Commonwealth v. Dorsey

654 A.2d 1086, 439 Pa. Super. 494, 1995 Pa. Super. LEXIS 14
CourtSuperior Court of Pennsylvania
DecidedJanuary 9, 1995
StatusPublished
Cited by21 cases

This text of 654 A.2d 1086 (Commonwealth v. Dorsey) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Dorsey, 654 A.2d 1086, 439 Pa. Super. 494, 1995 Pa. Super. LEXIS 14 (Pa. Ct. App. 1995).

Opinions

TAMILIA, Judge.

Charles Dorsey appeals from the January 5, 1994 judgment of sentence entered following a nonjury trial in which he was found guilty of possession,1 possession with intent to deliver a controlled substance2 and possession of drug parapheranlia.3 Following the denial of post-trial motions, appellant was sentenced to a term of eighteen (18) to seventy-two (72) months’ imprisonment. The charges stem from the following set of facts.

On October 1, 1992, officers of Ridley Township Police Department and detectives from Delaware County Criminal [497]*497Investigation Division (CID), Narcotics Unit, executed a search warrant at 1400 West MacDade Boulevard, Apt. D371, Woodlyn, Delaware County. The apartment was rented by a Donald Crews who was not at home at the time the warrant was executed. As a result of the execution of the search warrant, a substantial amount of money, marijuana, a scale, bagging materials, and tally sheets were seized.
Towards the conclusion of the search, surveillance officers outside the residence observed Donald Crews and this defendant arrive in a silver colored station wagon. A detective outside recognized at least Crews as the subject of the warrant and followed the pair into the apartment building. The officers inside the building closed the apartment door and situated themselves around the outside of the apartment.
Crews and Dorsey entered the apartment building and proceeded up the stairs towards Crews’ apartment. The officers moved in and arrested Crews at the doorway to his apartment. Dorsey was stopped at the top of the stairs by Detective Glen Greenwalt.
Detective Greenwalt, as well as Detective Azpell, testified at the suppression hearing that as Dorsey was [sic] attempted to flee down the stairs and that at the same time Dorsey’s right hand appeared to be reaching toward his right pants pocket. Detective Greenwalt identified himself as a police officer and ordered Dorsey to assume a prone position with his hands in front of him. Greenwalt told Detective Azpell to watch Dorsey’s hands.
Detective Azpell began a pat down search of Dorsey for his safety and as a result of the suspicious movement of the defendant’s hands. He felt a pager attached to Dorsey’s belt and a lump in his right pants pocket which he from experience believed it to [be] marijuana. He observed a plastic bag consistent with that used for controlled substances protruding from Dorsey’s right pants pocket. Detective Azpell removed that plastic bag which contained [498]*498smaller bags of marijuana and also removed a large sum of cash from Dorsey’s left pocket.

(Slip Op., Bradley, J., 3/15/94, pp. 2-3.)

On appeal to this Court, appellant argues the trial court erred in denying his motion to suppress the evidence obtained from him during this search. Specifically, appellant contends the trial court erred in finding the police conducted a valid Terry4 search for weapons as the Commonwealth failed to set forth particular facts which show the arresting officer could reasonably infer appellant was armed and dangerous. Since there was no probable cause to arrest appellant and thus conduct a legal search, there must be a reasonable basis for the police officer to believe appellant was armed and dangerous to warrant conducting a protective frisk. Appellant argues he was laying prone on the staircase with his arms outstretched with approximately ten police officers nearby, thus he was no threat to the police. Accordingly, he suggests the evidence does not support a reasonable basis for the officers to believe he posed any threat to them.

In reviewing the denial of a motion to suppress, we must first determine whether the suppression court’s factual findings, inferences and legal conclusions are supported by the record. Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177 (1992). Because the suppression court held for the Commonwealth, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Id. Additionally, it is exclusively the province of the suppression court to determine the credibility of the witnesses and weight to be accorded to their testimony. Commonwealth v. Neely, 298 Pa.Super. 328, 444 A.2d 1199 (1982). If the factual findings are supported by the record, then we may reverse only for an error of law. Lopez, supra, 415 Pa.Super. at 252, 609 A.2d 177.

A review of the record finds the suppression court had ample evidence to support its decision finding the police lawfully conducted a protective pat-down search of appellant. [499]*499To justify a frisk incident to an investigatory stop, police need to point to specific and articulable facts indicating the person they intend to frisk may be armed and dangerous. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985). Appellant arrived at the scene of an execution of a search warrant for drugs with the named subject of the search. When he saw police, he attempted to flee, putting his hands in his pants. Despite being ordered to place his hands where police could see them, he refused to do so. Clearly, under these facts the police had a reasonable belief their safety was in jeopardy, and a limited search for weapons was warranted. Furthermore, this Court has held that when a police officer is confronted with someone who he reasonably believes is involved in narcotics traffic, a Terry pat-down frisk for protection of the officer is proper. Commonwealth v. Patterson, 405 Pa.Super. 17, 591 A.2d 1075 (1991) (taking judicial notice that drug dealers are likely to be armed and dangerous). Accordingly, we find appellant’s argument to be without merit.

Appellant next argues the seizure incident to the pat-down frisk was a violation of Article 1, section 8, of the Pennsylvania Constitution, which protects citizens against unreasonably searches and seizure. The officer conducting the protective Terry frisk lacked independent probable cause to remove the bag of drugs from appellant’s pocket because it was not in “plain view.” Furthermore, appellant argues Pennsylvania does not have a “plain touch” doctrine, see Commonwealth v. Marconi, 408 Pa.Super. 601, 597 A.2d 616 (1991), which is an extension of the “plain view” doctrine. Finally, although this Court recognized the “plain touch” doctrine in Commonwealth v. Johnson, 429 Pa.Super. 158, 631 A.2d 1335 (1993), appellant contends the case is not controlling as it was decided under the federal constitution and not the Pennsylvania Constitution which affords greater protection to individuals.

Recent case law has drawn an analogy between the warrantless seizure of contraband in plain view of a police officer conducting a Terry

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654 A.2d 1086, 439 Pa. Super. 494, 1995 Pa. Super. LEXIS 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dorsey-pasuperct-1995.