J-A08011-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

KENNITH C. MONROE

No. 712 EDA 2016

Appeal from the Order Entered February 12, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0010262-2015

BEFORE: PANELLA, J., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J. FILED JULY 18, 2017

The Commonwealth of Pennsylvania appeals1from the order entered 

on February 12, 2016, in the Court of Common Pleas of Philadelphia County. 

The order granted Appellee Kennith2 C. Monroe’s pretrial motion to suppress 

evidence. We reverse and remand for further proceedings. 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 This appeal is permissible as of right because the Commonwealth has 

certified in good faith that the suppression order submitted for our review 

substantially handicaps the prosecution and the appeal is not intended for 

delay purposes. See Pa.R.A.P. 311(d). 

2 There appears to be some discrepancy in the record concerning the correct 

spelling of Appellee’s first name. We have adopted the spelling that appears 

on Appellant’s Notice of Appeal and in Appellee’s Brief. See Notice of Appeal, 

3/10/16; Appellee’s Brief, 12/19/16. 
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The relevant facts and procedural history are as follows. On June 8, 

2015, Monroe was arrested and charged with possession of a firearm without 

a license and carrying a firearm on the streets of Philadelphia.3 Monroe filed 

a motion to suppress. The trial court held a suppression hearing. 

At the hearing, the Commonwealth presented the testimony of Police 

Officer Timothy Gibson. Officer Gibson testified that on the evening of June 

8, 2015, he and his partner, Officer Loesch, were on patrol in a marked 

police vehicle in the area of 1900 North Broad Street in Philadelphia. See

N.T., Suppression Hearing, 2/2/16, at 7-8.4 At approximately 10:50 p.m., 

Officer Gibson observed a male, driving a purple Vespa scooter southbound 

on North Broad Street, disregard a red light at the intersection of North 

Broad street and Norris street. See id., at 8. The driver, later identified as 

Monroe, continued southbound and drove through another red light at the 

intersection of North Broad Street and Paulette Walk. See id. The officers 

activated the police vehicle’s siren and external lights and directed Monroe 

to pull his vehicle to the side of the road. See id. Monroe complied, 

disembarked, and stood beside the Vespa. See id.

____________________________________________

3 18 Pa.C.S.A. §§ 6106(A)(1) and 6108, respectively. 

4 While the record reflects that the suppression hearing took place on 

February 2, 2016, the Notes of Testimony indicates that the suppression 

hearing took place on February 2, 2015. See N.T., 2/2/16. We will to refer 

to the correct date, February 2, 2016, when citing to this document. 
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As Officer Gibson approached Monroe, Monroe, without prompting, 

informed Officer Gibson that “[i]t’s my friend’s [sic] Mike’s bike.” Id. 

Further, Officer Gibson noted that Monroe appeared “very nervous,” was 

“swaying back and forth, continuously reaching into his pockets,” and was 

almost “stuttering” as he spoke to the officers. Id., at 8-9. Officer Gibson 

informed Monroe that they had pulled him over for running the red lights 

and asked Monroe for insurance, registration and his identification. See id., 

at 9, 23. At this point, Monroe calmed down but was unable to find the 

insurance or registration for the Vespa and did not have identification on his 

person. See id., at 9-11. However, Monroe provided his name for Officer 

Gibson, who left Monroe with Officer Loesch and ran Monroe’s name through 

the NCIC/PCIC system to check for outstanding warrants. See id., at 12. 

Officer Gibson did not find any warrants, but returned to Monore to 

confirm that his identification information was correct. Upon his return, 

Officer Gibson noted that Monroe “became extremely nervous swaying back 

and forth again, reaching in both of his pockets, and his right hand kept 

reaching into his pocket as if he was bringing an object out of his pocket but 

then pushing it back in.” Id., at 12, 25-26. Based upon his six years of 

experience and his knowledge of robberies in the area, Officer Gibson 

believed that Monroe might be concealing a weapon, feared for his life and 

the life of his partner, and therefore conducted an open hand frisk for 

weapons. See id., at 12-14, 27. 
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During the frisk, Officer Gibson felt a bulge in Monroe’s front right 

pocket that he “immediately recognized as possibly being the handle of a 

firearm.” Id., at 13. He removed the object from Monroe’s pocket—and 

recovered a .22 caliber handgun. See id. 

On cross-examination, Officer Gibson disclosed that although his intent 

in stopping Monroe was to discuss the red light traffic violations or to issue 

tickets for those violations, he did not ultimately issue a ticket for the red 

light violations. See id., at 17-18. Officer Gibson clarified that because he 

was still attempting to receive Monroe’s identification immediately prior to 

the frisk, he had never indicated that Monroe was free to leave the 

interaction. See id., at 23-24. Further, Officer Gibson admitted that he 

never saw any object in Monroe’s hand. See id., at 26. Overall, the entire 

interaction between Officer Gibson and Monroe lasted approximately five 

minutes. See id., at 24. Monroe did not testify or present any testimony on 

his behalf. 

Following the hearing, the court granted Monroe’s suppression motion, 

stating that because there was no report of the outline of contraband or 

criminal activity, Officer Gibson did not have the requisite reasonable 

suspicion to frisk Monroe for weapons. See N.T., 2/12/16, at 6. Further, in 

its 1925(a) statement, the court clarified that it relied upon the decision in 

Commonwealth v. Reppert, 814 A.2d 1196 (Pa. Super. 2002) (en banc), 

to conclude that the initial traffic stop had concluded when the frisk 

occurred, and that Officer Gibson had not shown renewed reasonable 
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suspicion following the conclusion of the traffic stop to justify the protective 

frisk. See Trial Court Opinion, 5/18/16, at 6-7. This appeal followed. 

On appeal, the Commonwealth challenges the suppression court’s 

decision to suppress the evidence obtained from Officer Gibson’s search of 

Appellee. See Commonwealth’s Brief, at 4. Specifically, the Commonwealth 

contends Officer Gibson had a reasonable basis for conducting a protective 

frisk of Monroe, and that the trial court’s reliance on Reppert is misplaced. 

See id., at 13-14. We agree. 

Our scope and standard of review is well settled. 

When the Commonwealth appeals from a suppression order, this 

Court may consider only the evidence from the [Appellee’s] 

witnesses together with the evidence of the prosecution that, 

when read in the context of the record as a whole, remains 

uncontradicted. In our review, we are not bound by the 

suppression court’s conclusions of law, and we must determine if 

the suppression court properly applied the law to the facts. We 

defer to the suppression court’s findings of fact because, as the 

finder of fact, it is the suppression court’s prerogative to pass on 

the credibility of the witnesses and the weight to be given to 

their testimony. 

Commonwealth v. Myers, 118 A.3d 1122, 1125 (Pa. Super. 2015) 

(citation omitted). Here, the record supports the suppression court’s factual 

findings as set forth at the suppression hearing.5 Thus, we proceed to review 

the court’s legal conclusions, for which our standard of review is de novo and 

____________________________________________

5 The court did not file a contemporaneous suppression opinion at the time it 

granted the suppression motion. 
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our scope of review is plenary. See Commonwealth v. Wilson, 101 A.3d 

1151, 1153 (Pa. Super. 2014), appeal denied, 121 A.3d 496 (Pa. 2015). 

Neither side disputes that the Vespa was subject to a valid traffic stop,

i.e., investigative detention, due to Monroe’s disregard of two red traffic 

lights. See N.T., 2/2/16, at 5; Commonwealth’s Brief, at 9-10. Further, the 

parties agree that the frisk at issue constituted a protective weapons search, 

or Terry6frisk. See Appellee’s Brief, at 2; Commonwealth’s Brief, at 9. 

Therefore, as we explain below, our focus is whether the frisk occurred 

during the initial traffic stop. And if it did, were “the facts available to the 

officer at the moment of the [intrusion]” sufficient “to warrant a man of 

reasonable caution in the belief that the action taken was appropriate.” 

Commonwealth v. Griffin, 954 A.2d 648, 651 (Pa. Super. 2008) (citation 

and internal quotation marks omitted; brackets in original). We will proceed 

to answer those questions. 

The Fourth Amendment of the United States Constitution guarantees, 

“[t]he right of the people to be secure in their persons, houses, papers, and 

effects, against unreasonable searches and seizures, shall not be violated....” 

U.S. Const. amend. IV. Similarly, the Pennsylvania Constitution assures 

citizens of our Commonwealth that “[t]he people shall be secure in their 

____________________________________________

6 Terry v. Ohio, 392 U.S. 1 (1968).
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persons, houses, papers and possessions from unreasonable searches and 

seizures....” Pa. Const. art. I, § 8. 

Further, “[t]he reasonableness of a government intrusion varies with 

the degree of privacy legitimately expected and the nature of the 

governmental intrusion.” Commonwealth v. Fleet, 114 A.3d 840, 844 (Pa. 

Super. 2015) (citation omitted). One such government intrusion that has 

been recognized as an acceptable interaction between law enforcement and 

citizens is an investigative detention, otherwise known as a Terry stop and 

frisk. 

A Terry stop permits an officer to briefly detain a citizen for 

investigatory purposes if the officer has “reasonable suspicion based upon 

specific and articulable facts, that criminal activity is afoot.” 

Commonwealth v. Stevenson, 894 A.2d 759, 771 (Pa. Super. 2006) 

(citation omitted). If at any point during this investigatory detention, an 

“officer believes, based on specific and articulable facts, that the individual is 

armed and dangerous” the officer may perform a Terry frisk. Id., at 772 

(citation omitted). “The purpose of this limited search is not to discover 

evidence of crime, but to allow the officer to pursue his investigation without 

fear of violence.” Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa. 

Super. 2011) (citations omitted). “The fundamental inquiry” in reviewing the 

officer’s decision “is an objective one,” utilizing “a totality of the 

circumstances test.” Griffin, 954 A.2d at 651 (citations omitted). 
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In Reppert, the case relied upon by the suppression court, an en banc 

panel of this Court set parameters on the length of the investigative 

detention caused by the initial traffic stop. There, the defendant was a 

passenger in a vehicle that was lawfully pulled over for expired registration 

stickers. See 814 A.2d at 1199. While the vehicle was pulling over, the 

arresting officer observed the defendant engaging in movements that 

suggested that he was secreting an object into the seat cushions. See id. 

The arresting officer interacted with the driver of the vehicle, accepted his 

explanation, and decided not to issue a citation for the stop. See id. At that 

point, the en banc panel determined that the traffic stop had concluded 

because the officer “had realized the purpose for the stop and had no further 

reasons to detain the driver of the vehicle or its occupants under the guise of 

the original traffic infraction.” Id., at 1203. However, the officer then 

directed the defendant to exit the vehicle and empty his pockets. See id., at 

1199. As the traffic stop, i.e., investigative detention, had concluded, the 

panel held that any subsequent search and seizure required a renewed 

showing of reasonable suspicion to support an additional detention and frisk. 

See id., at 1206. 

Based upon its interpretation of this ruling, the suppression court 

concluded that Officer Gibson “had realized the purpose for the stop and had 

no further reasons to detain the driver of the vehicle” once Monroe provided 

his name, and that therefore any frisk after that point required renewed 
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reasonable suspicion, which the suppression court did not find. However, the 

record is devoid of any proof that Officer Gibson had realized the purpose of 

the stop at the time he frisked Monroe. 

Unlike Reppert, although Officer Gibson ultimately did not issue 

citations for the traffic violations, there is no testimony that Officer Gibson 

had decided not to issue traffic citations at any time prior to the frisk. The 

officers never informed Monroe that he was free to leave. Further, as Monroe 

did not have any documentation for himself or the scooter, it is highly 

unlikely that the officer would have allowed him to leave prior to confirming 

this information. Thus, we cannot conclude, as the suppression court did, 

that Officer Gibson realized the purpose of the stop prior to the frisk. 

It is clear from the suppression court’s comments, which highlighted 

that Officer Gibson failed to testify regarding any indication that criminal 

activity was occurring, that the trial court applied the wrong standard to 

determine whether Officer Gibson had the requisite reasonable suspicion to 

perform the protective frisk. Therefore, we must analyze whether Officer 

Gibson had reasonable suspicion to perform a protective frisk under the 

correct standard—whether the officer held an objectively reasonable belief 

that the suspect may have been armed and dangerous.

When assessing the reasonableness of an officer’s decision to frisk an 

individual during an investigatory detention, we are not permitted to 

consider an officer’s “unparticularized suspicion or hunch,” but rather we 
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must consider “the specific reasonable inferences which he is entitled to 

draw from the facts in light of his experience.” Stevenson, 894 A.2d at 772 

(citations and internal quotation marks omitted). Further, “common sense 

concerns” guide the inquiry and “give preference to the safety of the police 

officer during an encounter with a suspect where circumstances indicate that 

the suspect may have, or may be reaching for, a weapon.” Id (emphasis 

and citation omitted). 

Here, the record establishes that Officer Gibson immediately noted 

that after Monroe disembarked from his Vespa, he was nervous, stuttering, 

swaying back and forth, and reaching into his pockets. After Officer Gibson 

asked for his information, Monroe calmed down as he looked for information 

for the Vespa. However, once Officer Gibson returned from running Monroe’s 

name through the system, Monroe became extremely nervous again, 

resumed swaying, and began “reaching into his pocket as if he was bringing 

an object out of his pocket but then pushing it back in.” N.T., Suppression 

Hearing, 2/2/16, at 12, 25-26. Based upon this behavior and Officer 

Gibson’s experience and knowledge of the crime in the area, he believed 

Monroe to be concealing a weapon. Officer Gibson conducted a frisk, citing 

fear for the safety of Officer Loesch as well as himself, and recovered a 

firearm. 

Viewing the totality of the circumstances, we find that Officer Gibson’s 

description of Monroe’s nervous behavior during the course of a valid traffic 
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stop, coupled with his furtive movements in reaching, and seemingly 

pushing an object, into his pocket, justified Officer Gibson’s reasonable 

suspicion that Monroe was armed and dangerous. In fact in 

Commonwealth v. Wilson, a panel of this court found that a similar furtive 

movements, over a similar span of time, when witnesses within the scope of 

a lawful traffic stop, provides a reasonable basis for a protective frisk. See

927 A.2d 279, 284-285 (Pa. Super. 2007) (finding that extreme nervousness 

and furtive movements, combined with the fact that defendant placed his 

hands inside his coat as if reaching for something, sufficient to justify a 

frisk). See also Commonwealth v. Simmons, 17 A.3d 399, 404 (Pa. 

Super. 2011) (finding passenger’s movements in reaching towards the floor 

and across his chest during a traffic stop sufficient to justify a frisk). 

Accordingly, we reverse the trial court’s suppression order and remand for 

further proceedings. 

Order reversed. Case remanded for proceedings consistent with this 

memorandum. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/18/2017