Opinion
762 WDA 2023 J-A18023-24
09-05-2024
COMMONWEALTH OF PENNSYLVANIA v. DAMARKO JAVON THOMAS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered June 1, 2023 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0002839-2020
BEFORE: OLSON, J., MURRAY, J., and BENDER, P.J.E.
MEMORANDUM
MURRAY, J.
Damarko Javon Thomas (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of persons not to possess firearms and firearms not to be carried without a license (collectively, the firearms offenses). Appellant challenges the sufficiency of the evidence supporting the jury's finding that he possessed a firearm, and the trial court's denial of his pretrial motion to suppress evidence (suppression motion). After careful consideration, we affirm.
The charges arose from evidence police recovered during a traffic stop of a vehicle (the vehicle, or the car) in which Appellant was the front-seat passenger, in New Kensington, Pennsylvania, on August 18, 2020. Specifically, police (a) stopped the vehicle after observing it commit a violation of the Motor Vehicle Code (MVC); (b) saw Appellant make a furtive movement and exit the front passenger seat without being instructed to do so; and (c) found a stolen firearm on the pavement, hidden underneath the passenger side of the vehicle.
In September 2020, the Commonwealth charged Appellant with the firearms offenses, as well as receiving stolen property (RSP) and possession of a small amount of marijuana. Appellant filed his suppression motion on June 16, 2021. Appellant claimed, in relevant part, the initial traffic stop of the vehicle was illegal, as it was "pretextual" and not supported by probable cause or reasonable suspicion of criminal activity. See Suppression Motion, 6/16/21, ¶¶ 6-10. Appellant further asserted police unlawfully "exceeded the scope of the investigation for the traffic violation, and did so without probable cause or reasonable suspicion." Id. ¶ 11.
35 P.S. § 780-113(a)(31). The Commonwealth subsequently nolle prossed the possession charge. See N.T., 11/8/21, at 3.
The trial court held a hearing on the suppression motion on November 8, 2021 (suppression hearing). The only testimony was from two New Kensington Police officers who participated in the traffic stop of the vehicle: Officer Jerry Hobeck (Officer Hobeck) and Detective Sergeant Samuel Long (Detective Long). See N.T., 11/8/21, at 7-21, 22-53. The parties stipulated that, at the time of Appellant's arrest, he had a prior conviction for a felony offense that precluded him from lawfully possessing a firearm. Id. at 2-3. The trial court denied Appellant's suppression motion at the conclusion of the hearing. Id. at 60-61, 68; Order, 11/8/21.
We discuss below the suppression hearing testimony of Officer Hobeck and Detective Long.
The matter proceeded to a jury trial on February 6, 2023. The trial court detailed the relevant trial evidence in its Pa.R.A.P. 1925(a) opinion:
[Detective Long] stated that on the night of August 18, 2020, he was working the 3:00 p.m. to 11:00 p.m. shift, undercover, dressed in plain clothes and driving a minivan. ([N.T., 2/7/]23, at 31:2-5). While on patrol on Constitution Boulevard, he observed a black Mercedes with heavily tinted windows [(the vehicle)]. (Id. at 31:17-18). [Detective Long] followed [the vehicle], and saw it "roll" through a stop sign. (Id. at 32:8). He asked dispatch to [perform a check of the vehicle's license] plate and learned that it was registered to an Audi. (Id. at 32:10). [Detective Long] radioed Officer Hobeck and requested that he initiate a traffic stop. (Id. at 32:6-7). The vehicle proceeded across the Ninth Street bridge. (Id. at 47:4-5).
[Officer] Hobeck testified … that he was contacted by [Detective] Long at 9:00 p.m. on August 18, 2020[,] and asked to initiate a traffic stop on the driver of a black Mercedes, who had failed to stop at a stop sign. (Id. at 55:14-16). [Officer Hobeck] located the [vehicle], as the driver started to cross the Ninth Street Bridge. (Id. at 57:5). [Officer] Hobeck activated his lights and siren as the vehicle exited the bridge. (Id. at 57:16). The driver of the vehicle stopped on the shoulder, close to the guardrail, but remained partially within the lane of traffic on Freeport Road. (Id. at 58:9-10).
[Officer] Hobeck exited his vehicle and approached the driver's side window, just as Officer Perry Sciulli [(Officer Sciulli)] and Sergeant [Kevin] Hess [(Sergeant Hess)] arrived on the scene. (Id. at 58:18-24). [Officer] Sciulli approached the passenger side of the vehicle as [Officer] Hobeck made contact with the driver, Ebony Thomas [(Ms. Thomas)], who had lowered the driver's side window. (Id. at 59:10-16). [Officer] Hobeck immediately detected the odor of burnt marijuana emanating from inside the vehicle. (Id. at 58:19-21). Since the windows were darkly tinted, he asked that all of the windows be lowered. (Id. at 60:5-6). [Officer Hobeck] observed two [] other occupants in the vehicle, [Kevin] Brockman[, Jr. (Brockman),] seated in the back seat behind the driver, and [Appellant], seated in the passenger's front seat. (Id. at 62:16-17, 64:22-23). All three [] individuals were highly agitated. (Id. at 60:24). Ms. Thomas responded to [Officer] Hobeck's request to exit the vehicle but repeatedly questioned the reason for the stop and advised that she did not feel safe. (Id. at 61:5-8; 104:23-24). As soon as Ms. Thomas got out of the vehicle, [Officer] Hobeck noticed a firearm in a holster on her right hip. (Id. at 63:10-11). He confirmed with dispatch that she had a license to carry a concealed weapon. (Id. at 63:12-15). [Officer Hobeck asked Ms. Thomas] to step to the rear of the vehicle. (Id. at 63:20-21). [Ms. Thomas] continued to display agitation and several times unsafely stepped in the lane of traffic. (Id. at 64:4-6). [Ms.] Thomas was detained by Officer Sciulli for her safety. (Id. at 64:12-13).Trial Court Opinion, 10/12/23, at 5-7 (footnotes added).
The trial court continued discussing Officer Hobeck's testimony:
When Ms. Thomas exited the vehicle, both Brockman and [Appellant] became even more agitated, yelling that they were not getting out of the vehicle. ([N.T., 2/7/23,] at 62:5-8). [Officer] Hobeck asked Brockman for his identification and to exit the vehicle. (Id. at 64:20-22). Brockman, however, did not immediately provide his identification. (Id. at 65:9). Due to Brockman's behavior, [Officer] Hobeck asked Sergeant Hess to
help. (Id. at 65:15-20). [Officer] Hobeck patted Brockman down for weapons. (Id. at 66:2-4). During the pat-down, [while Appellant was seated in the vehicle's front passenger seat, Officer] Hobeck noticed [Appellant] lower the right side of his body, "dip down," and then exit the vehicle. (Id. at [68:10-12,] 69:3-4). All of the other officers were tending to Brockman and [Ms.] Thomas at the back of the vehicle[, when Appellant exited the vehicle, without police instructing him to do so]. (Id. at [68:7-8,] 69:5-6). [Officer] Hobeck walked to the passenger side of the vehicle and observed a black handgun [(the firearm or the handgun)] lying underneath the vehicle [on the passenger side]. (Id. at 69:15-17).
[Officer] Hobeck immediately placed [Appellant] in handcuffs. (Id. at 70:10-11). [Officer Hobeck] retrieved the [firearm], wearing fabric mechanic's gloves to ensure the preservation of any DNA or fingerprints. (Id. at 72:3-5). He cleared the firearm of live ammunition in the chamber. (Id. at 73:1-7). [Officer Hobeck] also removed the magazine, which contained live ammunition. (Id. at 72:13-17). [Officer] Hobeck ran the serial number on the handgun and learned the name of the registered owner. (Id. at 75:1-3, 23-24). [Ms.] Thomas and Brockman were released[,] while [Appellant] was taken to the [police] station for processing. (Id. at 76:3-4). The Commonwealth introduced into evidence, without objection, the magazine, bullets and handgun. (Cmwlth's Exs. 1 & 2). After retrieving [Appellant's] DNA pursuant to a search warrant, [Officer] Hobeck sent the DNA and the firearm to the State Police Crime Laboratory for testing. (Id. at 82:2-4).
On cross-examination, Officer Hobeck admitted that he learned, after the stop, that the registration of the vehicle had been in transition because the [vehicle] had recently been purchased, and the license from an Audi was being transferred to the [vehicle]. (Id. at 141:11-25).
Tyler Mion testified … that his Glock 17 handgun had been stolen from his car on or about January 10th or 11th, 2020. (Id. at 160:1-5). He was shown Commonwealth's Exhibit 2 (the
handgun) and identified it as the stolen gun. (Id. at 161:14-25).
Officer Hobeck testified that at the time of the traffic stop, New Kensington Police Department vehicles were not equipped with video recording devices. N.T., 2/7/23, at 82. Nor were the police officers equipped with body cameras. Id.
DNA testing and fingerprint analysis of the firearm were inconclusive. See N.T., 2/8/23, at 68, 128-29.
Trial Court Opinion, 10/12/23, at 7-8 (emphasis and footnote added).
Officer Sciulli testified at trial that he responded to the scene and "was the backup officer on the passenger side of the vehicle." N.T., 2/8/23, at 91. The prosecutor questioned Officer Sciulli about his observations during the traffic stop:
Q. [The prosecutor:] So at the time that you got [to the scene,] was Officer Hobeck already at the vehicle, or did you approach at the same time as him?
A. [Officer Sciulli: Officer Hobeck] was slowly walking towards the driver's side window, and then I approached from the passenger side of the vehicle.
Q. Did you see anything out of the ordinary as you were approaching the passenger side of the vehicle?
A. As I treat every traffic stop on the passenger side, I look on the ground. I look at the windows, look at the people in the vehicle, and there was nothing [out of the ordinary].Id. at 91-92 (emphasis added); see also id. at 92 (Officer Sciulli stating that although it was dark outside at the time, streetlights illuminated the area).
Officer Sciulli spoke with Appellant through the partially-opened passenger window, and had to ask four times before Appellant identified himself. Id. at 95-96. Officer Sciulli testified that during this interaction, he was positioned at the passenger side of the vehicle; his "left foot was under the vehicle"; and he was "moving around a little bit …." Id. at 95. Officer Sciulli stated all three occupants of the vehicle were "[u]nruly, yelling, [and] screaming" at police, despite their "explaining that it was just a traffic stop." Id. at 97. Officer Sciulli further confirmed that "[d]uring the entire time that [he was] on the passenger side of the vehicle," he did not "see anything out of ordinary on the ground." Id. (emphasis added).
On cross-examination, Officer Sciulli admitted he never saw Appellant actually possess the firearm, and that DNA and fingerprint analysis of the firearm were inconclusive. Id. at 104, 110. On re-direct, Officer Sciulli testified as follows, over Appellant's objection:
I was [positioned at] the rear of the vehicle with [Ms. Thomas], and I saw … the [passenger's side] door slightly opened, and I saw [Appellant] lean. … He leaned like this [(Officer Sciulli indicating)], and then he pulled … back his body inside the vehicle, and then he slightly shut the door[. Appellant] then exited the vehicle without [being] instructed to and walked towards the … back bumper of the vehicle to approach me.Id. at 118 (emphasis added).
Following the close of evidence, Appellant moved for judgment of acquittal. Id. at 136. Appellant's counsel argued (a) any evidence that Appellant possessed the firearm was "speculative"; and (b) there were numerous contradictions in the Commonwealth witnesses' testimony. Id. at 136-38. The trial court denied Appellant's motion, stating:
The defense did not present any witnesses at trial.
On the major points I don't know that [the evidence] is [speculative]. … Both Officers [Hobeck and Sciulli] testified that they saw the [vehicle's passenger] door open. They saw [Appellant] make a movement, and then they found a gun on the ground that they hadn't seen earlier. I think a
jury could reasonably infer from that [evidence] that [Appellant] possessed the [firearm]. … I don't disagree with [the defense] at all with regard to the number of inconsistencies that exist, and you've done a good job pointing those out, but I don't think it's for me to decide what's credible and what's not credible[,] so I'm going to deny [Appellant's] motion.Id. at 138 (emphasis added; some capitalization modified).
At the close of trial, the jury found Appellant not guilty of RSP, and guilty of the firearms offenses. On June 1, 2023, the trial court imposed an aggregate sentence of 5 to 12 years in prison, followed by one year of reentry supervision.
The trial court initially imposed sentence on May 30, 2023 (original sentencing order). However, the original sentencing order imposed an unlawful sentence on one count. Accordingly, two days later, the trial court issued an amended sentencing order, remedying the illegal sentence. Appellant does not challenge his sentence on appeal.
Appellant timely filed a notice of appeal on June 29, 2023. Appellant and the trial court have complied with Pa.R.A.P. 1925. Appellant presents two issues for review:
Appellant purported to appeal from the original sentencing order. However, "in cases where the trial court amends the judgment of sentence," the appeal properly "lies from the amended judgment of sentence." Commonwealth v. Wenzel, 248 A.3d 540, 545 (Pa. Super. 2021) (emphasis in original). Nevertheless, this minor defect does not impact the validity of Appellant's notice of appeal, particularly where his notice of appeal is timely. See Pa.R.A.P. 902(b)(1) (providing that an appellant's failure to take any step other than the timely filing of a notice of appeal "does not affect the validity of the appeal, but the appeal is subject to such action as the appellate court deems appropriate."); Pa.R.A.P. 903(a).
This Court previously dismissed Appellant's appeal, for his failure to file an appellate brief, on January 3, 2024. However, Appellant subsequently filed a petition to reinstate his appeal, nunc pro tunc. This Court granted the petition on January 30, 2024.
I. Did the trial court err in finding the evidence sufficient to sustain a verdict of guilty on the count of possession of firearm prohibited and the count of firearms not to be carried without a license?
II. Did the suppression court err in denying the Appellant's [suppression] motion seeking to suppress the evidence obtained from an extended investigative traffic stop[,] which was not based upon probable cause?Appellant's Brief at 8 (issues reordered; some capitalization modified).
Appellant first claims his convictions of the firearms offenses are not supported by sufficient evidence, as the Commonwealth failed to prove he possessed the firearm police found under the vehicle. See id. at 23-27. Appellant argues his "mere proximity to the firearm would be insufficient to prove possession." Id. at 24 (brackets omitted). Appellant maintains the "Commonwealth's entire case against [him] is based on circumstantial evidence[,]" which, he claims, is insufficient to prove he possessed the firearm. Id. Appellant contends the "firearm was found on the side of a busy road, in a relatively high crime area that has a lot of illegal guns." Id. at 25 (citation omitted); see also id. at 26 (pointing out that police did not take any "photographs of the location of both the vehicle and the firearm"). Appellant further emphasizes that his "fingerprints were not found on the firearm and DNA testing was inconclusive." Id. at 26-27.
The Commonwealth counters Appellant's convictions for the firearms offenses are supported by sufficient evidence, and it proved beyond a reasonable doubt that Appellant constructively possessed the firearm. See Commonwealth's Brief at 16-20. According to the Commonwealth,
Officer Hobeck did witness Appellant behaving in a way that explained the sudden appearance of the firearm under the vehicle. He watched as Appellant stepped out [of the vehicle] without being asked, and exited … in an unusual way by dipping his shoulder down as he stepped out [of the front passenger's seat]. Although none of the Commonwealth witnesses personally saw Appellant with a firearm in his hand, the only reasonable inference that could be drawn from their testimony, which was believed by the jury, was that Appellant was in physical possession of the firearm by placing it on the ground as he stepped out of the vehicle.Id. at 19-20 (paragraph break omitted); see also id. at 18 ("When Officer Hobeck walked around to the passenger side of the vehicle, there was a firearm on the ground, in the exact place where Officer Hobeck saw Appellant reach toward the ground" while exiting the passenger's seat). The Commonwealth claims that a
reasonable inference can be drawn that Appellant seized the opportunity, when the police were seemingly preoccupied with the other occupants of the vehicle, to exit the vehicle while surreptitiously placing the firearm under the vehicle in the hopes that the police wouldn't find it before the conclusion of the traffic stop.Id. at 18.
"Because a determination of evidentiary sufficiency presents a question of law, our standard of review is de novo and our scope of review is plenary." Commonwealth v. Rosario, 307 A.3d 759, 764-65 (Pa. Super. 2023) (citation omitted).
When reviewing a sufficiency of the evidence claim, this Court must view the evidence and all reasonable inferences to be drawn from the evidence in the light most favorable to the Commonwealth as verdict winner, and we must determine if the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. This Court may not substitute its judgment for that of the factfinder. If the record contains support for the verdict, it may not be disturbed. Moreover, a jury may believe all, some or none of a party's testimony.Commonwealth v. Burns, 765 A.2d 1144, 1148 (Pa. Super. 2020) (citations and paragraph break omitted). As this Court has observed:
This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Although a conviction must be based on more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty.Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa. Super. 2013) (emphasis added; citation and quotation marks omitted); see also Commonwealth v. Lake, 281 A.3d 341, 346 (Pa. Super. 2022) ("[T]he Commonwealth may sustain its burden solely by means of circumstantial evidence." (citation omitted)).
The statute governing persons not to possess firearms, 18 Pa.C.S.A. § 6105, provides, in relevant part:
A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, … shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.Id. § 6105(a)(1). Crimes Code Section 6106 governs firearms not to be carried without a license, and provides in relevant part:
[A]ny person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.Id. § 6106(a)(1).
The only element of the firearms offenses Appellant challenges is possession. Where, as here, an accused did not have actual possession of the firearm, the Commonwealth was required to establish that the accused constructively possessed it. Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. 2018) ("Illegal possession of a firearm may be established by constructive possession."). This Court has explained,
[c]onstructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not. We have defined constructive possession as conscious dominion. … We [have] defined conscious dominion as the power to control the contraband and the intent to exercise that control. … To aid application, we have held that constructive possession may be established by the totality of the circumstances.Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (citation and quotation marks omitted).
Notably, the Commonwealth can prove constructive possession by circumstantial evidence. Commonwealth v. Johnson, 26 A.3d 1078, 1094 (Pa. 2011); McClellan, 178 A.3d at 878. A defendant's mere presence at the scene, however, does not establish constructive possession. Commonwealth v. Vargas, 108 A.3d 858, 869 (Pa. Super. 2014) (en banc); see also Commonwealth v. Parrish, 191 A.3d 31, 37 (Pa. Super. 2018) (stating that the location and proximity of an actor to the contraband alone is not conclusive of guilt). "If the only inference that the fact finder can make from the facts is a suspicion of possession, the Commonwealth has failed to prove constructive possession." Parrish, 191 A.3d at 37.
Instantly, Officer Hobeck testified at trial regarding his observations of Appellant's actions in exiting the vehicle:
A. [Officer Hobeck: Appellant] had exited the vehicle without being instructed to do so.
Q. [Prosecutor:] And in what manner did he exit the vehicle?
A. [Appellant] had dipped to his right side, lowering his right side of his body, and then exited the vehicle all in … one swift motion.
Q. Were there any [police] officers anywhere near [Appellant] at that time?
A. No. Everybody was at the rear of the vehicle.
Q. And what did you do when you observed [Appellant] exit the vehicle?
A. … I then walked around the front of the vehicle to the passenger side[,] where [Appellant] had exited.
Q. What observations did you make when you approached the passenger side?
A. Upon getting to the passenger side[,] I witnessed a black firearm located … [p]artially underneath the vehicle.N.T., 2/7/23, at 68-69 (emphasis added).
Further, as stated above, Officer Sciulli testified (a) he observed Appellant open the front passenger's side door, and exit in an unusual fashion by "leaning" down as he stepped out, without being instructed to do so, N.T., 2/8/23, at 118; (b) when Officer Sciulli initially approached the passenger side of the vehicle (while Appellant was seated inside), he intentionally scanned the ground nearby the vehicle and did not see anything out of the ordinary, id. at 92; and (c) while he was speaking with Appellant through the passenger window, Officer Sciulli's "left foot was under the vehicle[;]" he was "moving around a little bit[;]" and he did not encounter any contraband. Id. at 95.
The trial court determined in its Rule 1925(a) opinion that the Commonwealth proved Appellant's constructive possession of the firearm beyond a reasonable doubt:
There were six [] officers at the scene of the traffic stop. Four [] of the six [] officers testified that the occupants of the vehicle were agitated, disruptive and noncooperative. The[ occupants'] actions, in addition to the odor of burnt marijuana[, the open alcoholic beverage containers visible in the back seat of the vehicle, and its] darkly tinted windows, led the officers to believe that criminal activity was afoot. [Appellant's] movements in the vehicle, described by [Officer] Sciulli as "furtive," inferred that something was amiss. From [Officer] Sciulli's testimony that he did not see a firearm on the roadway under the passenger side of the vehicle, prior to [Appellant] exiting, and [Officer] Hobeck's testimony that he saw a firearm lying on the roadway underneath the passenger side of the vehicle, after observing [Appellant] open the door, "dip down" and "roll out," it can be inferred that [Appellant] possessed the firearm prior to disposing of it underneath the vehicle. After accepting all of the evidence and all reasonable inferences therefrom, the [trial c]ourt finds that there was sufficient evidence presented by the Commonwealth to satisfy [its] burden of proving the elements of [the firearms offenses.]Trial Court Opinion, 10/12/23, at 31-32 (emphasis added). The trial court further reasoned,
[Appellant] argues that his "mere presence" in the vehicle, above which the firearm was found, is not sufficient to establish possession. However, the facts, viewed in a light most favorable to the Commonwealth, support the inference that [Appellant] was more than just an innocent bystander or in the wrong place at the wrong time.Id. at 23.
Our review confirms the trial court's foregoing reasoning is supported by the record, and we agree with its determination. See id. at 23, 31-32. Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, we conclude there was sufficient circumstantial evidence to prove that Appellant constructively possessed the firearm. Appellant's sufficiency challenge lacks merit. See, e.g., Commonwealth v. Stembridge, 579 A.2d 901, 905 (Pa. Super. 1990) (holding that the defendant, who had been sitting in the passenger seat of a vehicle prior to the traffic stop, was in constructive possession of contraband that the police found on the pavement under the passenger side of the vehicle. Further stating that the defendant's "access to and control over the area in which the contraband was found was greater than that of the driver and the other passenger …."); Commonwealth v. Cruz Ortega, 539 A.2d 849, 851 n.1 (Pa. Super. 1988) (holding evidence was sufficient to establish the defendant's constructive possession of contraband found after a traffic stop, where police (a) observed the defendant "leaning over in his seat"; and (b) subsequently found contraband under his seat). Accordingly, Appellant's first issue does not merit relief.
In his second issue, Appellant claims the trial court improperly denied his suppression motion, where the "extended investigative traffic stop [] was not based upon probable cause[.]" Appellant's Brief at 21 (bold and underline omitted). According to Appellant, "[t]he entire case against [him] stems from a traffic stop that was impermissibly extended beyond the scope of the stop." Id. at 19. Appellant cites Rodriguez v. United States, 575 U.S. 348 (2015), where the United States Supreme Court held that a police officer
Appellant's brief argument on this issue lacks clarity. However, he does not appear to challenge the lawfulness of the initial traffic stop of the vehicle. See, e.g., Appellant's Brief at 21 (asserting the vehicle's MVC "violations … should have resulted in mere citations and questioning regarding ownership" of the vehicle).
may conduct certain unrelated checks during an otherwise lawful traffic stop. But … he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.Id. at 355; see also Appellant's Brief at 22.
Appellant further maintains Officer Hobeck "testified that the odor [of marijuana] was the sole reason for asking the driver to exit the vehicle, thereby impermissibly extending the stop and the seizure of the driver and passengers." Id. at 22. Appellant observes the "Supreme Court of Pennsylvania has declared that the smell of marijuana alone cannot create probable cause." Id. (citing Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021)).
In Barr, the trial court found police had conducted an unlawful, warrantless search of a vehicle in which the defendant was a passenger, following a traffic stop, "based solely on the odor of marijuana emanating from th[e] vehicle." Barr, 266 A.3d at 43. The trial court granted the defendant's motion to suppress contraband police discovered during the search of the vehicle. See id. at 31-32. The court reasoned that, in light of Pennsylvania's legalization of marijuana for medical purposes, "the odor of marijuana does not per se establish probable cause to allow police officers to conduct a warrantless search of a vehicle." Id. at 32; see also generally 35 P.S. § 10231.101 et seq. (Pennsylvania's Medical Marijuana Act). The Pennsylvania Supreme Court concluded the trial court properly granted the motion to suppress. See Barr, 266 A.3d at 44-45. The Court determined, "the record support[ed] the trial court's conclusion that the troopers searched the [vehicle] based solely on the odor of marijuana coming from it." Id. at 44; see also id. (observing that "the record ma[de] clear that the [police] did not witness the occupants of the vehicle do anything suspicious…."). The Barr Court held, "the odor of marijuana may be a factor, but not a stand-alone one, in evaluating the totality of the circumstances for purposes of determining whether police had probable cause to conduct a warrantless search." Id. at 41 (emphasis added); see also Commonwealth v. Sloan, 303 A.3d 155, 165 (Pa. Super. 2023) (holding that a police officer, during a lawful traffic stop for a MVC violation, "could consider the odor of raw marijuana, as well as other factors, in making [a reasonable suspicion] determination.").
The Commonwealth counters the trial court properly denied the suppression motion, as "Officer Hobeck and the other officers … did not take any action during the course of the … traffic stop in violation of Appellant's rights." Commonwealth Brief at 16. According to the Commonwealth, "Officer Hobeck articulated more than sufficient facts to create reasonable suspicion of criminal activity …." Id. at 13. The Commonwealth disputes Appellant's claim that Officer Hobeck "testified that the odor [of marijuana] was the sole reason for asking the driver to exit the vehicle." Id. at 12 (quoting Appellant's Brief at 22). The Commonwealth asserts this
is a complete mischaracterization of Officer Hobeck's testimony at the … [suppression] hearing[. Officer Hobeck] stated that he asked the driver to step out of the vehicle due to the odor of marijuana, the visible open [alcoholic beverage] containers in the rear of the car, and to "ease the situation" because the driver and all of the occupants were agitated and uncooperative. Second, the fact that Officer Hobeck asked the driver to step out of the vehicle was not an extension of the traffic stop from its initial purpose, which was, in part, to investigate the fact that the vehicle was a Mercedes [bearing] a license plate registered to an Audi.Commonwealth Brief at 15 (paragraph break omitted).
Our standard of review of an order denying suppression is well-settled:
When we review the ruling of a suppression court[,] we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.Commonwealth v. Hicks, 208 A.3d 916, 925 (Pa. 2019) (citation omitted); see also Commonwealth v. Korn, 139 A.3d 249, 253 (Pa. Super. 2016) (appellate Courts are bound by the facts found by the suppression court so long as they are supported by the record, but we review its legal conclusions de novo). "Our scope of review from a suppression ruling is limited to the evidentiary record that was created at the suppression hearing." Commonwealth v. Tillery, 249 A.3d 278, 281 (Pa. Super. 2021) (citations omitted).
"[I]t is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony." Commonwealth v. Ochoa, 304 A.3d 390, 396 (Pa. Super. 2023) (citation and brackets omitted). "The suppression court is free to believe all, some or none of the evidence presented at the suppression hearing." Commonwealth v. Byrd, 185 A.3d 1015, 1019 (Pa. Super. 2018) (citation omitted).
"The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution guarantee the right of the people to be secure in their persons, houses, papers, and possessions from unreasonable searches and seizures." Commonwealth v. Rice, 304 A.3d 1255, 1260 (Pa. Super. 2023) (citation omitted). "If a defendant's detention violates the Fourth Amendment, then any evidence seized during that stop must be excluded as fruit of an unlawful detention." Commonwealth v. Mattis, 252 A.3d 650, 654 (Pa. Super. 2021).
For constitutional purposes, a traffic stop is a seizure (specifically, an investigative detention). Commonwealth v. Spence, 290 A.3d 301, 314 (Pa. Super. 2023). "[A]ny violation of the M[VC] … legitimizes a stop, even if the stop is merely a pretext for an investigation of some other crime." Commonwealth v. Harris, 176 A.3d 1009, 1020 (Pa. Super. 2017) (citing Whren v. U.S., 517 U.S. 806, 812-13 (1996)); see also 75 Pa.C.S.A. § 6308(b) (authorizing police to conduct a vehicle stop where they have reasonable suspicion to suspect a violation of the MVC).
A police officer may detain an individual in order to conduct an investigation if that officer reasonably suspects that the individual is engaging in criminal conduct. This standard, less stringent than probable cause, is commonly known as reasonable suspicion.Commonwealth v. Galloway, 265 A.3d 810, 814-15 (Pa. Super. 2021) (quoting Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004)).
In order to determine whether the police had reasonable suspicion, the totality of the circumstances-the whole picture- must be considered. Based upon that whole picture[,] the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa. Super. 2011) (internal citations and quotation marks omitted).
Demonstrating reasonable suspicion requires that the detaining officer "articulate something more than an inchoate and unparticularized suspicion or hunch." Commonwealth v. Jefferson, 256 A.3d 1242, 1248 (Pa. Super. 2021) (citation omitted). In determining whether the Commonwealth has met this burden, courts must make an objective inquiry into whether, based on "the facts available to [the] police at the moment of intrusion," a reasonable officer would believe the action was appropriate. Id.
This Court has instructed that,
[d]uring a traffic stop, the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. [I]f there is a legitimate stop for a traffic violation[,]
… additional suspicion may arise before the initial stop's purpose has been fulfilled; then, detention may be permissible to investigate the new suspicions.Sloan, 303 A.3d at 163 (citation omitted).
To ensure officers' safety during a traffic stop, police may order both drivers and passengers to exit the vehicle, even without reasonable suspicion that criminal activity is afoot. Commonwealth v. Malloy, 257 A.3d 142, 150 (Pa. Super. 2021); see also Commonwealth v. Freeman, 757 A.2d 903, 907 n.4 (Pa. 2000).
Once the primary traffic stop has concluded, however, the officer's authority to order either the driver or occupant from the car is extinguished. Commonwealth v. Sierra, 555 Pa. 170, 723 A.2d 644 (1999) (plurality). Thus, if the officer directs or requests the occupants to exit the vehicle after resolution of the reason for the initial stop, the officer's show of authority may constitute an investigatory detention subject to a renewed showing of reasonable suspicion.Mattis, 252 A.3d at 655 (some citations omitted).
In Rodriguez, supra, the United States Supreme Court addressed the permissible scope of a police officer's investigation during a traffic stop:
A seizure for a traffic violation justifies a police investigation of that violation. A relatively brief encounter, a routine traffic stop is more analogous to a so-called Terry [v. Ohio, 392 U.S. 1 (1968),] stop than to a formal arrest. Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's mission - to address the traffic violation that warranted the stop and attend to related safety concerns. Because addressing the infraction is the purpose of the stop, it may last no longer than is necessary to effectuate th[at] purpose. Authority for the seizure thus ends when tasks tied to the traffic infraction are - or reasonably should have been - completed.Id. at 354 (emphasis added; internal citations, quotation marks, ellipses, and brackets omitted).
The Rodriguez Court elaborated that a traffic stop
can become unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission of issuing a warning ticket. … An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But … he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.Id. at 354-55 (internal citations, quotation marks, and brackets omitted); see also Malloy, 257 A.3d at 149-50 (discussing Rodriguez).
This Court has also observed that
the Pennsylvania Supreme Court recognized in In Interest of A.A., … 195 A.3d 896 (Pa. 2018), that a police officer may use information gathered during an initial traffic stop to justify a second investigatory detention, regardless of whether the officer has indicated at some point during the initial stop that the subject is free to leave. Id. at 898. In reaching this conclusion, the A.A. Court reaffirmed this [C]ourt's decision in Commonwealth v. Kemp, … 961 A.2d 1247 (Pa. Super. 2008) (en banc), noting that the "totality of the circumstances approach allows the court to consider all facts at the officer's disposal and does not require the court to disregard those adduced during a valid … traffic stop." A.A., 195 A.3d at 907 (citation omitted).Galloway, 265 A.3d at 815 (emphasis added).
Instantly, as discussed above, Detective Long testified at the suppression hearing that he (a) observed the vehicle commit a MVC violation; and (b) contacted Officer Hobeck to initiate a traffic stop. See N.T., 11/8/21, at 10-12. Detective Long entered the vehicle's license plate number into the police database, which revealed it was associated with an Audi, as opposed to a Mercedes. Id. at 11. Detective Long also observed that the vehicle had dark window tint that prevented him from seeing inside. Id. at 12.
In its Rule 1925(a) opinion, the trial court detailed the remaining evidence adduced at the suppression hearing:
Shortly after [Officer Hobeck] pulled the vehicle over, five [] other officers, including [Detective] Long, appeared at the scene. (Id. at 27:13-14, 40:15-16). As [Officer] Hobeck approached the driver's side window, he observed the driver, [Ms.] Thomas, in an agitated state. (Id. at 27:5). He also noted an odor of marijuana and saw open containers of alcohol in the [vehicle's] center console. (Id. at 30:1-7). Ms. Thomas repeatedly questioned the reason for the stop, even after numerous attempts by [Officer] Hobeck to explain. (Id. at 28:9-10). She provided her driver's license but not her registration or insurance card. (Id. at 28:15-17). The two other male occupants of the vehicle, who were located in the passenger's seat and in the backseat, behind the driver, were also agitated. (Id. at 29:12-13). In an effort to defuse the situation by separating the occupants, [Officer] Hobeck asked Ms. Thomas to step out of the vehicle. (Id. at 29:15-16). The burnt marijuana odor and the open [alcohol] containers also played into his decision to ask Ms. Thomas to step out. (Id. at 30:4-7). When Ms. Thomas alit, [Officer Hobeck] observed a Glock handgun holstered to her hip. (Id. at 29:17-18). [Officer Hobeck] confirmed through [police] dispatch that [Ms. Thomas] was licensed to carry a concealed weapon. (Id. at 29:25). The other occupants initially refused to get out of the vehicle. (Id. at 31:24-25). [Appellant] appeared to use his phone to video their interactions. (Id. at 30:15). After a discussion with Officer [] Hess, the backseat passenger, [] Brockman, [], eventually agreed to step out. (Id. at 32:3). While [Officer] Hobeck was patting Brockman down, he noticed [Appellant] open the passenger side door, dip down, and then "roll" out of the vehicle. (Prelim. Hr'g. Tr., [9/17/]20, 13:6-8)[; see also N.T., 11/8/21 (suppression hearing), at 51-52.] [Appellant] then walked to the back of the vehicle, joining [Ms.] Thomas. ([N.T., 11/8/21,] at 46:4-5). [Officer] Hobeck walked
to the passenger side of the vehicle and observed a black handgun lying on the ground underneath the door of the passenger side of the vehicle. (Id. at 14:1-5). He immediately detained [Appellant]. (Id. at 14:7).
At the beginning of the suppression hearing, the trial court admitted the preliminary hearing transcript, without objection. N.T., 11/8/21, at 2.
Trial Court Opinion, 10/12/23, at 3-4 (emphasis and footnote added).
At the conclusion of the suppression hearing, the trial court denied Appellant's suppression motion on the record:
THE COURT: So there[ are] multiple reasons why the vehicle was pulled over. There was probable cause to stop [the vehicle] for the traffic violation of running the stop sign[,] if I find [Detective Long's] testimony credible[,] which I did. … And so, I think he had probable cause to believe that a traffic violation had occurred, and then I also think that he had reasonable suspicion that the vehicle could be stolen. Now, it turns out it wasn't stolen, but at that point[, Detective Long performed a computer check of the vehicle's] registration. The registration comes back to a different car. So, the possibility exists that … they had taken a license plate from one vehicle [and affixed it] to a stolen vehicle, and so I think that gave [police] … reasonable suspicion to detain the vehicle for some period of time. Then you have the issue with the [vehicle's unlawful] window tint and the [odor of] marijuana.N.T., 11/8/21, at 60-61 (emphasis added; paragraph break omitted).
In its Rule 1925(a) opinion, the trial court (which also presided over the suppression proceedings) determined it properly denied Appellant's suppression motion, competently reasoning as follows:
As Officer Hobeck approached the vehicle with darkly tinted windows and an incorrect registration plate, he observed its occupants in a highly agitated state and detected the odor of burnt
marijuana. The odor of marijuana is no longer a factor that, by itself, can give the police reasonable suspicion to extend a traffic stop. See … Barr, 266 A.3d 25 …. However, it does not have to be ignored by an officer during a traffic stop. In fact, "the odor of marijuana may be a factor, but not a stand-alone one, in evaluating the totality of the circumstances for purposes of determining whether police had probable cause to conduct a warrantless search." Barr, 266 A.3d at 41. It follows that it can be used to evaluate whether there is reasonable suspicion to justify the extension of a traffic stop.
In this case, the officers had sufficient facts, in addition to the odor of marijuana, upon which to form reasonable suspicion that criminal activity was afoot. Given the issue with the license plate, they had the right to investigate whether the vehicle was stolen. Ms. Thomas was not immediately able to dispel that notion[,] as she had a driver's license but no[] insurance card or registration information. The officers saw open [alcoholic beverage] containers in the car. All of the occupants were in a highly agitated state, and this gave the police the right to ask them to step out of the vehicle to make sure they were not armed. In fact, Ms. Thomas was armed, albeit legally. Brockman and [Appellant] initially refused to get out of the vehicle. When [Appellant] did get out, he did so without being asked, and only after having made a bodily maneuver which the police reasonably believed to represent the excretion of contraband. Once the firearm was located, the police were justified in making an arrest. Based upon these facts as presented to the officers, it was reasonable for them to infer that criminal activity was afoot. Therefore, the extended investigative detention was proper and lawful.Trial Court Opinion, 10/12/23, at 21-22 (emphasis and footnote added).
Officer Hobeck testified at the suppression hearing that he "performed a reading" with respect to the window tint. N.T., 11/8/21, at 33. Officer Hobeck stated his analysis confirmed that "the window tint was in excess of the allowable tint on a vehicle[.]" Id.
The trial court's findings are supported by the record, its reasoning is supported by the law, and we agree with its conclusion. See id. The record belies Appellant's claim that Officer Hobeck "testified that the odor [of marijuana] was the sole reason for asking the driver to exit the vehicle …." Appellant's Brief at 22. Thus, Appellant's reliance upon Barr is misplaced. Although the odor of marijuana is insufficient on its own to give rise to reasonable suspicion, the totality of the circumstances supplied reasonable suspicion that criminal activity was afoot. See Sloan, supra.
Based on the foregoing, we discern no error or abuse of the trial court's discretion in denying Appellant's suppression motion. See, e.g., Sloan, 303 A.3d at 166 (upholding trial court's ruling that police had reasonable suspicion justifying defendant's detention beyond the necessities of the initial traffic stop for a MVC violation, where several factors combined to establish reasonable suspicion that criminal activity was afoot, including that the officer who conducted the stop (a) detected the odor of burnt marijuana emanating from the vehicle driven by the defendant; (b) "noticed that [the defendant's] eyes were bloodshot and glassy and his speech was slurred"; and (c) "recognized these to be signs of intoxication from a controlled substance.").
Judgment of sentence affirmed.
Judgment Entered.