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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DARREA LAWRENCE
Appellee No. 604 EDA 2016
Appeal from the Order February 1, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007113-2015
BEFORE: BOWES AND MOULTON, JJ., AND STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED DECEMBER 16, 2016
The Commonwealth appeals from the February 1, 2016 order granting
Darrea Lawrence’s motion to suppress. We reverse.
The following facts were adduced by the Commonwealth. On May 30,
2015, at approximately 8:50 p.m., Philadelphia police officer Edward Oleyn
responded to a burglary. When he arrived, another patrol unit was present,
and that officer was speaking to the victim in front of her residence. As the
burglary victim spoke with the other officer, Appellee came into view further
up the street walking toward the scene of the incident. The burglary victim
observed Appellee approaching her position, pointed him out to police, and
stated that Appellee was violating the terms of a protection from abuse
(“PFA”) order by nearing her residence.
* Former Justice specially assigned to the Superior Court.
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Upon hearing that Appellee was in violation of a PFA, Officer Oleyn and
his partner advanced toward him. When Appellee observed the officers
proceeding in his direction, he abruptly stopped and retreated down the
street. Officer Oleyn directed Appellee to stop, but he did not immediately
do so. As he withdrew, Appellee repeatedly reached for his right-hand pants
pocket. The officer then apprehended Appellee and immediately conducted
a pat-down search. Officer Oleyn recovered a silver handgun from
Appellee’s pocket, and placed him under arrest.1
Based on the foregoing, the Commonwealth charged Appellee with
firearms not to be carried without a license and carrying firearms on public
streets or public property in Philadelphia. Appellee filed a pre-trial motion to
suppress the evidence against him. A suppression hearing was held on
February 1, 2016, and after hearing Officer Oleyn’s testimony, the trial court
granted Appellee’s motion. This timely appeal followed. The Commonwealth
complied with the trial court’s directive to file a Rule 1925(b) concise
statement of errors complained of on appeal, and the trial court authored its
Rule 1925(a) opinion. This matter is now ready for our review.
The Commonwealth presents one question for our consideration: “Did
the lower court err in suppressing [Appellee’s] handgun on the basis the
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1
Subsequent to his arrest, Officer Oleyn discovered there was no protection
from abuse order in place against Appellee.
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police lacked reasonable suspicion to frisk [Appellee] where a reliable
informant told the officers he was in violation of a protection from abuse
order, he disregarded an officer’s instruction to stop, and repeatedly reached
into his pants pocket?” Commonwealth’s brief at 3.
This Court reviews the grant of a suppression motion under well-
established principles. We consider the evidence of the defendant, as the
prevailing party below, and any evidence of the prosecution that is
uncontradicted in the context of the suppression record. Commonwealth
v. Walls, 53 A.3d 889, 892 (Pa.Super. 2012) (citation omitted). We are
bound by the factual findings of the suppression court where the record
supports those findings and may only reverse when the legal conclusions
drawn from those facts are in error. Id. We are not bound by the legal
conclusions of the suppression court. Id.
Initially, we observe that Appellee concedes his seizure by the police
amounted to an investigatory stop, and that it was justified by reasonable
suspicion. It is well established that a police officer may conduct a brief
investigatory stop of an individual if the officer observes conduct which leads
him to reasonably conclude, in light of his experience, that criminal activity
may be afoot. Terry v. Ohio, 392 U.S. 1 (1968); Commonwealth v.
Lewis, 636 A.2d 619, 623 (Pa. 1994). The Commonwealth contends, on the
other hand, that the immediate search of Appellee’s person was supported
by reasonable suspicion.
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A law enforcement officer may pat down an individual whose
suspicious behavior he is investigating on the reasonable belief that the
individual is presently armed and dangerous. Commonwealth v. Gray,
896 A.2d 601, 605-606 (Pa. 2006) (citing Terry, supra at 24). A police
officer may conduct such a so-called “Terry frisk” for weapons if
he or she reasonably fears that the person with whom he or she
is dealing may be armed and dangerous. The officer need not be
absolutely certain that the individual is armed; the issue is
whether a reasonably prudent man in the circumstances would
be warranted in the belief that his safety or the safety of others
was in danger. The existence of reasonable suspicion to frisk an
individual must be judged in light of the totality of the
circumstances confronting the police officer.
Commonwealth v. Cooper, 994 A.2d 589, 592-593 (Pa.Super. 2010)
(citation omitted). In order to justify a Terry frisk, “the police need to point
to specific and articulable facts indicating the person they intend to frisk may
be armed and dangerous; otherwise, the talismanic use of the phrase ‘for
our own protection,’ a phrase invoked by the officers in this case, becomes
meaningless.” Id. at 593 (citation omitted).
The Commonwealth alleges that the trial court’s determination that the
police lacked reasonable suspicion to frisk Appellee ignored the totality of
the circumstances. In support of this position, the Commonwealth highlights
that the burglary victim was known to police, and her statement that
Appellee was allegedly in violation of a PFA was therefore reliable. It asserts
that a PFA implied Appellee had a history of violent behavior. Finally, the
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Commonwealth maintains that Appellee’s evasive conduct coupled with his
repeated placement of his hand in his pants pocket supplied reasonable
suspicion for the Terry frisk.
In finding that the pat-down of Appellee’s person was not supported by
reasonable suspicion, the trial court determined the police did not have
specific and articulable facts to reasonably believe Appellee was armed and
presently dangerous. The court notes that Appellee was not connected to
the burglary call that first brought law enforcement to the area.
Immediately prior to the search, the police knew only that Appellee may
have been in violation of a PFA, and that he began walking away when
Officer Oleyn approached him. The court emphasized that there was no
other information indicating Appellee possessed a weapon. Hence, it
concluded that, in light of the totality of the circumstances, there was
insufficient evidence for a reasonable police officer to objectively conclude
that Appellee was armed and dangerous at the time Officer Oleyn
apprehended, and simultaneously frisked, Appellee. We disagree.
As the trial court relied on Cooper, supra, to support its position, we
begin our analysis there. In Cooper, police officers patrolling a
neighborhood received complaints that somebody was stealing copper from
dumpsters in the area. That evening, two officers observed Cooper near a
dumpster. When they exited their patrol car, Cooper turned away from the
officers and reached for his pocket. The officers ordered Cooper to stop and
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conducted a pat-down search for the officers’ safety. The officers discovered
marijuana during the frisk, and after charges were filed, Cooper moved to
suppress that evidence.
In finding that Cooper’s movement toward his pocket in broad daylight
did not provide the officers with sufficient reason to believe that he was
armed and dangerous, we noted that “the officer cited no other reason to
believe that [Cooper], even if he was suspected of stealing trash or copper,
was reaching for a weapon.” Cooper, supra at 594. The trial court relied
on our decision in Commonwealth v. Carter, 779 A.2d 591 (Pa.Super.
2001), for the proposition that officers would be justified in patting down an
individual who puts his hand in his pocket during an encounter. We
cautioned that the Carter court “did not ipso facto sanction the frisking of a
defendant who puts his hand in his pocket.” Cooper, supra at 594.
Contrary to the trial court’s holding, we find the dispute herein
analogous to Commonwealth v. Wilson, 927 A.2d 279 (Pa.Super. 2007).
In Wilson, an officer observed a vehicle failing to stop at a stop sign at
approximately 7:43 p.m. After initiating a traffic stop, the officer observed
that the defendant appeared nervous. The defendant was seen repeatedly
checking his mirrors. In addition, he had placed his hand in his pockets.
After conducting a pat-down search, the officer discovered crack cocaine in
the defendant’s pocket. On appeal, the defendant challenged the Terry frisk
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asserting that the officer lacked reasonable suspicion that he was armed and
dangerous.
In Wilson, this Court found that the officer had reasonable suspicion
to perform a pat-down search of the defendant. The officer testified that the
defendant appeared nervous and fidgety. During the course of the traffic
stop, the officer noted that the defendant had placed his hands in his pocket,
“like he was reaching around for something[.]” Id. at 284. This behavior
raised the officer’s suspicion since, in his experience, “people usually put
their hands in their pocket to conceal a weapon, among other things.” Id.
Based on the defendant’s apprehensive gestures and movements, and the
placement of his hand in his pocket, we held that the officer could
reasonably believe that his safety was in jeopardy. Hence, he was justified
in performing a Terry frisk for his own safety.
Instantly, the Commonwealth adduced evidence that officers
investigating an unrelated burglary were made aware by a known individual
that Appellee was purportedly in violation of a PFA. Upon observing police
approaching his position, Appellee abruptly turned, walked away from police,
and repeatedly placed his hand in his pocket. While walking away, Appellee
ignored commands by Officer Oleyn to stop. Upon observing Appellee’s
behavior, Officer Oleyn performed the Terry frisk “for officer safety.” N.T.
Suppression Hearing, 2/1/16, at 6.
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The allegation, from a reliable source, that Appellee was in violation of
a PFA indicated to Officer Oleyn that Appellee had a history of violent
conduct. Therefore, it was reasonable for the officer to suspect, at the
outset, that Appellee posed a threat to officer safety. Furthermore, as in
Wilson, supra, Appellee’s behavior evinced articulable signs that would lead
an officer to reasonably believe he was armed and dangerous. Appellee
attempted to evade police and ignored repeated orders to stop. While
walking away from the police, Appellee continually placed his hand in his
right pocket. Appellee’s suspicious behavior supported the inference that he
was concealing a weapon in that pocket, and therefore, based on the totality
of the circumstances, Officer Oleyn was justified in subjecting him to a pat-
down search.
Order reversed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
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