Com. v. Ings, J.

• Court: Superior Court of Pennsylvania
• Decided: March 9, 2017
• Docket: Com. v. Ings, J. No. 2253 EDA 2015
• Status: Unpublished

Opinion

J-A32019-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

JOEL G. INGS

No. 2253 EDA 2015

Appeal from the Order June 26, 2015 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011613-2012

BEFORE: DUBOW J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.: FILED MARCH 09, 2017

The Commonwealth of Pennsylvania appeals from the June 26, 2015

order granting Appellee’s motion to suppress physical evidence. We affirm.

In September 2012, Joel G. Ings, Appellee, was arrested and charged

with possession of a controlled substance and possession with intent to

distribute.1 In June 2014, Appellee filed a motion to suppress physical

evidence, namely, narcotics recovered in conjunction with the arrest. In the

motion, Appellee averred that police lacked reasonable suspicion or probable

cause to stop him, and the narcotics discarded in his ensuing flight from

police were the fruits of an illegal seizure. A suppression hearing was held

on June 26, 2015, before the Honorable Sean F. Kennedy. That same day,

____________________________________________

1 35 Pa.C.S. §§ 780-112(a)(16), and 780-112(a)(30), respectively.

* Retired Senior Judge assigned to the Superior Court. J-A32019-16

upon hearing the testimony of the Commonwealth’s only witness, arresting

officer Jeffrey Opalski (“Officer Opalski”), the court granted Appellee’s

motion to suppress. Thereafter, in July 2015, the Commonwealth filed a

notice of appeal and a Pa.R.A.P. 1925(b) statement. The lower court

reviewed the suppression hearing transcript and issued supplemental

findings of facts and conclusions of law in January 2016. In February 2016,

the court issued a responsive opinion, which incorporated its findings of facts

and conclusions of law.

On appeal, the Commonwealth raises the following issue for our

review:

1. Where officers patrolling a high[-]crime area asked [Appellee] to stop, and he responded by fleeing on his bicycle, did the lower court improperly suppress the crack cocaine that he abandoned mid-flight?

Commonwealth’s Brief at 4.

When reviewing the propriety of a suppression order, we are required

to determine whether the record supports the suppression court's factual

findings and whether the inferences and legal conclusions drawn by the

suppression court from those findings are appropriate. Commonwealth v.

Peterson, 17 A.3d 935, 937 (Pa. Super. 2011) (citing Commonwealth v.

Moyer, 954 A.2d 659, 663 (Pa. Super. 2008). Where the record supports

the factual 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.

-2- J-A32019-16

On appeal, the Commonwealth raises a single issue for our review,

alleging the court improperly suppressed the narcotics Appellee discarded in

flight from the police. We have reviewed the certified record, the briefs of

the parties, the applicable law, and the well-reasoned opinion authored by

the Honorable Sean F. Kennedy of the Court of Common Pleas of

Philadelphia County, filed February 18, 2016. We conclude that Judge

Kennedy’s comprehensive opinion is dispositive of the issue presented in this

appeal. Accordingly, we adopt the opinion as our own for purposes of

further appellate review and affirm the order granting Appellee’s suppression

motion on that basis.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/9/2017

-3- Circulated 02/17/2017 01:57 PM

IN THE COURT OF COMMON PLEAS FILED PHILADELPHIA COUNTY FEB 18 FIRST JUDICIAL DISTRICT OF PENNSYL ANIA v ·cnm1, . ZOl6 CRIMINAL TRIAL DIVISION First Ju~~:~'lf.eats Unit istrict of PA COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0011613-2012

v. SUPERIOR COURT JOEL G.INGS NO. 2015

KENNEDY, SEAN F., J. FEBRUARY 15, 2016

PROCEDURAL IDSTORY

On September 2, 2012, Joel Ings (the Defendant) was arrested and charged with

possession of a controlled substance (possession) and possession with intent to distribute

(PWID).1 On June 10, 2014, the Defendant filed a motion to suppress physical evidence,

namely, narcotics, recovered by the police, contending that the police lacked reasonable

suspicion or probable cause to stop him and the item discarded in his subsequent flight with the

police in pursuit where the fruits of an illegal seizure. A suppression hearing was held before

this Court on June 26, 2015. At that time, the Commonwealth presented the testimony of

Philadelphia Police Officer Jeffrey Opalski (Officer Opalski). The Defendant presented no

testimony. CP.SI-CR-0011613-2012 Comm. . Opinion Y. Ing,, Jee, 0 G.

Ill/ mt/ll/llll/1/ II//I 7408371741

135 Pa.C.S. § 780-112(a)(l6) and 35 Pa.C.S. § 780-l l2(a)(30), respectfully. 1 ... After hearing Officer Opalski's testimony and personally observing him testify, this

Court granted the Defendant's motion to suppress and ordered the narcotics suppressed.2 On

July 27, 2015, the Commonwealth filed a notice of appeal, as well as a 1925(b) statement,

challenging the Court's suppression ruling. Upon receipt of the Commonwealth's notice of

appeal and 1925(b) statement, the Court ordered the June 26, 2015 suppression hearing

transcript. Following a review of the suppression hearing transcript, this Court issued

supplemental findings of fact and conclusions oflaw, which were filed on January 15, 2016.3

FACTS

On September 2, 2012, Officer Opalski and his partner, Officer Murray, were in plain 4 clothes and an unmarked vehicle, on routine patrol in the 19th District N.T. 6/25/2015 at 5-6.

On said date, Officer Opalski had obtained Information that a week prior to September 2, 2012,

several gunpoint robberies were reportedly committed by two suspects - described as black

males, five-ten to six feet, thin build- at bus stops off of 54th Street, in the area of 54th and Berks 5 Street Id. at 5-6, 12. Officer Opalski was looking out for these alleged robbery suspects

during his patrol. Id. at 5-6.

Officer Opalski saw the Defendant at approximately 1:00 a.m. Id. At that time, Officer

Opalski was patrolling in the area 56UJ. and Berks Street, heading southbound on 56th Street and

2The Court's findings and conclusion were stated on the record See, N.T. 6126fl0 IS at 17-20. 3 The supplemental findings of fact and conclusions oflaw are incorporated as though fully set forth herein. (Courtesy copy attached hereto). Although the supplemental findings and conclusions were clearly designated as such, the filing was erroneously docketed as a 1925(b) Opinion. • A!. of September 2, 2012, Officer Opalski had been a Philadelphia Police Officer for two years. N.T. 6/2&2012 nt 8. The summer of2012 was his first experience out in the District. lg. During that summer, Officer Opalski and his yartner had close to 20 gun arrests. Id. Officer Opalski testified that he did not personally investigate the week-old crimes or prepare any reports relative to said crimes; he obtained the information regarding the crimes from the white papers disseminated through the 19di District. Id. at 12· 13. 2 the Defendant was at 55lh and Berks Street, riding a bicycle westbound. towards 56th Street. 6 Id.

at 5, 6, 11-12, 14. The Defendant turned northbound on 561h Street and came by the driver's side

of the officers' vehicle, which was facing southbound, windows down and at that point, the

officers yelled "police," flashed their badges and ordered the Defendant to stop.7 Id. at 7.

Officer Opalski had not observed the Defendant engage in any criminal activity before he

ordered the Defendant to stop. Id. at 13. The Defendant looked in the direction of Officer

Opalski and continued to peddle northbound on 56th Street, behind the officers' vehicle.8 Id. at

7. The officers pursued the Defendant Id. During the pursuit, Officer Opalski. saw the

Defendant throw a glass jar to the ground. Id. The officers apprehended the Defendant at 56th

and Arlington Streets.9 Id. Officer Opalski returned to the area where he saw the Defendant

throw the glass jar, Id. at 7-8. He recovered a glass jar containing crack cocaine. Id. at 8. The

Defendant was arrested.l'' Id.

ISSUE

The Commonwealth's contends that the Court erred in granting the Defendant's motion

to suppress and in suppressing the narcotics discarded by the Defendant, asserting:

6 Officer Opalski claimed that in the darkness of night, as he was heading southbound on 56tb Street end the Defendant was riding a bicycle westbound towards 56tb Street, he noticed a bulge in the Defendant's front waistband that could have been a gun and further, he observed that the Defendant matcbc d the description of the week-old robbery suspects. Td. ot 6-7. This Court found said testimony to be not credible. N.T. 612612015 at 18-20; Supplemental Findings at nos. 14-16. 7 Officer Opalski did not indicate that he was responding to a crime in progress when he saw the Defendant or when he ordered the Defendant to stop. In fact, Officer Opalsld testified that he did not see the Defendant engage in nny criminal activity before he ordered the Defendant to stop. Id. at 13. Officer Opalski's testimony demonstrated that his reason for stopping the Defendant was the infonnation he possessed regarding the week-old robberies. Jg. at 5-7. I On cross examination, Officer Opnlski testified that as the Defendant pulled alongside of the unmarked vehicle's window and as he passed the unmarked vehicle, he maintained the same pace of motion. Id. at 13. 9 The Defendant did not possess e gun. Id. et 15. 10 Subsequent to the Defendant's arrest, Officer Opalski completed a 75-229, based on information he had obtained from the Defendant Id. at 9-10. The Defendant reported that he was six feet tall and that he resided at 5876 Malvern Road, which was approximately four blocks from when, the events in question took place. Id. at 10, 15. The Defendant's reported address indicated that he resided in the neighborhood where the events in question occurred. Id. at 15. 3 Plainclothes police officer investigating a series of gunpoint robberies within 2 blocks of their location saw defendant, who matched a flash description of the robbery suspect, approaching on a bicycle with a bulge in his waistband area, at approximately 1 a.m.; the officers called to defendant to come over to them and in response he fled and, while doing so, threw drugs on the ground. The issue on appeal is whether the lower court erred in granting defendant's motion to suppress the drugs he abandoned.

1925(b) Statement

DISCUSSION

When reviewing the propriety of a suppression order, an appellate court is required to

determine whether the record supports the suppression court's factual findings and whether the

inferences and legal conclusions drawn by the suppression court, from those findings, are

appropriate. Commonwealth v. Peterson, 17 A.3d 935, 937 (Pa.Super, 2012) (quoting

Commonwealth v. Moyer. 954 A.2d 659, 663 (Pa.Super, 2008). 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. Id.

It is within the suppression court's sole province to pass on the credibility and weight to

be given to testimony. Commonwealth v. Elmbody, 823 A.2d 180, 184 (Pa.Super. 2003). The

suppression court is free to believe all, part or none of the evidence presented at the suppression

hearing. Id. "[C]redibility at a suppression hearing is an important determination best resolved

through the suppression court's personal observations. An appellate court will not reverse a

suppression court's assessment of credibility absent a manifest abuse of discretion."

Commonwealth v. Camacho, 625 A.2d 1242, 1245 (PaS~per. 1993).

Moreover, the suppression court has the duty to independently evaluate whether, under

the particular facts of a case, an objectively reasonable police officer would have reasonably

suspected criminal activity was afoot. Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011).

4 The appellate courts look to the factual findings made by the suppression court, recognizing that

those findings are dependent on the suppression court's credibility determinations. In the

Interest ofL.J (L.J.). 79 A.3d 1073, 1085 (Pa.Super. 2013).

When we state that part of our "task" is to determine whether the record supports the suppression court's factual findings, this is another way of expressing that our standard of review is highly deferential to the suppression court's factual findings and credibility determinations. In other words, if the record supports the suppression court's findings, we many not substitute our own findings. [Commonwealth v.] Hughes, 836 A.2d [893,] at 898 [Pa. 2003] ("[w]here the record supports findings of the suppression court, we are bound by those facts.") (citation omitted). In stark contrast, our standard of review of the suppression court's legal conclusions is de nova: the appellate courts give no deference to the suppression court's legal conclusions. Commonwealth v. Brown. 996 A.2d'473. 476 (Pa. 2010).

L.J.. 79 A.3d at 1080 n. 6.

The Fourth Amendment of the United States Constitution and Article 1, § 8 protect

against unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1 (1968); Commonwealth v.

Hicks, 253 A.2d 276, 280 (Pa. 1969). Among the protections is the requirement that an officer

have reasonable suspicion that criminal activity is afoot and that the person seized in involved in

such activity before an investigative stop. In re M.D., 781 A.2d 192. 196 (Pa.Super. 2001)

(citing~ 392 U.S. at 30; Hicks, 253 A.2d at280); See also, Commonwealth v. Ranson. 103

A.3d 73 (Pa.Super. 2014); Commonwealth v. Taggart, 997 A.2d 1189 (Pa.Super. 201 O); ·

Commonwealth v. Martinez. 588 A.2d 513 (PaSuper. 1991); Commonwealth v. Espada, 528

A.2d 968 (Pa.Super. 1987).

Where "a citizen approached by a police officer is ordered to stop ... obviously a 'stop'

(seizure] occurs." Ranson, 103 A.3d 73, 77 (Pa.Super. 2014) (quoting Commonwealth v .. Jones,

378 A.2d 835, 839 (Pa. 1977)). Furthermore:

s .• Under Pennsylvania law, any items abandoned by the individual under pursuit are considered fruits of a seizure. Those items may only be received in evidence when an officer, before giving chase, has at least the reasonable suspicion necessary for an investigative stop. Stated another way, when one is unconstitutionally seized by the police, i.e. without reasonable suspicion or probable cause, any subsequent flight with the police in pursuit continues the seizure and any contraband discarded during the pursuit is considered the product of coercion and is not admissible.

Taggart, 997 A.2d at 1193 (Pa.Super. 2010) (quoting In re M.D., 781 A.2d at 196 (Pa.Super.

2001) (internal citations and quotation marks omitted); See also, Ranson. 103 A.3d at 77 ("[ A]s

pursuit by police constitutes a seizure under the law of this Commonwealth, a person may be

seized even though he is moving away from the police.") (citing Conunonwealth v. Matos, 679

A.2d 769 (Pa. 1996).

In determining whether a police officer had reasonable suspicion, the court must examine

the totality of circumstances. Ranson. supra; Taggart, supra; In re M.D., sl}Pm; Martinez. supra;

Espada, supra. The officer must be able to articulate specific facts which led him reasonably to

suspect that criminal activity was afoot and that the person seized was involved in that activity.

Id. Reasonable suspicion depends on the information possessed by the officer, and its degree of

reliability. Ranson, 103 A.3d at 78; Taggart, 997 A.2d at 1193; In re M.D., 781 A.2d at 196;

Martinez, 588 A.2d at 516; Espada, 528 A.2d at 970. In assessing the totality of circumstances,

the court must give due weight to the specific reasonable inferences drawn from the facts in light

of the police officer's experience. n Ranson. 103 A.3d at 77; In re M.D .• supra.

Although information sufficient to render a stop reasonable cannot be defined to a

mathematical certainty, Pennsylvania case law clearly establishes that "in order for a stop to be

11 "Although a police officer's knowledge and length of experience weigh heavily in determining whether reasonable suspicion existed, our [courts] retnllin mindful that the officer's 'judgment is necessarily colored by his or her primary involvement in the often competitive enterprise of ferreting out crime." Commonwealth v. Reppert. 814 A.2d 1196, 1204 (Pa.Super. 2002)(citing In re D,E.M. 729 A.2d 570, 578 n.19 (Pa.Super. 1999)(quotingTurl, 332 U.S. at 11·12). 6 reasonable, and therefore legal, under Terry v. Ohio, filll!m, the police officer's reasonable and

articulable belief that criminal activity was afoot must be Jinked with his observation of

suspicious or irregular behavior on behalf of the particular defendant stopped.n12 Espada, 528

A.2d at 970; See also, Ranson, ~ Taggart, fil!.P!lh Inre M.D., rn Martinez, supra.

"Conversely, an officer's observation of irregular behavior without a current belief that a crime

is afoot also renders a stop unreasonable. Espada, fillm (citing Jones, 378 A.2d at 840-841).

Instantly, the suppression record consists of the testimony oftbe Commonwealth's

witness, Officer Opalski. At the conclusion of Officer Opalski's testimony, this Court granted

the Defendant's motion to suppress. The Court concluded that an investigative stop occurred

when the officers identified themselves as police, flashed their badges and ordered the Defendant

to stop. (N.T. 6/26/2015 at 7, 17; See also, Supplemental Findings/Conclusions, 1/15/2016, at 2,

5). This conclusion is consistent with Pennsylvania case law. Jones: Ranson.

This Court found that under the particular facts of this case, an objectively reasonable

police officer would not have reasonably suspected criminal activity was afoot and that the

Defendant was engaged in criminal activity. The Court considered the totality of the

circumstances giving due weight to the reasonable inferences Officer Opalski was entitled to

draw from the facts, in light of his experience. (N.T. 6/26/2015 at 18-20; See also, Supplemental

12 A police officer's observation of the defendant in a high crime area or in the vicinity of recently reported crimes did not justify an investigative stop where the officer had no information of a crime in progress and the defendant had not acted in a suspicious manner, ~ 528 A.2d at 970; Commonwealth v. Jackson, 519 A.2d 427 (Pa.Super. 1986); Commonwealth v. Williams, 444 A.2d 1278 (Pa.Super. 1982); Commonwealth v. WiUlams, 429 A.2d 698 (Pa.Super, 1981). An unsubstantiated tip constituted unreasonable grounds for au investigative slop where the description of the perpetrator was overly general and there was no !nfonnatioo linking the defendant with any suspicious or illegal activity. Commonwealth v. Lagnna, 514 A.2d 179 (Pa.Super. 1986). A police officer's observation of the defendant on a known drug comer, coupled with the officer's observation of a nondescript bulge in the defendant's pocket, constituted unreasonable ground for an investigative stop where the officer had no information ofa crime in progress and the defendant bad not acted in a suspicious manner. Commonwealth v, Martinez, 588 A.2d 513 (Pa.Super. 1991). In Mnrt!ner, the Superior Court explalned that an officer's belief that 11 person might be armed cannot serve as an additional articulable fact to justify an initial stop absent sufficient articulable facts to reasonably warrant a belief that criminal activity is afoot Id. at 516 (citing Hicks, 253 A.2d at 279). . 7 -• Findings/Conclusions, l/15not6, at 2-6). Based thereon, this Court determined that Officer

Opalski did not demonstrate a reasonable belief that criminal activity was afoot and that the

Defendant was engaged in criminal activity at the time the Defendant was ordered to stop. (N.T.

6/26/2015 at 20; See also, Supplemental Findings/Conclusions, 1/15/2016, at 4-5). Accordingly,

this Court concluded that the contraband discarded by the Defendant was the fruit of an illegal

investigative stop and subject to suppression. (N.T. 6/26/2015 at 20; See also, Supplemental

Findings/Conclusions, 1/15/2016, at 5·6).

In reaching a determination, this Court found Officer Opalsk.i's testimony to be not

credible to the extent be testified that he ordered the Defendant to stop because he observed that

the Defendant matched the description of suspects in the week-old robberies. [N.T. 6/26/2015 at

6-7, 12] and that he observed a bulge in the Defendant's waistband [N.T. 6/26/2015 at 6-7; 14].

(N.T. 6/26/2015 at 18-19; See also, Supplemental Findings/Conclusions, 1/15/2016, at 3-5).

Notwithstanding this Court's rejection of Officer Opalski's testimony as not credible, the

Commonwealth relies on said testimony in support ofits appeal. (1925(b) Statement).

The Commonwealth had the burden of establishing at the suppression hearing that the

challenged evidence was not obtained in violation of the Defendant's constitutional rights.

Camacho, 625 A.2d at 1245 (citing Commonwealth v. Bonasorte. 486 A.2d 1361, 1368

(Pa.Super. 1987)). This Court determined that the testimony of Officer Opalski did not credibly

establish reasonable suspicion justifying the investigative stop. Given this determination, there

is no basis for a reversal of the Court's suppression ruling. Camacho. 625 A.2d at 1246. As

discussed more fully below, the Court's credibility determination is supported by the record and

does not constitute a manifest abuse of discretion.

8 -1

Presumably, in an effort to dissuade the Superior Court of the propriety of this Court's

rejection of Officer Opalski's testimony, the Commonwealth's 1925(b) statement misrepresents

and misstates the facts of this case. A review of the record reveals no support for the

Commonwealth's implication that on September 2, 2012, Officer Opalski was investigating a

crime in progress and/or its assertion that the officers called to the Defendant to come over to

them and in response, he fled. A review of Officer Opalski testimony reveals the following

relevant facts.

On September 2, 2012, Officer Opalski possessed information that a week before

September 2, 2012, gunpoint robberies had reportedly been committed by two suspects-both

described as black males, five-ten to six feet, thin build- at bus stops off of 54th Street, in the

vicinity of 54th and Berks Street. (N.T. 6/26/2015 at 6, 12). Officer Opalski did not personally

investigate the week-old robberies or prepare any reports pertaining to the robberies; rather, he

had just obtained the information from the white papers disseminate through his District. (N.T.

6/26/2012 at 12-13). Based on this information, Officer Opalski was looking out for the suspects

during his patrol. (N.T. 6/26/2012 at 5-7). At approximately 1:00 a.m., Officer Opalski saw a

single black male, the Defendant, at 55lh and Berks Street; the Defendant was riding a bicycle

westbound towards 56th and Berks Street. (N.T. 6/26/2015 at 6-7). The Defendant turned

northbound on 56th Street, riding his bicycle along the driver's side of Officer Opalski's

urunarked vehicle, windows down and as he did, Officers Opalski and Murray announced police,

showed the Defendant their badges and told the Defendant to stop. The Defendant looked in the

direction of Officer Opalski and began to peddle faster northbound. (N. T. 6/26/2015 at 7). At

the point the officers commanded the Defendant to stop, Officer Opalski had not seen the

Defendant engage in any criminal activity. (N.T. 6/26/2015 at 13). Officer Opalski did not

9 t indicate that he observed irregular or suspicious behavior on the Defendant's part or anyone's

part.

As noted above, this Court concluded that an investigative stop occurred when the

officers ordered the Defendant to stop. The Court did not find the Defendant's alleged flight to

be an additional factor to be considered in determining reasonable suspicion since the

Defendant's flight occurred after the investigated stop and therefore, did not constitute a ground

for reasonable suspicion justifying the investigative stop. Taggart; Martinez. As further

indicated above, determined that the testimony of Officer Opalski did not credibly establish

reasonable suspicion justifying the investigative stop.

This Court had the duty to independently evaluate Officer Opalski's testimony to

determine whether, under the particular facts of a case, an objectively reasonable police officer

would have reasonably suspected criminal activity was afoot. Holmes. Officer Opalski's

credibility was an important consideration in this Court's evaluation of the facts. This Court

considered Officer Opalski's testimony in its entirety and personally observed Officer Opalski's

demeanor as he testified. The Court examined the totality of the circumstances, including

reasonable inferences, in light of Officer Opalski's experience as a police officer. The Court did

not find that Officer Opalski's testimony had the "ring of truth."

When Officer Opalski stopped the Defendant on September 2, 2012, Officer Opalski was

not investigating or responding to a crime in progress; rather, he was relying on information that

a week before September 2, 2012, gunpoint robberies had been committed at bus stops, off of

54lh Street, by two suspects described as black males, 5-10 to 6 feet, thin build. The flash

description of the suspects was very general and vague at best, with a low degree of reliability,

Officer Opalski knew that the flash description had little to no value in the ethnic neighborhood

10 where the robberies occurred as evinced by his testimony that any number of males residing in

the neighborhood where the robberies occurred would fit the description of the suspects. (N.T.

6/26/2012 at 11).

To justify an investigative stop, Officer Opalski needed more than the vague flash

description. Officer Opalski's testimony did not indicate that he attempted to corroborate

additional facts before stopping the Defendant. At the time Officer Opalski stopped the

Defendant, the Defendant had done nothing more than ride a bicycle in the vicinity of a week-old

crime.

The Court did not accept Officer Opalski's testimony that he was able to determine the

Defendant's height to be between five-ten and 6 feet and his testimony that he observed a bulge

in the Defendant's waistband under the circumstances he described - in the darkness of night,

while the Defendant was seated, riding a bike westbound from 55th Street towards 561h Street and

Officer Opalski was riding in a vehicle traveling southbound on 56th Street.

Additionally, Officer Opalski did not describe the alleged bulge in any details. He did

not testify that he believed the bulge was a gun; rather, he testified that be thought the bulge

could have been a gun. He also testified that the bulge could have been a large cell phone.

As indicated above, Officer Opalski admitted that he had not observed the Defendant

engage in any criminal activity and he did not point to any irregular or suspicious behavior on

the part of the Defendant. Officer Opal ski did not indicate that the Defendant was observed with

another tall> thin black male and/or that the Defendant was observed at or near bus stops, on or

off 54 th Street, as described in the prior robberies.

In view of the above, this Court submits that the Commonwealth's appeal is without

merit and accordingly, it should be denied and dismissed. 11 I I

l -: I r i . ' CONCLUSION

WHEREFORE, this Court respectfully submits that the order granting the Defendant's

motion to suppress be affirmed on appeal.