OPINION BY OLSON, J.:
Appellant, Brandon Clemens, appeals from the judgment of sentence entered on November 23, 2011. We affirm.
On appeal, Appellant claims that the lower court erred when it denied his pre-trial motion to suppress. In reviewing such a challenge, this Court "must consider only the evidence of the prosecution and so much of the evidence of the defense as remains uncontradicted when read in the context of the record as a whole." Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1134 (2007) (internal citations omitted). Observed in this light, the relevant facts are as follows.
On the morning of June 27, 2009, City of Philadelphia Police Officer Ivan Centeno was on routine patrol and driving a marked police vehicle down the 800 block of South Cecil Street in Philadelphia. Officer Centeno's partner, Officer Clifford Gilliam, Jr., sat in the vehicle's passenger seat. N.T. Suppression Hearing, 4/27/11, at 6-7. As Officer Centeno testified, the 800 block of South Cecil Street is a residential area that is "very high" in crime and "very violent." Id. In fact, during the suppression hearing, Officer Centeno testified that he had patrolled the area for the prior five years and was personally aware of "numerous shootings [and] stabbings" in the area, as well as "nonstop" open-air narcotics sales. Id.
Id. at 8. Appellant then "grabbed a newspaper and acted like he was reading the newspaper." N.T. Trial, 9/29/11, at 168.
Even though Officer Centeno did not observe money or objects pass between the two individuals, Officer Centeno testified that — based upon his training and years of experience — he was of the conviction that he had just witnessed a narcotics transaction. N.T. Suppression Hearing, 4/27/11, at 9. Therefore, Officer Centeno parked his vehicle and, accompanied by Officer Gilliam, the officers approached 831 South Cecil Street. Officer Centeno testified that Officer Gilliam accompanied him — and did not pursue the suspected purchaser of the narcotics — because Appellant "was more of a hazard for us" and because, if Appellant had "a weapon or something," the officers wanted to avoid a "one-on-one situation." N.T. Trial, 9/30/11, at 4-5.
According to Officer Centeno, when the officers approached the front steps of 831 South Cecil Street, Officer Centeno:
N.T. Trial, 9/29/11, at 165-166.
Officer Centeno testified that, at this point, he "asked [Appellant] to [stand up and] turn around ... [so that he could] pat [Appellant] down for officer safety ... for [Officer Centeno's own] safety and [for Officer Centeno's] partner's safety." N.T. Suppression Hearing, 4/27/11, at 9 and 16. As Officer Centeno testified, he believed that Appellant might be armed and dangerous — and that a frisk for officer safety was thus necessary — because of a variety of circumstances, including the fact that: Officer Centeno knew the area was high in violent crime and Officer Centeno was personally aware of "the violence that happens there, the shootings that happen there, all the drug sales, everything together;" Officer Centeno had just witnessed a hand-to-hand transaction that, as his years of experience and training had taught him, was most likely a felony narcotics transaction;
In response to Officer Centeno's demand, Appellant stood up and turned around for the frisk. N.T. Trial, 9/29/11, at 166-167. As Officer Centeno testified:
N.T. Suppression Hearing, 4/27/11, at 9; N.T. Trial, 9/29/11, at 166-167. Further, Officer Centeno testified that he saw the bag of narcotics fall from Appellant before he even laid a hand on Appellant's person. N.T. Suppression Hearing, 4/27/11, at 9; N.T. Trial, 9/29/11, at 169-170.
Later testing revealed that the heat-sealed packets contained a total of 2.213 grams crack cocaine. N.T. Trial, 9/30/11, at 33. Moreover, following Appellant's arrest, Officer Centeno searched Appellant incident to the arrest. This search revealed that Appellant possessed $328.00 in "balled up" dollar bills. N.T. Trial, 9/29/11, at 172. The bills were in "all different quantities and [Appellant had] different amounts in each [of the four] pocket[s on his khaki shorts]." Id.; N.T. Trial, 9/30/11, at 29.
The Commonwealth charged Appellant with possession of a controlled substance and possession of a controlled substance with the intent to deliver ("PWID").
Following a suppression hearing, the suppression court denied Appellant's motion. First, the suppression court concluded that, based upon Officer Centeno's observations and experience, Officer Centeno had reasonable suspicion to subject Appellant to an investigatory detention, as Officer Centeno had reasonable suspicion to believe that Appellant had just engaged in a felony drug transaction. Id. at 38. Second, the suppression court concluded that the totality of the circumstances supported Officer Centeno's suspicion that Appellant might have possessed a weapon. Id. at 39. Therefore, since the suppression court concluded that both the detention and the "frisk" were justified, the suppression court denied Appellant's motion. Id.
Appellant proceeded to trial, where the jury found him guilty of possession of a controlled substance and PWID. On November
Appellant's Brief at 3.
Our Supreme Court has declared:
Eichinger, 915 A.2d at 1134 (internal citations omitted). "It is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony." Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.Super.2006). Moreover, with respect to our scope of review on suppression issues, our Supreme Court has held: "it is appropriate to consider all of the testimony, not just the testimony presented at the suppression hearing, in determining whether evidence was properly admitted." Commonwealth v. Chacko, 500 Pa. 571, 459 A.2d 311, 318 n. 5 (1983) (emphasis in original); see also Commonwealth v. Charleston, 16 A.3d 505, 516-518 (Pa.Super.2011) (collecting cases and explaining Chacko).
First, Appellant claims that the suppression court erred in concluding that Officer Centeno had reasonable suspicion to subject Appellant to an investigatory detention. This claim fails.
As we have explained, "[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. To safeguard this right, courts require police to articulate the basis for their interaction with citizens in [three] increasingly intrusive situations." Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa.Super.2012). Our Supreme Court has categorized these three situations as follows:
Commonwealth v. Smith, 575 Pa. 203, 836 A.2d 5, 10 (2003).
We agree with Appellant that — when Officer Centeno told Appellant to stand up and turn around so that the officer could pat Appellant down for officer safety — Officer Centeno subjected Appellant to an investigatory detention. See Appellant's Brief at 8-11; see also Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276, 279 (1969) ("Terry makes it clear that if a police officer accosts a person on the street and restrains him of his freedom to walk away, [the officer] has `seized' that person"). As noted above, an investigative detention is valid when it is supported by reasonable suspicion. In the words of the Pennsylvania Supreme Court:
Commonwealth v. Holmes, 609 Pa. 1, 14 A.3d 89, 95 and 96 (2011) (internal citations, quotations, and emphasis omitted).
According to Appellant, when Officer Centeno subjected him to the investigative detention, the officer did not have reasonable suspicion to believe that Appellant had just sold narcotics. Appellant's Brief at 8. With respect to the "hand-to-hand transaction" that Officer Centeno observed between Appellant and the unidentified man, Appellant notes that Officer Centeno did not see any objects being exchanged and did not hear the accompanying conversation. Id. at 10-11. As a result of this lack of evidence, Appellant claims that, in reality, "Officer Centeno saw nothing more than two men greet each other with a handshake or a fistbump[, which is an action that is] completely consistent with innocent behavior." Id. at 11.
Clearly, Appellant's argument is contingent upon this Court viewing the evidence in the light most favorable to him. As was explained above, however, our standard of review requires that we "consider only the evidence of the prosecution and so much of the evidence of the defense as remains uncontradicted when read in the context of the record as a whole." Eichinger, 915 A.2d at 1134. Moreover, "[w]here the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error." Id.
Further, viewing the totality of the circumstances surrounding the hand-to-hand transaction, we agree with the suppression court that "an objectively reasonable police officer would have reasonably suspected criminal activity was afoot." Holmes, 14 A.3d at 96. Indeed, during the suppression hearing, Officer Centeno testified that he was extremely familiar with the 800 block of South Cecil Street and was extremely experienced in narcotics investigations. N.T. Suppression Hearing, 4/27/11, at 5-6 and 7. According to Officer Centeno, his years of experience and training had taught him that the hand-to-hand transaction he witnessed was most likely a narcotics transaction. Id. at 9; see also Holmes, 14 A.3d at 95 ("In assessing the totality of the circumstances, courts must [] afford due weight to the specific, reasonable inferences drawn from the facts in light of the officer's experience"). Officer Centeno also testified that the surrounding area was home to "nonstop" open-air narcotics sales. N.T. Suppression Hearing, 4/27/11, at 6-7; see also Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (holding "the fact that the stop occurred in a `high crime area' [is] among the relevant contextual considerations in a Terry analysis").
Given these "specific and articulable facts," we agree that "an objectively reasonable police officer would have reasonably suspected" that Appellant had sold narcotics to the unidentified man. Holmes, 14 A.3d at 95 and 96. As such, we agree that the investigatory detention was properly supported by reasonable suspicion.
For the second and final aspect of Appellant's claim on appeal, Appellant contends that Officer Centeno was not justified in subjecting him to a frisk, as Officer Centeno did not have sufficient reason to believe that he was armed and dangerous. Thus, Appellant asserts that the frisk was unconstitutional. Appellant's Brief at 14. We conclude, however, that Officer Centeno did not subject Appellant to a frisk in this case. Therefore, Appellant's claim automatically fails.
We observe that — in this case — the issue of when the "frisk" began is a pure question of law. See, e.g., Commonwealth v. Collins, 950 A.2d 1041, 1046 (Pa.Super.2008) (en banc) (determination of whether a police/citizen interaction was a "mere encounter" or an "investigative detention" is a question of law); see also Crawford Cent. Sch. Dist. v. Commonwealth, 585 Pa. 131, 888 A.2d 616, 620 (2005) ("[s]ince the facts are undisputed, we are left with a question of law"). Therefore, with respect to this issue, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Bullock, 590 Pa. 480, 913 A.2d 207, 212 (2006).
As our Supreme Court has explained:
Commonwealth v. Stevenson, 560 Pa. 345, 744 A.2d 1261, 1264-1265 (2000) (internal citations and quotations omitted).
Here, Appellant assumes that a Terry frisk commenced when Officer Centeno ordered him to stand up and turn around in preparation for the frisk. Indeed, for Appellant to contest this particular aspect of the interaction, Appellant must make this assumption, since (as was explained above) the bag of narcotics fell from Appellant's pants — and into Officer Centeno's plain view — before Officer Centeno placed a hand on Appellant's person. N.T. Suppression Hearing, 4/27/11, at 9; N.T. Trial, 9/29/11, at 169-170. Moreover, Officer Centeno testified that, as soon as he saw the bag of narcotics, he intended to (and then did) arrest Appellant. N.T. Trial, 9/29/11, at 166-167. Given these facts, at the time Officer Centeno first touched Appellant, Officer Centeno had both the probable cause and intent to arrest Appellant — and, thus, at the time Officer Centeno first touched Appellant, Officer Centeno was entitled to perform a valid search incident to Appellant's arrest. Commonwealth v. Thompson, 778 A.2d 1215, 1222 (Pa.Super.2001) ("search incident to arrest must be substantially contemporaneous with the
Appellant's assumption — that the frisk commenced at the moment Officer Centeno ordered Appellant to stand up and turn around to prepare for the frisk — is, however, incorrect. Indeed, by its very definition, the term "frisk" requires tactile contact. See BLACK'S LAW DICTIONARY 692 (8th ed.2004) (defining a "frisk" as "[a]
Appellant's proposed interpretation of the term "frisk" would eliminate the requirement of "touch" and would allow a "frisk" to occur as a result of a verbal order. This interpretation is simply at odds with the plain meaning of the term "frisk," as well as with one of the United States Supreme Court's principal reasons for requiring additional safeguards prior to condoning a Terry frisk. Terry, 392 U.S. at 24-25, 88 S.Ct. 1868 ("[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security").
Instead, what occurred here is that Officer Centeno seized Appellant and then ordered Appellant to stand up and turn around so that the
Judgment of sentence affirmed.
Commonwealth v. Revere, 585 Pa. 262, 888 A.2d 694, 699 n. 6 (2005) (internal quotations omitted).