J-A17040-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RAMON PADILLA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1110 EDA 2020

Appeal from the Judgment of Sentence Entered March 4, 2020

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0003828-2019

BEFORE: McLAUGHLIN, J., KING, J., and PELLEGRINI, J.*

DISSENTING MEMORANDUM BY PELLEGRINI, J.: 

FILED DECEMBER 29, 2021

Because the uncontroverted facts establish that Padilla was not frisked 

for officer safety but for reasons that the police officers did not remember, 

reasonable suspicion was not established. Accordingly, I respectfully dissent.

At the suppression hearing, the Commonwealth called Officer Ryan 

Redmond, the officer who conducted the frisk. As part of his testimony, the 

Commonwealth played his body camera (body-cam) footage to show what 

happened during the traffic stop. On the night of Padilla’s arrest, around 

10:00 p.m., Officer Redmond was on patrol with Officers Mark Wildsmith and 

Robert McGrody. While on patrol, Officer Redmond saw a white Toyota Corolla 

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* Retired Senior Judge assigned to the Superior Court.
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with dark-tinted windows. Because he could not see inside the vehicle, Officer 

Redmond pulled the car over. The car’s driver complied and pulled over 

around the 3100 block of E Street. There were three males in the car; Padilla 

was in the front passenger seat. The officers obtained their IDs and handed 

them to Officer Wildsmith to run them through the patrol car’s computer 

system. While that was occurring, Officer Redmond stood on the passenger 

side of the car while Officer McGrody was on the driver’s side. Officer 

Redmond described the area as being “a high-drug and crime area” with “lots 

of shootings.”

According to Officer Redmond, Padilla adjusted his groin area several 

times during the traffic stop as if he were “trying to conceal something.” 

Officer Redmond did not immediately remove Padilla from the car, nor did he 

tell him to stop reaching for his groin. Instead, as his body-cam footage 

showed, Officer Redmond talked to Padilla and the backseat passenger while 

Officer Wildsmith was checking the IDs. First, Officer Redmond asked Padilla 

what was in a shoe box near his feet. Padilla responded that it was shoes and 

reached down and opened the shoe box to show it to Officer Redmond. Next, 

the backseat passenger told Officer Redmond that he was at work that day. 

Officer Redmond turned his attention to him, asking him for his name and 

whether he had been “locked up” before. The backseat passenger responded 

that he had. Finally, Officer Redmond then turned back to Padilla and asked 

him what was in his pocket. Padilla stuck his hand in his pocket and pulled 
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out a pill bottle. Officer Redmond asked if the pills were his, to which Padilla 

responded they were.

After Padilla showed Officer Redmond the pill bottle, Officer Redmond 

walked pack to the patrol car. Officer Wildsmith told him that the backseat 

passenger had a warrant for trespassing. Id. at 23-24. Officer Redmond 

confirmed at the suppression hearing that Officer Wildsmith was not referring 

to Padilla. Id. at 24. Officer Redmond then said, “he seemed pretty calm.” 

Id.

Officer Wildsmith then began to look down at a cell phone. While he did 

so, Officer Redmond asked, “[i]s that one of them?” Id. at 25. When asked 

if he recalled what he was referring to, Officer Redmond responded that he 

did not. Id. Then, when Officer Wildsmith nodded his head in response to 

Officer Redmond’s question, Officer Redmond asked, “[t]he guy in the 

passenger or front-seat passenger,” with Officer Wildsmith responding, 

“[f]ront.” Id. Again, when asked if he recalled what this was about, Officer 

Redmond responded, “I don’t.” Id. at 26. Officer Wildsmith, meanwhile,

responded the same, stating: “I don’t recall exactly. I’m not going to sit up 

here under oath and say I remember exactly because I don’t.” Id. at 37.

After that, Officer Redmond asked Officer Wildsmith to “pull him out.” 

Id. at 27. Officer Redmond then said, “[l]et’s check him out,” which he 

confirmed at the hearing.

Q. Just stopping the [body cam footage], Officer. You would agree 

that’s you saying, “Let’s check him out.”
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A. Yes.

Q. And that’s, again, referring to Mr. Padilla.

A. Yes.

Id.

Officer Redmond next prepared to approach the car but waited a few 

moments for Officer Wildsmith in case Padilla tried to run. Id. at 30. At that 

moment, however, a police sergeant pulled up and got out of his car, at which 

point Officer Redmond walked to the passenger door and said to Padilla, “[a]ll 

right, my man, step out for me.” Id. at 28.

The majority finds that reasonable suspicion existed because:

Although Appellant contends that his alleged movements provided 

the sole basis for Officer Redmond’s suspicion that Appellant was 

armed and dangerous, the record shows that various factors 

existed to support reasonable suspicion: (1) Officer Redmond’s 

four years’ experience as a Philadelphia Police Officer; (2) a 

roadside vehicle stop; (2) the stop occurred at nighttime; (3) the 

vehicle had tinted windows; (4) the stop occurred in a high crime 

area; (5) the area was known for gun violence; (6) Appellant 

made furtive movements towards his groin; (7) Appellant’s hand 

movements were associated with an area used for secreting a 

weapon; and (8) the pat-down occurred for protection of the 

police officers. (citations omitted.)

Majority Memorandum, at 16.

I disagree with the majority because it was apparent from the testimony 

of Officer Redmond and Officer Wildsmith, confirmed by the body-cam footage

and the trial court’s finding, that Padilla was not searched because for fear of 

officer safety.
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At the outset, I recognize we are bound by the suppression court’s 

factual findings that are supported by the record. Officer Redmond testified 

that he saw that Padilla “kept on like adjusting his groin area, like trying to 

conceal something.” See N.T., 10/9/19, at 8. While the body-cam footage 

does not depict the movements, there is also nothing in the body-cam footage 

to contradict Officer Redmond’s testimony that he observed the movements. 

Because Officer Redmond testified that he saw the movements and the 

suppression court credited that testimony, we are bound by that factual 

finding. I also agree that the other factors mentioned by the majority can be 

taken into consideration in determining whether an officer can conduct a 

search, but absent Padilla’s movements, there would be no basis to conduct 

the search because if that were so, just driving in that neighborhood would 

justify a search. However, I disagree with the majority because the 

uncontradicted facts evidence that officer safety or any belief that Padilla was 

armed and dangerous was not the reason for the search. Moreover, it is the 

Commonwealth’s burden to show reasonable suspicion for the search, and 

neither Officer Redmond nor Officer Wildsmith could not provide any reason 

why they decided to “check [Padilla] out.”

First, the uncontradicted facts show that after observing Padilla’s furtive

movements in a high crime neighborhood in a car with tinted windows at night, 

Officer Redmond, with his four years’ experience, did not immediately remove 

Padilla from the vehicle nor show any concern about his personal safety or 
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that he believed that Padilla was armed and dangerous. Instead, after 

observing those movements, Officer Redmond:

• did not remove Padilla from the car but talked to Padilla and 

the backseat passenger while the other officer was checking IDs.

• asked Padilla what was in a shoe box near his feet, Padilla 

responded and allowed him to reach down and open the shoe box 

to show it to him with not a concern that a weapon may be in it.

• then turned his attention to the backseat passenger and 

asked him for his name and whether he had been “locked up” 

before. The backseat passenger responded that he had.

• then turned back to Padilla and asked him what was in his 

pocket. He permitted Padilla, without concern, to put his hand in 

his pocket from which he pulled out a pill bottle. Officer Redmond 

asked if the pills were his, to which Padilla responded they were.

Officer Redmond’s conduct is not consistent that had a reasonable 

suspicion that Padilla was armed and dangerous or that he was in any danger. 

If so, with the other two officers that were on scene, he would have ordered 

the occupants to exit the car immediately for his protection and that of his 

fellow officers.

Moreover, the body-cam footage conclusively confirms that officer 

safety was not the reason for the search. After engaging in the conduct 

described above, Officer Redmond returned to the police car to talk with 

Officer Wildsmith, most of which Officer Redmond was asked about on crossexamination and confirmed.

That footage contradicts Officer Redmond’s contention that he pulled 

Padilla out of the car and frisked him for officer safety. In fact, the suppression
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court addressed these facts in its Rule 1925(a) opinion and acknowledged that 

Officer Redmond and Officer Wildsmith decided to remove Padilla from the car 

and check him out.

Officer Redmond then returned to the patrol car to speak 

with Officer Wildsmith. The content of the conversation was 

unclear but it is undisputed that Officers Redmond and Wildsmith 

referenced [Padilla] as the “front-seat passenger.” Neither officer 

could remember the reason for the reference to [Padilla], nor does 

the body worn camera footage clarify the context. Officer 

Redmond then asked Officer Wildsmith to “pull him [Padilla] out” 

and said “let’s check him out.” It is clear from the testimony 

and the footage that the officers decided to remove 

[Padilla] from the vehicle.

Trial Court Opinion, 10/21/20, at 3 (emphasis added).

The majority ignores the trial court finding that Officer Redmond and 

Officer Wildsmith decided to remove Padilla from the car and “check him out” 

after their conversation and could not provide a reason why they did so. As a 

result, both the suppression court’s analysis and the majority overlook the 

“totality of the circumstances” of the traffic stop, including the evidence that 

contradicted Officer Redmond’s contention that he frisked Padilla out of safety

concerns. See Commonwealth v. Davis, 188 A.3d 454, 459-60 (Pa. Super. 

2018) (reversing suppression court’s probable cause finding for vehicle search 

where court acknowledged only one fact weighing against probable cause and 

ignored all other facts that weighed heavily against probable cause).

Likewise, the majority’s analysis disregards Officer Redmond and Officer 

Wildsmith’s conversation as depicted in the body-cam footage. According to

the majority, this conversation “did not negate the officer’s concern for 
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safety.” See Majority Memorandum, at 18. Under this rationale, Officer 

Redmond saw Padilla adjust his groin and concluded that Padilla was possibly 

armed and dangerous but engaged in the previously described conduct that 

was inconsistent with any such belief. What is shown on the body-cam footage

is that Officer Redmond and Officer Wildsmith decided to check out Padilla 

based on a reason that neither could explain at the suppression hearing. If

you, the officer, can’t explain why the search occurred, obviously reasonable 

suspicion has not been made out.

For these reasons, I would reverse the suppression court’s order 

denying suppression and reverse all of Padilla’s convictions for firearm 

possession.

Accordingly, I respectfully dissent.