In re J.A. Appeal Of: J.A., J-S07005-15

IN THE INTEREST OF: J.A.

APPEAL OF: J.A.

J-S07005-15

No. 1343 MDA 2014

SUPERIOR COURT OF PENNSYLVANIA

FEBRUARY 25, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered on July 8, 2014

In the Court of Common Pleas of Berks County

Juvenile Division at No(s): 277-J-2014

BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:

Appellant, J.A., a minor, appeals from the dispositional order entered on July 8, 2014, immediately following the juvenile court's adjudicating him delinquent of three counts of possession of a controlled substance, one count of carrying a firearm without a license, and one count of possession of a firearm by a minor. Appellant presents multiple arguments that the court erred when it denied his suppression motion. He also claims that he was adjudicated delinquent for carrying a firearm without a license without sufficient evidence. After careful review, we affirm.

The juvenile court summarized the facts that led to Appellant's adjudication of delinquency as follows:

1. On May 9, 2014, Officer Voorhies of the Reading Police Department, while in uniform, was on routine patrol as a passenger in an unmarked police vehicle. Officer Voorhies had eight (8) years' experience as a law enforcement officer. He served five (5) years with the Berks County Sheriff's Office, where he was a member of the U.S. Marshall's Drug Task Force, and subsequently served with the Reading Police Department for three (3) years.

2. At approximately 12:50 a.m., Officer Voorhies and his partner stopped a tan Nissan motor vehicle in the 800 block of Franklin Street, Reading, because the Nissan had malfunctioning rear brake lights. This neighborhood was known for having a high volume of drug transactions.

3. After a third officer arrived on the scene, the police approached the vehicle and observed three (3) persons inside: the driver, [Appellant], who sat in the front passenger seat, and a passenger sitting behind the driver.

4. Officer Voorhies approached [Appellant], shined his flashlight into the car and observed that [Appellant] was wearing a backpack while seat belted and was taking deep breaths, shaking his left leg, and that the artery on the right side of [Appellant]'s neck was visibly pulsing.

5. Based on these observations, Officer Voorhies concluded that [Appellant] was nervous.

6. Officer Voorhies also saw [Appellant] rub the front right pocket of his cargo pants multiple times.

7. Officer Voorhies characterized [Appellant]'s actions as indicating a "hot pocket," one which contains an illegal or dangerous item. The suspect rubs the pocket to check if the item is there.

8. Officer Voorhies observed that [Appellant] became more nervous after the back seat passenger was arrested pursuant to outstanding warrants.

9. After making these observations, Officer Voorhies asked [Appellant] if he had anything on him and [Appellant] said "no."

10. Officer Voorhies asked if [Appellant] minded if the Officer checked him and again [Appellant] responded "no."

11. Finally, Officer Voorhies asked [Appellant] if he could pat him down and [Appellant] said "fine."

12. [Appellant] then stepped out of the car still wearing the backpack and Officer Voorhies patted him down. The Officer felt a bulge in the front right pocket of [Appellant]'s cargo pants. Based on his experience, Officer Voorhies immediately recognized the bulge as packaged narcotics. Officer Voorhies

used his fingertips in conducting the pat down and did not manipulate the bulge he felt in [Appellant]'s pocket.

13. The Officer removed the package from [Appellant]'s pocket and observed that it contained two (2) bundles of heroin.

14. Officer Voorhies seized the heroin and arrested [Appellant], placed him in handcuffs and gave him his Miranda warnings.

15. The Officer then conducted a further search of [Appellant] and discovered two (2) bags of marijuana and one (1) [Ziploc] baggie containing crack cocaine and seized these items.

16. Officer Voorhies uncuffed [Appellant], removed the backpack and handcuffed him again.

17. Officer Voorhies questioned [Appellant] about the backpack but [Appellant] did not answer.

18. Officer Voorhies unzipped the backpack and found an unloaded revolver and a tee shirt inside.

19. The Officer seized the firearm.

20. Officer Voorhies did not know [Appellant] was under 18 at the time he arrested him.

Juvenile Court Suppression "Decision and Order," 7/1/14, at 1-4 ¶¶ 1-20 (hereinafter, "JCO").

On May 20, 2014, Appellant filed an omnibus pre-adjudication motion to suppress the seized contraband and his statement(s) to police. The juvenile court held a suppression hearing on June 10, 2014. On July 1, 2014, the court denied the motion. At Appellant's adjudication of delinquency hearing on July 8, 2014, the notes of testimony from the June 10, 2014 hearing were incorporated by stipulation, and no further testimony was heard by the juvenile court. Based upon that record, the court adjudicated Appellant delinquent of three counts of possession of acontrolled substance, 35 Pa.C.S. § 780-113(a)(16); one count of carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(1); and one count of possession of a firearm by a minor, 18 Pa.C.S. § 6110.1. The court then immediately entered a dispositional order imposing court costs and fines and committing Appellant to Summit Academy for an indeterminate duration.

Appellant filed a timely notice of appeal from the dispositional order. He also filed a timely Pa.R.A.P. 1925(b) statement at the court's direction. However, the juvenile court has not filed a Rule 1925(a) opinion in this matter.¹

Appellant now presents the following questions for our review:

1. Whether the [juvenile] court erred in denying Appellant's motion to suppress evidence:

a. Where the police officers lacked reasonable suspicion to subject Appellant to an investigative detention?

b. Where the police officer lacked reasonable suspicion to subject Appellant to a Terry² search?

c. Where [] Appellant did not give voluntary consent to search and there were no other circumstances to justify a warrantless search? d. Where the police officer did not satisfy the elements of the plain feel doctrine to justify seizing heroin from Appellant's pocket?

2. Whether the evidence was insufficient to support the guilty verdict of Firearms Not to be Carried Without a License, where the Commonwealth failed to establish beyond a reasonable doubt that the Appellant did not possess a license for the firearm[?]

Appellant's Brief at 4.

We review Appellant's suppression-related claims under the following standard of review:

An appellate court may consider only the Commonwealth's evidence 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 record supports the factual findings of the suppression court, the appellate court is bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. It is also well settled that the appellate court is not bound by the suppression court's conclusions of law.

In re V.C., 66 A.3d 341, 350-51 (Pa. Super. 2013) (quoting Commonwealth v. Knox, 50 A.3d at 746 (Pa. Super. 2012)).

The first suppression-related claim before us is whether the police had reasonable suspicion to temporarily detain Appellant. Appellant does not dispute the legality of the traffic stop that precipitated the subsequent events that involved him. Appellant's Brief at 11. However, Appellant claims that he was subject to an investigative detention, i.e., a Terry stop, after the completion of the traffic stop.

A warrantless seizure is presumptively unreasonable under the Fourth Amendment, subject to a few specifically established, well-delineated exceptions. Horton v. California, 496 U.S. 128, 133 n. 4, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19L.Ed.2d 576 (1967)). One exception allows police to briefly detain individuals for an investigation, maintain the status quo, and if appropriate, conduct a frisk for weapons when there is reasonable suspicion that criminal activity is afoot. See Terry, supra.

Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008).

It is well settled that to justify their decision to stop and briefly detain appellant, the police need not establish their suspicions to a level of certainty, a preponderance, or even a fair probability. The suspect's expectation of privacy is not sufficiently infringed by the minimal intrusion attendant to an investigatory stop as to require any more than a reasonable suspicion that criminal activity was afoot. Though not tantamount to a "hunch," the requisite quantum of suspicion necessary to conduct an investigatory stop is a level "obviously less demanding than for probable cause."

Commonwealth v. Epps, 415 Pa. Super. 231, 233, 608 A.2d 1095, 1096 (1992) (citations omitted).

Determining whether a reasonable suspicion exists requires an assessment of the totality of the circumstances. These circumstances are viewed through the eyes of a trained officer, not an ordinary citizen. Interest of B.C., 453 Pa.Super. 294, 301, 683 A.2d 919, 923 (1996). As this court noted in Epps, supra, some of the factors to be considered include "various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions—inferences and deductions that might well elude an untrained person." Epps[,] at 234, 608 A.2d at 1096 (emphasis omitted) (quoting U.S. v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981)).

Commonwealth v. Fink, 700 A.2d 447, 449 (Pa. Super. 1997)

In this case, the juvenile court concluded that Appellant was subject to an investigative detention supported by reasonable suspicion. The court reasoned as follows:

The juvenile was a

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