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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SAMUEL ANDINO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1541 EDA 2018

Appeal from the Judgment of Sentence May 8, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0003625-2017

BEFORE: LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.: FILED MAY 17, 2019

Samuel Andino appeals from the judgment of sentence, entered in the 

Court of Common Pleas of Philadelphia County, after he was convicted in a 

non-jury trial of various firearms charges.1 On appeal, Andino challenges the 

trial court’s denial of his pre-trial motion to suppress, claiming that the police 

did not have reasonable suspicion to conduct a “pat-down” where Andino was 

not armed and dangerous and that the arresting officer did not have probable 

cause to subsequently conduct a search of his vehicle. After careful review, 

we vacate Andino’s judgment of sentence and reverse the order denying 

suppression.

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1 18 Pa.C.S. §§ 6105(a)(1) (persons not to possess firearms); 6106(a)(1)

(firearms not to be carried without license); 6108 (carrying firearms on public 

streets in Philadelphia); and 6106.1 (carrying loaded weapon). 
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On the evening of April 10, 2017, Philadelphia Police Officers Sharrod 

Davis and Timothy Murphy were on routine patrol duty in their marked police 

cruiser near North Dover Street in Philadelphia, a high-drug/crime area. 

Officer Davis observed a Chevy Malibu, with a Pennsylvania license plate,

double-parked on the 2800 block of Cecil B. Moore Avenue. The officers pulled 

their cruiser behind the Malibu; the driver of the vehicle, Andino, drove off, 

turning northbound onto the 1700 block of Dover Street without using turn 

signals. At that time, Officer Murphy activated the cruiser’s overhead lights 

and sirens and followed Andino’s vehicle, which had pulled over and parked 

on the sidewalk. Officer Davis conducted a motor vehicle check that revealed 

the Malibu’s registration had been suspended. At that time, Officer Davis 

exited the cruiser and approached the Malibu. As he neared the Malibu’s 

driver’s side window, Officer Davis testified that he smelled an odor of burnt 

marijuana.2 At that point, Officer Davis told Andino that he and his vehicle 

were going to be searched. Officer Davis then opened the car door and, as 

he attempted to pat down Andino, noticed Andino “kind of lean[] over towards 

the driver – the steering wheel.” N.T. Suppression Hearing/Waiver Trial, 

12/14/17, at 11. Officer Davis then put his hand on Andino, told him to move 

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2 Officer Murphy testified that he did not recall an odor of marijuana emanating 

from Andino’s vehicle during the encounter. N.T. Suppression Hearing/Waiver 

Trial, 12/14/17, at 36.
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back and patted down his right front pants pocket, recovering a firearm 

magazine that contained 15 live rounds. Id. at 11-12. 

At that point, Officer Davis asked Andino to exit the vehicle, telling him 

that he needed to pat him down further because he was not able to reach all 

the way down Andino’s pant legs while he was seated in the Malibu. Officer 

Davis then handed Andino over to his partner, Officer Murphy, telling him to 

perform a full pat-down on Andino. Id. at 14. When Officer Murphy conducted 

his pat-down of Andino, he recovered a black 9mm Glock handgun with an 

extended magazine loaded with 23 rounds from Andino’s right leg. Id. At the 

same time Officer Murphy was patting down Andino, Officer Davis performed 

a search of the vehicle. Id. at 28. No contraband was uncovered during the 

search of the Malibu. Id. at 29.

Andino filed a pre-trial motion to suppress, arguing that the police 

lacked both reasonable suspicion to pat him down and probable cause to 

conduct, what amounted to, a search of his person. On December 14, 2017, 

the Honorable J. Scott O’Keefe denied the suppression motion, stating, 

“[A]fter reviewing my notes, I’m going to deny the motion to suppress.”3 

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3 We remind Judge O’Keefe that pursuant to Pa.R.Crim.P. 581(I), “[a]t the 

conclusion of the hearing, the judge shall enter on the record a statement of 

findings of fact and conclusions of law as to whether the evidence was 

obtained in violation of the defendant's rights, or in violation of these rules or 

any statute, and shall make an order granting or denying the relief sought.” 

Pa.R.Crim.P. 581(I) (emphasis added).
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Immediately following the suppression ruling, Andino proceeded to a waiver 

trial where the parties incorporated all relevant testimony from the 

suppression hearing. After admitting exhibits, the parties rested and the court 

rendered its guilty verdict. 

On April 25, 2018, the trial court sentenced4 Andino to 31⁄2-7 years’ 

incarceration and two years of probation for his section 6106 conviction, with 

two separate concurrent terms of five years of probation for his section 6105 

and section 6108 violations.

5

 Andino filed a timely notice of appeal and courtordered Pa.R.A.P. 1925(b) concise statement of errors complained of on 

appeal. He presents one issue for our consideration:

Did not the lower court err in denying [Andino’s] motion to 

suppress the physical evidence insofar as [Andino] was frisked 

without reasonable suspicion that he was armed and dangerous 

and assuming arguendo that a frisk was lawful under the 

circumstances, the police officer exceeded the scope of the frisk 

by performing an admitted search which required probable 

cause.[6] 

Appellant’s Brief, at 3.

In an appeal from the denial of a motion to suppress, our Court’s role is 

to determine whether the record supports the suppression court’s factual 

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4 The trial court amended its sentence that originally imposed 4-8 years’ 

imprisonment on the section 6106(a)(1) offense, a third-degree felony. 

5 No further penalty was imposed on Andino’s section 6106.1 conviction.

6 Andino does not contest the legal validity of the car stop where he committed

a Motor Vehicle Code violation and the car’s registration had been suspended 

due to a returned check. N.T. Suppression Hearing/Waiver Trial, 12/14/17, 

at 9.
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findings and the legitimacy of the inferences and legal conclusions drawn from 

those findings. Commonwealth v. Turner, 772 A.2d 970 (Pa. Super. 2001). 

Moreover, 

[s]ince 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. Bomar, 826 A.2d 831, 842 (Pa. 2003). 

Andino argues that neither officer had reasonable suspicion to frisk him 

or probable cause to search him where Andino was nothing but cooperative 

with the police and there was no evidence to support the claim that Andino’s 

movement in the car was “out of the ordinary.” Andino also claims that Officer 

Davis did not have “reasonable individualized suspicion” to justify a frisk for 

weapons where the officer’s real motive in frisking Andino was to find 

marijuana. Finally, Andino claims that even if the frisk were justified, the 

scope of the pat-down well exceeded the permissible range under Terry,

7

which is “limited to that which is necessary for the discovery of weapons which 

might be used to harm the officer or others nearby.” Terry, 392 U.S. at 26.8

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7 Terry v. Ohio, 392 U.S. 1 (1968).

8 Notably, the Commonwealth concedes that Andino is entitled to relief on 

appeal. Specifically, the Commonwealth states that although the police 

lawfully stopped Andino’s car, “the record does not support the conclusion that 

[Andino] appeared to be armed and dangerous.” Commonwealth’s Brief, at 
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It is well established that “to proceed from a stop to a frisk, the police 

officer must reasonably suspect that the person stopped is armed and 

dangerous.” Arizona v. Johnson, 555 U.S. 323, 326-27 (2009). As our 

Supreme Court has explained:

[I]f 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. Stevenson, 744 A.2d 1261, 1264-65 (Pa. 2000) 

(citations and quotation marks omitted).

Instantly, Officer Davis and Officer Murphy contradicted each other on 

two portions of their testimony: (1) whether they smelled an odor of burnt 

marijuana emanating from the car during the stop; and (2) whether Andino 

had been handcuffed at the time Officer Davis handed him over to Officer 

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4. Additionally, the Commonwealth does not find support in the record for the 

trial court’s conclusion that Andino made a furtive movement when Andino 

leaned toward the steering wheel, but, rather, would find that Andino’s “hands 

remained in the officer’s view and all times” and, thus, “the police lacked 

reasonable suspicion to frisk [Andino].” Id.
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Murphy.9 Thus, this contradicted testimony from prosecution witnesses shall 

not be considered. Turner, supra.

With regard to whether Officer Davis had “a reasonable suspicion, based 

on specific and articulable facts, that [Andino] may be armed and dangerous,” 

Stevenson, supra, we note that Officer Davis testified that in approximately 

one-third of the narcotics arrests he has made on the force, he has also 

recovered firearms. Therefore, he acknowledged that he had a heightened 

concern about the possibility of a firearm being in Andino’s vehicle. Id. at 20. 

Officer Davis also testified that he was concerned for his safety when, as he 

attempted to pat Andino down, Andino “kind of leaned over towards . . . the 

steering wheel.” Id. at 11. 

An officer need not be absolutely certain that an individual is armed; the 

issue is whether a reasonably prudent man in the circumstances would be 

warranted in the belief that his safety or the safety of others was in danger. 

Commonwealth v. Taylor, 771 A.2d 1261 (Pa. 2001). Here, the trial judge, 

as the fact finder, chose to believe Officer Davis when he testified that he was 

concerned for his safety. However, Judge O’Keefe ultimately concluded that 

the officers had probable cause to search the Malibu due to “the officer’s 

detection of the odor of marijuana” and that once probable cause was 

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9 Compare N.T. Suppression Hearing/Waiver Trial, 12/14/17, at 13 (Officer 

Davis testified that as Andino exited the vehicle he “believed the defendant 

was going to become a little hostile[, so he] handcuffed him . . . for my safety 

and his safety.”) with id. at 35-36 (Q”: And was he in handcuffs at that time 

[Officer Davis passed him off to you]. A: No.”). 
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established “the officers possessed the requisite authority to require the driver 

to exit the vehicle and had a reasonable basis to conduct a protective pat[-

]down for their safety.” Trial Court Opinion, 8/21/18, at 5. Because Officer 

Murphy testified that he did not remember smelling marijuana coming from 

Andino’s car and there are no facts to support Officer Davis’s testimony that 

he smelled an odor of marijuana emanating from the car, we conclude that 

the trial court erroneously relied on this fact to conclude that there was 

probable cause and conduct a protective pat-down. Commonwealth v. 

Trenge, 451 A.2d 701 (Pa. Super. 1982) (collecting cases standing for 

proposition that odor of marijuana, without more, usually will not provide 

probable cause). Here, the only other fact that Officer Davis had prior to 

conducting his pat-down was that Andino’s vehicle registration was suspended 

for failure to pay. This fact, alone, does not create probable cause. 

Commonwealth v. Bailey, 545 A.2d 942, 947 (Pa. Super. 1988) (to justify 

a search of movable vehicle, officer must have independent probable cause to 

believe: felony has been committed by occupants of vehicle, that it has been 

used in furtherance of commission of felony, or officer must have basis for 

believing evidence of a crime is concealed within vehicle, or that there are 

weapons within vehicle accessible to occupants).

Moreover, because Officer Davis had already commenced patting Andino 

down at the time he observed Andino lean toward the steering wheel, he 

cannot rely on that subsequent fact to justify the pat-down. See Stevenson, 

supra (“[I]f the officer has a reasonable suspicion, based on specific and 
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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.”). Simply put, an officer’s reasonable suspicion is a condition 

precedent to a lawful Terry frisk. 

Now that we have taken the alleged “furtive” movement out of the 

equation, we are left with the following facts to support Officer Davis’ 

justification for the pat-down: the stop occurred in a high-crime area at night 

and Officer Davis had a heightened concern that there may be a firearm in the 

Malibu where, in his experience, 33% of narcotics arrests also result in the 

recovery of firearms.10 These facts do not justify a Terry pat-down. See 

Commonwealth v. Brown, 904 A.2d 925 (Pa. Super. 2006) (absence of 

flight in high crime area negates presence of reasonable suspicion and 

invalidates police’s Terry stop of defendant); see also Commonwealth v. 

Grahame, 7 A.3d 810 (Pa. 2010) (where officer conducted protective search 

based on generalization that firearms commonly found in close proximity to 

illegal drugs, and where there were no facts supporting objectively reasonable 

belief that defendant was armed and dangerous, officer lacked reasonable 

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10 While we recognize that officers may draw specific, reasonable inferences 

from facts in light of their training and experience, here Officer Davis’ concern 

that weapons may have been present on Andino’s person or in his vehicle is 

predicated on the disputed testimony that there was an odor of marijuana 

emanating from the car. Again, this finding is not supported in the record. 

Turner, supra. 
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suspicion to conduct Terry search).

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 Thus, under the specific facts of this 

case, we conclude that Officer Davis did not have a particularized, objective 

basis for his pat-down of Andino and any further search of the Malibu was 

unlawful. Stevenson, supra.

Judgment of sentence vacated. Order denying motion to suppress 

reversed. Case remanded for further proceedings consistent with this 

memorandum. Jurisdiction relinquished.

Judge Kunselman joins this Memorandum.

Judge Strassburger files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/17/19

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11 While Andino initially “t[oo]k off” after the officers pulled up behind the 

Malibu when it was double-parked on Cecil B. Moore Avenue, neither officer 

characterized the action as “flight.”