J

### -A14021-19
NON-PRECEDENTIAL DECISION - SEE 

### SUPERIOR COURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA 

### Appellant

v.
TERREL PATRICK DIXON : No. 1320 WDA 2018 Appeal

### from the Order Entered, 

### September 11, 

### 2018, in 

### the Courtof Common Pleas 

### ofAllegheny County, Criminal Division at No(s): 

### CP-02-CR-0011754-2017.
BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J. MEMORANDUM BY KUNSELMAN, J.: 

### FILEDAUGUST 

### 01, 2019 The 

### Commonwealth appeals 

### from the order granting Terre! Patrick Dixon's 

### motion to suppress evidence obtained by police 

### incident to a 

### warrantless search conducted as 

### partof a stop and 

### frisk. We 

### affirm. The suppression 

### court stated its 

### findings of

### fact as 

### follows. 

### [Officer] Michael Catanzaro, an 

### 18[

### -]year veteran of the Wilkinsburg Police 

### Department, was assigned to pick up a 

### [police] vehicle 

### from a 

### department mechanic on 

### September 12, 2017. He was

### traveling in an 

### unmarked vehicle and in plain clothes. At 

### approximately 11:45 a.m., Officer Catanzaro was 

### driving through the900 block of 

### StonerWaywhen he observed two black males

### standing in 

### the backyard 

### [sic] of921 RossAvenue. Officer Catanzaro did not recognize 

### either of the males, 

### although subsequently itwas 

### determined

### that

. . . Dixon

. . . was

### from

### that area. As 

### Officer Catanzaro approached, the two males walked away 

### from the backyard 

### [sic], so he radioed 

### the patrol officers to stop and 

### talk to 

### [Dixon].J

### -A14021-19
Officer Catanzaro 

### testified 

### that he noticed 

### [Dixon] 

### "tap" his 

### right side in a 

### manner he 

### thought was 

### consistent with carrying a concealed weapon. There 

### [were] no 

### active calls 

### for assistance in 

### that specific area, and no 

### recent known criminal 

### activity. The 

### only 

### testimony was 

### that there were several cases 

### thatwere assigned to 

### the Criminal 

### Investigations Division, including burglaries and a 

### robbery 

### that occurred in 

### that general area. 

### Additionally, Officer Catanzaro 

### testified 

### that he executed a search 

### warrant one block 

### over 

### approximately two months prior. When

### the patrol 

### unitstopped 

### [Dixon], [he] appeared 

### nervous, and looked 

### about the area 

### from side to side. For 

### this reason, 

### Officer Catanzaro directed 

### that Officer Granger conduct a pat down to 

### determine whether [Dixon] was armed. 

### It was 

### unknown to 

### Officer Catanzaro 

### whether [Dixon] had a license to 

### carry a concealed weapon, and 

### [he] stated

### that [Dixon] "appeared to be someone 

### that would not be 

### eligibleto possess a 

### permit to 

### carry a 

### firearm concealed." Officer Catanzaro did not 

### elaborate on

### this 

### statement, but it is implied in 

### the

### testimony

### that itwas due to 

### [Dixon] not

### attaining the age 

### of21 atthe

### time ofthe offense. Trial Court Opinion, 

### 9/11/18, at 1-2 

### (citations to 

### the record and 

### formatting omitted). When 

### Officer Granger performed the pat down on Dixon, he discovered

a 

### firearm in his 

### waistband. The police 

### arrested Dixon and charged him 

### with a single 

### count of

### firearms notto be carried 

### without a 

### license.' Dixon filed a 

### motion to suppress 

### the evidence. A suppression hearing
was held on May 24, 

### 2018, and on 

### August 13, 2018, the suppression 

### court orally granted Dixon's 

### motion. The 

### Commonwealth petitioned the 

### court to issue 

### findings of 

### fact and conclusions of law, and filed a 

### motion 

### for


### ' 18 Pa.C.S.A. § 

### 6106(a)(1). 

## -2J

### -A14021-19
reconsideration. On 

### September 11, 2018, the suppression 

### court issued its 

### writtenfindings of

### fact and conclusions of law, and 

### entered an 

### ordergranting suppression on 

### the basis

### that the facts, as provided by 

### Officer Cantanzaro's 

### testimony at the suppression hearing, did not establish 

### "the requisite reasonable suspicion

### thatcriminal

### activitywas

### afootto stop and

### frisk

### [Dixon]." Trial 

### Court Opinion, 

### 9/13/18, at 2. 

### That same day, 

### the suppression 

### court denied 

### the Commonwealth's motion 

### for reconsideration. The 

### Commonwealth filed a 

### timely notice of appeal. Both 

### the Commonwealth and 

### the 

### trial court complied 

### with Pa.R.A.P. 1925. The 

### Commonwealth raises one issue on appeal: 

### "Whether the 

### trial court erred in 

### finding 

### that the police 

### officer did not have reasonable suspicion to believe 

### [Dixon] was 

### carrying an 

### unlawful 

### firearm, and 

### therefore, lacked 

### grounds to stop and search 

### him?" Commonwealth's Briefat 4. When, as here, police haveacted 

### without a 

### warrant, "determinations of reasonable suspicion and probable cause should be reviewed de 

### novo on 

### appeal." 

### Ornelas v. 

### UnitedStates, 517 U.S. 

### 690, 699 

### (1996). But "a 

### reviewing 

### court should 

### take care both to review 

### findings of historical 

### factonly forclear

### error and to give due

### weightto inferences drawn 

### from thosefacts by 

### resident

### judges and local law 

### enforcement officers." 

### Id. Because Dixon prevailed atthe suppression hearing 

### "we consider only the evidence of 

### [Dixon] and so much of

### the evidence

### for the Commonwealth
as remains 

### uncontradicted when read in 

### the 

### context of the suppression 

## -3J

### -A14021-19 hearing record as a 

### whole." 

### Commonwealth v. 

### Lukach, 195 A.3d 176, 183 (Pa. 

### 2018) 

### (citations and 

### quotation marks

### omitted). As

### forthesubject 

### matter, "our scope 

### of review is 

### limited to 

### the factual 

### findings and legal conclusions of the suppression 

### court." 

## In re L.1., 79 A.3d 1073, 1080 (Pa. 

### 2013). Additionally, citing to 

### L.1., this Court has said 

### "our scope of review 

### from a suppression ruling is 

### limited to 

### the 

### evidentiary record 

### thatwas created at 

### the suppression 

### hearing." 

### Commonwealth v. 

### Cruz, 166 A.3d 1249, 1254 (Pa. Super. 

### 2017),

### appealdenied, 180 A.3d 1207 (Pa. 

### 2018). Generally, "searches and seizures conducted 

### outside the 

### judicial process, 

### without prior approval by 

### judge or 

### magistrate, are 

### per se unreasonable underthe Fourth

### Amendment-subjectonlyto afew 

### specifically established and well 

### delineated 

### exceptions." 

### Commonwealth v. 

### Wilson, 655 A.2d 557, 560 (Pa. Super. 1995) 

### (citations and 

### quotation marks 

### omitted). One recognized 

### exception is 

### where an 

### officer has reasonable suspicion to believe 

### that criminal 

### activity is 

### afoot, and 

### that an 

### individual 

### might be armed and dangerous. 

### Terryv. 

### Ohio, 392 U.S. 1, 30, 

### (1968). When 

### thisthreshold is 

### satisfied, the officer "is entitled 

### for the protection of himself and 

### others in 

### the area to 

### conduct a 

### carefully limited search 

### of the 

### outer clothing of such persons in an 

### attempt to 

### discover weapons which 

### might be used to assault 

### him." 

### Id. Such a

### "limited search" is 

### commonly referredto as an 

### investigatory detention or a 

### Terry stop.



## -4J

### -A14021-19
For an 

### investigatory detention to be legal 

### under 

### Terry, the 

### officer's reasonable suspicion 

### of criminal 

### activity must be 

### supported by specific and 

### articulable observations 

### "of suspicious or 

### irregular behavior on behalf of the 

### particular 

### [individual] stopped." 

### Commonwealth v. 

### Martinez, 588 A.2d 513, 515 (Pa. Super. 1991) 

### (citations

### omitted). Reasonable suspicion is a less 

### stringent standard than probable cause. 

### See 

### Commonwealth v. 

### Conrad, 892 A.2d 

### 826, 829 (Pa. Super. 

### 2006). Nevertheless, in 

### order to establish reasonable suspicion, the 

### officer

### "must be able to 

### articulate something more than an inchoate and 

### unparticularized suspicion or 

### hunch." 

### UnitedStatesv. 

### Sokolow, 490 U.S. 1, 7 

### (1989) (citations and 

### quotation marks 

### omitted). In 

### order to 

### determine whether an 

### officer had reasonable suspicion to 

### lawfully initiate an 

### investigatorydetention, we lookto

### the

### totalityof

### thecircumstances. 

### Commonwealth v. 

### Semuta, 902 A.2d 1254, 1259 (Pa. Super. 

### 2006). The 

### Commonwealth argues 

### that the suppression 

### court erred in 

### finding 

### that the officers lacked reasonable suspicion to 

### justify the 

### investigatory detention and 

### the limited search of Dixon's person 

### for weapons. 

### Commonwealth's Brief at 21. According to 

### the Commonwealth, the 

### investigatory detention and search 

### were supported by Officer Cantanzaro's 

### testimony 

### that (1) he had 18 years of experience as a police 

### officer in 

### Wilkinsburg; (2) he observed two 

### unfamiliar males 

### standing in 

### the backyard of a 

### "high crime 

### area;" (3) while he 

### drove past, he 

### noticed, 

### through his 

### rearview 

### mirror, one ofthe males

### "tap" his 

### waistband in a 

### manner consistent 

## -5J

### -A14021-19
with someone concealing a 

### firearm; (4) 

### after Officer Granger had stopped Dixon, Dixon appeared nervous and looked 

### about the area 

### from side to side 

### indicating an 

### intentto

### flee; and 

### (5) Dixonappeared to betooyoungto possess

a valid license to 

### carry a concealed 

### firearm. 

### Id. at 

### 23-24; 

### see 

### also N.T. Suppression, 

### 5/24/18, at 57, 59, 60, 62, 63. In 

### supportofits

### argument,theCommonwealth relies upon several cases in which 

### this Court determined 

### that there was reasonable suspicion to

### justify
an 

### investigatorydetention. See 

### Commonwealth v. 

### Carter, 105 A.3d 765, 

### 774-75 (Pa. Super 2014) 

### (finding reasonable suspicion where police observed the

### defendant in a high 

### crime area, 

### walking awayfrom a known drug 

### corner, with a 

### weighted and angled bulge in his coat pocket, and 

### repeatedly 

### attempting to conceal

### the bulge in his pocketonce alerted to police 

### presence); 

### Commonwealth v. 

### Foglia, 979 A.2d 357, 361 (Pa. Super 2009) 

### (finding reasonable suspicion where police received an 

### anonymous tip 

### that a man dressed in black possessed a 

### firearm at a location known 

### for its high 

### volume ofdrugs and weapons, and upon

### arrival at the location, police observed a man dressed in blackwho engaged in evasive behavior by

### walking awayfrom the police and looking 

### over his 

### shoulder before 

### sitting down behind some 

### females); and 

### Commonwealth v.

### Stevenson, 894A.2d 759, 764 (Pa. Super 2006) 

### (finding reasonable suspicion where police 

### officers were standing behind an 

### individual in a convenience store and observed 

### that his pocketwas bulging and 

### weighted down as if it contained a 

### firearm, and 

### the individual 

## -6J

### -A14021-19 began to 

### suspiciously 

### adjust his 

### clothing and 

### contents of his pocket while 

### continuously looking back 

### over his 

### shoulder at the 

### officers) However, thosecases are

### factuallydistinguishablefromthis case. Here, Officer Cantanzaro did 

### not 

### testify that he observed any bulge in Dixon's 

### clothing, nor did he 

### state 

### that any aspect of Dixon's clothes appeared to be 

### weighted down. Rather, 

### Officer Cantanzaro 

### testified 

### that he became suspicious of Dixon because he placed his hand on 

### "his

### frontwaist

### area." See N.T. Suppression, 

### 5/24/18, at 66. Notably, Officer Cantanzaro conceded

### that Dixon was not 

### carrying anything in his hands 

### thatwas suspicious, and 

### that he did not see Dixon 

### commit any 

### crime as he passed. 

### Id. Officer Cantanzaro 

### furtherconceded

### that he was 

### not in

### the area to

### conductany 

### investigation, and 

### the officers received no active calls or 

### anonymous tips regarding suspicious individuals or

### activity in

### that area at

### that particular time. 

### Id. at 73. Moreover, 

### while the Commonwealth contends

### that Dixon was in a high 

### crime area, 

### the suppression 

### court made no such 

### finding.2 

### Additionally, the

2 Thesuppression record does not 

### reflect a high 

### volumeof cases in 

### this area. 

### Indeed, Officer Cantanzarotestified only 

### that"several cases

### were assigned to 

### the Criminal 

### Investigations Division, including burglaries and a 

### robbery 

### that occurred in 

### that general 

### area." See N.T. Suppression, 

### 5/24/18, at 58. He also 

### testified 

### that he made 

### one narcotics related 

### arrest and executed 

### one search

### warrant nearby 

### roughlytwo months 

### prior to Dixon's 

### arrest. 

### Id.


## -7J

### -A14021-19 suppression 

### court made no 

### finding 

### that Dixon walked away in a suspicious or evasive manner.3 

### AlthoughtheCommonwealth argues

### thatOfficerCantanzaro's

### testimony regarding Dixon's nervous disposition and 

### youthful appearance should be considered as 

### part of the

### totality ofthe circumstances 

### thatjustified the stop,
we 

### cannot include these 

### observations in 

### our analysis because 

### they occurred 

## after Officer Granger stopped Dixon. 

### See 

### Martinez, 588 A.2d at 516 

### (holding 

### that the

### totality ofthe circumstances analysis 

### must be 

### limited to 

### the facts known to 

### the officers

## priorto 

### initiating the stop). Even if Officer Cantanzaro reported to Officer Granger 

### that he saw a 

### firearm protrudingfrom Dixon's

### waistband, or

### what appearedto be

### the

### outline of a 

### firearm concealed by Dixon's 

### clothing, the officers would 

### still lack reasonable suspicion in 

### order to 

### justify an 

### investigatory detention. See 

### Commonwealth v. 

### Hicks, 208 A.3d 

### 916, 949 (Pa. 

### 2019) (concluding 

### that therewas no reasonable suspicion to

### justify an 

### investigatorydetentionwhere the police received a 

### report

### that an 

### individual exited his

### vehicle

### with a 

### firearm visible in his

### waistband, and 

### subsequently pulled his 

### shirt overthe 

### firearm to

3 The suppression record 

### supports the absence 

### of such a 

### finding because Officer Cantanzaro 

### merely testified 

### that, as he was 

### driving past Dixon in an 

### unmarked police car, 

### while in plain 

### clothes, he saw 

### "the lead male

### walk away 

### first in a 

### hurried 

### manner." See N.T. Suppression, 

### 5/24/18, at 59; 

### see

### also 

### Commonwealth v. 

### Key, 789 A.2d 282, 

### 289-90 (Pa. Super. 

### 2001) (holding 

### that merely walking away 

### from the police does not provide reasonable suspicion). 

## -8J

### -A14021-19
conceal it as he walked into a gas 

### station). According to 

### Hicks, the mere possession 

### of a concealed 

### firearm in public is not enough to establish reasonable suspicion because such rule 

### "allows a police 

### officer to base 

### the decisionto detain a 

### particularindividual upon an inchoateand 

### unparticularized suspicion or hunch

### that the individual is unlicensed and 

### therefore engaged in 

### wrongdoing. 

### Id. at 946 

### (internal quotationsand 

### citations 

### omitted). In 

### ourview, this case is

### factuallysimilar to 

### Martinez, where this Court determined 

### that reasonable suspicion was not established where the facts known to 

### theofficers priorto 

### initiatingthe 

### investigatorydetention established only 

### "that Martinez was 

### talking with a group of people on a 

### street corner at 

### 12:20 A.M., she walked away

### quite rapidly 

### after looking in 

### the direction of an 

### unmarked police 

### vehicle, and her

### jacket appeared to have a bulge in 

### it." 

### Id. at 516 

### (internal quotation marks 

### omitted). This 

### Court held 

### that these facts did not 

### amount to reasonable suspicion 

### that Martinez was armed and dangerous or

### thatcriminal 

### activitywas afoot. 

### Id. The 

### observations by police in 

### this case are even less 

### than those at issue in 

### Martinez, since 

### Officer Cantanzaro 

### merely observed Dixon in a 

### backyard, touch his 

### waistband, and begin to 

### quicklywalk down 

### the 

### street. Limiting our analysis to 

### the facts known to 

### Officer Cantanzaro 

### prior to 

### directing Officer Granger to 

### initiate an 

### investigative detention of Dixon, we agree 

### with the suppression court's 

### determination 

### that the evidence was 

### insufficientto establish a reasonable suspicion

### thatcriminal 

### activitywas afoot. 

## -9J

### -A14021-19
See

### Hicks,

### supra; Martinez,supra. Accordingly, we 

### affirmthesuppression court's 

### order granting Dixon's 

### motionto suppress 

### theevidence. Order

### affirmed.
Judgment Entered. 

### 4 199

- Joseph D. 

### Seletyn, Prothonotary

Date: 

### 8/1/2019

- 10 -