Com. v. Campbell, G. ( 2014 )

J.S45036/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
GILBERT CAMPBELL, :
:
Appellant : No. 2227 EDA 2013
Appeal from the Judgment of Sentence July 10, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0010839-2011
BEFORE: BOWES, ALLEN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 27, 2014
Appellant, Gilbert Campbell, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following a jury
trial and convictions for carrying a firearm without a license, 1 possession of a
firearm with the manufacturer number altered,2 and persons not to possess
firearms.3 Appellant suggests the police lacked reasonable suspicion or
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6106.
2
18 Pa.C.S. § 6110.2.
3
18 Pa.C.S. § 6105. The court, and not the jury, tried Appellant for this
crime.
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probable cause to search his vehicle and thus the trial court erred in denying
his motion to suppress the evidence. We affirm.
We state the facts and procedural history as set forth by the trial
court:
On September 2, 2011, at 9 p.m., on the 2400 block of
North Colorado Street, Police Officer David Rausch, an
experienced narcotics officer, began a narcotics
surveillance. At 9:10 p.m. Officer Rausch observed
[Appellant], whom he knew from a previous narcotics
arrest, remove a clear baggie containing small items from
his front waistband and then put it back. Based on Officer
narcotics packaged for sale. [Appellant] walked out of
silver Buick that was parked on the 1700 block of
Cumberland Street and drove off. Officer Rausch put out
information to back-up officers to stop [Appellant] for a
narcotics investigation.
Sergeant Sylvia Young, who was acting as a back up to
Officer Rausch, received information from Officer Rausch
to stop a silver Buick. The back-up officers double parked
their police vehicle five feet in front of the Buick which was
parked on the 2500 block of Colorado Street. Sergeant
Young knew [Appellant] from previous encounters and
believed that [Appellant] recognized her. As Sergeant
Young approached the vehicle on foot, she observed
[Appellant] bend down and make a motion towards the
passenger seat. [Appellant] was immediately taken out of
the vehicle. Sergeant Young recovered a Kel-Tec 9-
mil[l]imeter handgun loaded with eleven live rounds under
the passenger seat and $5,195 U.S. [c]urrency on the
passenger seat that was in plain view. The officers
arrested [Appellant].
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At trial[,4] Officer Rausch testified consistent with his
suppression hearing testimony. Additionally, Sergeant
Sylvia Young testified that she along with Police Officer
Cherry, Police Officer Dougherty, and Police Officer
Greninger were acting as a back up to Officer Rausch. At
car which was parked on the 2500 block of Colorado
Street. When Sergeant Young exited her vehicle she
observed [Appellant] reach under the passenger seat for
what she believed was a weapon. Officer Dougherty took
[Appellant] out of the car. Sergeant Young the Kel-Tec 9-
mil[l]imeter handgun and $5,195 U.S. [c]urrency.
Police Officer Ronald Weitman, an expert in the field of
firearms examination, testified that the serial number on
the firearm had been obliterated by gouging. The firearm
was also operable. [Appellant] was not licensed to carry a
firearm.
Trial Ct. Op., 9/13/13, at 2-3 (citations omitted).
Appellant filed a motion to suppress the gun. At the hearing,
Appellant alleged the police lacked reasonable suspicion or probable cause to
search his vehicle. N.T., 2/14/13, at 3. The court denied the motion and
the case proceeded to trial.
On July 10, 2013, a jury convicted Appellant of the above crimes. The
court sentenced Appellant that day to an aggregate sentence of five to ten
4
We acknowledge the holding of In re L.J., 79 A.3d 1073 (Pa. 2013), which
held that after October 30, 2013, the scope of review for a suppression issue
is limited to the record available to the suppression court. Id. at 1085, 1089
-wide
filed prior to October 30, 2013, In re L.J. does not apply.
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post-sentence motion on July 22, 2013. The docket and certified record,
how
-sentence motion. Appellant,
although represented by counsel, filed a pro se notice of appeal on August 1,
2013.5 Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement.
Appellant raises the following issue:
Did the lower court err when it denied the defense motion
to suppress physical evidence as Philadelphia police . . .
had neither probable cause nor reasonable suspicion to
automobile and seize a firearm from under the passenger
seat of this vehicle?
totality of the circumstances did not establish the existence of a drug
transaction as to justify the stop and search of his vehicle. Specifically, he
maintains that the police could not identify the contents of the plastic baggy
he put into his waistband. We hold Appellant is not entitled to relief.
Our standard of review in addressing a
challenge to the denial of a suppression motion
is limited to determining whether the
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
5
The notice of appeal was dated July 22, 2013, which was prior to the
-sentence motion.
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uncontradicted when read in the context of the
record as a whole. Where the suppression
record, we are bound by these findings and may
erroneous. Where, as here, the appeal of the
determination of the suppression court turns on
allegations of legal error, the suppression
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.
as fact finder to pass on the credibility of witnesses and
the weight to be given their testimony.
Commonwealth v. Baker, 24 A.3d 1006, 1015 (Pa. Super. 2011)
(punctuation and citations omitted), , 78 A.3d 1044
(Pa. 2013).
In Commonwealth v. Thompson, 985 A.2d 928 (Pa. 2009), our
Probable cause is made out when the facts and
circumstances which are within the knowledge of the
officer at the time of the arrest, 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
questio
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.
Id.
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the Id. at 935.
In Commonwealth v. Burnside, 625 A.2d 678 (Pa. Super. 1993),
Id. at
680.
On January 11, 1992, at approximately 10:15 p.m., a
uniformed Philadelphia police officer observed [the
defendant], who was standing in the brightly lit doorway to
commonly contained cocaine packaged for the retail
market. This sighting occurred in an area in which the
police officer had conducted numerous arrests for drug
offenses. Based on his knowledge and experience, the
contained narcotics. The officer and his partner, both in
uniform, decided to investigate the situation further.
However, as soon as [the defendant] noticed the police
presence, he shoved the packets into his jacket and
stepped backward into the store.
Police Officer Norman followed [the defendant] into the
store and brought him outside. Officer Albert Jones
thereupon conducted a pat down search of [the defendant]
which disclosed sixty-nine (69) blue-tinted packets and
pow
that time, [the defendant] also possessed one hundred
twenty-one dollars ($121) in United States currency.
Id. at 679-80 (citations omitted).
The trial court suppressed the evidence, and the Commonwealth
appealed, contending the police had probable cause for a warrantless arrest.
Id. at 681. The Burnside Court agreed, noting that the facts as set forth
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established probable cause Id. at 681-82.
Accordingly, the Superior Court found the search lawful and reversed the
Id. at 682.
In Commonwealth v. Murray, 936 A.2d 76 (Pa. Super. 2007), the
police, at night and in a high drug trade area, stopped a vehicle with
heavily-tinted windows for a traffic violation. Id. at 77. The police had
difficulty seeing through the windows but saw the defendant move
excessively. Id. ssive movement, the police
pulled him out of the vehicle and frisked him. Id. The police did not find a
weapon on the defendant, but concerned for their safety, one officer entered
the vehicle and searched the area where the defendant was sitting and
recovered a firearm. Id. The defendant challenged the limited vehicle
search on appeal. Id.
The Murray Court affirmed the reasonableness of the limited search:
Our past cases indicate then that protection of police and
others can justify protective searches when police have a
reasonable belief that the suspect poses a danger, that
roadside encounters between police and suspects are
especially hazardous, and that danger may arise from the
possible presence of weapons in the area surrounding a
suspect. These principles compel our conclusion that
the search of the passenger compartment of an
automobile, limited to those areas in which a
weapon may be placed or hidden, is permissible if
the police officer possesses a reasonable belief
iculable facts which, taken
together with the rational inferences from those
that the suspect is dangerous and the suspect may
gain immediate control of weapons
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whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of
Id. at 78-
neighborhood being a well-known narcotics area, when coupled with the
excessive movement inside the vehicle and hour of night, raised serious and
Id. at 80
(citations omitted).
the Honorable Barbara A. McDermott, we affirm on the basis of the trial
See Trial Ct. Op. at 4-6 (holding: (1) facts, as set forth
above, established reasonable suspicion that Appellant was distributing
illegal drugs; (2) police had reasonable suspicion of criminal activity to stop
seat upon seeing police justified limited search under passenger seat as
police established articulable suspicion that Appellant may possess weapon);
see Murray, 936 A.2d at 78-80 (holding furtive movement justified limited
search of vehicle); Burnside, 625 A.2d at 681-
suppression of evidence because police had probable cause to search
defendant despite not observing drug transaction); see also Thompson,
determining existence of probable cause). Accordingly, because the
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discern no error of law, we affirm the judgment of sentence. See Baker, 24
A.3d at 1015.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2014
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