Appeal from the Judgment of Sentence entered November 28, 2011, the Court of Common Pleas of Delaware County, Criminal Division, at No. CP-23-CR-0003140-2011.
The opinion of the court was delivered by: Strassburger, J.:
BEFORE: SHOGAN, WECHT, and STRASSBURGER*fn1 , JJ.
OPINION BY STRASSBURGER, J.:
Frank Walton (Appellant) appeals from the judgment of sentence entered following his convictions for possession of a controlled substance and possession with intent to deliver a controlled substance (PWID).*fn2
Appellant now challenges the ruling that denied his motion to suppress the evidence. For the reasons that follow, we vacate the judgment of sentence and remand for proceedings consistent with this opinion.
The facts of this case, as summarized by the suppression/trial court, are as follows:
In the early afternoon of Sunday, March 20, 2011, Officer [Sean] Bridges [of the Ridley Township Police Department and Delaware County Drug Task Force] was in full uniform and in his marked patrol vehicle on a side street near MacDade Boulevard. Officer Bridges was watching activity at Tom & Jerry's, a local bar on MacDade Boulevard. ... Officer Bridges testified that he saw a white male and a white female in the parking lot kind of walking around, pacing back and forth. They were on and off their cell phones several times looking around. It looked kind of suspicious to me. Based on my experience I know that is how a lot of people will meet with drug dealers or drug dealers themselves will stand in a parking lot to meet them.
[N.T., 8/17/2011, at 10.] As the officer looked on, [Appellant] pulled up next to the male and female in a white Toyota. It appeared to the officer that "some type of deal was going to go down," [id. at 10-11,] so he immediately activated his lights and drove into the parking lot. The male and female ran away, and the officer exited his vehicle and approached [Appellant].
[Appellant] was "putting his hands down his pants . . . in an attempt to conceal something," [id. at 11,] so the officer asked [Appellant] to step out of the vehicle. As [Appellant] stepped out, the officer observed a tip of a plastic sandwich bag in [Appellant's] waistband. The officer seized the bag and saw a white powdery substance inside that he believed was cocaine.
Officer Bridges placed [Appellant] under arrest and found another bag of white chunky substance on his person. He also retrieved 73 plastic baggies and another baggie containing suboxone, a controlled substance, during an inventory search of [Appellant's] vehicle before it was towed.
Suppression/Trial Court Opinion, 4/27/2012, at 3-4. Thereafter, Appellant was arrested for possession of a controlled substance and PWID. On July 28, 2011, Appellant filed an omnibus pre-trial motion challenging the validity of the traffic stop and subsequent arrest, and seeking suppression of the drugs obtained as a result. A suppression hearing was held on August 17, 2011, following which the trial court found that "law enforcement had reasonable suspicion to stop [Appellant's] vehicle and, subsequently, probable cause to suspect that [Appellant] was in possession of controlled substances based on the totality of the circumstances." Order, 9/8/2011. After a non-jury trial held October 12, 2011, Appellant was found guilty of all charges. On November 28, 2011, Appellant was sentenced to three to six years of incarceration on the conviction for PWID. The remaining charge of possession of a controlled substance merged for sentencing purposes. This timely appeal followed. Both Appellant and the suppression/trial court have complied with Pa.R.A.P. 1925.
On appeal, Appellant presents for our consideration the sole issue of:
[Did] the [suppression/trial court err] in refusing to suppress the fruits of the warrantless vehicle stop [where] the seizing officer had no reasonable suspicion to detain, nor probable cause to arrest Appellant at the instant when the seizing officer ordered Appellant out of his ...