Com. v. Warren, M. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL WARREN
Appellant No. 2246 EDA 2015
Appeal from the Judgment of Sentence June 25, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001483-2015
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 22, 2016
Appellant, Michael Warren, appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas after the trial court
convicted him of possession of a small amount of marijuana1 and possession
of drug paraphernalia.2 Appellant contends he was subject to an unlawful
stop without reasonable suspicion. We reverse.
On February 19, 2015, Appellant was arrested for the above offenses.
On May 13, 2015, Appellant filed a motion to suppress contending his arrest
resulted from an illegal seizure and search. Pre-Trial Mot., 5/13/13, at 1-2
(unpaginated). The trial court held a hearing on May 21, 2015, at which the
* Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(31).
2
35 P.S. § 780-113(a)(32).
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only evidence presented was the testimony of Upper Darby Police Officer
Michael DeHoratius. At the time of the hearing, Officer DeHoratius had been
a patrol officer for Upper Darby Police Department for three years, and spent
the previous seven years as a police officer in Tredyffrin Township. N.T.,
3/21/15, at 4-5. He received training in the packaging and recognition of
illegal narcotics and has been involved in “hundreds of arrests” during his
career. Id. at 5. In his experience patrolling the east side of Upper Darby,
he has “seen shootings, shots fired, aggravated assaults, guns, robberies,
burglaries, home invasions, typically violent crimes.” Id. at 6.
He testified on direct-examination, in relevant part, as follows:
Q. And around February 29, 2015, were you aware of any
incidents that were going on in specifically the area of
Clover Lane and Crosley . . . Road?
* * *
A. Yes. In and around that area there were businesses
being robbed at gunpoint. There was also pedestrians
being robbed. I believe three nights earlier I took a
robbery of a plow driver right at . . . Clover and
Greenwood a plow driver was robbed with an implied gun
in that area.
Q. And was that during that incident, that robbery, was
that person apprehended?
A. No.
Q. So they just gave you information on that robber?
A. That’s correct.
Q. And what information did you receive?
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A. There was two black males, both kind of generic
description of all dark clothing and skinny?
Q. All dark clothing and skinny?
A. Yes.
Q. Besides the one three [d]ays beforehand and you said
there were other robberies in the area?
A. Yes. The stores on Baltimore Pike which is probably a
quarter to half a mile from that area were being robbed by
males at gunpoint.
Q. And with a similar description?
A. Similar description, yes.
Q. And on that night around 9:00 . . . in the evening did
you observe anything at this time?
A. Yes. I was on patrol in the area specifically due to some
of the robberies and I observed a male kind of wandering
around the areas. He was later identified as [Appellant] . .
.
* * *
Q. . . . What exactly did you notice [Appellant] doing?
A. Well, it was February. It was a very cold winter and
there’s not much pedestrian traffic in that area as there is
during a spring, fall or summer time. I noticed that he
was walking in the area. He was in the middle of the
street. I then lost sight of him. I observed him then
walking on Clover Lane towards Rawling . . . I lost sight of
him and then I observed him walking back down Clover
Lane towards Crosley.
Q. When you say he was in the middle of the street, how
long was he in the middle of the street for?
A. I would say for a matter of seconds.
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Q. Was he doing anything while he was – was he just
walking straight ahead?
A. No. The first time I observed him he was just kind of
looking around.
Q. Looking around. And then you lost him a couple times
you said, correct?
A. Yes. This was over a time about between 10 and 20
minutes.
Q. Ten and 20 minutes. And then you observed—did you
observe him doing anything else? Was he just walking by
himself or—
A. No. One of the last times I observed him walking down
Clover Lane, he’d be walking east, he was starting to
become very close to another male that was walking down
the street to the rear of him.
Q. How close would you say?
A. I would say within a matter of feet.
Q. One foot, two feet, three feet?
A. I would say within three to five feet. Definitely closer
than anybody would typically walk behind another person.
Q. And he was behind the person?
A. Yes.
Q. And then what did you see – what did you do after you
saw that?
A. Well, at that point, I decided to go stop and find out
what was going on and I had to drive down another one-
way street and then come back and drive up Clover which
was one-way.
Q. Okay. And then did you do that?
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A. Yes. So at that point [Appellant] was stopped on the
street.
Q. Okay. And was there only the one pedestrian you saw
him walk by or was there anyone else?
A. No, just the one.
Q. Okay. And then so you stopped and what happened
when you stopped?
A. I stopped him. I asked him not to move. He
immediately was patted—when I observed him he had a
winter coat on and kind of the nature of the winter coat he
had bulky pockets. And at that point for my safety he was
patted down for weapons. When he was patted down for
weapons, I felt in his right pocket two small glass
containers which from my training and experience I knew
it’s typical for packaging illegal narcotics. After the pat-
down for weapons was done they were seized and in them
was a small amount of marijuana.
Id. at 7-10.
He further testified that he personally witnessed a robbery of a woman
in Upper Darby, approximately one and one-half to two miles from where he
stopped Appellant, two-and-one-half years before. Id. at 11. He described
Appellant as wearing “dark clothing” the night he was stopped and agreed
with the Commonwealth that the suspects in the recent robbery, three days
prior, were described as wearing “dark clothing.” Id. at 11-12.
On cross-examination, Officer DeHoratius reiterated what drew his
attention to Appellant: “he originally caught my attention by walking
throughout the area while it was cold. It was in the middle of February and
again he caught my attention . . . by walking a short distance behind
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somebody.” Id. at 16. He could not recall a description of the individual he
observed Appellant was near, and he testified he did not “believe” Appellant
made any movement toward the individual. Id.
With regard to his decision to pat down Appellant, he testified as
follows.
Q. . . . And you indicated that you ended up patting him
down for your safety, correct?
A. Yes.
Q. And that was based on the fact that there were these
robbery reports in the area?
A. Correct.
Q. And you also testified that he had a winter coat on,
correct?
A. Yes.
Q. And it’s cold outside, its February?
A. Yeah, it’s the middle of February during the very cold
winter we just had.
Id. at 19.
The trial court denied Appellant’s motion, and Appellant proceeded
immediately to a stipulated-bench trial. Id. at 24. The Commonwealth and
Appellant stipulated that the glass vials seized from Appellant contained
marijuana, and the trial court found Appellant guilty of the above crimes.
Id. at 29, 32; Trial Ct. Order, 5/21/15.
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On June 25, 2015, the trial court sentenced Appellant to fifteen to
thirty days’ imprisonment on possession of small amount of marijuana and a
consecutive term of time-served to six months’ probation on drug
paraphernalia. Sent. Order, 6/25/15. Appellant filed a timely notice of
appeal on July 23, 2015. Appellant filed a court-ordered Pa.R.A.P. 1925(b)
statement on August 13, 2015, and the trial court issued a responsive
opinion on August 28, 2015. The trial court concluded that Officer
DeHoratius possessed reasonable suspicion that criminal activity was afoot.
Trial Ct. Op., 8/28/16, at 6.
On appeal, Appellant raises the following issue:
Whether the [trial c]ourt erred in denying [Appellant’s]
motion to suppress evidence where the stop in question,
as well as the subsequent search of his person, violated
the precepts of Terry v. Ohio[, 392 U.S. 1 (1968)] and,
as such, violated his rights under the Fourth and
Fourteenth Amendments of the United States Constitution,
and Article 1, Section 8 of the Pennsylvania Constitution?
Appellant’s Brief at 5.
Appellant argues Officer DeHoratius “detained [Appellant] without
reasonable suspicion that criminal activity was afoot and patted him down
without reasonable suspicion that he was armed and dangerous.” Id. at 11.
Specifically, he contends the stop was “based on nothing more than a
hunch” and Officer DeHoratius “cited no specific or articulable facts to
establish any kind of belief that [Appellant] was armed and dangerous.” Id.
at 18-19. Appellant further contends the seizure of the items in his pocket
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was impermissible because their incriminating nature was not immediately
apparent to Officer DeHoratius. Id. at 22-28. For the reasons that follow,
we agree the trial court erred in denying Appellant’s suppression motion.
Our standard of review in addressing a challenge to the
denial of a suppression motion is
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. Because the Commonwealth
prevailed before the suppression court, we may
consider only the evidence of the Commonwealth
and so much of the evidence for the defense as
remains uncontradicted when read in the context of
the record as a whole. Where the suppression
court’s factual findings are supported by the record,
we are bound by these findings and may reverse
only if the legal conclusions are erroneous. The
suppression court’s legal conclusions are not binding
on an appellate court, whose duty it is to determine
if the suppression court properly applied the law to
the facts. Thus, the conclusions of law of the courts
below are subject to our plenary review.
Commonwealth v. Jones, . . . 988 A.2d 649, 654 ([Pa.]
2010) . . . . Moreover, appellate courts are limited to
reviewing only the evidence presented at the suppression
hearing when examining a ruling on a pre-trial motion to
suppress. See In re L.J., . . . 79 A.3d 1073, 1083-87
([Pa.] 2013).
Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014), appeal
denied, 117 A.3d 296 (Pa. 2015).
The Fourth Amendment of the Federal Constitution
provides, “the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated. . . .” U.S.
Const. amend. IV. Likewise, Article I, Section 8 of the
Pennsylvania Constitution states, “[t]he people shall be
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secure in their persons, houses, papers and possessions
from unreasonable searches and seizures. . . .” Pa. Const.
Art. I, § 8. Under Pennsylvania law, there are three levels
of encounter that aid courts in conducting search and
seizure analyses.
The first of these is a “mere encounter” (or request
for information) which need not be supported by any
level of suspicion, but carries no official compulsion
to stop or respond. The second, an “investigative
detention” must be supported by reasonable
suspicion; it subjects a suspect to a stop and period
of detention, but does not involve such coercive
conditions as to constitute the functional equivalent
of arrest. Finally, an arrest or “custodial detention”
must be supported by probable cause.
Commonwealth v. Williams, 73 A.3d 609, 613 (Pa.
Super. 2013) (citation omitted), appeal denied, . . . 87
A.3d 320 ([Pa. 2014). . . .
The Fourth Amendment permits brief investigative stops[3]
. . . when a law enforcement officer has a particularized
and objective basis for suspecting the particular person
stopped of criminal activity. It is axiomatic that to
establish reasonable suspicion, an officer must be able to
articulate something more than an inchoate and
unparticularized suspicion or hunch. Unlike the other
amendments pertaining to criminal proceedings, the
Fourth Amendment is unique as it has standards built into
its text, i.e., reasonableness and probable cause. See
generally U.S. Const. amend. IV. However, as the
Supreme Court has long recognized, Terry v. Ohio, . . . is
an exception to the textual standard or probable cause. A
suppression court is required to take[] into account the
totality of the circumstances—the whole picture. When
conducting a Terry analysis, it is incumbent on the
suppression court to inquire, based on all of the
3
The parties agree Appellant was subjected to an investigative stop, which
requires reasonable suspicion. See Appellant’s Brief at 11; Commonwealth’s
Brief at 8-9.
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circumstances known to the officer ex ante, whether an
objective basis for the seizure was present. In addition, an
officer may conduct a limited search, i.e., a pat-down of
the person stopped, if the officer possesses a reasonable
suspicion that the person stopped may be armed and
dangerous.
Commonwealth v. Carter, 105 A.3d 765, 768-69 (Pa. Super. 2014) (en
banc) (some quotation marks and citations omitted), appeal denied, 117
A.3d 295 (Pa. 2015).
Review of an officer’s decision to frisk for weapons
requires balancing two legitimate interests: that of the
citizen to be free from unreasonable searches and
seizures; and that of the officer to be secure in his
personal safety and to prevent harm to others. To conduct
a limited search for concealed weapons, an officer must
possess a justified belief that the individual, whose
suspicious behavior he is investigating at close range, is
armed and presently dangerous to the officer or to others.
In assessing the reasonableness of the officer’s decision to
frisk, we do not consider his unparticularized suspicion or
hunch, but [rather] . . . the specific reasonable inferences
which he is entitled to draw from the facts in light of his
experience.
Commonwealth v. Zhahir, 751 A.2d 1153, 1158 (Pa. 2000) (citations and
quotation marks omitted).
We conclude the trial court erred in determining there was reasonable
suspicion to subject Appellant to an investigative stop and search. See
Ranson, 103 A.3d at 76. Instantly, the uncontradicted testimony of Officer
DeHoratius reveals three days before he encountered Appellant, there was a
robbery reportedly committed by “two black males” who were “skinny” and
wearing “all dark clothing.” N.T. at 7. On February 19, 2015, he observed
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Appellant “for a matter of seconds” walking in the street. Id. at 8. Officer
DeHoratius surveyed the area for approximately ten to twenty minutes after
initially observing Appellant and, at times, lost sight of Appellant. Id. at 9.
He observed Appellant walk “within three to five feet” of another individual
and “at that point[,] [he] decided to . . . stop” Appellant. Id. Officer
DeHoratius testified the reason his attention turned to Appellant was
because it was cold outside, but the officer observed that he had a winter
coat and reasoned, “it’s the middle of February during the very cold winter
we just had.” Id. at 16, 19. Further, Officer DeHoratius did not articulate
any suspicious or furtive movements by Appellant, with the exception of
“walking a short distance behind somebody.” Id. at 16.
Under the totality of the circumstances, there was no objective basis
for the stop and search of Appellant’s person. See Carter, 105 A.3d at 768-
69. Moreover, the fact that Appellant wore a coat during “the very cold
winter” is insufficient to establish a reasonable suspicion that he was armed
and dangerous. See id.; N.T. at 16. Officer DeHoratius’ testimony failed to
demonstrate that his investigation of Appellant’s “suspicious behavior [that]
he [was] investigating at close range” led him to the justified belief that
Appellant was armed and dangerous.4 See Zhahir, 751 A.2d at 1158.
4
We recognize Appellant was in the vicinity where robberies had recently
been reported. However, we are unpersuaded that the generic description
of “two black males” wearing dark clothing bears much weight in a
(Footnote Continued Next Page)
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Accordingly, we reverse the trial court’s denial of Appellant’s suppression
motion, vacate the judgment of sentence, and remand for proceedings
consistent with this memorandum.5
Judgement of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judge Shogan joins the Memorandum.
Judge Mundy notes her dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2016
_______________________
(Footnote Continued)
reasonable suspicion inquiry when the generic description was reported
three days prior to Appellant’s encounter with police. Cf. In re D.M., 727
A.2d 556, 557-58 (Pa. 1999) (finding reasonable suspicion to stop the
appellant when he and “companions matched the number of suspects . . . ,
they matched the race of the suspects; they were the only individuals
observed in the vicinity of the robbery; they were seen a mere one-half
block away within approximately one minute of the crime; and they
acted evasively when they saw the police vehicle.” (emphasis added)) .
5
Because we conclude Officer DeHoratius subjected Appellant to an
unconstitutional stop and search, we need not address the portion of
Appellant’s argument pertaining the incriminating nature of the items seized.
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