Com. v. Vazquez, J. ( 2016 )


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  • J-S06022-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    JOHN RICHARD VAZQUEZ
    Appellant                 No. 536 MDA 2015
    Appeal from the Judgment of Sentence February 19, 2015
    In the Court of Common Pleas of Lancaster County
    Criminal Division at No(s): CP-36-CR-0005723-2013
    BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*
    MEMORANDUM BY MUNDY, J.:                             FILED MARCH 28, 2016
    Appellant, John Richard Vazquez, appeals from the February 19, 2015
    aggregate judgment of sentence of nine to 23 months’ incarceration followed
    by three years’ probation, imposed following his conviction at a bench trial of
    firearms not to be carried without a license and receiving stolen property.1
    After careful review, we affirm.
    The trial court summarized the factual and procedural background of
    this case as follows.
    On August 28, 2013, Appellant was arrested
    and charged with firearms not to be carried without
    a license, and receiving stolen property. A counseled
    omnibus pre-trial motion was filed on April 7, 2014,
    seeking to suppress certain physical evidence and
    ____________________________________________
    1
    18 Pa.C.S.A. §§ 6106(a)(2) and 3925, respectively.
    *Former Justice specially assigned to the Superior Court.
    J-S06022-16
    statements    as   the   fruit  of  an   allegedly
    unconstitutional and illegal search of Appellant’s
    person and property.
    A suppression hearing was held on October 17,
    2014, at the conclusion of which [the suppression
    court] denied the motion in its entirety on the
    record.
    Trial Court Opinion, 4/22/15, at 1-2
    At the suppression hearing, Officer Anthony Weaver of the Lancaster
    City Bureau of Police was the only witness.        Based on his testimony, the
    suppression court made the following findings.2
    ____________________________________________
    2
    We note that the suppression court did not comply with Pennsylvania Rule
    of Criminal Procedure 581(I), failing to contemporaneously record its
    findings of fact. Its findings now belatedly appear in its Rule 1925(a)
    opinion. Our Supreme Court has lamented such noncompliance, noting as
    follows.
    We stress, however, the essential purposes served
    by the Rule, and we disapprove of non-compliance
    with its unambiguous mandate. A specific and
    contemporaneous announcement of suppression
    findings of fact and conclusions of law serves at least
    two salutary purposes. First, it permits the losing
    party to make a more intelligent assessment of
    whether or not to burden the appellate justice
    system with an appeal of the suppression ruling….
    Second, it is often the case … that the suppression
    judge is different from the trial judge yet, if there is
    a conviction, it will be the trial judge who will be
    responsible for preparation of the Rule 1925 opinion
    for appeal.
    Commonwealth v. Millner, 
    888 A.2d 680
    , 688-689 (Pa. 2005) (footnote
    omitted). As the noncompliance in this case does not hamper our review,
    we need not remand. Compare, 
    id. (declining to
    remand for compliance
    (Footnote Continued Next Page)
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    The evidence at the suppression hearing established
    the following facts.        On August 28, 2013, at
    approximately 2:35 a.m., Officer Anthony Weaver of
    the Lancaster City Police parked his marked police
    cruiser near an intersection in a high crime area of
    the City as part of the community policing efforts to
    maintain high visibility, reduce crime and protect the
    citizens. Just minutes after parking, Officer Weaver
    observed Appellant wearing a backpack and walking
    “at a brisk pace” east on East End Avenue. Appellant
    “definitely saw” Officer Weaver who was in full
    uniform and in a marked police cruiser on East End
    Avenue. Officer Weaver then observed, through his
    rear view mirror, a Chrysler sedan pull up to the
    intersection of South Franklin Street and East End
    Avenue and illegally park in the intersection.
    Appellant crossed the street and entered the back of
    the vehicle. Officer Weaver made the decision to
    stop the vehicle for a traffic violation. The Chrysler
    began traveling west on East End Avenue and then
    south on Stevens Avenue. Officer Weaver followed
    the vehicle for a short distance while running a check
    on the registration plate, and eventually effectuated
    a traffic stop in the first block of South Broad Street
    in the City of Lancaster.
    When the vehicle was pulled over, it was
    observed that there were four occupants in the
    vehicle. Officer Weaver called for backup and then
    approached the vehicle on the passenger side. After
    receiving the identification from the four occupants,
    Officer Weaver ordered the occupants to exit the
    vehicle at which time they were patted down and
    searched for weapons. The police then directed the
    occupants to sit on the curb.
    _______________________
    (Footnote Continued)
    with Rule 581(I) where review was not hampered and for judicial economy,
    with Commonwealth v. Landis, 
    89 A.3d 694
    , 703 (Pa. Super. 2014)
    (remanding for compliance with Rule 581(I) where it was unclear from the
    Rule 1925(a) opinion whether the suppression court employed the correct
    standard).
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    While the occupants were seated on the curb, the
    police did a protective sweep of the car. Inside the
    car, a backpack was located on the rear seat, directly
    behind the driver’s seat, where Appellant had been
    sitting.    Officer Weaver opened the unlocked
    backpack and saw a laptop computer and a Ruger 9
    millimeter handgun inside a pocket. After locating
    the handgun, Officer Weaver asked Appellant
    whether he had a permit to carry the firearm, to
    which he responded, he did not. Appellant was then
    placed under arrest and taken to the Lancaster City
    Police Station. The other occupants were released at
    the scene, after a traffic citation was issued to the
    driver.
    …
    In the instant case, Officer Weaver testified
    that this vehicle stop occurred in a high crime area of
    the City, where he had personally made over 100
    arrests, many for drug and gun-related crimes, and
    had been part of an officer-involved shooting. As
    part of the community policing in this area, Officer
    Weaver could attest to the heavy drug traffic, the
    high volume of police calls for service, the large
    number of citizen complaints of criminal activity, and
    the drug and prostitution investigations being
    conducted by the Selective Enforcement Unit of the
    Lancaster City Police in this particular part of the
    City. Additionally, these events happened in the
    middle of the night, which creates a heightened level
    of danger to a police officer, especially during a
    traffic stop. Moreover, after the traffic stop, the
    front seat passenger engaged in the furtive
    movement of leaning forward and nearly touching his
    toes on the floorboard multiple times. The other
    rear seat passenger also exhibited extreme
    nervousness.
    Based upon his training and experience in
    conducting over 1000 traffic stops, his 14 years of
    service as a police officer, his special training in
    identifying armed individuals, and the particular facts
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    of this traffic stop, Officer Weaver believed that
    “there was a high probability that there could be a
    weapon in that vehicle, and [he] was extremely
    concerned.”
    
    Id. at 3-5,
    9 (footnotes and citations omitted).
    The case proceeded to a stipulated bench trial
    on December 19, 2014, and concluded with a verdict
    of guilty on the firearms charge and the receiving
    stolen property charge.     Following the verdict,
    sentencing was deferred pending a pre-sentence
    investigation.
    On February 19, 2015, Appellant was
    sentenced to a term of 3 to 23 months[’]
    incarceration in Lancaster County Prison on the
    firearms charge. Appellant received a concurrent
    split sentence of 9 to 23 months[’] incarceration
    followed by 3 years[’] probation on the felony charge
    of receiving stolen property.[3] Appellant filed no
    post sentence motions.      A timely appeal to the
    Superior Court of Pennsylvania was filed on March
    20, 2015.
    
    Id., at 1-2
    (footnotes and citations omitted).4
    Appellant raises the following question for our review.
    Did the trial court err in denying Appellant’s Motion
    to Suppress where police had neither reasonable
    suspicion nor probable cause to justify a stop of the
    vehicle in which Appellant was a passenger, and
    where police had neither reasonable suspicion nor
    ____________________________________________
    3
    The trial court’s sentence also granted Appellant work release and
    authorized transition from incarceration to electronically monitored house
    arrest after three months, contingent on Appellant being a “model prisoner.”
    N.T., 2/19/15, at 11.
    4
    Appellant and the trial court have complied with Pennsylvania Rule of
    Appellate Procedure 1925.
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    J-S06022-16
    probable cause to conduct a sweep of the vehicle,
    including Appellant’s backpack, for weapons?
    Appellant’s Brief at 5.    Appellant’s single question raises two distinct sub-
    issues.      First, Appellant challenges the validity of the traffic stop, and
    second, Appellant challenges the safety sweep of the vehicle and Appellant’s
    backpack. We address each sub-issue seriatim.
    Our review of a trial court’s suppression ruling is guided by the
    following.
    Our standard of review in addressing a
    challenge to the denial of a suppression motion 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. 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. Commonwealth v. Jones, 
    605 Pa. 188
    , 
    988 A.2d 649
    , 654 (2010) (citations,
    quotations,    and    ellipses  omitted).   Moreover,
    appellate courts are limited to reviewing only the
    evidence presented at the suppression hearing when
    examining a ruling on a pre-trial motion to suppress.
    See In re L.J., 
    622 Pa. 126
    , 
    79 A.3d 1073
    , 1083–
    1087 (2013).
    Commonwealth v. Mathis, 
    125 A.3d 780
    , 783 (Pa. Super. 2015).
    Appellant first contends that the vehicle stop effected by Officer
    Weaver was without reasonable suspicion or probable cause.              Appellant’s
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    Brief at 18.   “The issue of what quantum of cause a police officer must
    possess in order to conduct a vehicle stop based on a possible violation of
    the Motor Vehicle Code is a question of law, over which our scope of review
    is plenary and our standard of review is de novo.”          Commonwealth v.
    Holmes, 
    14 A.3d 89
    , 94 (Pa. 2011).
    [W]hen considering whether reasonable suspicion or
    probable cause is required constitutionally to make a
    vehicle stop, the nature of the violation has to be
    considered. If it is not necessary to stop the vehicle
    to establish that a violation of the Vehicle Code has
    occurred, an officer must possess probable cause to
    stop the vehicle. Where a violation is suspected, but
    a stop is necessary to further investigate whether a
    violation has occurred, an officer need only possess
    reasonable suspicion to make the stop.
    Commonwealth v. Salter, 
    121 A.3d 987
    , 993 (Pa. Super. 2015); see also
    Commonwealth v. Feczko, 
    10 A.3d 1285
    , 1291 (Pa. Super. 2010) (en
    banc), appeal denied, 
    25 A.3d 327
    (Pa. 2011) (holding a police officer must
    have probable cause to justify a stop of a vehicle when the investigation
    subsequent to the stop serves no “investigatory purpose relevant to the
    suspected violation”).
    Instantly, the trial court addressed Officer Weaver’s justification for
    the initial stop of the vehicle for a violation of Section 3353(a)(1)(iii) and (iv)
    of the Vehicle Code, i.e., stopping in an intersection or on a crosswalk, under
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    a reasonable suspicion standard.5              Trial Court Opinion, 4/22/15, at 7-8.
    Officer Weaver testified, however, that he made the stop because he
    observed the vehicle stop in an intersection and crosswalk in violation of
    Section 3353(a)(1)(iii) and (iv).         Because the stop could yield no further
    investigatory information as to whether a violation of Section 3353(a)(1)(iii)
    and (iv) occurred, we conclude that the police were required to have
    probable cause for the stop. See 
    Salter, supra
    .
    Determining whether probable cause exists requires consideration of
    the totality of circumstances.         Commonwealth v. Thompson, 
    985 A.2d 928
    , 931 (Pa. 2009). “The police have probable cause ‘where the facts and
    circumstances within the officer’s knowledge are sufficient to warrant a
    person of reasonable caution in the belief that an offense has been …
    committed.’”      Commonwealth v. Rogers, 
    849 A.2d 1185
    , 1192 (Pa.
    2004), quoting, Commonwealth v. Gibson, 
    638 A.2d 203
    , 206 (Pa. 1994).
    As noted, Officer Weaver testified that he stopped the vehicle after it
    had picked up Appellant for violating Section 3353(a)(1)(iii) and (iv) of the
    Vehicle Code. N.T., 10/17/14, at 20. That section provides as follows.
    ____________________________________________
    5
    Appellant’s omnibus pretrial motion initially framed the issue as the police
    lacking “reasonable suspicion to stop the vehicle.” Omnibus Pretrial Motion,
    4/8/14, at 2 ¶4.        At the suppression hearing, Appellant couched his
    argument as the police lacking “probable cause” for the stop based on the
    alleged traffic violation. N.T., 10/17/14, at 59. In their respective appellate
    briefs, Appellant and the Commonwealth agree that probable cause is the
    proper standard for the traffic stop in this case. See Appellant’s Brief at 18;
    Commonwealth’s Brief at 10.
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    § 3353. Prohibitions in specified places
    (a) General rule.--Except when necessary to avoid
    conflict with other traffic or to protect the safety of
    any person or vehicle or in compliance with law of
    the directions of a police officer or official traffic-
    control device, no person shall:
    (1) Stop, stand or park a vehicle:
    …
    (iii) Within an intersection.
    (iv) On a crosswalk.
    …
    Pa.C.S.A. § 3353.        Officer Weaver testified that he observed the vehicle
    “park[] in the traffic lanes on the corner of South Franklin and East End.”
    N.T., 10/17/14, at 18. Officer Weaver testified that another vehicle had to
    enter the other lane to go around the stopped vehicle. Id.6 He also testified
    that the vehicle was blocking the intersection and the crosswalk. 
    Id. at 20.
    Appellant argues the suppression court erred in crediting Officer
    Weaver’s testimony.
    Officer Weaver claimed that, looking in his side and
    rear view mirrors, he could see the location of a
    vehicle in the dark, parked two blocks behind him.
    This testimony was simply incredible.       At best,
    Officer Weaver could only estimate the location of
    ____________________________________________
    6
    Officer Weaver misstated the street the passing vehicle was travelling on
    when it encountered the stopped vehicle. N.T., 10/17/14, at 18. Appellant
    argues this is another reason to discredit the Officer’s testimony. See
    Appellant’s Brief at 20.
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    the vehicle, based on his limited ability to see from
    nearly two blocks away.
    …
    “Despite the inconsistencies and incredible nature of
    Officer Weaver’s testimony, the trial court improperly
    chose to believe this testimony….”
    Appellant’s Brief at 19-20 (citation and footnote omitted).
    As we related in the summary of our standard of review, we must view
    the evidence in the light most favorable to the Commonwealth to determine
    if there is support for the suppression court’s findings. See 
    Mathis, supra
    .
    Instantly, Officer Weaver’s testimony about his observation of the vehicle
    stopping in a fashion that blocked a crosswalk and intersection, clearly
    supports the suppression court’s factual findings.            Furthermore, such
    observations were “sufficient to warrant a person of reasonable caution in
    the belief that an offense has been … committed,” affording Officer Weaver
    probable cause to stop the vehicle.     See 
    Rogers, supra
    .        Therefore, we
    conclude Appellant’s first sub-issue is meritless.
    Appellant next claims that even if the stop was proper, Officer Weaver
    lacked reasonable suspicion that any of the occupants were armed or
    dangerous as to justify the weapon pat down and sweep search of the
    vehicle, including Appellant’s backpack. Appellant’s Brief at 22. Appellant
    asserts that Officer Weaver’s claimed concerns about Appellant’s walking
    and being picked up at night in a high-crime area, the “stretching”
    movements of the front-seat passenger, and the rapid heartbeat of the other
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    J-S06022-16
    back-seat passenger, did not constitute reasonable suspicion that anyone in
    the car was armed or dangerous, or that any criminal activity was in
    progress. 
    Id. at 23-24.
    Contrary to the trial court’s finding, these separate
    actions by two of the passengers did not reasonably
    lead Officer Weaver to believe that there might be a
    weapon in the vehicle or in [Appellant’s] backpack.
    Officer Weaver did not possess the requisite
    suspicion to believe that there was a weapon in [the
    driver’s] vehicle, or in [Appellant’s] backpack.
    
    Id. at 24.
    The parties agree that the weapon sweep constituted an investigative
    detention governed by Terry v. Ohio, 
    392 U.S. 1
    (1968), and required the
    police to have reasonable suspicion that criminal activity was underway, or
    that an occupant was armed and dangerous.            Appellant’s Brief at 22;
    Commonwealth’s Brief at 14.
    “A Terry search, unlike a search without a warrant
    incident to a lawful arrest, is not justified by any
    need to prevent the disappearance or destruction of
    evidence of crime.     The sole justification of the
    search is the protection of police officers and others
    nearby.” [Michigan v. Long, 
    463 U.S. 1032
    , 150
    n14 (1983)] (citation and quotation omitted). The
    Court stated that an officer must therefore have
    reasonable suspicion that the person subject to the
    stop has a weapon in order to conduct a lawful
    search of the passenger compartment of a vehicle at
    the time of the stop. 
    Id. In Commonwealth
    v. Morris, 
    537 Pa. 417
    , 
    644 A.2d 721
    (1994), our Supreme Court applied the
    standard announced in Long to validate a vehicle
    search conducted during a traffic stop, finding the
    reasoning set forth in Long to be applicable to
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    J-S06022-16
    Article I, Section 8 of the Pennsylvania Constitution.
    
    Id. at 422
    n.3, 644 A.2d at 724 
    n.3.
    Commonwealth v. Cartagena, 
    63 A.3d 294
    , 299 (Pa. Super. 2013) (en
    banc) (footnotes omitted), appeal denied, 
    70 A.3d 808
    (Pa. 2013).       “An
    officer may conduct a Terry [search] for weapons if a reasonably prudent
    man in the circumstances would be warranted in the belief that his safety or
    that of others was in danger.” Commonwealth v. Kondash, 
    808 A.2d 943
    ,
    948 (Pa. Super. 2002) (internal quotation marks and citations omitted).
    Such a belief must be based on “specific and articulable facts, that the
    detained individual may be armed and dangerous.”        Commonwealth v.
    Clemens, 
    66 A.3d 373
    , 381 (Pa. Super. 2013) (citation omitted). Further, a
    determination of whether reasonable suspicion exists must be based on the
    totality of the circumstances and involves a fact-specific case-by-case
    inquiry. Commonwealth v. Scarborough, 
    89 A.3d 679
    , 683 (Pa. Super.
    2014), appeal denied, 
    102 A.3d 983
    (Pa. 2014).        “[W]here a sufficient
    number of [circumstances] coalesce, reasonable suspicion will be found.”
    
    Id. The courts
    also have plainly held that officer safety
    concerns are heightened during traffic stops. The
    United States Supreme Court recently emphasized
    that “[t]raffic stops are especially fraught with
    danger to police officers, so an officer may need to
    take certain negligibly burdensome precautions in
    order to complete his mission safely.” Rodriguez v.
    United States, 
    135 S. Ct. 1609
    , 1616 (2015)
    (internal quotation marks and citations omitted).
    Safety concerns are even greater when the motor
    vehicle stop occurs at night.
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    J-S06022-16
    Commonwealth v. Chase, 
    960 A.2d 108
    , 120 (Pa. 2008).
    Our review of the suppression hearing transcript leads us to conclude
    the suppression court’s findings are supported and the totality of the
    circumstances supports Officer Weaver’s reasonable suspicion that one or
    more of the occupants of the vehicle might be armed.                     Here, the
    combination of factors included the fact that the activity occurred late at
    night in a high crime area. In addition, Officer Weaver, upon approaching
    the vehicle, noted two passengers exhibited excessive nervousness. One did
    so by stretching in a stress-induced “flight or fight” manner, including
    repeatedly reaching down to his feet and the floorboard, and the other
    passenger exhibited extreme nervousness and an accelerated heartbeat.
    N.T., 10/17/14, at 25-27.         We have previously held that a similar set of
    circumstances supported a reasonable suspicion that justified a Terry search
    for weapons. See Commonwealth v. Buchert, 
    68 A.3d 911
    (Pa. Super.
    2013) (holding police had a reasonable suspicion for a weapon search
    where, upon approaching a vehicle during a nighttime traffic stop, the police
    noticed the defendant exhibiting nervous behavior and furtive movements),
    appeal denied, 
    83 A.3d 413
    (2014).             Instantly, there was the additional
    consideration   of   the   area    being   a     high-crime   neighborhood.   See
    Commonwealth v. Thompson, 
    985 A.2d 928
    , 936 (Pa. 2009) (noting the
    fact that a stop occurs in a high crime area when coupled with other factors
    may support reasonable suspicion of dangerous or illegal activity).
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    J-S06022-16
    Appellant also argues that the nervousness and behavior of the other
    passengers did not justify a search of his person and his backpack.
    Appellant offers no authority that, once a reasonable suspicion that a
    member of a group may be armed, a police officer is limited in searching
    only the members of the group exhibiting certain behavior, and we reject the
    contention.   While a Terry search is limited in scope, once justified, an
    officer may search the entire area in which a weapon might be readily
    accessible.   See, e.g., Commonwealth v. Murray, 
    936 A.2d 76
    (Pa.
    Super. 2007) (upholding a protective search of the interior of a vehicle
    where police officers stopped a defendant for a motor vehicle violation, in a
    high crime area, and officers saw “excessive movement” inside the car). We
    therefore conclude Appellant’s second sub-issue is also meritless.
    In light of the foregoing, we discern no error by the suppression court
    in denying Appellant’s omnibus pretrial motion to suppress the evidence
    obtained in the traffic stop and Terry search of Appellant’s backpack.
    Accordingly, we affirm the February 19, 2015 judgment of sentence.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/28/2016
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