J. A 2 1 0 45 /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 0 4 , 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 Philadel phia, 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 ill egal 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.J. A 2 1 0 45 /19

- 2

- they recklessly sped th rough 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 gree n Chevy. The office rs, however, lost the two males, but during their search observed the silver Toyota stopped at a red light at the intersection of 20 th and Susquehanna streets.
Officers Grant and Heeney then initiated a vehicle stop of the silver Toyota while still on fo ot. 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 indi viduals for identification. [A ppellant] 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 p ockets. [Appellant] did not comply. Fearing for his safety, Officer Grant removed [appellant] from the vehicl e and proceeded [to] search [appellant] for weapons by conducting an open handed pat dow n 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 d etermine was not a firearm. Fearing that the object could be a firearm, Officer Grant reached into [appellant’s] pocket and removed a g lass bottle labele d “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 inci dent to arrest. During the search incidentJ. A 2 1 0 45 /19

- 3

- 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 substa nce.
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 t he juvenile

court found hi s testimony credible. ( See j uvenile court opinion, 10/10/18

at 1.) Following the hearing, t he juvenile court denied appellant’s suppression

motion and adjudicated him delinquent of unlawful posses si on of a controlled

substance. (Notes of testimony, 10/10/18 at 36, 38

- 39.) That same day, t he
juvenile court placed appellant at the Glen Mills School for Boys. Appellant
did not file a post

- dispositional m o tion. This timely appeal followed on
August 7 , 2018

. 3

A ppellant 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.J. A 2 1 0 45 /19

- 4

-

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 supp ression 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 ma y 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 Co nstitution 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.J. A 2 1 0 45 /19

- 5

-

justify their interactions with citizens to the ex tent 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 firs t of these interactions is a mere enco unter (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 f unctional equiva lent 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 ableJ. A 2 1 0 45 /19

- 6

- to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Such a frisk, permitte d 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. Preach er , 827 A.3d 1235 , 1239 (Pa.Super. 2003)
( internal quotati on marks and citation omitted).

I. Scope of the Terry f risk
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 int o appellant’s lef t 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.

T h e 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 m ake sure that everything was saf e durin g the entirety of this stop.” ).J. A 2 1 0 45 /19

- 7

-

14. ) Officer Gra nt testified that d uring the ensuing traffic stop , he became
concerned that appellant may be in possession of a weapon after observing

him “t urn[] his left should er 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

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

r ecent 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 pocke t and removed the object , which turned out to be a large glass bottle labe lled “ 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 fr om appellant’s right pants

- pocket that contained two Oxycodone pills

. ( Id. at

18

- 20.)J. A 2 1 0 45 /19

- 8

-

Based on the foregoing, we conclude that Officer Grant articulate d 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 reach ing
into appellant’s left pants pocket during an otherwise valid Terry pat

- down

.
S ee , e.g. , Commonwealth v. Taylor , 771 A.2d 1261, 1269 (Pa. 2001)
(holding that a police o fficer was justifi ed 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 rea sonably 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, c ontrary to appellant’s
contention, analysis of whether Officer Grant justifiably put his hand into
appellant’s pocket und er the “plain feel doctrine” is not warranted in this case

. ( S ee appellant’s brief at 9

- 11). U nder the pla in 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, theJ. A 2 1 0 45 /19

- 9

- 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 reac hed into appellant’s left pants pocket under the

re asonable 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 juv enile court recognized in its opinion:

I t 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 wa s 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 pol ice vehicle. [Appellant] di d 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, t hat [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 t o notes of testimony
omitted).
Accordingly, ap pellant’s first claim must fail.J. A 2 1 0 45 /19

- 10

-

I I
. Probable cause to arrest
In his second claim, appellant co ntends that the juvenile court erred in
denying his suppression motion because Officer Grant lacked probable ca use
to arrest him given that it is not a crime to p ossess a bottle of Promethazine,

even if it is pr e scribed to another individual. (Appellant’s brief at 11

- 12.)
As recognized by the juvenile court and both parties , although the

comm on mixture of Promethazine and C odeine is a controlled substance,

Promethazine , by itself, is not. ( Juvenile c o urt 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 con trolled substance and neither party objected to this
testimony. ( See notes of testimony, 7/10/18 at 19.) Moreover, the record

reflects that a ppellant 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.) A s 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 andJ. A 2 1 0 45 /19

- 11

-

experience with respect to Promethazine or how it is commonly mixed with

C odeine on the street. See , e.g. , United States v. Achobe , 560 F.3d 259,
261 (5 th Cir. 2008) (stating that a mixture of P romethazine and C odein e 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