Com. v. Vazquez, J.

J-S06022-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN RICHARD VAZQUEZ
Appellant No. 536 MDA 2015
Appeal from the Judgment of Sentence February 19, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005723-2013
BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MUNDY, J.: FILED MARCH 28, 2016
Appellant, John Richard Vazquez, appeals from the February 19, 2015
aggregate judgment of sentence of nine to 23 months’ incarceration followed
by three years’ probation, imposed following his conviction at a bench trial of
firearms not to be carried without a license and receiving stolen property.1
After careful review, we affirm.
The trial court summarized the factual and procedural background of
this case as follows.
On August 28, 2013, Appellant was arrested
and charged with firearms not to be carried without
a license, and receiving stolen property. A counseled
omnibus pre-trial motion was filed on April 7, 2014,
seeking to suppress certain physical evidence and
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1
18 Pa.C.S.A. §§ 6106(a)(2) and 3925, respectively.
*Former Justice specially assigned to the Superior Court.
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statements as the fruit of an allegedly
unconstitutional and illegal search of Appellant’s
person and property.
A suppression hearing was held on October 17,
2014, at the conclusion of which [the suppression
court] denied the motion in its entirety on the
record.
Trial Court Opinion, 4/22/15, at 1-2
At the suppression hearing, Officer Anthony Weaver of the Lancaster
City Bureau of Police was the only witness. Based on his testimony, the
suppression court made the following findings.2
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2
We note that the suppression court did not comply with Pennsylvania Rule
of Criminal Procedure 581(I), failing to contemporaneously record its
findings of fact. Its findings now belatedly appear in its Rule 1925(a)
opinion. Our Supreme Court has lamented such noncompliance, noting as
follows.
We stress, however, the essential purposes served
by the Rule, and we disapprove of non-compliance
with its unambiguous mandate. A specific and
contemporaneous announcement of suppression
findings of fact and conclusions of law serves at least
two salutary purposes. First, it permits the losing
party to make a more intelligent assessment of
whether or not to burden the appellate justice
system with an appeal of the suppression ruling….
Second, it is often the case … that the suppression
judge is different from the trial judge yet, if there is
a conviction, it will be the trial judge who will be
responsible for preparation of the Rule 1925 opinion
for appeal.
Commonwealth v. Millner, 888 A.2d 680, 688-689 (Pa. 2005) (footnote
omitted). As the noncompliance in this case does not hamper our review,
we need not remand. Compare, id. (declining to remand for compliance
(Footnote Continued Next Page)
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The evidence at the suppression hearing established
the following facts. On August 28, 2013, at
approximately 2:35 a.m., Officer Anthony Weaver of
the Lancaster City Police parked his marked police
cruiser near an intersection in a high crime area of
the City as part of the community policing efforts to
maintain high visibility, reduce crime and protect the
citizens. Just minutes after parking, Officer Weaver
observed Appellant wearing a backpack and walking
“at a brisk pace” east on East End Avenue. Appellant
“definitely saw” Officer Weaver who was in full
uniform and in a marked police cruiser on East End
Avenue. Officer Weaver then observed, through his
rear view mirror, a Chrysler sedan pull up to the
intersection of South Franklin Street and East End
Avenue and illegally park in the intersection.
Appellant crossed the street and entered the back of
the vehicle. Officer Weaver made the decision to
stop the vehicle for a traffic violation. The Chrysler
began traveling west on East End Avenue and then
south on Stevens Avenue. Officer Weaver followed
the vehicle for a short distance while running a check
on the registration plate, and eventually effectuated
a traffic stop in the first block of South Broad Street
in the City of Lancaster.
When the vehicle was pulled over, it was
observed that there were four occupants in the
vehicle. Officer Weaver called for backup and then
approached the vehicle on the passenger side. After
receiving the identification from the four occupants,
Officer Weaver ordered the occupants to exit the
vehicle at which time they were patted down and
searched for weapons. The police then directed the
occupants to sit on the curb.
_______________________
(Footnote Continued)
with Rule 581(I) where review was not hampered and for judicial economy,
with Commonwealth v. Landis, 89 A.3d 694, 703 (Pa. Super. 2014)
(remanding for compliance with Rule 581(I) where it was unclear from the
Rule 1925(a) opinion whether the suppression court employed the correct
standard).
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While the occupants were seated on the curb, the
police did a protective sweep of the car. Inside the
car, a backpack was located on the rear seat, directly
behind the driver’s seat, where Appellant had been
sitting. Officer Weaver opened the unlocked
backpack and saw a laptop computer and a Ruger 9
millimeter handgun inside a pocket. After locating
the handgun, Officer Weaver asked Appellant
whether he had a permit to carry the firearm, to
which he responded, he did not. Appellant was then
placed under arrest and taken to the Lancaster City
Police Station. The other occupants were released at
the scene, after a traffic citation was issued to the
driver.
…
In the instant case, Officer Weaver testified
that this vehicle stop occurred in a high crime area of
the City, where he had personally made over 100
arrests, many for drug and gun-related crimes, and
had been part of an officer-involved shooting. As
part of the community policing in this area, Officer
Weaver could attest to the heavy drug traffic, the
high volume of police calls for service, the large
number of citizen complaints of criminal activity, and
the drug and prostitution investigations being
conducted by the Selective Enforcement Unit of the
Lancaster City Police in this particular part of the
City. Additionally, these events happened in the
middle of the night, which creates a heightened level
of danger to a police officer, especially during a
traffic stop. Moreover, after the traffic stop, the
front seat passenger engaged in the furtive
movement of leaning forward and nearly touching his
toes on the floorboard multiple times. The other
rear seat passenger also exhibited extreme
nervousness.
Based upon his training and experience in
conducting over 1000 traffic stops, his 14 years of
service as a police officer, his special training in
identifying armed individuals, and the particular facts
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of this traffic stop, Officer Weaver believed that
“there was a high probability that there could be a
weapon in that vehicle, and [he] was extremely
concerned.”
Id. at 3-5, 9 (footnotes and citations omitted).
The case proceeded to a stipulated bench trial
on December 19, 2014, and concluded with a verdict
of guilty on the firearms charge and the receiving
stolen property charge. Following the verdict,
sentencing was deferred pending a pre-sentence
investigation.
On February 19, 2015, Appellant was
sentenced to a term of 3 to 23 months[’]
incarceration in Lancaster County Prison on the
firearms charge. Appellant received a concurrent
split sentence of 9 to 23 months[’] incarceration
followed by 3 years[’] probation on the felony charge
of receiving stolen property.[3] Appellant filed no
post sentence motions. A timely appeal to the
Superior Court of Pennsylvania was filed on March
20, 2015.
Id., at 1-2 (footnotes and citations omitted).4
Appellant raises the following question for our review.
Did the trial court err in denying Appellant’s Motion
to Suppress where police had neither reasonable
suspicion nor probable cause to justify a stop of the
vehicle in which Appellant was a passenger, and
where police had neither reasonable suspicion nor
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3
The trial court’s sentence also granted Appellant work release and
authorized transition from incarceration to electronically monitored house
arrest after three months, contingent on Appellant being a “model prisoner.”
N.T., 2/19/15, at 11.
4
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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probable cause to conduct a sweep of the vehicle,
including Appellant’s backpack, for weapons?
Appellant’s Brief at 5. Appellant’s single question raises two distinct sub-
issues. First, Appellant challenges the validity of the traffic stop, and
second, Appellant challenges the safety sweep of the vehicle and Appellant’s
backpack. We address each sub-issue seriatim.
Our review of a trial court’s suppression ruling is guided by the
following.
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. 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. Jones, 605
Pa. 188, 988 A.2d 649, 654 (2010) (citations,
quotations, and ellipses omitted). Moreover,
appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when
examining a ruling on a pre-trial motion to suppress.
See In re L.J., 622 Pa. 126, 79 A.3d 1073, 1083–
1087 (2013).
Commonwealth v. Mathis, 125 A.3d 780, 783 (Pa. Super. 2015).
Appellant first contends that the vehicle stop effected by Officer
Weaver was without reasonable suspicion or probable cause. Appellant’s
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Brief at 18. “The issue of what quantum of cause a police officer must
possess in order to conduct a vehicle stop based on a possible violation of
the Motor Vehicle Code is a question of law, over which our scope of review
is plenary and our standard of review is de novo.” Commonwealth v.
Holmes, 14 A.3d 89, 94 (Pa. 2011).
[W]hen considering whether reasonable suspicion or
probable cause is required constitutionally to make a
vehicle stop, the nature of the violation has to be
considered. If it is not necessary to stop the vehicle
to establish that a violation of the Vehicle Code has
occurred, an officer must possess probable cause to
stop the vehicle. Where a violation is suspected, but
a stop is necessary to further investigate whether a
violation has occurred, an officer need only possess
reasonable suspicion to make the stop.
Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015); see also
Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en
banc), appeal denied, 25 A.3d 327 (Pa. 2011) (holding a police officer must
have probable cause to justify a stop of a vehicle when the investigation
subsequent to the stop serves no “investigatory purpose relevant to the
suspected violation”).
Instantly, the trial court addressed Officer Weaver’s justification for
the initial stop of the vehicle for a violation of Section 3353(a)(1)(iii) and (iv)
of the Vehicle Code, i.e., stopping in an intersection or on a crosswalk, under
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a reasonable suspicion standard.5 Trial Court Opinion, 4/22/15, at 7-8.
Officer Weaver testified, however, that he made the stop because he
observed the vehicle stop in an intersection and crosswalk in violation of
Section 3353(a)(1)(iii) and (iv). Because the stop could yield no further
investigatory information as to whether a violation of Section 3353(a)(1)(iii)
and (iv) occurred, we conclude that the police were required to have
probable cause for the stop. See Salter, supra.
Determining whether probable cause exists requires consideration of
the totality of circumstances. Commonwealth v. Thompson, 985 A.2d
928, 931 (Pa. 2009). “The police have probable cause ‘where the facts and
circumstances within the officer’s knowledge are sufficient to warrant a
person of reasonable caution in the belief that an offense has been …
committed.’” Commonwealth v. Rogers, 849 A.2d 1185, 1192 (Pa.
2004), quoting, Commonwealth v. Gibson, 638 A.2d 203, 206 (Pa. 1994).
As noted, Officer Weaver testified that he stopped the vehicle after it
had picked up Appellant for violating Section 3353(a)(1)(iii) and (iv) of the
Vehicle Code. N.T., 10/17/14, at 20. That section provides as follows.
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5
Appellant’s omnibus pretrial motion initially framed the issue as the police
lacking “reasonable suspicion to stop the vehicle.” Omnibus Pretrial Motion,
4/8/14, at 2 ¶4. At the suppression hearing, Appellant couched his
argument as the police lacking “probable cause” for the stop based on the
alleged traffic violation. N.T., 10/17/14, at 59. In their respective appellate
briefs, Appellant and the Commonwealth agree that probable cause is the
proper standard for the traffic stop in this case. See Appellant’s Brief at 18;
Commonwealth’s Brief at 10.
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§ 3353. Prohibitions in specified places
(a) General rule.--Except when necessary to avoid
conflict with other traffic or to protect the safety of
any person or vehicle or in compliance with law of
the directions of a police officer or official traffic-
control device, no person shall:
(1) Stop, stand or park a vehicle:
…
(iii) Within an intersection.
(iv) On a crosswalk.
…
Pa.C.S.A. § 3353. Officer Weaver testified that he observed the vehicle
“park[] in the traffic lanes on the corner of South Franklin and East End.”
N.T., 10/17/14, at 18. Officer Weaver testified that another vehicle had to
enter the other lane to go around the stopped vehicle. Id.6 He also testified
that the vehicle was blocking the intersection and the crosswalk. Id. at 20.
Appellant argues the suppression court erred in crediting Officer
Weaver’s testimony.
Officer Weaver claimed that, looking in his side and
rear view mirrors, he could see the location of a
vehicle in the dark, parked two blocks behind him.
This testimony was simply incredible. At best,
Officer Weaver could only estimate the location of
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6
Officer Weaver misstated the street the passing vehicle was travelling on
when it encountered the stopped vehicle. N.T., 10/17/14, at 18. Appellant
argues this is another reason to discredit the Officer’s testimony. See
Appellant’s Brief at 20.
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the vehicle, based on his limited ability to see from
nearly two blocks away.
…
“Despite the inconsistencies and incredible nature of
Officer Weaver’s testimony, the trial court improperly
chose to believe this testimony….”
Appellant’s Brief at 19-20 (citation and footnote omitted).
As we related in the summary of our standard of review, we must view
the evidence in the light most favorable to the Commonwealth to determine
if there is support for the suppression court’s findings. See Mathis, supra.
Instantly, Officer Weaver’s testimony about his observation of the vehicle
stopping in a fashion that blocked a crosswalk and intersection, clearly
supports the suppression court’s factual findings. Furthermore, such
observations were “sufficient to warrant a person of reasonable caution in
the belief that an offense has been … committed,” affording Officer Weaver
probable cause to stop the vehicle. See Rogers, supra. Therefore, we
conclude Appellant’s first sub-issue is meritless.
Appellant next claims that even if the stop was proper, Officer Weaver
lacked reasonable suspicion that any of the occupants were armed or
dangerous as to justify the weapon pat down and sweep search of the
vehicle, including Appellant’s backpack. Appellant’s Brief at 22. Appellant
asserts that Officer Weaver’s claimed concerns about Appellant’s walking
and being picked up at night in a high-crime area, the “stretching”
movements of the front-seat passenger, and the rapid heartbeat of the other
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back-seat passenger, did not constitute reasonable suspicion that anyone in
the car was armed or dangerous, or that any criminal activity was in
progress. Id. at 23-24.
Contrary to the trial court’s finding, these separate
actions by two of the passengers did not reasonably
lead Officer Weaver to believe that there might be a
weapon in the vehicle or in [Appellant’s] backpack.
Officer Weaver did not possess the requisite
suspicion to believe that there was a weapon in [the
driver’s] vehicle, or in [Appellant’s] backpack.
Id. at 24.
The parties agree that the weapon sweep constituted an investigative
detention governed by Terry v. Ohio, 392 U.S. 1 (1968), and required the
police to have reasonable suspicion that criminal activity was underway, or
that an occupant was armed and dangerous. Appellant’s Brief at 22;
Commonwealth’s Brief at 14.
“A Terry search, unlike a search without a warrant
incident to a lawful arrest, is not justified by any
need to prevent the disappearance or destruction of
evidence of crime. The sole justification of the
search is the protection of police officers and others
nearby.” [Michigan v. Long, 463 U.S. 1032, 150
n14 (1983)] (citation and quotation omitted). The
Court stated that an officer must therefore have
reasonable suspicion that the person subject to the
stop has a weapon in order to conduct a lawful
search of the passenger compartment of a vehicle at
the time of the stop. Id.
In Commonwealth v. Morris, 537 Pa. 417, 644
A.2d 721 (1994), our Supreme Court applied the
standard announced in Long to validate a vehicle
search conducted during a traffic stop, finding the
reasoning set forth in Long to be applicable to
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Article I, Section 8 of the Pennsylvania Constitution.
Id. at 422 n.3, 644 A.2d at 724 n.3.
Commonwealth v. Cartagena, 63 A.3d 294, 299 (Pa. Super. 2013) (en
banc) (footnotes omitted), appeal denied, 70 A.3d 808 (Pa. 2013). “An
officer may conduct a Terry [search] for weapons if a reasonably prudent
man in the circumstances would be warranted in the belief that his safety or
that of others was in danger.” Commonwealth v. Kondash, 808 A.2d 943,
948 (Pa. Super. 2002) (internal quotation marks and citations omitted).
Such a belief must be based on “specific and articulable facts, that the
detained individual may be armed and dangerous.” Commonwealth v.
Clemens, 66 A.3d 373, 381 (Pa. Super. 2013) (citation omitted). Further, a
determination of whether reasonable suspicion exists must be based on the
totality of the circumstances and involves a fact-specific case-by-case
inquiry. Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super.
2014), appeal denied, 102 A.3d 983 (Pa. 2014). “[W]here a sufficient
number of [circumstances] coalesce, reasonable suspicion will be found.”
Id.
The courts also have plainly held that officer safety
concerns are heightened during traffic stops. The
United States Supreme Court recently emphasized
that “[t]raffic stops are especially fraught with
danger to police officers, so an officer may need to
take certain negligibly burdensome precautions in
order to complete his mission safely.” Rodriguez v.
United States, 135 S. Ct. 1609, 1616 (2015)
(internal quotation marks and citations omitted).
Safety concerns are even greater when the motor
vehicle stop occurs at night.
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Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008).
Our review of the suppression hearing transcript leads us to conclude
the suppression court’s findings are supported and the totality of the
circumstances supports Officer Weaver’s reasonable suspicion that one or
more of the occupants of the vehicle might be armed. Here, the
combination of factors included the fact that the activity occurred late at
night in a high crime area. In addition, Officer Weaver, upon approaching
the vehicle, noted two passengers exhibited excessive nervousness. One did
so by stretching in a stress-induced “flight or fight” manner, including
repeatedly reaching down to his feet and the floorboard, and the other
passenger exhibited extreme nervousness and an accelerated heartbeat.
N.T., 10/17/14, at 25-27. We have previously held that a similar set of
circumstances supported a reasonable suspicion that justified a Terry search
for weapons. See Commonwealth v. Buchert, 68 A.3d 911 (Pa. Super.
2013) (holding police had a reasonable suspicion for a weapon search
where, upon approaching a vehicle during a nighttime traffic stop, the police
noticed the defendant exhibiting nervous behavior and furtive movements),
appeal denied, 83 A.3d 413 (2014). Instantly, there was the additional
consideration of the area being a high-crime neighborhood. See
Commonwealth v. Thompson, 985 A.2d 928, 936 (Pa. 2009) (noting the
fact that a stop occurs in a high crime area when coupled with other factors
may support reasonable suspicion of dangerous or illegal activity).
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Appellant also argues that the nervousness and behavior of the other
passengers did not justify a search of his person and his backpack.
Appellant offers no authority that, once a reasonable suspicion that a
member of a group may be armed, a police officer is limited in searching
only the members of the group exhibiting certain behavior, and we reject the
contention. While a Terry search is limited in scope, once justified, an
officer may search the entire area in which a weapon might be readily
accessible. See, e.g., Commonwealth v. Murray, 936 A.2d 76 (Pa.
Super. 2007) (upholding a protective search of the interior of a vehicle
where police officers stopped a defendant for a motor vehicle violation, in a
high crime area, and officers saw “excessive movement” inside the car). We
therefore conclude Appellant’s second sub-issue is also meritless.
In light of the foregoing, we discern no error by the suppression court
in denying Appellant’s omnibus pretrial motion to suppress the evidence
obtained in the traffic stop and Terry search of Appellant’s backpack.
Accordingly, we affirm the February 19, 2015 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2016
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