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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KENNETH DEVORE, : No. 1985 EDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, June 24, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0010504-2012
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 10, 2015
Kenneth Devore challenges the judgment of sentence entered on
June 24, 2013, in the Court of Common Pleas of Philadelphia County. We
affirm.
The facts, as summarized by the trial court, are as follows:
At the [suppression] motion hearing, the
Commonwealth presented the testimony of
Philadelphia Police Officer George Gee, establishing
the following. On August 17, 2012 around 4:25 PM,
Officer Gee and his partner were patrolling the high
crime area of 2000 South Alden Street in
Philadelphia’s 12th Police District, as part of their
routine tour of duty in a marked police vehicle. At
that time, the officer came in contact with
[appellant] who was standing with a crowd of males
that the officers intended to disperse, on the
2000 block of South Cecil Street. [Appellant] looked
in the officer’s direction before walking away
eastbound on Greenway Street and adjusting his
waistband on the right side. On the stand, the
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officer demonstrated this “adjusting” motion by
taking his right hand, grabbing the right front of his
waistband and making a circular motion. The officer
continued to observe [appellant] for a few more
minutes and during that time, [appellant] again
stopped, raised up his right foot, adjusted his pants
in a similar manner, and looked in the officer’s
direction for the second or third time. As the officer
proceeded in [appellant’s] direction, [appellant]
continued onto the 2000 block of Alden Street,
adjusted his waistband one more time in the manner
previously described. At that time, the officer then
told [appellant] to “come here, and [appellant] came
to [him].” Believing that [appellant] was carrying a
firearm on his person, the officer then touched and
recovered a Colt .38 revolver, with the serial number
defaced, containing six live rounds, from the area
where he had seen [appellant] adjusting himself.
Officer Gee testified credibly that he had been
assigned to this area . . . for his entire sixteen year
career. He described it as a “very high crime area”
explaining that prior to this incident, while patrolling
the same block, he had made two other gun arrests
and been the first responder on multiple shootings.
The officer testified that in his vast experience in this
area, he has had at least fifty opportunities to
observe individuals making similar movements as
those made by [appellant] in “the exact same way”
that resulted in the recovery of a firearm. His
suspicion of [appellant] was additionally heightened
from his own knowledge of carrying a firearm as a
police officer. A gun being carried in a holster, as he
does while on duty, does not require any adjustment
of the waistband. From reliable experience, he
knows that “when [most] people adjust their pants,
they grab [them] from the sides and pull up, not
[just] a specific area [as the appellant did in this
instance].”
Trial court opinion, 4/3/14 at 2-3 (citations omitted).
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Appellant was arrested and charged with multiple counts of violating
the Uniform Firearms Act. On January 22, 2013, appellant litigated a motion
to suppress. The trial court denied the motion to suppress and found that,
based on Officer Gee’s experience, he had reasonable suspicion to believe
appellant had a weapon. On May 10, 2013, a bench trial was conducted and
the Commonwealth relied on the above-stated evidence. Appellant was
convicted of the following firearms offenses: possessing a firearm while
prohibited from doing so, possessing a firearm with an altered manufacturer
number, firearm not to be carried without a license, and carrying a firearm
on the public streets of Philadelphia. Thereafter, appellant was sentenced to
five to ten years of probation for carrying a firearm while prohibited,
followed by consecutive terms of two years’ probation for possessing a
firearm with an altered manufacturer number and three years’ probation for
carrying a firearm without a license. The court imposed a concurrent term
of probation for the remaining offense.
A timely notice of appeal was filed, and the following issues have been
presented for our review:
1. Did the lower court err in denying [appellant’s]
motion to suppress where the Commonwealth
failed to establish that the police had specific
and articulable facts upon which to reasonably
believe that criminal activity was afoot to
support the investigatory detention of
[appellant]?
2. Did the lower court err in denying [appellant’s]
motion to suppress where the Commonwealth
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failed to show that [appellant] was armed and
dangerous and[,] thus[,] lawfully subjected to
a Terry frisk?
Appellant’s brief at 4.
The role of this court in reviewing the denial of a suppression motion is
well established:
An appellate court’s standard of review in
addressing a challenge to a trial court’s
denial of a suppression motion is limited
to determining whether the factual
findings are supported by the record and
whether the legal conclusions drawn
from those facts are correct. Since the
prosecution prevailed in the suppression
court, we may consider only the evidence
of the prosecution 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
record supports the factual findings of
the trial court, we are bound by those
facts and may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Stevenson, 894 A.2d 759, 769
(Pa.Super.2006) (citation omitted). Although we are
bound by the factual and the credibility
determinations of the trial court which have support
in the record, we review any legal conclusions
de novo. Commonwealth v. George, 878 A.2d
881, 883 (Pa.Super.2005), appeal denied, 586 Pa.
735, 891 A.2d 730 (2005).
Commonwealth v. Wells, 916 A.2d 1192, 1194-1195 (Pa.Super. 2007).
We will address appellant’s two claims together as they essentially
both challenge the same concern: that the officer did not have reasonable
suspicion to justify a stop and frisk. There is no dispute between the parties
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that the frisk at issue constituted an investigative detention in the nature of
a protective weapons search which is governed by Terry v. Ohio, 392
U.S. 1 (1968), and requires that police have reasonable suspicion either that
criminal activity was afoot or that appellant was armed and dangerous:
It is well-established that a police officer may
conduct a brief investigatory stop of an individual if
the officer observes unusual conduct which leads him
to reasonably conclude that criminal activity may be
afoot. Moreover, if the officer has a reasonable
suspicion, based on specific and articulable facts,
that the detained individual may be armed and
dangerous, the officer may then conduct a frisk of
the individual’s outer garments for weapons. Since
the sole justification for a Terry search is the
protection of the officer or others nearby, such a
protective search must be strictly limited to that
which is necessary for the discovery of weapons
which might be used to harm the officer or others
nearby. Thus, the purpose of this limited search is
not to discover evidence, but to allow the officer to
pursue his investigation without fear of violence.
Commonwealth v. Clemens, 66 A.3d 373, 381 (Pa.Super. 2013), quoting
Commonwealth v. Stevenson, 744 A.2d 1261, 1264-1265 (Pa. 2000).
Reasonable suspicion is determined by the totality of the circumstances. Id.
As such, each case is fact-specific, but a number of common circumstances
have been identified; and where a sufficient number of them coalesce,
reasonable suspicion will be found.
Here, we conclude that the investigatory detention was supported by
reasonable suspicion of criminal activity and a justifiable belief in the need to
protect officer safety. Officer Gee, a 16-year veteran in the police force,
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testified that he was patrolling with his partner in the high-crime area of
2000 South Alden Street in Philadelphia’s 12th Police District in a marked
police vehicle. The officers stopped their vehicle to disperse a group of
males; Officer Gee observed appellant, who was in the crowd, continually
looking in his direction while adjusting his waistband. (Notes of testimony,
1/22/13 at 8-9.) Appellant turned and walked away; he stopped soon after
and adjusted the right side of his pants, looked back and adjusted the right
side of his pants again in the exact same motion. (Id. at 9.) Officer Gee
described, and demonstrated for the court, the manner in which appellant
adjusted his waistband, which led him to believe he was in possession of a
handgun while in a public area. The officer testified that based on his years
of experience, appellant’s motion was consistent with a concealed weapon.
(Id. at 13.)
We have previously determined that “if a suspect engaged in hand
movements that police know, based on their experience, are associated with
the secreting of a weapon, those movements will buttress the legitimacy of a
protective weapons search of the location where the hand movements
occurred.” In Interest of O.J., 958 A.2d 561 (Pa.Super. 2008) (en banc).
Moreover, “whether the defendant was located in a high crime area similarly
supports the existence of reasonable suspicion.” Commonwealth v.
Foglia, 979 A.2d 357, 361 (Pa.Super. 2009) (en banc), appeal denied,
990 A.2d 727 (Pa. 2010).
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While none of these factors, by themselves, gives rise to reasonable
suspicion or is necessarily illegal in nature, when viewed in light of the
totality of the circumstances, the officer’s suspicion of appellant was
reasonable. See Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999)
(circumstances which alone would be insufficient may combine to show
reasonable suspicion).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
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