Com v. Thomas, M.

J-S27029-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : MARKIDA THOMAS : No. 1192 EDA 2016

Appeal from the Order March 16, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012195-2014

BEFORE: GANTMAN, P.J., OTT, J. and PLATT, J.* MEMORANDUM BY OTT, J.: FILED JULY 11, 2017

The Commonwealth appeals from the order entered March 16, 2016, in the Philadelphia County Court of Common Pleas, granting appellee Markida Thomas’s motion to suppress a firearm recovered during an illegal search.1 On appeal, the Commonwealth contends the trial court erred in concluding the search was illegal because the officer had reasonable suspicion to suspect Thomas’s purse might contain an illegal firearm when, minutes earlier, an off-duty officer observed the weapon in Thomas’s ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 Pursuant to Pennsylvania Rule of Appellate Procedure 311(d), the Commonwealth properly certified in its notice of appeal that the order “terminates or substantially handicaps the prosecution.” Notice of Appeal, 4/14/2016. See Pa.R.A.P. 311(d).

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companion’s waistband, and a subsequent pat-down of the companion revealed no weapon. Based on the following we affirm.

The facts underlying Thomas’s arrest are aptly summarized by the trial court as follows:

On October 10, 2014, Police Officer Rainford Thomas #3268 was in his unmarked personal vehicle on the 1200 block of North 52nd Street in Philadelphia. Officer Thomas was off-duty at the time, stopping to pick up food from a neighborhood eatery. While parking, Officer Thomas got into a verbal dispute with another individual attempting to park his car. The unknown driver exited his vehicle and began to yell in Officer Thomas’s direction while gesturing with his hands. During this encounter, Officer Thomas observed a black semiautomatic weapon in the man’s waistband. The unknown male did not, however, indicate toward the weapon in any way. He did not make any verbal threats and no physical altercation ensued. After the brief interaction, the man got back into his vehicle, drove northbound, and made a U-turn. At that point, Officer Thomas went into the store and called the police. Subsequent to calling the police, Officer Thomas observed that male exit the vehicle along with another female, later identified as [] Thomas. It wasn’t until that moment that Officer Thomas realized there was another individual in the car with the male. The car had tinted windows, which obscured Officer Thomas’s ability to see inside the vehicle. He had not provided a description of [] Thomas to the back-up officers. Upon exiting the car, Officer Thomas observed the two individuals walk into Tasties Restaurant. Officers arrived less than 5 minutes later.

Officer Michelle Barker #2872 testified that she received a flash description for a black male in a gold Crown Vic who was armed with a silver and black handgun. At the direction of Officer Thomas, Officer Barker entered Tasties Restaurant and searched the male. Officer Thomas then explained that there was a female with the male suspect, and described her as having braided hair or possibly dreadlocks. Officer Barker initially approached the wrong female but was then directed to approach [] Thomas. Officer Barker asked [] Thomas to step outside of the restaurant and explained that “she was said to have been with the male with the gun.” [] Thomas gripped her purse and

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Officer Barker told her she needed to take it from [Thomas]. The Officer took her purse an escorted [] Thomas outside. The bag was then placed in the back seat of the patrol car. Officer Barker frisked [] Thomas’s person and recovered nothing. She then explained to [] Thomas that they would need to search her purse. Officer Barker went through the purse and recovered a firearm.

Trial Court Opinion, 10/4/2016, at 1-2 (record citations omitted).

Thomas was subsequently arrested and charged with firearms not to be carried without a license, and carrying firearms on a public street in Philadelphia.2 On March 10, 2015, Thomas filed a motion to suppress the firearm. The trial court conducted a suppression hearing on March 16, 2016, at the conclusion of which it entered an order granting Thomas’s motion to suppress. This timely Commonwealth appeal follows.3

The Commonwealth’s sole issue on appeal challenges the trial court’s suppression of the firearm recovered from Thomas’s purse. Specifically, the Commonwealth contends Officer Barker had reasonable suspicion that Thomas might be armed in order to justify an investigatory detention, and conduct a “momentary inspection” of Thomas’s purse. Commonwealth’s Brief at 12. The Commonwealth emphasizes that the officer spoke directly to an “off-duty colleague who had personally observed Andre Bivens

[Thomas’s companion] bearing a semi-automatic weapon on 52nd Street just ____________________________________________

2 See 18 Pa.C.S. §§ 6106 and 6108, respectively. 3 The Commonwealth filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) the same day as its notice of appeal.

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before she arrived on the scene.” Id. at 10-11. When a frisk of Bivens revealed no weapon, the Commonwealth insists “[a]n obvious inference was that Bivens had passed it to [Thomas], who was with him immediately before and after the armed confrontation with the off-duty officer, and who had a bag in which the weapon could be conveniently deposited.” Id. at 11. The Commonwealth further maintains the “likelihood that the gun was in the bag appeared greater still” when a patdown of Thomas revealed no weapon. Id. It argues: “The key points were that Bivens had been seen with the gun, that there was probable cause to arrest him, and that, as the weapon was not on his or [Thomas’s] person, it was likely in [Thomas’s] handbag.” Id. at 14. Additionally, the Commonwealth contends the case law the trial court relied upon is distinguishable. See id. at 15-16.

Our review of the Commonwealth’s appeal from a pretrial order suppressing evidence is well-established:

When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant’s witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court’s findings of fact bind an appellate court if the record supports those findings. The suppression court’s conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.

Commonwealth v. Vetter, 149 A.3d 71, 75 (Pa. Super. 2016) (quotation omitted).

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It is well-settled that “[t]he Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect citizens from unreasonable searches and seizures[,]” so that, generally, the police must secure a warrant supported by probable cause before conducting a search. Commonwealth v. Shiflet, 670 A.2d 128, 129 (Pa. 1995) (footnote omitted). However,

[i]n Terry v. Ohio, [392 U.S. 1 (1968)], the United States Supreme Court created an exception to the Fourth Amendment requirement that police have probable cause before conducting a search of a citizen. The Terry exception permits a police officer to briefly detain a citizen for investigatory purposes if the officer “observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot.”

In order for a stop and frisk to be reasonable, the police conduct must meet two separate and distinct standards. Specifically, the police officer must have a “reasonable, articulable suspicion” that criminal activity may be afoot and that the suspect may be armed and dangerous.

In re N.L., 739 A.2d 564, 566–567 (Pa. Super. 1999) (internal citations omitted), appeal denied, 753 A.2d 819 (Pa. 2000). Moreover,

Pennsylvania has also embraced a rule which permits a police officer, during an arrest, to (1) briefly detain and direct the movement of an “arrestee’s companion” regardless of whether a reasonable suspicion exists that the companion is involved in criminal activity; and (2) conduct a pat-down search of the companion if the officer has a reasonable and articulable suspicion that the arrestee’s companion is armed and dangerous.

Commonwealth v. Mathis, 125 A.3d 780, 789 (Pa. Super. 2015) (citation omitted and emphasis supplied), appeal granted, 134 A.3d 51 (Pa. 2016).

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Upon our review of the record, the parties’ briefs, and the relevant case law, we conclude the trial court thoroughly addressed and properly disposed of the Commonwealth’s issue on appeal. See Trial Court Opinion, 10/4/2016, 4-11 at (finding (1) an officer is permitted to frisk the companion of an arrestee when the officer has “independent reasonable belief that the companion was armed and dangerous as determined by the totality of the circumstances[;]”4 (2) here, officers had no reason to believe Thomas was armed and dangerous, or engaged in criminal activity; (3) officers did not observe Thomas exhibit “any suspicious behavior or furtive movements[;]”5 (4) Thomas’s “mere proximity to an individual suspected of carrying an unlicensed firearm was insufficient to justify a protective search[;]”6 (5) the search was not incident to arrest as neither Thomas nor Bivens was under arrest at the time; and (6) even if the officers were justified in conducting a Terry frisk of Thomas, “the subsequent search of her bag went far beyond what is permissible during a Terry search.”).7

Accordingly, we rest on the court’s well-reasoned basis. ____________________________________________

4 Id. at 4. 5 Id. at 7. 6 Id. 7 Trial Court Opinion, 10/4/2016, at 9. We emphasize Officer Barker offered no testimony justifying the search of Thomas’s purse. See N.T., 3/16/2016, at 22-27. Indeed, the officer testified that when she told Thomas they needed to step outside of the restaurant, Thomas simply “went to grab for (Footnote Continued Next Page)

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Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/11/2017

_______________________ (Footnote Continued)

her purse.” Id. at 24. However, Officer Barker “grabbed it due to the fact that it was a person with a gun” and placed it on the backseat of her patrol car. Id. at 24, 26. After the pat-down of Thomas revealed no weapon, the officer told her, “We have to check your pocketbook.” Id. at 24. Officer Barker did not state Thomas made any furtive movements or attempted to secrete the purse. Compare Mathis, supra, 125 A.3d at 791 (parole agent’s search of defendant’s jacket was proper; defendant was at parolee’s home during routine check, appeared nervous, and picked up his jacket gently and held it “against his side like a football” as he moved into another room, when agent noticed a bulge in the jacket).

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0023_Opinion Circulated 06/19/2017 10:51 AM