J-S49024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
DAVID WILLIS GROFF
Appellant No. 1554 MDA 2017
Appeal from the Judgment of Sentence imposed September 27, 2017
In the Court of Common Pleas of Lancaster County
Criminal Division at No: CP-36-CR-0004088-2016
BEFORE: SHOGAN, J., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 30, 2018
Appellant, David Willis Groff, appeals from the judgment of sentence
imposed on September 27, 2017 in the Court of Common Pleas of Lancaster
County, following his conviction of possession with intent to deliver (“PWID”)
and possession of drug paraphernalia.1 Appellant asserts trial court error for
refusing to suppress evidence taken from him following an unlawful detention
and illegal search. Following review, we reverse and remand.
In its Rule 1925(a) opinion, the trial court stated, “Here, the officer had
articulable facts that supported the stop of [Appellant].” Trial Court Opinion,
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* Former Justice specially assigned to the Superior Court.
1 35 P.S. §§ 780-113(a)(30) and 780-113(a)(32), respectively.
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1/2/18, at 3 (unnumbered). The court proceeded to summarize the facts of
the case, with references to the suppression hearing transcript, as follows:
Officers Michael Zimmerman and Jed Custer were dispatched at
1:45 a.m. [on March 13, 2016,] after receiving a call from a
private citizen, Donald Meier, who observed a man laying (sic) in
the middle of the road. Mr. Meier reported that he rolled down his
window and asked the man if he was okay, and the man shouted
an obscenity at him and ran behind a nearby building. Mr. Meier
described the man as a white scruffy male wearing a coat and hat.
About two minutes after talking to Mr. Meier, Officer Custer
located two men behind a nearby bank, both matching the
description that Mr. Meier gave to the Officers.
Officer Zimmerman spoke with [Appellant] and testified that he
“seemed extremely nervous” and was “also getting very agitated”
and pacing back and forth. After checking warrants, Officer
Zimmerman went back to speak with [Appellant], and noticed the
smell of burnt marijuana. Officer Zimmerman then asked
[Appellant] if he had any marijuana, and [Appellant] pulled out a
glass pipe that appeared to have marijuana residue in it. After
finding the glass pipe, Officer Zimmerman placed [Appellant]
under arrest and searched him incident to arrest. Officer
Zimmerman found two clear plastic bags containing
methamphetamine, and a small digital scale in [Appellant’s] left
pocket.
Trial Court Opinion, 1/2/18, at 3 (unnumbered) (emphasis added) (references
to notes of testimony omitted).2
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2 The court’s factual findings are set forth in full in the above-quoted excerpt
from the court’s Rule 1925(a) opinion. We note the court did not enter a
statement of findings of fact and conclusions of law at the conclusion of the
suppression hearing in accordance with Pa.R.Crim.P. 581(I). However, where
the suppression court fails to abide by Rule 581(I), we may look to the trial
court’s Rule 1925(a) for its findings of fact as well as its conclusions of law.
See Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002)
(en banc).
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Appellant was arrested and charged with PWID (methamphetamine) and
possession of drug paraphernalia. In a counseled omnibus pretrial motion
filed on October 6, 2016, Appellant sought to suppress identification
information and statements Appellant provided to police at the time of his
arrest as well as items located on his person, i.e., a glass smoking device
containing suspected marijuana residue, a digital scale, and a pouch
containing suspected methamphetamine. He also sought suppression of
statements made subsequent to his arrest. The court conducted a suppression
hearing on July 10, 2017.
At the conclusion of the hearing, the court heard argument and then
denied the suppression motion, announcing:
Now, I mean, I’ll allow this is a close call, but honestly, I think the
hour of the morning, the location they’re found, it seems to me
that it was reasonable for the officers to look into this further to
see whether there was anything unlawful going on here. And as
they did, they determined certain things that, in my opinion, don’t
violate your client’s constitutional rights.
Notes of Testimony (“N.T.”), Suppression Hearing, 7/10/17, at 38.
In its Rule 1925(a) opinion, the trial court explained:
Under the totality of the circumstances, the officers possessed the
necessary amount of reasonable suspicion to stop and detain
[Appellant]. During his initial encounter with Officer Zimmerman,
[Appellant] was extremely agitated and nervous, and was pacing
back and forth. The court noted that very little time elapsed from
the time Mr. Meier observed a man lying in the street, to when
[Appellant] and another man were found nearby.15 The court
remarked further that given “the hour of the morning, the location
they’re found, it seems to me that it was reasonable for the
officers to look into this further to see whether there was anything
unlawful going on here.”16
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15
N.T. at 38.
16
Id.
Id. at 3-4 (unnumbered) (some capitalization omitted).
A bench trial on the drug charges immediately followed the suppression
hearing. The trial court found Appellant guilty and, on September 27, 2017,
sentenced Appellant to a term of one year less one day to two years less one
day in county prison plus two years’ probation for PWID, and one year of
probation for possession of drug paraphernalia, concurrent with the probation
imposed for PWID. This timely appeal followed. Appellant and the trial court
complied with Pa.R.A.P. 1925.
In this appeal, Appellant asks us to consider one issue:
Did the trial court err in denying the Appellant’s omnibus pretrial
motion seeking to suppress evidence taken from the Appellant
when members of the New Holland Police Department subjected
the Appellant to an unlawful detention and attendant illegal search
because they lacked reasonable suspicion based on specific and
articulable facts to believe that the Appellant was engaged in
criminal activity?
Appellant’s Brief at 5 (some capitalization omitted).
As a challenge to denial of suppression, we apply the following standard
of review:
[An appellate court’s] 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
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a whole. Where the suppression court’s factual findings are
supported by the record, [the appellate court is] bound by [those]
findings and may reverse only if the court’s legal conclusions are
erroneous.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (quoting
Commonwealth v. Jones, 121 A.3d 524, 526 (Pa. Super. 2015) (alterations
in original) (citation omitted)). “Factual findings wholly lacking in evidence,
however, may be rejected.” Commonwealth v. Burnside, 625 A.2d 678,
680 (Pa. Super. 1993) (quoting Commonwealth v. Bennett, 604 A.2d 276,
277 (Pa. Super. 1992) (citations omitted). Further:
Where . . . the appeal of the determination of the suppression
court turns on allegations of legal error, 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 [ ] plenary review.
Smith, 164 A.3d at 1257 (quoting Jones, 121 A.3d at 526-27) (alteration in
original) (additional citations omitted).
Appellant argues that the police unlawfully detained and searched him
without reasonable suspicion. Therefore, they lacked probable cause to arrest
him without a warrant and the fruits of that arrest should have been
suppressed. As required by Smith and Jones, we must first consider the
Commonwealth’s uncontradicted evidence to determine whether the
suppression court’s factual findings are supported by the record. As
authorized by Burnside, we may reject the findings that are unsupported in
the record.
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Having reviewed the transcript of the suppression hearing, we conclude
the trial court’s factual findings are unsupported by the evidence in one
important respect. Officer Zimmerman stated that both men fit the
dispatcher’s description as scruffy white males wearing a coat and hat. Notes
of Testimony (“N.T.”), Suppression Hearing, 7/10/17, at 11. While Officer
Custer acknowledged that “technically, both of them could have possibly been
the person that was laying (sic) in the middle of the road[,]” id. at 28, his
report reflects that the male who best fit the description was Sizemore. Id.
at 29. The court appeared to recognize that fact when it entertained argument
regarding reasonable suspicion following the testimony and commented,
“Well, that - - the reasonable suspicion is what? They’re the only two guys
that were in the vicinity when the police arrived, and one of them, not
[Appellant], happens to fit the description perhaps that they were given?” Id.
at 32.
Again, the trial court stated, “About two minutes after talking to Mr.
Meier, Officer Custer located two men behind a nearby bank, both matching
the description that Mr. Meier gave to the Officers.” Trial Court Opinion,
1/2/18, at 3 (unnumbered). However, the transcript reflects that, while both
“technically” could have been the person in the road, the one who best fit the
description identified himself as Sizemore. N.T., Suppression Hearing,
7/10/17, at 28-29. To the extent the trial court’s factual finding is not an
accurate reflection of the testimony of record, we are not bound by its finding
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in that regard. In re M.D., 781 A.2d 192, 195-96 (Pa. Super. 2001) (where
record did not support trial court’s conclusion that appellant matched the
description of the robbery suspect, this Court was not bound by the court’s
finding of fact relative to appellant’s appearance where “the record permits
only the conclusion that appellant ‘partially fit the description’ of the robbery
suspect”).
We next consider whether the suppression court properly applied the
law to the facts. As explained above, the suppression court’s conclusions of
law are subject to plenary review. Smith, 164 A.3d at 1256.
The trial court explained that Pennsylvania courts have long followed
Terry v. Ohio, 392 U.S. 1 (1968), which stands for the proposition that
“officers may stop an individual for an investigatory detention if they have
reasonable suspicion that criminal activity is ‘afoot.’” Trial Court Opinion,
1/2/18, at 2 (unnumbered). The court continued:
Reasonable suspicion exists where a police officer can point to
specific and articulable facts which, taken together with rational
inferences from those facts, justify an intrusion. In order for a
stop to be reasonable, the officer’s reasonable and articulable
belief that criminal activity was afoot must be linked with his
observation of suspicious behavior on the part of the defendant.
Id. (citing Terry, 392 U.S. at 22,3 and Commonwealth v. Ayala, 791 A.2d
1202, 1209 (Pa. Super. 2002)). As this Court recognized in Ayala, “This
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3 In Terry, the Supreme Court explained:
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standard is very narrow, however, in that it requires a ‘particularized and
objective basis for suspecting the particular person stopped of criminal
activity.’” Id. at 1209 (citations and internal quotations omitted) (emphasis
in original).
As this Court reiterated in Commonwealth v. Davis, 102 A.3d 996 (Pa.
Super. 2014):
The reasonable suspicion necessary to conduct a Terry frisk and,
in fact, all investigative detentions is a less demanding standard
than probable cause not only in the sense that reasonable
suspicion can be established with information that is different in
quantity or content than that required to establish probable cause,
but also in the sense that reasonable suspicion can arise from
information that is less reliable than that required to show
probable cause.
Id. at 999 (quoting Commonwealth v. Fell, 901 A.2d 542, 545 (Pa. Super.
2006) (in turn quoting Arizona v. White, 496 U.S. 325, 330 (1990)). “Yet,
. . . reasonable suspicion does not require that the activity in question must
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[I]n justifying the particular intrusion the police officer must be
able to point to specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant that
intrusion. The scheme of the Fourth Amendment becomes
meaningful only when it is assured that at some point the conduct
of those charged with enforcing the laws can be subjected to the
more detached, neutral scrutiny of a judge who must evaluate the
reasonableness of a particular search or seizure in light of the
particular circumstances. And in making that assessment it is
imperative that the facts be judged against an objective standard:
would the facts available to the officer at the moment of the
seizure or the search ‘warrant a man of reasonable caution in the
belief’ that the action taken was appropriate?
Id., 392 U.S. at 21-22 (footnotes omitted).
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be unquestionably criminal before an officer may investigate further. Rather,
the test is what it purports to be—it requires a suspicion of criminal conduct
that is reasonable based upon the facts of the matter.” Id at 1000 (quoting
Commonwealth v. Rogers, 849 A.2d 1185, 1190 (Pa. 2004) (emphasis in
original)).
Moreover:
In order for a stop to be reasonable under Terry [], the police
officer’s reasonable and articulable belief that criminal activity was
afoot must be linked with his observation of suspicious or irregular
behavior on the part of the particular defendant stopped. Mere
presence near a high crime area . . . or in the vicinity of a recently
reported crime . . . does not justify a stop under Terry.
Conversely, an officer’s observation of irregular behavior without
a concurrent belief that crime is afoot also renders a stop
unreasonable.
Ayala, 791 A.2d at 1209 (quoting Commonwealth v. Espada, 528 A.3d 968,
970 (Pa. Super. 1987) (additional citations omitted)).
At the suppression hearing, there was no mention of any crime afoot at
the time Appellant was detained. The only “specific and articulable facts”
mentioned by Officer Zimmerman were the report of a scruffy white male lying
in a street who shouted an obscenity at a vehicle operator before running off,
the vehicle operator’s account of the male running from the scene to an area
behind M&T Bank, Officer Custer’s radioed message that he encountered two
men standing in the M&T parking lot, Appellant’s denial of being the male lying
in the street, and Officer Zimmerman’s sense that Appellant was very nervous
and agitated as he expressed his desire to take items to his girlfriend’s place
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approximately 30 yards away. N.T., Suppression Hearing, 7/10/17, at 8-14.
The only “specific and articulable facts” reported by Officer Custer were that
he received the radio report of an unshaven, scruffy-faced male lying in the
road wearing a dark blue hat and a coat, that he located two males in the M&T
parking lot, and that he asked Appellant if he would agree to be searched.
Appellant declined and asked to leave to go to this girlfriend’s apartment.
Officer Custer also acknowledged that his written report reflected that the
male who fit the description given by the dispatcher identified himself as
Sizemore. Id. at 26-29.
Other than the fact of a male lying in a roadway, an event that ended
prior to the arrival of Officers Zimmerman and Custer, neither officer pointed
to any specific and articulable facts that justified an intrusion. There was no
suggestion whatsoever that there was criminal activity afoot. Essentially,
there was nothing other than Officer Zimmerman’s assessment that Appellant
was nervous and agitated—something Officer Custer did not mention or even
suggest—prompting Officer Zimmerman to pat down Appellant. Although
Officer Zimmerman did not detect anything in the course of his pat down
search, he obtained identification information from Appellant and conducted a
warrant search. Up to that point in time, the only articulated basis for the
detention was Appellant’s nervousness. However, nervousness alone is not
sufficient to support a reasonable suspicion that Appellant was engaged in
unlawful activity. Commonwealth v. Gray, 896 A.2d 601, 606 n.7 (Pa.
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Super. 2006) (“while nervous behavior is a relevant factor, nervousness alone
is not dispositive and must be viewed in the totality of the circumstances. See
In re M.D., 781 A.2d 192 (Pa. Super. 2001).”)
As this Court observed in Commonwealth v. DeHart, 745 A.2d 633
(Pa. Super. 2000),
the initial questioning of Appellees yielded no tangible information
that would provide “reasonable suspicion” of criminal activity.
Rather, as testified to by [the trooper], he believed that [the
vehicle’s driver] was acting suspiciously because he avoided eye
contact and was speaking softly. As indicated by the trial court,
Commonwealth v. Sierra, 555 Pa. 170, 723 A.2d 644 (1999),
reasonably suggests that a police officer’s assessment that the
occupants of a vehicle appear nervous does not provide
reasonable suspicion for an investigative detention.
Id. at 637.
At the conclusion of the suppression hearing, the court mentioned that
“the hour of the morning [and] the location they’re found” lent support to a
finding that the officers acted reasonably “to look into this further to see
whether there was anything unlawful going on here.” N.T., Suppression
Hearing, 7/10/17, at 38. While the time of day was mentioned, neither the
time nor the location was articulated by the officers as a reason for the
detention. While there is no question that the encounter occurred shortly after
1:45 a.m., there is nothing in the record to suggest that the location was
anything other than a bank parking lot. There was no testimony suggesting
the bank parking lot was located in a high crime area. Rather, it appears the
court was attempting to defend its conclusion that the officers were justified
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in trying to determine “whether there was anything unlawful going on.” Trial
Court Opinion, 1/2/18, at 4 (unnumbered) (quoting N.T., Suppression
Hearing, 7/10/17, at 38).
Based on the totality of the circumstances, we conclude there was no
reasonable or articulable belief that there was any criminal activity linked to
any suspicious behavior on the part of Appellant to warrant an investigatory
detention. Therefore, we find the suppression court erred in denying
Appellant’s omnibus pretrial motion.
Judgment of sentence vacated. Order denying suppression reversed.
Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2018
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