Com. v. Rolling, T

J-S65001-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TAIK ROLLING
Appellant No. 1557 EDA 2008
Appeal from the Judgment of Sentence January 29, 2008
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-CR-0002154-2007
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED DECEMBER 11, 2014
Appellant, Taik Rolling, appeals from the judgment of sentence
entered January 29, 2008, by the Honorable Susan I. Schulman, Court of
Common Pleas of Philadelphia County. Rolling argues that the trial court
erred when it denied his motion to suppress physical evidence. No relief is
due.
At approximately 2 a.m. on February 8, 2007, Philadelphia Police
Officer Siris Polard was on routine patrol at the 3000 block of Wharton Street
when he observed a burgundy Nissan driving without its headlights
activated. See N.T., Suppression Hearing, 8/16/07 at 4-5. He initiated a
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*
Retired Senior Judge assigned to the Superior Court.
J-S65001-14
traffic stop and called for backup. See id. at 6. Officer Polard identified
Rolling as the driver of the vehicle. See id. at 5.
When Officer George Ackerman arrived at the scene, the officers
approached the vehicle and Officer Polard asked Rolling for his paperwork.
See id. at 6. At the time, Rolling was dressed in an unzipped brown hoody,
under which he was wearing an untucked dress shirt. See id. at 13; 19. As
Rolling reached towards the glove box, Rolling’s shirt tightened and Officer
Ackerman observed a bulge in the left waistband area of Rolling’s shirt. See
id. at 15. Concerned that Rolling possessed a firearm, Officer Ackerman
asked Rolling, repeatedly, to lift his shirt. See id. When Rolling complied,
Officer Ackerman observed what appeared to be the handle of a firearm.
See id. at 16; 19. Officer Ackerman immediately demanded Rolling raise
his arms to the roof of the car, and then pulled up Rolling’s shirt to reveal
the handle of a .45 caliber handgun sticking out of Rolling’s waistband. See
id. at 16; 20.
Rolling was arrested and charged with violations of the Uniform
Firearms Act. Prior to trial, Rolling filed a motion to suppress physical
evidence. Following a hearing, the suppression court denied Rolling’s
motion. The trial court convicted Rolling of carrying a firearm without a
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license and carrying a firearm on a public street in Philadelphia,1 and
sentenced Rolling to three years’ probation. This timely appeal followed.
Rolling challenges the court’s denial of his suppression motion. Our
standard of review is well-settled.
[W]e are limited to determining whether the factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. We may consider the
evidence of the witnesses offered by the prosecution, as verdict
winner, and only so much of the defense evidence that remains
uncontradicted when read in the context of the record as a
whole.
Commonwealth v. McAliley, 919 A.2d 272, 275-276 (Pa. Super. 2007)
(citation omitted). “Moreover, if the evidence supports the factual findings
of the suppression court, this Court will reverse only if there is an error in
the legal conclusions drawn from those findings.” Commonwealth v.
Powell, 994 A.2d 1096, 1101 (Pa. Super. 2010).
The record supports the suppression court’s factual findings. As such,
we proceed to determine whether the suppression court’s legal conclusion,
that the seizure in this case was lawful, is correct. Preliminarily, we note
that there is no dispute that Rolling was the subject of a lawful investigatory
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1
18 Pa.C.S. §§ 6106; 6108.
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detention. As such, the officers needed only reasonable suspicion to conduct
a pat-down.2
During [an] investigatory stop, the officer can pat-down
the driver when the officer believes, based on specific and
articulable facts, that the individual is armed and
dangerous. Such pat-downs, which are permissible
without a warrant and on the basis of reasonable
suspicion less than probable cause, must always be
strictly limited to that which is necessary for the
discovery of weapons that might present a danger to the
officer or those nearby. When assessing the validity of a
pat-down, we examine the totality of the circumstances
... giving due consideration to the reasonable inferences
that the officer can draw from the facts in light of his
experience, while disregarding any unparticularized
suspicion or hunch.
Commonwealth v. Parker, 957 A.2d 311, 315 (Pa. Super. 2008) (internal
citations, quotation marks, and emphasis omitted).
Rolling essentially argues that because the shirts he was wearing
under the sweatshirt were untucked, his “untucked shirts would have been
too loose [] for a bulge to appear.” Appellant’s Brief at 12. Faced with
conflicting testimony, it was the duty of the suppression court to pass on the
credibility of the witnesses. Clearly, in denying Rolling’s suppression motion,
the court credited the testimony of Officers Polard and Ackerman that they
observed a bulge in Rolling’s waistband, which they feared to be a firearm.
See N.T., Suppression Hearing, 8/16/07 at 32-33. Based upon the officers’
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2
Of course, here, the officers did not conduct a per se pat-down of Rollings.
However, as they lifted Rolling’s shirt under suspicion that he possessed a
firearm, we find the situation to be analogous.
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observation and the concern for their safety, we find the request that Rolling
lift his shirt to have been eminently reasonable and supported by reasonable
suspicion. Hence, we conclude that the lower court properly denied Rolling’s
suppression motion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2014
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