J-S59040-16

* Former Justice specially 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

Appellant

v.

LAMAR BATCHLER,

Appellee No. 2200 EDA 2015

Appeal from the Order of June 25, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002120-2015

BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

DISSENTING MEMORANDUM BY OLSON, J.: FILED DECEMBER 06, 2016

As I believe that the totality of the facts and circumstances supports 

the conclusion that the Commonwealth met its burden of establishing that 

Officer Daniel Sweeney had reasonable suspicion to conduct a protective 

frisk of Appellee, I must respectfully dissent.

The learned Majority relies on the trial court’s opinion in affirming the 

order granting Appellee’s motion to suppress the firearm that was 

discovered during a protective search of Appellee following a valid traffic 

stop. In my view, however, the factual findings made by the trial court do 

not support suppression. Instead, the evidence adduced during the 
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suppression hearing supports the conclusion that the Terry1frisk was 

appropriate and, therefore, the firearm seized from Appellee’s waistband 

should not be suppressed.

It is important to note that “in making a reasonable suspicion 

determination, the United States Supreme Court has rejected courts’ 

isolated evaluation and rejection of individual factors.” Commonwealth v. 

Walls, 53 A.3d 889, 894-895 (Pa. Super. 2012), citing U.S. v. Arvizu, 534 

U.S. 266, 274 (2002). Rather than pursuing a “divide-and-conquer 

analysis”, the trial court must employ a totality of the circumstances test. 

Walls, 53 A.3d at 895. Here, I believe that the trial court looked at facts in 

isolation and, based upon its stand-alone findings, determined that 

reasonable suspicion was not established. The trial court erred in doing so. 

Instead, applying the totality of circumstances test, the Terry frisk was 

proper.

The uncontradicted evidence adduced at the suppression hearing 

established that Appellee was a passenger in the front seat of a vehicle 

stopped by the police for a Motor Vehicle Code violation. The vehicle was 

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1 Terry v. Ohio, 392 U.S. 1 (1968). It is now well settled that Terry allows 

a protective search for weapons when “specific and articulable facts which, 

taken together with the rational inferences from those facts, reasonably 

warrant” the officer’s belief that the suspect is dangerous and may require 

immediate control of a weapon. Id. at 21 (emphasis added). “The issue is 

whether a reasonably prudent man would be warranted in the belief that his 

safety or that of others was in danger.” Id. at 27.
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stopped at approximately 9:35 p.m. on February 10, 2015. Officer 

Sweeney, one of the officers who stopped the vehicle, testified that the area 

in which the vehicle was stopped is a high crime area. Officer Sweeney, a 

17-year veteran police officer, personally made numerous arrests for 

narcotic violations and illegal firearms within a three block radius of the 

location at which the vehicle was stopped. When Officer Sweeney 

approached the passenger side of the vehicle, he saw Appellee with his arms

extended in a Superman pose. Appellee “appeared very nervous, very 

scared” and Officer Sweeney asked him if he had anything on him because 

the position in which Appellee was sitting made the veteran officer “a little 

suspicious”. N.T., Suppression Hearing, 6/25/15, at 9. After the two 

officers obtained documentation from both the driver of the vehicle and 

Appellee, they returned to the police vehicle. Within a minute or two, the 

officers returned to the stopped vehicle and again, Officer Sweeney 

approached the passenger side. At this time, Officer Sweeney saw Appellee 

“sitting awkwardly like as if he was concealing something from either 

[Officer Sweeney’s] vantage point or [his] partner’s vantage point.” Id. at 

11.2 At this time, Officer Sweeney was concerned that Appellee may have a 

weapon on him, so the officer ordered Appellee out of the vehicle and frisked 

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2 Specifically, Officer Sweeney demonstrated that Appellee sat back in the 

seat and leaned over to the left side console with both hands crossed over 

the console. N.T., Suppression Hearing, 6/25/15, at 11-12.
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him at which time a firearm was found concealed in the left side of 

Appellee’s waistband.3 In reviewing the totality of these facts and 

circumstances, Officer Sweeney possessed a reasonable and articulable 

suspicion to conduct a Terry protective weapons search. See 

Commonwealth v. Buchert, 68 A.3d 911, 916-917 (Pa. Super. 2013) 

(“The combination of Appellee’s furtive movement of leaning forward and 

appearing to conceal something under his seat, along with his extreme 

nervousness and the night time stop, was sufficient to warrant a reasonable 

police officer to believe that his safety was in danger and that Appellee may 

gain immediate control of a weapon.”), appeal denied, 623 Pa. 759 (2014).

In granting suppression, the trial court found that Officer Sweeney 

never saw a firearm on Appellee or even a bulge. Trial Court Opinion, 

12/2/15, at 4. However, nothing in the law requires the officer to actually 

see a firearm or a suspicious bulge to conduct a Terry frisk. In fact, a 

Terry frisk is performed precisely because a police officer is not certain 

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3 When asked why he believed that Appellee may have had a weapon, 

Officer Sweeney testified as follows:

Just in my mind two things with his hands being like extremely 

like his arms were rock solid. The best way to explain it 

probably would be like a [S]uperman type motion. And then -- . 

. . Then the second time was the way he was sitting the second 

time as if he was shielding or guarding something. I’ve been a 

police officer for 17 years and I knew something wasn’t right.

N.T., Suppression Hearing, 6/25/15, at 12-13.
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whether the person possesses a firearm. The trial court also found that 

Appellee was cooperative, there were no “suspicious” movements observed 

within the car, and Appellee’s “Superman pose” cannot be described as 

“furtive”. Id. at 5. Yet, the trial court acknowledged that Appellee was 

observed in “two, perhaps unnatural, seating positions: the Superman pose 

and then leaning up against the armrest”, and that he was nervous. Id. In 

my view, Appellee’s nervousness and assumption of such awkward positions 

would create reasonable suspicion in a veteran police officer, especially 

considering all of the other facts surrounding the stop. Finally, the trial 

court concluded that, although the vehicle was stopped in a high crime area, 

the vehicle was stopped for a Motor Vehicle Code violation unrelated to the 

use or possession of a firearm. Id. Again, nothing in the law holds that a 

Terry frisk may only be conducted if the person is stopped for a suspected 

firearms violation. To the contrary, traffic stops pose significant danger to 

police officers and may give rise to the need for a protective frisk. As the 

United States Supreme Court noted in Pennsylvania. v. Mimms, 434 U.S. 

106 (1977):

[W]e have specifically recognized the inordinate risk confronting 

an officer as he approaches a person seated in an automobile. 

According to one study, approximately 30% of police shootings 

occurred when a police officer approached a suspect seated in an 

automobile. We are aware that not all these assaults occur when

issuing traffic summons, but we have before expressly 

declined to accept the argument that traffic violations 

necessarily involve less danger to officers than other 

types of confrontations. Indeed, it appears that a significant 
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percentage of murders of police officers occurs when the officers 

are making traffic stops.

Id. at 110 (emphasis added) (internal quotations and citations omitted). 

Hence, “the heightened risk of danger to police officers during roadside 

encounters should be contrasted with the lessened expectation of privacy 

that a citizen possesses with respect to his vehicle”. In the Interest of 

O.J., 958 A.2d 561, 565 (Pa. Super. 2008) (en banc), appeal denied, 605 

Pa. 688 (2010). 

For the foregoing reasons, I believe there was reasonable suspicion to 

conduct a protective search of Appellee and, therefore, the trial court erred 

in suppressing the firearm. Thus, I respectfully dissent.