Opinion
J-S38036-15 No. 1761 MDA 2014
07-16-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. RONDELLE CHRISTIAN MIDDLETON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence entered on September 12, 2014 in the Court of Common Pleas of Dauphin County, Criminal Division, No. CP-22-CR-0000012-2014 BEFORE: WECHT, STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Rondelle Christian Middleton ("Middleton") appeals from the judgment of sentence imposed after he was convicted of possession with intent to deliver a controlled substance, possession of a controlled substance, and possession of drug paraphernalia. We affirm.
See 35 P.S. § 780-113(a)(30), (16), and (32).
The trial court set forth the procedural history and relevant facts underlying this appeal in its Pa.R.A.P. 1925(a) Opinion, which we incorporate herein for purposes of this appeal. See Trial Court Opinion, 2/18/15, at 1-5.
On appeal, Middleton presents the following issue for our review:
Whether the trial court erred in denying [Middleton's] Suppression Motion where police officers conducted a suspicionless Terry [FN] frisk and a coerced consent search of [Middleton], in violation of Article I, Section 8 of the
Pennsylvania Constitution and the Fourth Amendment to the United States Constitution?
Brief for Appellant at 5 (footnote in original).[FN] Terry v. Ohio , 392 U.S. 1 (1968).
In reviewing the denial of a suppression motion,
our role is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we may consider only the evidence of the prosecution's witnesses and so much of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the evidence supports the factual findings of the suppression court, we may reverse only if there is an error in the legal conclusions drawn from those factual findings. As a reviewing court, we are therefore not bound by the legal conclusions of the suppression court and must reverse that court's determination if the conclusions are in error or the law is misapplied.Commonwealth v. Page , 59 A.3d 1118, 1131 (Pa. Super. 2013) (citation and brackets omitted).
Middleton argues on appeal that the Terry frisk of his person was unlawful, as it was not supported by reasonable suspicion that he was armed and dangerous. See Brief for Appellant at 12-15 (citing, inter alia, Commonwealth v . E.M., 735 A.2d 654, 659 (Pa. 1999) (stating that "[i]n order to justify a frisk under Terry , the officer must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.") (citation and quotation marks omitted)); see also Brief for Appellant at 13 (asserting that "Officer Henry was unable to point to any fact from which he reasonably inferred that [Middleton] was armed and dangerous. Indeed, Officer Henry conceded that his basis to search [Middleton] was what he didn't know, not what he did know[.]" (emphasis in original)). Importantly, Middleton never raised this claim before the trial court; accordingly, we must rule that it is waived. See Pa.R.A.P. 302(a) (stating that an issue cannot be raised for the first time on appeal); see also Commonwealth v. Miller , 80 A.3d 806, 811 (Pa. Super. 2013) (stating that "[b]y requiring that an issue be considered waived if raised for the first time on appeal, our [appellate C]ourts ensure that the trial court that initially hears a dispute has had an opportunity to consider the issue. This jurisprudential mandate is also grounded upon the principle that a trial court must be given the opportunity to correct its errors as early as possible.") (citation and ellipses omitted); see also Commonwealth v. Colavita , 993 A.2d 874, 891 (Pa. 2010) (stating that "[w]here the parties fail to preserve an issue for appeal, the Superior Court may not address that issue sua sponte.") (citation omitted).
We observe that Middleton does not dispute that the initial stop of the vehicle driven by King was lawful, nor does he challenge that the police possessed the requisite reasonable suspicion/probable cause to conduct a Terry frisk of King and/or arrest him.
In his Motion to Suppress and supporting Memorandum of Law, Middleton challenged only the validity of his consent to the search of his person (performed after the Terry frisk), and the allegedly coercive atmosphere in which he consented to the search.
The trial court in the instant case correctly observed in its Pa.R.A.P. 1925(a) Opinion that "[u]pon review of the suppression hearing transcript and Memoranda of Law submitted by the parties, it appears that both parties agree that the Terry frisk performed by Officer Henry [on Middleton] was a lawful investigative detention[,] and the encounter is not being challenged as illegal." Trial Court Opinion, 2/18/15, at 6.
Moreover, Middleton did not specifically challenge the Terry frisk in his court-ordered Pa.R.A.P. 1925(b) Concise Statement. Instead, he raised only a general challenge to the trial court's denial of his suppression Motion. See Pa.R.A.P. 1925(b)(4)(ii) & (vii) (providing, respectively, that "[t]he Statement shall concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge[,]" and that "[i]ssues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.") (emphasis added).
Middleton raised the following claim in his Concise Statement: "The trial court erred when it denied [Middleton's M]otion to suppress evidence and statements in the above captioned case." Concise Statement, 10/24/14.
Next, we address Middleton's challenge to the legality of the search of his person that occurred after the Terry frisk, and whether his consent to this search was voluntarily given. According to Middleton, his "alleged consent to Officer Hammer's search of his person was coerced and the product of deception." Brief for Appellant at 23. Middleton avers that he
did not ... voluntarily consent to the search[,] since he was continuously and illegally subjected to the will and control of Officer Henry. Officer Henry had previously pulled out his gun, pointed it at [Middleton], and gave [him] numerous orders[,] which [he] obeyed. [Middleton] testified that he thought he would get in trouble if he disobeyed.Id. at 24. Middleton emphasizes that the police did not inform him that he was under no obligation to consent to the search of his person. Id. at 26. Moreover, Middleton contends that "[t]hough Officer Henry testified that he told [Middleton] he was 'good to go' after determining that there were no warrants for [Middleton], Officer Henry did not mention this anywhere in his detailed and chronological police report." Id. at 24.
In its Pa.R.A.P. 1925(a) Opinion, the trial court thoroughly addressed Middleton's claims, set forth the applicable law, and determined that it properly denied Middleton's suppression Motion because, inter alia, (1) "Officer Henry's detention for a pat-down [search] was lawful"; (2) "Officer Hammer's ID check was lawful"; and (3) Middleton voluntarily gave his consent to the subsequent search of his person, during a "constitutionally sound encounter" under the totality of the circumstances. See Trial Court Opinion, 2/18/15, at 6-8, 9-13. Our review confirms that the trial court's thorough and cogent analysis is supported by the record and the law. Therefore, we affirm on this basis in concluding that the trial court properly denied Middleton's Motion to suppress. See id.
As an addendum, to the extent that Middleton challenges the credibility of Officer Henry's trial testimony that he had informed Middleton, after the Terry frisk, that he was "good to go," it was the sole province of the trial court, as the fact-finder, to evaluate Officer Henry's credibility and determine whether there were any conflicts between his testimony and his police report. See Commonwealth v. Vogelsong , 90 A.3d 717, 719 (Pa. Super. 2014) (stating that "[a]s an appellate court, we do not assess credibility nor do we assign weight to any of the testimony of record.").
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/2015
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