J. A21045/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.W. , A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF : T.W. :
: No. 2390 EDA 2018
Appeal from the Dispositional Order Entered July 10, 2018,
in the Court of Common Pleas of Philadelphia County
Juvenile Division at No. CP-51-JV-0001105-2018
BEFORE: BOWES, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 04, 2020
T.W., a juvenile, appeals from the July 10, 2018 dispositional order
entered following his adjudication of delinquency for unlawful possession of a
controlled substance (Oxycodone).1 After careful review, we affirm.
The juvenile court summarized the relevant facts of this case as follows:
On June 19, 2018, at approximately 4:15 a.m.,
Officer [Nicholas] Grant was traveling northeast
bound with his partner, Officer Heeney[2], in a marked
police vehicle on Sedgely Avenue in Philadelphia,
Pennsylvania. Both officers were in uniform.
Officer Grant observed a silver Toyota make an illegal
U-turn. As Officer Grant was preparing to turn on his
patrol lights and pursue the silver Toyota, he observed
a green Chevy make the same sharp illegal U-[t]urn.
Officer Grant followed, making the same U-[t]urn, and
both the green Chevy and silver Toyota accelerated to
a high rate of speed. Officer Grant then turned on his
lights and sirens and began pursuing both vehicles as
1 35 P.S. § 780-113(a)(16).
2 Officer Heeney’s first name is not indicated in the record.
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they recklessly sped through the streets of
Philadelphia, disregarding several traffic signals.
Both vehicles then made a sharp left onto Dauphin
Street. While the silver Toyota was able to make the
turn, the green Chevy was not and crashed into
several vehicles. Officer Grant then observed two
males exit the green Chevy and run southbound on
Lambert Street. Instead of driving on to pursue the
silver Toyota, Officers Grant and Heeney stopped to
pursue the two males observed exiting and running
from the green Chevy. The officers, however, lost the
two males, but during their search observed the silver
Toyota stopped at a red light at the intersection of
20th and Susquehanna streets.
Officers Grant and Heeney then initiated a vehicle stop
of the silver Toyota while still on foot. There were
three individuals in the vehicle: a female driver, a
female front passenger, and [appellant], who was
sitting in the rear driver’s-side seat. Officers Grant
and Heeney approached the vehicle and asked the
individuals for identification. [Appellant] did not have
identification. Officer Grant then observed [appellant]
attempt to shield his body away from the [o]fficers’
view and reach into his pockets. Officer Grant ordered
[appellant] to stop reaching into his pockets.
[Appellant] did not comply. Fearing for his safety,
Officer Grant removed [appellant] from the vehicle
and proceeded [to] search [appellant] for weapons by
conducting an open handed pat down of the outside
of [appellant’s] clothing. During the open handed
pat down, Officer Grant felt a hard object in
[appellant’s] left pants pocket that Officer Grant was
unable to determine was not a firearm. Fearing that
the object could be a firearm, Officer Grant reached
into [appellant’s] pocket and removed a glass bottle
labeled “Promethazine” that had been prescribed to
an individual with a different name than the one
provided to Officer Grant by [appellant].
Officer Grant then placed [appellant] under arrest for
possession of a controlled substance and conducted a
search incident to arrest. During the search incident
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to arrest, Officer Grant recovered from [appellant’s]
right pants pocket a pill bottle containing two pills,
which were identified as Oxycodone, a known
controlled substance.
Juvenile court opinion, 10/10/18 at 1-3 (citations to notes of testimony,
footnote, and extraneous capitalization omitted).
Appellant was subsequently charged with unlawful possession of a
controlled substance. On July 10, 2018, appellant proceeded to a juvenile
adjudication hearing before the Honorable Amanda Cooperman, wherein he
made an oral motion to suppress the physical evidence recovered from
Officer Grant’s search of his person. (Notes of testimony, 7/10/18 at 5.)
Officer Grant was the only witness to testify at the hearing, and the juvenile
court found his testimony credible. (See juvenile court opinion, 10/10/18
at 1.) Following the hearing, the juvenile court denied appellant’s suppression
motion and adjudicated him delinquent of unlawful possession of a controlled
substance. (Notes of testimony, 10/10/18 at 36, 38-39.) That same day, the
juvenile court placed appellant at the Glen Mills School for Boys. Appellant
did not file a post-dispositional motion. This timely appeal followed on
August 7, 2018.3
Appellant raises the following issue for our review:
Did not the [juvenile] court err in denying the motion
to suppress physical evidence, insofar as appellant
was arrested and searched without probable cause?
3 Appellant and the juvenile court have complied with Pa.R.A.P. 1925.
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Appellant’s brief at 3.4
Our standard of review when addressing a challenge to a court’s denial
of a suppression motion is well settled.
[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 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. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation
omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).
“Both the Fourth Amendment of the United States Constitution and
Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals
freedom from unreasonable searches and seizures.” Commonwealth v.
Bostick, 958 A.2d 543, 550 (Pa.Super. 2008), appeal denied, 987 A.2d 158
(Pa. 2009) (citation and internal quotation marks omitted). “To secure the
right of citizens to be free from such intrusions, courts in Pennsylvania require
law enforcement officers to demonstrate ascending levels of suspicion to
4We note that appellant’s argument is two-fold and each of his claims will be
addressed accordingly.
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justify their interactions with citizens to the extent those interactions
compromise individual liberty.” Commonwealth v. Reppert, 814 A.2d 1196,
1201 (Pa.Super. 2002) (citation omitted). Courts in this Commonwealth have
recognized three types of interactions between members of the public and the
police: a mere encounter, an investigative detention, and a custodial
detention.
The first of these interactions 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. Ayala, 791 A.2d 1202, 1208 (Pa.Super. 2002) (citations,
brackets, and internal quotation marks omitted).
In the seminal case of Terry v. Ohio, 392 U.S. 1 (1968), the United
States Supreme Court indicated that police may stop and frisk a person where
they have a reasonable suspicion that criminal activity is afoot and that the
suspect may be armed and dangerous. Id. at 27. A panel of this court has
explained:
If, during the course of a valid investigatory stop, an
officer observes unusual and suspicious conduct on
the part of the individual which leads him to
reasonably believe that the suspect may be armed
and dangerous, the officer may conduct a pat-down of
the suspect’s outer garments for weapons. In order
to justify a frisk under [Terry] the officer must be able
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to point to particular facts from which he reasonably
inferred that the individual was armed and dangerous.
Such a frisk, permitted without a warrant and on the
basis of reasonable suspicion less than probable
cause, must always be strictly limited to that which is
necessary for the discovery of weapons which might
be used to harm the officer or others nearby.
Commonwealth v. Preacher, 827 A.3d 1235, 1239 (Pa.Super. 2003)
(internal quotation marks and citation omitted).
I. Scope of the Terry frisk
Here, appellant concedes that Officer Grant’s Terry frisk was supported
by reasonable suspicion,5 but contends that the juvenile court erred in denying
his suppression motion because Officer Grant exceeded the scope of a
permissible search by reaching into appellant’s left pants pocket. (Appellant’s
brief at 7-9.) In support of this contention, appellant avers that Officer Grant’s
“fishing expedition into [his pocket] was impermissible” where the
incriminating nature of “[t]he hard object that Officer Grant felt” was not
“immediately apparent.” (Id. at 10). We disagree.
The record establishes that Officer Grant and his partner were on patrol
in a high-crime area in the early morning hours of June 19, 2018, when they
became involved in a high-speed chase with two vehicles; appellant was a
passenger in one of these vehicles. (Notes of testimony, 7/10/18 at 8-11,
5 See notes of testimony, 7/10/18 at 28-29 (stating, “I will concede the frisk
. . . I think this was prudent work. And I think what the officer was trying to
do was make sure that everything was safe during the entirety of this stop.”).
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14.) Officer Grant testified that during the ensuing traffic stop, he became
concerned that appellant may be in possession of a weapon after observing
him “turn[] his left shoulder away from [the officers]” and “start to reach into
his pockets.” (Id. at 13-14.) Officer Grant testified that he ordered appellant
to step out of the vehicle and conducted an “open-hand pat down” frisk after
appellant repeatedly disregarded Officer Grant’s instruction to remove his
hands from his pockets. (Id. at 15-16.) Officer Grant noted that during the
course of this safety frisk, he felt a “large” and “hard” object in appellant’s
front left pants pocket. (Id. at 17.) Officer Grant opined that although he did
not immediately recognize what the object was during the pat-down, he was
concerned, based upon his training and experience as a police officer and the
recent spate of violent incidents in this area, that the object was a weapon or
firearm. (Id. at 17-19, 26.) On cross-examination, Officer Grant testified
that he could not recall the exact size of the object he felt but that it was
comparable to the size of a bottle of Nyquil. (Id. at 21.) Fearing for his
safety, Officer Grant reached into appellant’s pocket and removed the object,
which turned out to be a large glass bottle labelled “Promethazine” that was
prescribed to an individual with a different name than the one appellant had
provided. (Id. at 18.) During a subsequent search of appellant’s person
incident to arrest, Officer Grant recovered a second, smaller pill bottle from
appellant’s right pants-pocket that contained two Oxycodone pills. (Id. at
18-20.)
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Based on the foregoing, we conclude that Officer Grant articulated a
reasonable belief that what he felt in appellant’s pocket was a weapon.
Accordingly, we discern no error on the part of the juvenile court in concluding
that Officer Grant did not exceed the scope of a permissible search by reaching
into appellant’s left pants pocket during an otherwise valid Terry pat-down.
See, e.g., Commonwealth v. Taylor, 771 A.2d 1261, 1269 (Pa. 2001)
(holding that a police officer was justified in reaching into a defendant’s pocket
during course of Terry frisk, where the defendant reached for his pocket
despite being told not to move several times, and the officer felt a hard,
cylinder-type object in the pocket, which he reasonably believed to be a
weapon), cert. denied, 534 U.S. 994 (2001); but see Commonwealth v.
Wilson, 927 A.2d 279, 285-286 (Pa.Super. 2007) (concluding that an officer’s
search and seizure of drugs in defendant’s coat pocket exceeded lawful scope
of Terry, where the officer’s testimony that he felt a “hard, large ball” failed
to articulate any reasonable belief that the object he felt in defendant’s pocket
appeared to be a weapon.).
In reaching this conclusion, we note that, contrary to appellant’s
contention, analysis of whether Officer Grant justifiably put his hand into
appellant’s pocket under the “plain feel doctrine” is not warranted in this case.
(See appellant’s brief at 9-11). Under the plain feel doctrine,
a police officer may seize non-threatening
contraband detected through the officer’s sense of
touch during a Terry frisk if the officer is lawfully in a
position to detect the presence of contraband, the
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incriminating nature of the contraband is immediately
apparent from its tactile impression and the officer
has a lawful right of access to the object.
Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa. 2000) (emphasis
added), citing Minnesota v. Dickerson, 508 U.S. 366, 375 (1993).
Here, Officer Grant reached into appellant’s left pants pocket under the
reasonable belief that the large and hard object that he felt in appellant’s left
pants pocket was “a weapon . . . [or] a firearm.” (Notes of testimony, 7/10/18
at 26.) As the juvenile court recognized in its opinion:
It was reasonable for Officer Grant to go into
[appellant’s] pockets to dispel a reasonable fear for
his safety and the safety of others during the
investigatory stop. [Appellant] was a passenger in a
vehicle that was just in a high[-]speed chase with
police at 4:15 in the morning in a high[-]crime area
where Officer Grant has a plethora of personal
experience with weapons recovered from traffic stops.
Moreover, the officers made the stop without the
benefit of a police vehicle. [Appellant] did not comply
with Officer Grant’s order to stop hiding his body and
reaching into his pockets. It was only after a limited
[] search of the outside of [appellant’s] clothes and
feeling a hard object that was not readily identifiable
that Officer Grant expanded his search to the inside of
that particular pocket. Looking at the totality of the
circumstances, Officer Grant had a reasonable
suspicion, based on specific and articulable facts, that
[appellant] may be armed and dangerous, and
Officer Grant tailored his search to only that which
was reasonably necessary for the discovery of
weapons.
Juvenile court opinion, 10/10/18 at 4-5 (citations to notes of testimony
omitted).
Accordingly, appellant’s first claim must fail.
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II. Probable cause to arrest
In his second claim, appellant contends that the juvenile court erred in
denying his suppression motion because Officer Grant lacked probable cause
to arrest him given that it is not a crime to possess a bottle of Promethazine,
even if it is prescribed to another individual. (Appellant’s brief at 11-12.)
As recognized by the juvenile court and both parties, although the
common mixture of Promethazine and Codeine is a controlled substance,
Promethazine, by itself, is not. (Juvenile court opinion, 10/10/18 at 3 n.1;
appellant’s brief at 11; and Commonwealth’s brief at 13.) During the
suppression hearing, Officer Grant mistakenly testified to his belief that
Promethazine is a controlled substance and neither party objected to this
testimony. (See notes of testimony, 7/10/18 at 19.) Moreover, the record
reflects that appellant failed to make any argument during his oral suppression
motion that the police lacked probable cause to arrest him because
Promethazine is not a controlled substance. On the contrary, our review of
the suppression hearing transcript reveals that appellant based his
suppression motion solely upon Officer Grant’s initial Terry frisk and the
subsequent search of his pocket, and not upon the officer’s purported lack of
probable cause to arrest. (Id. at 5-6, 29-33.) As such, the Commonwealth
was not afforded the opportunity to present any evidence on this issue, nor
elicit specific testimony from Officer Grant with regard to his training and
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experience with respect to Promethazine or how it is commonly mixed with
Codeine on the street. See, e.g., United States v. Achobe, 560 F.3d 259,
261 (5th Cir. 2008) (stating that a mixture of Promethazine and Codeine is a
“major street drug” commonly referred to as “purple” or “syrup”).
Accordingly, because appellant did not raise in the juvenile court the theory
of relief he now argues on appeal, his claim is waived for purposes of our
review. See Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”).
Dispositional order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/20
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