J-A27024-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellant

v.

ADAM BUTLER

Appellee No. 64 EDA 2017

Appeal from the Order entered November 29, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0004677-2015

BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J. 

MEMORANDUM BY STABILE, J.: FILED FEBRUARY 22, 2019

The Commonwealth appeals from the November 29, 2016 order of the 

Court of Common Pleas of Philadelphia County reversing the municipal court’s

order of May 5, 2015, and granting suppression in favor of Appellee, Adam 

Butler. After review, we reverse the trial court’s order, and reinstate 

Appellee’s judgment of sentence. 

The relevant factual and procedural background can be summarized as 

follows. On May 29, 2014, at approximately 1:20 p.m., Police Officer Anthony 

Case was on duty in the high crime area of 2552 Page Street in Philadelphia, 

conducting routine checks based on numerous complaints of individuals 

stealing electricity from abandoned houses or houses in which they do not

reside. While traveling in his vehicle on Page Street, Officer Case saw 

Appellee, along with another male, sitting in front of a residence. While in his 
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vehicle, Officer Case approached Appellee, asking him whether he lived at that 

residence. Appellee became irate, stating, “Constitutionally, you have no right 

to talk to me.” N.T. Suppression, 9/10/14, at 15. Officer Case asked Appellee 

to calm down, as he had merely asked him whether he lived at that residence.

While still in his vehicle, Officer Case then asked Appellee to show him 

some identification. Appellee refused to do so, stating, “I don’t have to show 

you my ID.” Id. After this exchange, Appellee got up, started moving back 

and forth, while yelling and being otherwise so loud that he drew people out 

of their residences. While yelling, Appellee approached the officer’s car quickly 

without being asked to do so. That in turn, prompted the officer, for his own 

safety, to get out of the vehicle. See id. at 16. Officer Case asked Appellee 

to stand back. “At this point, [Appellee and the officer were] standing outside 

the [police] car in the middle of the street.” Id. Appellee was yelling, raising 

his arms, “starting to foam at the mouth,” and refusing to give the officer his 

identification and his name. Id.

Officer Case then stated, “Look. If you live here or not, it’s not a big 

deal. Even if you don’t live here you can just be on your way. I don’t want 

to make a big thing out of it.” Id. at 17. The officer described what happened 

subsequently as follows:

That’s when [Appellee] started taking a bladed stance, and by that 

I mean a defensive stance, where he turns his shoulder, as he’s 

concealing his backside. 
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At that point after seeing how many people were outside[,] I didn’t 

want to have a situation where I was going to be in jeopardy, I 

called for more officers to take my spot.

[As two officers were coming up, Appellee] was going into his back 

rear right pocket. The two officers helped me, assisted me with 

controlling [Appellee] so he wasn’t able to pull out what he had in 

his pocket.

We put him in custody for identification purposes. [One of the 

officers who came up to assist Officer Case], pulled [a black Pit 

Bull stun gun from Appellee’s back rear right pocket. [The other 

officer pulled a very large Smith and Wesson cutting blade]. 

[Accordingly, Appellee was put under arrest and transported to 

the police headquarter].

N.T. 9/10/14, at 17-18.1

Appellee called as a witness, Julius Anthony McDonald, who testified that 

he resided at 2552 West Page Street, Philadelphia; that he was related by 

marriage to Appellee; and that Appellee, who was arrested outside his 

residence, had asked him and obtained his permission to use the electricity 

outside his residence.

The suppression court, in denying Appellee’s motion to suppress, did not 

make formal findings of facts. However, it stated the following:

[The encounter] goes off the rails [] when it comes to an issue of 

officer safety and the officer testified concerning what he felt was 

a defensive stance and he was sitting in the car at this point. 

Caused him to get out of the car[.] . . . [O]nce that happened 

then the officer felt that he was in -- he had legitimate reason to 

____________________________________________

1 As a result, Appellee was charged with disorderly conduct and possession of 

a prohibited offensive weapon (i.e., the stun gun). 
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make sure that [Appellee] was not armed. . . . [T]he officer had 

a legitimate concern about his safety and it turn out to be correct.

N.T. 9/10/14, at 41-42.2

Appellee filed an appeal to the Court of Common Pleas seeking a trial 

de novo. Subsequently, Appellee filed a motion for extraordinary relief 

seeking to amend his petition for trial de novo into a writ of certiorari, which 

the trial court granted. Reviewing the matter in the context of a writ of

certiorari, the trial court found that the encounter started as a mere encounter 

and then turned into an illegal detention due to Officer Case’s conduct. The 

trial court noted that nothing in the circumstances surrounding the interaction 

between the officer and Appellee justified detaining Appellee. The trial court 

also noted that Officer Case never checked to see if Appellee had permission 

to be at that address. The trial court concluded:

The lack of an objective belief of criminal activity, the time of day, 

the repetitive and continued questioning of Officer Case and his 

show of force by exiting his patrol car and calling for backup, 

combined with his informing the Appellee that he suspects him of 

stealing electricity elevated the mere encounter to an unjustified

investigatory detention[.]

Trial Court Opinion, 11/3/17, at 9 (emphasis in original). Accordingly, the trial 

court overruled the municipal court’s order denying Appellee’s motion to 

suppress. This appeal followed. 

____________________________________________

2 After denying the motion to suppress, the municipal court found Appellee 

guilty of both charges and, on May 5, 2015, sentenced him to one to two 

years’ incarceration.
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An appellant convicted in Philadelphia’s Municipal Court has two 

appellate options.

Pennsylvania Rule of Criminal Procedure 1006(1)(a) 

provides that a defendant convicted in Philadelphia 

Municipal Court has the right to request either a trial 

de novo or file a petition for a writ of certiorari with 

the Philadelphia Court of Common Pleas. This Court 

has held that when a defendant files a petition for a 

writ of certiorari, the Philadelphia Court of Common 

Pleas sits as an appellate court.

Commonwealth v. Coleman, 19 A.3d 1111, 1118–19 (Pa.

Super. 2011) (citations omitted). “A trial de novo gives the 

defendant a new trial without reference to the Municipal Court 

record; a petition for writ of certiorari asks the Common Pleas 

Court to review the record made in the Municipal Court.” 

Commonwealth v. Menezes, 871 A.2d 204, 207 n.2 (Pa. Super.

2005). 

Commonwealth v. Beaufort, 112 A.3d 1267, 1269 (Pa. Super. 2015) 

(emphasis added).

Instantly, Appellee filed a petition for a writ of certiorari with the trial 

court, seeking review of the record made in the Municipal Court.

When reviewing an order denying of a motion to suppress, the Court of 

Common Pleas of Philadelphia County applies the same standard that the 

Superior Court applies in appeals from common pleas court orders denying 

motions to suppress. Specifically,

[the court of common pleas] is bound by those of the suppression 

court’s factual findings which find support in the record, but [the 

court of common pleas is] not bound by the [suppression] court’s 

conclusions of law. When the suppression court’s specific factual 

findings are unannounced, or there is a gap in the findings, the 

appellate court should consider only the evidence of the prevailing 

suppression party (here, [the Commonwealth]) and the evidence 
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of the other party (here, [Appellee]) that, when read in the 

context of the entire record, remains uncontradicted.

Commonwealth v. Millner, 888 A.2d 680, 685 (Pa. 2005) (citations 

omitted). The scope of review from a suppression ruling is limited to the 

evidentiary record created at the suppression hearing. In re L.J., 79 A.3d 

1073, 1087 (Pa. 2013).3

In its analysis, the trial court inexplicably discounted some relevant facts 

for purposes of determining whether the officer had reasonable suspicion to 

detain and search Appellee. For example, the trial court fails to mention that 

Appellee approached the officer’s vehicle, quickly, without being asked to do 

so. See N.T. 9/10/14, at 16. As the officer noted, Appellee’s sudden actions, 

caused him to be concerned about his safety. Id. In the same vein, the trial 

court fails to mention that at the time Appellee approached the officer, the 

officer was in the vehicle, alone, in a high crime area. Id. at 16, 20-21. The 

trial court also fails to mention that Appellee, who was irate throughout the 

encounter, was standing very close to the officer in the middle of the street, 

while a crowd of onlookers witnessed the scene. The trial court fails to 

____________________________________________

3 The Municipal Court failed to enter findings of fact and conclusions of law in 

accordance with Pa.R.Crim.P. 581(I). The failure to do so, however, does not 

pose a substantial impediment to our meaningful and effective appellate 

review, as the facts and the reasons supporting the denial of Appellee’s motion 

to suppress are otherwise readily apparent from the statements the 

suppression court made at the end of the hearing. See N.T., 9/10/14, at 41-

42. 
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mention that Appellee kept a “bladed” stance (i.e., defensive stance) once he 

approached the officer, as if attempting to conceal his backside. Id. at 17. 

There is no mention in the trial court’s analysis that Appellee reached back 

into his rear pocket, as other officers were arriving. Id. Finally, while the 

trial court seems to point to weaknesses in the officer’s testimony, see Trial 

Court Opinion, 11/3/18, at 9,

4

the trial court overlooked one very important 

statement by the officer. Te officer summarized the reasons for the detention 

and search of Appellee as follows: “When my safety was in jeopardy after 

[Appellee] took the bladed stance and was reaching into his back right 

pocket[,] that’s when it became a priority to see what he was searching for.” 

N.T., 9/10/14, at 24.

It is accurate, as the trial court noted, that Officer Case asked Appellee 

for identification on multiple occasions. However, there is no indication that 

Appellee, at any time, took the requests as an order from the officer. Indeed, 

he continued to defy the officer by refusing to provide an identification, even 

refusing to give his name.

The trial court found that the officer’s exiting of the vehicle amounted 

to a show of force. There is nothing in the record supporting that conclusion. 

____________________________________________

4 “When asked to articulate what the suspicious activity was[,] Officer Case 

answered ‘[t]he way he was acting. He was screaming at police. He was 

causing a scene[.] [P]eople started coming out of their houses.’ This court 

does not believe that any of this behavior rises to level of reasonable 

suspicion.” Trial Court Opinion, 11/3/18, at 9 (quoting N.T. 9/10/14, at 25). 
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If anything, the record shows that Appellee was not impressed whatsoever by 

a show of force, as he kept yelling, raising his arms, and otherwise moving 

freely when interacting with the officer. 

The trial court suggests that calling for back-up, and the arrival of two 

additional officers, was another indication that Appellee was not free to go. 

Again, the record shows that Officer Case was the only officer present at the 

time of the interaction with Appellee. Appellee was agitated, yelling, raising 

his arms, and suddenly decided to approach the officer’s vehicle. If he were

not free to go, as the trial court found, why was Appellee able to walk back 

and forth, approach the vehicle, and argue with the officer in the street? The 

trial court provides no authority for the proposition that a call for back-up or 

mere presence of police officers at a scene amounts to detention. 

The trial court stated that the officer accused Appellee of stealing 

electricity. This fact is nowhere to be found in the record. The record shows 

that the officer repeatedly asked Appellee to show him an identification to 

learn whether he lived at that residence. However, at no point did the officer 

accuse Appellee of stealing electricity. 

Finally, the trial court noted that the officer failed to check whether 

Appellee had permission to be at that residence. We reject the trial court’s 

approach. A review of the record is based on what is in the record, not what 

is not or should have been in the record. Even if the occupant of the residence 

at issue here testified that Appellee was indeed authorized to use the 
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electricity, it is of no moment in the analysis whether the officer had the 

authority to detain Appellee based on the circumstances surrounding the 

encounter.

Based on our review of the record, as developed at the suppression 

hearing, and in light of our standard of review, we conclude that the 

interaction began as a mere encounter, but turned into an investigative 

detention when Officer Case conducted a pat down of Appellee. The issue is 

whether Appellee’s actions justified his stop and frisk. 

As noted above, Officer Case was driving in a high crime area, aware of 

reports of theft of electricity. Throughout the interaction with the officer, 

Appellee was visibly agitated, yelling so loud that other residents came out of 

their residences to check the situation. While the officer was alone in his 

vehicle, Appellee decided to approach the officer without being asked to do 

so. The officer was already concerned about his safety, not only because of 

Appellee’s behavior and movements, but also because of the large crowd 

developing around the officer. While interacting with the officer, Appellee 

angled himself seemingly attempting to conceal his backside, and reached for 

the back pocket. At this point, for Officer Case “it became a priority” to 

determine whether Appellee was armed and to neutralize the threat of 

physical harm. N.T., 9/10/14, at 24. Consequently, the pat down was proper, 

and the trial court erred in concluding otherwise. See Commonwealth v. 

Guzman, 44 A.3d 688, 694-95 (Pa. Super. 2012) (following police officer’s 
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initial, mere encounter with defendant, officer’s subsequent frisk of defendant 

for weapons was justified under circumstances based on concerns for the 

officer’s safety, where defendant, who was acting erratically, jumped out of 

his vehicle in a high crime area and repeatedly reached into his pockets while 

simultaneously screaming his innocence.). 

We conclude that the trial court erred in overruling the suppression 

court’s denial of Appellee’s motion to suppress physical evidence. 

Accordingly, we reverse the order of the trial court granting Appellee’s motion 

to suppress, and reinstate Appellee’s judgment of sentence. 

Order reversed. Judgment of sentence reinstated. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/22/19