Com. v. Boyd, J. ( 2022 )

J-A07038-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMIL BOYD :
:
Appellant : No. 557 EDA 2021
Appeal from the Judgment of Sentence Entered February 9, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007878-2018
BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED AUGUST 5, 2022
Appellant, Jamil Boyd, appeals from the judgment of sentence entered
in the Philadelphia County Court of Common Pleas, following his convictions
for persons not to possess firearms and carrying firearms without a license.1
For the following reasons, we vacate the judgment of sentence and remand
for further proceedings.
In its opinion, the trial court set forth the relevant facts of this case as
follows:
On the evening of August 17, 2018, [Appellant] was driving
a vehicle on or about Germantown Avenue in the city and
county of Philadelphia, Pennsylvania. Philadelphia Police
Officers Thomas Lacorte and David Dohan stopped the
vehicle for a traffic violation after witnessing [Appellant]
proceed through a steady red light at the intersection of
Germantown Avenue and Chelten Avenue. Officer Lacorte
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1 18 Pa.C.S.A. §§ 6105 and 6106, respectively.
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approached the driver’s side door of the vehicle and asked
for [Appellant’s] license, insurance, and vehicle registration.
[Appellant] stated he did not have any identification upon
his person, nor did he have paperwork for the vehicle. When
Officer Lacorte asked [Appellant] his name, he stated that
his name was Saleem Boyd and gave an incorrect birthdate.
Officers Lacorte and Dohan stepped back from the vehicle
to the patrol vehicle and ran the name “Saleem Boyd”
through both the Philadelphia Crime Information Center
(PCIC) and the National Crime Information Center (NCIC)
systems. Saleem Boyd was listed as an alias of Jamil Boyd.
Upon running the name Jamil Boyd through both PCIC and
NCIC, two warrants appeared: one from Delaware County
and one from Montgomery County. Officers Dohan and
Lacorte then returned to the driver side of the vehicle to
inform [Appellant] he had two warrants and that he was
under arrest.
[Appellant] stepped out of the vehicle and Officer Lacorte
started to place [Appellant’s] left hand in handcuffs. Officer
Dohan grabbed [Appellant’s] right hand. [Appellant] then
pushed off the vehicle and started running southbound on
Germantown Avenue. Officer Dohan held [Appellant’s] shirt
tail as he ran. [Appellant] fell over the high curb as Officer
Dohan pushed him from behind and [Appellant] hit the
ground. Four of [Appellant’s] teeth were shattered as a
result of the fall. Officer Dohan then jumped on top of
[Appellant], followed by Officer Lacorte. [Appellant]
struggled, reached back, and grabbed Officer Lacorte’s
weapon, which was holstered on Officer Lacorte’s left hip.
[Appellant] started to remove the weapon from the holster
while shouting “I’m not going back to jail, I’m not going back
to jail. You’re gonna have to kill me. Just fuckin’ shoot me.
Shoot me. Kill me.” Officer Lacorte shouted, “Dave, he has
my gun, he has my gun.” The struggle lasted about two
minutes, until Officer Dohan tased [Appellant] two times.
The officers were then able to place [Appellant] in handcuffs
while he was still yelling and screaming. Philadelphia Police
Sergeant Ryan shackled [Appellant’s] legs. [Appellant] was
then placed in a patrol wagon and transported.
Officers Lacorte and Dohan then went back to [Appellant’s]
vehicle. Upon opening the door, the officers smelled a
strong odor of marijuana. On the passenger side of the
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vehicle was a black briefcase. Underneath the briefcase, the
officers found a silver and black Ruger 9-millimeter,
semiautomatic handgun loaded with one live round in the
chamber and thirteen live rounds in the magazine. The
firearm was placed on a Philadelphia Police Department
property receipt.
Underneath the firearm, the officers found a clear Ziploc bag
containing numerous alleged illegal narcotics, including pills,
a green weed substance, and a white powder substance.
The substances were field tested. Also, inside the Ziploc
bag were numerous unused clear jars. Also, in the vehicle
was a dog, which was transported to the Philadelphia Animal
Care and Control Association.
* * *
[Appellant] was arrested and charged with [various offenses
related to his possession of contraband]. On November 22,
2019, the motions court denied [Appellant’s] motion to
suppress evidence. On December 2, 2019, [Appellant] filed
a motion to reconsider the motion to suppress. On
December 5, 2019, the motions court denied [Appellant’s]
motion to reconsider.
On September 21, 2020, [Appellant’s] jury trial began.
* * *
On September 24, 2020, the jury returned a verdict of guilty
on the charge of [carrying a firearm without a license] and
a not guilty verdict on the charge of disarming law
enforcement officer. The jury was deadlocked on the
charges resist arrest and manufacture, delivery, or
possession with intent to manufacturer or deliver. The trial
court declared a mistrial on these two charges and the
Commonwealth later withdrew prosecution of these
charges. The Commonwealth also withdrew prosecution of
the carry firearms in public in Philadelphia charge. During
a stipulated waiver trial for the [persons not to possess a
firearm] charge, the trial court found [Appellant] guilty. A
pre-sentence investigation report was ordered, and a
sentencing hearing was scheduled….
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* * *
On February 9, 2021, [Appellant] was sentenced to eleven
and a half (11½) to twenty-three (23) months’ county
confinement followed by four (4) years’ reporting probation.
On March 10, 2021, [Appellant] filed a notice of appeal to
the Superior Court. On March 11,2021, the trial court filed
the [Pa.R.A.P.] 1925(b) order directing [Appellant] to file a
statement of errors complained of on appeal. On March 23,
2021, [Appellant] filed a request for extension of time to file
a statement of errors upon receipt of all notes of testimony.
On March 29, 2021, the trial court denied [Appellant’s]
request for extension of time as all notes of testimony were
available as of March 19, 2021. On April 1, 2021,
[Appellant] filed a statement of errors complained of on
appeal.
(Trial Court Opinion, filed May 25, 2021, at 2-4) (internal footnotes and some
capitalization omitted).
Appellant now raises two issues for this Court’s review:
Was the search of the automobile after [Appellant] was
arrested and in police custody illegal, as there was neither
probable cause to search nor a search warrant, as well as
no valid exigency, and both Federal and Pennsylvania law
do not permit a search of an arrestee’s car as an incident of
that arrest?
Did the trial court err when, in answering a question from
the jury, the court refused to instruct the jury that
[Appellant] had to be aware of the existence of the firearm
in order to be found guilty of possessing it, leaving the jury
with an incorrect understanding of the law?
(Appellant’s Brief at 5).
In his first issue, Appellant argues that police officers do not have free
rein to search an arrestee’s vehicle absent a warrant. Appellant asserts that
our Supreme Court’s recent decision in Commonwealth v. Alexander, ___
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Pa. ___, 243 A.3d 177 (2020), held that the Pennsylvania Constitution
mandates a showing of both probable cause and exigent circumstances to
justify a warrantless search of an automobile. Applying Alexander to the
facts of the instant case, Appellant contends that “there was no probable cause
to search the car, and there was neither a warrant nor exigent circumstances
justifying the absence of a warrant.” (Appellant’s Brief at 17). Under these
circumstances, Appellant concludes that police conducted an illegal search of
the vehicle, and the court should have granted his suppression motion. We
agree that some relief is required in light of the suppression court’s failure to
recognize the applicability of Alexander.
The following principles govern our review of an order denying a motion
to suppress:
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.
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Commonwealth v. Ford, 175 A.3d 985 (Pa.Super. 2017), appeal denied,
647 Pa. 522, 190 A.3d 580 (2018) (quoting Commonwealth v. Jones, 121
A.3d 524, 526-27 (Pa.Super. 2015)).
“At a suppression hearing, ‘the Commonwealth has the burden of
establishing by a preponderance of the evidence that the evidence was
properly obtained.’” Commonwealth v. Heidelberg, 267 A.3d 492, 499
(Pa.Super. 2021) (en banc) (quoting Commonwealth v. Galendez, 27 A.3d
1042, 1046 (Pa. Super 2011) (en banc)). “It is within the suppression court’s
sole province as factfinder to pass on the credibility of witnesses and the
weight to be given to their testimony. The suppression court is free to believe
all, some or none of the evidence presented at the suppression hearing.”
Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa.Super. 2003), appeal
denied, 577 Pa. 701, 847 A.2d 58 (2004) (internal citations omitted).
“Both the Fourth Amendment of the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution guarantee individuals
freedom from unreasonable searches and seizures.” Heidelberg, supra at
502 (quoting Commonwealth v. Newsome, 170 A.3d 1151, 1154
(Pa.Super. 2017)). “As a general rule, ‘a warrant stating probable cause is
required before a police officer may search for or seize evidence.’” Id.
(quoting Commonwealth v. Anderson, 40 A.3d 1245, 1248 (Pa.Super.
2012)). Regarding automobiles, “Article I, Section 8 affords greater protection
to our citizens than the Fourth Amendment, and … the Pennsylvania
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Constitution requires both a showing of probable cause and exigent
circumstances to justify a warrantless search of an automobile.” Alexander,
supra at ___, 243 A.3d at 181.
Additionally, we emphasize: “The general rule in Pennsylvania is that
appellate courts apply the law in effect at the time of appellate review.”
Passarello v. Grumbine, 624 Pa. 564, 601, 87 A.3d 285, 307 (2014). “This
means that we adhere to the principle that, a party whose case is pending on
direct appeal is entitled to the benefit of changes in law which occur before
the judgment becomes final.” Commonwealth v. Chesney, 196 A.3d 253,
257 (Pa.Super. 2018) (quoting Blackwell v. Com., State Ethics Com’n, 527
Pa. 172, 182, 589 A.2d 1094, 1099 (1991)).
Instantly, the court provided reasons in support of its decision to deny
Appellant’s suppression motion. In its opinion, the suppression court
reasoned that “[w]hile the Pennsylvania Supreme Court overruled its decision
in Commonwealth v. Gary, [625 Pa. 183, 91 A.3d 102 (2014)] in its decision
in [Alexander, supra], this incident occurred in 2018. Thus, the applicable
standard under Gary was that an automobile search did not require any
exigency beyond the inherent mobility of the motor vehicle.” (Suppression
Court Opinion, filed July 16, 2021, at 6) (internal footnote omitted). The court
concluded that “probable cause to search the vehicle arose prior to the officer’s
returning to the vehicle,” and police conducted a proper warrantless search.
(Id. at 7).
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Although the court recognized the existence of our Supreme Court’s
decision in Alexander, supra, it failed to apply the holding from that case to
the underlying facts. Because Appellant was entitled to the benefit of this
change in the law, which occurred before his judgment of sentence became
final, the court committed legal error by basing its decision on the pre-
Alexander standard. See Chesney, supra; Ford, supra. Complicating
matters further, the court’s decision to ignore the mandates of Alexander
resulted in a record that does not include findings of fact and conclusions of
law regarding the potential applicability of an exception to the warrant
requirement.
Accordingly, we vacate Appellant’s judgment of sentence and remand
for a new suppression hearing. At that time, the court can receive evidence
to determine whether any exceptions to the warrant requirement were
present. If the court decides to deny Appellant’s suppression motion, no new
trial will be necessary, and the court may reimpose Appellant’s judgment of
sentence. If the court decides to grant Appellant’s suppression motion, it shall
also grant him a new trial.2
Judgment of sentence vacated. Case remanded for further proceedings.
Jurisdiction relinquished.
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2 Due to our resolution of Appellant’s first issue, we need not address the
second issue raised on appeal. Nevertheless, Appellant may re-raise this issue
in a subsequent appeal in the event that the court reinstates the judgment of
sentence.
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Judge McLaughlin joins.
Judge Dubow did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2022
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