Com. v. McKinley, S. ( 2015 )

J-A23034-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SEAN DONTAE MCKINLEY
Appellant No. 1451 WDA 2014
Appeal from the Judgment of Sentence August 4, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008514-2013
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 24, 2015
Appellant, Sean Dontae McKinley, appeals from the judgment of
sentence entered in the Allegheny County Court of Common Pleas, following
his jury trial convictions of persons not to possess a firearm, escape,
carrying a loaded weapon, possession of a controlled substance, possession
or distribution of marijuana, possession of drug paraphernalia, and a
summary traffic (faulty rear lighting) violation.1 We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
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1
18 Pa.C.S.A. §§ 6106(a)(1), 5121(a), 6106.1(a); 35 P.S. §§ 780-
113(a)(16), (31), (32); 75 Pa.C.S.A. § 4303(b), respectively.
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restate them.2
Appellant raises the following issue for our review:
DID THE TRIAL COURT ERR WHEN IT DENIED
[APPELLANT’S] MOTION TO SUPPRESS THE EVIDENCE
FOUND IN HIS JEEP GRAND CHEROKEE BECAUSE THE
SEARCH WAS UNREASONABLE, WENT BEYOND THE SCOPE
OF AN INVENTORY SEARCH, AND WAS DONE FOR THE
SOLE PURPOSE OF INVESTIGATION, IN VIOLATION OF
THE FOURTH AMENDMENT OF THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 8 OF THE
PENNSYLVANIA CONSTITUTION?
(Appellant’s Brief at 8).
On appeal, Appellant argues the sole motive for the inventory search
of his vehicle was to find incriminating evidence. Appellant claims the record
is devoid of any document showing the police conducted an “inventory” of
the vehicle. Appellant asserts that after the officer smelled marijuana, the
officer undoubtedly suspected the vehicle contained other drug evidence and
the search of the vehicle could not be classified as simply an inventory
search. Appellant further avers the scope of the search was unreasonable
because the officers found the shotgun under the back seat, an area where
nobody would store belongings of value for purposes of an inventory.
Appellant concludes the court should have suppressed the evidence obtained
as a result of the vehicle search. We disagree.
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2
We make one small correction to the trial court opinion at page 1. The
court held the suppression hearing on December 18, 2013, and denied relief
on the same date.
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We review the denial of a suppression motion as follows:
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to
determining whether the factual findings are supported by
the record and whether the legal conclusions drawn from
those facts are correct.
[W]e may consider only the evidence of the
prosecution 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 record
supports the findings of the suppression court, we
are bound by those facts and may reverse only if the
court erred in reaching its legal conclusions based
upon the facts.
Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en
banc) (internal citations and quotation marks omitted). “It is within the
suppression court’s sole province as factfinder to pass on the credibility of
witnesses and the weight to be given their testimony.” Commonwealth v.
Clemens, 66 A.3d 373, 378 (Pa.Super. 2013) (quoting Commonwealth v.
Gallagher, 896 A.2d 583, 585 (Pa.Super. 2006)).
Nevertheless, “appellate review of an order denying suppression is
limited to examination of the precise basis under which suppression initially
was sought; no new theories of relief may be considered on appeal.”
Commonwealth v. Little, 903 A.2d 1269, 1272-73 (Pa.Super 2006).
“[T]he failure to raise a suppression issue prior to trial precludes its litigation
for the first time at trial, in post-trial motions or on appeal.”
Commonwealth v. Douglass, 701 A.2d 1376, 1378 (Pa.Super. 1997).
Instantly, in Appellant’s motion to suppress, he argued the police
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officer acted without a search warrant, Appellant was not under arrest, no
exigent circumstances existed to allow the vehicle inventory search,
Appellant did not consent to the search, and the items taken from the
vehicle and his person were seized in violation of the United States and
Pennsylvania Constitutions. At the suppression hearing, Appellant argued he
should not have been asked to step out of the vehicle, because the officer
had no reasonable suspicion of criminal activity, even after Appellant
admitted he had drugs on his person. Appellant also argued the officer
should have obtained a warrant to search the vehicle and should not have
searched the vehicle at the scene without a warrant. On appeal, Appellant
raises an entirely new claim that the search was unreasonable because it
exceeded the scope of an inventory search and was done for the sole
purpose of investigation. Appellant did not contest in his motion to suppress
or at the suppression hearing the reasonableness, scope, and sole purpose
of the inventory search as investigative. Therefore, his issue on appeal is
waived.
Moreover, even if Appellant had properly preserved his claim, we
would affirm on the basis of the trial court’s opinion. (See Trial Court
Opinion, filed March 20, 2015, at 3-5) (finding: officer testified Appellant
was under arrest and car he was driving was partially on roadway and would
have to be towed; officer followed municipal policy regarding inventory
searches and did not exceed scope of search; in conducting inventory
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search, officer observed dislodged rear seat that appeared to be blocked by
something underneath; upon inspection, officer and his partner found
shotgun wrapped in t-shirt blocking seat from upright position; police
discovered weapon as part of police caretaking function, not investigative
function; court properly denied motion to suppress). See Commonwealth
v. Chambers, 920 A.2d 892 (Pa.Super. 2007) (reiterating general rule that
inventory search of impounded vehicle is reasonable if conducted under
standard police procedures, in good faith, and not for sole purpose of
investigation). Accordingly, we affirm the judgment of sentence. See
generally In re K.L.S., 594 Pa. 194, 197 n.3, 934 A.2d 1244, 1246 n.3
(2007) (stating trial court order or judgment is more properly “affirmed,”
when appellant has failed to preserve issues for appeal).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2015
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