop and subject to suppression. (N.T. 6/26/2015 at 20; See also, Supplemental
Findings/Conclusions, 1/15/2016, at 5·6).
In reaching a determination, this Court found Officer Opalsk.i's testimony to be not
credible to the extent be testified that he ordered the Defendant to stop because he observed that
the Defendant matched the description of suspects in the week-old robberies. [N.T. 6/26/2015 at
6-7, 12] and that he observed a bulge in the Defendant's waistband [N.T. 6/26/2015 at 6-7; 14].
(N.T. 6/26/2015 at 18-19; See also, Supplemental Findings/Conclusions, 1/15/2016, at 3-5).
Notwithstanding this Court's rejection of Officer Opalski's testimony as not credible, the
Commonwealth relies on said testimony in support ofits appeal. (1925(b) Statement).
The Commonwealth had the burden of establishing at the suppression hearing that the
challenged evidence was not obtained in violation of the Defendant's constitutional rights.
Camacho, 625 A.2d at 1245 (citing Commonwealth v. Bonasorte. 486 A.2d 1361, 1368
(Pa.Super. 1987)). This Court determined that the testimony of Officer Opalski did not credibly
establish reasonable suspicion justifying the investigative stop. Given this determination, there
is no basis for a reversal of the Court's suppression ruling. Camacho. 625 A.2d at 1246. As
discussed more fully below, the Court's credibility determination is supported by the record and
does not constitute a manifest abuse of discretion.
8
-1
Presumably, in an effort to dissuade the Superior Court of the propriety of this Court's
rejection of Officer Opalski's testimony, the Commonwealth's 1925(b) statement misrepresents
and misstates the facts of this case. A review of the record reveals no support for the
Commonwealth's implication that on September 2, 2012, Officer Opalski was investigating a
crime in progress and/or its assertion that the officers called to the Defendant to come over to
them and in response, he fled. A review of Officer Opalski testimony reveals the following
relevant facts.
On September 2, 2012, Officer Opalski possessed information that a week before
September 2, 2012, gunpoint robberies had reportedly been committed by two suspects-both
described as black males, five-ten to six feet, thin build- at bus stops off of 54th Street, in the
vicinity of 54th and Berks Street. (N.T. 6/26/2015 at 6, 12). Officer Opalski did not personally
investigate the week-old robberies or prepare any reports pertaining to the robberies; rather, he
had just obtained the information from the white papers disseminate through his District. (N.T.
6/26/2012 at 12-13). Based on this information, Officer Opalski was looking out for the suspects
during his patrol. (N.T. 6/26/2012 at 5-7). At approximately 1:00 a.m., Officer Opalski saw a
single black male, the Defendant, at 55lh and Berks Street; the Defendant was riding a bicycle
westbound towards 56th and Berks Street. (N.T. 6/26/2015 at 6-7). The Defendant turned
northbound on 56th Street, riding his bicycle along the driver's side of Officer Opalski's
urunarked vehicle, windows down and as he did, Officers Opalski and Murray announced police,
showed the Defendant their badges and told the Defendant to stop. The Defendant looked in the
direction of Officer Opalski and began to peddle faster northbound. (N. T. 6/26/2015 at 7). At
the point the officers commanded the Defendant to stop, Officer Opalski had not seen the
Defendant engage in any criminal activity. (N.T. 6/26/2015 at 13). Officer Opalski did not
9
t
indicate that he observed irregular or suspicious behavior on the Defendant's part or anyone's
part.
As noted above, this Court concluded that an investigative stop occurred when the
officers ordered the Defendant to stop. The Court did not find the Defendant's alleged flight to
be an additional factor to be considered in determining reasonable suspicion since the
Defendant's flight occurred after the investigated stop and therefore, did not constitute a ground
for reasonable suspicion justifying the investigative stop. Taggart; Martinez. As further
indicated above, determined that the testimony of Officer Opalski did not credibly establish
reasonable suspicion justifying the investigative stop.
This Court had the duty to independently evaluate Officer Opalski's testimony to
determine whether, under the particular facts of a case, an objectively reasonable police officer
would have reasonably suspected criminal activity was afoot. Holmes. Officer Opalski's
credibility was an important consideration in this Court's evaluation of the facts. This Court
considered Officer Opalski's testimony in its entirety and personally observed Officer Opalski's
demeanor as he testified. The Court examined the totality of the circumstances, including
reasonable inferences, in light of Officer Opalski's experience as a police officer. The Court did
not find that Officer Opalski's testimony had the "ring of truth."
When Officer Opalski stopped the Defendant on September 2, 2012, Officer Opalski was
not investigating or responding to a crime in progress; rather, he was relying on information that
a week before September 2, 2012, gunpoint robberies had been committed at bus stops, off of
54lh Street, by two suspects described as black males, 5-10 to 6 feet, thin build. The flash
description of the suspects was very general and vague at best, with a low degree of reliability,
Officer Opalski knew that the flash description had little to no value in the ethnic neighborhood
10
where the robberies occurred as evinced by his testimony that any number of males residing in
the neighborhood where the robberies occurred would fit the description of the suspects. (N.T.
6/26/2012 at 11).
To justify an investigative stop, Officer Opalski needed more than the vague flash
description. Officer Opalski's testimony did not indicate that he attempted to corroborate
additional facts before stopping the Defendant. At the time Officer Opalski stopped the
Defendant, the Defendant had done nothing more than ride a bicycle in the vicinity of a week-old
crime.
The Court did not accept Officer Opalski's testimony that he was able to determine the
Defendant's height to be between five-ten and 6 feet and his testimony that he observed a bulge
in the Defendant's waistband under the circumstances he described - in the darkness of night,
while the Defendant was seated, riding a bike westbound from 55th Street towards 561h Street and
Officer Opalski was riding in a vehicle traveling southbound on 56th Street.
Additionally, Officer Opalski did not describe the alleged bulge in any details. He did
not testify that he believed the bulge was a gun; rather, he testified that be thought the bulge
could have been a gun. He also testified that the bulge could have been a large cell phone.
As indicated above, Officer Opalski admitted that he had not observed the Defendant
engage in any criminal activity and he did not point to any irregular or suspicious behavior on
the part of the Defendant. Officer Opal ski did not indicate that the Defendant was observed with
another tall> thin black male and/or that the Defendant was observed at or near bus stops, on or
off 54 th Street, as described in the prior robberies.
In view of the above, this Court submits that the Commonwealth's appeal is without
merit and accordingly, it should be denied and dismissed.
11
I
I
l -:
I
r
i .
' CONCLUSION
WHEREFORE, this Court respectfully submits that the order granting the Defendant's
motion to suppress be affirmed on appeal.
12