J. A21045/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: T.W. , A MINOR :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF : T.W. :

: No. 2390 EDA 2018

Appeal from the Dispositional Order Entered July 10, 2018,

in the Court of Common Pleas of Philadelphia County

Juvenile Division at No. CP-51-JV-0001105-2018

BEFORE: BOWES, J., OLSON, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 04, 2020

T.W., a juvenile, appeals from the July 10, 2018 dispositional order 

entered following his adjudication of delinquency for unlawful possession of a 

controlled substance (Oxycodone).

1

 After careful review, we affirm.

The juvenile court summarized the relevant facts of this case as follows:

On June 19, 2018, at approximately 4:15 a.m., 

Officer [Nicholas] Grant was traveling northeast 

bound with his partner, Officer Heeney[

2], in a marked 

police vehicle on Sedgely Avenue in Philadelphia, 

Pennsylvania. Both officers were in uniform. 

Officer Grant observed a silver Toyota make an illegal 

U-turn. As Officer Grant was preparing to turn on his 

patrol lights and pursue the silver Toyota, he observed 

a green Chevy make the same sharp illegal U-[t]urn. 

Officer Grant followed, making the same U-[t]urn, and 

both the green Chevy and silver Toyota accelerated to 

a high rate of speed. Officer Grant then turned on his 

lights and sirens and began pursuing both vehicles as 

 

1 35 P.S. § 780-113(a)(16).

2 Officer Heeney’s first name is not indicated in the record.
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they recklessly sped through the streets of 

Philadelphia, disregarding several traffic signals.

Both vehicles then made a sharp left onto Dauphin 

Street. While the silver Toyota was able to make the 

turn, the green Chevy was not and crashed into 

several vehicles. Officer Grant then observed two 

males exit the green Chevy and run southbound on 

Lambert Street. Instead of driving on to pursue the 

silver Toyota, Officers Grant and Heeney stopped to 

pursue the two males observed exiting and running 

from the green Chevy. The officers, however, lost the 

two males, but during their search observed the silver 

Toyota stopped at a red light at the intersection of 

20th and Susquehanna streets. 

Officers Grant and Heeney then initiated a vehicle stop 

of the silver Toyota while still on foot. There were 

three individuals in the vehicle: a female driver, a 

female front passenger, and [appellant], who was 

sitting in the rear driver’s-side seat. Officers Grant 

and Heeney approached the vehicle and asked the 

individuals for identification. [Appellant] did not have

identification. Officer Grant then observed [appellant]

attempt to shield his body away from the [o]fficers’

view and reach into his pockets. Officer Grant ordered 

[appellant] to stop reaching into his pockets. 

[Appellant] did not comply. Fearing for his safety, 

Officer Grant removed [appellant] from the vehicle 

and proceeded [to] search [appellant] for weapons by 

conducting an open handed pat down of the outside 

of [appellant’s] clothing. During the open handed 

pat down, Officer Grant felt a hard object in 

[appellant’s] left pants pocket that Officer Grant was 

unable to determine was not a firearm. Fearing that 

the object could be a firearm, Officer Grant reached

into [appellant’s] pocket and removed a glass bottle 

labeled “Promethazine” that had been prescribed to 

an individual with a different name than the one 

provided to Officer Grant by [appellant].

Officer Grant then placed [appellant] under arrest for 

possession of a controlled substance and conducted a

search incident to arrest. During the search incident 
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to arrest, Officer Grant recovered from [appellant’s]

right pants pocket a pill bottle containing two pills, 

which were identified as Oxycodone, a known 

controlled substance.

Juvenile court opinion, 10/10/18 at 1-3 (citations to notes of testimony, 

footnote, and extraneous capitalization omitted).

Appellant was subsequently charged with unlawful possession of a 

controlled substance. On July 10, 2018, appellant proceeded to a juvenile 

adjudication hearing before the Honorable Amanda Cooperman, wherein he 

made an oral motion to suppress the physical evidence recovered from 

Officer Grant’s search of his person. (Notes of testimony, 7/10/18 at 5.) 

Officer Grant was the only witness to testify at the hearing, and the juvenile 

court found his testimony credible. (See juvenile court opinion, 10/10/18 

at 1.) Following the hearing, the juvenile court denied appellant’s suppression 

motion and adjudicated him delinquent of unlawful possession of a controlled 

substance. (Notes of testimony, 10/10/18 at 36, 38-39.) That same day, the 

juvenile court placed appellant at the Glen Mills School for Boys. Appellant 

did not file a post-dispositional motion. This timely appeal followed on 

August 7, 2018.

3

Appellant raises the following issue for our review:

Did not the [juvenile] court err in denying the motion 

to suppress physical evidence, insofar as appellant 

was arrested and searched without probable cause?

 

3 Appellant and the juvenile court have complied with Pa.R.A.P. 1925.
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Appellant’s brief at 3.4

Our standard of review when addressing a challenge to a court’s denial 

of a suppression motion is well settled.

[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 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. 

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

omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).

“Both the Fourth Amendment of the United States Constitution and 

Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals 

freedom from unreasonable searches and seizures.” Commonwealth v.

Bostick, 958 A.2d 543, 550 (Pa.Super. 2008), appeal denied, 987 A.2d 158 

(Pa. 2009) (citation and internal quotation marks omitted). “To secure the 

right of citizens to be free from such intrusions, courts in Pennsylvania require 

law enforcement officers to demonstrate ascending levels of suspicion to 

 

4 We note that appellant’s argument is two-fold and each of his claims will be 

addressed accordingly.
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justify their interactions with citizens to the extent those interactions 

compromise individual liberty.” Commonwealth v. Reppert, 814 A.2d 1196, 

1201 (Pa.Super. 2002) (citation omitted). Courts in this Commonwealth have 

recognized three types of interactions between members of the public and the 

police: a mere encounter, an investigative detention, and a custodial 

detention. 

The first of these interactions 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 respond. The second, an 

investigative detention must be supported by 

reasonable suspicion; it subjects a suspect to a stop 

and period of detention, but does not involve such 

coercive conditions as to constitute the functional 

equivalent of arrest. Finally, an arrest or custodial 

detention must be supported by probable cause.

Commonwealth v. Ayala, 791 A.2d 1202, 1208 (Pa.Super. 2002) (citations, 

brackets, and internal quotation marks omitted).

In the seminal case of Terry v. Ohio, 392 U.S. 1 (1968), the United 

States Supreme Court indicated that police may stop and frisk a person where 

they have a reasonable suspicion that criminal activity is afoot and that the 

suspect may be armed and dangerous. Id. at 27. A panel of this court has 

explained:

If, during the course of a valid investigatory stop, an 

officer observes unusual and suspicious conduct on 

the part of the individual which leads him to 

reasonably believe that the suspect may be armed 

and dangerous, the officer may conduct a pat-down of 

the suspect’s outer garments for weapons. In order 

to justify a frisk under [Terry] the officer must be able 
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to point to particular facts from which he reasonably 

inferred that the individual was armed and dangerous. 

Such a frisk, permitted without a warrant and on the 

basis of reasonable suspicion less than probable 

cause, must always be strictly limited to that which is 

necessary for the discovery of weapons which might 

be used to harm the officer or others nearby.

Commonwealth v. Preacher, 827 A.3d 1235, 1239 (Pa.Super. 2003) 

(internal quotation marks and citation omitted). 

I. Scope of the Terry frisk

Here, appellant concedes that Officer Grant’s Terry frisk was supported 

by reasonable suspicion,5 but contends that the juvenile court erred in denying 

his suppression motion because Officer Grant exceeded the scope of a 

permissible search by reaching into appellant’s left pants pocket. (Appellant’s 

brief at 7-9.) In support of this contention, appellant avers that Officer Grant’s

“fishing expedition into [his pocket] was impermissible” where the 

incriminating nature of “[t]he hard object that Officer Grant felt” was not 

“immediately apparent.” (Id. at 10). We disagree.

The record establishes that Officer Grant and his partner were on patrol 

in a high-crime area in the early morning hours of June 19, 2018, when they 

became involved in a high-speed chase with two vehicles; appellant was a 

passenger in one of these vehicles. (Notes of testimony, 7/10/18 at 8-11, 

 

5 See notes of testimony, 7/10/18 at 28-29 (stating, “I will concede the frisk 

. . . I think this was prudent work. And I think what the officer was trying to

do was make sure that everything was safe during the entirety of this stop.”).
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14.) Officer Grant testified that during the ensuing traffic stop, he became 

concerned that appellant may be in possession of a weapon after observing 

him “turn[] his left shoulder away from [the officers]” and “start to reach into 

his pockets.” (Id. at 13-14.) Officer Grant testified that he ordered appellant 

to step out of the vehicle and conducted an “open-hand pat down” frisk after

appellant repeatedly disregarded Officer Grant’s instruction to remove his 

hands from his pockets. (Id. at 15-16.) Officer Grant noted that during the 

course of this safety frisk, he felt a “large” and “hard” object in appellant’s 

front left pants pocket. (Id. at 17.) Officer Grant opined that although he did 

not immediately recognize what the object was during the pat-down, he was 

concerned, based upon his training and experience as a police officer and the 

recent spate of violent incidents in this area, that the object was a weapon or 

firearm. (Id. at 17-19, 26.) On cross-examination, Officer Grant testified 

that he could not recall the exact size of the object he felt but that it was 

comparable to the size of a bottle of Nyquil. (Id. at 21.) Fearing for his 

safety, Officer Grant reached into appellant’s pocket and removed the object, 

which turned out to be a large glass bottle labelled “Promethazine” that was 

prescribed to an individual with a different name than the one appellant had 

provided. (Id. at 18.) During a subsequent search of appellant’s person 

incident to arrest, Officer Grant recovered a second, smaller pill bottle from 

appellant’s right pants-pocket that contained two Oxycodone pills. (Id. at 

18-20.) 
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Based on the foregoing, we conclude that Officer Grant articulated a

reasonable belief that what he felt in appellant’s pocket was a weapon. 

Accordingly, we discern no error on the part of the juvenile court in concluding 

that Officer Grant did not exceed the scope of a permissible search by reaching 

into appellant’s left pants pocket during an otherwise valid Terry pat-down. 

See, e.g., Commonwealth v. Taylor, 771 A.2d 1261, 1269 (Pa. 2001) 

(holding that a police officer was justified in reaching into a defendant’s pocket 

during course of Terry frisk, where the defendant reached for his pocket 

despite being told not to move several times, and the officer felt a hard, 

cylinder-type object in the pocket, which he reasonably believed to be a 

weapon), cert. denied, 534 U.S. 994 (2001); but see Commonwealth v. 

Wilson, 927 A.2d 279, 285-286 (Pa.Super. 2007) (concluding that an officer’s 

search and seizure of drugs in defendant’s coat pocket exceeded lawful scope 

of Terry, where the officer’s testimony that he felt a “hard, large ball” failed 

to articulate any reasonable belief that the object he felt in defendant’s pocket 

appeared to be a weapon.). 

In reaching this conclusion, we note that, contrary to appellant’s 

contention, analysis of whether Officer Grant justifiably put his hand into 

appellant’s pocket under the “plain feel doctrine” is not warranted in this case. 

(See appellant’s brief at 9-11). Under the plain feel doctrine,

a police officer may seize non-threatening 

contraband detected through the officer’s sense of 

touch during a Terry frisk if the officer is lawfully in a 

position to detect the presence of contraband, the 
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incriminating nature of the contraband is immediately 

apparent from its tactile impression and the officer 

has a lawful right of access to the object.

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

added), citing Minnesota v. Dickerson, 508 U.S. 366, 375 (1993).

Here, Officer Grant reached into appellant’s left pants pocket under the 

reasonable belief that the large and hard object that he felt in appellant’s left 

pants pocket was “a weapon . . . [or] a firearm.” (Notes of testimony, 7/10/18 

at 26.) As the juvenile court recognized in its opinion:

It was reasonable for Officer Grant to go into 

[appellant’s] pockets to dispel a reasonable fear for 

his safety and the safety of others during the 

investigatory stop. [Appellant] was a passenger in a 

vehicle that was just in a high[-]speed chase with 

police at 4:15 in the morning in a high[-]crime area 

where Officer Grant has a plethora of personal 

experience with weapons recovered from traffic stops. 

Moreover, the officers made the stop without the 

benefit of a police vehicle. [Appellant] did not comply 

with Officer Grant’s order to stop hiding his body and 

reaching into his pockets. It was only after a limited 

[] search of the outside of [appellant’s] clothes and 

feeling a hard object that was not readily identifiable 

that Officer Grant expanded his search to the inside of

that particular pocket. Looking at the totality of the 

circumstances, Officer Grant had a reasonable

suspicion, based on specific and articulable facts, that 

[appellant] may be armed and dangerous, and 

Officer Grant tailored his search to only that which 

was reasonably necessary for the discovery of 

weapons.

Juvenile court opinion, 10/10/18 at 4-5 (citations to notes of testimony 

omitted).

Accordingly, appellant’s first claim must fail.
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II. Probable cause to arrest

In his second claim, appellant contends that the juvenile court erred in 

denying his suppression motion because Officer Grant lacked probable cause 

to arrest him given that it is not a crime to possess a bottle of Promethazine, 

even if it is prescribed to another individual. (Appellant’s brief at 11-12.) 

As recognized by the juvenile court and both parties, although the 

common mixture of Promethazine and Codeine is a controlled substance, 

Promethazine, by itself, is not. (Juvenile court opinion, 10/10/18 at 3 n.1; 

appellant’s brief at 11; and Commonwealth’s brief at 13.) During the 

suppression hearing, Officer Grant mistakenly testified to his belief that 

Promethazine is a controlled substance and neither party objected to this 

testimony. (See notes of testimony, 7/10/18 at 19.) Moreover, the record 

reflects that appellant failed to make any argument during his oral suppression 

motion that the police lacked probable cause to arrest him because 

Promethazine is not a controlled substance. On the contrary, our review of 

the suppression hearing transcript reveals that appellant based his 

suppression motion solely upon Officer Grant’s initial Terry frisk and the 

subsequent search of his pocket, and not upon the officer’s purported lack of 

probable cause to arrest. (Id. at 5-6, 29-33.) As such, the Commonwealth 

was not afforded the opportunity to present any evidence on this issue, nor 

elicit specific testimony from Officer Grant with regard to his training and 
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experience with respect to Promethazine or how it is commonly mixed with 

Codeine on the street. See, e.g., United States v. Achobe, 560 F.3d 259, 

261 (5th Cir. 2008) (stating that a mixture of Promethazine and Codeine is a 

“major street drug” commonly referred to as “purple” or “syrup”). 

Accordingly, because appellant did not raise in the juvenile court the theory 

of relief he now argues on appeal, his claim is waived for purposes of our 

review. See Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the lower court 

are waived and cannot be raised for the first time on appeal.”).

Dispositional order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/4/20