Com. v. Saunders, O. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
OMAR SAUNDERS :
:
Appellant : No. 2192 EDA 2021
Appeal from the Judgment of Sentence Entered September 28, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000208-2021
BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED DECEMBER 13, 2022
Omar Saunders appeals from the judgment of sentence of three and
one-half to seven years of incarceration imposed after the trial court convicted
him of three violations of the Uniform Firearms Act. We affirm.
On November 18, 2020, Philadelphia Police Officer Matthew Ibbotson
was patrolling in the high crime area of the 2500 block of West Indiana Avenue
in the city of Philadelphia with his partner, Officer Washington.1 See N.T.
Suppression Hearing, 5/20/21, at 7-11. At 6:55 p.m., he spotted an illegally
parked silver Honda vehicle with heavily tinted windows. Id. at 8-11-12. As
he drove closer, the vehicle pulled out in front of him, making a right turn
onto Indiana Avenue without utilizing a turn signal. Id. Accordingly,
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* Retired Senior Judge assigned to the Superior Court.
1 Officer Washington’s full name does not appear in the certified record.
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Officer Ibbotson initiated a traffic stop for three violations of the Motor Vehicle
Code: illegal parking, unlawfully tinted windows, and failure to use a turn
signal.2 Id. The vehicle immediately pulled over.
Officer Ibbotson approached the vehicle, found that Appellant was the
sole occupant, informed him of the above-described traffic code violations,
and requested his license and proofs of registration and insurance. Id. at 12.
Appellant asked for permission to retrieve his license from his pocket, which
Officer Ibbotson granted after Appellant stated that he did not have any
weapons in the vehicle. Id. at 12-13. Believing that Appellant had no
weapons in the vehicle, Officer Ibbotson told Appellant that “he [could] move
about the car and get the documents that [he] asked him for.” Id. at 13. At
this time, Appellant reached over with his right arm to the glove box area
while simultaneously dropping his left arm down by his feet and moving it in
a motion that led the officer to believe that Appellant was “pushing
something.” Id. at 14. In response, Officer Ibbotson repositioned himself to
the front of the car, where he shined his flashlight through the windshield. Id.
at 13, 28. From this vantage point, Officer Ibbotson observed the handle of
a gun protruding from under Appellant’s seat, next to Appellant’s left hand.
Id. at 15, 28.
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2 Officers Ibbotson and Washington were both wearing body cameras, which
captured their entire interaction with Appellant. This footage was introduced
as Commonwealth exhibits during the suppression hearing. See N.T.
Suppression Hearing, 5/20/21, at 18-23, 31.
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Since Appellant had misled the officers about the presence of the firearm
in the vehicle and his left hand had been observed next to it, Officer Ibbotson
became concerned for his and his partner’s safety. Id. at 16. Accordingly,
he used a hand signal to warn his partner about the risk while asking Appellant
to turn off and exit the vehicle. Id. Once Appellant complied, Officer Ibbotson
frisked Appellant, placed him in handcuffs, and retrieved Appellant’s license
from his wallet. Id. After Appellant was handcuffed, Officer Ibbotson asked
him if he had a firearm permit. Id. at 29-30. Appellant responded that he
did not, and the officers placed Appellant in the back of their vehicle “for officer
safety” while they continued their investigation. Id. at 17, 23.
Officer Ibbotson retrieved the loaded black Taurus PT840 40-caliber handgun
from Appellant’s vehicle. The officer also ran a check to confirm that Appellant
did not have a firearm permit, which also led to the discovery that the weapon
was stolen. Id. at 24, 29-30. As a result of these findings, Officer Ibbotson
placed Appellant under arrest and charged him with possession of a firearm
prohibited, carrying a firearm without a license, and carrying a firearm on a
public street in Philadelphia.
On April 16, 2021, Appellant filed an omnibus pretrial motion seeking
suppression of the firearm on the grounds that the evidence was obtained in
violation of his United States and Pennsylvania constitutional rights. See
Omnibus Motion, 4/16/21, at 1. On May 20, 2021, the trial court held a
hearing on the motion. Before any evidence was introduced, the trial court
instructed defense counsel to state the grounds for his motion. In response,
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trial counsel cited to Commonwealth v. Alexander, 243 A.3d 177 (Pa.
2020), arguing “that the officers did [not] have reasonable suspicion to pull
the car over, that the stop was prolonged, and that under the line of cases the
officer did not have the legal justification to reach into the car and seize the
firearm at the time that he did.”3 N.T. Suppression Hearing, 5/20/21, at 6.
Officer Ibbotson testified consistently with the above summarized facts.
At the conclusion of the hearing, defense counsel argued that the
warrantless search was illegal pursuant to Alexander since there were no
exigent circumstances established. Id. at 33-37. When questioned about the
applicability of the plain view exception to the warrant requirement, defense
counsel claimed that post-Alexander, the plain view exception no longer gave
officers permission to conduct warrantless searches of vehicles absent exigent
circumstances.4 Id. at 39-45. The Commonwealth disputed defense counsel’s
interpretation of Alexander, contending that the plain view doctrine was
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3 In Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020), our Supreme
Court reaffirmed that the “Pennsylvania constitution requires both a showing
of probable cause and exigent circumstances to justify a warrantless search
of an automobile.” Id. at 181 (emphasis added). In reaching this conclusion,
the Court overruled Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), which
adopted the federal automobile exception to the warrant requirement in
Pennsylvania, allowing police to conduct a warrantless vehicle search based
solely on probable cause with no exigency required.
4 The plain view doctrine allows the admission of evidence seized without a
warrant when: (1) an officer views the object from a lawful vantage point;
(2) it is immediately apparent to him that the object is incriminating, and (3)
the officer has lawful right of access to the object. See Commonwealth v.
Collins, 950 A.2d 1041, 1045 (Pa.Super. 2008) (en banc).
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unaffected by that holding. Id. at 56. In the Commonwealth’s view, the
requirements of the plain view exception were met, and the weapon was
lawfully recovered. Id. at 56-57. The trial court continued the hearing so
that both sides could submit case law and briefs. Appellant submitted a brief
reiterating the arguments he made at the hearing. See Letter Brief, 6/14/21,
at 2-8.
On June 17, 2021, the trial court reconvened the suppression hearing
and denied the suppression motion, explaining that it found Officer Ibbotson’s
testimony credible and that it agreed with the Commonwealth that Alexander
did not alter the plain view exception to the warrant requirement. See N.T.
Suppression Hearing, 6/17/21, at 4-6, 8. Applying the plain view exception
to the warrant requirement, the trial court held that the firearm was legally
retrieved since Officer Ibbotson observed the contraband in plain view from a
lawful vantage point. Id. at 8.
On August 3, 2021, Appellant proceeded to a non-jury trial, at which he
was convicted of the aforementioned firearms offenses. On September 28,
2021, Appellant was sentenced to an aggregate sentence of three and one
half to seven years of imprisonment. This timely appeal followed. Both
Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925.
Appellant raises the following issue for our review: “Did not the trial
court err in denying Appellant’s motion to suppress a firearm that was (1) the
fruit of an illegal arrest and (2) seized from Appellant’s car without a warrant
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where there were no exigent circumstances or right of access?” Appellant’s
brief at 3.
In his first claim, Appellant contests the legality of his arrest, contending
he was illegally placed under arrest the moment he exited the vehicle and was
placed in handcuffs. See Appellant’s brief at 12. Since the investigation into
the legality of Appellant’s possession of the firearm continued after he exited
the vehicle, Appellant contends that the officers arrested him before they
obtained the necessary probable cause to justify the arrest. Id. at 15-16.
Relying on Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), Appellant
contends that Appellant’s possession of a firearm alone was insufficient to
justify arresting Appellant.5 Id. at 14. Meanwhile, the Commonwealth
contends that Appellant’s first argument is waived, since he argued that he
was subject to an illegal arrest for the first time on appeal. See
Commonwealth’s brief at 7. We are constrained to agree with the
Commonwealth.
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5 In Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), our Supreme Court
held that because a firearm may lawfully be carried and, alone, is not
suggestive of criminal activity, police officers may not infer criminal activity
solely from an individual’s possession of a concealed firearm in public. The
Court explained that possession of a firearm should be but one factor
considered under the totality of the circumstances presented. Id. at 939-40.
However, Hicks did not involve an otherwise valid traffic stop during which
the officers observed a firearm in plain view immediately after the defendant
had claimed not to possess such a weapon. Instead, the Hicks Court reviewed
the possession of a firearm as an antecedent justification for a valid stop. Id.
at 934.
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It is well-established that “issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
This rule applies equally to appellants who raise “a new and different theory
of relief for the first time on appeal.” Commonwealth v. McFalls, 251 A.3d
1286, 1293 (Pa.Super. 2021). Our review of the certified record confirms that
Appellant did not present the suppression court with an argument that the
officers obtained his firearm through an illegal arrest. Accordingly, he raised
this theory of relief for the first time on appeal and it is waived. See
Commonwealth v. Prizzia, 260 A.3d 263, 270-71 (Pa.Super. 2021) (finding
a suppression theory waived where the appellant failed to raise it in her
pretrial motions or at the suppression hearing.).6
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6 Even if properly preserved, Appellant’s argument that because he was
handcuffed, he was under arrest, would not entitle him to relief. It is
undisputed that Appellant was asked to exit the vehicle in the midst of a lawful
traffic stop. See Appellant’s brief at 10 (“Appellant was subjected to a lawful
traffic stop”). It is well-established that officers may direct the movements of
the driver or occupants of a vehicle during a valid traffic stop. See
Commonwealth v. Wright, 224 A.3d 1104, 1109 (Pa.Super. 2019). Herein,
the officers continued to investigate the firearm after Appellant exited the
vehicle, frisking him to retrieve his driver’s license and insuring whether he
could lawfully possess a firearm. Thus, Appellant was initially subjected to an
investigative detention that escalated to an arrest after the officers learned
that Appellant could not legally possess the recovered firearm. See
Commonwealth v. Rosas, 875 A.2d 341, 349 (Pa.Super. 2005) (holding that
the defendant was not under arrest despite the officer handcuffing him,
informing him he was suspected of illegal activity, and moving him away from
his vehicle because the officer was still investigating Appellant’s identity.).
Furthermore, “an officer’s use of handcuffs to detain an individual during an
investigative detention for his or her safety does not necessarily escalate the
encounter into a custodial arrest.” Interest of M.W., 194 A.3d 1094, 1099
(Footnote Continued Next Page)
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In his second claim, Appellant relies upon Alexander to attack the trial
court’s application of the plain view exception to the warrant requirement.
See Appellant’s brief at 19-22. Appellant acknowledges that, in
Commonwealth v. McMahon, 280 A.3d 1069, 1074 (Pa.Super. 2022), we
recently rejected the precise claim he advances by holding that Alexander
did not supplant the plain view exception for automobiles. See Appellant’s
Reply Brief at 2-3. Appellant nonetheless suggests that we should overrule or
overlook this binding precedent and apply Alexander as requiring the
Commonwealth to demonstrate exigent circumstances before invoking the
plain view exception in the context of automobile searches. Id. at 6-13.
Meanwhile, the Commonwealth contends that McMahon is directly on point
and should control our analysis of this issue. See Commonwealth’s brief at
18-21. We agree with the Commonwealth.
In McMahon, police officers encountered the defendant on a routine
patrol. McMahon, supra at 1070. Both officers were aware that the
defendant did not possess a valid driver’s license. Id. at 1070-71.
Consequently, they conducted a traffic stop of defendant. Id. at 1071. As
they approached the vehicle, the officers smelled marijuana emanating from
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(Pa.Super. 2018) (concluding that no arrest occurred where the defendant
was frisked, handcuffed, and placed in the back of a police cruiser while police
investigated if he was driving a stolen vehicle). Herein, the officers were
concerned for their safety and continued to investigate the firearm after
Appellant exited the vehicle, frisking him to retrieve his driver’s license and
insuring whether he could lawfully possess a firearm. Thus, Appellant was
also initially lawfully detained due to valid safety concerns. Id.
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the vehicle and observed what they believed were two burnt marijuana
cigarettes in the center cupholder. Id. The defendant was removed from the
car, initially detained, and later arrested after a search of the vehicle yielded
three bags of marijuana in the center console. Id.
The defendant filed an omnibus pretrial motion to suppress and the trial
court granted his motion with regard to the drugs seized from the center
console pursuant to Alexander. Id. at 1072. However, the trial court denied
suppression of the marijuana cigarettes, determining that the items were
found in plain view. Id. The defendant was convicted and appealed the denial
of his suppression motion. Id. Relying on Alexander, the defendant
contended that the trial court erroneously applied the plain view doctrine
because the Commonwealth did not establish that any relevant exigency
applied. We disagreed and affirmed the trial court’s order, finding that
Alexander addressed the automobile exception to the warrant requirement
and did not involve the plain view exception. Id. at 1073-74. After reviewing
the application of the plain view exception to the facts, we concluded that the
trial court correctly determined that the police had a lawful right of access to
the marijuana cigarettes and the seizure was lawful. Id. at 1074.
Herein, Appellant advances the same argument that we rejected in
McMahon, that Alexander imported an exigency requirement into the plain
view doctrine. See Appellant’s brief at 22-27. Accordingly, McMahon
controls and no relief is due on Appellant’s second issue. See
Commonwealth v. Harris, 269 A.3d 534, 539 (Pa.Super. 2022) (“a prior
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published opinion issued by a panel of this Court constitutes binding
precedential authority”); see also Commonwealth v. Beck, 78 A.3d 656,
659 (Pa.Super. 2013) (“A panel [of this Court] is not empowered to overrule
another panel of the Superior Court.”) (citation omitted).
Appellant also argues that the Commonwealth failed to establish the
requirements of the plain view exception. See Appellant’s brief at 22. We
find this argument unavailing. In order for an item to be seized by law
enforcement pursuant to the plain view doctrine it must satisfy three criteria:
(1) the police must be at a lawful vantage point, (2) the incriminating nature
of the object must be immediately apparent, and (3) the police must have a
lawful right of access to the object. See Commonwealth v. Collins, 950
A.2d 1041, 1045 (Pa.Super. 2008) (en banc).
Appellant does not dispute the first two prongs of the plain view test.
See Appellant’s brief at 23 n. 6 (“Appellant here does not dispute that the first
two prongs were met”). Accordingly, we find that the evidence established
that the officer viewed the firearm from a lawful vantage point during a valid
traffic stop and that the incriminating nature of the firearm was immediately
apparent. See N.T. Suppression Hearing, 5/20/21, at 12-13, 15-16. With
regard to the final prong, we find that the officer had a lawful right to access
the interior of Appellant’s vehicle after Appellant lied about the presence of
the firearm, was observed attempting to hide it, and admitted that he did not
possess a valid firearm permit. Id. at 16-17. These factors combined to
create probable cause suddenly and without any advance warning that
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Appellant or his car would be the target of a police investigation. See
McMahon, supra at 1074 (finding the officer had the lawful right of access
to the marijuana cigarettes observed in plain view where Appellant was under
arrest and the officers had no “advance notice and opportunity to obtain a
warrant” since they observed the drugs while in the midst of conducting a
valid traffic stop). Therefore, since Officer Ibbotson “lacked advance notice
and an opportunity to obtain a warrant” before commencing a search, he had
a lawful right of access to the interior of Appellant’s vehicle to recover the
evidence that was lying in plain view and, thereby, secure officer safety. Id.;
see also Commonwealth v. Smith, ___ A.3d ___, 2022 Pa. Super. 187,
2022 WL 16704701 (Pa.Super. November 4, 2022) (applying McMahon and
finding the plain view exception applied where, following a motor vehicle stop,
a firearm was observed and retrieved from the back seat of the defendant’s
car).
Consistent with the foregoing, we conclude that the seizure of the
firearm was lawful. Thus, the trial court did not err when it denied suppression
of the firearm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2022
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