Com. v. Rowan, T. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
TIFFANY ROWAN, :
: No. 379 EDA 2016
Appellant :
Appeal from the Judgment of Sentence January 21, 2016
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0003672-2014
BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.
DISSENTING MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 28, 2018
In the case sub judice, as the Majority properly holds, Officer Anthony
Space had the authority to order the passengers, including Appellant Tiffany
Rowan, to exit the subject vehicle and conduct a Terry1 frisk. However,
Officer Space did not exceed the scope of a permissible pat-down or
improperly question Appellant about the contents of her pocket. Accordingly,
as the suppression court properly denied Appellant’s motion to suppress, I
would affirm her judgment of sentence, and thus, respectfully dissent.
As the suppression court relevantly held:
[A]fter feeling what he believed to be narcotics packaging,
Officer Space asked Appellant what was in her pocket. When
Appellant replied that it was money, based upon Officer Space’s
training and experience, he believed her answer to be false. After
____________________________________________
1 Terry v. Ohio, 392 U.S. 1 (1968).
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* Former Justice specially assigned to the Superior Court.
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confronting Appellant about the falsehood, Officer Space observed
Appellant begin to back away, blading her body in such a way that
Officer Space believed she was about to run. It was at this point
that Officer Space seized Appellant by the arm, and she then
admitted to him that the lump he had felt in her pocket was
narcotics.
Lower Court Opinion, filed 5/31/17, at 17-18.
The Majority indicated that “when Officer Space, while feeling the lump
during the pat-down search, asked [Appellant] ‘what it was,’ and physically
restrained [Appellant], we conclude that [Appellant] was, at that point,
subject to a custodial interrogation.” Majority’s Memorandum at 14.
However, in making this determination, the Majority has not properly applied
this Court’s standard of review.
[We are] limited to determining whether the suppression
court’s factual findings are supported by the record and whether
the legal conclusions drawn from those facts are correct. . . Where
the suppression court’s factual findings are supported by the
record, the appellate court is bound by those finding and may
reverse only if the court’s legal conclusions are erroneous.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (quotation
omitted).
Here, the suppression court found the officer first asked Appellant “what
it was” and grabbed her arm only after she lied to him and tried to flee. The
record supports the suppression court’s factual finding. Thus, at the point
when the officer asked “what it was,” and concluded Appellant lied when she
responded “money,” Appellant was not in custody or deprived of her freedom
in any significant way. As such, she was not subjected to custodial
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interrogation. See Commonwealth v. Ingram, 814 A.2d 264 (Pa.Super.
2002) (discussing custodial interrogation).
Officer Space grabbed Appellant’s arm after Appellant lied about the
contents of her pocket and attempted to flee. Still, under prevailing case law,
Appellant was not in custody, or the functional equivalent thereof, when
Officer Space grabbed her arm. Commonwealth v. Valentin, 748 A.2d 711
(Pa.Super. 2000) (where officer held the appellant’s clothing during the
detention and directed him to place his hands on a nearby car it was not the
functional equivalent of an arrest). Appellant then stated she had drugs in
her pocket, and now supported by probable cause, Officer Space properly
arrested her, as well as searched her incident to the arrest. See id. (where
the appellant admitted he had drugs in his pocket the officer had probable
cause to arrest).
For all of the foregoing reasons, contrary to the Majority’s substitution
of their own determinations for that of the suppression judge, I conclude the
suppression judge properly denied Appellant’s motion to suppress, and I would
affirm Appellant’s judgment of sentence. Therefore, I respectfully dissent.
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