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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
FREDDIE KING
Appellant No. 2080 EDA 2014
Appeal from the Judgment of Sentence June 26, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000712-2014
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 23, 2015
Appellant, Freddie King, appeals from the judgment of sentence
entered June 26, 2014, in the Court of Common Pleas of Philadelphia
County. No relief is due.
We take the underlying facts in this matter from the trial court’s Rule
1925(a) opinion.
On December 19, 2013, shortly after 7:00 p.m.,
Philadelphia Police Officers Devon Chadderton and his partner,
Officer Ryan Hamill, were on foot patrol in the area of 57 th and
Hoffman Streets in Philadelphia, when they observed [King]
approximately twenty feet away riding a bicycle south on 57th
Street. Officer Chadderton described the neighborhood as
having a high rate of gun, drug, and gang violence. At the time,
[King] had a dog on a leash trailing behind him as he rode down
the street. The officers observed [King] dragging the dog “like
literally head over heels until [the dog] could regain its own
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*
Retired Senior Judge assigned to the Superior Court.
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balance….” Instead of stopping after the dog stumbled, [King]
continued pedaling and dragged the dog behind him for
approximately thirty yards before the animal was able to regain
its footing.
Based upon their observations the two officers followed
[King] to cite him for cruelty to animals. [King] proceed to a
residence on Ashland Avenue, where the officers saw him
standing on the porch. The officers asked him if he had been
riding a bicycle and if he had a dog. [King] responded
affirmatively at which time the officers asked [King] to speak to
them. Officer Chadderton saw that [King] had blood on his lip
and smelled of alcohol.
As he approached the officers [King] did so hesitantly with
his body at a forty-five degree angle as if to hide something or
as if he was about to flee. Based upon these observations, the
officers asked [King] to exit the fence that surrounded the
property.
[King] complied with the officers’ request and produced his
identification card. Based on their observations, the officers
asked [King] to place his hands on the fence so that they could
perform a pat down of his clothing for their safety. Prior to
conducting the frisk, [King] was asked if he was armed. [King]
admitted that he had a gun in his pocket. Officer Chadderton
then observed a gun in [King’s] pocket and immediately
confiscated it.
Trial Court Opinion, 11/10/14 at 2-3.
King was subsequently arrested and charged with carrying a firearm
without a license, carrying a firearm on a public street, and cruelty to
animals.1 Prior to trial, King filed a motion to suppress physical evidence,
which the trial court denied. Following a bench trial, the trial court convicted
King of all charges. The trial court sentenced King to an aggregate term of
11½ to 23 months in prison. This timely appeal followed.
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1
18 Pa.C.S.A. §§ 6106, 6108, and 5511, respectively.
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King raises the following issues for our review.
1. Where police stopped appellant on his porch in order to issue
a citation for a non-violent summary offense, and appellant
behaved cooperatively throughout the detention, was he not
unconstitutionally frisked as police lacked reasonable
suspicion that he was armed and dangerous?
2. Where appellant, after having complied with a police order to
place his hands against a fence, was asked by an officer if he
had a weapon, did not his affirmative response constitute
mere acquiescence to the officer’s authority rather than
consent to be frisked?
Appellant’s Brief at 3.
We review the denial of a motion to suppress physical evidence as
follows.
Our 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.
[W]e 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 findings of the
suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal
conclusions based upon the facts.
Further, [i]t is within the suppression court’s sole province
as factfinder to pass on the credibility of witnesses and the
weight to be given their testimony.
Commonwealth v. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal
citations and quotations omitted).
The suppression court’s factual findings are supported by the record.
We therefore proceed to examine the propriety of the suppression court’s
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legal conclusions. Preliminarily, we note that King does not challenge the
constitutionality of his detention. See Appellant’s Brief at 14 n.4. Rather,
he argues that the police lacked reasonable suspicion to conduct a valid
frisk. We disagree.
We observe that—in this case—the issue of when the
“frisk” began is a pure question of law. See, e.g.,
Commonwealth v. Collins, 950 A.2d 1041, 1046
(Pa.Super.2008) (en banc) (determination of whether a
police/citizen interaction was a “mere encounter” or an
“investigative detention” is a question of law); see also
Crawford Cent. Sch. Dist. v. Commonwealth, 585 Pa. 131,
888 A.2d 616, 620 (2005) (“[s]ince the facts are undisputed, we
are left with a question of law”). Therefore, with respect to this
issue, our standard of review is de novo and our scope of review
is plenary. Commonwealth v. Bullock, 590 Pa. 480, 913 A.2d
207, 212 (2006).
As our Supreme Court has explained:
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. Stevenson, 560 Pa. 345, 744 A.2d 1261,
1264–1265 (2000) (internal citations and quotations omitted).
Commonwealth v. Clemens, 66 A.3d 373, 381 (Pa. Super. 2013).
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Instantly, the undisputed facts reveal that although King did indeed
cooperate with Officer Chadderton’s orders to approach and show
identification, his hesitant manner in doing so led the officer to believe that
King was about to flee. King’s behavior, coupled with the fact that the stop
occurred in a high crime area, led the officer to conclude that it was
necessary to conduct a frisk to ensure his safety. It is important to note,
however, that the frisk did not commence the moment Officer Chadderton
ordered King to place his hands on the fence so that he could perform the
pat down.
Indeed, by its very definition, the term “frisk” requires tactile
contact. See BLACK’S LAW DICTIONARY 692 (8th ed.2004) (defining
a “frisk” as “[a] pat-down search to discover a concealed
weapon.—Also termed pat-down.”) (emphasis added) (italics in
original); MERRIAM–WEBSTER’S COLLEGIATE DICTIONARY 502 (11th
ed.2003) (defining the noun “frisk” as “an act of frisking” and
the transitive verb “frisk” as “to search (a person) for something
(as a concealed weapon) by running the hand rapidly over the
clothing and through the pockets”); see also Terry [v. Ohio,
392 U.S. 1, 24–25, 88 S.Ct. 1868 (1968)] (defining a frisk as an
officer’s “carefully limited search of the outer clothing of [an
individual] in an attempt to discover weapons which might be
used to assault [the officer];” further reasoning that an officer's
justification for a “Terry frisk” must be greater than—or, at
least, in addition to—that required for a “Terry stop” because a
frisk is more intrusive than a detention).
Id. at 382.
What occurred here is that immediately prior to conducting the frisk,
Officer Chadderton asked King if he possessed a weapon, to which King
responded in the affirmative. At this point, Officer Chadderton certainly had
reasonable suspicion to conduct the ensuing protective search for the
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discovery of weapons.2 See id. at 382 (“[I]f 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.”). As King’s admission provided
Officer Chadderton with the requisite reasonable suspicion to conduct the pat
down, it is simply irrelevant whether the admission amounted to consent to
the search or “mere acquiescence to police authority.” Appellant’s Brief at
13. Accordingly, we find no error in the lower court’s denial of King’s
suppression motion.
Judgment of sentence affirmed.
Judge Wecht joins the memorandum.
Judge Strassburger files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2015
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2
We reiterate that King does not contest the constitutionality of his
detention. His argument on appeal focuses solely on the legality of the frisk.
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