Com. v. Schonfeld, B.

J-A12037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRANDON T. SCHONFELD,
Appellant No. 390 EDA 2015
Appeal from the Judgment of Sentence December 9, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0007738-2013
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 24, 2016
Brandon T. Schonfeld (“Appellant”) appeals from the judgment of
sentence entered by the Court of Common Pleas of Delaware County after a
jury convicted him of Possession with Intent to Deliver a Controlled
Substance (Cocaine) (“PWID”), Aggravated Assault, Assault of Law
Enforcement Officer, Firearms Not to be Carried Without a License, and a
later finding of guilt as to Persons Not to Possess, Use, Manufacture, Control,
Sell or Transfer Firearms.1 Sentenced to an aggregate term of incarceration
of 31.5 to 63 years, Appellant challenges the validity of his seizure, an
evidentiary ruling of the court, and the trial court’s jurisdiction to bifurcate a
criminal trial with respect to the Persons Not to Possess charge. We affirm.
____________________________________________
1
35 P.S. 780-113(a)(30), 18 P.S. § 2702(a)(6), 18 P.S. § 2702.1(a), 18
P.S. § 6106(a)(1), 18 P.S. § 6105(a)(1), respectively.
*Former Justice specially assigned to the Superior Court.
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The trial court aptly summarizes the factual and procedural histories of
the case as follows:
On September 9, 2013, at approximately 3:15 p.m., Police
Officers from Sharon Hill Police Department arrested and
charged the Defendant, Brandon Schonfeld, with [the above-
referenced charges].
Officer Sean Johnson, a four and one-half year veteran with the
Sharon Hill Police Department, testified that he was on duty on
September 9, 2013, during the day-shift. (N.T. 10/21/14 at
164). He was in uniform and working in a stationary marked
patrol vehicle while he monitored the flow of traffic, eastbound
and westbound, on Chester Pike in the Borough of Sharon Hill,
Delaware County, Pennsylvania. (N.T. at 165-66). Specifically,
the Officer stated that he was located in the 1400 block of
Chester Pike where he was parked in a parking lot. (N.T. at
166).
While monitoring traffic from the Family Dollar parking lot,
Officer Johnson observed a white, four-door Nissan Altima with
windows tinted “so dark that [he] couldn’t see inside of the
vehicle.” (N.T. 3/11/14 at 12, 13); (N.T. 10/21/14 at 166). The
Officer continued: the window tint was “so dark that [I] couldn’t
see inside to how many occupants were in the vehicle.” (N.T.
3/11/14 at 13).
The Officer also testified that the white vehicle appeared to be
driving faster than the traffic that was driving in front of him.
(N.T. 3/11/14 at 12-13). The speed limit along the relevant part
of Chester Pike is 35 MPH. Officer Johnson testified that he
believed the vehicle was driving in excess of 35 MPH. (N.T.
3/11/14 at 16). The Officer testified that he felt the Defendant
was not driving at a safe and appropriate speed “because of the
time of day, 3:30 in the afternoon on a Monday, school was still
in session, and it was a nice day so there [were] people out
walking an unfortunately in Sharon Hill people don’t use the
crosswalks and they tend to cross the street in the middle of
Chester Pike.” (N.T. at 88).
Officer Johnson then exited the parking lot. (N.T. at 13). The
Officer proceeded to get behind the vehicle. (N.T. at 13). While
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behind the vehicle at a red light, the Officer testified, he could
not see a registration sticker displayed on the registration plate.
The Officer ran the license plate number through the mobile data
terminal (MDT) but no record was found for that license plate
number. (N.T. at 13, 14, 60). The Officer clarified that no
record was found because the license plate “was in temporary
tag status, which means that it was recently bought and it has
not yet been transferred from the dealer to the owner.” Officer
Johnson testified that the rear window of the vehicle was tinted
such a dark color that he was unable to see the temporary
registration that is supposed to be affixed to the back window of
the vehicle. (N.T. at 15). Officer Johnson also testified that the
driver of the vehicle pulled up close to the vehicle in front of
him, when the traffic light turned green. (N.T. at 62).
Officer Johnson then activated his emergency lights and sirens.
Once the vehicle pulled over to the right, the Officer conducted a
traffic stop in the 1000 block of Chester Pike. (N.T. at 15, 17).
The Officer testified that the patrol car video-camera was
functioning at the time of the traffic stop. (N.T. 10/21/14 at
210).[fn] [see also N.T. 3/11/14 at 37 et seq.]. The Officer exited
his vehicle and then made contact[fn]
[fn]
The video from the in-dash camera was played for the jury
and admitted into evidence as C-63 without objection. (N.T.
10/21/14 at 210).
with the driver, the Defendant in this case. Officer Johnson
testified that he could not see inside the vehicle until he was
standing at the driver-side door because the driver-side window
was rolled about halfway down at that point. (N.T. 3/11/14 at
17-18).
When the Officer approached the vehicle, he requested the
driver’s license, registration, and insurance. (N.T. at 18). The
Defendant provided his driver’s license, the temporary
registration paper, and his proof of insurance. (N.T. at 19).
With those documents in his hand, the MVR video showed the
Officer looking into the driver-side window and pointing to the
rear window because he could now see the temporary
registration sticker from the inside of the vehicle. (N.T. at 43).
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After receiving these documents, Officer Johnson returned to his
patrol vehicle to review the insurance information and temporary
registration paper. The Officer testified that he confirmed the
fact that the registration was in temporary status and there were
no questions about the status of the registration. (N.T. at 69).
Additionally, the Officer ran the Defendant’s driver’s license
through the MDT and NCIC to see if the driver’s license was
suspended or if the Defendant had any wants or warrants. (N.T.
at 19). The Officer testified that the Defendant had a valid
license with no wants or warrants on him. (N.T. at 19-20).
Officer Johnson then exited his patrol vehicle and began to
approach the driver’s side of the Defendant’s vehicle. As the
Officer was approaching the vehicle, the Officer could see the
Defendant looking at him in the side-view mirror on the driver’s
side of the vehicle. (N.T. at 20,21). The Officer testified that
this eye contact concerned him. He explained that he was
concerned because he learned from a street survival school,
which deals with officers who have been shot in the line of duty,
that a red flag is “if someone keeps making eye contact with you
or they keep wanting to know where you are, they will keep
looking in the rearview mirror, and in the side view mirrors.”
(N.T. at 22).
While approaching the vehicle, the Officer also observed the
Defendant moving around the driver’s compartment of the
vehicle. The Officer further clarified the Defendant’s movement
as “movement towards the right side of the driver’s
compartment. The shoulder dipped and it was towards the right
side of the driver’s compartment.” (N.T. at 20). Officer Johnson
testified that such movement was an officer safety concern
because “[y]ou are taught that if you can’t see their hands, the
hands are what is going to kill you. The issue is going to be in
the hands and you need to see the hands, and his hands were
obviously moving around the driver’s compartment.” (N.T. at
21).
The Officer then made contact with the Defendant for the second
time. (N.T. at 20). Officer Johnson testified that the Defendant
provided a description of his route that was inconsistent with
what the Officer had observed. (N.T. at 22). The Officer
explained that the Defendant stated that he was coming up
Sharon Avenue before he turned onto Chester Pike. (N.T. at
22). However, the Officer observed the Defendant on Chester
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Pike and was following the Defendant on Chester Pike when the
two of them passed the intersection of Sharon Avenue and
Chester Pike. (N.T. at 23).
Officer Johnson testified that he then advised the Defendant to
slow down due to the time of day. Officer Johnson also advised
the Defendant about the window tint on the windows. Finally,
the Officer advised the Defendant that he was not giving the
Defendant a citation for either of his violations. (N.T. at 20).
Officer Johnson then returned the Defendant’s driver’s license,
temporary registration paper, and insurance information to him.
After returning the documents to the Defendant, the Officer told
the Defendant that he was free to leave. (N.T. at 24).
After informing the Defendant that he was free to leave, Officer
Johnson asked the Defendant if there were any weapons or
narcotics in the vehicle. The Defendant stated that there were
no weapons or narcotics in the vehicle and removed his seatbelt.
At that point, Officer Johnson asked the Defendant what he was
doing. The Defendant responded that he thought the Officer was
going to ask the Defendant to get out. The Officer asked, “Why
would you think that[?]” (N.T. at 47).
At this point, the Officer testified that he was in fear due to the
fact that the Defendant’s hands were out of sight and he made
another movement towards the center console area. The MVR
depicts that the Officer briefly placed his hand on the butt of his
handgun. (N.T. at 47-48). Then, the Officer requested the
Defendant to step out of the vehicle “for officer safety, so a pat-
down for weapons could be performed.” (N.T. at 47). The
Defendant abruptly opened the door and struck Officer Johnson.
(N.T. at 25). The Defendant then exited the vehicle, with a
cigarette in his mouth and his documents in his left hand, and
began to walk towards the front of the vehicle. (N.T. at 25, 27).
Officer Johnson grabbed the back of the Defendant’s shirt and
guided him to the rear of the Defendant’s vehicle because
Chester Pike is a busy street. (N.T. at 24, 25).
When the Defendant arrived at the rear of his vehicle, Officer
Johnson requested the Defendant to place both his hands on the
trunk of his vehicle so the Officer could conduct a pat-down.
(N.T. at 28). During the pat-down, the Defendant was
positioned away from the Officer with his feet spread and hands
on the trunk. Officer Johnson requested the Defendant to keep
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his hands on the trunk of the vehicle but he picked his hands up
numerous times, including once to flick his cigarette into Chester
Pike. (N.T. at 31).
As the Officer began his pat-down, he felt a hard bulge on the
right side of the Defendant’s body near his waistband area. At
this point, the Officer believed it was a firearm. (N.T. at 29). As
the Officer moved his hand down the inside of the Defendant’s
leg towards the outside of his pocket area, the Officer felt what
he believed to be a large amount of United States currency.
(N.T. at 29). Then, the Officer removed his handcuffs and
attempted to handcuff the Defendant’s right hand because that
was the side that the Officer believed the firearm was on. (N.T.
at 31). Because the hinge part of the handcuff of the handcuff
hit the trunk lid and bounced back, the Officer was not able to
secure the handcuff on the Defendant’s right hand. (N.T. at 31-
32). At that time, the Defendant attempted to elbow the Officer
with his right elbow and swing his body around while saying,
“Why the fuck are you trying to arrest me[?]” (N.T. at 32).
Officer Johnson then punched the Defendant twice in the side of
the head. The Defendant stumbled to the ground and took off
on a diagonal northern path towards Barker Avenue. Officer
Johnson then ran alongside the Defendant’s vehicle and took a
wider path towards Barker Avenue. (N.T. at 32).
As he was running, the Officer testified that he was relaying to
his dispatch a physical description of the Defendant, the
Defendant’s direction of travel, and that the Defendant was
reaching for something in his waistband in the same area where
the Officer had believed he felt a handgun during the pat-down.
(N.T. at 32-33).
Officer Johnson testified that he saw the Defendant make a
sharp turn up Barker Avenue heading north. The Officer took a
wide turn onto Barker Avenue and observed the Defendant
hunched over in the middle of the street. The Officer testified
that the Defendant was reaching for something between his legs
while looking back at the Officer. Officer Johnson testified that
he saw a black object between the Defendant’s legs which he
knew was “in fact a firearm, there was no doubt about it.” (N.T.
at 33).
Officer Johnson’s firearm was out of its holster and pointing in
the Appellant’s direction. Officer Johnson testified that he gave
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the Appellant verbal commands to drop the gun and to get on
the ground. The Appellant did not respond to those commands.
Instead, he turned around and pointed his firearm at the Officer.
Officer Johnson testified that the Appellant’s firearm had a light
on the bottom of the rail that was illuminated with a bright white
light. (N.T. at 33). The bright white light was pointed “directly
at [the Officer].” (N.T. at 33-34). The Officer continued to give
verbal commands to drop the weapon and get on the ground.
After the Defendant refused to follow the commands, the Officer
shot at the Defendant with his weapon[, emptying three clips.]
(N.T. at 34-35, 79-80).
After Officer Johnson fired the gun, the Defendant and the
Officer continued on the northern path up Barker Avenue
“zigzagging in the street, going from one side to the other.”
(N.T. at 35). At about mid-block, the Defendant fell to the
ground and dropped the firearm onto the street. The Officer
shot and hit the Defendant in his lower torso in the back. (N.T.
10/21/14 at 192). The Defendant got up off of the ground,
picked up the firearm, and continued north on Barker Avenue
past Marshall Road. Officer Johnson testified that this was the
last time that he saw the Defendant that afternoon. (N.T.
3/11/14 at 35).
***
On January 6, 2014, Criminal Informations were filed against the
Appellant. On February 24, 2014, Appellant filed a Motion to
Suppress Evidence and a Suppression Hearing was held on
March 11, 2014. The Appellant’s Memorandum of Law in
Support of the Suppression Motion was filed April 14, 2014 and
the Commonwealth’s Suppression Memorandum of Law was filed
on April 28, 2014. On May 6, 2014, [the suppression court]
denied the Motion and issued [] Findings of Fact and Conclusions
of Law….
***
On October 21, 2014, a Jury Trial commenced. On October 24,
2014, the Jury found Appellant Guilty of: Possession With Intent
to Deliver a Controlled Substance (Cocaine), Aggravated Assault,
Assault of Law Enforcement Officer, Firearms Not to be Carried
Without a License, and a later finding of Guilt as to Persons Not
to Possess, Use, Manufacture, Control, Sell or Transfer Firearms.
Prior to sentencing, this Court ordered a Pre-Sentence
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Investigation, as well as a Psychological Evaluation and Drug and
Alcohol Evaluation.
On December 9, 2014, Appellant was sentenced [to an
aggregate 31.5 to 63 years in SCI]. (N.T. 12/9/14 pp. 33-34).
On December 16, 2014, the Appellant filed Post-Sentence
Motions and they were denied on January 9, 2015. On February
6, 2015, Appellant filed a timely Notice of Appeal. Consequently,
on February 9, 2015, this Court directed Appellant to file a
Concise Statement of Errors Complained of on Appeal pursuant
to Pa.R.A.P. 1925(b).
Trial Court Opinion, filed June 5, 2015, at 1-10.
Appellant presents the following three issues for our review:
I. May Officer Johnson intentionally create a permissible
reengagement, understanding that the first seizure in the
form of a traffic stop provided no reasons to detain, when
the dash cam video shows that the purported reason for
the second seizure, a furtive movement that prompted
Officer Johnson to handle his gun butt, came after the
second seizure?
II. Does a trial court abuse its discretion when it makes a
404(b) ruling to admit evidence of Appellant’s parole
status as of the date of the current offense relying on case
law that failed to address the facts or the argument here
that 404(b) requires the trial court to analyze prior bad
acts, not prior status?
III. Does the trial court have jurisdiction, even with the
agreement of counsel, to bifurcate a criminal trial in light
of the holding in Commonwealth v. Valentine?
Appellant’s brief at 9.
In addressing Appellant’s challenge to the suppression court’s denial of
his motion to suppress, we note that our standard of review is well-settled.
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With respect to an appeal from the denial of a motion to suppress, our
Supreme Court has declared:
Our standard of review in addressing a challenge to a trial
court's denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. When reviewing
the ruling of a suppression court, we must consider only the
evidence of the prosecution and so much of the evidence of the
defense as remains uncontradicted when read in the context of
the record as a whole. Where the record supports the findings of
the suppression court, we are bound by those facts and may
reverse only if the legal conclusions drawn therefrom are in
error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (internal
citations omitted). “Once a motion to suppress evidence has been filed, it is
the Commonwealth's burden to prove, by a preponderance of the evidence,
that the challenged evidence was not obtained in violation of the defendant's
rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047–1048 (Pa.Super.
2012) (en banc); see also Pa.R.Crim.P. 581(H). “It is within the
suppression court's sole province as factfinder to pass on the credibility of
witnesses and the weight to be given their testimony.” Commonwealth v.
Gallagher, 896 A.2d 583, 585 (Pa.Super. 2006). We may only consider
evidence presented at the suppression hearing. In re L.J., 79 A.3d 1073,
1085–87 (Pa. 2013).
“The Fourth Amendment to the [United States] Constitution and Article
I, Section 8 of [the Pennsylvania] Constitution protect citizens from
unreasonable searches and seizures.” Commonwealth v. McAdoo, 46
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A.3d 781, 784 (Pa.Super. 2012). “A search conducted without a warrant is
deemed [] unreasonable and therefore constitutionally impermissible, unless
an established exception applies.” Commonwealth v. Strickler, 757 A.2d
884, 888 (Pa. 2000).
To safeguard our right to be free from unreasonable searches and
seizures, “courts require police to articulate the basis for their interaction
with citizens in [three] increasingly intrusive situations.” McAdoo, 46 A.3d
at 784. Our Supreme Court has categorized these three situations as
follows:
The first category, a mere encounter or request for information,
does not need to be supported by any level of suspicion, and
does not carry any official compulsion to stop or respond. The
second category, an investigative detention, derives from Terry
v. Ohio[,392 U.S. 1 (1968)] and its progeny: such a detention is
lawful if supported by reasonable suspicion because, although it
subjects a suspect to a stop and a period of detention, it does
not involve such coercive conditions as to constitute the
functional equivalent of an arrest. The final category, the arrest
or custodial detention, must be supported by probable cause.
Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003).
“To determine if an interaction rises to the level of an investigative
detention, i.e., a Terry stop, the court must examine all the circumstances
and determine whether police action would have made a reasonable person
believe he was not free to go and was subject to the officer's orders.”
Commonwealth v. Stevenson, 832 A.2d 1123, 1127 (Pa.Super. 2003).
“An investigative detention, unlike a mere encounter, constitutes a seizure of
a person and thus activates the protections of Article 1, Section 8 of the
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Pennsylvania Constitution.” Id. “Accordingly, where the purpose of an
initial traffic stop has ended and a reasonable person would not have
believed that he was free to leave, the law characterizes a subsequent round
of questioning by the police as an investigative detention or arrest.”
Commonwealth v. Johnson, 833 A.2d 755, 762 (Pa.Super. 2003),
overruled on other grounds, Commonwealth v. Kemp, 961 A.2d 1247,
(Pa.Super. 2008) (en banc).
Here, the suppression court determined that Officer Johnson
commenced a second investigatory detention after telling Appellant he was
free to leave when he immediately reengaged Appellant with questions
about whether weapons and narcotics were in the vehicle. Decisional law of
this Commonwealth supports the court’s determination. Kemp, 961 A.2d at
1250-51 (reengagement constituted investigative detention where officer
returned license, shook driver’s hand, told him “to have a nice day,” and
allowed him to walk back to driver’s side door before asking him if there
were any “guns, drugs, or money” inside of vehicle). See also
Commonwealth v. Jones, 874 A.2d 108, 117 (Pa.Super. 2005) (holding
first citizen/police interaction ended when officer returned identification card
and rental agreement to appellant and informed him he was free to leave;
second investigative detention ensued when officer then asked for consent
to search automobile, thereby prohibiting Appellant from leaving).
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Our inquiry, therefore, turns to whether Officer Johnson possessed a
reasonable suspicion of weapon or narcotics possession by Appellant.
A police officer may detain an individual in order to conduct an
investigation if that officer reasonably suspects that the
individual is engaging in criminal conduct. Commonwealth v.
Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999). “This standard,
less stringent than probable cause, is commonly known as
reasonable suspicion.” Id. In order to determine whether the
police officer had reasonable suspicion, the totality of the
circumstances must be considered. In re D.M., 566 Pa. 445,
781 A.2d 1161, 1163 (2001). In making this determination, we
must give “due weight ... to the specific reasonable inferences
[the police officer] is entitled to draw from the facts in light of
his experience.” Cook, 735 A.2d at 676 (quoting Terry v. Ohio,
392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Also,
the totality of the circumstances test does not limit our inquiry to
an examination of only those facts that clearly indicate criminal
conduct. Rather, “even a combination of innocent facts, when
taken together, may warrant further investigation by the police
officer.” Cook, 735 A.2d at 676.
Commonwealth v. Rogers, 578 Pa. 127, 135, 849 A.2d 1185, 1190
(2004).
The “totality of circumstances” test applies to the case at bar, as we
have held that facts gathered during a valid, initial traffic stop may be
utilized to justify a subsequent investigatory detention occurring after a
police officer has indicated that a defendant is free to leave. Kemp, 961
A.2d at 1260 (overruling panel decisions in Commonwealth v. Ortiz, 786
A.2d 261 (Pa.Super. 2001) and Johnson limiting inquiry to observations
made between completion of first investigative detention and
commencement of reengagement).
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Here, the totality of circumstances observed by Officer Johnson during
the traffic stop Appellant supplied reasonable suspicion to support the
second investigative detention and pat-down for weapons in the interest of
officer safety. As noted by the suppression court:
The Officer testified to reasonable suspicion beyond the original
reasonable suspicion, which led to the traffic stop. The Officer
provided the Court with unrebutted, credible testimony. The
facts adduced by the Officer during the valid traffic stop provided
him with sufficient reasonable suspicion that criminal activity
was afoot justifying the investigatory detention. These facts
included:
• Initially, when approaching the vehicle to return
the documents to [Appellant], the Officer noticed
that the [Appellant] was looking at him in the side
view mirror on the driver’s side. N.T. 3/11/14 at
20, 21. This eye contact concerned him because
he learned from a street survival school, which
deals with officers who have been shot in the line
of duty, that a red flag is “if someone keeps
making eye contact with you or they keep
wanting to know where you are, they will keep
looking in the rearview mirror and in the side view
mirrors.” N.T. at 22.
• Also, while approaching the vehicle, the Officer
observed the [Appellant] moving around the
driver’s compartment of the vehicle; the
[Appellant] was moving “towards the right side of
the driver’s compartment” of the vehicle and the
[Appellant’s] shoulder dipped in that direction as
well. N.T. at 20. Officer Johnson testified that
such movement was an officer safety concern
because “[y]ou are taught that if you can’t see
their hands, the hands are what is going to kill
you. The issue is going to be in the hands and
you need to see the hands, and his hands were
obviously moving around the driver’s
compartment.” N.T. at 21.
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• The [Appellant] provided a description of his route
that was inconsistent with what the Officer
observed. For example, the [Appellant] stated
that he was coming up Sharon Avenue before he
turned onto Chester Pike. N.T. at 22. However,
the Officer observed the [Appellant] on Chester
Pike and was following the [Appellant] on Chester
Pike when the two of them passed the
intersection of Sharon Avenue and Chester Pike.
N.T. at 23.
Order Denying Defendant’s Motion to Suppress Evidence, filed May 6, 2014,
at 10-11.2
Based on these observations, the officer reasonably asked Appellant if
he was carrying a weapon in the car and, ultimately, conducted a protective
search. Notably, the officer posited this question in a seamless segue from
informing Appellant he was free to leave on the motor vehicle code-based
matters to asking immediately if he possessed a weapon.3. In this regard, it
____________________________________________
2
In conducting the reasonable suspicion inquiry in Rogers, our Supreme
Court recognized the importance of a police officer’s professional experience
in identifying suspicious circumstances from ostensibly innocuous situations,
such as, for example, knowing that the presence of an open box of laundry
detergent in a car interior suggests an attempt to mask the odor of illegal
narcotics. Id. at 1190. Similarly, it was undisputed at the suppression
hearing that it is part of police training, which is based on field experience,
that driver conduct such as persistent use of mirrors to keep track of an
officer’s location during a stop and placing one’s hands where an officer
cannot see them represent warning signs of a driver posing a danger to the
officer. Indeed, Officer Johnson testified that his officer training emphasized
these warning signs, which were exhibited by Appellant during the stop.
3
The dashboard camera recording depicts Officer Johnson addressing
Appellant at the driver’s side window for approximately one and one-half
minutes before returning Appellant’s papers while continually speaking to
(Footnote Continued Next Page)
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is apparent that the officer was concerned about both suspected criminality
and his own safety while standing at the driver’s side window. When
Appellant reacted by unilaterally removing his seatbelt and returning his
hands down to the area of his right hip and the center console, out of the
sight of Officer Johnson, the officer’s concerns were amplified and he
ordered Appellant out of the car for a weapons pat-down.
We have previously held that movements of this kind during a traffic
stop create reasonable suspicion of weapon possession justifying a
protective search.
During the suppression hearing, the officer provided specific
facts explaining why he had reason to believe Parker was armed
and dangerous, which he observed immediately after he stopped
and pulled behind him. The officer explained his reasons for
patting down Parker as follows:
Q: What was your original reason for patting him
down?
A: The furtive movements I observed upon stopping
him, reaching down to his right and to his left.
Q: Why would you pat him down because of those
movements?
A: Based on his movements, my safety in my opinion
was in jeopardy, because I didn't know if he was
trying to get a weapon or not. I wanted to be sure
he did not possess a weapon, so we were both safe
on the traffic stop.
_______________________
(Footnote Continued)
Appellant for another twenty to thirty seconds until Appellant alights the
vehicle. It is during this brief time immediately after returning the papers,
according to Officer Johnson, that he asked about weapons and observed
additional furtive movement—including Appellant’s unsolicited removal of his
seatbelt and his quick placement of hands down to his right side out of the
officer’s sight.
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N.T., 7/10/07, at 7. At the suppression hearing, the officer also
described Parker's movements as “shoulders dipping from side to
side as if he was trying to retrieve something.” Id. at 12.
On very similar facts, we have previously found that an officer
articulated sufficient facts to constitute reasonable suspicion for
a pat-down. In [Commonwealth v. Wilson, 927 A.2d 279(Pa.Super. 2007)] immediately after the officer stopped and
pulled behind the defendant, he observed him “looking into his
rear view and side mirrors and his “shoulders and stuff” were
moving around.” 927 A.2d at 284. The defendant's “suspicious
gestures and movements, in conjunction with the fact that he
placed his hands inside his coat pocket as if he were reaching for
something, could lead Officer Gunter to reasonably conclude that
his safety was in jeopardy.” Id. at 284–285. See also
Commonwealth v. Mack, 953 A.2d 587 (Pa.Super. 2008) (the
officer could have reasonably concluded that his safety was in
jeopardy and so was justified in subjecting the defendant to a
Terry frisk based on the defendant's “reaching movements in
the vehicle while the officer approached,” coupled with the time
of day, the defendant's nervousness, and his lack of proper
identification); Commonwealth v. Murray, 936 A.2d 76, 77
(Pa.Super. 2007) (the officer articulated sufficient facts to lead
him to conclude the defendant could have been armed and
dangerous due to his “excessive movement inside the vehicle,”
in addition to the hour of night and the fact that the
neighborhood was a well-known narcotics area).
Examining the totality of the circumstances, the suspicious
gestures and movements of Parker could have caused the officer
to reasonably conclude, in light of his experience, that Parker
was armed and dangerous. We “must be guided by common
sense concerns that give preference to the safety of the police
officer during an encounter with a suspect where circumstances
indicate that the suspect may have, or may be reaching for, a
weapon.” Stevenson, 894 A.2d [759, 772 (Pa.Super. 2006)]
(citation omitted). Accordingly, the police officer did not
unlawfully search Parker.
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Commonwealth v. Parker, 957 A.2d 311, 315-16 (Pa.Super. 2008). See
also Jones, 874 A.2d at 120 (factoring in the reasonable suspicion inquiry
the driver’s inconsistent statements about course taken on his trip).
In much the same way, the circumstances discerned by Officer
Johnson during the course of his valid motor vehicle stop of Appellant
justified both his follow-up question about weapon possession and his
subsequent request that Appellant alight the vehicle for a protective pat-
down. This sequence of observations provided a valid basis for Appellant’s
arrest and the search and seizure of both his firearm and the narcotics found
in his vehicle. Accordingly, we shall not disturb the order of the suppression
court denying Appellant’s motion to suppress.
In Appellant’s second claim, he contends the court’s pre-trial ruling to
admit evidence that Appellant was on parole on the date of his encounter
with Officer Johnson constituted reversible error. We disagree.
[Our] standard of review for a trial court's evidentiary
rulings is narrow. The admissibility of evidence is solely within
the discretion of the trial court and will be reversed only if the
trial court has abused its discretion. An abuse of discretion is
not merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will
or partiality, as shown by the evidence of record.
Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa.Super. 2013) (internal
quotations and citations omitted). Furthermore, “[t]o constitute reversible
error, an evidentiary ruling must not only be erroneous, but also harmful or
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prejudicial to the complaining party.” Commonwealth v. Lopez, 57 A.3d
74, 81 (Pa.Super. 2012) (internal quotations and citations omitted).
Initially, we address the trial court’s response that Appellant has
waived this claim by presenting it in a Pa.R.A.P. 1925(b) statement too
vague to have allowed the court to discern the specific challenge raised.
Appellant’s Pa.R.A.P. 1925(b) statement on this claim stated the following:
The Trial Court erred and abused its discretion when it denied
Appellant’s motion in limine to exclude, and granted the
Commonwealth’s 404(b) motion to include, evidence of Mr.
Schonfeld’s parole status as of the date of the allegations at
hand. The ruling stripped Appellant of his right to counsel, to
the presumption of innocence, to a fair and impartial jury, to due
process, and to the prohibition against double jeopardy. The
Court’s action violated Pennsylvania and United States rights.
Appellant’s Pa.R.A.P. 1925(b) statement, filed April 2, 2015. The court
opines that meaningful review of this claim could not be taken because the
statement provided nothing more than a “litany of constitutional rights that
the Appellant avers were violated [and constituted a statement] so vague
and overly broad that it does not identify a specific error raised on appeal.
This statement is the functional equivalent of no Concise Statement at all.
Commonwealth v. McCree, 857 A.2d 188, 192 (Pa.Super. 2004), aff’d,
924 A.2d 621 (Pa. 2007).” Trial Court Opinion at 13. We agree.
The Superior Court has stated “when issues [in a Rule 1925(b)
statement] are too vague for the trial court to identify and address, that is
the functional equivalent of no concise statement at all.” Commonwealth
v. Smith, 955 A.2d 391, 393 (Pa.Super. 2008) (en banc) (citation omitted).
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Thus, “when an appellant fails to identify in a vague Pa.R.A.P.1925(b)
statement the specific issue he/she wants to raise on appeal, the issue is
waived, even if the trial court guesses correctly and addresses the issue in
its Pa.R.A.P. 1925(a) opinion.” Commonwealth v. Lemon, 804 A.2d 34,
38 (Pa.Super. 2002).
Here, Appellant’s statement, representing nothing more than a
catalogue of basic rights, failed to apprise the trial court of the actual
challenge he would raise in this regard, i.e., that the court erroneously relied
on what Appellant contends was inapposite decisional law to reach the
conclusion that the probative value of Appellant’s parole status as proof of
motivation to injure Officer Johnson if necessary to escape arrest
outweighed the prejudicial impact of other bad acts evidence. Indeed,
nothing in the concise statement’s broadly-stated recital of general rights so
much as alludes to this argument. Accordingly, we agree with the trial court
that its ability to review Appellant’s claim meaningfully was sufficiently
hampered by Appellant’s statement to warrant the sanction of waiver.4
____________________________________________
4
Even if we were to review this claim on the merits, we would find it
meritless. In Commonwealth v. Mollett, 5 A.3d 291 (Pa.Super. 2010),
this Court held that evidence of the appellant’s state parole status provided
probative evidence of his motive to commit murder in order to avoid being
captured and returned to state prison for violating parole and, accordingly,
outweighed its prejudicial impact. Here, Appellant, a parolee, was carrying a
firearm and transporting narcotics when Officer Johnson encountered him.
His parole status was, therefore, as the trial court opines, “relevant and
necessary to establish the Appellant’s motive and intent to attack Officer
Johnson and flee the scene. He had motive and intent not to be returned to
(Footnote Continued Next Page)
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In Appellant’s third and final claim, he contends that the trial court’s
order bifurcating the charge of Persons Not to Possess Firearms violated this
Court’s decision in Commonwealth v. Valentine, 191 A.3d 801 (Pa.Super.
2014), in which we held that “the trial court performed an impermissible
legislative function by creating a new procedure in an effort to impose the
mandatory minimum sentences in compliance with Alleyne [v. United
States, 133 S.Ct. 2151 (2013)].” Id. at 811. Specifically, Appellant
contends that Valentine extends beyond Alleyne’s mandatory minimum
concerns and applies to prohibit any trial court attempt to effectively
legislate a new procedure not authorized by statute or rule.
As was the case with Appellant’s previous claim, the present claim is
subject to Pa.R.A.P. 1925 waiver doctrine, for Appellant altogether failed to
raise this claim in his concise statement. See Pa.R.A.P.1925(b)(4)(vii)
(providing issues not included in the Rule 1925(b) statement or raised in
accordance with Rule 1925(b)(4) are waived; see also Commonwealth v.
Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by rule on other
grounds as stated in Commonwealth v. Burton, 973 A.2d 428, 431
(Pa.Super. 2009).
_______________________
(Footnote Continued)
prison on new firearms and drug charges, not to receive state parole back
time, and to avoid an increased potential sentence due to his substantial
prior criminal record.” Trial Court Opinion at 15. We agree that our
rationale employed in Mollett applies with equal force in the case sub
judice, and we would, therefore, reject Appellant’s claim on such basis if we
addressed it on the merits.
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Even if we were to address this claim, we would discern no merit to it.
In Valentine, this Court clearly confined its decision to matters involving
Alleyne and mandatory minimum sentencing provisions. See Valentine,
101 A.3d at 811 (“We find that it is manifestly the province of the General
Assembly to determine what new procedures must be created in order to
impose mandatory minimum sentences in Pennsylvania following Alleyne.”;
“[T]he trial court performed an impermissible legislative function by creating
a new procedure in an effort to impose the mandatory minimum sentences
in compliance with Alleyne.”) (emphasis added). We, therefore, see no
support for Appellant’s suggestion that Valentine extends to the bifurcation
of his Persons Not to Possess charge from the remaining charges. Moreover,
as conceded by Appellant, unlike in Valentine, there was no relevant,
governing statutory language from which the trial court deviated when it
decided to bifurcate the proceedings. For that matter, the court settled on
bifurcated proceedings with the consent of both parties and in the interest of
avoiding prejudice to Appellant. Therefore, were we to decide this issue on
its merits, we would reject it.
Judgment of Sentence is AFFIRMED.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2016
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