Com. v. Moore, W. ( 2021 )


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  • J-S11044-21
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    WILLIAM MOORE, III                         :
    :
    Appellant               :   No. 477 WDA 2020
    Appeal from the Judgment of Sentence Entered March 10, 2020
    In the Court of Common Pleas of Allegheny County Criminal Division at
    No(s): CP-02-CR-0000599-2019
    BEFORE:      STABILE, J., KUNSELMAN, J., and COLINS, J.*
    MEMORANDUM BY COLINS, J.:                                  FILED: MAY 3, 2021
    Appellant, William Moore III, appeals from the aggregate judgment of
    sentence of five to ten years of confinement followed by three years of
    probation, which was imposed after his convictions at a stipulated bench trial
    for:    persons not to possess, use, manufacture, control, sell or transfer
    firearms; firearms not to be carried without a license; use of or possession
    with intent to use drug paraphernalia; and possessing instruments of crime
    (“PIC”).1    After careful review, we vacate the judgment of sentence and
    remand for a new suppression hearing.
    The facts underlying this appeal are as follows:
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    118 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 35 P.S. § 780-113(a)(32), and 18
    Pa.C.S. § 907(a), respectively.
    J-S11044-21
    Agent Richard Castagna testified that he was conducting mobile
    surveillance on November 27, 2018 near Farnsworth Avenue and
    Miller Avenue in the City of Clairton due to a recent rash of
    shooting incidents and drug complaints.            At the time of
    [Appellant]’s arrest, Agent Castagna was a detective for the City
    of Clairton Police Department. At the time of trial, Agent Castagna
    was a narcotics agent for the Pennsylvania Attorney General’s
    Office. While he was conducting surveillance, he observed a black
    automobile driving up Miller Avenue and turn onto Farnsworth
    Avenue without its turn signal activated. Agent Castagna then
    initiated a traffic stop of the vehicle on Madison Avenue. Prior to
    actually stopping the vehicle, Agent Castagna observed
    [Appellant] place a backpack (later described as a blue Kenneth
    Cole Reaction bookbag) behind the driver’s seat. Agent Castagna
    approached the passenger side of the vehicle and Officer Tallie[2]
    approached the driver’s side. Both law enforcement officers
    smelled a strong odor of marijuana emanating from the vehicle.
    Both occupants of the vehicle were removed from the vehicle and
    patted down for officers’ safety. The driver, Kelsey Gori, was
    cooperative and admitted that she had been smoking marijuana.
    She removed a baggie of marijuana from her bra and gave it to
    Officer Tallie. The passenger in the vehicle was [Appellant]. Upon
    being removed from the vehicle and being patted down,
    [Appellant] refused to identify himself.        The officers began
    searching the vehicle. The officers also observed marijuana
    “roaches,” or burnt marijuana cigarettes, in the vehicle. Soon,
    [Appellant]’s mother and brother arrived on the scene of the traffic
    stop. [Appellant] started to walk away from the site of the traffic
    stop. He was ordered not to leave. [Appellant] became irate and
    began yelling at the police officers that they could not search his
    backpack. He told the officers at least three times that they could
    not search the backpack. [Appellant]’s mother also yelled at the
    police officers that they could not search the backpack.
    [Appellant]’s mother was also detained at the scene. As the
    officers approached the backpack, [Appellant] left the scene of the
    traffic stop and entered a residence [on] Madison Avenue.
    Officer Tallie then searched the backpack. Inside the backpack
    was a .45 caliber Springfield Armory pistol, marijuana,
    ammunition, . . . and ripped baggies used for drug sales.
    ____________________________________________
    2   Officer Tallie’s first name does not appear in the certified record.
    -2-
    J-S11044-21
    Trial Court Opinion, dated July 15, 2020, at 1-3. The trial court also concluded
    that the backpack contained “a knife with a 14-inch blade[.]” Id. at 3.
    Appellant filed a motion to suppress, alleging that police “performed a
    search of the vehicle without a warrant, [p]robable [c]ause, exigent
    circumstances or consent.” Motion to Suppress, 5/10/2019, at ¶ 4. During
    the hearing on the motion, Appellant’s counsel stated that, according to then-
    current case law, “Only probable cause and no exigent circumstances are
    required for the police to engage in an automobile search, thus Pennsylvania
    has agreed with the Federal rule regarding vehicle searches.”             N.T.,
    7/18/2019, at 33. “Th[e trial c]ourt denied [Appellant]’s suppression motion
    because Agent Castagna and Officer Tallie both smelled marijuana emanating
    from the vehicle[,] observed “roaches” of marijuana in the vehicle[,]” and had
    taken possession of marijuana from Ms. Gori that she had concealed on her
    person. Trial Court Opinion, dated July 15, 2020, at 5.
    “After the denial of a suppression motion, [Appellant] proceeded to a
    stipulated nonjury trial” and was convicted of the aforementioned charges.
    Id. at 1. Appellant “was sentenced to a term of imprisonment of not less than
    5 years and not more than 10 years followed by three years of probation. No
    further penalty was imposed at the remaining counts of conviction.
    [Appellant] then filed a Notice of Appeal[.]” Id.
    On May 29, 2020, Appellant filed his statement of errors complained of
    on appeal, alleging, inter alia, that the trial court erred by denying his
    suppression motion, because the “police did not have independent probable
    -3-
    J-S11044-21
    cause to conduct a warrantless search.”           Concise Statement of Errors
    Complained of on Appeal, 5/29/2020, at ¶ 4.a. The concise statement makes
    no mention of exigent circumstances.3
    Appellant now presents the following issues for our review:
    I.   Did the trial court err in denying the suppression motion
    because police did not have probable cause to conduct a
    warrantless search of the closed backpack in the back seat of the
    car?
    II.   Was the evidence . . . insufficient to sustain the conviction
    for [PIC], as the Commonwealth did not prove, beyond a
    reasonable doubt, that there was a knife in the backpack or that
    [Appellant] had an intent to use a knife criminally?
    Appellant’s Brief at 5 (suggested answers and trial court’s answers omitted).
    Appellant first challenges the denial of his suppression motion. Id. at
    13.
    In reviewing the denial of a suppression motion, our role is to
    determine 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 these
    findings and may reverse only if the court’s legal conclusions are
    erroneous. Where, as here, 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 our plenary review.
    ____________________________________________
    3   The trial court entered its opinion on July 15, 2020.
    -4-
    J-S11044-21
    Commonwealth v. Yim, 
    195 A.3d 922
    , 926 (Pa. Super. 2018) (citations and
    internal brackets omitted).     Furthermore, our scope of review from a
    suppression ruling is limited to the evidentiary record created at the
    suppression hearing. Commonwealth v. Fulton, 
    179 A.3d 475
    , 487 (Pa.
    2018).
    Appellant argues that “police did not have probable cause to conduct a
    warrantless search of the closed backpack in the back seat of the car.”
    Appellant’s Brief at 13.
    “The level of probable cause necessary for warrantless searches of
    automobiles is the same as that required to obtain a search warrant.”
    Commonwealth v. Scott, 
    210 A.3d 359
    , 363 (Pa. Super. 2019) (citations
    omitted).
    “Probable cause does not demand the certainty we associate with
    formal trials. Rather, a determination of probable cause requires
    only that the totality of the circumstances demonstrates a fair
    probability that contraband or evidence of a crime will be found in
    a particular place.” Commonwealth v. Manuel, 
    194 A.3d 1076
    ,
    1081 (Pa. Super. 2018) (en banc) (quoting Commonwealth v.
    Otterson, 
    947 A.2d 1239
    , 1244 (Pa. Super. 2008)).
    
    Id.
    Significantly, during the pendency of this appeal, on December 22,
    2020, the Supreme Court of Pennsylvania decided Commonwealth v.
    Alexander, 
    243 A.3d 177
     (Pa. 2020), which overruled Commonwealth v.
    Gary, 
    91 A.3d 102
     (Pa. 2014), and its progeny.        Gary had held that the
    search-and-seizure provision of the Pennsylvania Constitution provides no
    greater protection than does the Fourth Amendment of the United States
    -5-
    J-S11044-21
    Constitution with regard to warrantless searches of automobiles.          Gary
    continued that the only prerequisite for a warrantless search of a motor
    vehicle is probable cause to search, with no exigency required beyond the
    inherent mobility of a motor vehicle.
    In Alexander, 243 A.3d at 180–81, 208–09, the Pennsylvania Supreme
    Court concluded that Article I, Section 8 of the Pennsylvania Constitution
    affords greater protection to our citizens than the Fourth Amendment of the
    United States Constitution, noting that “[t]he long history of Article I,
    Section 8 and its heightened privacy protections do not permit us to carry
    forward a bright-line rule that gives short shrift to citizens’ privacy rights.”
    Our Supreme Court thereby re-affirmed and reinstated the pre-Gary line of
    cases that required police to have both probable cause and exigent
    circumstances before conducting a warrantless search of an automobile. Id.
    at 180–81, 208–09. The Supreme Court instructed that courts “will have to
    decide, just as they did pre-Gary, whether exigent circumstances justified
    warrantless searches in discrete scenarios, with a focus on the particular
    facts.” Id. at 208.
    In Commonwealth v. Shaw, 
    2021 PA Super 19
    , *13 (filed
    February 17, 2021), this Court concluded that, where the testimony at the
    original suppression hearing was “not particularly directed at the exigencies
    of the situation,” it was appropriate to remand to the suppression court for
    further proceedings.     Accordingly, in Shaw, this Court “vacate[d the
    a]ppellant’s judgment of sentence and remand[ed] for further proceedings
    -6-
    J-S11044-21
    consistent with” Alexander. 
    Id.
     (citing Alexander, 243 A.3d at 208-09).
    Consequently, we vacate Appellant’s judgment of sentence and remand for
    further proceedings consistent with this decision.
    Judgment of sentence vacated. Case remanded for further proceedings.
    Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/22/2021
    -7-
    

Document Info

Docket Number: 477 WDA 2020

Filed Date: 5/3/2021

Precedential Status: Precedential

Modified Date: 5/3/2021