Com. v. Reed, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TERRANCE REED, JR. : No. 1607 EDA 2021
Appeal from the Order Entered July 15, 2021
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0006748-2019
BEFORE: BOWES, J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 30, 2022
The Commonwealth of Pennsylvania appeals from the order, entered in
the Court of Common Pleas of Delaware County, granting Terrance Reed, Jr.’s
pre-trial suppression motion.1 After review, we affirm.
At 3:17 a.m., on July 11, 2019, Darby Borough Police Officer Albert
Hunger observed a man, later identified as Reed, asleep in the driver’s seat of
a parked, running car in a private parking area on the 700 block of Commerce
Street.2 N.T. Suppression Hearing, 10/13/20, at 4-14. At the suppression
1 The Commonwealth certified that the suppression order has substantially
handicapped its prosecution of the case, pursuant to Pa.R.A.P. 311(d). See
Commonwealth v. Jones, 69 A.3d 180, 185 (Pa. 2013) (Commonwealth’s
appeal of suppression order proper where Commonwealth certifies in good
faith that order substantially handicaps prosecution).
2 Reed was parked at a dead-end path behind a church. Officer Hunger
testified that the pastor of the church only permits certain people to park in
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hearing, Officer Hunger testified this is a high-crime area, known by officers
for illegal drug activity. Id. at 27. Once backup arrived, Officer Hunger
recorded the car’s license plate information, and then knocked on the driver’s
seat window to awaken Reed. Id. at 18. Reed responded and opened the car
door, at which time Officer Hunger immediately smelled the odor of marijuana.
Id. at 18. Officer Hunger noted Reed’s glassy and bloodshot eyes and slow
speech, which led him to believe that Reed was under the influence. Id. at
21.
Reed exited the car and told Officer Hunger that the vehicle he was
occupying was registered to a female.3 Id. at 36. A backup officer put Reed
in wrist restraints while Officer Hunger conducted a search of the vehicle. Id.
at 41-42. During the search, Office Hunger found a loaded Glock 42 handgun
underneath a floormat on the driver’s side and marijuana under the driver’s
seat. Id. at 23. The vehicle was towed and subjected to an inventory search.
Id. at 61.
that area, and that the vehicle Reed was sleeping in was not one of the
vehicles permitted. N.T. Suppression Hearing, 10/13/20, at 19-20.
3The vehicle was registered to Nadine Bogle. See id., 6/2/21, at 15. Officer
Hunger testified that he believed Reed had permission to use the vehicle
because the vehicle was not reported as stolen. Id. at 39; see also id.,
10/13/20, at 36-39.
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Reed was subsequently arrested and charged with possession of a
prohibited firearm,4 carrying a firearm without a license,5 receiving stolen
property,6 possession of an offensive weapon,7 use of drug paraphernalia,8
possession of marijuana,9 and public drunkenness.10 On February 28, 2020,
Reed filed an omnibus pre-trial motion to suppress evidence arguing, inter
alia, that the search of the vehicle Reed occupied was unreasonable and made
without probable cause or after securing a search warrant, violating his
constitutional rights. Omnibus Pre-Trial Motion to Suppress Evidence,
2/28/20, at 2.
On October 13, 2020, the trial court conducted a suppression hearing at
which Officer Hunger testified. At the hearing, the Commonwealth based its
arguments on Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), the then-
controlling Pennsylvania case regarding warrantless searches of vehicles. On
November 30, 2020, the trial court denied Reed’s motion. One month later,
on December 22, 2020, our Supreme Court decided Commonwealth v.
4
18 Pa.C.S. § 6105(a)(1).
5
Id. § 6106(a)(1).
6
Id. § 3925(a).
7
Id. § 908(a).
8
35 P.S. § 780-113(a)(32).
9
Id. § 780-113(a)(31).
10
18 Pa.C.S. § 5505.
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Alexander, 243 A.3d 177 (Pa. 2020) (overruling Commonwealth v. Gary,
91 A.3d 102 (Pa. 2014)).11 Subsequently, on December 28, 2020, Reed filed
a motion for reconsideration of the denial of his suppression motion based
upon the Supreme Court’s decision in Alexander. The trial court granted
reconsideration on January 25, 2021, and, on June 2, 2021, conducted a
second suppression hearing. At the June 2, 2021 hearing, the Commonwealth
argued, for the first time, that Reed had failed to demonstrate he had a
reasonable expectation of privacy in the vehicle. The trial court ultimately
ruled that the Commonwealth had waived its challenge to Reed’s reasonable
expectation of privacy in the vehicle because it had not raised the objection
earlier. See N.T. Suppression Hearing, 6/2/21, at 49. On July 15, 2021, the
trial court granted Reed’s motion to suppress. The Commonwealth timely filed
a notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise statement
of errors complained on appeal.
The Commonwealth now presents the following questions for our
review:
A. Did the trial court err by suppressing evidence of a gun and illegal
drugs recovered by the police from the vehicle in which [Reed] was
the sole occupant where, during two suppression hearings, [Reed]
failed to present any evidence, let alone evidence regarding a
reasonable expectation of privacy in a vehicle he did not own, did not
have [a] possessory interest [in,] and for which he did not establish
having permission from the owner to use or occupy?
11
In Alexander, our Supreme Court expressly overruled Gary and held that
warrantless vehicle searches require both probable cause and exigent
circumstances. See Alexander, 243 A.3d at 207.
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B. Did the trial court err by ruling that the Commonwealth waived its
objection to the failure by [Reed] to establish a reasonable
expectation of privacy regarding the vehicle at issue where the
Commonwealth specifically raised the objection on the record during
the second evidentiary hearing?
Brief of Appellant, at 1.
When the Commonwealth appeals from a suppression order, we
follow a clearly defined standard of review and consider only the
evidence from the defendant’s witnesses together with the
evidence of the prosecution that, when read in the context of the
entire record, remains uncontradicted. The suppression court’s
findings of fact bind an appellate court if the record supports those
findings. The suppression court’s conclusions of law, however, are
not binding on an appellate court, whose duty is to determine if
the suppression court properly applied the law to the facts.
Commonwealth v. Korn, 139 A.3d 249, 252-53 (Pa. Super. 2016) (citation
omitted).
It is the sole province of the suppression court to weigh the credibility
of witnesses, and the suppression court is entitled to believe all, part, or none
of the evidence presented. Commonwealth v. Caple, 121 A.3d 511, 517
(Pa. Super. 2015).
In suppression hearings, the Commonwealth bears the preliminary
burden of proving that the defendant lacked a constitutionally protected
privacy interest. Commonwealth v. Enimpah, 106 A.3d. 695, 700 (Pa.
2014). Only then does the burden shift to the defendant to rebut that proof.
Id. However, “[t]he Commonwealth may concede the privacy interest,
choosing to contest only the legality of the police conduct; if it does so, the
defendant’s ‘reasonable expectation of privacy’ need not be established[.]”
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Id. at 700-01. This Court has recently held that, where the Commonwealth
initially concedes the privacy interest and raises it for the first time in a motion
for reconsideration of a suppression order, the claim is waived. See
Commonwealth v. Skipper, --- A.3d ---, 2022 PA Super 108, at **7-8 (Pa.
Super. filed June 9, 2022).
Instantly, the Commonwealth argues that the trial court erred by ruling
that the Commonwealth waived its challenge to Reed’s expectation of privacy
regarding the vehicle at issue. Specifically, the Commonwealth points to the
second suppression hearing where, for the first time, it raised the issue of
Reed’s failure to establish a reasonable expectation of privacy. The
Commonwealth argues that under similar case law, appellate courts have
determined that such objections are not waived. Brief of Appellant, at 28
(citing Commonwealth v. Maldonado 14 A.3d 907, 910-12 (Pa. Super.
2011)).
We conclude that the Commonwealth conceded this claim before the
trial court and, thus, waived it for our review. Skipper, supra; Pa.R.A.P. 302
(“[i]ssues not raised in the trial court are waived.”). In Skipper, the
Commonwealth did not challenge the defendant’s expectation of privacy at
the suppression hearing; rather, it was challenged in a motion to reconsider
after the trial court had already granted suppression. Skipper, at **4. This
Court determined that the Commonwealth waived its challenge to defendant’s
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expectation of privacy on appeal because it did not meet its burden of proving
that the defendant lacked a constitutionally protected privacy interest. Id.
Here, our review of the record reveals that the Commonwealth did not
challenge Reed’s expectation of privacy at the first suppression hearing. See
N.T. Suppression Hearing, 10/13/20, at 49 (wherein Commonwealth states its
argument focused on probable cause). Following the hearing, the trial court
directed both parties to submit briefs. Id. at 65-66. In its brief, the
Commonwealth, again, did not challenge Reed’s expectation of privacy.12
Subsequently, the trial court denied Reed’s motion to suppress. Thus, by
focusing its arguments on the legality of Officer Hunger’s stop and subsequent
vehicle search, rather than Reed’s lack of an expectation of privacy, the
Commonwealth conceded the issue by not raising it at the first suppression
hearing. Id. at 49; see also Enimpah, supra. Therefore, the trial court
properly found the issue to be waived at the second suppression hearing when
the Commonwealth argued, for the first time, that Reed failed to establish a
reasonable expectation of privacy in the area searched. See N.T. Suppression
Hearing, 6/2/21, at 47-49, Skipper, supra. Indeed, as the trial court stated,
the sole purpose of the second suppression hearing was to allow Reed to
12 The Commonwealth’s November 20, 2020 Letter Brief in Opposition to
Defendant’s Motion to Suppress does not appear in the certified record before
this Court. However, the Commonwealth conceded, in its July 7, 2021 Answer
to the Defendant’s Motion for Consideration, that the November 20, 2020
letter does not contain any challenge regarding Reed’s expectation of privacy.
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reargue his claim in light of the Supreme Court’s recent decision in
Alexander. N.T. Suppression Hearing, 6/2/21, at 3-4, 50-51.13 Accordingly,
the Commonwealth conceded its challenge to Reed’s expectation of privacy
before the trial court and, therefore, has waived this issue on appeal. See
Enimpah, supra; Skipper, supra.
Order affirmed.
Stablie, J., Concurs in the result.
Bowes, J., files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2022
13 Additionally, we note that, at the second suppression hearing, the
Commonwealth conceded that it could not satisfy the requirements in
Alexander because there were no exigent circumstances. Id. at 22.
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