Opinion
J-S37035-15 No. 2914 EDA 2014
08-06-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. JULIUS DANIEL ALLEN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 23, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0005263-2013
BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J. MEMORANDUM BY LAZARUS, J.:
Julius Daniel Allen appeals from the judgment of sentence imposed by the Court of Common Pleas of Montgomery County after he was convicted of possession of a controlled substance, possession with intent to deliver, possession of drug paraphernalia, possession of firearm with altered manufacturer's number, persons not to possess firearms, firearms not to be carried without a license, windshield obstruction and wipers, and resisting arrest. Upon careful review, we affirm.
The trial court has set forth the facts of this matter as follows:
On June 16, 2013, Officer James Lee, a 27-year veteran of the Norristown Police Department, was patrolling in a marked patrol car and at approximately 4:30 a.m. he observed a white Dodge Intrepid with dark tinted windows. The officer was unable to see into the car because of the tinted windows, and initiated a traffic stop on that basis. The driver pulled over.Trial Court Opinion, 11/7/14, at 1-3.
Officer Lee called the tag into the dispatcher, but before he heard back Officer Lee approached the car. The officer testified that even as he approached the car, he [was] unable to see into the car. Officer Lee asked the driver to put down the driver's side window. In court, Officer Lee identified [Allen] as the driver of the car.
[Allen] was asked for his driver's license and registration, which he produced quickly. Officer Lee advised [Allen] of the tinted window violation. At that juncture, the officer went back to his patrol car to run a driver's check.
Several other officers arrived on the scene to assist as back-up, including Officer Carl Robinson. While Officer Lee was back at his patrol car, he heard a scuffle between Officer Robinson and [Allen]. Officer Lee assisted Officer Robinson with taking [Allen] into custody. Officer Lee patted [Allen] down, and incident to that pat-down, he found a handgun, which he properly seized.
Officer Robinson also testified at the suppression hearing. He told the Court that he had heard Officer Lee's traffic stop over the radio and decided to act as back-up. When he arrived on the scene, Officer Robinson approached the driver's side with a
flashlight. He could not see into the interior of the car without the use of a flashlight. Looking towards the floor of the car, behind the driver's side the officer observed four purple-tinted plastic packets of suspected crack cocaine.
Officer Robinson advised Officer Leeds, who was at the passenger side of the car, that he could see the suspected drugs on the floor and that they would be taking [Allen] out the car and placing him under arrest. Officer Robinson told [Allen] to step out of the car, and that is when the struggle ensued.
[Allen] was fighting with the officers, and was ultimately tased. During the struggle, Officer Robinson observed [Allen] reaching for something under his hoody, which the officer saw to be a plastic baggy hanging from the hoody front pocket. Incident to the arrest, [Allen] was found to also have 19 packets of cocaine in that plastic baggy.
On June 16, 2014, the court heard argument on Allen's pre-trial motion to suppress the evidence uncovered from the officers' stop of his vehicle as well as Allen's petition challenging the constitutionality of section 4524(e)(1). Both motions were denied and the court proceeded to a stipulated bench trial. The court found Allen guilty of the aforementioned offenses and the court sentenced him to an aggregate term of seven and one-half to twenty years' imprisonment. This timely appeal followed.
On appeal, Allen raises the following issues for our review:
1. Section 4524(e)(1) of the Vehicle Code, 75 Pa.C.S. § 4524(e)(1), is unconstitutionally void for vagueness in that persons of ordinary intelligence must guess as to what conduct is prohibited by the statute.Appellant's Brief, at 15, 26.
2. [The trial court] erred as a matter of law when [it] denied Allen's motion to suppress the drugs and firearm discovered after the [June 16, 2013] vehicle stop.
The statute in question, Pennsylvania's law against windshield obstructions and wipers, provides, in relevant part:
§ 4524. Windshield obstructions and wipers.75 Pa.C.S. § 4524.
(e) Sun screening and other materials prohibited.
(1) No person shall drive any motor vehicle with any sun screening device or other material which does not permit a person to see or view the inside of the vehicle through the windshield, side wing or side window of the vehicle.
In evaluating a challenge to the constitutionality of a statute, our Supreme Court has held:
[A]ny party challenging the constitutionality of a statute must meet a heavy burden, for we presume legislation to be constitutional absent a demonstration that the statute clearly, palpably, and plainly violates the Constitution. The presumption that legislative enactments are constitutional is strong. All doubts are to be resolved in favor of finding that the legislative enactment passes constitutional muster. Moreover, statutes are to be construed whenever possible to uphold their constitutionality.DePaul v. Commonwealth , 969 A.2d 536, 545-46 (Pa. 2009) (internal quotations and citations omitted).
When a statute is challenged as unconstitutionally vague, our Pennsylvania courts apply the following test:
Under the void-for-vagueness standard, a statute will only be found unconstitutional if the statute is so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. However, a statute will pass a vagueness constitutional challenge if the statute define[s] the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.Commonwealth v. McCoy , 69 A.3d 658, 662 (Pa. Super. 2013) (quotation marks and citations omitted). Moreover, "[w]hen an ascertainable standard is present in a statute, the violator whose conduct falls clearly within the scope of such standard has no standing to complain of vagueness." Commonwealth v. Heinbaugh , 354 A.2d 244, 247 (Pa. 1976).
Allen argues that section 4524(e)(1) fails to provide sufficient specificity as to what conduct is prohibited and subjects the motorist to fines and costs. He claims that because the statute does not designate whether a person must have normal vision or impaired vision to be able to see inside the vehicle, it is too vague. He also claims that because there is no specificity about whether the time of day or whether the interior color of the car is relevant, it must be so vague that persons of common intelligence cannot determine its meaning.
In Commonwealth v. Scott , 878 A.2d 874 (Pa. Super. 2005), the defendant was found guilty of carrying a firearm without a license following a vehicle stop for a violation of Philadelphia Traffic Code § 12-1126 for playing sounds from his car speakers that could be heard outside of the vehicle at a distance of greater than 25 feet. The defendant claimed that the statute was too vague in that the ordinance gives a person little, if any, guidance as to what is prohibited. Id. at 878. This Court held that the ordinance's language describes the prohibited conduct in readily understandable terms and provides fair notice as to the prohibited conduct. Id. Because the officer testified that he heard music coming from the defendant's vehicle from about 50 feet away, the defendant's conduct was held to fall clearly within the scope of this standard. Id. at 879. Therefore, this Court held that the defendant had no standing to complain of the statute's vagueness as it was meritless. Id.
Section 12-1126 states:
No person, while driving, parked or in control of any vehicle, shall operate a radio, tape player or any other type of sound reproduction device, in any area within the City at a sound level which produces a sound audible at a distance of greater than twenty-five feet from the location of such radio, tape player or other sound reproduction device, unless such device is being used in connection with the holding of a public assembly for which a permit or license has been issued by the city.The Philadelphia Code and Charter, The Traffic Code, Section 12-1126.
Here, the statute at issue, section 4524(e)(1), prohibits driving a motor vehicle with material that prevents a person from seeing the inside of the vehicle through the windshield, side wing or side windows. The statutory language clearly presents an ascertainable standard to be followed as Allen could have checked his own windows to see how difficult it is to see inside the vehicle. The United States Supreme Court has stated: "Condemned to the use of words, we can never expect mathematical certainty from our language." Grayned v. City of Rockford , 408 U.S. 104, 110 (1972). Therefore, while the statute does not provide the exact degree to which the windows shall be tinted to constitute a violation of section 4524(e)(1), a reasonable person can ascertain the standard to follow under the statute.
Officers Lee and Robinson both testified that they were unable to see inside the vehicle. In fact, the trial court even stated, "[t]he Court and defense counsel all viewed the vehicle on a prior occasion, and all agreed that it was impossible to view the interior without placing a flashlight directly on the glass of the vehicle." N.T. Suppression Hearing/Trial, 6/16/14, at 88. Therefore, Allen's conduct clearly falls within the scope of the ascertainable standard of the statute and he has no standing to complain of the statute's vagueness. Heinbaugh , supra.
However, even if Allen does have standing, the language of section 4524(e)(1) is not vague, as it defines the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. As the trial court noted, there are many examples in the Vehicle Code of behaviors that are prohibited and rely on a police officer's perception for enforcement such as driving a vehicle at a safe speed and whether a vehicle meets or overtakes a school bus. As noted in Grayned , we can never expect mathematical certainty from the words of a statute. However, an ordinary person can understand the conduct prohibited under section 4524(e)(1). Accordingly, Allen fails to satisfy the heavy burden of proving that section 4524(e)(1) is unconstitutional.
Allen next claims that the trial court erred as a matter of law when the court denied his motion to suppress the drugs and firearm discovered during the vehicle stop. Allen challenges the trial court's finding that the four purple-tinted bags of suspected crack cocaine were in plain view of Officer Robinson when he shined his flashlight into the vehicle.
Allen first argues that the stop was illegal because section 4524(e)(1) is void for vagueness. However, having already concluded that the statute is not vague, we need not address this further.
Our standard of review when evaluating a suppression order is well settled:
When reviewing the propriety of a suppression order, an appellate court is required to determine whether the record supports the suppression court's factual findings and whether the inferences and legal conclusions drawn by the suppression court from those findings are appropriate. Where the [appellee] prevailed in the suppression court, we may consider only the evidence of the [appellee] and so much of the evidence for the Commonwealth as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. However, where the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's conclusions of law are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts.Commonwealth v. Walls , 53 A.3d 889, 892 (Pa. Super. 2012) (citations omitted).
Concerning the initial stop, Allen argues that Officer Lee did not have reasonable suspicion to pull him over. If a police officer has reasonable suspicion that any violation of the Vehicle Code is occurring, he may stop the vehicle. See 75 Pa.C.S. § 6308. In determining whether the police officer had reasonable suspicion, "the totality of the circumstances must be considered. In making this determination, we must give due weight . . . to the specific reasonable inferences the police officer is entitled to draw from the facts in light of his experience." Commonwealth v. Fulton , 921 A.2d 1239, 1243 (Pa. Super. 2007) (citations and quotation marks omitted). If an objective review of the facts shows that an officer possessed specific, articulable facts that an individual was violating a traffic law at the time of the stop, then the stop will be deemed reasonable. Commonwealth v. Chase , 960 A.2d 108, 114 (Pa. 2008)
Here, Officer Lee testified that while on patrol, he observed Allen's vehicle and was "unable to see into the car," a violation of section 4524(e)(1), so he initiated a traffic stop. N.T. Suppression Hearing/Trial, 6/16/14, at 6. This observation was supported by Officer Robinson's testimony that he could not see inside the side window behind the driver without using his flashlight. Id. at 54. This testimony is evidence that Officer Lee had reasonable suspicion that section 4524(e)(1) was being violated by Allen and thus gave him a reasonable basis to stop the vehicle.
Next, Allen argues that the four purple bags of suspected crack cocaine were not in "plain view" in his vehicle, and, therefore, the officers did not have probable cause to arrest him. Allen claims that Officer Robinson's testimony lacks credibility as it would be almost impossible to distinguish four small purple-tinted plastic bags lying on the floor behind the driver's seat of the vehicle.
This Court is bound by the factual findings of the suppression court when the record supports those findings. Walls , supra. Here, the testimony of Officers Lee and Robinson supports the factual finding that Officer Robinson was able to see the four bags and determine that they may have crack cocaine in them.
Regarding the actual discovery of the four bags of crack cocaine, pursuant to the plain view doctrine, the warrantless seizure of a piece of evidence is justified when: "(1) an officer views the object from a lawful vantage point; (2) it is immediately apparent to him that the object is incriminating; and (3) the officer has a lawful right of access to the object." Commonwealth v. Hudson , 92 A.3d 1235, 1241 (Pa. Super. 2014). In determining whether an officer is at a lawful vantage point, this Court must "consider whether their conduct violated Fourth Amendment principles." Commonwealth v. English , 839 A.2d 1136, 1139 (Pa. Super. 2003).
The fact that Officer Robinson used his flashlight to look into Allen's vehicle and see the bags does not violate plain view principles. The Pennsylvania Supreme Court has held that the use of a flashlight to look into a vehicle is generally justified and does not negate plain view. Commonwealth v. Milyak , 493 A.2d 1346, 1349 n.5 (Pa. 1985). The Milyak Court also held that an officer observing the contents of the interior of the vehicle from a vantage point outside of the vehicle does not infringe on a legitimate expectation of privacy. Id. at 1349. Thus, Officer Robinson's use of a flashlight to see inside Allen's car was consistent with the plain view doctrine. Officer Robinson simply observed the four purple-tinted bags on the floor and based on his common sense, experience, and knowledge, realized that it was likely that these bags contained a drug such as crack cocaine. The seizure of the four bags containing crack cocaine was, therefore, proper.
As a result of the discovery of the contraband, the subsequent search of Allen's person and discovery of the firearm and additional drugs was a lawful search incident to arrest. In Commonwealth v. Thompson , 778 A.2d 1215, 1222 (Pa. Super. 2001), this Court held that as long as the officer had probable cause to arrest the defendant at the time of the search, and the circumstances revealed an intent to take the defendant into custody, the officer is permitted to search the defendant pursuant to a lawful arrest.
Here, Officer Robinson observed the contraband, which gave him probable cause to arrest Allen. Officer Robinson was therefore permitted to search Allen pursuant to a lawful arrest. Accordingly, the trial court did not err in denying Allen's motion to suppress the evidence of the drugs and firearm discovered after the traffic stop.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2015