Com. v. Rosa, H.

J-S37006-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
HERNANDO C. ROSA : No. 2568 EDA 2019
Appeal from the Order Entered July 26, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001458-2019
BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 1, 2020
The Commonwealth appeals from the order entered in the Court of
Common Pleas of Philadelphia County granting the pretrial suppression motion
filed by Appellee, Hernando C. Rosa. After careful review, we reverse and
remand for further proceedings.
The trial court summarized the factual and procedural history of this
case as follows:
On January 24, 2019[,] around 9:00 p.m., Officer Jeremy
Olesik (“Olesik”) and his partner were patrolling the area of 6100
Delancy [Street] in Philadelphia. Olesik described that particular
area as residential and generally “pretty quiet.” On that date,
Olesik was assigned to a “victor unit,” which “basically, addresses
gun violence, robberies, burglaries, priority calls, stuff like that.”
Olesik also explained that part of his responsibility in that unit is
to be “proactive,” stop people, and initiate arrests.
Olesik testified that on January 24, 2019, he was driving his
marked patrol vehicle westbound on Delancy [Street] (a one-way
street) when he observed a grey 2009 Chevy Malibu with the
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license plate “KDK-8933” pull onto the sidewalk. The officer
explained that the vehicle pulled onto the north side of Delancy
[Street], where vehicles are not permitted to park. He further
stated that the driver paused momentarily before pulling back
onto Delancy [Street] and fail[ed] to activate her turn signal. On
cross-examination, Olesik stated that he did not notice the vehicle
until he was driving on the 6100 block of Delancy [Street]. He
also explained that the officers followed the vehicle for about one
block before activating their lights and sirens and stopping the
vehicle for investigation.
Conversely, the operator of the vehicle, Dalina Hayes
(“Hayes”), testified that she did activate her turn signal before
driving off the sidewalk and that the officers were following her
for about three blocks. Hayes believed that the officers were
following her because “they made every turn she made” and did
not pass her when she stopped on Delancy [Street]—despite the
fact that the officers had room to do so. Specifically, Hayes
testified:
So that evening, I was traveling westbound on Pine
Street. I approached the stop sign. I made a
complete stop. As I continued to cross over 60th
Street, the police officers were coming from west, I
believe. They made a right behind me. I got to the
next stop, which was 61st and Pine. I made a right
turn. They made a right turn. I made a left onto
Delancy. They made a left onto Delancy.
Once I got onto Delancy, I realized I was being
followed. I, actually, got to my destination, so I pulled
over to the left side of the curb where you’re not
supposed to park.
I pulled behind another car who was parked and
had their brake lights on. I pulled up. As soon as I
pulled up, I realized the cop stopped in the middle of
the street and did not pass me. So I put my turning
signal on to get back . . . . into traffic to go find a
parking space. As I got to the corner of 62nd and
Delancy, I put my signal on to make a left, also. He
then put his lights on and pulled me over.
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Hayes also explained that she was very “tense” and assumed the
officers were going to pull her over because she had tinted
windows.
Upon stopping the vehicle, Olesik observed [Appellee], who
was seated in the front passenger seat, “make a movement
towards the front of the vehicle. . . . He leaned toward the glove
box area. I couldn’t see what he was doing with his hands, but
his body was moving towards that area. That’s all I could see
from my angle.” Olesik further elaborated, explaining that he saw
[Appellee] “lean forward[] towards the front of the vehicle” but he
could not see what [Appellee] was doing with his hands, legs, or
head. The officers exited their patrol car. Olesik approached the
driver’s side of the vehicle and his partner approached [Appellee’s]
side of the vehicle.
Olesik testified that he smelled the “fresh odor of marijuana
inside the vehicle.” However, Hayes testified that no one smoked
marijuana in her vehicle and that her vehicle did not smell like
marijuana. Hayes cooperatively produced her license,
registration, and proof of insurance for Olesik. The officers then
asked [Appellee] for “his information.” [Appellee] told the officers
that he did not have Pennsylvania ID and stated that his name
was Christopher Hayes and that his date of birth was June 5, 1993.
The officers searched the name “Christopher Hayes” but the
search “didn’t come back to anybody.” At that point, the officers
removed [Appellee] from the vehicle, patted him down, and
placed him in the rear of their police car “to determine his
identity.” [Appellee] also provided the officers with the names
“Cortez Rosa,” with the birthdate 6/5/93 and “Hernando Rosa,”
also with the birthdate 6/5/93. After searching both names the
officers discovered that there was an outstanding arrest warrant
for [Appellee], for gun violations in a different county. [Appellee]
was then handcuffed and arrested.
After arresting [Appellee], the officers went back to Hayes’
vehicle and searched the glove box, where they recovered a black
firearm, [Appellee’s] wallet, and [Appellee’s] identification. The
officers also searched the vehicle’s center console, where they
recovered a small glass tube with a red cap, which contained a
small amount of marijuana. Olesik testified that the glass tube
was sealed with a lid and only contained about $10 worth of
marijuana. No other paraphernalia was recovered from the
vehicle. The officers did not issue a traffic citation for Hayes’
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temporary parking on the sidewalk, her alleged failure to signal,
or for the marijuana that was recovered from the vehicle.
Based on these facts, [Appellee] was arrested and charged
with carrying a firearm without a license, carrying firearms in
public in Philadelphia, furnishing false identification to a law
enforcement officer, and possessing a prohibited firearm.1 On
April 26, 2019, [Appellee] filed a motion to suppress. On July 26,
2019, following a hearing, this court granted that motion, stating:
THE COURT: Now, that’s where I am right there just
about the initial stop and then everything else. . . . I
think [Hayes] signaled. I think she did the signal.
That’s why I said, for me, it’s that initial stop. I’m not
saying that all the other things are not true, but I have
to suppress as fruit of the poisonous tree. Because I
think the initial stop - that’s the problem right there.
And I do believe her that she did signal, and it was
just not enough.
* * *
I reserve the right to supplement the record with
additional findings of facts and conclusions of law.
(N.T. 7/26/19, at 72, 76).
1 18 Pa.C.S.A. § 6106(a)(1), 18 Pa.C.S.A. § 6108, 18
Pa.C.S.A. § 4914, and 18 Pa.C.S.A. § 6105(a)(1),
respectively.
Trial Court Opinion, 2/26/20 at 1-4 (some internal cites to the record omitted).
The Commonwealth filed an interlocutory notice of appeal on August 26,
2019.1 The Commonwealth and the trial court complied with Pa.R.A.P. 1925.
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1 The Commonwealth may appeal an interlocutory order suppressing evidence
when it provides a certification with its notice of appeal that the order
terminates or substantially handicaps the prosecution. Commonwealth v.
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On appeal, the Commonwealth presents the following issue for our
review: “Did the lower court err in concluding that the police were not justified
in stopping the car in which [Appellee] was riding as a passenger and in which
they found a firearm?” Commonwealth’s Brief at 4. The Commonwealth notes
that the trial court “has since recognized that the police acted lawfully in
stopping the car and that it erred in ruling otherwise. Because the police, in
fact, were justified in stopping the car, the lower court’s suppression order
should be reversed.” Id. at 13.
When considering a Commonwealth appeal from an order granting a
defendant’s motion to suppress, the following applies:
When the Commonwealth appeals from a suppression order, this
Court follows a clearly defined scope and standard of review. We
consider only the evidence from the defendant’s witnesses
together with the evidence of the prosecution that, when read in
the context of the [. . . ] record, remains uncontradicted. This
Court must first determine whether the record supports the factual
findings of the suppression court and then determine the
reasonableness of the inferences and legal conclusions drawn
from those findings. In appeals where there is no meaningful
dispute of fact, as in the case sub judice, our duty is to determine
whether the suppression court properly applied the law to the
facts of the case.
Commonwealth v. Arthur, 62 A.3d 424, 427 (Pa. Super. 2013) (internal
citations and quotation marks omitted). “It is within the suppression court’s
sole province as factfinder to pass on the credibility of witnesses and the
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Petty, 157 A.3d 953, 954 n.1 (Pa. Super. 2017); Pa.R.A.P. 311(d). The
Commonwealth included the required certification in its notice of appeal.
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weight to be given their testimony.” Commonwealth v. Gallagher, 896
A.2d 583, 585 (Pa. Super. 2006). Moreover, our scope of review from a
suppression ruling is limited to the evidentiary record that was created at the
suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).
In the case sub judice, Appellee filed a motion to suppress the gun found
in the vehicle. In his motion to suppress, Appellee made the following
assertions:
2. The arrest of [Appellee] was unlawful in that it was without
probable cause and that it violated his Pennsylvania and United
States Constitutional rights.
* * *
3. On or about the time of [Appellee’s] illegal arrest, a search and
seizure was conducted by members of the Philadelphia County
Police Departments or persons working in conjunction with them.
Said search and seizure and the fruits thereof should be
suppressed for one or more of the following reasons:
(a) Said search and seizure was the fruit of
[Appellee’s] illegal arrest;
(b) Said search and seizure was conducted without a
search warrant;
(c) Said search and seizure was conducted without the
consent of [Appellee]; and,
(d) Said search and seizure was conducted without
probable cause.
Motion to Suppress, 4/26/19, at 1-2.
At the suppression hearing, Appellee’s counsel made the following
argument:
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The basis of our argument is that it was—or the
Commonwealth, through its agents, the police officers, in this
case, lacked any and all reasonable suspicion to search—to stop,
search and remove my client from the vehicle and search, then,
the vehicle.
In the vehicle, was found—a firearm was found, and I’m
asking Your Honor to suppress that firearm as a result of the illegal
stop and search.
In addition, Your Honor, it’s our argument that while my
client was in the custody of the police, he—the police officers
elicited a statement from him, so I’ll ask for that to be suppressed
as well.
N.T., 7/26/19, at 3.
At the end of the hearing, the trial court made the following ruling:
I think she signaled. I think she did the signal. That’s why I said,
for me, it’s that initial stop. I’m not saying that all the other things
are not true, but I have to suppress as fruit of the poisonous tree.
Because I think the initial stop – that’s the problem right there.
And I do believe that she did signal, and it was just not enough.
* * *
And I agree that everything else happened but the problem
is the initial stop. But I do think that that was his gun, everything
is illegal – all of that, but I do have to suppress it because of the
that [sic] initial stop.
N.T., 7/26/19, at 77.
In its subsequent Pa.R.A.P. 1925(a) opinion, however, the trial court
explained:
In the case at bar, despite its initial ruling, this court concedes
that [Officer] Olesik lawfully stopped Hayes’ vehicle;2 however,
this court nonetheless finds that it properly granted [Appellee’s]
motion to suppress. However, the record contains no express
findings of facts or conclusions of law relating to this court’s
additional reasons for granting [Appellee’s] motion to suppress.
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Thus, this court respectfully requests that the Superior Court
remand this matter for an issuance of further findings of facts and
conclusions of law.
2 Pennsylvania law unequivocally mandates that
officers have probable cause to stop a motor vehicle if
the officer observes a traffic code violation, even if it
is a minor offense. Commonwealth v. Harris, 176
A.3d 1009, 1019 (Pa. Super. 2017). Further, 75
Pa.C.S.A. § 3703 states “no person shall drive any
vehicle except a human-powered vehicle upon a
sidewalk or sidewalk area except upon a permanent
or duly authorized temporary driveway.” Here, both
Olesik and Hayes testified that Hayes briefly drove
onto the sidewalk. Even though Hayes’ actions
constitute a minor traffic violation, Oliesik had
probable cause to stop the vehicle on that basis.
Trial Court Opinion, 2/26/20, at 4-5.
We agree with the conclusion reached by the trial court as outlined in
its Pa.R.A.P. 1925(a) opinion. The evidence presented at the suppression
hearing established that Hayes had driven onto the sidewalk, in violation of
75 Pa.C.S. § 3703.2 Thus, Hayes committed a traffic code violation, and Olesik
had probable cause to stop the vehicle on this basis. See Harris, 176 A.3d
at 1019 (“Pennsylvania law makes clear that a police officer has probable
cause to stop a motor vehicle if the officer observes a traffic code violation,
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2 Section 3703(a) of the Motor Vehicle Code provides: “Except as provided
in subsection (b) [pertaining to mobility-related devices for persons with
disabilities] or (c) [related to electric personal assistive mobility device
(EPAMD)], no person shall drive any vehicle except a human-powered vehicle
upon a sidewalk or sidewalk area except upon a permanent or duly authorized
temporary driveway.” 75 Pa.C.S. § 3703(a).
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even if it is a minor offense.”). Therefore, the initial stop was lawful. The trial
court erred at the time of its ruling at the suppression hearing in concluding
that the gun should be suppressed because it was obtained as a result of an
unlawful stop. Accordingly, we reverse the trial court’s ruling granting
Appellee’s motion to suppress the gun on this basis. 3
Order reversed. Matter remanded for proceedings consistent with this
Memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/01/2020
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3 We note that the trial court requests that the case be remanded to it “for an
issuance of further findings of facts and conclusions of law” in support of its
assertion that despite its initial conclusion that the vehicle was not lawfully
stopped, it nonetheless finds that “it properly granted [Appellee’s] motion to
suppress.” Trial Court Opinion, 2/26/20 at 5-6. Our review is limited to the
specific issue raised on appeal by the Commonwealth as outlined above.
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