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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TOSHA VERNEE GRAYS
Appellant No. 711 EDA 2016
Appeal from the Judgment of Sentence Entered February 23, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No: CP-39-CR-0002225-2015
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 23, 2017
Appellant Tosha Vernee Grays appeals from the February 23, 2016
judgment of sentence entered in the Court of Common Pleas of Lehigh
County (“trial court”), following her bench conviction for possession of a
controlled substance.1 Upon review, we affirm.
On August 25, 2015, following her arrest for possession of a controlled
substance (narcotic analgesics), Appellant filed a motion to suppress,
claiming that Officer John Leonard III of the Allentown Police Department
violated her rights under the Pennsylvania and United States Constitutions
by stopping and frisking her without reasonable suspicion. On October 14,
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35 P.S. § 780-113(a)(16).
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2015, the trial court held a hearing on Appellant’s suppression motion, at
which the Commonwealth offered the testimony of Officer Leonard.
Officer Leonard testified that, on November 8, 2014, he was in a
marked police vehicle patrolling the 400 block of Liberty Street in Allentown
“because of recent shooting, [and] high-level drug activity[.]” N.T.
Suppression, 10/14/15, at 7. At approximately 3:52 p.m. on that day, he
observed Appellant walking east on Liberty Street. Id. at 4-8. He testified
that he knew her from a previous incident on August 12, 2014, where
“[Appellant] was a witness to a domestic assault between her sister and her
nephew.” Id. at 6. Upon recognizing Appellant, Officer Leonard testified
that he exited his patrol vehicle and approached her to ask how she and her
family were doing. Id. at 8. Officer Leonard further testified that Appellant
stopped and spoke to him. Id. He described the conversation as friendly.
Id. Officer Leonard testified that, during the conversation, Appellant was
“reaching into her [right jacket] pocket[2] and she was visibly shaking.” Id.
at 8-9. She appeared to be readjusting something. Id. at 10. Officer
Leonard explained that he observed the shaking because Appellant “was
holding a cup of coffee in her one hand.” Id. at 9. Based on his
observations, Officer Leonard concluded that Appellant appeared nervous.
Id. Consequently, Officer Leonard asked her whether she was carrying any
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2
Appellant was wearing a zippered fleece jacket. N.T. Suppression,
10/14/15, at 16.
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firearms on her person. Id. According to Officer Leonard, Appellant was
unresponsive, became “very pale” and “just took a step back.” Id. at 9-10.
She then asked “[w]hat is this?” and “[w]hy are you asking me that?” Id.
Officer Leonard further testified that he instructed Appellant to remove
her hand from the pocket. Id. He explained that after Appellant failed to
comply with his command, “I grabbed that arm, that—the hand was in the
pocket. While I grabbed it, I felt something hard, and it was—
simultaneously, I looked down and I was able to see, without manipulating
that outermost garment, that there was white pills in there.” Id. 10-11
(“When I grabbed her hand, I felt with my fingers what felt like something
hard, like a pill, and when I looked down that’s what I saw, I saw a couple
white pills.”). Officer Leonard testified that he grabbed Appellant’s hand
“[b]ecause [he] didn’t know what was in the pocket.” Id. at 11. According
to his testimony, Appellant’s hand “was like half in, half out” when he
grabbed it. Id. Upon Officer Leonard’s discovery of the pills, Appellant
remarked that they were her mother’s Percocet pills. Id. Officer Leonard
testified that Appellant did not have a prescription for them. Id. at 12.
Officer Leonard clarified that when he first encountered Appellant, her hand
was not in her pocket. Id. at 10. Officer Leonard further clarified that he
ordered Appellant to remove her hands from the pocket because he feared
for his safety. Id. at 13. He explained “[b]ecause we were on a directed
patrol because there’s recent shootings in the area and because I was
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encountered with this individual before at an incident that involved a firearm
that was never located by the police, it was just very—I was nervous.” Id.
On cross-examination, Officer Leonard acknowledged that he initiated
the encounter with Appellant by saying “hello” to her. Id. at 15. He
conceded that at the time of the August 12, 2014 domestic dispute incident,
Appellant was not believed to have possessed any firearms as she was only
a witness. Id. In fact, Officer Leonard acknowledged that the firearm in
question was imputed to Appellant’s nephew. Id. He also acknowledged
that Appellant put her hand in her jacket pocket only once before he
grabbed the hand. Id. at 17.
On December 10, 2015, the trial court denied Appellant’s motion to
suppress the pills. In so doing, the trial court concluded:
Prior to Officer Leonard grabbing [Appellant’s] hand, this
interaction was a mere encounter, requiring no level of suspicion
on the part of the police. It was only after [Appellant] refused to
remove her hand from her pocket that the interaction rose to the
level of an investigatory detention, which was supported by
reasonable suspicion. [Appellant] was in an area where
numerous shootings and drug activity had recently occurred; she
was exhibiting nervous and evasive behavior; and she refused to
remove her hand from her pocket despite [Officer] Leonard’s
instructions to remove it. Under the totality of the
circumstances, . . . Officer Leonard possessed reasonable
suspicion that [Appellant] might be armed and dangerous and
was justified in frisking [Appellant]. . . . As such, suppression is
not warranted.
Trial Court Order, 12/10/15, at n.1. The case proceeded to a non-jury trial,
following which, on January 21, 2016, the trial court found Appellant guilty
of possession of a controlled substance. On February 23, 2016, the trial
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court sentenced Appellant to one year of probation. Appellant timely
appealed to this Court.
On appeal, Appellant raises only a single issue for our review:
[I.] Whether the [trial court] erred by denying [Appellant’s]
suppression motion by determining that the officer, in stopping
[Appellant], had reasonable suspicion that criminal activity was
afoot or that [Appellant] might be a danger and was therefore
permitted to grab [Appellant] and search her for contraband?
Appellant’s Brief at 7.
In reviewing appeals from an order denying suppression, our standard
of review is limited to determining
whether [the trial court’s] factual findings are supported by the
record and whether [its] legal conclusions drawn from those
facts are correct. When reviewing the rulings of a [trial] court,
the appellate court considers 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. When the record supports the findings of the [trial]
court, we are bound by those facts and may reverse only if the
legal conclusions drawn therefrom are in error.
Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015). Our
scope of review is limited to the evidence presented at the suppression
hearing. In the interest of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013).
Article I, Section 8 of the Pennsylvania Constitution and the Fourth
Amendment to the United States Constitution protect the people from
unreasonable searches and seizures. Commonwealth v. Lyles, 97 A.3d
298, 302 (Pa. 2014) (citation omitted). The Lyles Court explained:
Jurisprudence arising under both charters has led to the
development of three categories of interactions between citizens
and police. The first, a “mere encounter,” does not require any
level of suspicion or carry any official compulsion to stop and
respond. The second, an “investigatory detention,” permits the
temporary detention of an individual if supported by reasonable
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suspicion. The third is an arrest or custodial detention, which
must be supported by probable cause.
In evaluating the level of interaction, courts conduct an
objective examination of the totality of the surrounding
circumstances. . . . The totality-of-the-circumstances test is
ultimately centered on whether the suspect has in some way
been restrained by physical force or show of coercive authority.
Under this test, no single factor controls the ultimate conclusion
as to whether a seizure occurred—to guide the inquiry, the
United States Supreme Court and [our Supreme] Court have
employed an objective test entailing a determination of whether
a reasonable person would have felt free to leave or otherwise
terminate the encounter. What constitutes a restraint on liberty
prompting a person to conclude that he is not free to leave will
vary, not only with the particular police conduct at issue, but
also with the setting in which the conduct occurs.
[Our Supreme] Court and the United States Supreme
Court have repeatedly held a seizure does not occur where
officers merely approach a person in public and question the
individual or request to see identification. Officers may request
identification or question an individual so long as the officers do
not convey a message that compliance with their requests is
required. Although police may request a person’s identification,
such individual still maintains the right to ignore the police and
go about his business.
Id. at 302-03 (internal citations and quotation marks omitted). Instantly,
Appellant asserts, and the Commonwealth agrees, that Officer Leonard’s
interaction with her began as a mere encounter, which escalated to an
investigative detention when Officer Leonard grabbed her hand. Appellant,
however, challenges Officer Leonard’s reasonable suspicion to conduct the
investigative detention under Terry v. Ohio, 392 U.S. 1 (1968).
It is settled that reasonable suspicion necessary for 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.
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Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014) (citations
omitted). “In order to justify an investigative detention, the police must
have reasonable suspicion that criminal activity is afoot. Reasonable
suspicion must be based on specific and articulable facts, and it must be
assessed based upon the totality of the circumstances viewed through the
eyes of a trained police officer.” Commonwealth v. Williams, 980 A.2d
667, 672 (Pa. Super. 2009) (citation omitted), appeal denied, 990 A.2d
730 (Pa. 2010); see Commonwealth v. Reppert, 814 A.2d 1196, 1203
(Pa. Super. 2002) (noting that prior to subjecting citizens to an investigatory
detention, the police “must harbor at least a reasonable suspicion that the
person seized is then engaged in unlawful activity”). Thus, “[t]he
determination of whether an officer had reasonable suspicion that criminality
was afoot so as to justify an investigatory detention is an objective one,
which must be considered in light of the totality of the circumstances.”
Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011) (emphasis added);
see Reppert, 814 A.2d at 1204 (noting that the officer who stops an
individual must have “a particularized and objective basis for suspecting the
individual stopped”).
In assessing the totality of the circumstances, a court must give
weight to the inferences that a police officer may draw through training and
experience. Id. at 95. Reasonable suspicion does not require that the
activity in question must be unquestionably criminal before an officer may
investigate further. Davis, 102 A.3d at 1000 (citations omitted). “Rather,
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the test is what it purports to be—it requires a suspicion of criminal conduct
that is reasonable based upon facts of the matter.” Id. (citation and
emphasis omitted). Thus, an officer’s “hunch or unparticularized suspicion”
does not satisfy the objective reasonable suspicion standard required for
investigative detentions. Reppert, 814 A.2d at 1204. We remain cognizant
that police officers’ “judgment is necessarily colored by his or her primary
involvement in the ‘the often competitive enterprise of ferreting out crime.’”
Id.
Here, based on the totality of the circumstances and our review of the
record, we agree with the trial court’s conclusion that Officer Leonard had
reasonable suspicion that criminal activity was afoot and that Appellant was
engaged in such activity when he grabbed her hand. As recited, Officer
Leonard initiated the encounter with Appellant to inquire about her and her
family’s wellbeing. As he was talking with Appellant, who held a cup of
coffee in one hand, he noticed that her other hand was in her jacket pocket
and that she was readjusting something. According to Officer Leonard,
Appellant was shaking and appeared nervous. Officer Leonard then asked
her whether she was carrying a firearm. Appellant did not respond. She
became pale and took a step back. She then questioned Officer Leonard
why he was asking her that. Officer Leonard instructed her to remove her
hand from the pocket. Appellant failed to comply. As a result, Officer
Leonard grabbed her hand—a fact both parties agree constituted an
investigatory detention. Given our objective standard for reasonable
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suspicion, Officer Leonard reasonably believed that Appellant could have
been armed when she refused to comply with his command to remove her
hand from the pocket wherein she was readjusting something. The
reasonableness of Officer Leonard’s suspicion also was bolstered by the fact
that Appellant “was in an area where numerous shootings and drug activity
had recently occurred.” Trial Court Order, 12/10/15, at n.1. Accordingly,
we hold that the trial court did not err in denying Appellant’s motion to
suppress the pills.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2017
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Com. v. Grays, T.
Combined Opinion