J-S28001-16

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARCUS WOMACK,

Appellant No. 1068 EDA 2015

Appeal from the Judgment of Sentence March 27, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0012593-2014

BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED APRIL 01, 2016

Marcus Womack appeals from the judgment of sentence imposed on 

March 27, 2015, after he was convicted at a bench trial of possession of a 

controlled substance with intent to manufacture or deliver (“PWID”) and 

intentional possession of a controlled substance. We affirm. 

The record establishes the following. On August 7, 2014, at 

approximately 9:05 p.m., Officer Jason Tomon stopped Appellant near the 

4300 block of Wayne Avenue in Philadelphia, Pennsylvania. Officer Tomon 

observed that Appellant matched flash information provided the night before 

through other officers operating in the area. That flash indicated a black 

male, wearing a white shirt and tan shorts, had fled from police on a silver 

bicycle. At the time of his encounter with Officer Tomon, Appellant, a black 
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male, was wearing a white shirt and tan shorts. He was also riding a silver 

bicycle, which Officer Tomon determined was in violation of the Motor 

Vehicle Code § 3507(a), requiring lights on a bicycle.1

After stopping Appellant, Officer Tomon directed Appellant to remain 

on his bicycle. He observed Appellant holding his legs tightly against the 

frame of the bicycle and a bulge near Appellant’s rear. Believing the bulge 

concealed contraband or a firearm, Officer Tomon attempted to frisk 

Appellant, eliciting the response, “I have a boil; don’t touch me.” N.T. Trial, 

11/26/15, at 8. Officer Tomon persisted, and upon frisking Appellant, 

“immediately recognized the presence of narcotics.” Id. Fifty-four bags of 

crack cocaine, five bags of marijuana, and thirty-eight dollars in cash were 

recovered from Appellant. 

Based on this encounter, Appellant was charged with the abovementioned crimes and a traffic violation report (“TVR”) was filed against him 

as a result of the traffic code violation. Appellant filed a pretrial motion to 

suppress the physical evidence obtained by Officer Tomon, arguing that he 

was arrested without probable cause or a legally issued warrant, and that 

the search of his person was conducted on less than reasonable suspicion, 

____________________________________________

1 75 Pa.C.S. § 3507(a) reads, in pertinent part, “Every pedalcycle when in 

use between sunset and sunrise shall be equipped on the front with a lamp 

which emits a beam of white light intended to illuminate the pedalcycle 

operator’s path.” Appellant does not contend he was in compliance with this 

subsection at the time of his arrest. 
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without probable cause, and without a warrant. A suppression hearing was 

conducted, and after hearing argument on the motion, the trial court 

declined to suppress the physical evidence. Appellant immediately 

proceeded to a bench trial where he was found guilty of the above-named 

offenses. Thereafter, the court sentenced Appellant to two to four years 

state incarceration and thirty-six months probation. This timely appeal 

followed.

The Appellant raises the following issue for our consideration: 

1. Where the defendant was detained and searched solely 

on the basis of flash information from one day prior 

(which alleged no illegal behavior), riding a bicycle 

without headlights and a bulge in his pants, was not 

such detention and search unsupported by reasonable 

suspicion or probable cause, in violation of the Fourth 

and Fourteenth Amendments of the United States 

Constitution and Article I, Section 8 of the Pennsylvania 

Constitution, and therefore should not the drugs 

subsequently seized by the police have been 

suppressed? 

Appellant’s brief at 3. 

In cases involving a review of the denial of a defendant’s suppression 

motion, we are subject to the following standard of review: 

[An appellate court’s] standard of review in addressing a 

challenge to the denial of a suppression motion is limited to 

determining whether the suppression court’s factual findings are 

supported by the record and whether the legal conclusions 

drawn from those facts are correct. Because the Commonwealth 

prevailed before the suppression court, we may consider only 

the evidence of the Commonwealth 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 suppression court’s 
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factual findings are supported by the record, [the appellate 

court] is bound by [those] findings and may reverse only if the 

court’s legal conclusions are erroneous. Where . . . the appeal of 

the determination of the suppression court turns on allegations 

of legal error, the suppression court’s legal conclusions are not 

binding on an appellate court, whose duty it is to determine if 

the suppression court properly applied the law to the facts. 

Thus, the conclusions of law of the courts below are subject to [] 

plenary review. 

Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa.Super. 2015), 

quoting Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal 

citations and quotation marks omitted). 

In the present case, the suppression court concluded Officer Tomon 

had reasonable suspicion to stop Appellant because he matched the flash 

description provided by fellow officers working in the same area the night 

before. Furthermore, the court determined Officer Tomon had reasonable 

suspicion to stop the Appellant and investigate further based on the motor 

vehicle violation. 

Appellant argues the generic identifying information and lack of any 

indication of criminal activity provided in the flash information does not 

support that Officer Tomon had reasonable suspicion of criminal activity. For 

the reasons set out below, Appellant’s argument is beside the point, as he 

concedes that “officers in the instant case saw appellant riding a bike 

without lights in violation of 3507-A of the Motor Vehicle Code.” Appellant’s 

brief at 9. 
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Initially we note, the level of suspicion that a police officer must 

possess before stopping a vehicle2is codified at 75 Pa.C.S. § 6308(b), which 

states:

Whenever a police officer is engaged in a systematic program of 

checking vehicles or drivers or has reasonable suspicion that a 

violation of this title is occurring or has occurred, he may stop a 

vehicle, upon request or signal, for the purpose of checking the 

vehicle's registration, proof of financial responsibility, vehicle 

identification number or engine number or the driver's license, or 

to secure such other information as the officer may reasonably 

believe to be necessary to enforce the provisions of this title.

Id. 

This Court clarified this general rule in Commonwealth v. Feczko, 10 

A.3d 1285 (Pa.Super. 2010) (en banc). In Feczko, this Court determined 

that the language of Section 6308(b), as interpreted by our Supreme Court, 

establishes that mere reasonable suspicion is required to effectuate a traffic 

stop based on suspicion of criminal activity or a suspected violation of the 

Motor Vehicle Code requiring additional investigation. Id. at 1291. On the 

other hand, where a traffic stop “cannot serve an investigatory purpose 

relevant to the suspected violation,” reasonable suspicion is not sufficient to 

justify the stop. Id. Rather, the officer must “articulate specific facts 

possessed by him, at the time of the questioned stop, which would 

provide probable cause to believe that the vehicle or the driver was 

____________________________________________

2 Under 75 Pa.C.S. § 3501(a), the provisions of the Motor Vehicle Code apply 

to individuals riding a bicycle on a roadway. 
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in violation of some provision of the Code.” Id. (citation omitted, 

emphasis original). 

Probable cause exists when the facts and circumstances are sufficient 

in themselves to warrant a person of reasonable caution in the belief that 

the driver or the vehicle has violated the vehicle code. Commonwealth v. 

Weaver, 76 A.3d 562, 565 (Pa.Super. 2013) aff’d, 105 A.3d 656 (Pa. 

2014). Probable cause is determined by the totality of the circumstances, 

and it is “the facts and circumstances within the personal knowledge of the 

police officer that frames the determination of the existence of probable 

cause.” Id. (citation omitted). 

Here, Appellant was stopped due to Officer Tomon’s observation that 

he was operating his bicycle after dusk without headlights. The officer’s 

personal observation and knowledge of the Motor Vehicle Code violation 

supplied probable cause for him to initiate the traffic stop. Thus, we find the 

suppression court erred in determining Officer Tomon had mere reasonable 

suspicion to stop Appellant. Instead, the stop of Appellant was supported by 

probable cause. 

In the course of the traffic stop, Officer Tomon noted Appellant held 

his legs extremely tight to the frame of the bicycle and had an unnatural 

bulge in his back. Officer Tomon testified, and the trial court credited, that 

he believed Appellant was “hiding contraband, possibly a firearm.” N.T. 

Trial, 1/26/15, at 8. Under Terry v. Ohio, 392 U.S. 1 (1968), “[w]hen an 
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officer is justified in believing that the individual whose suspicious behavior 

he is investigating at close range is armed and presently dangerous to the 

officer or to others,” the officer may conduct a protective search “to 

determine whether the person is in fact carrying a weapon.” Id. at 24; 

Commonwealth v. Pakacki, 901 A.2d 983, 988 (Pa.Super. 2006). As 

Appellant was lawfully stopped at the time Officer Tomon observed his 

suspicious behavior and conducted a lawful protective search of a bulge he 

suspected contained a firearm, we find Appellant’s rights were not violated.3 

In sum, Appellant’s traffic stop was valid, and the reasonable suspicion 

for the ensuing protective frisk is supported by the record. Although the trial 

court applied the wrong standard to the facts at issue, we may affirm on any 

grounds supported by the record, even grounds not suggested to or known 

by the trial court. Commonwealth v. Gatlos, 76 A.3d 44, 62 n.14 

(Pa.Super. 2013). Therefore, we affirm the judgment of sentence. 

Judgment of sentence affirmed. 

____________________________________________

3 We note Appellant raised an additional issue in his 1925(b) statement, that 

the seizure at issue here cannot be supported by the “plain feel” doctrine. 

Appellant did not brief this issue, and accordingly, it is waived. See

generally, Appellant’s brief; see also Commonwealth v. Berry, 887 A.2d 

479, 485 (Pa.Super. 2005) (issues not briefed are waived). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/1/2016