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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAHNIR CLARK :
:
Appellant : No. 374 EDA 2019
Appeal from the Judgment of Sentence Entered January 16, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002094-2018
BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 16, 2020
Appellant, Rahnir Clark, appeals from the judgment of sentence entered
in the Court of Common Pleas of Delaware County. The court, sitting as finder
of fact in Appellant’s and Co-Defendant’s joint trial, acquitted Co-Defendant
but found Appellant guilty of one count of Possession with Intent to Deliver
(“PWID”), two counts of Possession of a Controlled Substance, and one count
of Use/Possession of Drug Paraphernalia.1
Sentenced to five to 10 years’ incarceration for the PWID conviction,
with concurrent sentences on the remaining charges, Appellant filed a timely
notice of direct appeal and a court-ordered Pa.R.A.P. 1925(b) statement in
which he challenged the denial of his pre-trial motion to suppress and asserted
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* Former Justice specially assigned to the Superior Court.
1 35 Pa.C.S.A. §§ 780-113(a)(30), (16), and (32), respectively.
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sentencing counsel harbored a conflict of interest by having served as Co-
Defendant’s counsel during trial. We affirm.
The relevant facts for purposes of reviewing the present appeal are set
forth in the trial court’s “Findings of Fact” made from evidence adduced at
Appellant’s suppression hearing:
1. Sergeant Matthew P. Goldschmidt is employed by the City of
Chester Police Department since January of 2007. For
approximately eight years of his career he was assigned to the
Chester Police Department Narcotics Unit and the Delaware
County Drug Task Force. N.T. Suppression, 8/16/2018, p. 7,
8.
2. During his career, he has been involved in well over 1,000 drug
investigations. The majority of those investigations involved
cocaine. Having worked in the City of Chester for over ten
years, Sergeant Goldschmidt is familiar with the various
neighborhoods in the City of Chester and the crime statistics in
those neighborhoods. N.T. at 9.
3. Sergeant Goldschmidt knows the Sun Village area of Chester
as a high crime and a high drug area. The police respond there
almost daily to investigate violent and/or drug crimes. N.T. at
10.
4. Sergeant Goldschmidt has specialized training in the area of
drug investigations and has been qualified as an expert witness
in that regard in the Delaware County Court of Common Pleas
and District Courts. N.T. at 10, 11.
5. On January 18, 2018, he was on duty in his capacity as a
Sergeant with the City of Chester Police Department in full
uniform and in a marked police cruiser during the three in the
afternoon until 11 p.m. at night shift. N.T. at 11.
6. At approximately 7:22 that evening, Sergeant Goldschmidt
was in the Sun Village area of Chester in the parking lot of a
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carwash located at Morton Avenue and Sun Drive when he
observed a red Chrysler 200 with dark tinted windows. He
exited the parking lot and followed behind the red Chrysler.
N.T. at 13.
7. As Sergeant Goldschmidt followed the Chrysler he observed
that the operator failed to use a turn signal while making a left-
hand turn from Vauclain onto Remington Street and then again
from Remington into a parking lot. After witnessing these
Motor Vehicle Code violations, Sergeant Goldschmidt activated
his emergency lights to make a traffic stop on said vehicle.
N.T. at 14.
8. When Sergeant Goldschmidt approached the driver’s side of
the vehicle he observed that Defendant [hereinafter Co-
Defendant], Raneisha Little, was the operator and Defendant
[hereinafter “Appellant”], Rahnir Clark, was the front
passenger of the vehicle. At that time, Officer Breyhew [Abreu]
and Officer Murphy arrived as backup. N.T. at 16.
9. Sergeant Goldschmidt asked to see the vehicle registration and
insurance information and some type of identification from the
occupants. Sergeant Goldschmidt noticed the occupants were
extremely nervous and sweating heavily although it was 25
degrees outside. They gave conflicting stories as to why they
were there; they answered the officer’s questions with
questions, there were no businesses open at that time of the
night and their story failed to check out. N.T. at 17, 18, 49.
10. As Sergeant Goldschmidt spoke with Co-Defendant Little,
Officer Abreu requested Appellant exit the vehicle for Officers[’]
safety. Officer Abreu frisked Appellant for weapons, however,
Appellant prevented Officer Abreu from frisking his waist and
groin area. N.T. at 21.
11. Appellant’s lack of cooperation raised Sergeant
Goldschmidt’s suspicions. His experience in Chester clearly
communicates to him that when a person will not cooperate
when an officer is trying to frisk them, generally they are hiding
something. Usually around the waist, [an officer] will find a
weapon. This raises concern for officer safety. N.T. at 22.
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12. As Sergeant Goldschmidt looked into the vehicle, he heard
and observed a black BaoFeng police scanner attached to the
passenger side front sun visor. He noticed that when he was
speaking on his radio he could hear himself within the vehicle.
This led Sergeant Goldschmidt to conclude the scanner was
programmed to the police frequency for the City of Chester
[where] they were located. N.T. at 23.
13. Shortly thereafter Appellant was brought to the rear of the
vehicle and placed into handcuffs for officer safety until their
investigation was completed. N.T. at 24.
14. Sergeant Goldschmidt then asked Co-Defendant Little if
anything illegal was in the car. Co-Defendant Little stated she
had a hand gun in her purse and that she had a valid permit to
carry that firearm. N.T. at 25.
15. Sergeant Goldschmidt asked Co-Defendant Little for
consent to search the car. She orally agreed. Sergeant
Goldschmidt then read her the Miranda warnings and asked
her to complete a Chester Police Department Consent to
Search Vehicle form. Co-Defendant Little signed the form.
N.T. at 25-29.
16. Sergeant Goldschmidt recovered from the vehicle baggies
with cocaine and marijuana residue and items of drug
paraphernalia. Both [Co-Defendant and Appellant] were
placed under arrest. At this time Sergeant Goldschmidt read
Appellant the Miranda warnings.
17. Officer Abreu and Sergeant Goldschmidt frisked Appellant
again and felt a large, hard bulge underneath his groin.
Sergeant Goldschmidt asked Appellant what the bulge was.
Appellant responded it was four ounces of cocaine. Officer
Abrue then went down his pants in Sergeant Goldschmidt’s
presence and removed the drugs. N.T. at 32, 33.
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Trial Court Order Denying Appellant’s Motion to Suppress, 9/25/18, at 5.
In Appellant’s first issue, he argues that evidence adduced at his
suppression hearing failed to demonstrate reasonable suspicion necessary to
order Appellant out of the vehicle and perform a weapons frisk on him. In an
appeal from the denial of a motion to suppress,
[our] standard of review ... 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, 988 A.2d 649, 654 (Pa. 2010). Further, “the
record” refers to “the evidentiary record that was created at the suppression
hearing.” Commonwealth v. Cruz, 166 A.3d 1249, 1254 (Pa.Super. 2017);
In re L.J., 79 A.3d 1073 (Pa. 2013).
There is no reasonable dispute that the officers possessed probable
cause to initiate the traffic stop after witnessing Co-Defendant commit a motor
vehicle code violation. The issue before us as articulated by Appellant on
appeal is whether, during the lawful investigation stemming from the code
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violation, the officers formed a reasonable suspicion of criminality to support
a weapons frisk that uncovered cocaine in Appellant’s possession.
As we have explained, “[t]he Fourth Amendment to the [United States]
Constitution and Article I, Section 8 of [the Pennsylvania] Constitution protect
citizens from unreasonable searches and seizures. To safeguard this right,
courts require police to articulate the basis for their interaction with citizens
in [three] increasingly intrusive situations.” Commonwealth v. McAdoo, 46
A.3d 781, 784 (Pa.Super. 2012). Our Supreme Court has categorized these
three situations as follows:
The first category, a mere encounter or request for information,
does not need to be supported by any level of suspicion, and does
not carry any official compulsion to stop or respond. The second
category, an investigative detention, derives from Terry v. Ohio[,
392 U.S. 1 (1968)] and its progeny: such a detention is lawful if
supported by reasonable suspicion because, although it subjects a
suspect to a stop and a period of detention, it does not involve
such coercive conditions as to constitute the functional equivalent
of an arrest. The final category, the arrest or custodial detention,
must be supported by probable cause.
Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003).
After identifying the instant matter as one involving a second category
interaction, namely, an investigative detention, the suppression court
determined the totality of circumstances known to the sergeant and officer
during the lawful traffic stop supplied reasonable suspicion to support a
weapons frisk of Appellant and Co-Defendant for officers’ safety. We agree.
In Commonwealth v. Simmons, 17 A.3d 399 (Pa.Super. 2011), this
Court stated:
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[An officer]’s observation of furtive movements, within the scope
of a lawful stop, led him to reasonably be concerned for his safety
and therefore justified the Terry[] protective frisk. Indeed, on
multiple occasions we have held that similar furtive movements,
when witnessed within the scope of a lawful traffic stop, provided
a reasonable basis for a protective frisk.
Id., at 404 (citations omitted); see also in re O.J., 958 A.2d 561, 566
(stating defendant’s “rapid and furtive hand movements over the console
indicated that he may have been hiding a weapon in that location[;]” “the
police officer was permitted to engage in a search of that compartment for his
own protection[;]” “constitutional safeguards do not require an officer to
gamble with his life[.]”).
Nevertheless, this Court has explained:
[P]re-stop furtive movements, by themselves, may not be used to
justify an investigative detention and search commenced after the
conclusion of a valid traffic stop where the totality of
circumstances has established that the furtive movements did not
raise immediate concern for the safety of the officer who
undertook the initial vehicle detention.
Simmons, 17 A.3d at 405; see also Commonwealth v. Moyer, 954 A.2d
659, 670 (Pa.Super. 2008) (en banc) (stating “[f]urtive movements and
nervousness, standing alone, do not support the existence of reasonable
suspicion). Accordingly, the Commonwealth must both show the police saw
furtive movements during the stop and that there were additional reasons for
them to be concerned about the presence of weapons in order to demonstrate
reasonable suspicion. See Commonwealth v. Buchert, 68 A.3d 911, 916-
17 (Pa. Super. 2013).
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At Appellant’s suppression hearing, the Commonwealth established
through the testimony of Sergeant Goldschmidt that the traffic stop took place
at nighttime in a high-crime, high-drug trafficking location. Upon
encountering Appellant and Co-Defendant, the sergeant observed them to
appear extremely nervous and oddly sweaty despite the cold temperature
outside.2 When the sergeant asked why they pulled into the commercial
parking lot after hours, Appellant and Co-Defendant said they were leaving
the car for service—repair of a bullet hole and replacement of brakes—that
the business in question did not provide.
Appellant and Co-Defendant persisted in their evasive and
uncooperative behavior by continually providing unresponsive answers or
answering the sergeant’s questions with questions of their own. They
particularly raised the officers’ concerns, however, by refusing repeated
requests to cooperate by keeping their hands up in plain view: “[Appellant]
continually kept putting his hands down where . . . [the officers] could not see
them . . . .” N.T. at 46; “[Appellant’s] hands . . . would go right back down
again after a couple of seconds.” N.T. at 61.
Accordingly, Officer Abreu ordered Appellant out of the car for a
weapons frisk. When Appellant guarded against a frisk of his front waistband
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2 In both his cross-examination of the sergeant and his appellate brief,
Appellant notes that the record failed to rule out the possibility that the
temperature inside the vehicle was very warm. Pertinent to the suppression
court’s assessment of the totality of circumstances confronting the officers,
however, was that it is highly unusual for car passengers to sweat profusely,
particularly for no apparent reason.
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and groin—a common spot for concealment of a gun—it raised Sergeant
Goldschmidt’s suspicion of a weapon, and Appellant was handcuffed. At the
same time, Sergeant Goldschmidt noticed that a portable police scanner on
the passenger-side visor was tuned into the Chester Police Station frequency
and was playing the sergeant’s radio messages as he gave them. A second
attempt to frisk Appellant detected a hard bulge below the waistband, which
Appellant acknowledged was a bag of cocaine.
This combination of erratic, furtive, and noncompliant behavior
occurring during a lawful,3 nighttime stop in a high crime/drug crime area
provided a reasonable basis for concerns about officer safety justifying a
weapons search of Appellant. See Buchert, 68 A.3d at 916-17 (holding frisk
supported by reasonable suspicion where passenger made furtive movements
and defendant behaved in nervous manner during nighttime traffic stop). The
record, therefore, supports the order denying Appellant’s motion to suppress.
In Appellant's second issue, he demands a new trial because defense
counsel who represented him at sentencing failed to offer a colloquy disclosing
the potential for conflict arising from counsel’s having represented Co-
Defendant at trial. Appellant concedes he raised no pro se objection to dual
representation at his sentencing, but he contends waiver may not apply in the
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3 There is no dispute that at the time of the weapons frisk uncovering the
contraband in question, the lawful traffic stop for Co-Defendant’s motor
vehicle code violation was still in progress.
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absence of disclosure of potential conflict and the opportunity to waive
expressly his rights to exclusive counsel.
Decisional law pertaining to dual representation and conflict of interest
is well-established:
[D]ual representation is insufficient to support a finding of conflict
of interest, and is not a per se violation of constitutional
guarantees of effective assistance of counsel. To make the dual
representation rise to a true conflict, appellant need not show that
actual harm resulted, but must at least show the possibility of
harm. The law applicable to dual representation cases was
delineated in Commonwealth v. Breaker, 456 Pa. 341, 344–45,
318 A.2d 354, 356 (1974):
“Our dual representation cases make several
principles clear. First, ‘[i]f, in the representation of
more than one defendant, a conflict of interest arises,
the mere existence of such conflict vitiates the
proceedings, even though no actual harm results. The
potentiality that such harm may result, furnishes the
appropriate criterion.’ Commonwealth ex rel.
Whitling v. Russell, 406 Pa. 45, 48, 176 A.2d 641,
643 (1962). Second, a defendant must demonstrate
that a conflict of interest actually existed at trial,
because ‘dual representation alone does not amount
to a conflict of interest.’ Commonwealth v. Wilson,
429 Pa. 458, 463, 240 A.2d 498, 501 (1968);
Commonwealth ex rel. Corbin v. Myers, 419 Pa.
139, 213 A.2d 356 (1965), cert. denied, 386 U.S.
1013, 87 S.Ct. 1361, 18 L.Ed.2d 445 (1967). Third,
‘[t]o make the dual representation rise to a true
conflict, appellant need not show that actual harm
resulted, ... but he must at least show the possibility
of harm....’ Commonwealth v. Wilson, supra [429
Pa.] at 463, 240 A.2d at 501. Fourth, appellant will
satisfy the requirement of demonstrating possible
harm, if he can show, inter alia, ‘that he had a defense
inconsistent with that advanced by the other client, or
that counsel neglected his case in order to give the
other client a more spirited defense.’ Id. Accord,
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Commonwealth v. Cox, 441 Pa. 64, 69, 270 A. 2d
207, 209 (1970) (plurality opinion).”
Commonwealth v. Evans, 306 Pa.Super. 25, 451 A.2d 1373,
1374–1375 (1982).
Commonwealth v. Rogal, 120 A.3d 994, 1005-1006 (Pa.Super. 2015)
(addressing claim on direct review and dismissing it on the merits). See also
Commonwealth v. Collins, 957 A.2d 237, 251 (Pa. 2008) (“To show an
actual conflict of interest, the appellant must demonstrate that: (1) counsel
“actively represented conflicting interests”; and (2) those conflicting interests
“adversely affected his lawyer’s performance.”).
Assuming, arguendo, this claim is ripe for direct review, we conclude
Appellant’s argument fails because it offers merely a bare assertion that dual
representation at sentencing carried the potential for conflict. Critically, he
makes no attempt to show, as decisional law requires, an actual conflict of
interest that adversely affected his lawyer’s performance. Because Appellant
makes no such demonstration, he may not prevail on this claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/20
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