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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

KENNETH DEVORE, : No. 1985 EDA 2013

:

 Appellant :

Appeal from the Judgment of Sentence, June 24, 2013,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0010504-2012

BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 10, 2015

Kenneth Devore challenges the judgment of sentence entered on 

June 24, 2013, in the Court of Common Pleas of Philadelphia County. We 

affirm. 

The facts, as summarized by the trial court, are as follows:

At the [suppression] motion hearing, the 

Commonwealth presented the testimony of 

Philadelphia Police Officer George Gee, establishing 

the following. On August 17, 2012 around 4:25 PM, 

Officer Gee and his partner were patrolling the high 

crime area of 2000 South Alden Street in 

Philadelphia’s 12th Police District, as part of their 

routine tour of duty in a marked police vehicle. At 

that time, the officer came in contact with 

[appellant] who was standing with a crowd of males 

that the officers intended to disperse, on the 

2000 block of South Cecil Street. [Appellant] looked 

in the officer’s direction before walking away 

eastbound on Greenway Street and adjusting his 

waistband on the right side. On the stand, the 
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officer demonstrated this “adjusting” motion by 

taking his right hand, grabbing the right front of his 

waistband and making a circular motion. The officer 

continued to observe [appellant] for a few more 

minutes and during that time, [appellant] again 

stopped, raised up his right foot, adjusted his pants 

in a similar manner, and looked in the officer’s 

direction for the second or third time. As the officer 

proceeded in [appellant’s] direction, [appellant] 

continued onto the 2000 block of Alden Street, 

adjusted his waistband one more time in the manner 

previously described. At that time, the officer then 

told [appellant] to “come here, and [appellant] came 

to [him].” Believing that [appellant] was carrying a 

firearm on his person, the officer then touched and 

recovered a Colt .38 revolver, with the serial number 

defaced, containing six live rounds, from the area 

where he had seen [appellant] adjusting himself. 

Officer Gee testified credibly that he had been 

assigned to this area . . . for his entire sixteen year 

career. He described it as a “very high crime area” 

explaining that prior to this incident, while patrolling 

the same block, he had made two other gun arrests 

and been the first responder on multiple shootings. 

The officer testified that in his vast experience in this 

area, he has had at least fifty opportunities to 

observe individuals making similar movements as 

those made by [appellant] in “the exact same way” 

that resulted in the recovery of a firearm. His 

suspicion of [appellant] was additionally heightened 

from his own knowledge of carrying a firearm as a 

police officer. A gun being carried in a holster, as he 

does while on duty, does not require any adjustment 

of the waistband. From reliable experience, he 

knows that “when [most] people adjust their pants, 

they grab [them] from the sides and pull up, not 

[just] a specific area [as the appellant did in this 

instance].”

Trial court opinion, 4/3/14 at 2-3 (citations omitted). 
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Appellant was arrested and charged with multiple counts of violating 

the Uniform Firearms Act. On January 22, 2013, appellant litigated a motion 

to suppress. The trial court denied the motion to suppress and found that, 

based on Officer Gee’s experience, he had reasonable suspicion to believe 

appellant had a weapon. On May 10, 2013, a bench trial was conducted and 

the Commonwealth relied on the above-stated evidence. Appellant was 

convicted of the following firearms offenses: possessing a firearm while 

prohibited from doing so, possessing a firearm with an altered manufacturer 

number, firearm not to be carried without a license, and carrying a firearm 

on the public streets of Philadelphia. Thereafter, appellant was sentenced to 

five to ten years of probation for carrying a firearm while prohibited, 

followed by consecutive terms of two years’ probation for possessing a 

firearm with an altered manufacturer number and three years’ probation for 

carrying a firearm without a license. The court imposed a concurrent term 

of probation for the remaining offense. 

A timely notice of appeal was filed, and the following issues have been 

presented for our review: 

1. Did the lower court err in denying [appellant’s] 

motion to suppress where the Commonwealth 

failed to establish that the police had specific 

and articulable facts upon which to reasonably 

believe that criminal activity was afoot to 

support the investigatory detention of 

[appellant]?

2. Did the lower court err in denying [appellant’s] 

motion to suppress where the Commonwealth 
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failed to show that [appellant] was armed and 

dangerous and[,] thus[,] lawfully subjected to 

a Terry frisk?

Appellant’s brief at 4. 

The role of this court in reviewing the denial of a suppression motion is 

well established:

An appellate court’s standard of review in 

addressing a challenge to a trial court’s 

denial of a suppression motion is limited 

to determining whether the factual 

findings are supported by the record and 

whether the legal conclusions drawn 

from those facts are correct. Since the 

prosecution prevailed in the suppression 

court, we may consider only the evidence 

of the prosecution 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, we are bound by those 

facts and may reverse only if the legal 

conclusions drawn therefrom are in error.

Commonwealth v. Stevenson, 894 A.2d 759, 769 

(Pa.Super.2006) (citation omitted). Although we are 

bound by the factual and the credibility 

determinations of the trial court which have support 

in the record, we review any legal conclusions 

de novo. Commonwealth v. George, 878 A.2d 

881, 883 (Pa.Super.2005), appeal denied, 586 Pa. 

735, 891 A.2d 730 (2005).

Commonwealth v. Wells, 916 A.2d 1192, 1194-1195 (Pa.Super. 2007).

We will address appellant’s two claims together as they essentially 

both challenge the same concern: that the officer did not have reasonable 

suspicion to justify a stop and frisk. There is no dispute between the parties 
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that the frisk at issue constituted an investigative detention in the nature of 

a protective weapons search which is governed by Terry v. Ohio, 392 

U.S. 1 (1968), and requires that police have reasonable suspicion either that 

criminal activity was afoot or that appellant was armed and dangerous:

It is well-established that a police officer may 

conduct a brief investigatory stop of an individual if 

the officer observes unusual conduct which leads him 

to reasonably conclude that criminal activity may be 

afoot. Moreover, if the officer has a reasonable 

suspicion, based on specific and articulable facts, 

that the detained individual may be armed and 

dangerous, the officer may then conduct a frisk of 

the individual’s outer garments for weapons. Since 

the sole justification for a Terry search is the 

protection of the officer or others nearby, such a 

protective search must be strictly limited to that 

which is necessary for the discovery of weapons 

which might be used to harm the officer or others 

nearby. Thus, the purpose of this limited search is 

not to discover evidence, but to allow the officer to 

pursue his investigation without fear of violence.

Commonwealth v. Clemens, 66 A.3d 373, 381 (Pa.Super. 2013), quoting 

Commonwealth v. Stevenson, 744 A.2d 1261, 1264-1265 (Pa. 2000). 

Reasonable suspicion is determined by the totality of the circumstances. Id. 

As such, each case is fact-specific, but a number of common circumstances 

have been identified; and where a sufficient number of them coalesce, 

reasonable suspicion will be found. 

Here, we conclude that the investigatory detention was supported by 

reasonable suspicion of criminal activity and a justifiable belief in the need to 

protect officer safety. Officer Gee, a 16-year veteran in the police force, 
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testified that he was patrolling with his partner in the high-crime area of 

2000 South Alden Street in Philadelphia’s 12th Police District in a marked 

police vehicle. The officers stopped their vehicle to disperse a group of 

males; Officer Gee observed appellant, who was in the crowd, continually 

looking in his direction while adjusting his waistband. (Notes of testimony, 

1/22/13 at 8-9.) Appellant turned and walked away; he stopped soon after 

and adjusted the right side of his pants, looked back and adjusted the right 

side of his pants again in the exact same motion. (Id. at 9.) Officer Gee 

described, and demonstrated for the court, the manner in which appellant 

adjusted his waistband, which led him to believe he was in possession of a 

handgun while in a public area. The officer testified that based on his years 

of experience, appellant’s motion was consistent with a concealed weapon. 

(Id. at 13.)

We have previously determined that “if a suspect engaged in hand 

movements that police know, based on their experience, are associated with 

the secreting of a weapon, those movements will buttress the legitimacy of a 

protective weapons search of the location where the hand movements 

occurred.” In Interest of O.J., 958 A.2d 561 (Pa.Super. 2008) (en banc). 

Moreover, “whether the defendant was located in a high crime area similarly 

supports the existence of reasonable suspicion.” Commonwealth v. 

Foglia, 979 A.2d 357, 361 (Pa.Super. 2009) (en banc), appeal denied, 

990 A.2d 727 (Pa. 2010).
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While none of these factors, by themselves, gives rise to reasonable 

suspicion or is necessarily illegal in nature, when viewed in light of the 

totality of the circumstances, the officer’s suspicion of appellant was 

reasonable. See Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999) 

(circumstances which alone would be insufficient may combine to show 

reasonable suspicion). 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015