Com. v. Atkins, J. ( 2020 )

J-A18031-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERWAHN LEE ATKINS :
:
Appellant : No. 955 WDA 2019
Appeal from the Judgment of Sentence Entered June 5, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0008566-2018
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 23, 2020
Appellant Jerwahn Lee Atkins appeals from the judgment of sentence
imposed following his convictions for carrying a firearm without a license
(VUFA) and escape.1 Appellant argues that the trial court erred by denying
his suppression motion after police unlawfully detained him beyond the
timeframe necessary to complete the initial traffic stop. We affirm.
The trial court set forth the relevant facts as follows:
This matter arises out of [Appellant’s] arrest during a traffic stop
of a vehicle in which [Appellant] was a passenger. The vehicle
was stopped for a nonfunctioning taillight and the failure to have
required insurance. During the stop the officer[s] were concerned
about [Appellant’s] hand movements near his waistband. As the
vehicle could not be driven and was to be towed, the officers
ordered each of the occupants out of the vehicle. As [Appellant]
was exiting the vehicle the officers were concerned about his
behavior and instructed him to place his hands on the vehicle.
[Appellant] began to run and one of the officers grabbed at him
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1 18 Pa.C.S. §§ 6106(a)(1) and 5121(a), respectively.
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as he ran and [Appellant’s] shirt was pulled off and a gun dropped
from his waistband. [Appellant] filed a motion to suppress
alleging that the traffic stop had concluded at the time that
[Appellant] was ordered from the vehicle and there was no
reasonable suspicion or probable cause to further detain or search
him.
At the suppression hearing[,] the Commonwealth presented the
testimony of Officers Joshua Stinebaugh and Aaron Spangler of
the City of Pittsburgh Police Department. Officer Stinebaugh
testified that he and his training partner were on patrol in a
marked vehicle on May 30, 2018, when they effectuated a traffic
stop of a vehicle that had a burned out taillight. After running the
plate, it was determined that the vehicle’s license was suspended
as a result of the cancellation of insurance. As the officers
approached the vehicle[,] they noted that there were three
occupants, with [Appellant] being seated in the right rear
passenger’s seat. Officer Stinebaugh testified that while Officer
Spangler was checking the identification of the occupants of the
vehicle[,] he noted [Appellant’s] phone kept ringing or alerting
and [Appellant] was repeatedly putting his hands in his pocket and
wiping his palms on his thighs. Officer Stinebaugh testified that
[Appellant’s] movements made him nervous so he asked
[Appellant] to stop reaching into his pockets and eventually told
him to put his hands on the headrest of the seat in front of him.
However, [Appellant] kept reaching down around his waistband.
Officer Spangler, after checking the occupants’ identification,
returned to the vehicle and ordered the occupants of the vehicle
out of the vehicle as it was going to be towed. Stinebaugh testified
that the occupants were ordered to exit the vehicle one at a time,
with the driver first. When [Appellant] was instructed to exit the
vehicle [Appellant] stated that the right rear passenger’s door was
broken so Officer Stinebaugh signaled to Officer Spangler that
[Appellant] was coming out the rear driver side door. Officer
Stinebaugh testified that when [Appellant] exited the vehicle: “I
seen him take like a bladed stance as if he was about to take off.
Officer Spangler took notice and tried to grab him, and that’s when
a struggle ensued. One thing [led] to another, his shirt came off,
a gun fell and he took off.”
Officer Stinebaugh testified that the gun fell from [Appellant’s]
waistband when the struggle ensued between Officer Spangler
and [Appellant]. After the gun fell, Officer Spangler stood by the
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gun and Officer Stinebaugh pursued [Appellant] and apprehended
him.
On cross-examination[,] Officer Stinebaugh acknowledged that he
was wearing a body camera and that he approached the vehicle
on the passenger side and that his body camera captured his
interaction with [Appellant]. He acknowledged that the body
camera showed [Appellant’s] left arm resting on his knee and that
“throughout the video you see his arm come up sometimes” but
that “[i]t comes up and goes down, yes.” He also acknowledged
that the video shows Officer Spangler speaking to the driver and
informing him that “He’s seizing the vehicle because nobody can
drive it because the insurance is suspended.” He also testified
that the video shows [Appellant] asking Officer Spangler if he can
get out of the car and that [Appellant] is told, “No, not yet.” He
also acknowledged that the video did not show him telling
[Appellant] to take his hands away from his waist, to put his hands
on the headrest or that the phone was ringing. Officer Stinebaugh
testified that at 16:33:48 in the video it showed the initial point
“where I told him to put his hands up” which he did, and then he
dropped them, but he did not say anything about the headrest.
He also acknowledged that at 16:34:54 the video shows
[Appellant] beginning to flee.
The Commonwealth then called Officer [] Spangler who also
testified concerning the reason for the traffic stop and testified
that when he approached the vehicle he noted a strong odor of
marijuana coming from the vehicle. He testified that Officer
Stinebaugh informed him that
the rear passenger was refusing to comply with some of the
commands he giving was him, specifically about showing his
hands and that he kept grabbing at his waistband and that
Officer Stinebaugh told him a few times to keep his hands
up on the front seat of the vehicle which he did not comply.
[Officer Spangler] testified that [the officers] indicated that they
were going to remove the occupants from the vehicle and
[Appellant] slid across that back seat to get out on the driver’s
side and,
[a]s he was opening the door, I asked him to put his hands
up in the vehicle. He slowly started to but then stopped,
and he tensed up on me. That is why I went to grab him,
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put his hands up. He immediately pulled his hands down,
turned his stance away from me and started to flee in the
opposite direction. I tried to my grasp arms around him.
That day it was very hot. He actually slipped through my
arms, and his whole T-shirt came off in my hands, which we
preserved as evidence.
Officer Spangler also testified that as [Appellant] was running:
He was really grabbing at his waistband. I started yelling
commands for him to stop. Like I said, I was in full uniform.
At that time a black handgun fell out of his waistband and
hit the ground.
Officer Spangler testified on cross-examination that the report
prepared by Officer Stinebaugh indicated that he notified the
occupants of the vehicle that he smelled marijuana and he
believed that he had notified the driver of the vehicle that he
smelled marijuana. He acknowledged, however, that at the point
that he took the identification of the occupants of the vehicle his
vehicle’s dash camera did not record him stating that he smelled
marijuana. He also acknowledged that the dash camera did not
record Officer Stinebaugh telling him that [Appellant] was acting
“nervous or fidgety” or that he told [Appellant] to keep his hands
up or on the headrest although Officer Spangler testified that “I
notified Officer Stinebaugh to keep a watch on the passenger
twice.” Spangler testified that the dash camera showed
[Appellant] leaning over and asking “Can I get out of the vehicle”
to which he responded “Not yet.”
Trial Ct. Op., 12/17/19, 1-5 (some formatting altered, record citations
omitted).
On March 14, 2019, the trial court denied Appellant’s motion to
suppress. Following a non-jury trial on June 5, 2019, the trial court convicted
Appellant of VUFA and escape. That same day, the trial court sentenced
Appellant to an aggregate term of two years’ probation. Appellant filed a
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timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) statement.2
The trial court issued a Rule 1925(a) opinion addressing Appellant’s claims.
On appeal, Appellant raises the following issue:
Whether [Appellant] was subjected to an unlawful detention
where, absent additional reasonable suspicion to believe that
criminal activity was afoot, the police officers detained [Appellant]
beyond the timeframe necessary to effectuate the purpose of the
traffic stop, in violation of his rights under the Fourth and
Fourteenth Amendments of the United States Constitution, and
Article 1, Section 8 of the Pennsylvania Constitution?
Appellant’s Brief at 4.
In challenging the trial court’s suppression ruling, Appellant
acknowledges that the initial traffic stop was lawful. Id. at 16. However, he
asserts that the traffic stop ended when Officer Spangler informed the driver
“that his vehicle would have to be impounded.” Id. at 24. At that point,
Appellant contends that “all tasks reasonably tied to the traffic infraction had
been completed.” Id. at 24. Therefore, he argues that “the officers’ continued
detention of [Appellant], a mere passenger, was unrelated to the purpose of
the traffic stop,” and therefore required reasonable suspicion. Id. at 24-25
(relying on Commonwealth v. Reppert, 814 A.2d 1196, 1202 (Pa. Super.
2002) (en banc)).
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2 We note that, in his Rule 1925(b) statement, Appellant included an additional
claim challenging the sufficiency of the evidence supporting his escape
conviction. See Appellant’s Rule 1925(b) Statement, 7/29/19, at 3. However,
Appellant has abandoned this issue on appeal. See Commonwealth v.
Dunphy, 20 A.3d 1215, 1218 (Pa. Super. 2011) (stating that issues raised in
a Rule 1925(b) statement that are not developed in an appellate brief are
abandoned).
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Appellant claims that “unlike in [Commonwealth v. Palmer, 145 A.3d
170 (Pa. Super. 2016)], where the police officer ordered the occupants to exit
the vehicle so that it could be safely towed, [Officer] Spangler specifically
testified that he ordered [Appellant] and the other occupants out of the car so
that he could search them.” Id. at 24-25. Further, Appellant argues that
“even if the police officers were permitted to refuse [Appellant’s] request to
exit the vehicle so that the tow could be carried out in an orderly fashion, their
authority to continue to detain [Appellant] clearly ended once [Appellant
exited] the vehicle.” Id. In any event, Appellant argues that the police lacked
reasonable suspicion and, therefore, the trial court erred in denying his motion
to suppress. Id. at 27-35.
The Commonwealth responds that, “[c]ontrary to [A]ppellant’s
assertion, the vehicle stop had not ended at the moment the driver was taken
out of the vehicle and patted down.” Commonwealth’s Brief at 6. The
Commonwealth asserts that “[b]oth [A]ppellant and the front passenger were
still in the vehicle and there is no indication that the driver had been issued
his motor vehicle code violation citations.” Id. The Commonwealth argues
that the instant case is similar to the facts in Palmer, in that “the interaction
with the driver had not ended as the car had not yet been secured and towed
and none of the occupants had been given the opportunity to remove personal
items from the vehicle.” Id. at 7. Further, the Commonwealth asserts that
“this wasn’t a situation of ‘issue a citation and the driver is on his way.’ This
was a situation where the car was going to be towed and no citations had yet
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been issued to the driver.” Id. at 8. Under these circumstances, the
Commonwealth contends that the traffic stop was still in progress and,
therefore, the police officers were entitled to order the occupants out of the
vehicle. Id.
The Commonwealth also argues that, even if the officers exceeded the
purpose of the lawful traffic stop, they had reasonable suspicion to do so. Id.
at 8-9. Therefore, the Commonwealth concludes that the trial court properly
denied Appellant’s motion to suppress.
In reviewing a challenge to a trial court’s suppression ruling, our
standard of review 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, we are bound by these 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 our plenary review.
Commonwealth v. Green, 168 A.3d 180, 183 (Pa. Super. 2017) (citation
omitted). Further, “our scope of review from a suppression ruling is limited
to the evidentiary record that was created at the suppression hearing.”
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Commonwealth v. Rapak, 138 A.3d 666, 670 (Pa. Super. 2016) (citation
omitted).
This Court has explained that
officers conducting a valid traffic stop have an absolute right to
ask the occupants of a vehicle to step out of the car for the
duration of the traffic stop. “Our Supreme Court has recognized
expressly that an officer conducting a valid traffic stop may order
the occupants of a vehicle to alight to assure his own safety.”
[Reppert, 814 A.2d at 1202]. This is true even absent a
reasonable suspicion that criminal activity is afoot.
This absolute right to order occupants out of a vehicle is limited in
duration, however, and “[o]nce the primary traffic stop has
concluded . . . the officer’s authority to order either driver or
occupant from the car is extinguished.” Reppert, [814 A.2d at]
1202. As this Court has recognized, “[t]he matter of when a traffic
stop has concluded or otherwise given way to a new interaction
does not lend itself to a ‘brightline’ [] definition.” Id.The United States Supreme Court has held that authority for a
seizure pursuant to a traffic stop ends “when tasks tied to the
traffic infraction are—or reasonably should have been—
completed.” Rodriguez v. United States, [575 U.S. 348, 349,]
135 S. Ct. 1609, 1614 . . . (2015). Applying this principle, this
Court’s analysis of similar cases has turned on whether the
purpose of the traffic stop was accomplished prior to ordering
occupants out of the vehicle, and whether the occupants had
previously been issued citations or told that they were free to
leave.
Palmer, 145 A.3d at 173 (some citations omitted, some formatting altered);
see also Commonwealth v. Dunham, 203 A.3d 272 (Pa. Super. 2019),
appeal denied, 217 A.3d 195 (Pa. 2019).
In Reppert, this Court considered the scope of a traffic stop involving
expired registration and inspection stickers. In that case, the Court concluded
that once the driver was questioned and the officer accepted his explanation
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for the expired stickers, the traffic stop ended. Reppert, 814 A.2d at 1203.
Therefore, absent reasonable suspicion, the officer had no further reason to
detain the driver or its occupants. Id.In Palmer, this Court concluded that, where officers stop a vehicle that
is operated by an unlicensed driver, “calling for a tow truck and ordering the
passengers out of the vehicle so that it could be towed, were tasks tied to the
traffic infraction.” Palmer, 145 A.3d at 174 (citation and quotation marks
omitted). Specifically, the Court reiterated that “[w]hen an officer determines
that the driver of a vehicle does not have a valid driver’s license, the tasks
tied to the stop are not limited to simply issuing a citation.” Id.; see also 75
Pa.C.S. § 6309.2(a)(1), (2) (requiring police to immobilize or tow a vehicle
that is (1) operated by an unlicensed driver or (2) operated without valid
registration). Therefore, the Palmer Court held that “officer[] had the
authority, as part of the ongoing traffic stop, to order [the defendant] to exit
the vehicle so that it could be towed.” Palmer, 145 A.3d at 171.
Here, the trial court addressed Appellant’s suppression claim as follows:
[Appellant] contends [that] the officers detained [him] beyond the
time-frame necessary to effectuate the purpose of the traffic stop.
However, the evidence herein clearly establishes that, unlike the
factual scenario in Reppert, the traffic stop had not concluded
when [Appellant] was ordered from the vehicle. The officers
credibly testified that an odor of marijuana was detected in the
vehicle and they were concerned about [Appellant’s] hand
movement as they were conducting the traffic stop. However, it
is clear that they did not order [Appellant] out of the vehicle based
on those observations. Instead, all of the occupants were
instructed to exit the vehicle one at a time, which was clearly done
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to control the encounter for the safety of the officers, [and] does
not negate the fact that it was done as part of the traffic stop.
* * *
In the present case[,] the officers were properly exercising control
of [Appellant] as part of the traffic stop, which had not concluded.
While the officers were cross examined extensively concerning
their interactions with [Appellant] and the other occupants during
the traffic stop as shown on the body camera and dash camera,
their testimony credibly established that they had concerns about
[Appellant’s] actions while he was in the vehicle and as he was
exiting the vehicle. However, he was not ordered out of the
vehicle based on those actions but because the vehicle was
being towed. As he exited the vehicle[,] both officers observed
[Appellant] act as though he was about to flee. Officer Stinebaugh
observed [Appellant] take what he called a “bladed stance” and
Officer Spangler noted [Appellant’s] refusal to continue to show
his hands and that he acted as though he was about to flee. Not
knowing what [Appellant’s] intentions were Officer Spangler was
justified in attempting to grab [Appellant] to control him. It was
at this point that [Appellant] pulled away from Officer Spangler
and ran and the gun in his possession fell from his waistband.
In the present case there was no evidence that the officers took
any action against [Appellant] beyond that related to and as a
direct result of the ongoing traffic stop and, therefore, the motion
to suppress was appropriately denied.
Trial Ct. Op. at 8, 10 (emphasis added).
Based on our review of the record, we agree with the trial court that the
traffic stop was still in progress when Officer Spangler ordered the occupants
to alight from the vehicle. See Green, 168 A.3d at 183; see also Palmer,
145 A.3d at 173. As in Palmer, the police were required to either immobilize
or tow the vehicle for a violation of Section 6309.2. See Palmer, 145 A.3d
at 173; see also 75 Pa.C.S. § 6309.2(a)(2). Therefore, “towing the vehicle
was a task tied to the traffic stop.” See Palmer, 145 A.3d at 171.
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Accordingly, because the traffic stop required further action by police, the
officers were entitled to require all occupants to remain in the vehicle and then
to exit the vehicle separately in order to ensure their safety. See Dunham,
203 A.3d at 279 (stating that, “[i]n to ensure police officer safety, therefore,
it is now well settled in Pennsylvania that an officer may direct the movements
of a driver and all passengers for the duration of a traffic stop” (citation
omitted)). Accordingly, Officer Spangler did not need to establish reasonable
suspicion in order to direct Appellant to exit the vehicle. Palmer, 145 A.3d
at 173; see also Dunham, 203 A.3d at 279.
In light of our conclusion that the traffic stop was ongoing when Officer
Spangler ordered Appellant to exit the vehicle, we do not address the parties’
claims regarding reasonable suspicion. As noted by the trial court, Appellant
was not ordered out of the vehicle based on his actions, but rather, because
the vehicle was being towed. See Trial Ct. Op. at 9. Further, Appellant fled
from the scene while the stop was in progress and before the police
effectuated any type of search. Id. at 11. Therefore, Appellant is not entitled
to relief. See Dunham, 203 A.3d at 278, 281 (reiterating that a valid motor
vehicle stop “constitutes a seizure of a driver and the occupants,” and that
because the defendant was seized lawfully prior to his flight, “police pursuit of
[the defendant] was merely a lawful continuation of that seizure” (citation
omitted)). Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2020
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