Com. v. Williams, E. ( 2015 )


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  • J. A25040/15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    :
    v.                      :
    :
    ERIC R. WILLIAMS,                           :
    :
    Appellant         :     No. 3495 EDA 2014
    Appeal from the Judgment of Sentence November 25, 2014
    In the Court of Common Pleas of Delaware County
    Criminal Division No(s).: CP-23-CR-0001773-2014
    BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.
    MEMORANDUM BY FITZGERALD, J.:                    FILED DECEMBER 22, 2015
    Appellant appeals from the judgment of sentence entered in the
    Delaware County Court of Common Pleas.             Following a non-jury trial,
    Appellant was found guilty of possession of firearms prohibited 1 and firearms
    not to be carried without a license.2 Appellant contends the trial court erred
    in denying his motion to suppress the physical evidence seized as a result of
    his illegal detention. We affirm.
    *
    Former Justice specially assigned to the Superior Court.
    1
    18 Pa.C.S. § 6105(a)(1).
    2
    18 Pa.C.S. § 6106(a)(1).
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    We adopt the facts as set forth by the trial court’s opinion. 3 See Trial
    Ct. Op., 10/15/14, at 1-5.4      At the suppression hearing, Trooper Colon
    testified as follows regarding Appellant’s criminal history:
    [The Commonwealth]: . . . So, Trooper, you’re back in the
    car. You’re reviewing [Appellant’s] criminal history?
    A: Yes, sir.
    Q: Is that standard practice?
    A: Yes.
    *      *   *
    Q: Possession with Intent in ’95, . . . Resisting in ’96, is
    that right, Robbery RSP, acquitted in Robbery in ’98?
    A: Yes, sir.
    Q: Acquitted in ’01?
    A: Yes.
    Q: Acquitted in ’02?
    A: Correct.
    Q: Gun charge, ’03?
    A: Yes.
    3
    Appellant does not contest the legality of the motor vehicle stop.      See
    Appellant’s Brief at 5.
    4
    We note that there is no reference to the notes of testimony in the trial
    court’s recitation of certain findings of fact. Our review of the record
    indicates that the court had the benefit of a video of the traffic stop. N.T.,
    7/25/14, at 7. The court viewed the video, which was not part of the
    certified record. See 
    id. at 21,
    24, 25, 33, 63.
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    Q: Two acquits in ’04?
    A: Yes.
    Q: Gun charge in ’05?
    A: Yes.
    Q: Tampering with Evidence and Possession with Intent to
    Distribute in 2010?
    A: Yes.
    Q: Driving while suspended, 2012?
    A: Yes.
    Q: And a possessing (inaudible) charge?
    A: Yes, sir. Those are all the things that were revealed.
    *    *    *
    Q: . . . [D]id you check [Appellant’s] licensing status?
    A: Yes, and it was found to be suspended.
    Q: So he’s a suspended driver at this point with an
    unregistered vehicle?
    A: That is correct.
    *    *    *
    Q: . . . You asked [Appellant] if he’d ever been arrested
    before, right?
    A: Yes, sir, I did.
    A: And how did he respond?
    A: He contradicted what was revealed to me on the earlier
    query of his RAP sheet by relating that he had only
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    been─his most recent arrest was in 2008, which as we saw
    earlier was not true. . . . Furthermore, he related that
    arrest specifically in 2008 was for a domestic charge,
    to─which again contradicted what was revealed in that
    query.
    Q: And he gave you a story about being shot five times?
    A: Yes, for . . .
    Q: As part of that domestic situation?
    A: Yes.
    Q: Did you ask him about that or did he just offer that
    information?
    A: He had just offered that information stating that he was
    a victim, yet he was arrested in ’08, which I didn’t
    understand.
    N.T. at 25-28, 40.
    Appellant filed an omnibus pre-trial motion to suppress the firearms
    seized as a result of the search of his vehicle. On July 25, 2015, the trial
    court held a hearing and denied the motion. Following a stipulated non-jury
    trial, Appellant was sentenced to five to ten years’ imprisonment for
    possession of firearms prohibited and a consecutive term of seven years’
    probation for firearms not to be carried without a license.5      This timely
    appeal followed.      Appellant filed a court ordered Pa.R.A.P. 1925(b)
    5
    Appellant misstates the court’s sentence for firearms not to be carried
    without a license. See Appellant’s Brief at 3. At sentencing, the court
    stated: “On Count 2, Firearms Carried Witihout a License, the Court
    sentences [Appellant] to seven years’ State Probation consecutive to Count
    1 and payment of Court costs.” N.T., 11/25/14, at 14.
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    statement of errors complained of on appeal and the trial court filed a
    responsive opinion.
    Appellant raises the following issues for our review.
    Whether the trial court erred in denying [Appellant’s]
    Motion to Suppress when subsequent to a lawful stop by
    law enforcement for a motor vehicle violation and
    subsequent issuance and delivery of a warning by law
    enforcement to [Appellant], [Appellant] was unlawfully re-
    engaged and detained by law enforcement in violation of
    his constitutional rights?
    Did [sic] trial court err in denying [Appellant’s] Motion
    to Suppress when upon completion of a motor vehicle
    stop, [Appellant] was unlawfully directed out of his motor
    vehicle which was an unlawful and illegal seizure and
    detention of [Appellant] and therefore any subsequent
    action of the [sic] law enforcement including a search,
    consensual or otherwise, would be a violation of
    [Appellant’s] constitutional rights?
    Did [sic] trial court err in denying [Appellant’s] Motion
    to Suppress when after an illegal and unlawful seizure and
    detention of [A]ppellant, [A]ppellant was searched?6
    Appellant’s Brief at 4.7
    6
    Appellant does not address issue three in his brief. Therefore, it is
    abandoned on appeal. See Commonwealth v. Dunphy, 
    20 A.3d 1215
    ,
    1218 (Pa. Super. 2011).
    7
    Our Rules of Appellate Procedure set forth the required contents of
    appellate briefs. The argument section of Appellant’s brief does not comply
    with Rule 2119(a) which provides that “[t]he argument shall be divided into
    as many parts as there are questions to be argued; and shall have at the
    head of each part--in distinctive type or in type distinctively displayed--the
    particular point treated therein, followed by such discussion and citation of
    authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). Following a two
    page recitation of facts, Appellant states: “Therefore the pivotal question
    before the suppression court was whether there was [sic] any actions of
    [A]ppellant subsequent to his being told he was free to go which would
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    Appellant contends that the investigative detention that followed his
    lawful traffic stop was unlawful and therefore the court erred in denying his
    motion to suppress the evidence seized as a result of the search of his
    vehicle. Appellant argues that
    [i]n the instant case the trial court incorrectly establishes
    reasonable suspicion for the second illegal detention on
    facts that were known to the officer at the time he
    released [Appellant], advised him he was free to leave and
    concluded that he was not going to search the vehicle
    based on those facts. The trial court cites no facts that
    occurred subsequent to that release that would warrant
    [sic] justify a second re-engagement and unlawful
    detention.
    This is directly contrary to the holding in [Commonwealth
    v.] Ortiz[, 
    786 A.2d 261
    (Pa. Super. 2011).8]
    lawfully justify the second investigative detention. This is whether the
    officer had new or additional information for a basis for reasonable suspicion
    to establish a subsequent investigation detention of [A]ppellant.”
    Appellant’s Brief at 10.
    8
    As will be discussed infra, Appellant’s reliance on Ortiz is unavailing as it
    has been overruled for the proposition cited by Appellant in
    Commonwealth v Kemp, 
    961 A.2d 1247
    , 1260 (Pa. Super. 2008) (en
    banc). We note that Appellant baldly asserts “that consent to search that
    followed the unlawful investigative detention was clearly a product of the
    illegal detention and therefore not a valid consent to search.” Appellant’s
    Brief at 13. Appellant cites to 
    Ortiz, supra, at 266-267
    . See 
    id. In passing,
    we note that Appellant concedes he “consented to the search of the
    vehicle at the second re-engagement.” 
    Id. at 6.
    Furthermore, there is no
    indication in the record, and does Appellant does not claim, that the consent
    was “the result of duress or coercion, express or implied, or a will
    overborne—under the totality of the circumstances.” Commonwealth v.
    Strickler, 
    757 A.2d 884
    , 901 (Pa. 2000). At the suppression hearing,
    Trooper Sergio Colon testified, inter alia, as follows:
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    Appellant’s Brief at 12.
    Our review of the suppression court’s denial of a motion to suppress is
    governed by the following principles:
    Q: Did you ask [Appellant] if he would consent to search of
    the vehicle?
    A: Yes, I did.
    Q: And he gave you verbal consent?
    A: Yes, he did.
    Q: And is it your policy or the State─is it the State Police
    policy or is it your policy to get written consent as well?
    A: It’s─yes, this is a department form that is required to
    be filled out by us.
    Q: Okay. When you . . .
    A: When searching a vehicle.
    Q: When you verbally asked [Appellant] if he [sic] could
    search the vehicle, did he hesitate?
    A: He blighted (ph) [sic] away from me and, no, he said,
    go ahead, sir, you can do whatever you like and kind of
    backed up.
    Q: And when you put the form in front of him to sign,
    similarly did he hesitate to sign the form?
    A: No, he slightly─he read it over, didn’t have any
    questions . . . .
    N.T., 7/25/15, at 41-42.
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    [An appellate court’s] standard of review in addressing a
    challenge to the denial of a suppression motion is limited
    to determining whether the suppression court’s factual
    findings are supported by the record and whether the legal
    conclusions drawn from those facts are correct. Because
    the Commonwealth prevailed before the suppression court,
    we may consider only the evidence of the Commonwealth
    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 suppression court’s factual findings are
    supported by the record, [the appellate court is] bound by
    [those] findings and may reverse only if the court’s legal
    conclusions are erroneous. Where . . . the appeal of the
    determination of the suppression court turns on allegations
    of legal error, the suppression court’s legal conclusions are
    not binding on an appellate court, whose duty it is to
    determine if the suppression court properly applied the law
    to the facts. Thus, the conclusions of law of the courts
    below are subject to [ ] plenary review.
    Commonwealth v. Jones, 
    121 A.3d 524
    , 526-27 (Pa. Super. 2015)
    (citation omitted).
    This Court enunciated the test for determining the nature of the
    encounter when the police continue to question an individual following a
    traffic stop as follows:
    In Commonwealth v. Strickler, [ ] 
    757 A.2d 884
             ([Pa.] 2000), our Supreme Court analyzed under what
    circumstances a police interdiction can devolve into a mere
    encounter following a traffic stop when police continue to
    question the person after the reason for the traffic stop
    has concluded. The Supreme Court in Strickler ruled that
    after police finish processing a traffic infraction, the
    determination of whether a continuing interdiction
    constitutes a mere encounter or a constitutional seizure
    centers upon whether an individual would objectively
    believe that he was free to end the encounter and refuse a
    request to answer questions.
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    Our Supreme Court adopted a totality-of-the-
    circumstances approach. It delineated a non-exclusive list
    of factors to be used in making this assessment. Those
    factors include 1) the presence or absence of police
    excesses; 2) whether there was physical contact; 3)
    whether police directed the citizen’s movements; 4) police
    demeanor and manner of expression; 5) the location and
    time of the interdiction; 6) the content of the questions
    and statements; 7) the existence and character of the
    initial investigative detention, including its degree of
    coerciveness; 8) “the degree to which the transition
    between the traffic stop/investigative detention and the
    subsequent encounter can be viewed as seamless, . . .
    thus suggesting to a citizen that his movements may
    remain subject to police restraint,” and 9) whether there
    was an express admonition to the effect that the citizen-
    subject is free to depart, which “is a potent, objective
    factor.” Our Supreme Court also observed that when an
    individual has been subjected to a valid detention but
    police continue to engage the person in conversation, the
    person is less likely to reasonably believe that he is
    actually free to leave the scene.
    
    Kemp, 961 A.2d at 1253
    (citations omitted). Furthermore,
    [w]e are required to apply a “totality of the circumstances”
    test in assessing whether police had reasonable suspicion
    to conduct an investigatory detention.         Therefore, we
    overrule Ortiz and [Commonwealth v.] Johnson[, 
    833 A.2d 755
    (Pa. Super. 2003)] to the extent that they hold
    that facts gathered during a valid traffic stop cannot be
    utilized to justify an investigatory detention occurring after
    a police officer has indicated that a defendant is free to
    leave. Commonwealth v. Jacobs, 
    900 A.2d 368
    , 377 n.
    9 (Pa. Super. 2006) (Superior Court, sitting en banc, can
    overrule panel decision by three judges).
    
    Id. at 1260.
    In Commonwealth. v. Caban, 
    60 A.3d 120
    (Pa. Super. 2012), this
    Court found there was reasonable suspicion to justify an investigatory
    detention and opined:
    -9-
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    In the present case, Trooper Jones gave [Yashera
    Renee] Veras a citation for speeding, returned her license
    and insurance card, and told her that she was free to
    leave. As Veras returned to her car, Trooper Jones asked
    if she would answer a few more questions. At the start,
    she answered the Trooper’s questions, but then indicated
    that she “was ready to go.” As she returned to her car,
    Trooper Jones told her to “hold tight” while he questioned
    [Waldemar] Caban. Based upon this factual scenario, we
    conclude that Caban and Veras were subjected to an
    investigatory detention. . . .
    We also conclude, however, that the facts adduced by
    Trooper Jones by the time he told Veras to “hold tight”
    provided him with sufficient reasonable suspicion to justify
    the investigatory detention.       To establish reasonable
    suspicion, the officer must “articulate specific observations
    which, in conjunction with reasonable inferences derived
    from those observations, led him to reasonably conclude,
    in light of his experience, that criminal activity was afoot
    and that the person he stopped was involved in that
    activity.” To determine whether the officer had reasonable
    suspicion, the totality of the circumstances must be
    considered. In this regard, we must give “due weight ...
    to the specific reasonable inferences [the police officer] is
    entitled to draw from the facts in light of his experience.”
    *     *      *
    When considering the totality of the circumstances, we
    need not limit our inquiry to only those facts that clearly
    and unmistakably indicate criminal conduct.       Instead,
    “even a combination of innocent facts, when taken
    together, may warrant further investigation by the
    police officer.”
    
    Id. at 128-29
    (citations omitted and emphases added).
    In the case sub judice, the trial court opined:
    An interaction amounts to an investigatory detention
    where the officer, following a valid traffic stop, instructs
    the individual to exit the vehicle, issues a warning, tells the
    individual “to have a nice day,” allows the individual to
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    proceed back towards vehicle, and then subsequently re-
    engages the individual with further questioning.
    Therefore, based upon Kemp, in the case sub judice, the
    interaction amounted to an investigatory detention [9]
    where the Trooper, following a valid traffic stop, instructed
    the individual to exit the vehicle, issued a citation and
    warning, tells the driver that he is free to leave, allowed
    the individual to proceed back towards his vehicle, and
    then subsequently re-engaged the individual with further
    questioning.
    *     *      *
    The Trooper testified to reasonable suspicion beyond the
    original reasonable suspicion which led to the traffic stop.
    The Trooper provided the [c]ourt with unrebutted, credible
    testimony. The facts adduced by the Trooper during the
    valid traffic stop provided him with sufficient reasonable
    suspicion that criminal activity was afoot justifying the
    investigatory detention. The facts included:
    Initially, the Trooper noted that [Appellant] appeared
    extremely nervous; [his] hands were physically shaking
    when he handed over his documents to Trooper Colon.
    He barely made eye contact with the Trooper.
    [Appellant] provided Trooper Colon with a myriad of
    unsolicited information . . . .
    Trooper Colon found that there was a discrepancy
    between the address listed on the vehicle’s registration,
    the address on [Appellant’s] license, and the
    information [Appellant] provided him about where he
    lived. Further, [Appellant] also stated that he was
    unaware that the registration for the vehicle was
    expired.
    9
    We note Appellant makes the following statement: “In the present case,
    the suppression court properly denied the second re-engagement with
    [A]ppellant as an investigative detention.    (Trial Ct. Opinion P. [)]”
    Appellant’s Brief at 10.
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    During their exchange, [Appellant] asked Trooper Colon
    if he could light a cigarette, to which Trooper Colon
    replied yes.
    During the initial traffic stop, the Trooper learned that
    [Appellant] had an extensive criminal history . . . .
    When the Trooper asked [Appellant] if he had ever been
    arrested before, he replied that his most recent arrest
    was in 2008 for a domestic charge.           The Trooper
    testified that [Appellant’s] RAP sheet established that
    [Appellant] was not being truthful. His most recent
    charge was from 2012 and did not involve a domestic
    charge. After re-engagement, [Appellant] continued to
    offer unsolicited information i.e., that he was the victim
    in the domestic charge and also that he was involved in
    a shooting and had to have a colostomy bag.
    While he was writing out the citation and the warning in
    his patrol vehicle, Trooper Colon noticed that
    [Appellant] was staring back at him the entire time. . . .
    [Appellant] asked Trooper Colon several questions
    regarding how to remedy the expired registration and
    where to take the citation, and how to take care of
    paying for it. [Appellant] also told Trooper Colon that
    he was on a payment plan, and that was why his license
    was suspended, which conflicted with what [Appellant]
    had said earlier in the encounter, about not knowing
    that his license was suspended.
    Trial Ct. Op. at 6-8. The trial court concluded that, based upon the totality
    of the circumstances, “Trooper Colon had reasonable suspicion that criminal
    activity was afoot, justifying the investigatory detention.” 
    Id. at 8.
    We discern no abuse of discretion or error of law by the trial court in
    denying the motion to suppress. See 
    Jones, 121 A.3d at 526-27
    . Based
    upon the totality of the circumstances, the Trooper had reasonable suspicion
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    to justify the search of Appellant’s vehicle. See 
    Caban, 60 A.3d at 128-29
    ;
    
    Kemp, 961 A.2d at 1260
    . Accordingly, we affirm the judgment of sentence.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/22/2015
    - 13 -
    

Document Info

Docket Number: 3495 EDA 2014

Filed Date: 12/22/2015

Precedential Status: Non-Precedential

Modified Date: 12/13/2024