NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. RAY EVANS Appellant No EDA 2013 Appeal from the Judgment of Sentence February 1, 2013 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR BEFORE: GANTMAN, J., DONOHUE, J., and OLSON, J. MEMORANDUM BY GANTMAN, J.: FILED NOVEMBER 13, 2013 Appellant, Ray Evans, appeals from the judgment of sentence entered in the Northampton County Court of Common Pleas, following his jury trial conviction for possession of a controlled substance with intent to deliver ( PWID ). 1 We affirm. The relevant facts and procedural history of this appeal are as follows. This matter arises out of an incident that occurred on June 7, On the aforementioned date, Appellant was a back seat passenger in a vehicle operated by Robert Brennan ( driver ) and was parked outside of a residence located at 613 Ferry Street in the City of Easton. On that same date and time, Inspector Salvatore Crisafulli of the Easton Police Department was conducting surveillance on the residence located at 613 Ferry Street after receiving numerous complaints of suspected drug activity occurring 1 35 P.S (a)(30).

2 in said residence and further having made numerous drug arrests in the home. Inspector Crisafulli observed the vehicle in which Appellant was a passenger parked in the alley located west of the residence, and continued to observe the occupants of said vehicle going in and out of the rear of 613 Ferry Street. Inspector Crisafulli continued to observe the vehicle and watched it pull out of the alley, over a pedestrian sidewalk located at the intersection of the alleyway and Ferry Street, and then proceed onto Ferry Street without putting its blinker on. Based on the aforementioned observations and facts, Inspector Crisafulli radioed another Easton Police Department Officer to make a stop of the vehicle. Officer Arredondo then conducted a stop of the vehicle at 11 th Street and Spruce Street in the City of Easton. As Officer Arredondo approached the vehicle, he observed the driver to be visibly nervous, shaken, and heavily sweating. Upon making this observation, Officer Arredondo requested that the driver exit the vehicle, at which time he conducted a pat down search for weapons, and found a folding knife on the driver. After discovering the folding knife, Officer Arredondo asked the driver who the occupants in the vehicle were, at which time the driver stated he did not know who the occupants in the rear of the vehicle were. At this time, Inspector Crisafulli arrived on the scene of the motor vehicle stop. Inspector Crisafulli approached the passenger side of the vehicle and observed the remaining three passengers in the car. Inspector Crisafulli began interacting with the passengers and requested identification from them, which none were able to provide. 2 As none of the passengers were able to provide identification, Inspector Crisafulli engaged in further conversation with them, asking them where they were from and where they lived. Inspector Crisafulli asked Appellant what his name and address were, at which point he indicated his name was Ray Evans but [he] could not immediately provide an address where he resided. Appellant would only state that he resided on 12 th Street

3 2 The front seat passenger was found to have an outstanding bench warrant and was also arrested at the scene. Inspector Crisafulli continued to converse with Appellant and during said conversations noticed that Appellant was sweating heavily. On the day in question, the weather was in the mid-seventies and there was a noticeable light breeze. Appellant also was observed to be avoiding eye contact with Inspector Crisafulli and to be acting nervous. Eventually, Appellant stated that his address was 1142 Washington Street. Based on the aforementioned observations of Appellant s failure to provide his identification, address, his correct address, his overall nervous appearance and his unusual sweating, Inspector Crisafulli told Officer Arredondo to remove Appellant from the vehicle. When Officer Arredondo requested that Appellant exit the vehicle, he refused. Officer Arredondo again requested for Appellant to exit the vehicle, [and] he eventually complied. When Appellant exited the vehicle, both Inspector Crisafulli and Officer Arredondo observed Appellant make a movement toward his waistband, at which time Officer Arredondo reached for his waistband, felt a large bulky object, and shouted that he believed Appellant was armed with a handgun. Upon this discovery, both Inspector Crisafulli and Officer Arredondo detained Appellant in handcuffs and retrieved the object from Appellant s waistband. The object was a large package that contained a white powdery substance. A field test was performed, which resulted in a positive identification for cocaine. Upon receiving the results of the field test, Appellant was arrested. Officer Arredondo then transported Appellant to the Northampton County Prison where a second search was performed by a Corrections Officer on Appellant. Upon conducting the second search, a second bag of cocaine was found on Appellant s person, which Appellant had attempted to hide under his testicles

4 (Trial Court Opinion, filed May 29, 2013, at 1-4) (internal citations to the record and some footnotes omitted). On August 29, 2012, the Commonwealth filed a criminal information charging Appellant with one count of PWID. On September 20, 2012, Appellant filed a motion to suppress all evidence obtained following the motor vehicle stop. In it, Appellant argued the police lacked reasonable suspicion or probable cause to support the motor vehicle stop, the seizure of Appellant, and the frisk of his person. Appellant further argued that the discovery of additional contraband during the search of his person at the county prison was a product of the initial, illegal detention. The court conducted a suppression hearing on October 26, On November 5, 2012, the court denied the suppression motion. Following trial, a jury convicted Appellant of PWID. On February 1, 2013, the court sentenced Appellant to fifty-four (54) months to ten (10) years imprisonment. Appellant timely filed post-sentence motions on February 11, In the post-sentence motions, Appellant continued to argue that the court should have suppressed all evidence obtained following the motor vehicle stop. Appellant claimed that without the illegally obtained evidence, the remaining evidence would not have supported his conviction. Appellant also raised various challenges to his sentence. On March 19, 2013, the court denied the post-sentence motions. Appellant timely filed a notice of appeal on April 17, That same - 4 -

5 day, Appellant filed a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant now raises the following issues for our review: WHETHER THE [TRIAL] COURT ERRED IN DENYING THE OMNIBUS PRETRIAL MOTION TO SUPPRESS EVIDENCE SEIZED DURING THE TRAFFIC STOP AND SUBSEQUENT CUSTODIAL SEARCH OF [APPELLANT S] PERSON BECAUSE THE SEARCHES AND SEIZURES IN THIS CASE [WERE] UNCONSTITUTIONAL FOR THE FOLLOWING REASONS: A. THE POLICE LACKED SUFFICIENT LEGAL JUSTIFICATION OR AUTHORITY TO STOP AND OBTAIN THE VEHICLE; B. THE POLICE LACKED SUFFICIENT LEGAL JUSTIFICATION OR AUTHORITY TO REMOVE [APPELLANT] FROM THE CAR AND PLACE [HIM] INTO CUSTODY; C. THE POLICE LACKED SUFFICIENT LEGAL JUSTIFICATION OR AUTHORITY TO SEARCH THE PERSON AND INTIMATE AREAS OF [APPELLANT WHERE THE] CONTROLLED SUBSTANCES WERE FOUND. WHETHER, WITHOUT THE EVIDENCE THAT [SHOULD HAVE] BEEN SUPPRESSED, THE VERDICT AT TRIAL WOULD HAVE BEEN AGAINST THE SUFFICIENCY OF THE EVIDENCE. (Appellant s Brief at 6). We review the denial of a suppression motion as follows: 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

6 [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, 941 A.2d 14, (Pa.Super. 2008) (en banc) (internal citations and quotation marks omitted). On appeal, Appellant contends he was a passenger in a vehicle that stopped at a house under police surveillance. During the ensuing traffic stop, Appellant asserts the police observed nothing to indicate Appellant was engaged in criminal activity or a danger to the officers safety. Nevertheless, Appellant claims the police subjected Appellant to an investigative detention. Appellant argues he provided accurate answers to Inspector Crisafulli s questions, but the inspector was apparently offended that Appellant refused to make eye contact with him. Appellant acknowledges the police ordered him out of the car due to safety concerns, but he insists the police lacked any reasonable basis to justify the seizure and frisk of his person. Appellant also submits the discovery of additional contraband during the subsequent search at the county prison amounted to fruit of the poisonous tree. Appellant concludes the court should have granted his motion to suppress all evidence obtained as a result of the illegal seizure and frisk. Appellant further concludes that once this Court corrects the error of the [suppression - 6 -

7 court] the balance of the evidence is insufficient to support his PWID conviction. (Appellant s Brief at 14). We disagree. Contacts between the police and citizenry fall within three general classifications: The first [level of interaction] is a mere encounter (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. The second, an investigative detention must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally an arrest or custodial detention must be supported by probable cause. Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011), appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (quoting Commonwealth v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal denied, 583 Pa. 668, 876 A.2d 392 (2005)). Police must have reasonable suspicion that a person seized is engaged in unlawful activity before subjecting that person to an investigative detention. Commonwealth v. Cottman, 764 A.2d 595 (Pa.Super. 2000). To determine if an interaction rises to the level of an investigative detention, the court must examine all the circumstances and determine whether police action would have made a reasonable person believe he was not free to go and was subject to the officer s orders. Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005) (quoting Commonwealth v. Stevenson, 832 A.2d 1123, 1127 (Pa.Super. 2003))

8 A forcible stop of a motor vehicle by a police officer constitutes a seizure of a driver and the occupants; this seizure triggers the protections of the Fourth Amendment. An officer is permitted to stop a motor vehicle to investigate a vehicle code violation which he observed. Commonwealth v. Campbell, 862 A.2d 659, 663 (Pa.Super. 2004), appeal denied, 584 Pa. 699, 882 A.2d 1004 (2005). In addition to the documentation that the police are permitted to obtain from the driver, during a routine traffic stop, a police officer may request a driver to step out of the vehicle as a matter of course. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); Commonwealth v. Lopez, 609 A.2d 177 ([Pa.Super.] 1992). In Maryland v. Wilson, 519 U.S. 408, 414, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), the Court extended this rule to passengers in a stopped vehicle. The Supreme Court found that the interest in officer safety outweighs the minor intrusion on passengers who are already stopped by virtue of the stop of the vehicle. Id.; see also Commonwealth v. Brown, 654 A.2d 1096, 1102 ([Pa.Super.] 1995), appeal denied, 544 Pa. 642, 664 A.2d 972 (1995) ([stating] police officer may request drivers and their passengers to alight from lawfully stopped vehicles regardless of whether the police officer has a reasonable suspicion that criminal activity is afoot). Id. at (internal footnote omitted). If, during the course of a valid investigatory stop, an officer observes unusual and suspicious conduct on the part of the individual which leads him to reasonably believe that the suspect may be armed and dangerous, the officer may conduct a pat-down of the suspect s outer garments for - 8 -

9 weapons. Commonwealth v. Preacher, 827 A.2d 1235, 1239 (Pa.Super. 2003). In order to justify a frisk under [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] the officer must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Such a frisk, permitted without a warrant and on the basis of reasonable suspicion less than probable cause, must always be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby. Id. (quoting Commonwealth v. E.M., 558 Pa. 16, 25-26, 735 A.2d 654, 659 (1999)) (emphasis in original) (internal quotation marks omitted). The existence of reasonable suspicion to frisk an individual must be judged in light of the totality of the circumstances confronting the police officer. Commonwealth v. Cooper, 994 A.2d 589, (Pa.Super. 2010), appeal denied, 608 Pa. 660, 13 A.3d 474 (2010) (quoting Commonwealth v. Taylor, 565 Pa. 140, 153, 771 A.2d 1261, 1269 (2001)). Additionally, any assessment of the sufficiency of the evidence is not based on a diminished record; if the fact-finder was allowed to consider improperly admitted evidence, its subsequent deletion does not justify a finding of insufficient evidence. The remedy in such a case is the grant of a new trial. Commonwealth v. Sanford, 580 Pa. 604, 609, 863 A.2d 428, 432 (2004) (quoting Commonwealth v. Smith, 523 Pa. 577, 582, 568 A.2d 600, 603 (1989)). Instantly, the Commonwealth presented Inspector Crisafulli, who said - 9 -

10 that he observed a blue Saturn sedan park in an alley adjacent to the residence at 613 Ferry Street. At the time, Inspector Crisafulli was conducting surveillance due to reports of drug activity at the residence. 2 Inspector Crisafulli watched as the occupants of the Saturn went in and out of the rear entrance of the residence. After a short period, the occupants reentered the Saturn, departed from the alley, and turned onto Ferry Street. Significantly, the Saturn did not stop before crossing over a sidewalk that separated the alley from the street. The Saturn also failed to use a turn signal. Inspector Crisafulli recognized that the Saturn had committed two Motor Vehicle Code violations, so he radioed Officer Arredondo to effectuate a traffic stop on that basis. 3 See 75 Pa.C.S.A (stating no person shall turn vehicle or enter traffic stream from parked position without giving appropriate signal); 75 Pa.C.S.A (stating driver of vehicle emerging from alley within urban district shall stop vehicle immediately prior to driving onto sidewalk area extending across alley or, if there is no sidewalk area, shall stop at point nearest street to be entered where driver has view of approaching traffic). 2 Inspector Crisafulli made numerous drug arrests at 613 Ferry Street, including an arrest on the morning before the surveillance operation. (See N.T. Suppression Hearing, 10/26/12, at 6.) 3 In his statement of questions presented, Appellant appears to challenge whether the police had a legal basis to conduct the traffic stop. The argument section of the brief, however, concedes Inspector Crisafulli witnessed two minor traffic violations. (See Appellant s Brief at 12.)

11 Officer Arredondo stopped the Saturn near the intersection of 11 th and Spruce Streets. Inspector Crisafulli arrived at the scene shortly thereafter. Officer Arredondo approached the driver s side, and Inspector Crisafulli approached the passenger s side. The Saturn had four occupants. Appellant was seated in the rear of the vehicle, directly behind the driver. Officer Arredondo spoke with the driver, who was sweating heavily, shaking, and stuttering. Officer Arredondo ordered the driver out of the vehicle, conducted a pat down search, and recovered a folding knife from the driver s pocket. Officer Arredondo continued to question the driver, asking him for the names of his passengers. The driver informed the officer that the driver did not know the passengers. At the same time, Inspector Crisafulli questioned the passengers. Initially, none of the passengers could produce identification. Consequently, Inspector Crisafulli asked Appellant for his name and address. Appellant did not immediately provide an exact address, stating instead that he lived on 12 th Street. Appellant appeared nervous and was sweating, despite the mild temperature. Appellant also avoided eye contact during the conversation. Ultimately, Appellant provided Inspector Crisafulli with an address on the 1100 block of Washington Street. Nevertheless, Inspector Crisafulli s observations caused him to request that Officer Arredondo remove Appellant from the vehicle

12 Officer Arredondo asked Appellant to step out of the Saturn, but Appellant refused the officer s first request. Officer Arredondo repeated the request, and Appellant complied. While exiting, Appellant reached for his waistband with his left hand. Officer Arredondo noticed a large bulky object protruding from [Appellant s] shirt and his waistline. (See N.T. Suppression Hearing at 33.) Officer Arredondo recounted what happened next as follows: I immediately grabbed his arm and placed my hand on the object. I felt it to be a hard bulky object. At that time he was still in the process of exiting the car. It happened very swiftly. I summoned Inspector Crisafulli, advised him [that] there may have been a weapon, may have been a handgun, as it felt about the approximate size of a small or medium size handgun. At that time Inspector Crisafulli came around from the passenger side of the vehicle to the driver s side and assisted me with ultimately detaining [Appellant] in handcuffs. (Id. at 33-34). Officer Arredondo eventually retrieved the object, which was a package of crack cocaine. The officers testimony revealed their concerns over ensuring their safety throughout the course of an ongoing traffic stop. See Campbell, supra; Brown, supra. Their concern was justified, because the occupants of the vehicle outnumbered the officers, and the stop involved a vehicle that had departed from a residence known for drug trafficking. Further, the officers ordered Appellant out of the vehicle only after Officer Arredondo had already recovered a weapon from the driver. The officers also noticed

13 Appellant s nervous demeanor. When Officer Arredondo ordered Appellant to exit, Appellant did not immediately comply. When Appellant finally did exit the vehicle, he reached for a large bulky object protruding from his waistband. Under the totality of these circumstances, the officers reasonably believed that Appellant was armed. See Cooper, supra. See also E.M., supra (holding officer possessed reasonable suspicion to frisk defendant where officer noticed bulge in defendant s front pocket, which was characteristic of firearm). Therefore, Officer Arredondo conducted a legal frisk to check for the presence of a firearm. Based upon the foregoing, we conclude the officers legally ordered Appellant to exit the vehicle during a valid traffic stop. The police contemporaneously developed reasonable suspicion to justify a Terry frisk of Appellant. See Preacher, supra. Thus, the record supports the court s denial of Appellant s suppression motion. See Williams, supra. Moreover, we decline to consider any aspect of Appellant s sufficiency claim as presented because it is improperly based on a diminished record. See Sanford, supra. Accordingly, we affirm the judgment of sentence. Judgment of sentence affirmed. *JUDGE DONOHUE CONCURS IN THE RESULT

14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/13/