Com. v. Blackwell, J. ( 2023 )

J-A03007-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH WALLACE BLACKWELL :
:
Appellant : No. 518 EDA 2022
Appeal from the Judgment of Sentence Entered February 14, 2022
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001073-2021
BEFORE: KING, J., SULLIVAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 9, 2023
Joseph Wallace Blackwell appeals from the February 14, 2022 aggregate
judgment of sentence of 24 to 60 months’ imprisonment, to be followed by 3
years’ probation, imposed after he was found guilty in a bench trial of
possession of firearm with altered manufacturer’s number, firearms not to be
carried without a license, possession of a controlled substance, and possession
of drug paraphernalia.1 On appeal, Appellant challenges the denial of his
omnibus motion to suppress physical evidence recovered during a traffic stop
and the subsequent statements he made to police. After careful review, we
affirm the judgment of sentence.
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6110.2(a), 6106(a)(1), 35 P.S. §§ 780-113(a)(16), and
(a)(32), respectively.
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The relevant facts and procedural history of this case, as gleaned from
the certified record, are as follows: On the evening of February 14, 2021,
Chester Police Officer Michael Spicer was in a marked vehicle, on patrol,
attired in full uniform, and traveling eastbound on the 300 block of Rose Street
toward Upland Street in the City of Chester. At this time, Officer Spicer
observed a white Buick sedan proceed through an intersection without first
stopping at the stop sign. Based upon his training and experience, Officer
Spicer knew the area surrounding the 300 block of Rose Street to be an area
of high crime and immediately maneuvered his vehicle to directly pursue the
Buick.
Officer Spicer activated his lights and sirens to initiate a traffic stop at
the 1100 block off Upland Street. The Buick failed to immediately stop.
Instead, it continued to move approximately fifty feet. During this time,
Officer Spicer observed a female in the passenger seat who turned her head
“a couple times” to look back at Officer Spicer. The Buick then turned onto
East 11th Street and finally came to a complete stop. After the Buick stopped,
Officer Spicer observed that the vehicle contained two occupants, the female
in the front passenger seat whom Officer Spicer had previously observed
looking back at him several times, and the driver. Officer Spicer observed the
driver extend his right arm over the center console area towards the female
passenger “with his torso leaning over as well.”
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Based upon his training and experience, Officer Spicer believed that
furtive movements such as the ones being made by the driver and passenger
indicated an intent to conceal something in the glove box, center console, or
underneath the driver or passenger seat.
Officer Spicer approached the driver, whom he identified as Appellant,
and asked him to produce a driver’s license, registration, and proof of
insurance. Appellant failed to produce any of the requested documentation.
While Officer Spicer was speaking with Appellant, he could detect a strong
odor of fresh marijuana emanating from the vehicle. Officer Spicer also
observed that Appellant as very nervous, that his hands were shaking, and
that he was sweating. Officer Spicer found the sweating to be particularly
unusual because the outside temperature was approximately 35 degrees.
Officer Spicer asked Appellant whether there was any marijuana in the vehicle,
to which Appellant answered in the negative. Officer Spicer then asked
Appellant to exit the vehicle.
Officer Spicer performed a pat-down of Appellant and a protective
search of the driver’s side of the vehicle. Officer Spicer indicated that the
purpose of these actions was to ensure officer safety. During the search of
the driver’s side, Officer Spicer discovered a black mesh bag on the floor next
to the gas pedal. As Officer Spicer got closer to the bag, he could smell a
strong odor of fresh marijuana. When Officer Spicer felt the bag and held it
in his hands, he observed that the bag felt as though there were smaller plastic
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baggies inside the bag, and that there was a soft leafy substance located
within those baggies.
Officer Spicer also performed a protective search of the passenger side
of the vehicle. In connection therewith, he requested that the passenger exit
the vehicle. The passenger complied and threw her purse onto the hood and
walked to the back of the vehicle. When her purse landed on the hood of the
vehicle, the sound of the contact indicated that the bag was heavy. Officer
Spicer conducted a pat-down of the passenger for officer safety. After doing
so, the passenger and Appellant stood behind the vehicle with another officer.
Officer Spicer then searched the vehicle’s center console and found a loaded
Smith and Wesson magazine.
Officer Spicer inquired of Appellant and the passenger as to the location
of the firearm to which the magazine belonged. The passenger informed
Officer Spicer that the firearm was inside her purse, and Officer Spicer
recovered it. Appellant claimed ownership of the firearm.
During a subsequent interview at the police station with Officer Robert
Shaughnessy, Appellant provided a written statement “taking full
responsibility ... [for] the gun and drugs found in my car.” The record reflects
that Appellant was read his Miranda2 warnings prior to this interview. A check
____________________________________________
2 Miranda v. Arizona, 384 U.S. 436 (1966).
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on the status of Appellant’s operating privileges also revealed that he was not
currently licensed to operate a motor vehicle and that the vehicle in question
was owned by Appellant’s sister, Gloria Cottman. Additionally, the leafy
substances found inside the black mesh bag were tested and returned positive
for marijuana.
Appellant was subsequently arrested and charged with possession with
intent to distribute a controlled substance, possession of firearm with altered
manufacturer’s number, and related offenses. On May 5, 2021, Appellant filed
an omnibus pretrial motion to suppress both the physical evidence obtained
pursuant to an “illegal warrantless search” of his vehicle and the various
statements that he made to police. See “Omnibus Pre-trial Motion,” 5/5/21
at 2. Appellant filed a supplemental motion on September 14, 2021. Notably,
Appellant did not contest the validity of the traffic stop nor argue that his
statements to police were in violation of his Miranda rights.
The suppression court held hearings on Appellant’s motion on June 30,
July 9, September 17, October 22, and December 7, 2021, respectively.
During the course of these hearings, the suppression court heard testimony
from Officer Spicer, Officer Shaughnessy, and Cottman. Following these
hearings, the suppression court denied Appellant’s suppression motion on
December 9, 2021.
On January 21, 2022, Appellant waived his right to a jury and proceeded
to a bench trial. As noted, the trial court found Appellant guilty of possession
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of firearm with altered manufacturer’s number, firearms not to be carried
without a license, possession of a controlled substance, and possession of drug
paraphernalia. On February 14, 2022, the trial court sentenced Appellant to
an aggregate term of 24 to 60 months’ imprisonment, to be followed by 3
years’ probation. This timely appeal followed on February 16. 2022.3
Appellant raises the following issues for our review:
1. Did the trial court err in denying [Appellant’s]
motion to suppress when it determined that a
protective sweep search wherein law enforcement
enters a vehicle and searches the inside of the
vehicle is lawful and therefore there is no
requirement to obtain a search warrant pursuant
to Commonwealth v. Alexander, 243 A3d 177
(Pa. 2020)?
2. Did the trial court err in determining that there
was sufficient probable cause and exigent
circumstances to enter and search [Appellant’s]
vehicle without [his] consent and without a valid
search warrant; and whether the fervent
movements of the appellant were sufficient
exigent circumstances to justify a warrantless
search?
3. Did the trial court err in determining that the
statements made by [Appellant] without being
properly advised of his rights under [Miranda],
were not in violation of the [Appellant’s]
constitutional rights under the 5th Amendment of
the United States Constitution and Article 1
Section 8 of the Pennsylvania Constitution?
Appellant’s brief at 4.
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3 Appellant and the trial court have complied with Pa.R.A.P. 1925.
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Our standard of review in addressing a challenge to a denial of a
suppression motion is well settled.
[Our] 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.
Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation
omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).
The crux of Appellant’s first two claims on appeal is that police were
prohibited from conducting a warrantless search of his vehicle without first
articulating sufficient probable cause and exigent circumstances to justify the
search, pursuant to our Supreme Court’s decision in Alexander. Appellant’s
brief at 9-39. Appellant contends this warrantless search of his vehicle
violated his Fourth Amendment rights and, thus, the trial court should have
granted his motion to suppress motion on this basis. Id. Following our careful
review, we find that Appellant’s reliance on Alexander is misplaced.
“Both the Fourth Amendment of the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution guarantee individuals
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freedom from unreasonable searches and seizures.” Commonwealth v.
Heidelberg, 267 A.3d 492, 502 (Pa.Super. 2021) (en banc) (citation
omitted), appeal denied, 279 A.3d 38 (Pa. 2022); see also U.S. Const.
amend. IV; Pa Const. art. I, § 8.
“A warrantless search or seizure of evidence is ... presumptively
unreasonable under the Fourth Amendment and Article I, § 8, subject to a few
specifically established, well-delineated exceptions.” Commonwealth v.
Luczki, 212 A.3d 530, 546 (Pa.Super. 2019) (citation and internal quotation
marks omitted). These exceptions include “the consent exception, the plain
view exception, the inventory search exception, the exigent circumstances
exception, the automobile exception, ... the stop and frisk exception, and the
search incident to arrest exception.” Commonwealth v. Smith, 285 A.3d
328, 332 (Pa.Super. 2022) (citation omitted).
As a general rule, a warrantless search of a vehicle in Pennsylvania
requires both probable cause and exigent circumstances. In Alexander, the
case relied upon by Appellant, our Supreme Court recently reaffirmed that
that Article I, Section 8 of the Pennsylvania Constitution “requires both a
showing of probable cause and exigent circumstances to justify a warrantless
search of an automobile.” Alexander, 243 A.3d at 181. In reaching this
conclusion, the Alexander Court expressly overruled Commonwealth v.
Gary, 91 A.3d 102 (Pa. 2014), which had adopted the federal automobile
exception to the warrant requirement that permitted police to conduct a
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warrantless search or seizure of an automobile solely based on probable cause
without any need for a separate finding of exigent circumstances. Id.However, in Michigan v. Long, 463 U.S. 1032 (1983), the United
States Supreme Court extended the principles of the protective “stop and
frisk” exception articulated in the Terry v. Ohio, 392 U.S. 1 (1968), to the
interior of an automobile, principles which are applicable to the case sub
judice. In this case, Long was convicted of possession of marijuana found by
police in the passenger compartment. Long, 463 U.S. at 1034-1035.
The Long Court held that “the search of the passenger compartment of
an automobile, limited to those areas in which a weapon may be placed or
hidden, is permissible if the police officer possesses a reasonable belief based
on specific, and articulable facts which, taken together with the rational
inferences from those facts, reasonably warrant the officers in believing that
the suspect is dangerous and the suspect may gain immediate control of
weapons.” Id. at 1049 (citation and internal quotation marks omitted). The
validity of a protective sweep of an automobile turns on whether “a reasonably
prudent man in the circumstances would be warranted in the belief that his
safety or that of others was in danger.” Id. at 1050. That is, whether the
police officer possesses specific and articulable facts to sustain a reasonable
suspicion that the person is dangerous and may gain control of a weapon.
In reaching this conclusion, the Long Court emphasized that a Terry
investigation is “at close range, when the officer remains particularly
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vulnerable in part because a full custodial arrest has not been effected, and
the officer must make a quick decision as to how to protect himself and others
from possible danger.” Id. at 1052.
Just as a Terry suspect on the street may, despite
being under the brief control of a police officer, reach
into his clothing and retrieve a weapon, so might
a Terry suspect in a [vehicle stop] break away from
police control and retrieve a weapon from his
automobile.
Long, 463 U.S. at 1051 (citations omitted).
The Long Court reasoned that the “the balancing required by Terry
clearly weighs in favor of allowing the police to conduct an area search of the
passenger compartment to uncover weapons, as long as they possess an
articulable and objectively reasonable belief that the suspect is potentially
dangerous.” Id.Courts in this Commonwealth have continually recognized that a police
officer may conduct a limited protective search of a vehicle where he
possesses reasonable suspicion that the vehicle’s occupant poses a risk of
danger and has immediate access to weapons. See, e.g. Commonwealth
v. Arrington, 233 A.3d 910, 916 (Pa.Super. 2020) (stating, “a defendant’s
furtive movement of leaning forward and appearing to conceal something
under his seat, along with his extreme nervousness and [a] nighttime stop,
was sufficient to warrant a reasonable police officer to believe that his safety
was in danger and that [the defendant] might gain immediate control of a
weapon.” (citation omitted)); Commonwealth v. Simmons, 17 A.3d 399,
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401 (Pa.Super. 2011) (finding reasonable suspicion where the traffic stop was
conducted at night, in a high-drug and high-crime area, and the officer
witnessed the defendant make the furtive movement of reaching under his
seat and then towards his chest, consistent with concealing a weapon),
appeal denied, 25 A.3d 328 (Pa. 2011).
Similarly, in the instant matter, the trial court opined that Officer
Spicer’s limited search of Appellant’s vehicle was reasonable and justified
under the “protective search or wingspan search” exception to the warrant
requirement. See trial court opinion, 5/26/22 at 15-16. As the trial court
stated in its opinion,
this Court notes the following specific and articulable
facts in support of reasonable suspicion:
1. [Appellant] was in his vehicle with a passenger.
Officer Spicer observed the passenger look back
at him several times after Officer Spicer had
signaled [Appellant] to stop.
2. [Appellant] did not stop immediately but slowed
down and proceeded to turn his vehicle onto
another street before stopping.
3. Thereafter, as Officer Spicer was approaching
the vehicle, he observed [Appellant] making
furtive movements within the vehicle. In Officer
Spicer’s experience, and based upon his
training, he believed the movements to be
consistent with an intent to conceal a weapon.
4. [Appellant] appeared extremely nervous, to the
extent that his hands were shaking and he was
sweating despite the fact that the outside
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temperature was thirty-five (35) degrees
Fahrenheit.
5. [Appellant] could not produce his license,
registration, or proof of financial responsibility.
6. The stop occurred at night in a high crime area.
Trial court opinion, 5/26/22 at 15-16.
Upon review, we find ample evidence in the record to support the trial
court’s conclusion that Officer Spicer possessed reasonable suspicion that his
safety was at risk and that Appellant had immediate access to a weapon.
Officer Spicer specifically testified that, based upon his training and
experience, that the behavior he observed in the vehicle indicated that
Appellant and his passenger were potentially attempting to conceal a firearm.
Q. Officer, you testified regarding the behavior of
the passenger and the movements of the driver.
Did that raise any concern at that time?
A. It did.
Q. And can you tell the Court what –
A. Through my training and experience over the
past couple years working as a police officer,
normally, when that type of movements inside
of the vehicle during a stop are initiated, it
typically means that the passenger and the
driver are attempting to conceal something.
....
Q. And what do you learn in that training and
experience?
A. You learn the furtive movements that the
passengers and occupants of the vehicle
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typically make when there’s a firearm on their
person, and during a vehicle stop, you learn
where they most likely conceal them inside of a
vehicle.
....
Q. So, this behavior that you saw from the female
and the driver, why did it raise your concern?
A. Because of the way the driver’s -- had his body
over the passenger seat, he could’ve been
concealing something in the center console or
with the passenger herself.
Notes of testimony, 6/30/21 at 14-16.
Moreover, the search of the car was restricted to those areas that
Appellant and the passenger would have immediate control of and could
contain a weapon. Id. at 20-22. Thus, the intrusion was “strictly
circumscribed by the exigencies which justified its initiation.” Long, 463 U.S.
at 1051 (citation omitted).
Based on the foregoing, we find that the trial court properly concluded
that Officer Spicer’s limited protective search of Appellant’s vehicle did not
violate his rights under the 4th Amendment to the United States Constitution
and Article I, Section 8 of the Pennsylvania Constitution. In reaching this
conclusion we note that because Officer Spicer’s recovery of the evidence
resulted from a lawful protective search of the vehicle, the Alexander decision
relied on by Appellant is inapplicable. Alexander concerns the automobile
exception to the warrant requirement, and Appellant has pointed to nothing
in that holding which expressly modified “protective search or wingspan
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search” exception, and we decline to do so. Accordingly, Appellant’s
suppression claim warrants no relief.
Appellant next argues that his oral statements to police were made in
violation of his Constitutional rights to remain silent under the 5th Amendment
to the United States Constitution and Article I, Section 8 of the Pennsylvania
Constitution because he was not first advised of his Miranda rights.
Appellant’s brief at 41-45.
The record reflects that Appellant failed to raise this claim in either his
May 5, 2021 suppression motion; his September 14, 2021 supplemental
motion; nor at any point during the proceedings. Pennsylvania Rule of
Criminal Procedure 581(D) requires that a suppression motion “state
specifically and with particularity the evidence sought to be suppressed, the
grounds for suppression, and the facts and events in support thereof.”
Pa.R.Crim.P. 581(D). It is well-settled that “issues not properly raised and
preserved before the trial court are waived and cannot be raised for the first
time on appeal.” Commonwealth v. Thorne, 276 A.3d 1192, 1196 (Pa.
2022) (citation and internal quotation marks omitted); see also Pa.R.A.P.
302(a). Accordingly, Appellant has waived this claim.
For all the foregoing reasons, we affirm the trial court’s February 14,
2022 judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2023
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