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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
NUNZIO MATTERA :
:
Appellant : No. 550 EDA 2022
Appeal from the Judgment of Sentence Entered January 24, 2022
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000642-2021
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED MAY 18, 2023
Appellant, Nunzio Mattera, appeals from the judgment of sentence
entered by the Delaware County Court of Common Pleas on January 24, 2022,
following his conviction for Firearms Not to be Carried Without a License.1
Appellant challenges the trial court’s denial of his motion to suppress physical
evidence. After careful review, we affirm the judgment of sentence.
On December 4, 2020, at approximately 8:30 AM, several police officers
arrived at Appellant’s home in response to an anonymous call claiming that a
male and female were arguing and that the male had a gun. Officers later
determined that the anonymous caller was Appellant’s adult son.
As the officers approached, Appellant exited the house. The officers
patted Appellant down and did not find any weapons on his person.
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1 18 Pa.C.S. § 6106(a)(2).
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Subsequently, officers walked Appellant down the driveway to where
Appellant’s wife stood. The trial court found that the body camera footage
revealed that Appellant admitted, during his interaction with his wife, that he
knew a firearm was inside his vehicle.
During this timeframe, officers conducted a protective sweep inside and
outside the house to determine if anyone else was at the residence. As part
of the sweep, and important to our analysis, Officer Matthew McCusker used
his flashlight to look inside the window of a Chevrolet Tahoe, parked in the
driveway and registered to Appellant. Officer McCusker observed a pistol in
the center console and informed Patrolman First Class (“PFC”) Brian Gilmore,
who was the acting supervisor.
The officers then cleared the scene and left the property. Neither
Appellant’s wife nor his son wished to press charges. After leaving Appellant’s
house, PFC Gilmore drove approximately 1,000 yards to a church parking lot,
which was not in view of Appellant’s residence. While parked, he investigated
the status of Appellant’s license to carry a concealed firearm, which he
determined had expired in October 2019. Soon thereafter, at approximately
9:02 AM, PFC Gilmore saw Appellant drive by the parking lot in the Tahoe.
PFC Gilmore followed Appellant to his place of business and activated
the patrol car’s lights and siren as Appellant parked behind the building. With
weapons drawn, officers instructed Appellant to exit the car and handcuffed
him. PFC Gilmore then observed a firearm in the vehicle’s center console,
where Officer McCusker had seen it when the car was parked at the residence.
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After removing the firearm from the vehicle, PFC Gilmore determined that it
was loaded.
The Commonwealth charged Appellant with Firearms Not to be Carried
Without a License, which applies to “[a] person who is otherwise eligible to
possess a valid license under this chapter but carries a firearm in any
vehicle . . .without a valid and lawfully issued license[.]”2
Appellant filed an Omnibus Pretrial Motion, on May 3, 2021, in which he
sought, inter alia, to suppress the firearm. The court held a suppression
hearing on July 26, 2021, at which PFC Gilmore and Officer McCusker testified
and the Commonwealth presented body and dash camera video. On
September 22, 2021, the trial court denied Appellant’s motion to suppress the
firearm. On January 24, 2022, the trial court conducted a stipulated bench
trial and found Appellant guilty of Firearms Not to Be Carried Without a
License. The court sentenced him to two years of probation.
On February 14, 2022, Appellant filed both his notice of appeal and his
Pa.R.A.P. 1925(b) Statement of Matters Complained of on Appeal.3 The trial
court entered an order on June 24, 2022, providing findings of fact and
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2 18 Pa.C.S. § 6106(a)(2).
3 Appellant’s Notice of Appeal claims to appeal from the order denying
suppression. However, the appeal properly lies from the judgment of
sentence. Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa.
Super. 2001) We have corrected the case caption accordingly.
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conclusions of law related to its denial of Appellant’s Omnibus Motion to
Suppress. Several days later, the court filed its Rule 1925(a) Opinion.
Before this Court, Appellant raises the following question:
Did police officers have probable cause to believe that the
defendant was in possession of a firearm inside his vehicle prior
to placing him under arrest?
Appellant’s Br. at 2.
A.
This Court’s review of a trial court’s denial of suppression “is limited to
determining whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are correct.”
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017). While “[w]e
are bound by the suppression court’s factual findings” if supported by the
record, we review questions of law de novo. Id. In reviewing the denial of
suppression, “we may consider only the evidence of the Commonwealth and
so much of the evidence for the defense as remains uncontradicted. Our scope
of review of suppression rulings includes only the suppression hearing record
and excludes evidence elicited at trial.” Id. (internal citation omitted).
We reiterate that “[b]oth the Fourth Amendment of the United States
Constitution and Article I, Section 8 of the Pennsylvania Constitution
guarantee individuals freedom from unreasonable searches and seizures.”
Commonwealth v. McMahon, 280 A.3d 1069, 1071 (Pa. Super. 2022)
(citation omitted). A warrant stating probable cause for a search or seizure is
generally required unless one of the “few clearly delineated exceptions”
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applies, such as the automobile exception or the plain view exception. Id. at
1072.
“Probable cause exists where the facts and circumstances within the
officer’s knowledge are sufficient to warrant a person of reasonable caution in
the belief that an offense has been or is being committed.” Commonwealth
v. Clark, 735 A.2d 1248, 1252 (Pa. 1999) (citation omitted). “Probable cause
does not require certainty, but rather exists when criminality is one reasonable
inference, not necessarily even the most reasonable inference.”
Commonwealth v. Brogdon, 220 A.3d 592, 599 (Pa. Super. 2019) (citation
omitted). In considering probable cause, we look to the totality of the
circumstances. Id. Where officers are working in a team and one officer does
not hold all the information necessary to establish probable cause, courts may
consider the knowledge of other officers in the team, especially where the
officers have communicated the relevant information. Commonwealth v.
Yong, 177 A.3d 876, 888–90 (Pa. 2018).4
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4 The Supreme Court explained:
Pennsylvania adheres to the vertical approach of the collective
knowledge doctrine, which instructs that an officer with the
requisite level of suspicion may direct another officer to act in his
or her stead. However, where, as here, the arresting officer does
not have the requisite knowledge and was not directed to so act,
we hold the seizure is still constitutional where the investigating
officer with probable cause or reasonable suspicion was working
with the officer and would have inevitably and imminently ordered
that the seizure be effectuated.
Yong, 177 A.3d at 889-90.
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Turning to the plain view doctrine, courts allow “the admission of
evidence seized without a warrant when: (1) an officer views the object from
a lawful vantage point; (2) it is immediately apparent to him that the object
is incriminating; and (3) the officer has a lawful right of access to the object.”
Commonwealth v. Davis, 287 A.3d 467, 471 (Pa. Super. 2022) (emphasis
omitted). As applied in cases involving vehicles, this Court opined that “where
police officers observe incriminating-looking contraband in plain view in a
vehicle from a lawful vantage-point, the lack of advance notice and
opportunity to obtain a warrant provides the officers with a lawful right of
access to seize the object in question.” McMahon, 280 A.3d at 1074 (citation
omitted).5
B.
Appellant challenges the court’s denial of his suppression motion,
asserting that the officers did not have probable cause to stop him after he
drove past PFC Gilmore in the church parking lot, claiming that the officers
had only “an inarticulate hunch" that the firearm was still in his vehicle.
Appellant’s Br. at 9 (quoting Commonwealth v. Hayward, 756 A.2d 23, 29
(Pa. Super 2000)). Appellant asserts that “[p]rior to pulling [him] over, police
officers did not observe [him] committing any motor vehicle code violations,
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5 The Pennsylvania Supreme Court recently held that the Pennsylvania
Constitution demands that “warrantless vehicle searches require both
probable cause and exigent circumstances[.]” Commonwealth v.
Alexander, 243 A.3d 177, 207 (Pa. 2020). This Court, however, held that
Alexander did not apply to cases involving the plain view exception.
McMahon, 280 A.3d at 1073.
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nor did they know whether [he] had removed the pistol from his vehicle after
the protective sweep of his residence had been cleared.” Id. at 2.6 After
review, we conclude that the court did not err in denying suppression.
Upon considering the totality of the circumstances, the suppression
court concluded that the officers had probable cause to conclude that
Appellant “was engaged in the illegal act of concealing [a] firearm in his
vehicle off of his property.” Tr. Ct. Order, 6/24/22, at 4. The court explained
its conclusion:
[T]here was a strong probability of criminal activity for several
reasons: (1) Officer McCusker is well trained and knows how to
spot firearms; (2) [h]e found out [that Appellant] had his license
to carry concealed firearms revoked; (3) [h]e found that the car
that contained the firearm was registered to [Appellant]; and (4)
observed [Appellant’s] conversation with his wife in which he
revealed he knew the gun was in the car.
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6 Appellant tangentially questions Officer McCusker’s authority to look into the
Tahoe parked in the driveway, citing to Commonwealth v. Chesney, 196
A.3d 253 (Pa. Super. 2018). Appellant’s Br. at 9-10. In Chesney, officers
searched a vehicle after viewing a drug container through the vehicle’s
window, which was parked within the curtilage of a house. This Court reversed
the denial of suppression, concluding that the officers were not in a lawful
vantage point because the trial court had invalidated the warrant that initially
brought the officers to the residence. Chesney, 196 A.3d at 260. Appellant’s
reliance on Chesney is inapt because the instant case does not involve a
defective warrant but, instead, an unchallenged protective sweep of the
property based upon a report of a male with a firearm.
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Id. at 4.7 Based upon these facts, the court concluded that PFC Gilmore “had
probable cause to stop [Appellant].”8 Id.
After reviewing the record before the suppression court, we agree that
PFC Gilmore could reasonably infer that Appellant was carrying an unlicensed
firearm in a vehicle, in violation of Section 6106(a)(2). Specifically, Officer
McCusker observed a firearm in plain view in Appellant’s vehicle and informed
PFC Gilmore, who then determined that Appellant’s firearm license had
expired. Within minutes of making that determination, PFC Gilmore observed
Appellant drive past him in the same vehicle. Thus, PFC Gilmore had probable
cause to stop Appellant. Accordingly, we conclude that the court did not err
in denying suppression.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2023
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7 While the court misstated that Officer McCusker rather than PFC Gilmore
determined that Appellant’s license had expired, this discrepancy does not
impact our analysis.
8 The court additionally concluded that PFC Gilmore had probable cause to
arrest Appellant upon observing the firearm in the vehicle in plain view and
after determining that the firearm was loaded. Tr. Ct. Order at 4-5.
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