J-A08031-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

* Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

v.

VICTOR ROJAS,

 Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2644 EDA 2017

Appeal from the Judgment of Sentence July 19, 2017

in the Court of Common Pleas of Montgomery County 

Criminal Division at No(s): CP-46-CR-0005781-2016

BEFORE: PANELLA, LAZARUS, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 04, 2019

Victor Rojas (Appellant) appeals from the judgment of sentence 

imposed following his conviction for possession of drug paraphernalia. 

Specifically, he challenges the trial court’s order denying his motion to 

suppress the paraphernalia discovered during a frisk of his person incident to 

a traffic stop. We vacate the judgment of sentence, reverse the order 

denying the motion to suppress, and remand for further proceedings 

consistent with this memorandum.

The trial court summarized the relevant factual history of this matter 

as follows.

On June 25, 2016, around 12:45 [a.m.], Sergeant Brian 

Rathgeb, police officer of [25 years] and sergeant with the 

Pottstown Police Department since 2009, was in full police 

uniform and patrolling in his squad vehicle the area near the 

intersection of King and York Streets in Pottstown borough. This 

specific area of Pottstown borough is a high-crime area, e.g., 

prostitution, drug sales, shootings. 
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As the sergeant was approaching the intersection of King 

and York Streets, he happened upon Appellant’s vehicle, a red 

Kia, which was illegally parked ‘right up against the stop sign’ at 

the intersection, with the parking lights on and still in the lane of 

traffic. Notably, there was no one else on the street at this time. 

As the sergeant passed Appellant’s Kia, the squad vehicle’s 

headlights lit up the interior of Appellant’s vehicle, and it 

appeared to the sergeant that Appellant had his head down and 

was possibly unconscious. Given these observations, the 

sergeant suspected a potential emergency situation, i.e., an[] 

overdose, particularly give[n] the rampant ‘opioid abuse and 

people that are overdosing in that general area, as well as 

throughout Pottstown.’ So, the sergeant made a U-turn, 

activated his emergency lights, called in the information for the 

stop, and then after parking his squad car, approached 

Appellant’s vehicle. 

The sergeant asked Appellant through his window whether 

he was having a medical emergency, to which Appellant, whilst 

apparently manipulating his cell phone, responded he was fine 

and that he was waiting to pick up and take a friend to Walmart 

to get groceries. At this time, Appellant did not appear to be 

impaired to the sergeant but was ‘slightly nervous.’ The 

sergeant asked Appellant the name of his alleged friend he was 

picking up[.] Appellant indicated he was unaware of the 

person’s real name, and instead gave multiple nicknames. The 

sergeant then asked for the alleged friend’s address, to which 

Appellant did not give a numerical address, but instead 

[generally pointed to] a building located on the corner of the 

intersection. The entire encounter at this point was several 

minutes, and at no time did anyone come out of the alleged 

friend’s house and jump into Appellant’s vehicle to be taken to 

Walmart to get groceries as Appellant claimed.

The sergeant checked the registration of the vehicle 

Appellant was driving and discovered it was registered to 

another person with a Pittsburgh, Pennsylvania address, which 

was significant to the sergeant because, according to his 

testimony, there is an ‘influx of people from other larger cities 

coming to Pottstown for the purpose of getting involved in the 

drug trade.’ Based upon all the circumstances, the sergeant 

believed Appellant was stopped at this particular intersection to 

purchase narcotics. Furthermore, given the sergeant’s belief, 

and his extensive experience and particularized training with 
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drug investigations and violent crime, the sergeant was also 

concerned for the presence of potential weapons, which are 

often used as protection in the drug trade[,] or for needles [] or 

other ingestion paraphernalia that are involved in heroin 

overdoses common in the area. With that, the sergeant asked 

Appellant to exit the Kia and explained that he would pat 

Appellant down for both of their safety, to which Appellant 

complied without objection. As the sergeant conducted the [pat 

down] and made his way to Appellant’s right pockets, Appellant 

spontaneously admitted he had his ‘weed pipe’ and the sergeant 

also found and removed from Appellant’s person another item –

a glass pipe with both ends charred and copper filtering on one 

end.[1] After finding said drug paraphernalia, the sergeant 

handcuffed Appellant and placed him under arrest.

Trial Court Opinion, 1/3/2018, at 1-3 (emphasis in original; record citations 

omitted).

Appellant was arrested and charged with possession of drug 

paraphernalia. Prior to trial, Appellant filed a motion to suppress evidence, 

contending that the frisk of Appellant’s person was unconstitutional. 

Sergeant Rathgeb and Appellant testified at the suppression hearing. At the 

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1 Our review of the record reveals that the trial court’s factual findings are 

supported by the testimony at the suppression hearing, except its finding 

that Sergeant Rathgeb recovered two items on Appellant’s person. At the 

suppression hearing, Sergeant Rathgeb testified that when he put his hand 

on Appellant’s right pockets, Appellant “indicated that was his weed pipe.” 

N.T., 2/14/2017, at 14. Appellant was wearing shorts underneath his pants; 

the testimony is not clear whether the weed pipe was located in Appellant’s 

inner or outer layer. See id. at 14-15; 24-26. During his description of his 

pat down of Appellant, Sergeant Rathgeb stated that he “removed ... a glass 

pipe with charred ends on both sides ...and copper filtering on the one end.” 

Id. at 14. In response to the district attorney’s next question, Sergeant 

Rathgeb reiterated his response, stating, “Like I said, once I had my hand on 

that particular item, [Appellant] offered it and said that was his weed pipe. 

And then I retrieved it.” Id. at 15. Thus, it is apparent that Sergeant 

Rathgeb retrieved only one item. 
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conclusion of the suppression hearing, the trial court denied Appellant’s 

motion to suppress with minimal elaboration as to its reasons.2 On the 

same day as the suppression hearing, February 14, 2017, the trial court 

conducted a stipulated bench trial, and found Appellant guilty of possession 

of drug paraphernalia. On July 19, 2017, the trial court sentenced Appellant 

to one year of probation. This timely-filed appeal followed. Both Appellant 

and the trial court complied with the mandates of Pa.R.A.P. 1925.

Appellant presents one issue for this Court’s consideration: “Did the 

[trial] court erroneously deny Appellant’s motion to suppress physical 

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2 At the conclusion of the suppression hearing, the only explanation offered 

by the trial court was Sergeant Rathgeb’s testimony that drug activity often 

occurs in the area in which he stopped and frisked Appellant. N.T., 

2/14/2017, at 40, 42-43. This is insufficient to comply with Pa.R.Crim.P. 

581(I). A trial court has a duty to explain its factual findings and 

conclusions of law on the record at the conclusion of a suppression hearing. 

Pa.R.Crim.P. 581(I) (“At 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....”). Although in this case the trial 

court’s failure to abide by Rule 581 has not impeded our appellate review 

due to the trial court’s subsequent explanation of its rationale in its Pa.R.A.P. 

1925(a) opinion, both our Supreme Court and this Court have strongly 

disapproved of trial court’s failure to abide by Rule 581’s “unambiguous 

mandate.” See Commonwealth v. Millner, 888 A.2d 680, 688 (Pa. 2005) 

(explaining the purpose of the rule); Commonwealth v. Grundza, 819 

A.2d 66, 68 n.1 (Pa. Super. 2003) (“We note that the filing of a 1925(a) 

opinion is no substitute for the failure to make findings of fact and 

conclusions of law on the record at the conclusion of a suppression hearing 

in accordance with Pa.R.Crim.P. 581(I).”). 
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evidence where the arresting officer conducted a Terry[3]frisk without 

reasonable suspicion to believe that crime was afoot and that Appellant was 

armed and dangerous?” Appellant’s Brief at 4. We consider this issue

mindful of the following.

Our 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, we are bound by these findings and 

may reverse only if the court’s legal conclusions are erroneous. 

Where ... the appeal of the determination of the suppression 

court turns on allegations of legal error, the suppression court’s 

legal conclusions are not binding on an appellate court, whose 

duty it is to determine if the suppression court properly applied 

the law to the facts. Thus, the conclusions of law of the court[] 

below are subject to our plenary review.

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting 

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).

Appellant focuses his challenge on the frisk portion of the encounter. 

In his brief, Appellant argues that even if Sergeant Rathgeb had justification 

for his initial seizure of Appellant, his subsequent frisk of Appellant’s person 

was unconstitutional because Sergeant Rathgeb lacked reasonable suspicion 

that criminal activity was afoot and that Appellant was armed and 

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3 Terry v. Ohio, 392 U.S. 1 (1968).
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dangerous. Appellant’s Brief at 13-14. Appellant contends neither his 

presence in a high-crime area, nor his commission of a traffic violation 

justified the frisk. Id. at 15-19. According to Appellant, he was coherent 

and cooperative, and therefore his behavior could not have served as 

reasonable suspicion. Id. at 19-20. Specifically, Appellant argues that 

Sergeant Rathgeb had no justification to frisk him, because “there was no 

furtive movement, no undue nervousness, no suspicious bulge, no 

intoxication, no suspicious transaction, and no attempt to avoid contact with 

the police.” Id. at 23.

Article I, § 8 of the Pennsylvania Constitution and the Fourth 

Amendment to the United States Constitution both protect people from 

unreasonable searches and seizures. Commonwealth v. Lyles, 97 A.3d 

298 (Pa. 2014). During the course of a valid investigatory stop, if an officer 

observes unusual and suspicious conduct on the part of the individual, which 

leads the officer to believe reasonably that the individual may be armed and 

dangerous, the officer may conduct a pat down of the suspect’s outer 

garments for weapons. Commonwealth v. E.M., 735 A.2d 654, 659 (Pa. 

1999). “In order to establish reasonable suspicion, the police officer must 

articulate specific facts from which he could reasonably infer that the 

individual was armed and dangerous.” Commonwealth v. Wilson, 927 

A.2d 279, 284 (Pa. Super. 2007). 
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At the suppression hearing, Appellant conceded that the 

Commonwealth had “met its burden in terms of initial contact” based upon 

the parking infraction and concern that Appellant was unconscious. N.T., 

2/14/2017, at 32, 35. Having determined quickly that Appellant was not in 

peril, Sergeant Rathgeb proceeded to address Appellant’s traffic violation. 

Appellant acknowledges that Pennsylvania v. Mimms, 434 U.S. 106 

(1977), permits a police officer to order the driver to exit the vehicle during 

a lawful traffic stop, even absent reasonable suspicion that criminal activity 

is afoot. See Appellant’s Brief at 17. However, Appellant argues that the 

authority to conduct the traffic stop and order the driver out of the car does 

not automatically give an officer the authority to conduct a Terry frisk.4 

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4 Appellant also argues, alternatively, that the frisk was illegal because by 

the time he was frisked, the traffic stop should have concluded already. 

Appellant’s Brief at 23. According to Appellant, once he explained why he 

was parked illegally, the officer should have issued him a parking ticket or 

ordered him to move the car to a legal spot. Id. 

 “Once the primary traffic stop has concluded ... the officer’s authority to 

order either driver or occupant from the car is extinguished.” 

Commonwealth v. Reppert, 814 A.2d 1196, 1202 (Pa. Super. 2002) (en 

banc). “Thus, if ... the officer directs or requests the occupants to exit the 

vehicle [after the traffic stop has concluded, the officer’s] show of authority 

may constitute an investigatory detention subject to a renewed showing of 

reasonable suspicion.” Id. “Authority for the seizure thus ends when tasks 

tied to the traffic infraction are - or reasonably should have been -

completed.” Rodriguez v. United States, __ U.S. __, 135 S.Ct. 1609, 

1614 (2015).

 Appellant has waived any challenge to the stop by not including such 

challenge in his concise statement and question presented. See Pa.R.A.P. 

(Footnote Continued Next Page)
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Appellant is correct. “[T]o 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).

In its Rule 1925(a) opinion, the trial court explained that it found 

Sergeant Rathgeb’s testimony to be credible, whereas it rejected Appellant’s 

testimony because he could not recall whether the encounter occurred 

during day or night and he failed to provide an adequate explanation as to 

why he never called or texted the person he purportedly was picking up to 

go grocery shopping at quarter-to-one in the morning. Trial Court Opinion, 

(Footnote Continued) _______________________

1925(b)(4)(vii), 2116(a). Further, Appellant’s legal analysis in his brief 

relates to the issue of whether Sergeant Rathgeb had independent 

reasonable suspicion to justify the frisk, not to whether Sergeant Rathgeb 

had prolonged the traffic stop unlawfully. Appellant’s Brief at 20-23. Thus, 

Appellant has also waived this argument for failure to develop it in his brief. 

See Pa.R.A.P. 2119. 
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1/3/2018, at 8-9. The trial court relied upon the following “totality of the 

circumstances” to conclude that Sergeant Rathgeb had adequate 

“reasonable suspicion of criminal activity” to request that Appellant step out 

of his vehicle and undergo a Terry frisk: (1) Appellant’s illegally parking his 

vehicle at almost 1:00 a.m. at an intersection known to police to be a highcrime area related to drugs, prostitution, and violent crime; (2) the deserted 

streets around Appellant’s vehicle; (3) Appellant’s appearing slumped over 

and unconscious in his vehicle in an area known for overdoses; (4) 

Appellant’s non-credible excuse for being parked illegally; (5) Appellant’s 

appearing nervous and not knowing the full name of the friend he was 

purportedly picking up; (6) Appellant’s never calling or texting the friend 

during the stop and the friend’s failure to appear; (7) Appellant’s failure to 

provide his friend’s exact address; (8) Appellant’s car being registered to 

another person with a Pittsburgh address, when there is an influx of people 

from larger cities coming to Pottstown to get involved with the drug trade; 

and (9) Sergeant Rathgeb’s fear that Appellant was associated with the drug 

trade and possessed a weapon or needles. Id. at 9-10. Based on the 

foregoing, the trial court concluded that the “Commonwealth met its burden 

of proving there was reasonable, individualized suspicion that Appellant was 

pursuing a criminal exercise in the moment that ultimately supported the 

sergeant’s actions, including the search of Appellant’s person revealing drug 

paraphernalia.” Id. at 8.
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However, even if the trial court is correct that Sergeant Rathgeb had 

adequate reasonable suspicion to conclude that Appellant was engaged in 

criminal activity, such reasonable suspicion is not enough to justify frisking 

Appellant. Commonwealth v. Preacher, 827 A.2d 1235, 1239 (Pa. Super. 

2003) (concluding that even if officer was justified in conducting 

investigatory stop based on reasonable suspicion that Preacher was selling 

cocaine, officer still needed reasonable suspicion that Preacher was armed 

and dangerous to conduct pat down). In order to frisk Appellant, Sergeant 

Rathgeb needed “specific and articulable facts indicating” that Appellant may 

have been “armed and dangerous.” Id. Thus, the trial court erred by using 

an incorrect standard to assess Sergeant Rathgeb’s decision to frisk 

Appellant.

Furthermore, even if the trial court used the correct standard, the trial 

court erred in applying that standard. Sergeant Rathgeb’s specific 

articulated reason for frisking Appellant was “for [the sergeant’s] safety and 

[Appellant’s] safety.” N.T., 2/14/2017, at 13. A general statement that a 

frisk was required for officer safety and the safety of the person searched 

does not provide a sufficient basis for conducting a frisk incident to an 

investigatory stop. Preacher, 827 A.2d at 1239. It is imperative that the 

police “point to specific and articulable facts indicating the person they 

intend to frisk may be armed and dangerous; otherwise, the talismanic use 

of the phrase ‘for our own protection,’ ... becomes meaningless.” Id. “While 
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this Court acknowledges the importance of protecting police officers in the 

performance of their duties, the law requires that an officer have some 

reason to believe that a particular suspect is armed and dangerous.” Id.

(emphasis added). 

Upon further questioning, Sergeant Rathgeb specified that he was 

“[a]bsolutely” concerned that Appellant had a weapon because people 

“involved with the drug trade normally will carry some type of weapon for 

protection[.]” N.T., 2/14/2017, at 14. Specifically, Sergeant Rathgeb 

believed Appellant may have been in the area to purchase drugs. Id. at 13

(“So, in myself [sic] opinion and my belief, I felt that criminal activity was 

afoot, possibly [Appellant] was there for the purpose of meeting somebody 

to purchase narcotics.”). Sergeant Rathgeb concluded that Appellant may 

have been present to buy drugs based upon his skepticism of Appellant’s 

excuse for being in a high-crime area late at night, Appellant’s slight 

nervousness during his conversation with Sergeant Rathgeb, and the 

registration of Appellant’s car to someone with a Pittsburgh address. In 

addition to his concern about weapons, when asked if he has encountered 

people carrying needles in the area, Sergeant Rathgeb responded 

affirmatively. Id. 

Sergeant Rathgeb’s concern that Appellant may have been present at 

King and York Streets to purchase drugs, or was somehow otherwise 

generally involved in the drug trade, is insufficient to form reasonable 
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suspicion that Appellant specifically was armed and dangerous. “Even in 

high crime areas, where the possibility that any given individual is armed is 

significant, Terry requires individualized, reasonable suspicion before a frisk 

for weapons can be conducted.” Commonwealth v. Grahame, 7 A.3d 810, 

816 (Pa. 2010) (quoting Maryland v. Buie, 494 U.S. 325, 334 n.2 (1990)). 

Notwithstanding the presence of violence in the illegal drug industry, our 

Supreme Court has refused to justify an intrusion on privacy based solely on 

the seriousness of the criminal activity under investigation, including the sale 

of drugs. Commonwealth v. Rodriguez, 614 A.2d 1378, 1383 (Pa. 1992). 

“[C]ourts cannot abandon the totality-of-the-circumstances test and rely 

exclusively upon the preconceived notion that certain types of criminals 

regularly carry weapons.” Grahame, 7 A.3d at 816 (citing Commonwealth 

v. Zhahir, 751 A.2d 1153, 1162 (Pa. 2000)). 

Further, while Sergeant Rathgeb noted that he has encountered others 

in the area carrying needles, he never articulated a concern that he 

suspected Appellant specifically of carrying a needle, or that Appellant’s 

conduct conveyed a threat of danger to the sergeant. While Appellant acted 

slightly nervous when Sergeant Rathgeb encountered him, there is no 

indication that Sergeant Rathgeb detected unusual behavior or furtive 

movements, observed a suspicious bulge, or had knowledge of any past 

violence from Appellant. See Grahame, 7 A.3d at 817 (examining the 

presence of such factors because generalization that firearms are commonly 
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found in proximity to illegal drugs is insufficient without additional facts 

supporting an objectively reasonable belief that person had been presently 

armed and dangerous). C.f. Zhahir, supra (holding that, where officers 

confronted Zhahir in area known for drug activity at eight p.m. during 

investigation of narcotics trafficking, and in response to police presence 

Zhahir discarded an item, surveilled the street, retrieved the item, and 

turned to face officer with his hand in his jacket pocket, officer’s concern 

that Zhahir may have been retrieving a weapon from his pocket was 

justified). Because the Commonwealth failed to elicit facts that sufficiently 

supported an objectively reasonable belief that Appellant was armed and 

dangerous, the trial court’s decision cannot be sustained. Accordingly, we 

vacate the judgment of sentence and reverse the order denying the motion 

to suppress. 

Judgment of sentence vacated. Order denying motion to suppress 

reversed. Case remanded for further proceedings consistent with this 

memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/4/2019