J-S63010-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

KHYREE GARDENHIRE

Appellant No. 1598 WDA 2016

Appeal from the Judgment of Sentence September 27, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0003073-2016

BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: FILED DECEMBER 12, 2017

Khyree Gardenhire appeals from the September 27, 2016 judgment of 

sentence of three to six months imprisonment imposed following his benchtrial convictions for possession of a controlled substance with intent to 

deliver (“PWID”) and possession of a controlled substance. We affirm.

The trial court succinctly summarized the facts adduced at the 

suppression hearing as follows:

[At approximately 7:00 p.m.] on November 17, 2015, Detective 

Joseph Brown, and his partner, Detective Robinson, entered an 

establishment known as Red's [Ringside Café] on Warrington 

Avenue, Pittsburgh, PA, to apprehend a suspect wanted under an 

active arrest warrant and who fit the description given by 

another detective. (N.T., [9/27/16, at] 5) Upon entering, 

Detective Brown observed two males sitting next to each other 

within several feet of the entrance of the door. ([Id. at] 5) One 

male fit the description for the arrest warrant, and the other 

male was Appellant who was wearing a ski mask [covering his 
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face]. ([Id.]) Once the detectives approached the men, the man 

who fit the arrest warrant description spontaneously uttered, "I 

have a gun[.]" ([Id. at 5-6]). Thereafter, Detective Robinson 

began to frisk [that] suspect for firearms.

At that point, Detective Brown observed Appellant, with his 

hand in his pocket, clenching on an unknown object. ([Id. at] 6) 

Furthermore, Detective Brown testified to the fact that the 

establishment is located in a high-crime area, for it was well 

known that the establishment had a history of violence. ([Id. at]

7) Due to this circumstance and because Detective Brown feared 

for his safety, he said to Appellant, "Sir, get your hand out of 

your pocket. Take your hands out. Let me see your hands." ([Id. 

at] 6) Appellant then removed his left hand from his pocket[, 

holding “89 stamp bags of heroin.”] ([Id].) At that time, 

Detective Brown, who had experience with the packaging and

appearance of heroin, believed Appellant possessed heroin. 

([Id.]) Appellant was then handcuffed and placed under arrest 

by Detective Brown. [Id. at 7]. 

Trial Court Opinion, 6/16/17, at 1 (footnote omitted).

The trial court made credibility determinations in favor of Detective 

Brown regarding his account of the interaction with Appellant, found that the 

interdiction was constitutional, and denied Appellant’s motion to suppress 

the physical evidence of the heroin. Following a non-jury trial, Appellant 

was convicted of possession of a controlled substance with intent to deliver 

and possession of a controlled substance. Appellant waived the presentence 

investigation, and the trial court immediately imposed the above-referenced 

sentence of three to six months imprisonment for PWID. No further penalty 

was imposed on the possession conviction. This timely appeal followed. 

Appellant complied with the trial court’s directive to file a concise 

statement of matters complained of appeal pursuant to Pa.R.A.P. 1925(b). 
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While the Rule 1925(b) statement leveled four interrelated issues 

challenging the trial court’s denial of his motion to suppress the physical 

evidence, Appellant condensed these claims into one question on appeal,

“Whether the trial court erred in denying appellant’s motion to suppress.” 

Appellant’s brief at 3. 

Our standard of review when reviewing an order denying a 

suppression motion is well settled. 

An appellate court may consider only the Commonwealth's 

evidence and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record 

as a whole. Where the record supports the factual findings of 

the trial court, the appellate court is bound by those facts and 

may reverse only if the legal conclusions drawn therefrom are in 

error. However, it is also well settled that the appellate court is 

not bound by the suppression court's conclusions of law. 

Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657, 663-64 (Pa.Super. 

2015) (citations omitted). Further, “[w]ith respect to factual findings, . . . it 

is the sole province of the suppression court to weigh the credibility of the 

witnesses[, and] the suppression court judge is entitled to believe all, part or 

none of the evidence presented.” Id. at 664 (quoting Commonwealth v. 

Benton, 655 A.2d 1030, 1032 (Pa. 1995)). Our scope of review is limited to 

the evidence presented at the suppression hearing. In re L.J., 79 A.3d 

1073, 1080 (Pa. 2013). 

At the outset, we review the three categories of police interdiction and 

the corresponding levels of suspicion required to support those interactions. 
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The first of these is a “mere encounter” (or request for 

information) which need not be supported by any level of 

suspicion, but carries no official compulsion to stop or respond. 

The second, an “investigative detention” must be supported by 

reasonable suspicion; it subjects a suspect to a stop and period 

of detention, but does not involve such coercive conditions as to 

constitute the functional equivalent of arrest. Finally, an arrest or 

“custodial detention” must be supported by probable cause.

Commonwealth v. Williams, 73 A.3d 609, 613 (Pa.Super. 2013). 

Appellant’s first contention is that Detective Brown was not entitled to 

the benefit of the good faith exception to the exclusionary rule, which is not 

currently recognized in Pennsylvania. This argument is wholly misplaced

because it assumes inaccurately that the detective’s interaction with 

Appellant was based upon an invalid arrest warrant. Appellant equates the 

case at bar with the scenarios in Commonwealth v. Edmunds, 586 A.2d 

887 (Pa. 1991) and Commonwealth v. Johnson, 86 A.3d 182 (Pa. 2014), 

two cases where our High Court refused to apply the good faith exception to 

the exclusionary rule as a result of the Commonwealth’s execution of an 

invalid search warrant. In Edmunds, the High Court rejected the trial 

court’s application of the good faith exception to admit marijuana found in a 

home pursuant to a search warrant as the warrant did not list that particular 

structure. Similarly, in Johnson, the Supreme Court concluded that 

Pennsylvania would not adopt the good faith exception for the purpose of 

admitting physical evidence obtained incident to an invalid arrest warrant 
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that was executed following the traffic stop of a car in which the appellant 

was a passenger. 

Relying upon Edmunds and Johnson, Appellant argues that, since 

the only reason Detective Brown was at Red’s Ringside Café was to execute 

an arrest warrant on a person who matched the description of a possible 

suspect, the evidence seized from the subsequent interdiction with him must 

be suppressed. He reasons that all three cases align because Detective 

Brown was “operating under the good faith as to the validity of a warrant” 

when he initiated the interdiction with Appellant. Appellant’s brief at 13. We 

disagree. 

Appellant’s fixation with the good faith exception is a red herring. 

First, unlike the private residence in Edmunds or the automobile in 

Johnson, Appellant was sitting in a bar, a place of public accommodation,

wearing a ski cap over his face when Detective Brown approached him and 

his companion, who spontaneously volunteered that he was armed. At that 

point, Detective Brown’s purpose for entering the bar was immaterial. In 

reality, unless there was some show of force leading a person to feel 

compelled to answer, when Detective Brown approached Appellant and his 

companion in a public place, it was a mere encounter that required no level

of suspicion. Terry v. Ohio, 392 U.S. 1, 34, (1968) (“There is nothing in 

the Constitution which prevents a policeman from addressing questions to 

anyone on the streets.”). As Detective Brown was authorized to be present 
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in the bar regardless of his possession of an arrest warrant, valid or not, the 

case law that Appellant seeks to invoke is inapt because the warrant was not 

the basis for the seizure. Stated plainly, unlike the contacts in Edmunds

and Johnson, the initial interaction between Appellant and Detective Brown 

was constitutional notwithstanding the arrest warrant. 

Appellant’s second argument actually addresses the pertinent question

in this appeal, i.e., whether Detective Brown was justified in requesting that 

Appellant remove his hands from his pockets. Appellant claims that 

Detective Brown lacked reasonable and articulable suspicion pursuant to 

Terry, supra, to justify the seizure. Appellant’s perspective is founded 

squarely upon the assertion that Detective Brown brandished his sidearm 

and leveled it at him while the detective repeated his directive for Appellant 

to remove his hands from his pocket. Unfortunately for Appellant, Detective 

Brown categorically denied that he brandished his service weapon during the 

exchange, and the trial court made an explicit credibility determination in 

the detective’s favor. N.T., 9/27/16, at 10, 23. In light of our deference for 

the trial court’s role as the ultimate arbiter of fact, we are bound by its 

decision. See Tam Thanh Nguyen, supra. Thus, this aspect of 

Appellant’s argument is baseless.

Nevertheless, we agree that Appellant was seized when Detective 

Brown demanded that Appellant remove his hands from his pockets. The 

relevant question is whether the directive was so restrictive and 
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authoritative that a reasonable person would feel compelled to comply. 

Florida v. Bostick, 501 U.S. 429, 436 (1991) (“the appropriate inquiry is 

whether a reasonable person would feel free to decline the officers' requests 

or otherwise terminate the encounter”); Commonwealth v. Mathis, 2017 

WL 5617623, at *10 (Pa. 2017) (quoting Commonwealth v. Mendenhall, 

715 A.2d 1117, 1120 (Pa. 1998)) (“the pivotal inquiry is whether, 

considering all the facts and circumstances evidencing the exercise of force, 

a reasonable person would have thought he was being restrained.”). 

In Mathis, supra our Supreme Court recently addressed this precise 

issue and concluded that Mathis had not been detained when parole officers 

interacted with him while conducting a routine home visit of another 

individual. The High Court reasoned that a reasonable person would not 

have felt restrained from leaving the home when left alone in the kitchen 

with clear access to an exit while the agents focused attention on the 

parolee, and, when an agent spoke to Mathis, he used a conversational tone

and polite requests explained in terms of ensuring safety. 

The instant scenario is different from the relaxed interaction depicted 

in Mathis. There was no indication that Appellant could access the bar’s 

exit, that Detective Brown used a conversational tone, or that he politely 

explained the request in terms of safety. Instead, Detective Brown 

approached Appellant while he was seated at a table in the bar and prior to 

initiating the encounter, Detective Brown immediately and repeatedly 
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demanded that Appellant reveal his hands. Under these circumstances, a 

reasonable person would not have believed he was free to ignore Detective 

Brown’s request. 

Once the encounter escalated to a seizure, the interaction needed to 

be justified or supported by reasonable suspicion to be constitutional

pursuant to Terry. “To establish reasonable suspicion, the officer must 

articulate specific observations which, in conjunction with reasonable 

inferences derived from those observations, led him to reasonably conclude, 

in light of his experience, that criminal activity was afoot and that the person 

he stopped was involved in that activity.” Commonwealth v. Caban, 60 

A.3d 120, 128 (Pa.Super. 2012) (citation omitted). The applicable test is an 

objective one. As the Supreme Court explained in Terry: 

[I]n justifying the particular intrusion the police officer must be 

able to point to specific and articulable facts which, taken 

together with rational inferences from those facts, reasonably 

warrant that intrusion. The scheme of the Fourth Amendment 

becomes meaningful only when it is assured that at some point 

the conduct of those charged with enforcing the laws can be 

subjected to the more detached, neutral scrutiny of a judge who 

must evaluate the reasonableness of a particular search or 

seizure in light of the particular circumstances. And in making 

that assessment it is imperative that the facts be judged against 

an objective standard: would the facts available to the officer at 

the moment of the seizure or the search ‘warrant a man of 

reasonable caution in the belief’ that the action taken was 

appropriate? 

Terry, supra at 21-22.
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Instantly, Appellant’s detention was justified due to the danger posed 

by Appellant and his companion. Upon entering a bar that is considered a 

high-crime location, Detective Brown observed Appellant sitting with a ski 

mask covering his face despite the mild temperature. Appellant was in close 

proximity with another male who, after seeing detectives approaching, stood 

up and exclaimed, “I have a gun!” N.T., 9/27/16, at 6, 8, 16. Almost 

simultaneously, Detective Brown observed Appellant set down the object 

that he had been holding, place his hand in the pocket of his hooded 

sweatshirt, and clench a concealed object. The detective made the 

reasonable inference that Appellant posed a threat, and since Appellant’s 

movements placed Detective Brown in fear for his safety, he instructed, “Sir, 

get your hand out of your pocket. Take your hands out. Let me see your 

hands.” Id. at 6. We have no doubt that a safety concern was presented 

when Appellant’s cohort announced that he was armed because that 

statement necessarily contributes to the totality of the circumstances 

analysis when assessing whether Appellant posed a safety risk to Detective 

Brown. See Mathis, supra at *9 (“parole agents have the authority to 

conduct a protective Terry frisk of non-parolees within the course of 

executing their statutorily imposed duties, so long as reasonable suspicion 

supports the agents' conduct.”).1 Thus, examining the totality of the 

____________________________________________

1 Notably, the detective herein did not conduct a frisk, he simply asked that 

(Footnote Continued Next Page)
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circumstances, it is obvious that the foregoing scenario established that 

Appellant posed a danger and that a legitimate fear for the detectives’ safety 

existed to support a custodial seizure pursuant to Terry, supra. See 

Mathis, supra at *11 (collectively, nervous behavior, speech, and furtive 

movements suggesting a concealed weapon “justified . . . investigating 

further in order to ensure that the object was not a firearm.”). Appellant’s 

claim that the seizure was unjustified is unavailing. 

Finally, we observe that Detective Brown’s directive for Appellant to 

expose his hands was not tantamount to a search insofar as the detective

did not frisk Appellant or order him to remove the items from his pocket. 

Accordingly, to the extent that Appellant voluntarily removed the heroin 

from his pocket in bringing his hands into view, the contraband was 

discovered in plain sight. Thus, inasmuch as the temporary detention was 

constitutional under Terry, no basis existed to suppress the physical 

evidence found in plain sight. 

Judgment of sentence affirmed. 

(Footnote Continued) _______________________

Appellant show his hands. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/12/2017