J-S27027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARRETTE DWAYNE HOWARD :
:
Appellant : No. 1177 EDA 2016
Appeal from the Judgment of Sentence March 24, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0007167-2014
BEFORE: GANTMAN, P.J., OTT, J. and PLATT, J.*
MEMORANDUM BY OTT, J.: FILED JULY 10, 2017
Garrette Dwayne Howard appeals from the judgment of sentence
imposed on March 24, 2016, in the Court of Common Pleas of Delaware
County following his conviction on charges of possession of a controlled
substance (heroin), possession of a controlled substance (heroin) with intent
to deliver, and possession of drug paraphernalia.1 Howard received an
aggregate sentence of 42 to 84 months’ incarceration. In this timely appeal,
Howard claims he was improperly subjected to an investigatory detention
and therefore the trial court erred in failing to suppress the evidence
obtained from the search of his car. Following a thorough review of the
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*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. §§ 780-113 (a)(16), (a)(30), and (a)(32), respectively.
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submissions by the parties, relevant law, and the certified record, we
reverse the order denying Howard’s motion to suppress evidence and
remand for further proceedings.
We quote the relevant portion of the trial court’s recitation of the
background of this matter.
On August 9, 2014, at approximately 12:40 p.m., Trooper
[James] Sparenga was on routine patrol in the area of Interstate
95 (I-95) South in the area of Ridley Township when he initiated
a traffic stop of a silver Volkswagen, pulling [Howard] over
directly in the “gore” adjacent to Exit 4 on I-95 southbound.[2]
Trooper Sparenga approached the vehicle from the passenger
side and observed that [Howard] was the driver and sole
occupant of the vehicle. Trooper Sparenga testified that as, is
his general practice during traffic investigations, he requested
license, registration and insurance card from [Howard]. Trooper
Sparenga advised [Howard] of the reason for the stop and asked
[Howard] various questions. Trooper Sparenga had difficulty
understanding what [Howard] was saying, as [Howard] spoke in
a low, soft voice[3] and was slow to respond to questions.
[Howard] provided Trooper Sparenga the requested
documentation and then extended his hand to shake Trooper
Sparenga’s hand. Trooper Sparenga noted that [Howard’s]
hands were “very shaky,” and were “wet and clammy.” Trooper
Sparenga then proceeded back toward his patrol car to process
the documentation.
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2
Howard did not challenge the propriety of the traffic stop. The Trooper
claimed Howard changed lanes in an unsafe manner, forcing another car to
brake suddenly.
3
Trooper Sparenga testified he had trouble hearing Howard over the traffic
noise of I-95. Specifically, “I could hardly hear, being out on I-95. I had to
tell him several times to speak up, like you asked me to speak up today.”
N.T. Suppression Hearing, 6/18/2015 at 25.
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Upon returning to his patrol vehicle, Trooper Sparenga
performed an NCIC search revealing [Howard’s] criminal history
as a convicted felon.[4] During the time that Trooper Sparenga
was processing [Howard’s] documents, he made a radio request
for police backup for officer safety purposes.[5]
After Trooper Sparenga processed the documentation, he exited
his patrol vehicle, approached the passenger window of
[Howard’s] vehicle, and requested that [Howard], who was still
seated in the driver’s seat, to step around [to] the back of the
vehicle. [Howard] complied with Trooper Sparenga’s request
and Trooper Sparenga and [Howard] met at the rear of the silver
Volkswagen, in front of the patrol vehicle. Trooper Sparenga
returned identification documents to [Howard] as he explained
and showed [Howard] the written warning. [Howard]
simultaneously reached out to shake Trooper Sparenga’s hand.
Trooper Sparenga noticed that, again, [Howard’s] hands were
shaking, wet and clammy. Trooper Sparenga mentioned to
[Howard] that he seemed nervous and asked if there was
anything else going on that he needed to know about.
Trial Court Opinion, 9/26/2016, at 2-3.6
Based on the above evidence, the trial court determined that because
Trooper Sparenga, after returning the documents to Howard and explaining
the warning to him, never told Howard he was free to leave and continued
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4
Specifically, “The NCIC related that [Howard is] a prior felon for
shoplifting.” N.T. Suppression Hearing, 9/18/2015, at 13.
5
Trooper Sparenga requested backup because he had already determined
he was going to ask Howard for consent to search his vehicle. See N.T.
Suppression Hearing, 6/18/2015, at 32.
6
The trial court provided additional findings of fact, found on pages 4-5 of
the trial court opinion. However, those facts were developed after the traffic
stop had transitioned into the investigative detention. Therefore, those facts
are immaterial to our analysis, which is to determine whether the
investigative detention was supported by reasonable suspicion.
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contact with Howard in a seamless manner, Howard, at that time, was
subject to an investigatory detention. See Trial Court Opinion at 7. The
trial court further found that the investigatory detention was supported by a
reasonable suspicion that criminal activity was afoot. This finding, in turn,
allowed the Trooper to seek permission to search Howard’s car. Accordingly,
the trial court found no cause to suppress the physical evidence obtained as
a result of that search.
Initially, we relate our scope and standard of review.
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 bound by those facts and
may reverse only if the court erred in reaching its legal
conclusions based upon the facts.
Commonwealth v. Williams, 2008 PA Super 6, 941 A.2d
14, 26-27 (Pa. Super. 2008) (en banc) (citations,
quotations, and quotation marks omitted). Moreover, it is
within the lower court's province to pass on the credibility
of witnesses and determine the weight to be given to their
testimony. See Commonwealth v. Clemens, 2013 PA
Super 85, 66 A.3d 373, 378 (Pa. Super. 2013).
Commonwealth v. Roberts, 133 A.3d 759, 771 (Pa. Super.
2016), appeal denied, 145 A.3d 725 (Pa. 2016). Furthermore,
our Supreme Court in In the Interest of L.J., 622 Pa. 126, 79
A.3d 1073, 1085 (2013), clarified that the scope of review of
orders granting or denying motions to suppress is limited to the
evidence presented at the suppression hearing.
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Commonwealth v. McCoy, 154 A.3d 813, 815-16 (Pa. Super. 2017).
Here, Howard claims that the investigative detention was not
supported by any reasonable suspicion of criminal activity. Therefore,
Howard argues, his consent to search his vehicle was invalid and the
evidence obtained therefrom must be suppressed.
As noted above, the trial court determined that Howard was subject to
an investigatory detention once Trooper Sparenga returned Howard’s
paperwork to him, gave him the warning and finished explaining the warning
to him. Specifically, the trial court stated:
This court finds that the Trooper never expressly informed
[Howard] that he was free to leave the scene, [Howard] was still
standing outside his vehicle, and Trooper continued contact with
[Howard] in a seamless interdiction. [Howard] was subjected to
an investigatory detention.
Trial Court Opinion, 9/26/2016, at 7.
We agree with the trial court’s finding in this regard. See
Commonwealth v. Kemp, 961 A.2d 1247, 1253-54 (Pa. Super. 2008)
(describing transition from traffic stop to investigative detention). 7 The
salient question now becomes whether Trooper Sparenga possessed a
reasonable suspicion of criminal activity to support that investigative
detention.
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7
The fact that Howard was subjected to an investigatory detention is not
instantly at issue. Accordingly, we need not delve into an analysis of that
legal issue.
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Reasonable suspicion has been defined as follows:
[T]he officer must articulate specific observations which, in
conjunction with reasonable inferences derived from these
observations, led him reasonably to conclude, in light of
his experience, that criminal activity was afoot ... In order
to determine whether the police officer had reasonable
suspicion, the totality of the circumstances must be
considered. In making this determination, we must give
due weight ... to the specific reasonable inferences [the
police officer] is entitled to draw from the facts in light of
his experience. Also, the totality of the circumstances test
does not limit our inquiry to an examination of only those
facts that clearly indicate criminal conduct. Rather, even a
combination of innocent facts, when taken together, may
warrant further investigation by the police officer.
Commonwealth v. Smith, 917 A.2d 848, 852 (Pa. Super.
2007) (citations omitted). The officer “may ask the detainee a
moderate number of questions” during a traffic stop “to
determine his identity and to try to obtain information confirming
or dispelling the officer's suspicions.” Berkemer v. McCarty,
468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). “[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.” Commonwealth v. Chase, 599 Pa. 80, 960
A.2d 108, 115, n.5 (2008). Even innocent factors, viewed
together, may create reasonable suspicion that criminal activity
is afoot. See Commonwealth v. Caban, 60 A.3d 120, 129-30
(Pa. Super. 2012) (following valid traffic stop for speeding,
officer had reasonable suspicion of criminal activity to justify
continued detention of driver and passenger; driver acted
nervously, car was owned by third party not present in vehicle,
answers provided by driver and passenger to basic questions
regarding their destination were inconsistent, and various
masking agents, including air fresheners, canisters of perfume,
and bottle of odor eliminator, were present in vehicle).
Commonwealth v. Rudolph, 151 A.3d 170, 178, n. 2 (Pa. Super. 2016).
Additionally,
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Thus, we find no basis to conclude that excessive nervousness
and furtive movements, even considered together, give rise to
reasonable suspicion of criminal activity. A police officer's
observation of a citizen's nervous demeanor and furtive
movements, without more, establishes nothing more than a
“hunch,” employing speculation about the citizen's motive in the
place of fact. Were we to validate such a practice, we would
open every occupant of a motor vehicle in this Commonwealth to
law enforcement officers' wholly subjective interpretation of
inoffensive conduct, and undermine our Supreme Court's time-
honored insistence that police officers may stop our citizens only
on the basis of objective criteria. See Sierra, 723 A.2d at 647;
DeWitt, 608 A.2d at 1034. This we cannot do. This we will not
do.
Commonwealth v. Reppert, 814 A.2d 1196, 1206 (Pa. Super. 2002).
With these standards in mind, we examine the trial court’s stated
reasoning to determine if it is supported by the facts of record and comports
with legal precedent. The trial court stated:
Trooper Sparenga testified to reasonable suspicion beyond the
original reasonable suspicion, which led to the traffic stop. The
Trooper provided the Court with unrebutted, credible testimony.
The facts adduced by Trooper Sparenga during the valid traffic
stop provided him with sufficient reasonable suspicion that
criminal activity was afoot, justifying the continuing investigatory
detention. The facts included:
Initially, Trooper Sparenga noted that [Howard] appeared
extremely nervous, spoke in a low voice, was slow to answer
questions, and that [Howard’s] hands were physically shaking
and were wet and clammy when he handed over his documents
to Trooper Sparenga and shook his hand. Trooper Sparenga
discovered through NCIC search that [Howard’s] status as a
convicted felon [sic]. Howard’s hands were still shaking and
clammy during the second handshake. [Howard] provided
Trooper Sparenga with a myriad of unsolicited information
entirely unrelated to their conversation.
Trial Court Opinion, 9/26/2016, at 8-9.
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Our review of the certified record shows that the “unsolicited
information” was not relayed until after the inception of the investigatory
detention. Accordingly, that factor cannot be used to support the detention
in the first place.8 See Commonwealth v. Chase, 960 A.2d 108, 115 n.5
(Pa. 2008) (“additional suspicion may arise before the initial stop's purpose
has been fulfilled; then, detention may be permissible to investigate the new
suspicions.”) (emphasis added). Therefore, the information of record that
Trooper Sparenga possessed prior to the investigatory detention is that
Howard displayed nervous behavior and had previously been convicted of a
charge of felony shoplifting.
The law is clear that merely exhibiting nervous behavior cannot
support reasonable suspicion to support an investigatory detention. While
nervous behavior can be considered, there must be more. Instantly, the
only “more” is a conviction for shoplifting.
Trooper Sparenga never testified as to what specific criminal activity
he suspected was afoot. However, neither he, the Commonwealth, nor the
trial court provide any logical or legal connection between prior shoplifting
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8
Further, we have viewed the video submitted as evidence. It does not
support the trial court’s statement that Howard “provided Trooper Sparenga
with a myriad of unsolicited information entirely unrelated to their
conversation.” See Trial Court Opinion at 9. Trooper Sparenga asked
Howard why he was nervous and Howard related how a prior arrest had
been resolved, yet remained open causing him problems with law
enforcement. Howard was worried that such was the case instantly. This
response was directly relevant to Trooper Sparenga’s inquiry.
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conviction and a reasonable suspicion of criminal activity at a traffic stop on
an interstate highway. Without that connection, we are unwilling to
presume that any prior conviction automatically provides authorities with
grounds to detain a citizen.9 In its brief, the Commonwealth has
acknowledged that nervous behavior, furtive movement (not present
instantly)10 and a prior drug conviction, does not support reasonable
suspicion for an investigatory detention.11 If the presence of those factors
cannot support an investigatory detention, then we cannot see how nervous
behavior, a shoplifting conviction and no furtive movements can support an
investigatory detention.
Because the investigative detention of Howard was unsupported by a
reasonable suspicion that criminal activity was afoot, all evidence obtained
as a result of that improper detention must be suppressed. Accordingly, the
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9
Clearly, prior convictions can be relevant to determining reasonable
suspicion. For example, in Commonwealth v. Rogers, 849 A.2d 1185 (Pa.
2004), cited by the Commonwealth, the defendant was nervous, had
shaking hands, provided incomplete, inconsistent and false information
regarding his car, had a prior drug conviction and had items in the car
typically used to mask the smell of marijuana. In Rogers, the drug
conviction was especially relevant in light of other information that generally
suggested criminal activity and specifically suggested drug trafficking. None
of those additional factors are present instantly.
10
Trooper Sparenga testified that Howard displayed no suspicious activity in
his car while the trooper was conducting the background check. See N.T.
Suppression Hearing, 6/18/2105, at 30.
11
Commonwealth v. Moyer, 954 A.2d 659 (Pa. Super. 2008).
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trial court’s order denying Howard’s motion to suppress evidence must be
reversed, and Howard’s judgment of sentence must be vacated.
Order reversed; judgment of sentence vacated; this matter is
remanded to the trial court for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2017
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