J-S44033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v. DESMOND GREENE Appellee No. 207 WDA 2015

Appeal from the Order Entered January 7, 2015 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0001130-2014

***** COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v. DESMOND GREENE Appellee No. 208 WDA 2015

Appeal from the Order Entered January 7, 2015 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0001299-2014

BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J. MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 18, 2015 The Commonwealth appeals from the order entered in the Court of Common Pleas of Mercer County granting Desmond Gree ne’s motion to suppress evidence. After careful review, we revers e and remand for further proceedings.J-S44033-15

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The suppression court set forth the facts of this m atter as follows: Officer Adam Zazado of the Sharon Police Department was on patrol on July 18, 2014, in Zone 5 of the City. Zo ne 5 is a high crime area. At approximately 5:30 p.m., he observe d two black males walking south through the alley leading to Mo rrison Street. One had no shirt and the other was wearing jeans with a long sleeve hoodie with the hood up. The black mal es glanced in the officer’s direction and kept on walking. It was a sunny day and the temperature was 78 degre es. Officer Zazado drove around the block to see where the two were headed. The two were still walking down the a lley. At that point, the officer decided he wanted to talk to the two black males. He turned his vehicle around and drove up t he alley. When Officer Zazado entered the alley, only one of the black males remained. It was the individual wearing the hoodie. The officer observed that individual fidgeting with his clothing. The officer identified this black male as [Greene]. As the officer drove toward [Greene], [Greene] bega n walking east through some yards. The officer drove around the block to get in front of [Greene].[ 1 ] He did so on South Oakland. The officer exited his vehicle and asked [Greene] i f he could talk to him. [Greene] agreed. As the officer was talking to [Greene], he noticed [Greene] was pressing his legs tightly together. When asked why he was doing so, he indicated he had to go to the bathroom . The officer told [Greene] if he had to go to the bathroom, he c ould have gone in the alley when no one was watching. [Greene] was fidgety and avoided eye contact. In a ddition, [Greene] continued to put his hands in his pants po ckets even though instructed not to do so by the officer.

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1 Officer Zazado actually testified that he parked h is cruiser behind, not in front of, Greene, who was continuing to walk. See N.T. Suppression Hearing, 1/7/15, at 16.J-S44033-15

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As a result of all the above factors, the officer f elt he needed to pat-down [Greene] to determine if he was armed. He instructed [Greene] to walk over to the officer’s cruiser so h e could be patted down. As [Greene] walked over, Office[r] Za zado saw a large bulge in the thigh area of [Greene’s] left le g. [Greene] was ordered to stop. A second officer, Officer Zyc h, who had just arrived on the scene, articulated [Greene’s] l eft leg and found a hand gun. Trial Court Opinion, 2/24/15, at 2-3. Greene was subsequently charged with one count eac h of carrying a firearm without a license, 2 possession of a firearm prohibited, 3 and receiving stolen property 4 after a records search of the firearm’s serial num ber showed it to be stolen. On December 1, 2014, Greene filed an omnibus pre-tr ial motion and on January 7, 2015, the suppression court held that there was no basis to believe that criminal activity was afoot, and there fore the pat down and discovery of Greene’s firearm was unlawful. The Co mmonwealth filed a timely notice of appeal asserting that the grant of Greene’s suppression motion would substantially handicap the prosecution , see Pa.R.A.P. 311(d), as well as a court-ordered statement of errors comp lained of on appeal pursuant to Pa.R.A.P. 1925(b). On appeal, the Commonwealth raises the following cl aim:

____________________________________________ 2 18 Pa.C.S. § 6106.

3 18 Pa.C.S. § 6105.

4 18 Pa.C.S. § 3925.J-S44033-15

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Whether [Officer Zazado] lacked reasonable suspicio n that criminal activity may have been afoot or that [Gree ne] may have been armed and dangerous to police based upon the t otality of the circumstances that included, but were not limit ed to, [Greene’s] failure to remove his hands from his poc kets in a high crime area after being told to do so? Brief of Appellant, at 4. Our standard of review when evaluating a suppressio n order is well settled: When reviewing the propriety of a suppression order , an appellate court is required to determine whether th e record supports the suppression court’s factual findings a nd whether the inferences and legal conclusions drawn by the s uppression court from those findings are appropriate. Where t he [appellee] prevailed in the suppression court, we may consider only the evidence of the [appellee] and so much of the evide nce for the Commonwealth as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the suppression court, we are b ound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. However, where the appeal of the determination of the suppression court turns on all egations of legal error, the suppression court’s conclusions of law are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to t he facts. Commonwealth v. Walls , 53 A.3d 889, 892 (Pa. Super. 2012) (citations omitted). The Commonwealth argues that Officer Zazado possess ed reasonable suspicion that criminal activity was afoot and that Greene was armed and dangerous. The Commonwealth claims that there is n o dispute that Officer Zazado’s initial contact with Greene was lawful as a mere encounter, and the suppression court agreed. However, the Commonwealt h asserts that “Greene’s failure to keep his hands out of his pock ets . . . has been heldJ-S44033-15

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sufficient cause to conduct a pat down” and, even i f that factor alone did not establish reasonable suspicion, the totality of the circumstances did. We

agree. There are three categories of interactions between citizens and police: The first of these is a “mere encounter” (or reques t for information) which need not be supported by any lev el of suspicion, but carries no official compulsion to st op or to respond. The second, an “investigative detention” must be supported by reasonable suspicion; it subjects a su spect to a stop and a period of detention, but does not involv e such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or “custodial detent ion” must be supported by probable cause. Commonwealth v. Mendenhall , 715 A.2d 1117, 1119 (Pa. 1998) (citations omitted). In order to determine whether an investigative dete ntion has occurred, circumstances to be examined include any which may “evidence a show of authority or exercise of force including such subtl e factors as the demeanor of the police officer, the location of the confront ation, the manner of expression used by the officer in addressing the ci tizen, and the content of the interrogatories or statements.” Commonwealth v. Jones , 378 A.2d 835, 839-40 (Pa. 1977). After examining the circum stances, the standard to be used is whether “a reasonable man, innocent of a ny crime, would have thought [he was being restrained] had he been in th e defendant’s shoes.” Id. at 840. To establish reasonable suspicion, an officer must “articulate specific observations which, in conjunction with reasonable inferences derived fromJ-S44033-15

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those observations, led him to reasonably conclude, in light of his experience, that criminal activity was afoot and t hat the person he stopped was involved in that activity.” Commonwealth v. Basinger , 982 A.2d 121, 125 (Pa. Super. 2009), quoting Commonwealth v. Reppert , 814 A.2d 1196, 1203 (Pa. Super. 2002). In such an inquiry, the totality of the circumstances must be considered. In re D.M. , 781 A.2d 1161, 1163 (Pa. 2001). “[T]he totality of the circumstances test d oes not limit our inquiry to an examination of only those facts that clearly ind icate criminal conduct. Rather, ‘even a combination of innocent facts, when taken together, may warrant further investigation by the police officer .’” Commonwealth v. Rogers , 849 A.2d 1185, 1189 (Pa. 2004), quoting Commonwealth v. Cook , 735 A.2d 673, 676 (Pa. 1999). We must give “due weight . . . to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his experience.” Commonwealth v. Cook , 735 A.2d 673, 676 (Pa. 1999), quoting Terry v. Ohio , 392 U.S. 1, 27 (1968). Here, we agree with the Commonwealth and the suppre ssion court that Officer Zazado’s initial interaction with Gree ne was a mere encounter. Officer Zazado, suspicious that Greene was wearing a hoodie on a sunny, 78-degree day, decided to investigate further. Off icer Zazado took his cruiser to the alley where Greene was walking and, as Officer Zazado began following him (without lights or sirens), Greene be gan cutting through yards of residences in the other direction. Ultimately, Officer Zazado stopped his vehicle behind Greene as Greene continued to walk o n. Officer ZazadoJ-S44033-15

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asked Greene if he could speak with him and Greene agreed. At this point, Officer Zazado had made no show of authority or exe rcise of force such as would cause a reasonable person to believe he was b eing restrained. See id. Greene could have simply continued to walk on, un impeded by Officer Zazado or his vehicle, without responding to the of ficer’s request to speak with him. Greene, however, agreed to speak with Of ficer Zazado. As Greene’s interaction with Officer Zazado progres sed, Greene began exhibiting signs of nervousness, fidgeting with his shoes, avoiding eye contact and awkwardly standing with his knees press ed tightly together. Most notably, during his encounter with Officer Zaz ado, Greene “repeatedly put his hands into his [pants] pockets approximatel y three times,” despite Officer Zazado’s instruction to remove them. N.T. Suppression Hearing, 1/7/15, at 9. Based on the foregoing behavior exhibited by Greene – particularly his refusal to remove his hands from his pockets – and the fact that the encounter was occurring in a high-crime neighborhoo d, Officer Zazado testified that he became fearful for his own safety . As a result, Officer Zazado advised Greene that he wished to pat him dow n. After Officer Zazado directed Greene to walk over to his cruiser for a pat-down, Greene unlocked his legs and began to walk, at which point Officer Zazado “saw a large bulge in [Greene’s] left leg towards his thig h area like something fall [sic].” Id. at 12.J-S44033-15

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The pertinent facts in Commonwealth v. Hall , 713 A.2d 650 (Pa. Super. 1998), rev’d on other grounds , 771 A.2d 1232 (Pa. 2001), are analogous to the matter before the Court. In that case, [t]wo Reading police officers, patrolling in their cruiser, saw defendant and a companion conversing in an alley ne ar a café. The police parked their vehicle, the conversants [s ic] broke up, and appellant approached the police car while getti ng his I.D. out of his wallet and asked “Is everything all righ t, officer?” After a brief exchange, the officer removed from hi s vehicle and noticed Hall had his hands in his pocket. He asked if he was armed and Hall said he was not. Hall was asked to take his hands out of his pocket, but only removed his left hand. As the officer came to him, Hall pivoted with his hand in his pocket. After being asked again to remove his hand, he did, but became confrontational and stated that he would not be sea rched. The officer replied that he would not search him, but o nly pat him down for weapons. Id. at 652-53. The Court concluded that “when Hall ap proached with his hand thrust in his pocket and refused to remove it, the encounter escalated into a situation where the totality of circumstance s involved a reasonable suspicion and justified a detention to stop and fri sk.” Id. at 653. Thus, “the single factor of the defendant keeping his hand in his pocket after being asked to remove it escalated the encounter into one of reasonable suspicion.” Commonwealth v. Scarborough , 89 A.3d 679, 684 (Pa. Super. 2014), citing Hall , supra . The result in Scarborough , supra , similarly militates in favor of a finding that Officer Zazado possessed reasonable su spicion to perform a weapons pat-down. In Scarborough , two officers were on bicycle patrol in a high-crime area of Philadelphia when the followin g transpired:J-S44033-15

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The officers observed the defendant heading southbo und, toward them, . . . riding a bicycle and talking on a cellu lar phone. The officers stopped the defendant in order to issue hi m a citation for using the phone while operating a vehicle, in viola tion of a City of [a] Philadelphia ordinance[.] When asked, the defendant hung up his phone and pla ced it in his left jacket pocket. The officers also asked fo r his identification. The defendant began to behave nerv ously, and put his hand in his right jacket pocket but did not withdraw it. The officers reiterated their request for identific ation, and asked the defendant to remove his hand from his right poc ket. The defendant looked around and appeared extremely nerv ous. Upon being asked a second time, he removed his hand from his right pocket.

Id. at 682. The officers proceeded to conduct a pat-d own for their safety and discovered a firearm. On appeal of the suppres sion court’s refusal to exclude the firearm discovered during the pat-down, this Court emphasized the significance of the defendant’s refusal to remo ve his hand from his pocket and concluded that the police had the right to perform a weapons frisk. Here, as in Hall and Scarborough , we conclude that, based on the totality of the circumstances present at the time o f the interaction, when Greene repeatedly placed his hands in his pockets d espite Officer Zazado’s instructions to remove them, Officer Zazado possess ed reasonable suspicion that Greene might be armed and dangerous. Accordin gly, Officer Zazado was justified in requesting that Greene submit to a weapons pat-down. Thus, the suppression court erred by concluding tha t Officer Zazado lacked reasonable suspicion and suppressing the evidence o btained as a result of the pat-down.J-S44033-15

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Order reversed; case remanded for proceedings consi stent with the dictates of this memorandum. Jurisdiction relinqui shed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/18/2015