Com. v. Archer, A.

J-S59006-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ABDUL ARCHER :
:
Appellant : No. 1099 EDA 2018
Appeal from the Judgment of Sentence March 23, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002293-2017
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 21, 2019
Abdul Archer appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, after the Honorable Susan I.
Schulman convicted him, following a nonjury trial, of numerous violations of
the Uniform Firearms Act (“VUFA”).1 On appeal, Archer challenges the denial
of his motion to suppress. After careful review, we affirm.
The trial court set forth the facts of this matter as follows:
[T]he Commonwealth presented the testimony of Philadelphia
Police Officers Janel Craig ("Officer Craig") and Christopher
Fernandez ("Officer Fernandez"). Officer Craig testified that
around 1:00 p.m. on January 31, 2017, she and another officer,
Officer Linquest, were patrolling the area of 2700 West Sedgley
Avenue in the [C]ity and [C]ounty of Philadelphia, Pennsylvania.
In this vicinity, Officer Craig observed a black male—i.e.,
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1 See 18 Pa.C.S.A. §§ 6101-6128. Specifically, Archer was convicted of
persons not to possess firearms, 18 Pa.C.S.A. § 6105; firearms not to be
carried without a license, 18 Pa.C.S.A. § 6106; and carrying firearms on the
public streets of Philadelphia, 18 Pa.C.S.A. § 6108.
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[Archer]—driving directly in front of her in a silver Kia Amanti.
Officer Craig recognized the vehicle from her prior foot beat
experience in that neighborhood and believed it belonged to
[Archer], whom Officer Craig had stopped as a pedestrian multiple
times pursuant to roll call complaints.
It appeared to Officer Craig that [Archer] was about to drive
through the red light of an approaching intersection but then
“slammed on his brakes” upon observing the patrol car behind
him. Once [Archer] slammed on his brakes, Officer Craig
slammed on her brakes to prevent a collision. With her attention
now focused on [Archer’s] vehicle, Officer Craig followed [Archer]
for nearly two blocks and checked his vehicle’s tags with the
Philadelphia Crime Information Center/National Crime
Information Center ("PCIC/NCIC"). All the while, [Archer]
continually peered at Officer Craig through his vehicle’s rearview
and sideview mirrors.
The PCIC/NCIC check revealed that the vehicle’s registration had
expired and that the vehicle’s owner was an individual named
“Shervon Banks.” Because driving a vehicle with an expired
registration violated the [M]otor [V]ehicle [C]ode, Officer Craig
conducted a vehicle stop. Before exiting her patrol car, Officer
Craig observed that:
Prior to exiting the vehicle, I made several observations of
[Archer] in the vehicle. I observed that he was continuously
look[ing] through his rearview, his side mirror. He was
reaching down at the floor area-what looked like the floor
area. But I could just see him dipping down multiple times
towards the passenger seat floor area and adjusting in his
seat.
Because [Archer’s] movements convinced her that danger may be
afoot, and because her temporary partner (Officer Linquest) was
a rookie, Officer Craig used her cell phone to call her regular day-
to-day partner, Officer Fernandez, for backup.
After speaking with Officer Fernandez, Officer Craig exited her
patrol car and approached the driver’s side of [Archer’s] vehicle.
Officer Craig asked [Archer] for his license, registration, and
insurance information. Officer Craig testified that [Archer] was
very nervous and his voice was shaky. Upon receiving [Archer’s]
license and other vehicle documentation, Officer Craig returned to
her patrol car and awaited the arrival of Officer Fernandez. She
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informed Officer Fernandez of [Archer’s] nervous behavior and
irregular maneuvering inside the vehicle.
Officer Fernandez testified that on the above date and time he
received a call from Officer Craig about a vehicle stop a few blocks
from where he was patrolling. Officer Fernandez and his
temporary partner, Officer Matthews, responded to the location
within two minutes. Officer Fernandez testified that the location
was a “high crime area with firearms and a lot of shootings.” In
fact, only a few blocks from the location was a police-designated
“grid” area, where police post two permanent cars “on a block-to-
block radius 24/7 just because there’s a lot of shootings.”
Upon arrival, Officer Fernandez was told by Officer Craig that she
recognized [Archer] from prior pedestrian stops, and that [Archer]
was moving around a lot in the vehicle and was very nervous.
Officer Fernandez approached [Archer’s] vehicle and initially tried
to relax [Archer] by “joking around” with him. Officer Fernandez
then asked [Archer] whether there was anything in the vehicle
that [he] should know about, and [Archer] replied “no.” Officer
Fernandez also asked [Archer] whether Officer Fernandez could
search the vehicle, and [Archer] consented.
Officer Fernandez thereafter requested [Archer] to exit the
vehicle. [Archer] quickly stepped outside and began walking past
Officer Fernandez, but Officer Fernandez stopped him and asked
him to put [his] hands on top of the vehicle. When [Archer]
complied and placed his hands on top of the vehicle, he leaned
the front of his body directly against the vehicle so as to block
Officer Fernandez from accessing the front of his body. Officer
Fernandez believed at this point that his safety and the safety of
his fellow officers could be compromised so he commenced a pat-
down of [Archer’s] outer clothing for weapons. Since he couldn’t
touch the front of [Archer’s] pockets because of [Archer’s]
position, he told [him] to step back. At that point Officer
Fernandez felt the exterior of [Archer’s] right pants pocket and
immediately felt a firearm. Officer Fernandez testified that he
possessed the same type of small firearm and thus immediately
knew that the object he felt was a gun.
At this point[, Archer] ran. Officer Fernandez gave chase, then
fell in the middle of the street but quickly rose, pulled out his taser,
told [Archer] to stop multiple times, and yelled “taser, taser,
taser.” Officer Fernandez then used his taser and “subdued”
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[Archer] on the ground. Once [Archer] was placed in handcuffs,
Officer Craig removed the handgun from [Archer’s] pants pocket.
Trial Court Opinion, 1/23/19, at 2-5 (citations to record omitted).
Archer was arrested and charged with the above offenses. He filed a
pre-trial motion seeking to suppress, as “fruit of the poisonous tree,” the
evidence obtained as the result of Officer Fernandez’s frisk. After a hearing,
the trial court denied the motion. Archer proceeded immediately to a nonjury
trial, after which the court convicted him on all charges. On February 20,
2018, the court sentenced Archer to concurrent terms of 1½ to 3 years’
imprisonment, plus five years’ consecutive probation, for the convictions
under sections 6106 and 6108, and a consecutive 5 year term of probation on
the section 6105 conviction. Archer filed a post-sentence motion challenging
the trial court’s suppression ruling, which was denied on March 8, 2018. On
March 23, 2018, the trial court, apparently sua sponte, entered a new
sentencing order, imposing a term of incarceration of 1½ to 3 years on the
section 6106 violation, followed by two concurrent 5-year terms of probation
on the section 6105 and 6108 violations.2
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2 The court amended its sentencing order because the original sentence for
Archer’s section 6106 conviction exceeded the statutory maximum. The court
issued its amended sentencing order more than 30 days after the imposition
of Archer’s original judgment of sentence. See 42 Pa.C.S.A. § 5505 (court
may modify or rescind order within 30 days after its entry). However,
notwithstanding section 5505, trial courts possess the inherent power to
correct obvious and patent errors in their original orders, even absent
traditional jurisdiction over their cases. See Commonwealth v. Holmes,
933 A.2d 57 (Pa. 2007) (trial court may correct patently illegal sentence even
if it lacks jurisdiction under section 5505).
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Archer filed a timely notice of appeal, followed by a court-ordered
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Archer raises a single question for our review:
Was not the frisk of [Archer] unlawful under both the Fourth
Amendment of the United States Constitution and Article 1,
Section 8 of the Pennsylvania Constitution, where police lacked
reasonable suspicion that [Archer] had committed a crime and
that he was armed and dangerous?
Brief of Appellant, at 3.
This Court's well-settled standard of review of a denial of a motion to
suppress evidence is as follows:
[Our review] 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,
[we are] 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 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) (citation
omitted).
Archer claims that neither Officer Craig nor Officer Fernandez
“articulated facts that would establish a reasonable suspicion that criminal
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activity was afoot or that [] Archer was armed and dangerous.” Brief of
Appellant, at 12. Archer argues that Officer Craig could not have believed that
he was armed and dangerous based on her observations of him, as she
interacted with him prior to Officer Fernandez’s arrival without asking Archer
to exit the vehicle or even to keep his hands on the steering wheel. Archer
further argues that Officer Fernandez’s testimony does not provide any
additional factual basis for a finding of reasonable suspicion. We disagree.
Our Supreme Court has recognized expressly that an officer conducting
a valid traffic stop may order the occupants of a vehicle to alight to assure his
own safety. See Commonwealth v. Freeman, 757 A.2d 903, 907 n.4
(2000), citing Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) and
Maryland v. Wilson, 519 U.S. 408, 415 (1997). “If, during the course of a
valid investigatory stop, an officer observes unusual and suspicious conduct
on the part of the individual which leads him to reasonably believe that the
suspect may be armed and dangerous, the officer may conduct a pat-down of
the suspect’s outer garments for weapons.” Commonwealth v. E.M./Hall,
735 A.2d 654, 659 (Pa. 1999). See also Terry v. Ohio, 392 U.S. 1, 24
(1968) (officer may conduct pat-down for weapons where there are
reasonable grounds to believe person may be armed and dangerous). In order
to establish reasonable suspicion, the police officer must articulate specific
facts from which he or she could reasonably infer that the individual was
armed and dangerous. See Commonwealth v. Gray, 896 A.2d 601, 606
(Pa. Super. 2006). “The officer need not be absolutely certain that the
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individual is armed; the issue is whether a reasonably prudent person in the
circumstances would be warranted in the belief that his safety or the safety of
others was in danger.” Terry, 392 U.S. at 27. When assessing the validity
of a Terry stop, we examine the totality of the circumstances, see id., giving
due consideration to the reasonable inferences that the officer can draw from
the facts in light of his experience, while disregarding any unparticularized
suspicion or hunch. See Commonwealth v. Zhahir, 751 A.2d 1153, 1158
(Pa. 2000).
We first note that Officer Craig lawfully pulled Archer over because, after
observing him nearly cause an accident, she discovered that he was driving a
vehicle with an expired registration. Informed by Officer Craig of Archer’s
nervous behavior and irregular maneuvers, Officer Fernandez also had the
right to ask Archer to step out of the vehicle. Freeman, supra. Thus, the
sole question before us is whether Officer Fernandez had reasonable suspicion
to perform the pat-down which resulted in the discovery of the weapon at
issue in this case.
In Commonwealth v. Parker, 957 A.2d 311 (Pa. Super. 2008), an
officer pulled the defendant over for a broken brake light. When stopped
behind the vehicle, the officer noticed that the driver, Parker, “began to reach
down, dipping his shoulders right and left.” Id. at 313. This movement
caused the officer to believe that the defendant might have been concealing
a weapon. After ordering Parker out of the car, the officer performed a pat-
down, which resulted in the discovery of objects the officer believed to be
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cocaine, as well as a pipe used to smoke cocaine. In affirming the trial court’s
denial of Parker’s suppression motion, we concluded that “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.”
Id. at 316. We further noted that 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.” Id., quoting Commonwealth v.
Stevenson, 894 A.2d 759, 772 (Pa. Super. 2006). Accordingly, we found the
police officer did not unlawfully search Parker.
Here, the circumstances warrant a finding of reasonable suspicion even
more clearly than in Parker. While driving behind Archer, Officer Craig
observed him “continuously look[ing] through his rearview mirror, his side
mirror. He was reaching down at the floor area—what looked like the floor
area. But I could just see him dipping down multiple times towards the
passenger seat floor area and adjusting in his seat.” N.T. Suppression Motion
Hearing, 10/30/17, at 8. When Officer Fernandez arrived on the scene, which
he characterized based on his experience as a “[h]igh-crime area with firearms
and a lot of shootings,” id. at 48, Officer Craig relayed her observations to
him and advised him that Archer appeared nervous. Id. at 22. Officer
Fernandez then approached Archer and tried to “make him calm down by
joking around with him.” Id. at 38. Officer Fernandez testified that Archer
was “shaky” and “nervous” during their interaction. Id. at 49. After Archer
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agreed to allow Officer Fernandez to search the vehicle, Officer Fernandez
requested that Archer exit the car and place his hands on the hood. In doing
so, Archer leaned the front of his body against the vehicle, which prevented
Officer Fernandez from reaching his front pockets. Officer Fernandez testified
as follows:
Q. Did the fact that you were at 2700 West Sedgley Avenue
factor, at all, as to whether or not you felt that you[r] safety was
an issue?
A. Yes. And especially, when he did force his body against the
vehicle, that was definitely a big hit for me.
Id.
Based upon the totality of circumstances recited above, we conclude
that Officer Fernandez’s search was justified by a reasonable suspicion that
Archer was armed and dangerous. Terry, supra. The officers were
interacting with Archer in a high-crime area where firearms were prevalent;
Archer was “shaky,” acting nervously and making furtive “dipping”
movements. In addition, he tried to prevent Officer Fernandez from accessing
his front pockets as if in an attempt to conceal something. The suppression
court’s factual findings are supported by the record, Jones, supra, and the
court did not err in denying Archer’s suppression motion.3
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3 Archer’s reliance on Commonwealth v. Reppert, 814 A.2d 1196 (Pa.
Super. 2002) (en banc), is misplaced. Unlike the case before us, Reppert did
not involve a question of the propriety of a Terry frisk during the pendency
of a vehicle stop. Rather, Reppert involved an officer’s ability to remove a
passenger from a vehicle and order him to empty his pockets while conducting
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Judgment of sentence affirmed.
Judge McLaughlin join the Memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/19
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an investigative detention after the vehicle stop had concluded. Thus,
Reppert is not controlling.
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