J-S70039-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

ORION GREEN, :

:

Appellant : No. 2383 EDA 2015

Appeal from the Judgment of Sentence April 13, 2015

in the Court of Common Pleas of Philadelphia County,

Criminal Division, No(s): MC-51-CR-0034320-2014

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 23, 2016

Orion Green (“Green”) appeals from the judgment of sentence,

entered by the Philadelphia Municipal Court, following his conviction of 

possession of a small amount of marijuana, as confirmed by the trial court’s 

denial of Green’s Petition for Writ of Certiorari.

1

 We affirm.

In its Opinion, the trial court summarized the facts underlying the 

instant appeal as follows:

On October 7, 2014, at approximately 1:30 a.m., Officer 

[Anthony] Woltman [“Officer Woltman”] and his partner ... were 

on duty in the area of 100 West Seymour Street in Philadelphia. 

The officers were in plainclothes and an unmarked car, and were 

on duty in that specific area due to a gun-point robbery that 

occurred the night before. The earlier robbery occurred on the 

100 block of Queen Lane, which is located three blocks away 

from the 100 block of West Seymour Street. The area is 

considered a high-crime and drug area. The description of the 

perpetrator of the robbery consisted of a black male in a dark 

hoodie riding a bicycle. 

 

1 35 P.S. § 780-113(a)(31). 
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As the officers were traveling east on West Seymour 

Street, Officer Woltman observed [Green], who matched the 

description of the robbery suspect: [Green] was wearing a dark 

hoodie and was peddling westbound on a bicycle. When the 

officers and [Green] were both in the middle of the block, Officer 

Woltman got out of the car, identified himself and [his partner] 

as police officers, and asked whether they could talk to [Green] 

for a minute. While the officers were speaking to [Green], 

Officer Woltman observed a bulge in [Green’s] front pant pocket. 

They believed the bulge was large enough to be a weapon[,] and 

decided to frisk [Green] for their safety. While conducting an 

open-palm frisk, Officer Woltman immediately recognized the 

bulge to be drug packaging. On that basis, Officer Woltman 

removed the packaging, recovering ten pink-tinted Ziploc 

packages of marijuana. He also recovered new and unused 

packaging from the same pocket. At that point, [Green] was 

placed into custody for possession of marijuana.

Trial Court Opinion, 2/29/16, at 1-2.

Prior to trial before the municipal court, Green presented a Motion to 

suppress evidence, which the municipal court ultimately denied. See N.T., 

4/13/15, at 1-17. On the same record, the municipal court found Green 

guilty of the above-stated crime, and sentenced him to no further penalty. 

Green filed a Petition for Writ of certiorari to the trial court. In his Petition, 

Green claimed that the evidence seized from him was the result of an 

investigative stop, which was not supported by the required reasonable 

suspicion. Petition for Writ of Certiorari, ¶ 4. The trial court denied Green’s 

Petition, after which Green filed the instant timely appeal. 

On appeal, Green presents the following claim for our review:

Did not the [trial] court err as a matter of law and abuse its 

discretion by denying [Green’s] [M]otion to suppress physical 

evidence where the police officer seized [Green] based upon a 
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legally deficient generic description of a perpetrator of a robbery 

that occurred at an unspecified time prior to the stop?

Brief for Appellant at 3. 

Green argues that he was stopped by police officers “based on a 

generic description,” which, Green contends, was inadequate under the 

Pennsylvania and United States Constitutions. Id. at 8. According to Green, 

Philadelphia police had the most generic description of a 

perpetrator possible: a black man of no determinate age, 

height, weight, body type, skin-tone, or facial hair, wearing a 

dark hoodie of no particular color and with no description of any 

other clothing, riding a bicycle of no particular color or type.

Id. Green states that the officers caused him to dismount his bicycle, “in 

order to be questioned by them concerning a robbery that had occurred at 

some unspecified time the night before.” Id. Green contends that this 

investigative detention was not supported by the requisite reasonable 

suspicion of criminal activity. Id. Because his detention was illegal, Green 

argues, the recovery of marijuana should have been suppressed. Id. at 8-9.

In reviewing an order denying a suppression motion, 

[a]n 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 an appellate court is 

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

Commonwealth v. Caple, 121 A.3d 511, 516-17 (Pa. Super. 2015) 

(citations omitted). 
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With respect to factual findings, we are mindful that it is the sole 

province of the suppression court to weigh the credibility of the 

witnesses. Further, the suppression court judge is entitled to 

believe all, part or none of the evidence presented. However, 

where the factual determinations made by the suppression court 

are not supported by the evidence, we may reject those findings. 

Only factual findings which are supported by the record are 

binding upon this Court.

Id. (citation omitted). “In addition, we are aware that questions of the 

admission and exclusion of evidence are within the sound discretion of the 

trial court and will not be reversed on appeal absent an abuse of discretion.” 

Id. 

The Supreme Court of Pennsylvania has identified three distinct 

categories of interactions between citizens and the police. Commonwealth 

v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995). 

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 to 

respond. The second, an “investigative detention” must be 

supported by a reasonable suspicion; it subjects a suspect to a 

stop and a period of detention, but does not involve such 

coercive conditions as to constitute the functional equivalent of 

an arrest. Finally, an arrest or “custodial detention” must be 

supported by probable cause.

Id. (internal citations omitted). 

The line between a “mere encounter” and an “investigative detention”

is “not subject to a precise definition” and thus “[e]ach factual situation must 

be examined to determine if force was used to restrain the citizen in some 

way.” Commonwealth v. Jones, 378 A.2d 835, 839 (Pa. 1977). 
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In determining whether a “mere encounter” has risen to the 

level of an “investigative detention,” the focus of our inquiry is 

on whether a “seizure” of the person has occurred. 

Commonwealth v. Mendenhall, 552 Pa. 484, 715 A.2d 1117, 

1120 (Pa. 1998). Within this context, our courts employ the 

following objective standard to discern whether a person has 

been seized: “Whether, under all the circumstances 

surrounding the incident at issue, a reasonable person 

would believe he was free to leave.” Commonwealth v. 

Smith, 1999 PA Super 96, 732 A.2d 1226, 1232 (Pa. Super. 

1999) (emphasis added). See also Commonwealth v. Matos, 

543 Pa. 449, 672 A.2d 769, 774 (Pa. 1996). Thus, “a seizure 

does not occur simply because a police officer approaches an 

individual and asks a few questions.” United States v. Kim, 27 

F.3d 947, 950 (3d Cir. 1994).

Examples of circumstances that might indicate a seizure, even 

where the person did not attempt to leave, would be the 

threatening presence of several officers, the display of a weapon 

by an officer, some physical touching of the person of the 

citizen, or the use of language or tone of voice indicating that 

compliance with the officer’s request might be compelled.

Commonwealth v. McClease, 750 A.2d 320, 324-25 (Pa. Super. 2000). 

Our Supreme Court has adopted an objective test for 

determining whether a police officer has restrained the liberty of 

a citizen such that a seizure occurs. The pivotal inquiry in 

making this determination is whether a reasonable [person] 

innocent of any crime, would have thought he [or she] was being 

restrained had he [or she] been in the defendant’s shoes. A 

Court must examine all surrounding circumstances evidencing a 

show of authority or exercise of force, including the demeanor of 

the police officer, the manner of expression used by the officer in 

addressing the citizen, and the content of the interrogatories or 

statements. If a reasonable person would not feel free to 

terminate the encounter with police and leave the scene, then a 

seizure of that person has occurred.

Commonwealth v. Key, 789 A.2d 282, 288-89 (Pa. Super. 2001). 

Our review of the record discloses that, at the suppression hearing, 

Officer Woltman testified as follows regarding his interaction with Green:
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I was in the area working with my partner, Officer Toto, Badge 

6731. We were assigned to plain clothes, unmarked car. I was 

assigned to the specific area due to a gun-point robbery that 

occurred the previous night. The description on that robbery 

was a black male in a dark hoody riding a peddle bicycle. That 

happened on the 100 Block of Queen Lane, which is 

approximately three blocks away from Seymour Street. Around 

that time[,] I think it was 1:38 ish [sic][,] I was traveling 

eastbound on Seymour. I observed [Green] peddling 

westbound, it was a red peddle bike[,] if I’m not mistaken. He 

was wearing a dark hoody. Based on the reason I was in the 

area[,] I decided to stop him for investigation. [We] got out of 

the car [and] identified ourselves as police officers. I asked him 

if we could talk to him for a minute. I don’t recall initially what 

our conversation was about, but as I’m talking to him, in his

right front pants pocket, I observed a bulge. The bulge to me 

appeared to be enough that it could have been a weapon. For 

my safety[,] I decided to do a frisk....

N.T., 4/13/15, at 5-6. During cross-examination, Officer Woltman testified 

that “[d]ue to the reason I was in the area[,] it grabbed my attention, with 

[Green] on a bike in a dark hoody. So, yes, at that time I decided to stop 

him.” Id. at 9. During argument on the suppression Motion, the 

Commonwealth did not contest that Officer Green had effectuated an 

investigative detention, but argued that the detention was supported by 

reasonable suspicion. Id. at 15-17. 

Notwithstanding the parties’ assumption that the interaction 

constituted an investigative detention, the record lacks objective support for 

such a determination. The evidence of record established that, upon seeing 

Green, the two officers exited a vehicle and asked if they could ask Green a 

few questions. There is no evidence of the “threatening presence of several 

officers, the display of a weapon by an officer, some physical touching of the 
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person of the citizen, or the use of language or tone of voice indicating that 

compliance with the officer’s request might be compelled.” See McClease, 

750 A.2d at 325. In fact, there is no evidence upon which to conclude that 

the officers compelled Green to stop. Based upon this sparse evidence of 

record, we discern no error or abuse of discretion by the trial court in 

denying Green’s suppression Motion, based upon its determination that the 

interaction constituted a mere encounter. Accordingly, we affirm Green’s 

judgment of sentence. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2016