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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.G., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: D.G. :
: No. 282 WDA 2015
Appeal from the Order Dated January 21, 2015,
in the Court of Common Pleas of Allegheny County
Juvenile Division at No. Case No. T-181178,
Docket Number 1587-08, JID No. 72060-B
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND SHOGAN, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 18, 2016
D.G. appeals from the January 21, 2015 dispositional order resulting
from his adjudication as delinquent for carrying a firearm without a license,
possession of a firearm by a minor, drivers required to be licensed, and
turning movements and required signals.1 We affirm.
The trial court provided the following factual history:
City of Pittsburgh Police Officer Gary Messer
was the sole witness in the hearing on the Motion to
Suppress Evidence. Officer Messer testified that he
had been employed by the City of Pittsburgh Police
Department for six years. Part of [his] job duties
included being assigned to the Plainclothes 99 Car
Zone where he and other police officers would patrol
“high impact trouble areas” that were the subject of
citizen and mayor complaints. Officer Messer stated
that the most concerning complaints to the unit were
those complaints that consisted of “open air
narcotics violations and shots fired complaints[.]”
1
18 Pa.C.S.A. §§ 6106 and 6110.1 and 75 Pa.C.S.A. §§ 7501 and 3334,
respectively.
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Officer Messer stated that on November 10,
2014, he and his two partners were patrolling the
Brighton Road, North Charles area of the City of
Pittsburgh where several “shots fired” incidents had
been recently reported. According to Officer Messer,
he and his fellow officers were patrolling the area in
order to show a police presence and to “curb” further
violence and similar criminal activity. While
patrolling on Brighton Road, Officer Messer testified
that he and the other officers observed a red
Suburban SUV. This SUV fit the description of a
large red or maroon SUV that had been involved in a
shooting five days prior. Officer Messer and his
partners followed the red Suburban as it traveled on
Brighton Road. When the SUV reached Brightridge
Street, it made a right turn without using a turn
signal at which point the officers activated the police
vehicle’s lights and siren and conducted a mid-block
traffic stop. Officer Messer reported that the red
SUV promptly pulled into a parking space on the
right side of Brightridge Street and that he
approached the stopped vehicle on the passenger
side with Officer Achille approaching on the driver’s
side. As Officer Achille approached the driver’s side
of the vehicle, he alerted Officer Messer to
movement in the front seat of the vehicle.
Officer Messer reported that he saw three fresh
bullet holes near the rear passenger side of the
vehicle.
Officer Messer testified that he recognized the
front seat passenger of the vehicle to be
Sean Thomas who had been arrested by the officers
in the past six months for narcotics and firearms
violations. At the same time that Officer Messer
identified Sean Thomas, Officer Achille began
speaking with appellant, D.G., who was the operator
of the vehicle. Officer Messer stated that he and the
other officers also knew appellant from previous
encounters. An unknown third passenger was sitting
in the rear of the vehicle. Officer Achille asked D.G.
if he had obtained his driver’s license and D.G.
replied “no.” Officer Achille then asked D.G. to step
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out of the vehicle and D.G. complied with this
request. Officer Messer testified that after D.G.
exited the vehicle, he patted him down for weapons
with negative results. Officer Messer then asked
Sean Thomas to step out of the vehicle and patted
him down for weapons, which also resulted in no
weapons being found. The rear seat passenger was
then removed from the vehicle.
Officer Messer testified that after the
occupants of the vehicle were removed and patted
down, he entered the vehicle from the passenger
side door in order to conduct an inventory search
prior to the vehicle being towed. Upon entering the
vehicle, he observed that the cup holder was ajar as
if it was manipulated in an “up” position instead of
being flat. He then used his flashlight to illuminate
the cup holder. Officer Messer observed a hole
underneath the cup holder and saw a firearm sitting
below the cup holder. Officer Messer alerted his
partners to the discovery of the firearm.
Subsequently, all three males were detained.
Officer Messer reported that the back seat
passenger was identified as Tyler Goodnight, who
had an active homicide warrant from Penn Hills
Township and consequently, Tyler Goodnight was
taken into custody. Appellant was also taken into
custody and transported to Zone 1 because he was a
juvenile. Sean Thomas was released. The officers
gave the keys to the Suburban to Mr. Thomas so
that Mr. Thomas could deliver the keys to appellant’s
mother so that the vehicle would not have to be
towed and D.G.’s mother would not incur towing
fees.
During cross-examination, Officer Messer
explained that he entered the vehicle in order to
conduct an inventory search of the vehicle because
initially it was his intention to have the vehicle
towed. In doing so, he shined the light from his
flashlight on the cup holder and was able to view the
firearm beneath the cup holder without manipulating
or touching the cup holder.
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Trial court opinion, 4/24/15 at 4-7 (citations and footnotes omitted).
On November 12, 2014, D.G. was charged in a
delinquency petition under the Juvenile Act, 42 Pa.
C.S.A. § 6301 et seq., with Carrying Firearm without
a License pursuant to 18 Pa. C.S.A. § 6106(a)(1);
Possession of a Firearm by a Minor [] pursuant to 18
[Pa.] C.S.A. § 6110(a)(1); Drivers Required to be
Licensed pursuant to 75 [Pa.] C.S.A. § 1501(a); and
Turning Movements and Required Signals pursuant
to 75 Pa. C.S.A. § 3334(a).
On November 17, 2014, a pre-hearing
conference was held and a hearing on the petition
was scheduled for December 22, 2014. [The trial
court] also ordered that D.G. be released from
detention and placed on electronic-home monitoring
(EHM) pending the adjudicatory hearing.
On December 19, 2014 appellant filed a motion
to suppress evidence. On December 22, 2014, the
Attorney for the Commonwealth presented a Motion
to Continue the Adjudicatory Hearing. The Motion
for continuance was granted and the adjudicatory
hearing was rescheduled for January 5, 2015. [The
trial court] also scheduled a hearing on the Motion to
Suppress Evidence for January 5, 201[5],
immediately before the adjudicatory hearing.
On January 5, 2015, a hearing on the Motion
to Suppress Evidence was held. After the conclusion
of the hearing and arguments by counsel on the
motion to suppress, [the trial court] denied
appellant’s motion. D.G. admitted to the summary
motor vehicle offenses of Drivers Required to be
Licensed and Turning Movements and Required
Signals. With respect to the charges of Carrying
Firearm without a License and Possession of a
Firearm by a Minor, appellant denied the allegations
contained within the petition and the case proceeded
to trial.
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After the conclusion of the hearing and
arguments by counsel, [the trial court] found that
the Commonwealth had proven, beyond a reasonable
doubt, that appellant committed the delinquent acts
of Carrying Firearm without a License [] and
Possession of a Firearm by a Minor. [The trial court]
also accepted appellant’s admission to the summary
offenses of Drivers Required to be Licensed [and]
Turning Movements and Required Signals. Due [to]
the serious nature of the offenses and appellant’s
juvenile record, [the trial court] found that D.G. was
also in need of treatment, supervision, and
rehabilitation and he was adjudicated delinquent of
the charge. Disposition was deferred until
January 21, 2015. [The trial court] ordered that
D.G. should remain detained pending disposition and
that the Probation Officer make referrals for
placement.
After a dispositional hearing on January 21,
2015, [the trial court] entered an order committing
D.G. to the Adelphoi Village Anchor Residential
Program. Appellant timely filed an appeal of the
dispositional order on February 20, 2015. On
March 16, 2015 appellant filed a concise statement
of matters complained of on appeal.
Id. at 1-3 (footnote omitted).
The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on
April 24, 2015. Therein, the court stated that it “erred in denying D.G.’s
motion to suppress the firearm.” (Trial court opinion, 4/24/15 at 10.)
Specifically, the court found that the police did not conduct a proper
inventory search of the vehicle and were not authorized to conduct such a
search. (Id. at 11.)
Appellant raises the following issue for our review:
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Whether the juvenile court erred in failing to grant
D.G.’s Motion to Suppress Evidence when the search
of his vehicle was not a lawful inventory search?
Appellant’s brief at 5.
This Court’s well-settled standard of review of a
denial of a motion to suppress evidence is as follows:
[An appellate court’s] standard of review
in addressing a challenge to the denial of
a suppression motion is limited to
determining whether the suppression
court’s factual findings are supported by
the record and whether the legal
conclusions drawn from those facts are
correct. Because the Commonwealth
prevailed before the suppression court,
we may consider only the evidence of the
Commonwealth 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
suppression court’s factual findings are
supported by the record, [the appellate
court is] bound by [those] findings and
may reverse only if the court’s legal
conclusions are erroneous. Where . . .
the appeal of the determination of the
suppression court turns on allegations of
legal error, the suppression court’s legal
conclusions are not binding on an
appellate court, whose duty it is to
determine if the suppression court
properly applied the law to the facts.
Thus, the conclusions of law of the courts
below are subject to [ ] plenary review.
Commonwealth v. Jones, 605 Pa. 188, 988 A.2d
649, 654 (2010) (internal citations and quotation
marks omitted).
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Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa.Super. 2015)
(brackets in original).
In the instant appeal, both trial court, in its Rule 1925(a) opinion, and
the Commonwealth concede that the inventory search conducted by the
police was improper. (Trial court opinion, 4/24/15 at 10-11;
Commonwealth’s brief at 11.) The Commonwealth requests that we affirm
the trial court’s decision on any grounds, even if the reason has not been
raised either here or at the trial court. (Commonwealth’s brief at 12.)
Specifically, the Commonwealth argues that the order denying the motion to
suppress should be affirmed on the grounds that appellant did not have a
reasonable expectation of privacy in the car, and, as a result, did not have
standing to contest the search of the car, or, alternatively, the police
properly conducted a protective sweep of the car.
Our cases indicate that we may affirm a lower court’s order on any
grounds supported by the record, so long as the trial court’s decision is
legally sound. Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa.
2012), cert. denied, U.S. , 133 S.Ct. 2336 (2013), citing
Commonwealth v. Parker, 919 A.2d 943, 948 (Pa. 2007) (citation
omitted); see also Commonwealth v. Miller, 787 A.2d 1036, 1038
(Pa.Super. 2001), appeal denied, 798 A.2d 1288 (Pa. 2002) (“As an
appellate court, we may affirm by reasoning different than that used by the
trial court”) (citation omitted).
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We agree with the Commonwealth that the record of the suppression
hearing supports a finding that reasonable suspicion existed for a protective
sweep of the vehicle. Our standard of review when reviewing protective
sweeps of vehicles is as follows:
In Michigan v. Long, 463 U.S. 1032, 103 S.Ct.
3469, 77 L.Ed.2d 1201 (1983), and
Commonwealth v. Morris, 537 Pa. 417, 644 A.2d
721 (1994), the respective Supreme Courts
promulgated the test for determining whether a
police officer may conduct a protective search of the
interior compartment of a car for weapons. In Long,
the United States Supreme Court applied the test
announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968), and held that a
weapons search may be performed where an officer
has reasonable suspicion that a firearm may be
secreted in the car and that the search may
encompass any area where a weapon could be
hidden and accessible to the defendant in the
vehicle. In Long, the High Court made the apt
observation that “detentions involving suspects in
vehicles are especially fraught with danger to police
officers.” Long, supra at 1047, 103 S.Ct. 3469.
The Long Court’s specific holding is that
the search of the passenger
compartment of an automobile, limited
to those areas in which a weapon may be
placed or hidden, is permissible if the
police officer possesses a reasonable
belief based on “specific and articulable
facts which, taken together with the
rational inferences from those facts,
reasonably warrant” the officers in
believing that the suspect is dangerous
and the suspect may gain immediate
control of weapons. “The issue is
whether a reasonably prudent man in the
circumstances would be warranted in the
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belief that his safety or that of others
was in danger.”
Long, supra at 1049-50, 103 S.Ct. 3469 (partially
quoting Terry, supra at 21, 88 S.Ct. 1868).
In Morris, supra, our Supreme Court concluded that
the Long standard comported with the Pennsylvania
Constitution.
Commonwealth v. Tuggles, 58 A.3d 840, 842-843 (Pa.Super. 2012),
appeal denied, 69 A.3d 602 (Pa. 2013).
When viewed in a totality of the circumstances, our cases indicate that
a “furtive hand movement” creates a reasonable suspicion that a weapon
may be hidden within a vehicle to justify a protective sweep of that vehicle.
Id. at 843. As noted by the Tuggles court, we found that reasonable
suspicion existed based on the following:
[T]he defendant performed a single action of patting
his waistband, which is an area where weapons are
frequently secreted. We concluded that police were
justified in performing a search of that area for
weapons when it was night in a high crime area, the
defendant walked away upon viewing police, and
police had received an anonymous tip that someone
matching the defendant’s description was armed.
Id. at 844, citing Commonwealth v. Foglia, 979 A.2d 357, 360-361
(Pa.Super. 2009) (en banc), appeal denied, 990 A.2d 727 (Pa. 2010); see
also In re O.J., 958 A.2d 561, 566 (Pa.Super. 2008) (en banc), appeal
denied, 989 A.2d 918 (Pa. 2010) (upholding protective sweep of a vehicle
in which the stop occurred at night, the defendant did not immediately stop
his car, the police observed hand movements indicating the possibility that
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the defendant was attempting to secret a weapon, and the search was
confined to the area of the defendant’s hand movements).
Here, we find O.J., Foglia, and Tuggles to be instructive. During the
suppression hearing, Officer Messer testified that he and his partner, Officer
Achille, initiated a traffic stop when the Suburban driven by appellant made
a right turn from Brighton Road onto Brightridge Street without using a turn
signal. (Notes of testimony, 1/5/15 at 8.) Officer Messer testified that the
area in which he was patrolling, the North Charles area in the City of
Pittsburgh, was identified as a “high impact trouble area,” and several shots
fired incidents had recently occurred. (Id. at 5-6.) The Suburban driven by
appellant had matched the description of a car that was involved in a
shooting five days prior, and Officer Messer observed three fresh bullet holes
in the rear of the vehicle. (Id. at 7-8). As the officers were approaching the
vehicle, Officer Achille alerted Officer Messer that he “saw movement in the
front seat of the vehicle.” (Id. at 8.)
Based upon a totality of the circumstances, we find that the police
conducted a proper protective sweep of the vehicle. Accordingly, we find
that the Commonwealth met its burden of production at the suppression
hearing that appellant’s constitutional rights were not infringed upon.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2016
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