Com. v. Davis, N.

J-S49034-14
2014 PA Super 234COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
NATHANIEL DAVIS
Appellee No. 3549 EDA 2013
Appeal from the Order entered November 15, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0000231-2013
BEFORE: OLSON, OTT, and STABILE, JJ.
OPINION BY STABILE, J.: FILED OCTOBER 14, 2014
The Commonwealth appeals from an order granting a motion to
suppress a handgun. A police officer discovered the handgun during a
Terry1 frisk he conducted of Appellee, Nathaniel Davis, in the middle of the
night on a West Philadelphia street. Because the suppression court
erroneously concluded that the officer lacked valid grounds to detain and
frisk Appellee, we reverse and remand.
At about 2:00 a.m. on December 22, 2012, Officer Sean Devlin and his
partner, Officer Steven Carter, were on routine patrol near 52nd and Arch
Streets in Philadelphia.2 Officer Devlin knew that the neighborhood was a
____________________________________________
1
Terry v. Ohio, 392 U.S. 1 (1968).
2
Unless otherwise noted, we take these facts from the Suppression Court
Pa.R.A.P. 1925(a) Opinion, 3/4/14.
J-S49034-14
high-crime area based on the “100, if not more” arrests he had made for
“every type” of crime, including DUIs, drug arrests, firearms violations, and
physical assaults. See N.T., 11/15/13, at 6. Officer Devlin saw two men
standing over a third, who was lying unconscious in the street. He later
found out that one of the two men was Appellee. Unsure of what was
happening, Officer Devlin pulled over his patrol car, turned on the
emergency lights, and got out to investigate.
As the officers approached the trio, Officer Devlin noticed that one of
the two men was possibly rummaging through the unconscious man’s
pockets. He tried to speak to the unconscious individual, who was unable to
respond. Officer Devlin thought that the unconscious individual may have
been beaten by the other two men, though he saw no visible injuries. See
id. at 9. He also noticed that an object was weighing down the right breast
pocket of Appellee’s jacket. Officer Devlin approached appellee and began
to pat him down. In response, Appellee attempted to swat away Officer
Devlin’s hand, and flailed his arms. Officer Devlin immediately recognized
the object in the jacket pocket as a firearm, and yelled, “gun!” Officers
Devlin and Carter restrained Appellee, and secured the gun, which was a
Rossi .357 Magnum. Appellee escaped, but only briefly. After a short foot
chase, the officers recaptured Appellee and placed him under arrest. The
-2-
J-S49034-14
Commonwealth later charged Appellee with two violations of the Uniform
Firearms Act and resisting arrest.3
Appellee moved to suppress the firearm as the fruits of an illegal
search. At the hearing on the motion, only Officer Devlin testified. The
suppression court stated that Appellee “could have been trying to rob the
guy, [but] we didn’t see him stab him, kick him, robbing, shooting.” Id. at
21. The suppression court granted the motion, concluding Officer Devlin
lacked probable cause sufficient to “get a warrant from a magistrate or
judge.” Id. at 18-19. This appeal followed.4
In its Pa.R.A.P. 1925(a) opinion, the suppression court stated, for the
first time, that Officer Devlin lacked reasonable suspicion to perform a Terry
frisk. Trial Court Rule 1925(a) Opinion, 3/4/14, at 9-10. The suppression
court concluded that the Commonwealth failed to present specific, articulable
facts to support an investigative detention. It noted that Officer Devlin was
unsure whether Appellee had harmed the unconscious man and was rifling
through his pockets, or was trying to render aid. The suppression court
similarly found that the bulge in Appellee’s jacket pocket could not support
____________________________________________
3
18 Pa.C.S.A. §§ 6106(a)(1) (firearms not to be carried without a license),
6108 (carrying firearms on a public street in Philadelphia), and 5104,
respectively.
4
We have jurisdiction because the Commonwealth certified that the
suppression court’s order terminates or substantially handicaps its
prosecution. See Pa.R.A.P. 311(d); Commonwealth v. James, 69 A.3d
180, 186 (Pa. 2013).
-3-
J-S49034-14
reasonable suspicion because “a bulge without other evidence of criminal
behavior does not give rise to reasonable suspicion.” Id. at 10 n.4 (citing
Commonwealth v. Maxon, 798 A.2d 761, 768-69 (Pa. Super. 2002)). The
suppression court further found that Officer Devlin observed no weapons and
no visible injuries to the unconscious man. Id. at 10. Finally, the
suppression court found that Appellee’s action in pushing away Officer
Devlin’s hand and evading him was a reasonable response to an unlawful
frisk. Id. at 12-13.
On appeal, the Commonwealth argues that the suppression court erred
as a matter of law in failing to consider the totality of the circumstances
known to Officer Devlin. It contends Officer Devlin faced an unusual,
potentially dangerous situation deserving of investigation. The
Commonwealth argues that the Officer’s response was reasonable, and
designed to ensure his and his partner’s safety. Appellant’s Brief at 8.
In appeals from orders granting suppression, our scope of review is
limited to the evidence presented at the suppression hearing. In the
Interest of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013). Thus, we may
consider only the evidence from the appellee’s witnesses together with the
Commonwealth’s evidence that, when read in context of the record at the
suppression hearing, remains uncontradicted.5 Id.; Commonwealth v.
____________________________________________
5
Our Supreme Court in L.J. clarified that the scope of review of orders
granting or denying motions to suppress is limited to the evidence presented
(Footnote Continued Next Page)
-4-
J-S49034-14
Whitlock, 69 A.3d 635, 637 (Pa. Super. 2013). As for the standard of
review, we apply no deference to the suppression court’s legal conclusions.
Whitlock, 69 A.3d at 637. In contrast, we defer to the suppression court’s
findings of fact, “because it is the fact-finder’s sole prerogative to pass on
the credibility of the witnesses and the weight to be given to their
testimony.” Id.Preliminarily, Appellee was not subject to an investigative detention
when Officer Devlin stopped his patrol car, turned on the emergency lights,
and got out to check on the condition of the man lying in the street. Rather,
the interaction at that point was a mere encounter, and mere encounters do
not implicate constitutional prohibitions against unreasonable searches and
seizures. Cf. Commonwealth v. Coleman, 19 A.3d 1111, 1116-17 (Pa.
Super. 2011) (holding that police officers’ approaching defendant on street
and asking questions was mere encounter).
Officer Devlin’s action in patting down Appellee’s jacket was a Terry
frisk. A Terry frisk is a type of investigative detention requiring reasonable
suspicion “that criminal activity is afoot and that ‘the individual whose
suspicious behavior he is investigating at close range is armed and presently
dangerous to the officer or to others.’” Commonwealth v. Guess, 53 A.3d
895, 901 (Pa. Super. 2012) (quoting Terry, 392 U.S. at 24). The purpose
_______________________
(Footnote Continued)
at the suppression hearing. The suppression hearing in this case post-dates
L.J., so L.J. is applicable here.
-5-
J-S49034-14
of a Terry frisk is not to discover evidence of a crime, but to protect the
police officer conducting the investigation. Id.; see also Commonwealth
v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014).
The reasonable suspicion necessary to conduct a Terry frisk and, in
fact, all investigative detentions
is a less demanding standard than probable cause not only in the
sense that reasonable suspicion can be established with
information that is different in quantity or content than that
required to establish probable cause, but also in the sense that
reasonable suspicion can arise from information that is less
reliable than that required to show probable cause.
Commonwealth v. Fell, 901 A.2d 542, 545 (Pa. Super. 2006) (quoting
Alabama v. White, 496 U.S. 325, 330 (1990)).
“The determination of whether an officer had reasonable suspicion that
criminality was afoot so as to justify an investigatory detention is an
objective one, which must be considered in light of the totality of the
circumstances.” Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011).
In assessing the totality of the circumstances, a court must give weight to
the inferences that a police officer may draw through training and
experience. Id. at 95. “Also, the totality of the circumstances test does not
limit our inquiry to an examination of only those facts that clearly indicate
criminal conduct. Rather, even a combination of innocent facts, when taken
together, may warrant further investigation by the police officer.”
Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004) (internal
quotation and alteration omitted); see also Scarborough, 89 A.3d at 684
-6-
J-S49034-14
(holding that the “single factor of the defendant keeping his hand in his
pocket after being asked to remove it” constituted reasonable suspicion to
stop and frisk).
Turning to the facts of this case, at 2:00 a.m. in a high-crime area,
Officer Devlin and his partner happened upon Appellee and another
individual standing over an unconscious man in the middle of the street.
Officer Devlin was concerned that the two men may have beaten up or
robbed the third man, and they may have been going through his pockets.
Officer Devlin noticed an object weighing down Appellee’s jacket pocket, and
began to pat down Appellee for safety. He immediately recognized that the
object was a gun, restrained Appellee, and took him into custody.
We hold the trial court erred as a matter of law in granting the
suppression motion. The trial court failed to consider the totality of the
circumstances, and give Officer Devlin the benefit of the inferences he drew
from those circumstances. The record shows that Officer Devlin reasonably
suspected that criminal activity was afoot and that Appellee was armed and
potentially dangerous.
The incident ending in Appellee’s arrest did not occur in a vacuum, and
the facts of the incident did not occur in isolation. Yet, that is how the
suppression court evaluated the incident and facts. Officer Devlin may have
been unsure whether Appellee had assaulted or robbed the unconscious
man. It could be, as the trial court proposed, that Appellee was merely a
Good Samaritan stopping to render aid. See N.T., 11/15/13, at 21. It is
-7-
J-S49034-14
possible that the unconscious man suffered a medical emergency, or had
been waylaid by someone else. Further, the item weighing down Appellee’s
right breast pocket could have been a book. “Of course, one can conceive of
innocent explanations for each one of these facts.” Rogers, 849 A.2d at
1190. “Yet, . . . reasonable suspicion does not require that the activity in
question must be unquestionably criminal before an officer may investigate
further. Rather, the test is what it purports to be—it requires a suspicion of
criminal conduct that is reasonable based upon the facts of the matter.” Id.
(emphasis in original). Potential innocent explanations for Appellee’s
conduct do not negate the reasonableness of Officer Devlin’s suspicion of
criminal activity, which even the suppression conceded as valid. See N.T.,
11/5/13, at 21 (“We also know he could have been trying to rob the guy . . .
.”).
The suppression court erred as a matter of law in granting Appellee’s
suppression motion. Under the totality of the circumstances, Officer Devlin
reasonably suspected criminal activity and that Appellee was armed and
potentially dangerous. His patting down of Appellee’s jacket leading to the
discovery of the firearm was not an unconstitutional search or seizure.
Accordingly, we reverse the suppression court’s order and remand for
further proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
-8-
J-S49034-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2014
-9-