Submitted July 21, 2014
Appeal from the Order entered November 15, 2013, of the Court of Common Pleas, Philadelphia County, Criminal Division, No(s): CP-51-CR-0000231-2013. Before MEANS, J.
Hugh J. Burns, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
David Belmont, Philadelphia, for appellee.
BEFORE: OLSON, OTT, and STABILE, JJ.
The Commonwealth appeals from an order granting a motion to suppress a handgun. A police officer discovered the handgun during a Terry frisk he conducted of Appellee, Nathaniel Davis, in the middle of the night on a West Philadelphia street. Because the suppression court erroneously concluded that the officer lacked valid grounds to detain and frisk Appellee, we reverse and remand.
At about 2:00 a.m. on December 22, 2012, Officer Sean Devlin and his partner, Officer Steven Carter, were on routine patrol near 52nd and Arch Streets in Philadelphia. Officer Devlin knew that the neighborhood was a high-crime area based on the " 100, if not more" arrests he had made for " every type" of crime, including DUIs, drug arrests, firearms violations, and physical assaults. See N.T., 11/15/13, at 6. Officer Devlin saw two men standing over a third, who was lying unconscious in the street. He later found out that one of the two men was Appellee. Unsure of what was happening, Officer Devlin pulled over his patrol car, turned on the emergency lights, and got out to investigate.
As the officers approached the trio, Officer Devlin noticed that one of the two men was possibly rummaging through the unconscious man's pockets. He tried to speak to the unconscious individual, who was unable to respond. Officer Devlin thought that the unconscious individual may have been beaten by the other two men, though he saw no visible injuries. See id. at 9. He also noticed that an object was weighing down the right breast pocket of Appellee's jacket. Officer Devlin approached appellee and began to pat him down. In response, Appellee attempted to swat away Officer Devlin's hand, and flailed his arms. Officer Devlin immediately recognized the object in the jacket pocket as a firearm, and yelled, " gun!" Officers Devlin and Carter restrained Appellee, and secured the gun, which was a Rossi .357 Magnum. Appellee escaped, but only briefly. After a short foot chase, the officers recaptured Appellee and placed him under arrest. The Commonwealth later charged Appellee with two violations of the Uniform Firearms Act and resisting arrest.
Appellee moved to suppress the firearm as the fruits of an illegal search. At the hearing on the motion, only Officer Devlin testified. The suppression court stated that Appellee " could have been trying to rob the guy, [but] we didn't see him stab him, kick him, robbing, shooting." Id. at 21. The suppression court granted the motion, concluding Officer Devlin lacked probable cause sufficient to " get a warrant from a magistrate or judge." Id. at 18-19. This appeal followed.
In its Pa.R.A.P. 1925(a) opinion, the suppression court stated, for the first time, that Officer Devlin lacked reasonable suspicion to perform a Terry frisk. Trial Court Rule 1925(a) Opinion, 3/4/14, at 9-10. The suppression court concluded that the Commonwealth failed to present specific, articulable facts to support an investigative detention. It noted that Officer Devlin was unsure whether Appellee had harmed the unconscious man and was rifling through his pockets, or was trying to render aid. The suppression court similarly found that the bulge in Appellee's jacket pocket could not support reasonable suspicion because " a bulge without other evidence of criminal behavior does not give rise to reasonable suspicion." Id. at 10 ...