J-A27017-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER ANTON JOHNSON :
:
Appellant : No. 1115 EDA 2021
Appeal from the Judgment of Sentence Entered May 3, 2021
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001734-2019
BEFORE: PANELLA, P.J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 4, 2022
Christopher Anton Johnson appeals from the judgment of sentence
entered following his conviction for Persons Not to Possess, Use, Manufacture,
Control, Sell, or Transfer Firearms, 18 Pa.C.S.A. § 6105(a)(1). Johnson
argues that the trial court erred in denying his motion to suppress based on
an illegal vehicle stop. We affirm.
The trial court set forth the underlying facts as follows:
On February 26, 2019, at approximately 1:00 pm, Officer
Joshua Keenan[,] Officer Fritchman[,] and Officer Carl
Robinson, Jr. [ ] of the Norristown Police Department were
conducting a directed drug patrol near the intersection of
Noble and West Lafayette Street in Norristown, Montgomery
County, Pennsylvania. The area of Noble and West
Lafayette Street is regarded as a high crime and drug
trafficking area, rife with frequent calls for overdoses, and
where all three officers had each previously made drug
arrests. On this particular occasion, [Officer] Robinson was
conducting surveillance of a suspected drug location in the
200 block of Noble Street.
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During the third week of February 2019, [Officer]
Robinson received information from a reliable confidential
informant (“CI”) that a “subject, who the confidential
informant knew only as ‘Q-Blizz,’ was riding around in a blue
Chevy Cruze with tinted windows, selling narcotics in
Norristown . . . heroin and crack cocaine - - and that he was
armed with a firearm.” [Officer] Robinson, a member of the
Norristown Police Department since 2004, and the
Montgomery, County Drug Task Force since 2007, has
extensive training in and experience with drug trafficking.
[Officer] Robinson had worked with this CI for
approximately two (2) years, during which time the CI had
provided information to him which, as of the date of the
suppression hearing, resulted in six (6) narcotics convictions
and firearm violations with several more cases pending. . . .
While conducting surveillance from his unmarked vehicle,
[Officer] Robinson initially observed a blue Chevy Cruze,
bearing PA registration KXE-4603, with heavily tinted
windows, parked with its engine running on the east side of
Noble Street in the 200 block. [Officer] Robinson further
observed that, with the exception of the front windshield,
the vehicle had dark tint on all of its windows, obscuring its
interior from view, which [Officer] Robinson deemed from
his training and experience to be a violation of the Motor
Vehicle Code.
While surveilling the vehicle, [Officer] Robinson saw a
male exit the front driver’s seat of the vehicle, switch places
with a female front passenger, at which point the vehicle
now operated by the female drove north on Noble Street.
Having determined that the vehicle’s color, make, model,
heavily tinted windows, male occupant, and location were
consistent with the information previously provided by the
CI as a vehicle involved in drug trafficking in Norristown,
[Officer] Robinson radioed [Officers] Keenan and Fritchman
[ ] the vehicle’s location, its northbound travel on Noble
Street and that it matched information received
approximately one week earlier from the CI as the vehicle
involved in heroin and crack cocaine sales and associated
with a male armed with a gun.
[Officer] Keenan observed the vehicle’s heavily tinted
windows, which despite broad daylight prevented him from
identifying either the driver or the passenger, or seeing the
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vehicle’s interior clearly, and he likewise concluded the tint
to be illegal. In addition to directing them to the vehicle’s
location, [Officer] Keenan testified that [Officer] Robinson
specifically alerted [Officers] Keenan and Fritchman that the
vehicle matched the description [Officer] Robinson had
“received[, that] an individual by the nickname of Q-Blizz
was traveling in that vehicle doing narcotics sales in
Norristown and carrying a firearm.” Based on [Officer]
Keenan’s observation of the illegal tint, [Officers] Keenan
and Fritchman initiated a traffic stop of the vehicle at West
Main and Pearl Streets. As the vehicle pulled over, [Officer]
Keenan, who also had extensive narcotics investigative
training, observed the outline of the vehicle’s front
passenger, later identified as [Johnson], bending forward
and reaching around the interior of the vehicle. . . .
Trial Ct. Op., 8/3/21, at 1-3 (footnotes omitted).
Officers found “142 pre-packaged blue wax paper bags filled with an off
white powder consistent with heroin[,] approximately 57 clear wax paper bags
filled with a rock like substance consistent with crack cocaine[,] one yellow
packet filled with white powdered cocaine[,]” and a “.40 caliber handgun”
inside of the car. Affidavit of Probable Cause, 2/26/19, at 7. The traffic stop
resulted in officers arresting Johnson and the Commonwealth charging him
with several crimes including persons not to possess firearms. Johnson filed
a Pre-Trial Motion to Suppress, claiming that the stop was unreasonable. The
trial court denied the motion to suppress, concluding that the stop was
reasonable based on the officers’ “observation of the vehicle’s heavily tinted
windows, which they reasonably believed to be in violation of the Motor Vehicle
Code[.]” Order Sur: Suppression, 1/22/20, at 8. The court also opined that
the CI’s information gave officers reasonable suspicion to stop the vehicle.
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Id. Johnson proceeded by way of a stipulated trial and the court found him
guilty of the firearms charge. The trial court sentenced Johnson to 6 to 12
years’ incarceration and this timely appeal followed.
Johnson raises one issue before this Court: “Whether the trial court
erred in denying [Johnson’s] Motion to Suppress Evidence which challenged
the lawfulness of a vehicle stop in which [Johnson] was a passenger? [1]”
Johnson’s Brief at 4.
When reviewing the denial of a motion to suppress, we must determine
whether the trial court’s factual findings are supported by the record.
Commonwealth v. Wright, 224 A.3d 1104, 1108 (Pa. Super. 2019), appeal
denied, 237 A.3d 393 (Pa. 2020) (citation omitted). We are bound by the
factual findings of the court that are supported by the record but our scope of
review of its legal conclusions is plenary. Id. (citation omitted). “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.” Id. (citation omitted). We limit our review of the record to that of
the suppression hearing. In re L.J., 79 A.3d 1073, 1085 (Pa. 2013) (it is
“inappropriate” to consider evidence outside of the suppression record on
suppression issues).
____________________________________________
1 We note Officer Robinson witnessed Johnson “exit the front drivers[’] seat
of the vehicle and get into the front passenger seat” before the vehicle left
the area of Noble and West Lafayette Streets. Affidavit of Probable Cause at
6.
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Johnson argues the factual findings of the court, that the officers’ stop
was supported by probable cause and reasonable suspicion, are not supported
by the record. See Johnson’s Brief at 9. Specifically, he challenges the court’s
factual finding that officers were not able to see into his vehicle. Id. Johnson
maintains that the testimony of Officer Keenan showed that he could “see the
general outline of someone in the passenger seat ‘moving forward[ ]’” despite
the vehicle’s tint. Id. Johnson maintains that because officers could see into
the vehicle, they did not have probable cause to stop the vehicle. See id.
To support his argument, Johnson compares this incident to a vehicle
stop in Commonwealth v. Brubaker, 5 A.3d 261 (Pa. Super. 2010). In
Brubaker, the officer initiated a traffic stop for a violation of 75 Pa.C.S. §
4524(e), relating to illegal tint on vehicle windows. The officer in Brubaker
testified the defendant’s car did not have “the darkest [tint] that [he had] ever
tested,” that it was a “mid-range window tint,” that he could “see figures in
the vehicle[,]” and he “could see there was a driver.” Brubaker, 5 A.3d at
263. The officer further admitted that during “daylight conditions[,]” he could
“see and view [the] inside of the vehicle through the windshield, side windows,
and side wings[.]” Id. The officer’s concern was that “during nighttime
conditions[,] seeing inside of the vehicle may not have been as advantageous
as it was during[ ] the afternoon” when he observed the vehicle. Id.
Section 4524(e) of the Motor Vehicle Code addresses illegal tint and
reads in part: “No person shall drive any motor vehicle with any sun screening
device or other material which does not permit a person to see or view the
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inside of the vehicle through the windshield, side wing or side window of the
vehicle.” 75 Pa.C.S.A. § 4524(e)(1). “Pennsylvania law makes clear that a
police officer has probable cause to stop a motor vehicle if the officer observes
a traffic code violation, even if it is a minor offense.” Commonwealth v.
Harris, 176 A.3d 1009, 1019 (Pa. Super. 2017) (citation omitted). An officer
has probable cause to initiate a traffic stop of a vehicle under Section 4524(e)
where there is testimony of an inability to see inside the vehicle due to the
tint on the windows of the vehicle. See Commonwealth v. Randolph, 151
A.3d 170, 176 (Pa.Super. 2016) (appellant could not challenge a traffic stop
due to his tinted windows violating the traffic code).
Here, Johnson mischaracterizes the testimony of Officer Keenan. Unlike
the officer in Brubaker, Officer Keenan testified that he “could not clearly see
inside the vehicle.” N.T., Hearing on Motion to Suppress, 11/26/19, at 24.
He “could not clearly see specific hands; [but] could just see outlines or
shapes[.]” Id. He was not able to determine whether the occupants of the
vehicle were male or female. Id. Thus, while he did testify that he “saw
movement in the vehicle,” he maintained that he could not clearly see into the
vehicle. Id. at 28. Furthermore, Officer Robinson testified that when he
initially observed the vehicle, he could not see inside the car. Id. at 13-14.
Both officers averred that they observed the vehicle in “broad daylight” and,
again unlike the officer in Brubaker, still could not see inside the vehicle due
to its “heavy tint.” Id. at 12, 20, 25. Moreover, the officer in Brubaker
testified that he could see into the vehicle “through the windshield, side
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windows, and side wings” whereas here, neither officer could clearly see into
Johnson’s vehicle. Brubaker, 5 A.3d at 263. Therefore, the trial court’s
factual finding, that there was probable cause to conduct the stop, is
supported by the record.
Johnson also raises the argument that the trial court erred in concluding
that officers had reasonable suspicion to stop the vehicle based on the
information provided by the CI. See Johnson’s Brief at 11. He alleges that
“the absence of any articulable facts from which police could conclude that
[Johnson] was engaged in criminal activity at the time of the stop, is fatal to
the Commonwealth’s case.” Id. at 13 (emphasis omitted). Thus, he argues
that the information provided by the CI “did not give officers any reason[ ] to
believe that drugs were in the vehicle at the time the information was
provided, let alone [10] days thereafter.” Id. Johnson likens this case to
Commonwealth v. Wilson, 622 A.2d 293 (Pa. Super. 1993). In Wilson,
this Court concluded reasonable suspicion was lacking due to “the failure of
the [CI] to provide the police with any ‘time-frame’ within which these
activities allegedly were committed by the defendant.” Wilson, 622 A.2d at
296 (emphasis omitted).
Because we conclude the trial court’s probable cause determination is
supported by the record, we need not address Johnson’s argument regarding
reasonable suspicion. The heavy tint on Johnson’s vehicle that prevented
officers from being able to see inside gave officers probable cause to initiate
the traffic stop.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2022
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