Com. v. Yelverton, J.

J-S60025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JERRY YELVERTON
Appellant No. 2930 EDA 2014
Appeal from the Judgment of Sentence July 14, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006515-2014,
MC-51-CR-0006515-2014
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 20, 2015
Jerry Yelverton appeals from the judgment of sentence entered in the
Municipal Court of Philadelphia on July 14, 2014. On appeal, Yelverton
challenges the court’s denial of his motion to suppress evidence. Upon
careful review, we vacate Yelverton’s judgment of sentence.
The Honorable Ann Butchart of the Court of Common Pleas of
Philadelphia set forth the facts of this case as follows:
This case arises out of a routine patrol on February 28, 2014 by
Philadelphia Police. Officers James O’Neill [and Padilla] were in
full uniform in a marked patrol vehicle on the 1500 block of
Capital Street in Philadelphia at approximately 6:40 p.m. At the
suppression hearing, Officer O’Neill testified that he observed
[Yelverton] and an unknown black female standing side by side.
[Yelverton] was on a bicycle. [Yelverton] and the unknown black
female had their hands extended toward each other. Officer
O’Neill, who was driving, testified that as he turned onto the
1500 block of Capital Street, the unknown black female looked in
the officers’ direction and [Yelverton] immediately turned around
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and rode off on his bike. While still in the patrol vehicle, Officer
O’Neill stopped [Yelverton]. Officer O’Neill testified that at this
point the stop was an “investigation.”
As Officer O’Neill spoke to him, [Yelverton’s] left hand was out of
view. Officer O’Neill asked [Yelverton] to show his left hand
several time[s] but [Yelverton] did not comply. Officer O’Neill
asked [Yelverton] to step off the bicycle. When [Yelverton] did
not comply, Officer O’Neill exited the patrol vehicle and grabbed
[Yelverton’s] left hand. When Officer O’Neill grabbed
[Yelverton], he could see a box of Newport cigarettes in
[Yelverton’s] left hand. While the cigarette box was still in
[Yelverton’s] hand, Officer O’Neill could see that inside the box
was a bundle of heroin. The bundle was wrapped in a plastic
rubber band and contained thirty-seven clear baggies with a blue
glassine insert with white powder inside. The heroin was
stamped “bad boy” and later placed on Philadelphia Property
Receipt number 3125678.
Common Pleas Court Opinion, 4/8/15, at 2-3 (citations to record omitted).
Yelverton was charged with knowing and intentional possession of a
controlled substance.1 He subsequently filed a motion to suppress the
physical evidence obtained by Officer O’Neill. The court held a hearing on
July 14, 2014, after which it denied Yelverton’s motion. Yelverton proceeded
directly to trial before the Honorable Jacquelyn Frazier-Lyde and was found
guilty of knowing and intentional possession of a controlled substance.
Yelverton was sentenced to eighteen months of reporting probation.
On August 12, 2014, Yelverton filed a petition for writ of certiorari to
the Court of Common Pleas of Philadelphia County,2 which was denied on
____________________________________________
1
35 P.S. § 780-113(a)(16).
2
See Pa.R.Crim.P. 1006(1).
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October 6, 2014. This timely appeal followed, in which Yelverton challenges
the denial of his suppression motion.
When reviewing the denial of a motion to suppress evidence, our
responsibility is as follows:
to determine whether the record supports the suppression
court’s factual findings and the legitimacy of the inferences and
legal conclusions drawn from those findings. If the suppression
court held for the prosecution, we consider only the evidence of
the prosecution’s witnesses and so much of the evidence for the
defense as, fairly read in the context of the record as a whole,
remains uncontradicted. When the factual findings of the
suppression court are supported by the evidence, the appellate
court may reverse if there is error in the legal conclusions drawn
from those factual findings.
Commonwealth v. Tither, 671 A.2d 1156, 1157-58 (Pa. Super. 1996).
An officer [has] the authority to approach or briefly detain a
citizen without probable cause for investigatory purposes. Terry
v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968);
Commonwealth v. Arch, 439 Pa. Super. 606, 654 A.2d 1141,
(1995). “In order for such a stop to be reasonable under the
Fourth Amendment to the United States Constitution, the police
officer must point to specific and articulable facts ‘which in
conjunction with rational inferences deriving therefrom’ warrant
the initial stop.” Arch, supra, 654 A.2d at 1143 (quoting
Commonwealth v. Prengle, 293 Pa. Super. 64, 437 A.2d 992,
994 (1981)). To meet this standard, the officer must observe
unusual and suspicious conduct by the suspect which leads the
officer to reasonably believe that criminal activity may be afoot.
Arch, supra, 654 A.2d at 1144. Furthermore, the officer’s
conclusion cannot be based upon an “unparticularized suspicion”
or “hunch.” Id. (quoting Terry, 392 U.S. at 27, 88 S. Ct. at
1883).
Id. at 1158.
Here, Officer O’Neill initiated an investigative detention based upon his
observation of Yelverton standing with an unidentified black female with
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their hands extended towards each other. After the woman observed the
police, she and Yelverton left the area. Officer O’Neill testified that this
incident occurred in a high-crime area where he had made “dozens” of
narcotics arrests. N.T. Suppression Hearing, 7/14/14, at 10. Yelverton
argues that these facts were insufficient to establish a reasonable suspicion
on the part of Officer O’Neill that criminal activity was afoot.
In support of his claim, Yelverton highlights two decisions of this
Court, Commonwealth v. Tither, 671 A.2d 1156 (Pa. Super. 1996), and
Commonwealth v. Carter, 779 A.2d 591 (Pa. Super. 2001). In Tither, a
veteran police officer was on routine patrol in an area known for frequent
drug transactions and problems with prostitution and where the officer had
made previous drug arrests. The officer heard someone yell, “5-0, 5-0,”
which he knew to be street jargon warning that police are in the area. The
officer observed an automobile stopped in the middle of the one-way street
about 100 feet in front of him and a male standing in the street, reaching
into the car. Upon hearing “5-0, 5-0,” the male left the car and walked into
the nearest building and the car immediately pulled away. In concluding
that the officer’s observations did not establish probable cause, this Court
noted that “the officer did not even observe an exchange between appellant
and the man leaning into her window,” nor did he witness “any actions which
would suggest a transaction, let alone a drug transaction.” Id. at 1158.
“[W]hile the officer’s curiosity might have been aroused by the action that
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was witnessed, and while he may have had a hunch that illegal contraband
was involved, that is not sufficient.” Id. at 1159.
In Carter, a police officer witnessed the defendant speaking to two
individuals in a truck, one of whom was a known heroin user, situated in a
high crime area. The defendant then placed his hand in his pocket and
began to remove the hand when he saw the officer and mouthed the word
“popo.” The defendant then walked away. The defendant was ultimately
discovered to have been carrying a sandwich baggie containing packages of
heroin. This Court concluded that the interaction at the truck did not
establish reasonable suspicion and affirmed the trial court’s suppression of
the drugs.
With regard to the officer’s observation of [Carter’s] interaction
with the occupants of the vehicle, such observation could not
have given rise to a reasonable suspicion that [Carter] was
engaged in criminal activity. The officer observed [Carter]
talking to the occupants of parked vehicle in a notoriously drug
infested area of the city. The officer knew that [Carter] and his
mother resided in this area of the city. The officer saw [Carter]
put his hand in his pocket as he spoke to the occupants of the
vehicle but did not observe exchange of items. Neither did he
observe any furtive activity by the occupants of the vehicle. The
officer observed [Carter] mouth the word “popo” (meaning
police) and walk away from the vehicle shortly thereafter. When
considered in conjunction with the officer’s education, training
and experience in drug law enforcement, these observations
may lead to an educated hunch but are insufficient to create a
reasonable suspicion that [Carter] was engaged in the sale of
illegal drugs on the date in question.
Carter, 779 A.2d at 594-95 (Pa. Super. 2001) (citations to the record
omitted).
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The Commonwealth attempts to distinguish Tither and Carter based
on subtle factual differences. The Commonwealth argues that in Tither,
there were no actions which would suggest a transaction, whereas here both
Yelverton and the unidentified black female had their hands extended.
Likewise, in Carter, the Commonwealth argues that the defendant’s act of
placing his hand in his pocket and then removing it before fleeing did not
give rise to reasonable suspicion, whereas here, “Officer O’Neill saw
[Yelverton] and the woman in the middle of an exchange[.]” Brief of
Appellant, at 15. We are unconvinced.
First, the Commonwealth neglects to note that, in Tither, the
defendant was observed to be reaching into the car with one hand. We find
this to be as suggestive of a transaction as the fact that Yelverton and the
unidentified woman had their arms outstretched. Moreover, Officer O’Neill
did not observe either party’s hand to contain any items, such as a baggie of
drugs or cash. Nor did he observe any indication, such as a cupped hand or
a balled fist, that any items might be hidden in either party’s hand.
Compare Commonwealth v. Cook, 735 A.2d 673 (Pa. 1999) (reasonable
suspicion found where officer observed defendant take his left hand out of
his front pocket in fist position and reach toward other individual, who
attempted to receive unidentified item from his hand). Yelverton’s mere
presence in a high crime area in no way establishes his involvement in
criminal activity. See Commonwealth v. Key, 789 A.2d 282, 289 (Pa.
Super. 2001). Neither does the fact that Yelverton rode off on his bicycle
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upon observing police constitute reasonable suspicion of criminal activity.
Id. at 289-90. In sum, we find that, based on the totality of the
circumstances, Officer O’Neill’s observations “may lead to an educated hunch
but are insufficient to create a reasonable suspicion” that Yelverton was
engaged in an illicit transaction. Carter, 779 A.2d at 595.
Judgment of sentence vacated.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2015
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