Opinion
1607 EDA 2021
09-30-2022
COMMONWEALTH OF PENNSYLVANIA Appellant v. TERRANCE REED, JR.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered July 15, 2021 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006748-2019
BEFORE: BOWES, J., LAZARUS, J., and STABILE, J.
MEMORANDUM
LAZARUS, J.
The Commonwealth of Pennsylvania appeals from the order, entered in the Court of Common Pleas of Delaware County, granting Terrance Reed, Jr.'s pre-trial suppression motion. After review, we affirm.
The Commonwealth certified that the suppression order has substantially handicapped its prosecution of the case, pursuant to Pa.R.A.P. 311(d). See Commonwealth v. Jones, 69 A.3d 180, 185 (Pa. 2013) (Commonwealth's appeal of suppression order proper where Commonwealth certifies in good faith that order substantially handicaps prosecution).
In Commonwealth v. Gary, 91 A.3d 102, 138 (Pa. 2014), our High Court concluded that that law governing warrantless searches of vehicles under Article I, § 8 of the Pennsylvania Constitution “is coextensive with federal law under the Fourth Amendment.” Accordingly, the Court held that “[t]he prerequisite for a warrantless search of motor vehicles is probable cause to search; no exigency beyond the inherent mobility of a motor vehicle is required.” Id. In Commonwealth v. Alexander, 243 A.3d 177, 207 (Pa. 2020), the Supreme Court reversed course and held that Article I, § 8 of the Pennsylvania Constitution provides greater protections than the Fourth Amendment, such that warrantless automobile searches require the existence of “both probable cause and exigent circumstances.”
At 3:17 a.m., on July 11, 2019, Darby Borough Police Officer Albert Hunger observed a man, later identified as Reed, asleep in the driver's seat of a parked, running car in a private parking area on the 700 block of Commerce Street. N.T. Suppression Hearing, 10/13/20, at 4-14. At the suppression hearing, Officer Hunger testified this is a high-crime area, known by officers for illegal drug activity. Id. at 27. Once backup arrived, Officer Hunger recorded the car's license plate information, and then knocked on the driver's seat window to awaken Reed. Id. at 18. Reed responded and opened the car door, at which time Officer Hunger immediately smelled the odor of marijuana. Id. at 18. Officer Hunger noted Reed's glassy and bloodshot eyes and slow speech, which led him to believe that Reed was under the influence. Id. at 21.
Reed was parked at a dead-end path behind a church. Officer Hunger testified that the pastor of the church only permits certain people to park in that area, and that the vehicle Reed was sleeping in was not one of the vehicles permitted. N.T. Suppression Hearing, 10/13/20, at 19-20.
Reed exited the car and told Officer Hunger that the vehicle he was occupying was registered to a female. Id. at 36. A backup officer put Reed in wrist restraints while Officer Hunger conducted a search of the vehicle. Id. at 41-42. During the search, Office Hunger found a loaded Glock 42 handgun underneath a floormat on the driver's side and marijuana under the driver's seat. Id. at 23. The vehicle was towed and subjected to an inventory search. Id. at 61.
The vehicle was registered to Nadine Bogle. See id., 6/2/21, at 15. Officer Hunger testified that he believed Reed had permission to use the vehicle because the vehicle was not reported as stolen. Id. at 39; see also id., 10/13/20, at 36-39.
Reed was subsequently arrested and charged with possession of a prohibited firearm, carrying a firearm without a license, receiving stolen property, possession of an offensive weapon, use of drug paraphernalia,possession of marijuana, and public drunkenness. On February 28, 2020, Reed filed an omnibus pre-trial motion to suppress evidence arguing, inter alia, that the search of the vehicle Reed occupied was unreasonable and made without probable cause or after securing a search warrant, violating his constitutional rights. Omnibus Pre-Trial Motion to Suppress Evidence, 2/28/20, at 2.
Id. § 6106(a)(1).
Id. § 3925(a).
Id. § 908(a).
Id. § 780-113(a)(31).
On October 13, 2020, the trial court conducted a suppression hearing at which Officer Hunger testified. At the hearing, the Commonwealth based its arguments on Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), the then-controlling Pennsylvania case regarding warrantless searches of vehicles. On November 30, 2020, the trial court denied Reed's motion. One month later, on December 22, 2020, our Supreme Court decided Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020) (overruling Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014)). Subsequently, on December 28, 2020, Reed filed a motion for reconsideration of the denial of his suppression motion based upon the Supreme Court's decision in Alexander. The trial court granted reconsideration on January 25, 2021, and, on June 2, 2021, conducted a second suppression hearing. At the June 2, 2021 hearing, the Commonwealth argued, for the first time, that Reed had failed to demonstrate he had a reasonable expectation of privacy in the vehicle. The trial court ultimately ruled that the Commonwealth had waived its challenge to Reed's reasonable expectation of privacy in the vehicle because it had not raised the objection earlier. See N.T. Suppression Hearing, 6/2/21, at 49. On July 15, 2021, the trial court granted Reed's motion to suppress. The Commonwealth timely filed a notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained on appeal.
In Alexander, our Supreme Court expressly overruled Gary and held that warrantless vehicle searches require both probable cause and exigent circumstances. See Alexander, 243 A.3d at 207.
The Commonwealth now presents the following questions for our review:
A. Did the trial court err by suppressing evidence of a gun and illegal drugs recovered by the police from the vehicle in which [Reed] was the sole occupant where, during two suppression hearings, [Reed] failed to present any evidence, let alone evidence regarding a reasonable expectation of privacy in a vehicle he did not own, did not have [a] possessory interest [in,] and for which he did not establish having permission from the owner to use or occupy?
B. Did the trial court err by ruling that the Commonwealth waived its objection to the failure by [Reed] to establish a reasonable expectation of privacy regarding the vehicle at issue where the Commonwealth specifically raised the objection on the record during the second evidentiary hearing?
Brief of Appellant, at 1.
When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.Commonwealth v. Korn, 139 A.3d 249, 252-53 (Pa. Super. 2016) (citation omitted).
It is the sole province of the suppression court to weigh the credibility of witnesses, and the suppression court is entitled to believe all, part, or none of the evidence presented. Commonwealth v. Caple, 121 A.3d 511, 517 (Pa. Super. 2015).
In suppression hearings, the Commonwealth bears the preliminary burden of proving that the defendant lacked a constitutionally protected privacy interest. Commonwealth v. Enimpah, 106 A.3d. 695, 700 (Pa. 2014). Only then does the burden shift to the defendant to rebut that proof. Id. However, "[t]he Commonwealth may concede the privacy interest, choosing to contest only the legality of the police conduct; if it does so, the defendant's 'reasonable expectation of privacy' need not be established[.]" Id. at 700-01. This Court has recently held that, where the Commonwealth initially concedes the privacy interest and raises it for the first time in a motion for reconsideration of a suppression order, the claim is waived. See Commonwealth v. Skipper, __A.3d__, 2022 PA Super 108, at **7-8 (Pa. Super. filed June 9, 2022).
Instantly, the Commonwealth argues that the trial court erred by ruling that the Commonwealth waived its challenge to Reed's expectation of privacy regarding the vehicle at issue. Specifically, the Commonwealth points to the second suppression hearing where, for the first time, it raised the issue of Reed's failure to establish a reasonable expectation of privacy. The Commonwealth argues that under similar case law, appellate courts have determined that such objections are not waived. Brief of Appellant, at 28 (citing Commonwealth v. Maldonado 14 A.3d 907, 910-12 (Pa. Super. 2011)).
We conclude that the Commonwealth conceded this claim before the trial court and, thus, waived it for our review. Skipper, supra; Pa.R.A.P. 302 ("[i]ssues not raised in the trial court are waived."). In Skipper, the Commonwealth did not challenge the defendant's expectation of privacy at the suppression hearing; rather, it was challenged in a motion to reconsider after the trial court had already granted suppression. Skipper, at **4. This Court determined that the Commonwealth waived its challenge to defendant's expectation of privacy on appeal because it did not meet its burden of proving that the defendant lacked a constitutionally protected privacy interest. Id.
Here, our review of the record reveals that the Commonwealth did not challenge Reed's expectation of privacy at the first suppression hearing. See N.T. Suppression Hearing, 10/13/20, at 49 (wherein Commonwealth states its argument focused on probable cause). Following the hearing, the trial court directed both parties to submit briefs. Id. at 65-66. In its brief, the Commonwealth, again, did not challenge Reed's expectation of privacy.Subsequently, the trial court denied Reed's motion to suppress. Thus, by focusing its arguments on the legality of Officer Hunger's stop and subsequent vehicle search, rather than Reed's lack of an expectation of privacy, the Commonwealth conceded the issue by not raising it at the first suppression hearing. Id. at 49; see also Enimpah, supra. Therefore, the trial court properly found the issue to be waived at the second suppression hearing when the Commonwealth argued, for the first time, that Reed failed to establish a reasonable expectation of privacy in the area searched. See N.T. Suppression Hearing, 6/2/21, at 47-49, Skipper, supra. Indeed, as the trial court stated, the sole purpose of the second suppression hearing was to allow Reed to reargue his claim in light of the Supreme Court's recent decision in Alexander. N.T. Suppression Hearing, 6/2/21, at 3-4, 50-51. Accordingly, the Commonwealth conceded its challenge to Reed's expectation of privacy before the trial court and, therefore, has waived this issue on appeal. See Enimpah, supra; Skipper, supra.
The Commonwealth's November 20, 2020 Letter Brief in Opposition to Defendant's Motion to Suppress does not appear in the certified record before this Court. However, the Commonwealth conceded, in its July 7, 2021 Answer to the Defendant's Motion for Consideration, that the November 20, 2020 letter does not contain any challenge regarding Reed's expectation of privacy.
Additionally, we note that, at the second suppression hearing, the Commonwealth conceded that it could not satisfy the requirements in Alexander because there were no exigent circumstances. Id. at 22.
Order affirmed.
Stablie, J., Concurs in the result.
Bowes, J., files a Dissenting Memorandum.
Judgment Entered.
DISSENTING MEMORANDUM
BOWES, J.
I respectfully dissent. To my mind, the Majority's resolution of this case inequitably holds that the Commonwealth is not permitted to raise new suppression issues in the context of a motion for reconsideration, but criminal defendants are so entitled. My review of this matter indicates that Appellee did not advance any specific challenges to the validity of Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), the lack of a warrant, or the absence of an exigency in this case prior to our Supreme Court's announcement of Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020).1 Rather, Appellee first raised these issues in a motion for reconsideration. Accordingly, I would hold that Appellee was not entitled to benefit from Alexander retroactively. Thus, I would reverse and remand.
This case stems from the trial court's suppression of evidence. I will briefly review the relevant facts. On July 11, 2019, Officer Albert Hunger of the Darby Borough Police Department was patrolling a dead-end street in an area known for drug activity and abandoned automobiles. He noticed Appellee asleep in a running car parked at the end of this lane. Officer Hunger checked the vehicle's tags over his radio and learned it was registered to an individual named Nadine Bogel. Officer Hunger then awakened Appellee by knocking on the window of the car. In response, Appellee opened the door. Officer Hunger detected the odor of marijuana emanating from the vehicle and observed signs that Appellee was intoxicated. When questioned, Appellee admitted the car in which he had been sleeping did not belong to him. Thereafter, Officer Hunger searched the vehicle and recovered a quantity of marijuana and a stolen, loaded handgun. The vehicle was towed. Appellee was arrested and charged with several possessory offenses and public drunkenness.
Appellee filed a motion to suppress the evidence seized from the car, wherein he asserted Officer Hunger's search was “made without probable cause.” Omnibus Motion to Suppress, 2/28/20, at ¶¶ 8-9 (citing U.S. CONST., Fourth Amend., Fifth Amend., Fourteenth Amendment; PA. CONST., Art. I, § 8). Beyond citation, however, Appellee offered no substantive discussion of these various constitutional precepts. At the suppression hearing, the parties focused their arguments on the issue of whether Officer Hunger had probable cause to effectuate a search of the vehicle. Notably, Appellee did not contend that the search was unconstitutional because of the lack of a warrant or the absence of an exigency. Furthermore, Appellee did not raise any arguable challenge to the federal automobile exception adopted in Gary. Ultimately, the trial court denied Appellee's motion. See Order, 11/30/20, at 1.
Three weeks later, on December 22, 2020, our Supreme Court overruled the adoption of the federal automobile exception in Gary. See Alexander, supra at 207-09. In response, Appellee filed a motion for reconsideration of his suppression motion, raising claims concerning the lack of a warrant and exigency in his case for the first time. See Motion to Reconsider, 1/5/21, at ¶ 3. The trial court held a second suppression hearing, wherein the Commonwealth responded to Appellee's new arguments by asserting that Appellee did not have a reasonable expectation of privacy in the vehicle of another individual. See N.T. Suppression Hearing II, 6/2/21, at 38. Appellee argued that the Commonwealth had waived this claim by failing to raise it earlier in the proceedings. Id. at 46. Ultimately, the trial court suppressed the evidence seized from Ms. Bogel's vehicle pursuant to Alexander. See Trial Court Opinion, 12/22/21, at 2-5.
The trial court did not issue an explicit finding that the Commonwealth had waived its argument. On appeal, the Commonwealth continued to argue that Appellee lacked a reasonable expectation of privacy. See Commonwealth's brief at 11-24 (citing Commonwealth v. Maldonado, 14 A.3d 907, 911-12 (Pa.Super. 2012) (holding defendant "failed to establish an expectation of privacy in the vehicle he was driving, which he did not own, that was not registered to him, and for which he has not shown authority to operate")). The Majority concludes these arguments are waived since the Commonwealth did not challenge Appellee's expectation of privacy prior to his filing of a motion for reconsideration. See Majority Memorandum at 6.
The lynchpin of the Majority's analysis is Commonwealth v. Skipper, 277 A.3d 617, 621-22 (Pa.Super. 2022). In Skipper, a police officer stopped a truck for unsafe driving on a wet roadway. Skipper was a passenger in the truck. The driver was arrested, but Skipper was released and began to walk away from the scene. Thereafter, police conducted an inventory search of the vehicle, which uncovered two hidden firearms and various sundries. Thereafter, police pursued Skipper, detained him, and discovered "two unidentified pills" on his person. Id. at 619-20. Skipper sought to suppress the seized evidence, claiming "he had an expectation of privacy in the vehicle and that the vehicle was searched without probable cause, consent, or a valid search warrant." Id. at 620. The Commonwealth did not respond to his assertion regarding an expectation of privacy, focusing instead upon the legality of the officers' conduct. The trial court granted suppression.
"In response to the trial court's ruling, the Commonwealth filed a motion to reconsider in which it raised, for the first time, a challenge to Skipper's expectation of privacy in the vehicle." Id. at 621. The motion was denied. On appeal, this Court concluded the Commonwealth had waived any argument concerning Skipper's expectation of privacy by waiting to raise those claims in a motion for reconsideration filed "after the trial court had already granted the suppression motion." Id. at 621 (emphasis in original) (citing Commonwealth v. Enimpah, 106 A.3d 695, 701-02 (Pa. 2014)). Instantly, the Majority relies upon Skipper to conclude the Commonwealth has waived its arguments as to Appellee's lack of an expectation of privacy by not raising them prior to Appellee's filing of a motion for reconsideration. See Majority Memorandum at 7-8. To my mind, this holding is untenable.
In the first place, Skipper does not constitute a fair procedural parallel to the instant case. Here, the Commonwealth did not file a motion for reconsideration asserting claims for relief after the trial court's initial suppression ruling. To the contrary, Appellee was the party responsible for filing a motion for reconsideration raising novel issues for the first time, i.e., the purported lack of a warrant and exigent circumstances to support Officer Hunger's vehicle search. See Motion to Reconsider, 1/5/21, at ¶ 3. In seemingly fair response to these brand-new assertions, the Commonwealth merely raised supplemental arguments of its own in light of the trial court's decision to grant reconsideration. Yet, the Majority's holding finds the Commonwealth's arguments to be waived while affirming a grant of relief to Appellee upon the basis of his own belated assertions. Thus, the gravamen of the Majority's analysis seems to be that the Commonwealth may not raise new claims in the context of a motion for reconsideration, but criminal defendants are fully entitled to do so.
Such a result does not smack of fair play. To the extent that the trial court reopened the suppression proceedings in this matter and permitted supplemental arguments, I believe that the Commonwealth should have been equally entitled to advance concomitant claims in response to Appellee's new legal theories. This Court has remanded to permit such supplemental suppression proceedings under appropriate circumstances in the past. See, e.g., Commonwealth v. Rodriguez, 2022 WL 1665241 (Pa.Super. May 25, 2022) (non-precedential decision at 5-7) (remanding for consideration of supplemental suppression issues filed after the Commonwealth amended the defendant's information to include possessory offenses for the first time).
To the extent that the Majority insists upon a strict interpretation of Skipper, however, that holding also implicates well-established Pennsylvania precedent precluding litigants from raising new claims for relief in a motion for reconsideration. See Commonwealth v. Spotz, 18 A.3d 244, 320 (Pa. 2011) (holding that criminal defendant waived issue raised for the first time in a motion for reconsideration filed after the trial court had issued its initial ruling); Skipper, supra at 621-22 (same with respect to the Commonwealth); see also Prince George Center, Inc. v. U.S. Gypsum Co., 704 A.2d 141, 145 (Pa.Super. 1997) (holding issues raised for the first time in a motion for reconsideration were not preserved). Specifically, the Majority seems to have overlooked the critical fact that Appellee raised the issues relevant to Alexander for the first time in a motion for reconsideration filed after the trial court's initial suppression ruling. Accordingly, I would hold that Appellee's arguments under Alexander are waived.
While the Commonwealth has not challenged the trial court's holding that Appellee is entitled to benefit from Alexander retroactively, this Court conducts a de novo review of the suppression court's legal conclusions. See Commonwealth v. McMahon, __A.3d__, 2002 WL 3148807, at *1 (Pa.Super. 2022). Furthermore, this Court has also considered the application of Alexander sua sponte. See, e.g., Commonwealth v. Grooms, 247 A.3d 31, 37 n.8-n.9 (Pa.Super. 2021) (addressing the application of Alexander despite no arguments from either party concerning it in the trial or appellate court). Accordingly, it is proper to consider the soundness of the trial court's conclusions regarding Alexander in reviewing this appeal.
Our Court has consistently limited the application of Alexander to cases where defendants raised relevant issues prior to the announcement of this new paradigm in criminal law. As our Supreme Court has explained, "where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal." Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983) (emphasis added); see also Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.Super. 2014) (en banc) ("To be entitled to retroactive application of a new constitutional rule, a defendant must have raised and preserved the issue in the court below."). In conformity with this principle, defendants are "not automatically entitled to retroactive application of the Alexander decision[.]" Commonwealth v. Heidelberg, 267 A.3d 492, 502 (Pa.Super. 2021) (en banc). Rather, defendants must have raised some claim relevant to Alexander prior to the announcement of the precedent in order to benefit from the holding. Otherwise, waiver results. See Grooms, supra at 37 n.8 ("[The defendant] here did not challenge the Gary automobile exception. Thus, . . . [the defendant] cannot rely on Alexander to challenge the warrantless search of his vehicle."). Additionally, mere references to the warrant and exigency requirements are insufficient to preserve the matter so as to permit retroactive application of Alexander. See Commonwealth v. Moore, 263 A.3d 1193, 1199-1201 (Pa.Super. 2021).
In Heidelberg and Moore, this Court declined to apply Alexander where no claim concerning the automobile exception in Gary was raised by the defendants prior to appeal. In Grooms, this Court considered the issue sua sponte on appeal in the absence of explicit arguments from the parties. My review of our case law, however, has not uncovered any precedent directly addressing the question of whether a defendant can preserve a claim under Alexander by filing a motion for reconsideration in the trial court after a suppression ruling has already been rendered. Under these circumstances, I would conclude Appellee did not preserve any arguable claim that would permit retroactive application of Alexander. As detailed above, the certified record reveals Appellee did not raise any claim concerning the lack of a warrant, the absence of an exigency, or the application Gary until after the trial court had rendered its initial suppression ruling and our Supreme Court had issued its holding in Alexander. Furthermore, Appellee made no effort to distinguish between the protections afforded by the Fourth Amendment to the United States Constitution and Article I, § 8 of the Pennsylvania Constitution. Thus, I would hold that Appellee was not entitled to benefit from Alexander retroactively. See Moore, supra at 1199-1201
Nothing precluded Appellee from challenging the validity of the search in his case on the same grounds as the litigant in Alexander. It is always within the ken of criminal defendants to argue to distinguish or overrule the existing precedent in this Commonwealth. Had Appellee advanced such an argument in this matter at a timely juncture, he might have been responsible for the change in Pennsylvania law that was announced in Alexander. However, Appellee did not advance any relevant claim until his motion for reconsideration, which was not filed until after the trial court had issued its initial suppression ruling and the Supreme Court had issued its holding in Alexander. This ex post facto effort was insufficient to preserve any suppression issue under Alexander for adjudication. In my opinion, the trial court should have deemed this issue to be waived.
Based on the foregoing discussion, I would reverse the suppression order and remand for further proceedings. I respectfully dissent.