Com. v. Kellum, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JUSTIN J. KELLUM,
Appellant No. 411 WDA 2018
Appeal from the Judgment of Sentence Entered October 19, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006435-2015
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 17, 2019
Appellant, Justin J. Kellum, appeals from the judgment of sentence of
an aggregate term of 1 year less a day to 2 years less a day of imprisonment
following his convictions for one count each of firearms not to be carried
without a license (18 Pa.C.S. § 6106(a)(1)) and person not to possess a
firearm (18 Pa.C.S. § 6105(c)). Appellant challenges the denial of his motion
to suppress evidence recovered during a search and seizure following a traffic
stop. We affirm.
The trial court provided the following factual summary of this case in its
Pa.R.A.P. 1925(a) opinion:
At the commencement of the suppression hearing/bench
trial on July 24, 2017, the Commonwealth … called Detective
Martin Kail, of the City of Pittsburgh Police Department, as [the]
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* Retired Senior Judge assigned to the Superior Court.
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Commonwealth’s first witness. Detective Kail is in his 11 th year
with the Pittsburgh Police and is currently assigned to the
Homicide Unit. At the time of the incident herein, on March 17,
2015, he was assigned to the Narcotics and Vice Impact Unit.
On March 17, 2015, he was patrolling Zone 1, the North Side
area of the City[,] and[] his duties on that day included street-
level narcotics, firearms arrests, and things of that nature. The
detective explained that the Perry North section of the City, where
the incident took place, is a high-crime, high-drug area, where
numerous firearms and narcotics arrests took place. On said date,
at approximately 2105 hours, Detective Kail and three of his
partner[s] observed a white GMC SUV travelling on Perrysville
Avenue, making a turn without using a turn signal. At the time[,]
all of the detectives were in plainclothes and were in an unmarked
Chevy Impala. Detective Love was driving, Detective Kail [was]
in the passenger seat, and Detectives Goob and Coleman were in
the backseat. When they saw the vehicle make a turn without a
turn signal, Detective Love activated the emergency lights and
sirens and initiated a traffic stop for the Vehicle Code violation.
According to Detective Kail, the driver immediately pulled to the
right of the roadway. Detective Kail initially approached the
driver’s side with Detective Coleman, and Detective Goob
approached the passenger side of the vehicle.
When he approached the vehicle, Detective Kail observed
there were two male occupants; [Appellant] was the passenger
and Mr. Stevenson was the driver, and both of them appeared to
be nervous. Detective Coleman informed the others that he
recognized the driver as a person he had arrested before for a
firearm violation. Detective Kail testified at that point, coupling
the high-crime area, the fact that Detective Coleman had arrested
the driver for a prior firearm, and their nervous behavior, they
first asked Mr. Stevenson to step out of the vehicle. When Mr.
Stevenson stepped out of the vehicle, Detective Love observed a
firearm in the driver’s door map pocket. Mr. Stevenson was
detained at that time. Detectives Kail and Goob went over to the
passenger side and asked the visibly nervous [Appellant] to step
out of the vehicle. He complied and put his hands on the car.
Detective Goob patted him down and recovered what Detective
Kail believed was a Glock 9mm from his waistband. He was also
immediately detained. Detective Kail Mirandized[1] both men
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1 Miranda v. Arizona, 384 U.S. 436 (1966).
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and asked if they had a license to carry a concealed weapon[,]
and he believed they both responded no. He ran both names
through JANET and believed they were both former felons who
were not to possess a firearm. On re-direct examination,
Detective Kail identified [Appellant] in the courtroom as the
person Detective Goob recovered the Glock 9mm from.
The Commonwealth’s second and final witness for
suppression purposes was Detective Mark Goob. Detective Goob
has been a detective with the Pittsburgh Police Department for 16
years. He was working the evening of March 17, 2015[,] with
Detectives Love, Coleman and Kail in plainclothes and an
unmarked vehicle. He recalled a traffic stop that evening involving
a white GMC Yukon. After the traffic stop was initiated, he
immediately went to the passenger side of the vehicle, displayed
his badge, and stood back as the other detectives spoke to the
driver. The other detectives had the driver, Mr. Stevenson, exit
the vehicle[,] and as he did[,] they discovered a gun. They took
the driver into custody. At some point thereafter, Detective Kail
came to the passenger side with Detective Goob and they had …
[Appellant] exit the vehicle. Detective Goob then identified
[Appellant] in the [c]ourtroom. As soon as he exited the vehicle,
Detective Goob patted him down for weapons, where he felt a gun
at the front of his waistband, took him into custody and recovered
the firearm. Detective Goob stated that it was a fairly good sized
firearm, a Glock Model 19, that he immediately recognized.
Detective Goob observed that [Appellant] appeared to be nervous.
According to Detective Goob, there were several reasons for
patting [Appellant] down for weapons: 1. They were in a high
crime area; 2. The driver of the vehicle was previously arrested
for a gun; 3. A gun was found inside the vehicle during the traffic
stop; 4. From his experience, oftentimes when there[ is] one gun
in a vehicle, there may be more; and 5. Most importantly, for
safety concerns.
Trial Court Opinion (“TCO”), 8/13/18, at 3-6 (citations to record omitted).
After hearing the foregoing testimony, the court denied Appellant’s
motion to suppress and proceeded directly with the non-jury trial. Based on
the evidence presented at trial, Appellant was found guilty of the crimes stated
supra, and was sentenced on October 19, 2017, to a period of incarceration
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of not less than one year less a day and not more than two years less a day.
Post-sentence motions were filed on October 30, 2017, and were denied by
the court on February 20, 2018.
On March 21, 2018, Appellant filed a timely notice of appeal, followed
by a timely, court-ordered concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant now presents the following
sole issue for our review: “Did the trial court err in denying [Appellant’s]
suppression motion because the Commonwealth failed to produce evidence
that the officers had either probable cause to conduct a traffic stop, or
reasonable suspicion to remove him from the vehicle in which he was seated
and search him?” Appellant’s Brief at 3 (unnecessary capitalization omitted).
To begin, we note our standard of review:
An appellate court’s 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. Where the suppression court’s factual findings are
supported by the record, the appellate court is 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.
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Commonwealth v. McClellan, 178 A.3d 874, 880-81 (Pa. Super. 2018)
(quoting Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super.
2015)).
Instantly, Appellant argues that the trial court erred in denying his
suppression motion because the Commonwealth failed to provide sufficient
evidence to demonstrate that the police had probable cause to conduct a
traffic stop. Appellant’s Brief at 9. Appellant states that the only evidence of
a traffic violation proffered by the Commonwealth is the testimony of Officer
Kail, which Appellant suggests is unreliable. Id. at 11. Based on his
conclusion that the evidence is insufficient to justify the traffic stop, Appellant
avers that all evidence stemming from the stop must be suppressed. Id. In
the event that this Court concludes the traffic stop was lawful, Appellant
alternatively argues that “there still was no reasonable suspicion to remove
[him] from the vehicle and [to] conduct a pat down search of his person.” Id.
It is well-established that:
A police officer has the authority to stop a vehicle when he or she
has reasonable suspicion that a violation of the vehicle code has
taken place, for the purpose of obtaining necessary information to
enforce the provisions of the code. 75 Pa.C.S. § 6308(b).
However, if the violation is such that it requires no additional
investigation, the officer must have probable cause to initiate the
stop.
Commonwealth v. Brown, 64 A.3d 1103, 1105 (Pa. Super. 2013) (citing
Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010)). Our
Supreme Court has defined probable cause as follows:
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Probable cause is made out when the facts and circumstances
which are within the knowledge of the officer at the time of the
stop, and of which he has reasonably trustworthy information, are
sufficient to warrant a man of reasonable caution in the belief that
the suspect has committed or is committing a crime. The question
we ask is not whether the officer’s belief was correct or more likely
true than false. Rather, we require only a probability, and not a
prima facie showing, of criminal activity. In determining whether
probable cause exists, we apply a totality of the circumstances
test.
Commonwealth v. Martin, 101 A.3d 706, 721 (Pa. 2014) (citation and
emphasis in original omitted). “Pennsylvania law makes clear that a police
officer has probable cause to stop a motor vehicle if the officer observes a
traffic code violation, even it if is a minor offense.” Commonwealth v.
Calabrese, 184 A.3d 164, 167 (Pa. Super. 2018) (quoting Commonwealth
v. Harris, 176 A.3d 1009, 1019 (Pa. Super. 2017)).
Here, Appellant’s vehicle was stopped for failing to use a turn signal, in
violation of 75 Pa.C.S. § 3334, which provides in pertinent part as follows:
§ 3334. Turning movements and required signals
(a) General rule.—Upon a roadway no person shall turn a
vehicle or move from one traffic lane to another or enter the
traffic stream from a parked position unless and until the
movement can be made with reasonable safety nor without
giving an appropriate signal in the manner provided in this
section.
(b) Signals on turning and starting.—At speeds of less than
35 miles per hour, an appropriate signal of intention to turn
right or left shall be given continuously during not less than
the last 100 feet traveled by the vehicle before turning. The
signal shall be given during not less than the last 300 feet
at speeds in excess of 35 miles per hour. The signal shall
also be given prior to entry of the vehicle into the traffic
stream from a parked position.
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75 Pa.C.S. § 3334(a), (b). Detective Kail testified that he observed the driver
of the vehicle in which Appellant was riding fail to use a turn signal when
turning left onto Marshall Road from Perrysville Avenue. N.T. Suppression,
7/24/17, at 8. Clearly, Detective Kail had probable cause to suspect that the
driver of the vehicle violated Section 3334(a) of the Motor Vehicle Code, which
requires a signal prior to turning a vehicle on a roadway. Thus, the traffic
stop was proper. See Brown, 64 A.3d at 1106 (stating that where the officer
witnessed the appellant’s failure to use his signal lamps when turning from
one street to another, he unquestionably possessed facts to warrant belief by
any reasonable person that the appellant violated the Vehicle Code).
Having determined that probable cause existed to conduct the traffic
stop, we now address Appellant’s claim that the detectives lacked the requisite
reasonable suspicion when they ordered him out of the vehicle and searched
his person. Contrary to Appellant’s assertion that the Commonwealth must
establish that the detectives had a “reasonable, articulate suspicion” that
Appellant was engaged in criminal activity before ordering him out of the
vehicle, it is clear that “following a lawful traffic stop, an officer may order
both the driver and passengers of a vehicle to exit the vehicle until the traffic
stop is completed, even absent a reasonable suspicion that criminal activity is
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afoot.” Commonwealth v. Pratt, 930 A.2d 561, 564 (Pa. Super. 2007)
(emphasis added).2
Moreover, it has been clearly established that:
During this investigatory stop, the officer can pat-down the driver
“when the officer believes, based on specific and articulable facts,
that the individual is armed and dangerous.” Commonwealth v.
Stevenson, 894 A.2d 759, 772 (Pa. Super. 2006), appeal denied,
591 Pa. 691, 917 A.2d 846 (2007), citing, Terry v. Ohio, 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968);[3] Commonwealth
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2 The Pratt Court explained the basis for this rule of law:
In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54
L.Ed.2d 331 (1977), the United States Supreme Court held that
police may require the driver of a lawfully stopped vehicle to exit
the vehicle without any additional probable cause or reasonable
suspicion without violating an individual’s Fourth Amendment
rights. In so holding, the Court balanced the need to protect police
officers from the serious and substantial dangers inherent in traffic
stops, and the relatively minor intrusion upon the privacy rights
of the driver in situations where the vehicle has been lawfully
stopped.
…
In Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed2d
41 (1997), the United States Supreme Court explicitly extended
the rule of Mimms, … stating:
In summary, danger to an officer from a traffic stop is likely
to be greater when there are passengers in addition to the
driver in the stopped car. While there is not the same basis
for ordering the passengers out of the car as there is for
ordering the driver out, the additional intrusion on the
passenger is minimal.
Pratt, 930 A.2d at 564 (quoting Wilson, 117 S.Ct. at 886).
3 The principles of Terry apply to all occupants of the stopped vehicle, not just
the driver. See Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa. Super.
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v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969); Commonwealth v.
Robinson, 410 Pa.Super. 614, 600 A.2d 957, 959 (1991), appeal
denied, 533 Pa. 599, 617 A.2d 1273 (1992). Such pat-downs,
which are permissible “without a warrant and on the basis of
reasonable suspicion less than probable cause, must always be
strictly limited to that which is necessary for the discovery of
weapons” that might present a danger to the officer of those
nearby. Commonwealth v. Ingram, 814 A.2d 264, 269 (Pa.
Super. 2002) (quotation omitted), appeal denied, 573 Pa. 671,
821 A.2d 586 (2003). When assessing the validity of a pat-down,
“we examine the totality of the circumstances … 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.” Wilson, 927 A.2d at
284 (citation omitted).[4]
Commonwealth v. Parker, 957 A.2d 311, 314-15 (Pa. Super. 2008). “The
purpose of this limited search is not to discover evidence of crime, but to allow
the officer to pursue his investigation without fear of violence.” Simmons,
17 A.3d at 403 (quoting Adams v. Williams, 407 U.S. 143, 146 (1972)).
Mindful of the foregoing principles, we review the findings of fact and
conclusions of law that the trial court made at the close of the suppression
hearing:
[Appellant] was the passenger in a vehicle operated in an
area of the Zone 1 area of the City of Pittsburgh[,] which the
officers testified was a high-crime and high-drug area. Officers
specifically testified that many firearms have been removed from
the area.
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2011) (citing Commonwealth v. Mesa, 683 A.2d 643, 646 (Pa. Super.
1996)).
4We previously determined that where a defendant is stopped in a high crime
area, that factor “enhances the danger that police may encounter an armed
subject in a fashion similar to, but greater than, a night time stop.”
Commonwealth v. Scarborough, 89 A.3d 679, 683-84 (Pa. Super. 2014).
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The officers had a basis for the stop of the vehicle. Case
law is absolutely clear that the officers are permitted to stop a
vehicle upon the observance of any traffic violation which was
articulated by the officer as to the failure to utilize a turn signal
while making an established … left-hand turn as documented in
the police reports.
At that point, the officers testified that one of the officers
was familiar with the driver of the vehicle, Mr. Stevenson, as the
person who, in the past, had carried a firearm. They asked Mr.
Stevenson to exit the vehicle. Upon exiting the vehicle, they found
a firearm in or around the driver area where Mr. Stevenson was
located.
At that point, the officers … indicated that both the driver,
Mr. Stevenson, and the front seat passenger, [Appellant], were
both nervous and anxious. While that, in and of itself, is not
sufficient, [given] the fact that the officers had already removed
a firearm from the driver, they asked [Appellant] to exit the
vehicle.
The officers then patted down [Appellant,] at which time a
firearm was found. While the officers did not see a firearm or see
any inference of a firearm, the officers were justified in conducting
a pat-down search either under the rubric of a Terry stop because
they would obviously have a right to detain [Appellant] for the
purpose of conducting a further investigation in light of what had
already occurred with the stop of the vehicle, and the case law is
clear for purposes of officers’ safety, the pat-down search is
appropriate.
For those reasons, the [c]ourt denies the [m]otion to
[s]uppress.
N.T. Suppression at 21-23.
After careful review, we conclude that the trial court’s findings of fact
are well-supported by the record, and we discern no error of law. Thus, we
determine that the trial court properly denied Appellant’s suppression motion.
Judgment of sentence affirmed.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2019
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