J-A28028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
NATYALEES DEJESUS
Appellant No. 333 EDA 2015
Appeal from the Judgment of Sentence December 12, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006493-2012
MC-51-CR-0019523-2012
BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.
MEMORANDUM BY PANELLA, J. FILED JANUARY 12, 2016
Appellant, Natyalees DeJesus, appeals from the judgment of sentence
entered after the trial court convicted her of possession of heroin with intent
to deliver (“PWID”) and related offenses. On appeal, DeJesus contends that
the trial court erred in denying her pre-trial motion to suppress the heroin
discovered in her vehicle. After reviewing the record, we conclude that the
evidence presented at the suppression hearing does not support the
suppression court’s conclusions of law. We therefore reverse.
The essential facts of this case are largely uncontested for purposes of
appeal. On May 11, 2012, Philadelphia Police Officer Vincent Visco stopped
a vehicle for traffic violations in a high crime area of Philadelphia. The
vehicle pulled over into a parking spot. As Officer Visco approached the
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vehicle, he observed that the male driver, later identified as Alverto Cintron,
was breathing heavily and shaking. DeJesus was sitting next to Cintron in
the front passenger seat.
While talking with Cintron, Officer Visco observed a bulge in Cintron’s
front pant pockets. Concerned for his safety and suspecting the bulge to be
a weapon, Officer Visco performed a pat-down search of Cintron while
Cintron remained seated in the vehicle. As he felt the bulge in Cintron’s
pants, Officer Visco immediately felt the presence of two jars, which from his
training and experience he recognized as a type commonly used in the
narcotics trade. These jars contained marijuana. In Cintron’s other pocket,
Officer Visco discovered approximately $1,700.
Officer Visco immediately removed Cintron from the vehicle and
determined that Cintron was not licensed to operate a motor vehicle in
Pennsylvania. Officer Visco proceeded to place Cintron under arrest and put
him in him the rear of his police cruiser.1 At the same time Officer Visco
discovered that DeJesus was the registered owner of the vehicle. He then
initiated a “live stop” procedure, whereby the Philadelphia Parking Authority
would tow the vehicle from the scene.
Officer Visco had DeJesus alight from the vehicle, but did not perform
a pat-down search of her. DeJesus informed him that she had allowed
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Cintron pled guilty to PWID and firearms charges in a separate proceeding.
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Cintron to drive her vehicle because she was not feeling well. After initiating
the live stop procedure, Officer Visco searched the interior of the vehicle and
discovered two racks of heroin and an unlicensed firearm in the center
console. He then placed DeJesus under arrest.
DeJesus was charged with various PWID and firearms charges. She
filed an omnibus pre-trial motion seeking suppression of the heroin and
firearm, which the suppression court denied after a hearing. After a non-
jury trial, the trial court found her not guilty of the firearms charge, but
convicted her of the PWID charges. The trial court sentenced DeJesus to
three years of probation. DeJesus filed post-sentence motions, which were
denied, and this timely appeal followed.
On appeal, DeJesus raises three issues for our review. However, we
need only address her first issue, whether the heroin discovered in the
center console should have been suppressed, as it is dispositive of this
appeal.
We review the denial of a motion to suppress physical evidence as
follows.
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to determining
whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are
correct.
[W]e may consider only the evidence of the prosecution and so
much of the evidence for the defense as remains uncontradicted
when read in the context of the record as a whole. Where the
record supports the findings of the suppression court, we are
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bound by those facts and may reverse only if the court erred in
reaching its legal conclusions based upon the facts.
Further, [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. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal
citations and quotations omitted).
DeJesus argues that Officer Visco’s search of the vehicle is illegal
pursuant to Commonwealth v. Lagenella, 83 A.3d 94 (Pa. 2013). In
Lagenella, the Supreme Court of Pennsylvania addressed the propriety of
an inventory search where the vehicle was approximately 2 feet from the
curb, and the driver was found to be operating the vehicle under a
suspended license. See id., at 96-97. In reviewing the case, the Supreme
Court stated that the issue before it was whether the arresting officer “had
authority pursuant to [75 Pa.C.S.A.] Section 6309.2 to do anything other
than immobilize Appellant’s vehicle under the circumstances of the instant
case.” Id., at 101. In answering this question, the Court held that “[f]or
purposes of towing, the requirements are: (i) the person operates a motor
vehicle while the person’s operating privilege is suspended … and (ii) the
vehicle poses public safety concerns warranting its towing and storage at an
impound lot.” Id. (emphasis in original). As the arresting officer in
Lagenella had not testified that the Appellant’s vehicle posed an issue of
public safety, the Court concluded that towing was not warranted, and the
inventory search was illegal. See id., at 101-102.
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Here, as in Lagenella, there is no evidence of record indicating that
the vehicle posed an issue of public safety. To the contrary, the only
evidence of record is Officer Visco’s agreement that the vehicle was “pull[ed]
over to the side of the road in a parking spot[.]” See N.T., Suppression
Hearing, 4/9/14, at 21-22. We therefore conclude that pursuant to
Lagenella, Officer Visco did not have authority to tow the vehicle, and thus
had no authority to perform an inventory search of the vehicle.
Seeking to avoid this result, the Commonwealth argues, without any
supporting authority, that Lagenella is not controlling as it was decided
after the stop in question. Unsurprisingly, the Commonwealth’s argument is
totally baseless, as the Supreme Court of Pennsylvania has clearly
recognized that new rules of law are cognizable on appeal, so long as the
issue has been properly preserved. See, e.g., Commonwealth v. Sneed,
899 A.2d 1067, 1073 (Pa. 2006).
Perhaps recognizing this, the Commonwealth, and the suppression
court, also contend that Officer Visco’s search of the vehicle was justified as
a search incident to Cintron’s arrest. Officer Visco did testify that he
believed that a firearm could be present due to his belief that “where there
is a lot of money, narcotics recovered, there are also firearms.” N.T.,
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Suppression Hearing, 4/9/14, at 15.2 However, Officer Visco did not search
the vehicle until he had already instituted the live stop procedure. See id.,
at 29. At that point, he had DeJesus exit the vehicle, but did not perform a
pat-down search on her. See id., at 26, 29. In the vehicle stop form he
filled out at the time, Officer Visco indicated only that he had performed an
inventory search of the vehicle pursuant to the live stop. See id., at 29. In
a subsequent statement to a detective, there is no indication that the vehicle
was searched for safety reasons. See id. It was only after DeJesus had
alighted from the vehicle and the vehicle had been searched that DeJesus
was subjected to a pat-down search. See id., at 26.
While we are to give all reasonable inferences to the Commonwealth
under our standard of review, we cannot conclude that it is reasonable to
infer that Officer Visco performed a search incident to Cintron’s arrest when
(a) Officer Visco never explicitly testified that he performed such a search,
(b) his official statements about the stop do not mention such a search, and
(c) the manner in which the search was performed did not comport with a
contemporaneous fear for his safety. We therefore conclude that the
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DeJesus argues that this rationale is insufficient to support a search of the
vehicle incident to Cintron’s arrest once Cintron had already been
sequestered in Officer Visco’s squad car and DeJesus was out of the vehicle.
See Commonwealth v. Grahame, 7 A.3d 810 (Pa. 2010). Given our
conclusion that the evidence at the suppression hearing does not support a
finding that Officer Visco performed a search incident to Cintron’s arrest, we
do not reach this issue.
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suppression court erred in finding that Officer Visco had performed a search
incident to Cintron’s arrest. The only reasonable inference from the
evidence presented at the suppression hearing is that Officer Visco
performed an inventory search pursuant to the “live stop” program. As
noted previously, this inventory search was illegal. As a result, we must
reverse the judgment of sentence based upon the convictions for PWID of
heroin.
Judgment of sentence reversed. Defendant discharged. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2016
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