Com. v. Mims-Carter, D. ( 2016 )

J-A07026-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEVON DAUSJAY MIMS-CARTER
Appellant No. 536 WDA 2015
Appeal from the Judgment of Sentence February 27, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0016495-2013
BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 14, 2016
Appellant, Devon Dausjay Mims Carter, appeals from the February 27,
2015 aggregate judgment of sentence of 11½ to 23 months’ incarceration,
imposed after the trial court convicted Appellant of one count each of
possession with intent to deliver a controlled substance (PWID), possession
of a controlled substance, and resisting arrest.1 After careful review, we
affirm.
The trial court summarized the factual history of this case as follows.
Officer Josh Alfer of the McKeesport Police
Department, a police officer with nine years’
experience, testified that he was on patrol duty on
October 29, 2013. At 2:30 a.m., he made a traffic
stop on a gold Pontiac Sunfire for failing to signal
____________________________________________
1
35 P.S. § 780-113(a)(30) and (16), and 18 Pa.C.S.A. § 5104, respectively.
J-A07026-16
prior to making a left turn. Appellant was seated in
the front passenger seat of the car, and a female
was the driver. Officer Alfer radioed the traffic stop
into dispatch, and Officer Bryan Easter responded as
back-up.
Officer Alfer observed Appellant leaning
forward in his seat, reaching towards his right side
pocket in between his hip and the door. Officer Alfer
instructed all occupants of the car to keep their
hands where he could see them. Appellant originally
complied with the officer’s instruction, but later
reached down towards his right side, out of the view
of the officer. Officer Alfer testified that the area in
which the car was stopped was a high crime area
with a history of violent crimes including numerous
shootings. When Appellant was again asked to show
his hands, Officer Alfer observed that Appellant’s
breathing was increased, and Appellant began to
look from right to left in what the officer described as
a nervous motion. Officer Alfer testified that, due to
Appellant’s movements within the vehicle, and the
officer’s concern that Appellant may have a firearm
on his person, Officer Alfer instructed Appellant and
the female driver to exit the vehicle.
Officer Alfer observed Appellant exit the vehicle
and saw Officer Easter begin a pat-down search of
Appellant. As Officer Easter approached Appellant’s
right front pocket, Appellant immediately began to
pull away and a struggle ensued between Appellant
and Officer Easter. Officer Alfer came around the car
to assist. He instructed Appellant to stop moving.
When Appellant failed to comply, Officer Alfer
discharged his Taser and Appellant was subsequently
handcuffed.
Officer Easter also testified to his encounter
with Appellant. Officer Easter testified that, as he
approached the vehicle, Appellant kept looking over
his shoulder to see where the officer was. Officer
Easter observed Appellant move his shoulder and
reach towards the right side of his body near his
waistband, pocket area. Appellant’s hands were not
in plain view at that time. After Officer Alfer asked
-2-
J-A07026-16
the driver to exit the vehicle, Officer Easter also
asked Appellant to exit the car. Appellant was
directed to face the vehicle and place his hands
behind his head, interlocking his fingers. Appellant
put his hands on his head but did not interlock his
fingers.
Officer Easter began a pat down of Appellant
for weapons. As the officer brought his hand down
toward Appellant’s right pocket area, Appellant
immediately started to spin away from the officer.
Officer Easter felt something in Appellant’s pocket,
but did not know at that time what it was. Appellant
kept trying to break away from Officer Easter, who
instructed him to stop or he would be tased.
Appellant did not comply and Officer Alfer deployed
his Taser. After Appellant had been handcuffed,
Officer Easter searched Appellant incident to arrest
and recovered from Appellant’s right pocket a white
plastic grocery bag containing numerous packets of
heroin.
Trial Court Opinion, 5/29/15, at 3-4 (internal citations omitted).
Appellant was charged with the aforementioned offenses. On June 20,
2014, he filed a motion to suppress the evidence obtained from the traffic
stop. The trial court convened a suppression hearing on February 19, 2015,
and denied the motion after hearing testimony from the two officers, and
arguments of counsel. N.T., 2/19/15, at 40. Appellant proceeded to a non-
jury trial, after which the trial court rendered its guilty verdicts. 2 On
____________________________________________
2
Also that same day, Appellant pled guilty to one count of escape at docket
number, CP-02-CR-7805-2014. Id. at 68-69. He was sentenced to three to
six months’ incarceration, concurrent to the sentence imposed in the instant
case. N.T., 2/27/15, at 18.
-3-
J-A07026-16
February 27, 2015, the trial court sentenced Appellant to 11½ to 23 months’
incarceration, to be followed by three years’ probation for PWID, and
imposed no further penalty for possession of a controlled substance and
resisting arrest. Appellant did not file a post-sentence motion. Appellant
filed a timely notice of appeal on March 27, 2015.3
On appeal, Appellant presents a single issue for our review.
Did the suppression court err in failing to suppress
the evidence obtained against Appellant, as there
was no reasonable suspicion to conduct a Terry frisk
on the passenger in a car stopped for a traffic
violation, because the initial stop had ended and the
officers had no particular and articulable facts to
believe that Appellant was armed and dangerous?
Appellant’s Brief at 5.
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,
____________________________________________
3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
-4-
J-A07026-16
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).
Instantly, Appellant does not dispute the constitutionality of the initial
traffic stop. Appellant’s Brief at 11, 23. However, Appellant argues that
“once the traffic stop was concluded, the occupants of the car should have
been free to go.” Id. at 11. Appellant specifically claims that the police
lacked reasonable suspicion to continue the stop and conduct a Terry4 frisk,
where there was no indication that criminal activity was afoot, and “the
officer noticed that [Appellant] looked nervous, but saw nothing else
incriminating.” Id. at 23. Appellant asserts that “leaning to the right and
looking nervous are not sufficient to support a finding of reasonable
suspicion.” Id. at 24.
Before reaching the merits of Appellant’s argument, we turn to the
Commonwealth’s contention that Appellant’s argument is waived because
Appellant’s counsel, at the suppression hearing, “conceded the Terry pat-
____________________________________________
4
Terry v. Ohio, 392 U.S. 1 (1968).
-5-
J-A07026-16
down was permissible and lawful.” Commonwealth’s Brief at 10. Our review
of the suppression hearing transcript supports the Commonwealth’s
contention. After the two police officers testified, Appellant’s counsel stated
as follows.
Defense rests. I just have argument. A few
things. One, I would argue that we don’t know what
happened. As far as the inaccuracies, [the police
officer was] basically testifying that the police report
was inaccurate and also, I believe that the argument
is going to be, obviously the initial argument I would
have is that it was not immediately apparent by
patting someone down that there’s heroin for sale in
their pocket. There’s absolutely no way [the police]
could tell that by just a pat-down and I have case
law to support that argument.
From the testimony you can tell that I spoke
with an officer this morning that had a slightly
different take on the facts of this case and it changed
the argument that I’m going to make now, and I
understand now that the Commonwealth may be
arguing that [Appellant] was trying to get away and
escape. However, under the – and that’s what he
was being arrested for, is the escape, and not the
pat-down and officer’s safety, which I
wholeheartedly believe that the police officers
have the right to have my client get out [of the
car and] pat him down for their officers’ safety
and for anyone else’s safety. However, that’s a
Terry frisk and it doesn’t give them great latitude to
find contraband. It’s not pretextual to find anything
else other than weapons or knives, guns, whatever
else can be used as a weapon which they testified
there was none.
N.T., 2/19/15, at 34-35 (emphasis added).
Consistent with the above, the trial court observed as follows.
Okay, basically it does appear that there’s an
error in the police report. The officer who actually
-6-
J-A07026-16
did the pat didn’t write it. The charge of resisting,
while that may be wrong, doesn’t change the fact
that [Appellant] did attempt to escape a lawful
detention and an investigative pat-down which
the Defense concedes was appropriate under
the facts. So once [Appellant] was then down on
the ground and cuffed he was lawfully detained or
attempted escape and I would have to deny the
suppression.
Id. at 40 (emphasis added).
Similarly, in responding to Appellant’s Rule 1925(b) statement, in
which Appellant asserted “the officers in this case did not have reasonable
suspicion to conduct a Terry frisk” of Appellant, the trial court commented,
“Appellant’s counsel conceded that the police officers had the right to have
Appellant exit the vehicle and pat him down for weapons for officer safety
pursuant to Terry v. Ohio[.]” Statement of Errors Complained of on
Appeal, 4/20/15, at 3; Trial Court Opinion, 5/29/15, at 5.
The Commonwealth cites Commonwealth v. Little, 903 A.2d 1269,
1272-1273 (Pa. Super. 2006), for the proposition that “our appellate review
of an order denying suppression is limited to examination of the precise
basis under which suppression initially was sought; no new theories of relief
may be considered on appeal.” We quoted Little most recently in
Commonwealth v. Freeman, 128 A.3d 1231, 1241 (Pa. Super. 2015), in
which we also referenced Commonwealth v. Thur, 906 A.2d 552, 566 (Pa.
Super. 2006), (holding “[w]hen a defendant raises a suppression claim to
the trial court and supports that claim with a particular argument or
-7-
J-A07026-16
arguments, the defendant cannot then raise for the first time on appeal
different arguments supporting suppression[]”). Given the foregoing
authority, we agree with the Commonwealth that Appellant has waived his
appellate argument regarding reasonable suspicion for a Terry frisk,
because Appellant’s counsel conceded that same argument at the
suppression hearing. Therefore, we decline to review the merits of
Appellant’s issue on appeal.
Based on the foregoing, we conclude Appellant’s sole issue on appeal
is waived. Accordingly, the trial court’s February 27, 2015 judgment of
sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2016
-8-