J-S27030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KENNETH FIELDS

Appellant No. 1926 EDA 2014

Appeal from the Judgment of Sentence entered June 25, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0011614-2012

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,*JJ. 

MEMORANDUM BY STABILE, J.: FILED JULY 28, 2015

Appellant Kenneth Fields appeals from the judgment of sentence 

entered in the Court of Common Pleas of Philadelphia County (trial court), 

after Appellant was convicted of possession with intent to deliver a 

controlled substance (PWID), intentional possession of a controlled 

substance, and evidence tampering.1 Upon review, we vacate and remand.

The facts underlying this case are undisputed. As summarized by the 

trial court:

On the evening of August 28, 2012, a gunman shot a 

victim near the intersection of 52nd Street and Girard Avenue in 

a high-crime area of Southwest Philadelphia. Fortunately, a 

surveillance camera captured video of the gunman as he 

committed the shooting. From this video, authorities extracted 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30), (16), and 18 Pa.C.S.A. § 4910(1).
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several low-resolution photographs of the gunman, disseminated 

those photographs to certain police officers, and instructed those 

officers to search and patrol the intersection and its general 

vicinity.

Uniformed Philadelphia Police Officer Darnell Jessie and his 

partner searched and patrolled the area on August 31, 2012 at 

approximately 12:40 a.m. and observed as [Appellant] walked 

through a dark field near the intersection where the shooting 

occurred. Believing that [Appellant] resembled the gunman in 

the photograph, Officer Jessie and his partner approached 

[Appellant] and requested his identification.

After [Appellant] produced his identification, Officer Jessie 

and his partner returned to their vehicle to determine whether 

authorities had issued any arrest warrant for [Appellant]. While 

he stood at the vehicle, Officer Jessie observed that [Appellant] 

“was trying to reach his hands back into his pocket.” This 

sudden movement alarmed Officer Jessie because [Appellant]

already retrieved his identification from his pocket. Fearing that 

[Appellant] may retrieve a firearm, Officer Jessie approached 

[Appellant] and initiated a brief “safety pat frisk” of [Appellant’s] 

outer garments.

Upon commencing the frisk, Officer Jessie felt objects in 

the pocket of [Appellant’s] outer garment and immediately 

recognized that the objects were consistent with the feel and 

texture of packaged crack cocaine. Officer Jessie testified that 

his familiarity with this type of packaging was based upon his 

prior participation in numerous arrests of persons in possession 

of similarly packaged crack cocaine. However, Officer Jessie did 

not have the opportunity to conduct a thorough investigation: 

immediately after Officer Jessie felt the packaged crack cocaine, 

[Appellant] fled on foot.

During the ensuing pursuit, Officer Jessie never lost sight 

of [Appellant]. He observed as [Appellant] crossed 52nd Street 

and Girard Avenue, stopped at a sewer grate, reached into his 

pocket, retrieved “some items” from the pocket, and threw those 

items into the sewer. Immediately thereafter, [Appellant] raised 

his hands and lay on the ground. [Appellant] volunteered that 

he fled because he was on probation and had “weed” in his 

possession. Officer Jessie then arrested [Appellant].

After placing [Appellant] in handcuffs, Officer Jessie 

returned to the sewer where he had observed [Appellant] 

discarding his items. When he peered into the sewer, Officer 

Jessie saw a clear plastic bag that contained several packets of 

crack cocaine. Officer Jessie retrieved the plastic bag and its 

contents, and he placed the packaged crack cocaine on a 

property receipt.
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Trial Court Opinion, 10/2/14, at 2-3. Thereafter, Appellant was charged with 

PWID, intentional possession of a controlled substance, and evidence 

tampering in connection with his possession of crack cocaine. Appellant filed 

a motion to suppress the seized crack cocaine. Following a hearing, the trial 

court denied Appellant’s suppression motion on March 21, 2014.

On April 25, 2014, the trial court found Appellant guilty of the charged 

offenses and on June 25, 2014, the trial court sentenced Appellant to 111⁄2 to 

23 months’ imprisonment, followed by five years of reporting probation. 

Appellant timely appealed to this Court. Upon the trial court’s direction, 

Appellant filed a Pa.R.A.P. 1925(b) statement of errors complained of on 

appeal, arguing only that the trial court erred in denying his motion to 

suppress. In response, the trial court issued a Pa.R.A.P. 1925(a) opinion, 

concluding it did not err in denying Appellant’s suppression motion.

On appeal, Appellant raises five issues for our review:

I. Whether Appellant’s interactions with police rose from a mere 

encounter to an investigatory detention when [p]olice retained 

Appellant’s identification for the purpose of a warrant search?

II. Whether there was a reasonable suspicion to stop [A]ppellant 

based on alleged resemblance to a suspected shooter?

III. Whether Appellant’s furtive movements alone supported a 

finding of reasonable suspicion to frisk for weapons?

IV. Whether the search of Appellant went beyond the bounds of 

a frisk for weapons?

V. Whether any contraband recovered by police[] was the 

product of forced abandonment, and was the fruit of a seizure, 

not supported by probable cause, and should be suppressed?

Appellant’s Brief at 3.
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In reviewing appeals from an order denying suppression, our standard 

of review is limited to determining 

whether [the trial court’s] factual findings are supported by the 

record and whether [its] legal conclusions drawn from those 

facts are correct. When reviewing the rulings of a [trial] court, 

the appellate court considers 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. When the record supports the 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. Griffin, 2015 PA Super 117, __ A.3d __, 2015 WL 

2193891, at *2 (filed May 12, 2015). Our scope of review is limited to the 

evidence presented at the suppression hearing. In the interest of L.J., 79 

A.3d 1073, 1088-89 (Pa. 2013). 

Appellant first argues the trial court erred in concluding that his 

interaction with Officer Jessie escalated from mere encounter to 

investigatory detention when Officer Jessie took Appellant’s identification to 

the police cruiser for purposes of checking for outstanding warrants. We 

agree. 

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

Amendment to the United States Constitution protect the people from 

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

298, 302 (Pa. 2014) (citation omitted). The Lyles Court explained:

Jurisprudence arising under both charters has led to the 

development of three categories of interactions between citizens 

and police. The first, a “mere encounter,” does not require any 

level of suspicion or carry any official compulsion to stop and 

respond. The second, an “investigatory detention,” permits the 

temporary detention of an individual if supported by reasonable 

suspicion. The third is an arrest or custodial detention, which 

must be supported by probable cause.
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In evaluating the level of interaction, courts conduct an 

objective examination of the totality of the surrounding 

circumstances. . . . The totality-of-the-circumstances test is 

ultimately centered on whether the suspect has in some way 

been restrained by physical force or show of coercive authority. 

Under this test, no single factor controls the ultimate conclusion 

as to whether a seizure occurred—to guide the inquiry, the 

United States Supreme Court and [our Supreme] Court have 

employed an objective test entailing a determination of whether 

a reasonable person would have felt free to leave or otherwise 

terminate the encounter. What constitutes a restraint on liberty 

prompting a person to conclude that he is not free to leave will 

vary, not only with the particular police conduct at issue, but 

also with the setting in which the conduct occurs.

[Our Supreme] Court and the United States Supreme 

Court have repeatedly held a seizure does not occur where 

officers merely approach a person in public and question the 

individual or request to see identification. Officers may request 

identification or question an individual so long as the officers do 

not convey a message that compliance with their requests is 

required. Although police may request a person’s identification, 

such individual still maintains the right to ignore the police and 

go about his business.

Id. at 302-03 (internal citations and quotation marks omitted). The Court 

further explained that “a request for identification does not in and of itself

elevate what would otherwise be a mere encounter into an investigative 

detention.” Id. at 304 (emphasis in original). Despite this general principle, 

however, “an encounter involving a request could rise to a detention when 

coupled with circumstances of restraint of liberty, physical force, show of 

authority, or some level of coercion beyond the officer’s mere employment, 

conveying a demand for compliance or that there will be tangible 

consequences from a refusal.” Id. A mere encounter escalates to 

investigatory detention when a police officer takes and maintains possession 

of an individual’s identification card to check whether the individual has any 

outstanding warrants. Commonwealth v. Hudson, 995 A.2d 1253, 1258-
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59 (Pa. Super. 2010); see also Lyles, 97 A.3d at 306 (noting that the 

police officer’s interaction with appellant did not rise to investigatory 

detention where “[t]he officer did not question appellant further while he 

was holding the identification, and he did not use appellant’s 

information to run a background check”) (emphasis added). 

In Hudson, a police officer observed appellant outside of a corner 

grocery store with an adult male. The officer drove past the store several 

times over the course of an hour and saw appellant go inside the store 

whenever appellant noticed the police cruiser. On his third drive-by, the 

officer approached appellant as he was walking down a street with another 

man. Following a brief conversion, the officer asked the two men whether 

they had identification. They did. Appellant and his male companion 

provided their Pennsylvania identification cards. Upon receipt, the officer 

took their identification cards to the police cruiser to run a warrant and 

scofflaw check. Ultimately, it turned out that appellant had a scofflaw 

warrant for a summary harassment charge. The officer arrested appellant 

and, incident to the arrest, searched appellant’s person and discovered 

drugs and cash.

Based on these facts, the Hudson Court concluded the officer 

“effectuated an investigative detention at the time that [the officer] took and 

maintained possession of [appellant’s] identification.” 995 A.2d at 1259. 

The Hudson Court also concluded that the officer did not have reasonable 

suspicion to detain appellant for investigation because the officer at best 
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“observed [appellant] meeting with three men and walking into and out of a 

grocery store, all of which are lawful activities.” Id. Accordingly, the 

Hudson Court held that the officer’s investigative detention of appellant was 

constitutionally infirm and, as a result, overruled the trial court’s denial of 

appellant’s motion to suppress the seized evidence. In so doing, this Court, 

inter alia, vacated appellant’s judgment of sentence.

In light of Hudson, we are constrained to agree with Appellant that 

his interaction with the police escalated to an investigative detention when 

Officer Jessie took Appellant’s identification to the police cruiser to search for 

outstanding warrants. At the suppression hearing, Officer Jessie testified, “I 

then took that [identification] from [Appellant], walked back to the patrol 

vehicle to give my partner [the identification] to see if there are no 

outstanding warrants.” N.T. Suppression, 3/21/14, at 11. Accordingly, the 

trial court erred in concluding that Appellant’s interaction with the police 

amounted to a mere encounter. 

Our inquiry, however, does not terminate here. Because the police 

detained Appellant for investigatory purposes, we must determine whether 

the police had reasonable suspicion for so doing. It is settled that 

reasonable suspicion necessary for investigative detentions 

is a less demanding standard than probable cause not only in the 

sense that reasonable suspicion can be established with 

information that is different in quantity or content than that 

required to establish probable cause, but also in the sense that 

reasonable suspicion can arise from information that is less 

reliable than that required to show probable cause.
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Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014) (citations 

omitted). “In order to justify an investigative detention, the police must 

have reasonable suspicion that criminal activity is afoot. Reasonable 

suspicion must be based on specific and articulable facts, and it must be 

assessed based upon the totality of the circumstances viewed through the 

eyes of a trained police officer.” Commonwealth v. Williams, 980 A.2d 

667, 672 (Pa. Super. 2009) (citation omitted), appeal denied, 990 A.2d 

730 (Pa. 2010). Thus, “[t]he determination of whether an officer had 

reasonable suspicion that criminality was afoot so as to justify an 

investigatory detention is an objective one, which must be considered in 

light of the totality of the circumstances.” Commonwealth v. Holmes, 14 

A.3d 89, 96 (Pa. 2011) (emphasis added). In assessing the totality of the 

circumstances, a court must give weight to the inferences that a police 

officer may draw through training and experience. Id. at 95.

In the case sub judice, the facts from the suppression hearing indicate 

that the police were searching for a gunman who shot someone near the 

intersection of 52nd Street and Girard Avenue, a high-crime neighborhood, in 

Southwest Philadelphia on August 28, 2012. Officer Jessie and his partner 

were provided a low-resolution picture of the gunman taken from a 

surveillance video. N.T. Suppression, 3/21/14, at 8-9. Officer Jessie 

testified that, on August 31, 2012, at 12:40 a.m., three days later, in the 

dark of the night, he spotted Appellant walking through an unlit field, one 

block from the site of the shooting. Id. at 8-9. Officer Jessie further 
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testified that, believing Appellant resembled the gunman, he approached 

Appellant to investigate. Id. at 10. On cross-examination, however, Officer 

Jessie acknowledged that, at the time of arrest, Appellant had “serious malepattern balding” and “a very short mustache” and the gunman in the lowresolution picture had a “full set of hair” and “a large beard.” Id. at 16-18. 

Thus, given the totality of the circumstances here, we cannot conclude 

Officer Jessie objectively had reasonable suspicion to detain Appellant for 

purposes of investigating the shooting. Officer Jessie’s belief that Appellant 

resembled the person in the low-resolution photo was not reasonable. 

Accordingly, we conclude the trial court erred in denying Appellant’s motion 

to suppress the crack cocaine. We vacate Appellant’s judgment of sentence 

and remand the matter to the trial court for further proceedings, including a 

new trial or discharge of Appellant.2

Judgment of sentence vacated. Case remanded for further 

proceedings. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2015

____________________________________________

2 Based on the outcome of this case, we need not address Appellant’s 

remaining arguments.