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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENN SYLVANIA 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., OLSO N, 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, 1 firearms not to be carried without a license, 2 and 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

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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 r uling 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 iss ue 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 [Appe llee], 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

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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 h is 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, th e 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 re viewing 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 conducti ng 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 findi ngs 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 t he record, the parties’ briefs, and the decision by the Honorable Daniel J. Anders, we affirm on the basis of the trial court’sJ

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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 h ave reasonably believed Appellee was armed and dangerous; and (2) there was insufficient evidence to support the Terry 6 frisk 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 Te rry v. Ohio , 392 U.S. 1 (1968).J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary
Date: 12/6/2016As 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 2200 EDA 2015 

## vs. CP-5l-CR-0002120-2015 

# F IL E D 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. 2 01 5 Comm

. v . lla tch!e<

. L am a r O p i n ;() 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.-3-

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.-4-

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.-5-

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).-6- ' Dated: December 2, 2015 BYT 

## fcoURT
· : Based on the foregoing, the order granting the motion to suppress should be affirmed. CONCLUSION