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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KENGE NMN LEWIS JR. : : Appellant : No. 1272 MDA 2024 Appeal from the Judgment of Sentence Entered August 1, 2024 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0000167-2023

BEFORE: LAZARUS, P.J., BOWES, J., and STEVENS, P.J.E.* DISSENTING MEMORANDUM BY LAZARUS, P.J.:FILED: NOVEMBER 20, 2025 I respectfully dissent. In my opinion, the majority incorrectly concludes that Officer McBride had the requisite reasonable suspicion to justify stopping Lewis. Accordingly, I would find the stop illegal, suppress all evidence uncovered as a result of the stop and subsequent detention, vacate Lewis’ judgment of sentence for his firearm convictions, and discharge him.

Here, Officer McBride stopped Lewis one-half hour after the suspect fled from the scene of the traffic stop and three-quarters of a mile from the earlier traffic stop. The police radio description was of a black male of Lewis’ approximate height, wearing either a dark pair of sweatpants or sweatshirt.

Officer McBride did not testify that he personally observed Lewis demonstrate any suspicious behavior prior to the stop. Critically, Officer McBride testified ____________________________________________

* Former Justice specially assigned to the Superior Court.

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he needed other officers to come to his location to identify the suspect because he only remembered that the description stated the suspect was wearing gray sweatpants and that “when he radioed for the officers, [he] never got a description of what [the suspect] was wearing.” N.T. Suppression Hearing, 1/10/24, at 38-39. Moreover, Officer McBride testified that he asked officers over the radio what color shoes the suspect had been wearing because “that would be a key identifier” that could easily let him know if he had the correct individual. Id. at 39. Taking all of this testimony, in toto, demonstrates that Officer McBride did not have the requisite reasonable suspicion, supported by articulable facts, to believe that Lewis “[wa]s committing or ha[d] committed a criminal offense.” Commonwealth v. Hicks, 208 A.3d 916, 921 (Pa. 2019) (citation omitted). See Commonwealth v. Berrios, 263 A.2d 342 (Pa. 1970) (overly general description does not support Terry1 stop and frisk in absence of suspicious behavior observed by investigating officer).

The majority concludes that “the whole of the [following] factors provided Officer McBride with sufficient information to justify a brief detention” of Lewis where he: • matched the description provided by a known source listing the absconder’s height, race, gender, and clothing; • was located three-quarters of a mile from the scene; • was spotted one-half hour after the crime; and • was the only individual in the area.

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Majority Memorandum, ----, at 9. Such details fall woefully short of the specificity required to justify a stop. See Berrios, supra2 (stop of defendants, twenty minutes after shooting occurred and three blocks from shooting, based on generalized description that suspects were two black males in dark clothing and one Hispanic male in light clothing, insufficient to constitute reasonable suspicion to justify detention); Commonwealth v. Hicks, 253 A.2d 276, 278 (Pa. 1969) (officer lacked reasonable suspicion to stop defendant who was black, in his thirties, and wearing “a very light[-] colored coat, beige or white,” where 911 call described suspect of crime committed forty-five minutes earlier as thirty-year-old black male with mustache wearing brown coat). See also In the Interest of D.M., 727 A.2d 556, 561 (Pa. 1999) (Nigro, J., dissenting) (“Clearly, such a description, consisting merely of race and gender and literally applicable to any group of black males in the area, falls far short of providing a specific and articulable basis for a reasonable belief that D.M. and his companions were involved in the reported robbery.”). ____________________________________________

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Additionally, the Majority states that it was permissible for Officer McBride to “briefly detain [Lewis] to confirm his identity and ‘maintain the status quo momentarily while obtaining more information . . . in light of the facts known to the officer at the time.’” Majority Memorandum, ---, at 13, citing Commonwealth v. Jackson, 302 A.3d 737, 748 (Pa. 2023) and Adams v. Williams, 407 U.S. 143 (1972) (recognizing Terry adopts intermediate response to arrest). What the majority fails to recognize, however, is that the Terry3 Court presupposed that the officer believed the individual he stopped was suspicious. See Adams v. Williams, 407 U.S. 146, citing Terry, at 21-22 (“A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.”) (emphasis added). See also ____________________________________________

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Commonwealth v. Bryant, 866 A.2d 1143, 1147 (Pa. Super. 2005) (officer possessed sufficient reasonable suspicion to conduct Terry stop “for the purpose of determining [defendant’s] identity and maintaining the status quo while obtaining more information” where defendant was “running with his companions” in high crime area around corner from where officer heard firing of gunshots in early evening hours).

Here, Officer McBride not only failed to observe Lewis demonstrating any suspicious behavior, but he also acknowledged that he needed the officers who were involved in the original traffic stop to come to his location to identify whether Lewis fit the generic description of the suspect. These are not the facts that the Supreme Court envisioned would form the basis for a proper Terry stop. See Hicks, supra at 927 (warrantless seizure of person “require[s] an appropriate showing of antecedent justification”) (emphasis added). See also Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000) (“To maintain constitutional validity, an investigative detention must be supported by reasonable and articulable suspicion that the person seized is engaged in criminal activity and may continue only so long as it is necessary to confirm or dispel such suspicion.”) (emphasis added).

While I agree that reasonable suspicion requires more than “a mere ‘hunch’ but ‘considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause,’” Jackson, 302 A.3d at 748, the Majority’s decision today runs afoul of an individual’s constitutional protection against unlawful searches and seizures.

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Commonwealth v. Lovette, 450 A.2d 975, 979 (Pa. 1982) (“[T]he Terry principle is an exception to the general rule requiring probable cause and must not be extended in such a fashion as to swallow the rule.”). Because, under the totality of the circumstances, the facts that Officer McBride possessed at the time he detained Lewis lacked the specificity required to justify Lewis’ detention or, more colloquially, to consider him “suspicious,” I must dissent.

Jackson, 519 A.2d at 430 (“The police need to have identification information specific enough to reasonably conclude that the party they are stopping is actually the person for whom they are searching.”) (emphasis added). Accordingly, I would suppress Lewis’ stop and all evidence flowing therefrom.

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