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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
LINELL CHARLES JAMES, :
:
Appellant :
: No. 295 EDA 2016
Appeal from the Judgment of Sentence December 21, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002627-2015
BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E. *
MEMORANDUM BY DUBOW, J.: FILED JANUARY 25, 2017
Appellant, Linell Charles James, appeals from the Judgment of
Sentence entered in the Lehigh County Court of Common Pleas following his
convictions for Persons Not to Possess, Use, Manufacture, Control, Sell or
Transfer Firearms and Firearms Not to be Carried Without a License. 1 On
appeal, Appellant challenges the denial of his motion to suppress the firearm
recovered following a Terry2 stop and frisk of his person. After careful
review, we affirm.
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6105(a)(1) and 18 Pa.C.S. § 6106(a)(1), respectively.
2
Terry v. Ohio, 392 U.S. 1, 30 (1968).
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We summarize the factual and procedural history as follows. Officer
Ryan Koons is a member of the City of Allentown Police Department with
more than a decade of experience, education, and training. N.T., 9/3/15, at
6-7. In 2015, Officer Koons was assigned to the Strategic Enforcement
Detail (“SED”), which is specially tasked with “investigat[ing] street crimes,
drug dealings, and gangs.” Id.
On the evening of May 22, 2015, Officer Koons was working alongside
other members of the SED, patrolling near the intersection of 7 th Street and
Turner Street. Id. at 9-10. It was a high-crime area, known for drug
activity, and Officer Koons had personally made “many” arrests “for firearms
and drugs” in the area. Id. at 11-12. In addition, as a member of the SED,
Officer Koons was aware that in the months leading up to May 22, 2015, a
number of armed robberies had taken place in bodegas and other businesses
in the area. Id. at 12, 14. These robberies often occurred in the evening
hours, sometimes as frequently as “two armed robberies in one night within
a 15-minute time span . . . .” Id. at 12.
That evening, Officer Lobach,3 a member of the SED, advised Officer
Koons and other SED members that a male subject (“Subject A”) was seen
loitering outside of “a known drug location” wearing a white T-shirt and
“manipulating something very small in his hand.” Id. at 10. Members of
3
The first names of Officer Lobach and other members of the SED do not
appear in the record.
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the SED observed Subject A meet up with a second male and enter Madina
Chicken (“Madina’s”), a fried chicken shop located at the intersection of 7 th
Street and Turner Street. Id. at 15.
Officer Koons, Officer Lobach, and Officer Murray assembled outside of
Madina’s, and observed Subject A and Appellant inside of the business. Id.
at 16. All of the lights inside of the business were off, which was surprising
to Officer Koons because he knew that Madina’s was normally open at that
hour. Id. When officers entered Madina’s, they saw the owner standing
behind the counter, staring at the officers without saying a word, which
Officer Koons also thought was “odd.” Id. at 16-17. When one of the
officers asked the owner about the two men, he told officers that “they
weren’t customers, [and] that they weren’t purchasing anything.” Id. at 23.
While Officers Lobach and Murray spoke with Subject A, Officer Koons
asked Appellant what they were doing in Madina’s while all of the lights were
out. Id. at 17. Appellant told Officer Koons that he was waiting for a friend
who was in the bathroom. Id. at 17-18. Officer Koons noticed “a big sign
on the door that says the bathroom is out of order.” Id. at 18. Officer
Howells, who had recently arrived on scene, approached and removed an
obviously intoxicated male (“Subject B”) from the bathroom marked “out of
order.” Id. Officer Howells placed Subject B under arrest, and began
searching him incident to arrest. Id. at 19.
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Until that point, Officer Koons had been standing next to Appellant
inside of the small restaurant, and had not spoken to him other than to ask
him why he was standing in a darkened restaurant. At no point did Officer
Koons or any of the other officers present draw their weapons. When Officer
Howells began placing Subject B under arrest, Officer Koons asked Appellant
to write down his name and date of birth. Id. at 22. Officer Koons observed
Appellant was nervous and his hands were shaking while he wrote. Id. at
29.
Officer Koons observed Officer Howells removing heroin from Subject
B, and heard him comment on the quantity of heroin recovered. Id. at 20.
At that point, Officer Koons became concerned that Appellant might have a
weapon. Id. at 21. He asked Appellant for permission to search him, and
Appellant “slowly started to put his hands up[.]” Id. Officer Koons
conducted “a light pat-down” and immediately recognized the feel of a
firearm handle tucked into Appellant’s waistband. Id. Officer Koons
recovered a loaded firearm, and placed Appellant under arrest.
Appellant was charged with one count each of Persons Not to Possess,
Use, Manufacture, Control, Sell or Transfer Firearms; Firearms Not to be
Carried Without a License; and Disorderly Conduct.4 Appellant filed a Motion
to Suppress, averring that officers lacked reasonable suspicion to stop and
4
The Disorderly Conduct charge was later withdrawn. See Motion for Leave
to Amend Information, filed 11/10/15.
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then frisk Appellant. Motion to Suppress, filed 8/5/15, at 2 (unpaginated).
Following a hearing, the trial court denied the Motion in a written Opinion.
Opinion and Order Denying Motion to Suppress, filed 9/18/15.
After a bench trial, the court convicted Appellant of both firearms
charges and sentenced him on December 21, 2015, to a term of 42 to 84
months of incarceration.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
On appeal, Appellant raises a single issue:
Whether the [t]rial [c]ourt erred in denying Appellant’s Motion to
Suppress a Firearm where there was no reasonable suspicion to
detain or search [] Appellant who was merely waiting in a
restaurant for a friend to come out of the bathroom, thereby
violating Appellant’s rights under the Fourth and Fourteenth
Amendments of the United States Constitution and Under Article
I Section 8 of the Pennsylvania Constitution?
Appellant’s Brief at 4.
In reviewing the denial of a suppression motion,
our role is to determine whether the record supports the
suppression court’s factual findings and the legitimacy of the
inferences and legal conclusions drawn from those findings. In
making this determination, we may consider only the evidence of
the prosecution’s witnesses and so much of the defense as, fairly
read in the context of the record as a whole, remains
uncontradicted. When the evidence supports the factual findings
of the suppression court, we may reverse only if there is an error
in the legal conclusions drawn from those factual findings. As a
reviewing court, we are therefore not bound by the legal
conclusions of the suppression court and must reverse that
court’s determination if the conclusions are in error or the law is
misapplied.
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Commonwealth v. Page, 59 A.3d 1118, 1131 (Pa. Super. 2013) (citation
and brackets omitted).
In the instant case, Appellant avers that the trial court erred in finding
that Officer Koons had reasonable suspicion sufficient to justify (i) subjecting
Appellant to an investigatory detention, and (ii) subsequently patting him
down for weapons. These events, often referred to collectively as a “Terry
stop and frisk,” are distinct legal constructs. Separate tests govern the
“stop” and the “frisk,” and an officer who is justified in briefly detaining a
suspect is not necessarily justified in patting him down. See, e.g.,
Commonwealth v. Preacher, 827 A.2d 1235, 1239-40 (Pa. Super. 2003)
(finding that, although officers were justified in conducting an investigatory
stop of the appellant, they lacked the reasonable suspicion required to frisk
him).
Our Supreme Court has summarized the distinct inquiries as follows:
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, in light of his
experience, that criminal activity may be afoot. An investigatory
stop subjects a person to a stop and a period of detention, but
does not involve such coercive conditions as to constitute the
functional equivalent of an arrest. Such an investigatory stop is
justified only if the detaining officer can point to specific and
articulable facts which, in conjunction with rational inference
derived from those facts, give rise to a reasonable suspicion of
criminal activity and therefore warrant the intrusion.
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-
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down of the suspect's outer garments for weapons. In order to
justify a frisk under Terry, the officer must be able 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. E.M., 735 A.2d 654, 659 (Pa. 1999) (citations and
quotations omitted).
Reasonable suspicion, a requirement of both the “stop” and the “frisk,”
is a less stringent standard than probable cause. Commonwealth v.
Foglia, 979 A.2d 357, 360 (Pa. Super. 2009). “In order to determine
whether the police had reasonable suspicion, the totality of the
circumstances—the whole picture—must be considered.” Commonwealth
v. Simmons, 17 A.3d 399, 403 (Pa. Super. 2011) (citation omitted). Given
the totality of the circumstances, “the detaining officers must have a
particularized and objective basis for suspecting the particular person[.]”
Id. (quotation omitted). “[W]e must give due weight to the specific
reasonable inferences the police officer is entitled to draw from the facts in
light of his experience.” Commonwealth v. Kemp, 961 A.2d 1247, 1255
(Pa. Super. 2008) (en banc) (citation and quotation marks omitted).
Appellant first asserts that officers lacked reasonable suspicion that
Appellant was engaged in criminal activity as required to subject Appellant to
a stop. Appellant’s Brief at 12-14. Although the trial court did not make a
finding regarding when, exactly, Appellant became the subject of an
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investigatory stop, we believe the issue is irrelevant. Upon his first contact
with Appellant, Officer Koons had sufficient reasonable suspicion to believe
Appellant was engaged in criminal activity.
As Officer Koons testified, he observed Appellant and Subject A sitting
in a darkened restaurant during what Officer Koons knew were the normal
business hours of the restaurant. The restaurant was in a high crime area
that had seen a string of recent armed robberies of bodegas and other
businesses. When officers entered the restaurant, the owner remained
silent and gave officers a blank stare. When asked about Appellant and
Subject A, the owner stated that they were not customers. When asked
what he was doing in the restaurant, Appellant said he was waiting for
Subject B to finish “using” a bathroom clearly marked with an “out of order”
sign. Under the totality of those circumstances, we find no error in the trial
court’s conclusion that Officer Koons had the requisite reasonable suspicion
to conduct an investigatory stop of Appellant.
Appellant next avers that Officer Koons lacked reasonable suspicion to
conduct a frisk of Appellant for weapons, asserting that Officer Koons
impermissibly relied on the theory that “guns follow drugs” to justify his
belief that Appellant was armed and dangerous. Appellant is correct that our
Supreme Court has stated that, “as a general policy consideration, taking
judicial notice that all drug dealers may be armed as in and of itself a
sufficient justification for a weapons frisk clashes with the totality of the
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circumstances standard, as well as the premise that the concern for the
safety of the officer must arise from the facts and circumstances of the
particular case.” Commonwealth v. Grahame, 7 A.3d 810, 816 (Pa.
2010) (citation and quotation omitted). Appellant is incorrect, however, in
his characterization of the facts adduced at the hearing on his Motion to
Suppress, and is not entitled to relief on his claim under the facts as they
exist in the record.
At the hearing on Appellant’s Motion to Suppress, Officer Koons
described his decision to frisk Appellant as follows:
Well, now with the lights out, you know, the aforementioned
stuff about my thoughts about potential robberies and that, the
fact that his - - he’s putting himself with the guy that’s in the
bathroom now that has what I know now to be a large quantity
of drugs, and through my training and experience, I know that
guns sometimes go with drugs, so my concern was that there
could be either more contraband there or possibly a weapon.
N.T., 9/3/15, at 20-21.
It is clear from the record that, while Officer Koons did rely in part
on his experience that “guns follow drugs,” his reasonable suspicion was
properly based upon the totality of the circumstances and based upon his
observations of Appellant individually. Among other relevant facts,
discussed supra, Officer Koons knew that Madina’s was located in a high
crime area beset with armed robberies. Often, these robberies occurred in
the evening hours and targeted businesses. Officer Koons observed
Appellant waiting in a darkened restaurant with an explanation he believed
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to be implausible given the sign on the bathroom. He also personally
observed the owner behaving oddly, and saw Appellant’s hands shake as he
wrote down his name and date of birth. Under the totality of those
circumstances, we find no error in the trial court’s conclusion that Officer
Koons had the requisite reasonable suspicion to conduct a pat-down of
Appellant.
Based on all of the foregoing, we conclude that the trial court properly
denied Appellant’s Motion to Suppress.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2017
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