Com. v. Mayo, D. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANTE MAYO :
:
Appellant : No. 339 EDA 2023
Appeal from the Judgment of Sentence Entered August 23, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006670-2021
BEFORE: BOWES, J., NICHOLS, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 11, 2023
Dante Mayo appeals from the aggregate judgment of sentence of four
and one-half to nine years of incarceration, followed by three years of
probation, imposed on his convictions stemming from violations of the Uniform
Firearms Act. We affirm.
While on patrol during the evening hours of July 7, 2021, Philadelphia
Police Officer Christopher Ficchi observed a vehicle with heavily tinted
windows and accordingly initiated a traffic stop based upon that motor vehicle
violation. Being unable to see inside the vehicle, the officer used his patrol
car’s amplified audio system to direct the driver to open all four windows of
the vehicle, which he did. As Officer Ficchi and his partner approached, he
observed the driver and a front-seat passenger, Appellant, moving around.
After ordering the occupants to remain still and requesting driver’s license,
registration, and proof of insurance, Officer Ficchi asked if anyone had a permit
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to carry a firearm and whether there were any weapons in the vehicle. Both
individuals said no. As Officer Ficchi spoke with the driver, he observed in
plain view a firearm handle on Appellant’s hip. As a result, the officers
detained Appellant, secured the firearm, and again asked if he had a permit.
When he responded “No[,] I’m just trying to live,” the officers placed him
under arrest for possession of firearm prohibited, carrying a firearm without a
license, and carrying a firearm in public in Philadelphia. See N.T., 5/24/22,
at 9, 11.
Appellant filed a motion to suppress. The court held a hearing, at which
Officer Ficchi testified to the above recitation. Appellant testified in his defense
that his firearm was concealed and that the officers did not discover it until
after they pulled him out of the vehicle and searched him. Id. at 30-35, 38.
The court denied Appellant’s motion, finding Officer Ficchi credible and that
Appellant’s version of events did not contradict that of Officer Ficchi. Appellant
immediately proceeded to a stipulated bench trial and was found guilty as
charged. The court sentenced Appellant as indicated hereinabove. Appellant
filed a timely post-sentence motion on August 29, 2022, which the clerk of
courts denied by operation of law on December 20, 2022.
This appeal followed on January 23, 2022.1 The trial court issued neither
a Pa.R.A.P. 1925(b) order nor a Rule 1925(a) opinion as the presiding jurist
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1 Since the appeal was facially untimely, this Court issued an order directing
Appellant to show cause as to why we should not quash. Appellant’s counsel
(Footnote Continued Next Page)
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was no longer on the Philadelphia County bench. On appeal, Appellant
presents a single issue for our consideration:
The Lower Court erred when it denied Appellant’s Motion to
Suppress contrary to Pennsylvania legal mandates when it
erroneously allowed a car stop to be unlawfully extended without
the requisite reasonable suspicion or probable cause, and beyond
necessary to investigate the infraction that provoked the stop
after the officer began questioning the driver and passenger
regarding whether either individual had a license to carry a
firearm, which was neither relevant nor proper arising from the
car stop for dark tinted windows.
Appellant’s brief at 7.
Appellant’s claim challenges the trial court’s denial of his suppression
motion, which we consider pursuant to the following legal principles:
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
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responded that he had inadvertently missed the deadline. This Court
discharged the show-cause order and referred the matter to the instant panel.
Upon review, we decline to quash due to a breakdown in the court system
caused by the clerk of courts denying Appellant’s post-sentence motion by
operation of law seven days early. See Commonwealth v. Rodriguez, 174
A.3d 1130, 1138-39 (Pa.Super. 2017) (deeming clerk of court’s dismissal of
post-sentence motion before the expiration period a systemic breakdown).
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court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa.Super. 2015) (cleaned
up).
In his pre-trial suppression motion, Appellant alleged violations of
Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020) (holding that the
Pennsylvania constitution requires warrantless searches of vehicles to be
supported by both probable cause and exigent circumstances), and Miranda
v. Arizona, 384 U.S. 436 (1966). See Omnibus Pretrial Motion, 5/23/22, at
unnumbered 1-3. Appellant does not present these arguments on appeal.
Instead, for the first time, he contends that the officers illegally prolonged the
traffic stop when they asked, without independent justification, about
Appellant’s license to carry a firearm. See Appellant’s brief at 14-20. Since
Appellant failed to raise this argument before the trial court, the
Commonwealth urges us to find waiver. See Commonwealth’s brief at 6.
In that regard, this Court has explained waiver in the suppression
context thusly:
Prior to trial, a defendant may file a motion “to suppress any
evidence alleged to have been obtained in violation of the
defendant’s rights.” Pa.R.Crim.P. 581(A). “The motion shall 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). Failure to comply with
the specificity requirement of Rule 581(D) will result in waiver, as
those requirements have been held to be mandatory.
The requirement that a defendant raise the grounds for
suppression in his motion ensures that the Commonwealth is on
notice of what evidence it must produce at the suppression
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hearing to satisfy its burden of proving that the police obtained
the evidence legally.
Commonwealth v. Carmenates, 266 A.3d 1117, 1126 (Pa.Super. 2021)
(cleaned up).
Here, Appellant’s motion never put the Commonwealth on notice to
develop the record as to whether the officers prolonged the stop or had
independent justification to inquire about the presence of a firearms permit
based upon Appellant’s movements within the vehicle. Accordingly, we agree
with the Commonwealth that Appellant has waived his suppression issue on
appeal. See also Pa.R.A.P. 302(a) (“Issues not raised in the trial court are
waived and cannot be raised for the first time on appeal.”). Having failed to
present any preserved claims for our review, we affirm Appellant’s judgment
of sentence.
Judgment of sentence affirmed.
Date: October 11, 2023
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