Com. v. Brown, R. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
RAUL BROWN,
Appellant : No. 1473 EDA 2018
Appeal from the Judgment of Sentence April 18, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000415-2017
BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED JULY 23, 2019
Raul Brown (Appellant) appeals from the judgment of sentence imposed
after the trial court convicted him of persons not to possess firearms.' After
careful consideration, we affirm.
The trial court summarized the relevant facts of this case as follows:
On November 8, 2016, at about 8:30 p.m., Philadelphia Police
Officers Michael Inemer and William Barr were on routine patrol
in the area of the 600 block of East Ontario Street in Philadelphia
when they observed a vehicle driven by Appellant leave a parking
space and travel east on Ontario Street. The officers conducted a
traffic stop of the vehicle because its headlights and tail lights
were off when it left the parking space and entered travel. The
officer testified that the vehicle had an unusual amount of air
fresheners in it and, when asked for paperwork, Appellant could
only produce the title for the vehicle and his driver's license.
Since Appellant was unable to produce all of the required
paperwork, Officer Barr asked Appellant if he and his partner could
search the vehicle. Appellant stated that he was the owner of the
' 18 Pa.C.S.A. § 6105(a)(1).
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vehicle, having purchased it the previous day. Appellant verbally
consented to the search and signed a consent form. The officers
then searched the vehicle and, in its trunk, Officer Barr recovered
a .9 millimeter Smith and Wesson semiautomatic handgun and
loose bullets in some sort of a belt. The firearm was placed on a
property receipt. Appellant did not have a license to possess a
firearm and had prior convictions that made him ineligible to do
so.
While Appellant was incarcerated, he made a telephone call
which was recorded by prison authorities. During the call,
Appellant stated, "I did this. I put myself in here. I know better.
I take the majority of this blame. I didn't have to live like this."
The tape was admitted into evidence.
Trial Court Opinion, 9/27/18, at 2-3 (footnote and record citations omitted).
On September 28, 2017, Appellant appeared before the [trial
court] for a Motion to Suppress a firearm recovered by police in
the trunk of a car that Appellant was driving. At the conclusion of
the hearing, the [trial court] denied Appellant's motion and a trial
was held on February 7, 2018 . ., sitting without a jury. At the
.
conclusion of the trial, [the trial court] found Appellant guilty of
the crime of Possession of Firearm by a Prohibited Person, 18
Pa.C.S.[A.] § 6105[(a)(1)].
On April 18, 2018, [the trial court] imposed a sentence of five
to ten years [of] incarceration on the Possession of Firearm by a
Prohibited Person conviction. On May 16, 2018, Appellant filed a
notice of appeal followed by a counseled court -ordered Pa.R.A.P.
1925(b) Statement of Matters raised on Appeal.
Id. at 1-2.
On appeal, Appellant presents the following issue for review:
Did the [t]rial [c]ourt err by denying Appellant's Motion to
Suppress Physical Evidence (i.e. the gun found in the trunk of the
car being driven by Appellant), where the evidence did not
establish that his consent to search was obtained voluntarily and
in accordance with lawful police procedure or that Appellant's
vehicle was subject to impoundment and an inventory search?
Appellant's Brief at 3.
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Our standard of review is as follows:
[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). Importantly, our scope of review from a suppression ruling is limited
to the evidentiary record that was created at the suppression hearing. In re
L..7., 79 A.3d 1073, 1087 (Pa. 2013).
"The Fourth Amendment of the Federal Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect individuals from
unreasonable searches and seizures." Commonwealth v. Walls, 53 A.3d
889, 892 (Pa. Super. 2012). As this Court has explained:
A search conducted without a warrant is constitutionally
impermissible unless an established exception applies.
Commonwealth v. Slaton, 608 A.2d 5, 8-9 ([Pa.] 1992). A
consensual search is one such exception, and the central inquiries
in consensual search cases entail assessment of the constitutional
validity of the citizen/police encounter giving rise to the consent,
and the voluntariness of the consent given. [Commonwealth v.
Cleckley, 738 A.2d 427, 433 (Pa. 1999)]. To establish a valid
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consensual search, the Commonwealth must first prove that the
individual consented during a legal police interaction.
Commonwealth v. Strickler, [] 757 A.2d 884, 889 ([Pa.] 2000).
Where the interaction is lawful, the voluntariness of the consent
becomes the exclusive focus. Id.; Commonwealth v. Acosta,
815 A.2d 1078, 1083 (Pa. Super. 2003) (en banc).
Commonwealth v. Randolph, 151 A.3d 170, 176-77 (Pa. 2016).
"To secure the right of citizens to be free from such [unreasonable]
intrusions, courts in Pennsylvania require law enforcement officers to
demonstrate ascending levels of suspicion to justify their interactions with
citizens as those interactions become more intrusive." Commonwealth v.
Pratt, 930 A.2d 561, 563 (Pa. Super. 2007). Courts in this Commonwealth
have recognized three types of interactions between the police and a citizen:
a mere encounter, an investigative detention, and a custodial detention.
A mere encounter between police and a citizen need not be
supported by any level of suspicion, and carr[ies] no official
compulsion on the part of the citizen to stop or to respond. An
investigatory stop, which subjects a suspect to a stop and a period
of detention . . requires a reasonable suspicion that criminal
.
activity is afoot. A custodial search is an arrest and must be
supported by probable cause.
Commonwealth v. Newsome, 170 A.3d 1151, 1154 (Pa. Super. 2017)
(citation omitted).
Appellant does not dispute that Officers Inemer and Barr had probable
cause to stop Appellant's vehicle for violations of the Pennsylvania Vehicle
Code. Instead, Appellant argues that he did not voluntarily consent to the
officers' search of the vehicle. Specifically, Appellant contends that his
consent to search his vehicle was not voluntary because he did not give it until
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the officers placed him in the back of a police vehicle. Appellant further asserts
that Officer Barr was unable to specify precisely when and where Appellant
gave consent. Appellant argues that Officer Barr conceded that he altered the
time written on the consent to search form.
Regarding consent to searches, this Court has stated:
The Commonwealth bears the burden of proving that the
defendant consented to a warrantless search. See
Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa. Super.
2003) (en banc). To establish a voluntary consensual search, the
Commonwealth must prove "that a consent is the product of an
essentially free and unconstrained choice - not the result of
duress or coercion, express or implied, or a will overborne - under
the totality of the circumstances." Strickler, 757 A.2d at 901.
Randolph, 151 A.3d at 179.
While there is no hard and fast list of factors evincing
voluntariness, some considerations include: 1) the defendant's
custodial status; 2) the use of duress or coercive tactics by law
enforcement personnel; 3) the defendant's knowledge of his right
to refuse to consent; 4) the defendant's education and
intelligence; 5) the defendant's belief that no incriminating
evidence will be found; and 6) the extent and level of the
defendant's cooperation with the law enforcement personnel.
Commonwealth v. Miller, 186 A.3d 448, 451 (Pa. Super. 2018) (citation
omitted), appeal denied, 199 A.3d 858 (Pa. 2018).
In concluding that Appellant consented to the search, the trial court
explained:
After Appellant stopped, Officer Barr observed that the vehicle
had an unusual amount of air fresheners on the dashboard. In
the officer's experience, air fresheners are often used to mask the
odor of narcotics. (N.T.[,] 9/28/17, [at] 11). Appellant also did
not have paperwork for the vehicle other than the title. As such,
the officers decided to Live Stop the vehicle. ([Id. at] 12, 14).
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The police asked Appellant for permission to search the car and
he gave both oral and written signed consent to do so after being
advised several times that he was not obliged to give such
consent. ([Id. at] 11-12, 14-15).
Trial Court Opinion, 9/27/18, at 5.
Based on our review of the certified record, particularly the transcript of
Appellant's suppression hearing, we conclude that the trial court accurately
summarized the evidence presented at the hearing. Notably, Officer Barr's
testimony reveals that, contrary to Appellant's assertion, the officers did not
place Appellant into the back of their police vehicle until after Appellant
consented to the search of his vehicle. N.T., 9/28/17, at 21. Although the
record is unclear as to precisely when during the stop Appellant consented to
the search, the record nevertheless reflects that Appellant consented, both
orally and in writing, to the search of his vehicle prior to the officers placing
him in the back of their vehicle and prior to the search. Id. Moreover, the
record contains no evidence that Officers Inemer and Barr used duress or
coercive tactics to obtain Appellant's consent.
Consistent with the foregoing, the trial court did not abuse its discretion
in determining that Appellant consented to the search of his vehicle. See
Randolph, 151 A.3d at 179. We thus conclude that the trial court did not err
in denying Appellant's suppression motion.
Judgment of sentence affirmed.
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 7/23/19
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