J-S59040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant

v.

LAMAR BATCHLER

No. 2200 EDA 2015

Appeal from the Order June 25, 2015

in the Court of Common Pleas of Philadelphia County Criminal Division

at No(s): CP-51-CR-0002120-2015

BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD,*J.

MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 06, 2016

The Commonwealth appeals from the order entered in the Philadelphia 

County Court of Common Pleas granting Appellee Lamar Batchler’s motion 

for suppression of evidence. The Commonwealth contends that the officers 

had reasonable suspicion to conduct a protective frisk of Appellee. We 

affirm.

We adopt the facts and procedural history set forth in the trial court’s 

opinion. See Trial Ct. Op., 12/2/15, at 1-3. Appellee was charged with 

possession of a firearm prohibited,1firearms not to be carried without a 

license,2and carrying firearms on public streets in Philadelphia.3 Appellee 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 6105.

2 18 Pa.C.S. § 6106.
J-S59040-16

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filed an omnibus pretrial motion to suppress. Following a hearing, the 

motion was granted. The Commonwealth filed a notice of appeal, certifying 

that the ruling terminated or substantially handicapped the prosecution of 

this case.4 The Commonwealth filed a Pa.R.A.P. 1925(b) statement of errors 

complained of on appeal, and the trial court filed a responsive opinion.

The Commonwealth raises the following issue for our review:

Did the suppression court err in ruling that experienced 

officers lacked reasonable suspicion to conduct a protective 

frisk where, upon stopping a car in a high crime, high drug 

area at night for a vehicle code violation, they saw 

[Appellee], the front seat passenger, act nervous and 

slump to his left as if to conceal a weapon in his left 

waistband?

Commonwealth’s Brief at 1.

The Commonwealth contends that

 

3 18 Pa.C.S. § 6108.

4

In Commonwealth v. Bender, 811 A.2d 1016 (Pa. Super. 2002), this 

Court noted

that the Commonwealth has an absolute right of appeal to 

the Superior Court to test the validity of a pre-trial 

suppression order. Such an appeal is proper as an appeal 

from a final order when the Commonwealth certifies in 

good faith that the suppression order terminates or 

substantially handicaps its prosecution. 

Id. at 1018 (quotation marks and citations omitted); see also Pa.R.A.P. 

311(d). Instantly, the Commonwealth has complied with this procedural 

requirement, and therefore, the appeal is properly before us. See id.
J-S59040-16

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[Appellee’s] bizarre “Superman type” gesture, and 

appearing “very nervous, very scared” at Officer [Daniel] 

Sweeney’s first approach; the inability of his companion to 

produce any proof of registration or insurance for the SUV, 

which the officers stopped at night in a high-crime area; 

and [Appellee’s] “sitting awkwardly” slumped to his left 

with both arms resting on the center console as if 

concealing something on his left side upon the officer’s 

second approach were all danger signals to which the 

officers responded with appropriate caution as authorized 

by the Constitution. Yet, the suppression court found that 

[Appellee] gave the seventeen-year veteran police officer 

no reasonable basis to fear he might be armed. This ruling 

was incorrect.

Commonwealth’s Brief at 9-10. 

Our review is governed by the following principles:

When reviewing an Order granting a motion to suppress 

we are required to determine whether the record supports 

the suppression court’s factual findings and whether the 

legal conclusions drawn by the suppression court from 

those findings are accurate. In conducting our review, we 

may only examine the evidence introduced by appellee 

along with any evidence introduced by the Commonwealth 

which remains uncontradicted. Our scope of review over 

the suppression court’s factual findings is limited in that if 

these findings are supported by the record we are bound 

by them. Our scope of review over the suppression court’s 

legal conclusions, however, is plenary.

Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012) 

(citation omitted).

After careful review of the record, the parties’ briefs, and the decision 

by the Honorable Daniel J. Anders, we affirm on the basis of the trial court’s 
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opinion.5 See Trial Ct. Op. at 3-6 (holding (1) there were insufficient 

specific and articulable facts for Officer Sweeney to have reasonably believed 

Appellee was armed and dangerous; and (2) there was insufficient evidence 

to support the Terry6frisk of Appellee). Accordingly, we affirm the order of 

the trial court granting Appellee’s motion to suppress.

Order affirmed.

P.J.E. Bender joins the Memorandum.

Judge Olson files a Dissenting Memorandum.

 

5 We note that the citation referring to Commonwealth v. Clinton is the 

citation for Commonwealth v. Gray. See Trial Ct. Op. at 5. 

6 Terry v. Ohio, 392 U.S. 1 (1968).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2016
As I approached, the defendant had his arms extended looking 

straight ahead and I asked him if he had something on him because 

Officer Sweeney testified: 

arms extended and was looking straight ahead, as in a superman-type motion. Id. at 8-9, 12. 

where Defendant was seated. As Officer Sweeney approached the vehicle, Defendant had his 

After stopping the vehicle, Officer Sweeney approached the passenger side of the vehicle, 

Officer Sweeney stopped the vehicle. N.T. 07/25/2015 at 6-7. 

Officer Sweeney determined that the vehicle was unregistered, Based upon this information, 

After inputting the vehicle license plate number into the database of Bureau of Motor Vehicles, 

routine patrol when he observed a red Ford Expedition on the 3600 block of North Broad Street. 

On February 10, 2015, at approximately 9:35pm, Police Officer Daniel Sweeney was on 

FACTUAL BACKGROUND 

Defendant's motion to suppress. 

For the reasons stated below, the Superior Court should affirm the trial court's decision to grant 

because the police officer had a reasonable suspicion that Defendant was armed and dangerous. 

appeal in which it argues that the trial comi erred in granting Defendant's motion to suppress 

motion to suppress a firearm recovered from his person. The Commonwealth filed a timely 

Following a suppression hearing, the trial court granted Defendant Lamar Batchler's 

LAMAR BATCHLER DEC 2 20\5 

Criminal Appeals Unit 

First Judicial District of PA OPINION 

vs. 2200 EDA 2015 

CP-5l-CR-0002120-2015 

FILED 

COMMONWEALTH OF PENNSYLVANIA 

II 111111111111111 11111111 

7376945531 

IN THE COURT OF COMMON PLEAS OF PHILADEI 

FIRST JUDICIAL DISTRICT OF PENNSYL, 

TRIAL DIVISION - CRIMINAL 

CP-5l-CR-00:>2!20.2015 Comm. v. llatch!e<. Lamar 

Opin;()n 

' ., ... 

Circulated 11/10/2016 04:03 PM 
-2- 

• Defendant did not make any attempt to flee or escape at any point during the 

stop. Id. at 24. 

• Defendant's identification was valid and that Defendant had no outstanding 

warrants. Id. at 23. 

• Defendant was cooperative and complied with all of Officer Sweeney's 

commands and orders during the entire stop. Id. at 21-22. 

On cross-examination Officer Sweeney conceded that: 

down to see if he had a weapon on him." Id. at 13-14. 

right" so he "had more than enough reason to pull [Defendant] out of the vehicle to pat him 

leaning to the left side of the vehicle, Officer Sweeney testified that, "I knew something wasn't 

type of weapon on him." Based upon Defendant's initial "superman-type motion" and then 

he believed Defendant was hiding something in his waistband and that "he possibly had some 

a firearm on the left side of Defendant's waist. Officer Sweeney searched the waist area because 

then searched him by conducting a pat down. During the pat down, Officer Sweeney discovered 

hands crossed on the armrest. Officer Sweeney asked Defendant to step out of the vehicle and 

point." Id. at 11. Defendant was sitting back in his chair and leaning over to the left side with his 

like as if he was concealing something from either my vantage point or my partner's vantage 

During the second approach, Officer Sweeney noticed Defendant was "sitting awkwardly 

the driver of the vehicle. Officer Sweeney approached the vehicle again. Id. at I 0. 

Officer Sweeney realized that he had not received registration or insurance for the vehicle or for 

identification, Officer Sweeney returned to his police vehicle. While inside the police vehicle, 

identification from his back pocket and provided it to the officer. After receiving the 

Id. at 9. Officer Sweeney asked Defendant for identification. Defendant retrieved his 

it made me a little suspicious. He appeared very nervous, very 

scared and said he didn't have anything on him. I told him I 

appreciate you showing me your hands but you can just relax and 

put them on your thighs and everything will be okay. 
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may conduct a Terry frisk to ensure his safety if the officer reasonably believes-based on 

v. E.M, 735 A.2d 654, 659 (Pa. 1999) (citing Teny v. Ohio, 392 U.S. 1 (1968)). A police officer 

discovery of weapons which might be used to harm the officer or others nearby." Co111111011wealth 

A Terry frisk is a police search that is strictly limited to "that which is necessary for the 

Commonwealth v. Byrd, 987 A.2d 786, 790 (Pa. Super. Ct. 2009). 

When the Commonwealth appeals from a suppression order, we 

follow a clearly defined standard of review and consider only the 

evidence from the defendant's witnesses together with the 

evidence of the prosecution that, when read in the context of the 

entire record, remains uncontradicted. The suppression court's 

findings of fact bind an appellate court if the record supports those 

findings. The suppression court's conclusions of law, however, are 

not binding on an appellate court, whose duty is to determine if the 

suppression court properly applied the law to the facts. 

orders, appellate courts apply the following standard ofreview: 

dangerous, which permitted him to frisk Defendant for weapons. In reviewing suppression 

suppress because Officer Sweeney had a reasonable suspicion that Defendant was aimed and 

On appeal, the Commonwealth argues that the trial court erred in granting the motion to 

DISCUSSION 

from the front of the waistband. Id. at 15-18. 

several arrests for firearms in that area and, in the majority of those arrests, recovered the firearm 

Sweeney regarded the area of Broad and Erie as a high narcotic, high crime area. He has made 

approximately one year of experience in the 39th district. Based upon his experience, Officer 

Officer Sweeney had 17 years of experience with the Philadelphia Police Department and 

• Officer Sweeney never observed a bulge or firearm on Defendant at any time 

during the stop, including when Defendant was seated inside the vehicle and 

when he exited the vehicle. Id. at 24-25. 

• Officer Sweeney never observed "any movement inside the car that looked 

suspicious." Id. at 24. 
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observed a bulge or unknown object anywhere on Defendant. Second, there is no evidence that 

firearm or a weapon on Defendant or even in the vehicle. In fact, there was no evidence that he 

Defendant. First, there is no evidence that Officer Sweeney observed anything resembling a 

Here, there are insufficient specific and articulable facts to support the Terry frisk of 

1. There Are Insufficient Specific And Articulable Facts To Support 

A Reasonable Belief That Defendant Was Armed And Dangerous 

( extreme nervousness combined with other factors can be sufficient). 

601, 607 (Pa. Super. Ct. 2006); but see Commonwealth v. Rogers, 849 A.2d 1185 (Pa. 2004) 

Even a suspect's nervous behavior is not sufficient by itself Commonwealth v. Gray, 896 A.2d 

areas require an individualized, reasonable suspicion that a suspect is armed and dangerous). 

sufficient grounds for a Terry search." Grahame, 7 A.3d at 816 (noting that even high crime 

Supreme Court has recognized that "an individual's location, standing alone, does not provide 

2006) (quoting Commonwealth v. Zahir, 751 A.2d 1153, 1158 (Pa. 2000)). The Pennsylvania 

facts in light of his experience." Commonwealth v. Stevenson, 894 A.2d 759, 771 (Pa. Super. Ct. 

'hunch,' but rather ... the specific reasonable inferences which he is entitled to draw from the 

investigative detention," courts do not consider an officer's "unparticularized suspicion or 

"When assessing the reasonableness of an officer's decision to frisk a suspect during an 

armed and dangerous. Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011). 

objectively reasonable police officer would have reasonably suspected" that the defendant was 

the suppression court to independently evaluate whether, under the particular facts of a case, an 

record developed during the hearing on the motion to suppress. Id. Moreover, "it is the duty of 

exists to support a Terry search, courts examine the totality of the circumstances of the facts of 

Grahame, 7 A. 3d 810, 814 (Pa. 2010). In determining whether a sufficient articulable basis 

specific and articulable facts-that the person may be armed and dangerous. Commonwealth v. 
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Defendant failed to comply with any order by Officer Sweeney. To the contrary, Officer 

Sweeney testified that Defendant complied with every command and order that he gave to 

Defendant. Third, Officer Sweeney testified that he never observed "any movement inside the 

car that looked suspicious." Fourth, Defendant's "superman pose" cannot be objectively 

regarded as a furtive movement. Indeed, officers often order individuals to show their hands or to 

put their hands up when conducting a traffic stop. Thus, the pose that Defendant took by 

extending his arms is exactly what you would expect a person to do in anticipation of being 

asked by an officer to show your hands. Fifth, although the vehicle was located in an area that 

Officer Sweeney regarded as a high crime area, the vehicle was stopped for a motor vehicle 

violation and not anything related to the use or possession of a firearm. At most, Defendant was 

nervous during the traffic stop; his nervousness resulted in Defendant being found in two, 

perhaps unnatural, seating positions: the Superman pose and then leaning up against the armrest, 

In sum, there are insufficient specific and articulable facts for Officer Sweeney to have 

objectively and reasonably believed that Defendant was aimed and dangerous. Instead, Officer 

Sweeney had an unparticularized suspicion or hunch that Defendant may have been aimed based 

upon the unnatural position that he was sitting, which was likely the result of the nervousness 

that typically is experienced when being stopped by a police officer. This evidence is insufficient 

to conduct a Terry frisk of Defendant. See, e.g., Gray, 896 A.26 at 607; Commonwealth v. 

Cooper, 994 A.2d 589 (Pa. Super. Ct. 2010) (reversing trial court's denial of motion to suppress 

where there was insufficient evidence to support the frisk of the defendant for weapons); 

Commonwealth v. Clinton, 896 A.2d 601 (Pa. Super. Ct. 2006) (same); Commonwealth v. 

Carter, 779 A.2d 591 (Pa. Super. Ct. 2001) (same). 
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' Dated: December 2, 2015 

BYT fcoURT·: 

Based on the foregoing, the order granting the motion to suppress should be affirmed. 

CONCLUSION