Com. v. Evans, C. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CECIL TYRELL EVANS :
:
Appellant : No. 1547 MDA 2020
Appeal from the Judgment of Sentence Entered November 18, 2020
In the Court of Common Pleas of Dauphin County
Criminal Division at CP-22-CR-0000259-2019
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED: SEPTEMBER 24, 2021
Cecil Tyrell Evans (Appellant) appeals from the judgment of sentence
imposed after a jury convicted him of illegally possessing a firearm and
carrying a firearm without a license.1 Appellant specifically contends the trial
court erred in denying his suppression motion. Upon review, we affirm.
The trial court described the events leading to Appellant’s arrest as
follows:
At the suppression hearing, the Commonwealth presented the
testimony of Officer [Anthony] Glass, who testified that on
December 14, 2018 at 10:52 p.m., he noticed a vehicle driving
without exterior lighting (i.e. no headlights or taillights). It was
dark and there was moderate rainfall. Officer Glass pulled the
vehicle over and ran the vehicle’s registration. It was a rental
vehicle. After making contact with the vehicle, it was discovered
that the driver [not Appellant] had an active warrant. Officer
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1 18 Pa.C.S.A. §§ 6105(a)(1) and 6106(a)(1).
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Glass noticed that Appellant [who was the front seat passenger]
appeared nervous, had a wide-eyed look, muttered, and
continuously made motions with his hands including rubbing his
legs. In taking the driver into custody, Officer Glass noticed a
strong odor of burnt marijuana [emanating from the vehicle]. He
had all [four] occupants [including two passengers in the rear]
exit the vehicle. All [four] occupants were patted down and on
one of the passengers [not Appellant] a digital scale and a torn
bag that smelled of marijuana was discovered. Officer Glass
testified that he continued to observe that Appellant was shuffling
his feet and had a hard time standing still. Officer Glass also
testified that Appellant told the Officer that he did not have his
identification on him, but his wallet [which contained
identification] was clearly visible in his back pocket. Officer Glass
searched the vehicle and discovered a [loaded] gun in the
glovebox compartment and a pistol case with ammunition in the
trunk. Appellant indicated that the rental vehicle was his
girlfriend’s [Samantha Hawkins, who was not present,] and that
the gun also belonged to her. Other than Hawkins, none of the
occupants, including Appellant, could legally possess a firearm and
none of the occupants showed a medical marijuana card. The gun
and the vehicle were returned to Hawkins later that evening and
no arrests were made. Appellant left the scene that night.[7]
[7] Followingthe incident, Officer Glass reviewed the
MVR footage. He discovered that Appellant was
attempting to remove a holster from his person. Upon
further investigation, it was determined that the
Appellant, along with Hawkins, went to a store and
purchased a firearm.
Trial Court Opinion, 4/20/21, at 3-4 (citation to suppression transcript and
four footnotes omitted).
Appellant was charged with the aforementioned firearms crimes. On
August 9, 2019, he moved to suppress the physical evidence seized from the
rental car, arguing that the search was unconstitutional because “medical
marijuana was (and continues to be) legal in the Commonwealth of
Pennsylvania [and] the mere odor of marijuana, and by extension the ‘plain
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smell’ doctrine as it applies to marijuana, is no longer a sufficient basis to form
probable cause[.]” Motion to Suppress Evidence, 8/9/19, at 3. After
conducting a hearing, the court denied the suppression motion. The case
proceeded to trial and the jury found Appellant guilty of illegally possessing a
firearm and possessing a firearm without a license. On November 18, 2020,
the trial court sentenced Appellant to an aggregate 84 - 168 months of
incarceration. Appellant filed this timely appeal.2
Appellant states his two issues as follows:
I. [Appellant] travelled with his fiancée in a car she rented from
Clearfield County to Harrisburg. During that trip, his fiancée gave
him permission to store his clothing in the trunk. On the night in
question, [Appellant’s] fiancée gave him permission to ride in the
car. When the Commonwealth’s evidence did not contradict this,
did the lower court err when it found that [Appellant] failed to
prove a reasonable expectation of privacy in the car?
II. The police officer testified that an odor of marijuana came from
the car while three people remained inside, including [Appellant],
who exhibited nervous behavior. After all three were removed,
one of them was found with drug paraphernalia that had a strong
odor of marijuana. Did the lower court err when it found there
was probable cause to search the unoccupied car absent evidence
that additional contraband would be found inside?
Appellant’s Brief at 3.
Appellant argues the trial court erred in finding, “(1) [Appellant] did not
demonstrate a reasonable expectation of privacy in the rental car; and (2)
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2 Appellant and the trial court have complied with Pa.R.A.P. 1925.
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there was sufficient probable cause to justify a search of the car and
glovebox.”3 Appellant’s Brief at 6. We disagree.
We begin by recognizing:
[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. 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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3 The suppression hearing occurred in August of 2019, more than a year before
the Pennsylvania Supreme Court’s issued its decision in Commonwealth v.
Alexander, 243 A.3d 177 (Pa. 2020), holding warrantless search of a vehicle
requires both probable cause and exigent circumstances. Appellant has
waived the application of Alexander by not challenging the constitutionality
of the automobile exception articulated in Commonwealth v. Gary, 91 A.3d
102 (Pa. 2014) in his motion to suppress. See Commonwealth v. Grooms,
247 A.3d 31, 37 n. 8 (Pa. Super. 2021) (holding Alexander did not apply
retroactively where appellant did not raise and preserve the issue at all stages
of adjudication by challenging the constitutionality of Gary).
In its 1925(a) opinion, the trial court referenced this Court’s decision in
Commonwealth v. Barr, 240 A.3d 1263 (Pa. Super. 2020), which was
decided after Appellant’s suppression hearing but before Alexander. On April
28, 2021, the Pennsylvania Supreme Court granted the defendant’s petition
for allowance of appeal in Barr. Commonwealth v. Barr, 252 A.3d 1086(Pa. Apr. 28, 2021).
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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. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (citation
omitted). Further, our review is limited to the suppression hearing record. In
re L.J., 79 A.3d 1073, 1085 (Pa. 2013). “[I]t is the sole province of the
suppression court to weigh the credibility of witnesses,” and “the suppression
court judge is entitled to believe all, part or none of the evidence presented.”
Commonwealth v. Blasioli, 685 A.2d 151, 157 (Pa. Super. 1996) (citation
omitted).
Appellant first claims he had an expectation of privacy in the rental car.
Appellant’s Brief at 8-12. We disagree.4
It is well-settled that when a defendant files a suppression motion, he
has “the preliminary burden of establishing standing and a legitimate
expectation of privacy.” Commonwealth v. Burton, 973 A.2d 428, 435 (Pa.
Super. 2009) (en banc).
[G]enerally under Pennsylvania law, a defendant charged with a
possessory offense has automatic standing to challenge a search.
However, in order to prevail, the defendant, as a preliminary
matter, must show that he had a privacy interest in the area
searched.
An expectation of privacy is present when the individual,
by his conduct, exhibits an actual (subjective) expectation
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4 Appellant did not raise this issue in his Rule 1925(b) statement. However,
we decline to find waiver because, as Appellant notes in his brief, the trial
court did not address this issue in the original order denying suppression, and
discussed it for the first time in its Rule 1925(a) opinion. See Order, 9/25/19,
at 1-4; Trial Court Opinion, 4/20/21, at 7-8; Appellant’s Brief, at 8 n.1.
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of privacy and that the subjective expectation is one that
society is prepared to recognize as reasonable. The
constitutional legitimacy of an expectation of privacy is not
dependent on the subjective intent of the individual
asserting the right but on whether the expectation is
reasonable in light of all the surrounding circumstances.
Id. (citation omitted).
Instantly, the evidence presented at the suppression hearing
demonstrated the Nissan Altima vehicle was rented by Appellant’s girlfriend,
Ms. Hawkins, and Appellant’s name was not on the rental agreement. N.T.,
8/26/19, at 7, 9-10. The evidence also showed Appellant acted in a manner
inconsistent with someone who believed he had lawful control and a
reasonable expectation of privacy in the vehicle. Officer Glass testified:
[Appellant] had nervous behavior that kind of differentiated him
from the other three people in the car. He was nervous. He kept
making motions with his hands in his lap, moving back and forth
in his seat. He had a wide-eyed look in his face, and he muttered
when he talked. He didn’t really — I had a hard time
understanding him. He had a very nervous tone to his voice when
he was explaining who rented the vehicle.
***
In comparison to the other occupants of the vehicle, he had the
inability to sit still, kept moving, just nervous, nervous, erratic —
I don’t know really how to explain it. Nervous. Kept moving his
hands on his lap up to different positions on his thigh.
***
He kept positioning his back differently in the seat, rocking
forward in the seat, taking his — the contact of his back off of the
seat and then back into the seat, and he muttered when he talked.
I had difficulty understanding him when he was talking because
he wasn’t talking audibly enough.
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***
Again, as I had the three occupants standing outside the car,
[Appellant’s] behavior was noticeably different from the other two
occupants I had standing outside. Both [the rear seat passengers]
were relatively calm and stood at the sidewalk without constantly
changing the position of their feet, where [Appellant] constantly
kept shuffling his feet, moving around on the sidewalk. He had a
hard time standing still. He kept looking in different direction,
looking at the car, looking past us, looking around. Had a very,
once again, had a very wide-eyed look on his face.
Additionally, when we tried to get identification for all three
occupants, [Appellant] initially said — [Appellant] initially said he
did not have his ID on him, and his wallet was visibly seen in his
back pocket. And he had to be — he had to be told, well, we can
obviously see your wallet in your back pocket so most likely your
ID is in your wallet. When he pulled out his wallet, he did have
his ID in his wallet.
Id. at 11-12, 13-14.
Consistent with the foregoing, the trial court determined Appellant did
not have a reasonable expectation of privacy in the rental car. The court cited
Commonwealth v. Byrd, --- U.S. ---, 138 S.Ct. 1518 (2018), in which the
United States Supreme Court held, “as a general rule, someone in otherwise
lawful possession and control of a rental car has a reasonable expectation
of privacy in it even if the rental agreement does not list him or her as an
authorized driver.” Byrd, 138 S.Ct. at 1524 (emphasis added). The Supreme
Court reasoned that a common-law property interest is not always needed for
an individual to have a reasonable expectation of privacy. Id. Consequently,
the lack of authorization to drive a rental car does not obviate an individual’s
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expectation of privacy in the vehicle, so long as the individual is in lawful
possession and control over the vehicle. Id.
Mindful of Byrd, the suppression court reasoned:
Simply put, there is nothing to suggest that Appellant had a privacy
interest in the vehicle. The vehicle was rented to Hawkins and the
Appellant’s name was not on the lease. His behavior is also inconsistent
with that of a person who believed he had a reasonable expectation of
privacy in the vehicle, since he was constantly moving around on the
sidewalk and shuffling his feet and refused to initially show
identification.
The United States Supreme Court held in Commonwealth v.
Byrd, 138 S.Ct. 1518 (2018) that the lack of authorization to drive a
rental car does not obviate an individual’s expectation of privacy in the
vehicle, as long as the individual is in lawful possession and control over
the vehicle. Byrd at 1524. Here, however, the Appellant’s name was
not on the rental agreement and his actions were inconsistent with
someone who was in lawful possession and control of the vehicle.
Additionally, the Appellant was not the driver of the vehicle.
Accordingly, Appellant failed to establish that he had a reasonable
expectation of privacy in the vehicle.
Trial Court Opinion, 4/20/21, at 7-8.
Upon review, we discern no error because the record supports the
court’s factual findings, and case law supports the court’s legal conclusions.
Appellant cites his self-serving testimony at the suppression hearing to
demonstrate that he exercised lawful possession and control over the rental
vehicle. Appellant’s Brief at 11-12. However, Appellant’s testimony that he
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had Ms. Hawkins’ “permission to ride in the rental car”5 was hearsay. N.T.,
8/26/19, at 37-28. Appellant did not call Ms. Hawkins to corroborate his
testimony, and the court acted within its discretion in assigning little if any
weight to it. Blasioli, 685 A.2d at 157.
Conversely, the Commonwealth produced evidence that Appellant’s
name was not on the rental agreement, and as a passenger, his actions were
inconsistent with someone who had lawful possession or control over the
vehicle.6 Appellant thus failed to establish a reasonable expectation of privacy
in the vehicle. See Commonwealth v. Maldonado, 14 A.3d 907, 911-12
(Pa. Super. 2011) (defendant failed to satisfy his burden of establishing a
reasonable expectation of privacy in vehicle, where the vehicle was owned by
his girlfriend and he did not put forth any evidence that his girlfriend gave him
permission to drive her vehicle).
Accordingly, the trial court did not err in finding Appellant lacked a
reasonable expectation of privacy and denying his suppression motion.
Further, because Appellant lacked a reasonable expectation of privacy, we
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5 Appellant does not cite any legal authority to support his claim that a
passenger in a rental vehicle can be in lawful possession and control of the
vehicle.
6 In addition to fidgeting and appearing nervous, Appellant lied to police and
attempted to avoid their attempts to identify him.
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need not address his claim regarding probable cause for the vehicle search.7
However, if we were to address this issue, we would affirm on the basis of the
trial court’s analysis. See Trial Court Opinion, 4/20/21, at 3-7 (finding
credible and detailing Officer Glass’s testimony as the basis for finding that
probable cause existed to search the vehicle).
Judgment of sentence affirmed.
Judge Musmanno joins the memorandum.
Judge Stabile concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2021
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7 Appellant argues that even if the police had probable cause to search the
interior of the car, they did not have probable cause to search the glovebox.
Appellant’s Brief at 15-17. This claim is waived because Appellant did not
raise it in either his suppression motion or Rule 1925(b) statement. See
Commonwealth v. Little, 903 A.2d 1269, 1272–73 (Pa. Super. 2006)
(“appellate review of [a ruling on] suppression is limited to examination of the
precise basis under which suppression initially was sought; no new theories of
relief may be considered on appeal.”); Commonwealth v. Douglass, 701
A.2d 1376, 1378 (Pa. Super. 1997) (“the failure to raise a suppression issue
prior to trial precludes its litigation for the first time at trial, in post-trial
motions or on appeal.”); Pa.R.A.P. 1925(b)(4)(vii).
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