Opinion
J. S42043/15 No. 3414 EDA 2014
07-31-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. DAMEON MEEKS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 10, 2014
In the Court of Common Pleas of Chester County
Criminal Division No(s).: CP-15-CR-0004364-2013
BEFORE: SHOGAN, MUNDY, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Dameon Meeks, appeals from the judgment of sentence entered in the Chester County Court of Common Pleas. Appellant contends that the trial court erred in denying his motion to suppress physical evidence, because the officer lacked reasonable suspicion to conduct a pat down. We affirm.
Appellant purports to appeal from the order entered on August 18, 2014, denying his Omnibus Pretrial Motion to Suppress. "[A] direct appeal in a criminal proceeding lies from the judgment of sentence." Commonwealth v. W.H.M., Jr., 932 A.2d 155, 158 n.1 (Pa. Super. 2007). We have amended the caption accordingly.
We adopt the facts set forth in the trial court's opinion. Trial Ct. Op., 8/18/14, at 1-4. On December 21, 2013, Appellant was arrested and charged with one count of persons not to possess, use, manufacture, control, sell or transfer firearms, one count of firearms not to be carried without a license, and one count of receiving stolen property. Appellant filed a timely motion to suppress on May 27, 2014. The trial court denied the motion on August 18, 2014.
We note that at trial, the Commonwealth admitted into evidence video footage of the traffic stop from the officer's motor vehicle recorder.
On November 10, 2014, following a stipulated facts trial, a jury found Appellant guilty on all counts. The court sentenced him to 42 to 120 months' imprisonment. This timely appeal followed. Appellant filed a timely court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial court adopted its August 18th memorandum opinion denying Appellant's motion to suppress as its Pa.R.A.P. 1925(a) opinion.
Appellant raises the following issue for our review:
Whether the trial court erred in denying the motion for suppression of physical evidence when it found that Corporal [Jonathan] Shave had sufficient reasonable suspicion to conduct a pat-down of [Appellant].Appellant's Brief at 4.
Appellant avers that Corporal Shave violated his Fourth Amendment and Pennsylvania Constitutional rights against unreasonable search and seizure when he conducted a pat down because he lacked an "articulable basis to believe that criminal activity was afoot nor did the officer reasonably fear for his safety." Id. at 9. Appellant contends "Corporal Shave failed to articulate any facts or basis to support a reasonable suspicion that criminal activity was afoot during the traffic stop in question." Id. at 10. Appellant also claims Corporal Shave lacked reasonable suspicion because he "testified that he already decided to pat down [Appellant] prior to asking [Appellant] to step out of the car." Id. at 11 (citation omitted). Appellant further states that an officer's observation of an individual's nervousness and furtive gestures, without more, establishes merely a hunch, citing Commonwealth v. Reppert , 814 A.2d 1196, 1206 (Pa. Super. 2002). Id.
Our review is governed by the following principles.
Our standard of review in addressing a challenge to the denial of a suppression motion 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 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, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous.
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. Ranson , 103 A.3d 73, 76 (Pa. Super. 2014) (some citations omitted).
Moreover, appellate courts are limited to reviewing only the evidence presented at the suppression hearing when examining a ruling on a pre-trial motion to suppress. See In re L.J., [ ] 79 A.3d 1073, 1083-1087 (2013).
"[F]ollowing a lawful traffic stop, an officer may order both the driver and passengers of a vehicle to exit until the traffic stop is completed, even absent a reasonable suspicion that criminal activity is afoot." Commonwealth v. Pratt , 930 A.2d 561, 564 (Pa. Super. 2007). Our Supreme Court has defined reasonable suspicion as "a less stringent standard than probable cause necessary to effectuate a warrantless arrest, and depends on the information possessed by police and its degree of reliability in the totality of the circumstances." Commonwealth v. Holmes , 14 A.3d 89, 95 (Pa. 2011).
In Commonwealth v. Simmons , 17 A.3d 399 (Pa. Super. 2011), this Court opined:
[T]he Terry "stop and frisk," permits a police officer to briefly detain a citizen for investigatory purposes if the officer "observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot." Commonwealth v. Fitzpatrick , 666 A.2d 323, 325 (1993); Terry v. Ohio , 392 U.S. 1, 30 (1968).Simmons , 17 A.3d at 403 (some citations omitted). Furthermore,
Terry further held that "[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others" the officer may conduct a pat down search "to determine whether the person is in fact carrying a weapon." Terry , 392 U.S. at 24. "The purpose of this limited search is not to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence."
In order to conduct an investigatory stop, the police must have reasonable suspicion that criminal activity is afoot. Terry , 392 U.S. at 30. In order to determine whether the police had reasonable suspicion, the totality of the circumstances—the whole picture—must be considered. "Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." To conduct a pat down for weapons, a limited search or "frisk" of the suspect, the officer must reasonably believe that his safety or the safety of others is threatened.
whether the defendant was located in a high crime area similarly supports the existence of reasonable suspicion. [I]f a suspect engages in hand movements that police know, based on their experience, are associated with the secreting of a weapon, those movements will buttress the legitimacy of a protective weapons search of the location where the hand movements occurred.Commonwealth v. Foglia , 979 A.2d 357, 361 (Pa. Super. 2009) (en banc) (citations omitted).
This Court in Foglia rejected the defendant's argument that the officer
was not permitted to rely upon the fact that [the defendant] grabbed his waistband in assessing whether reasonable suspicion existed because [the officer] indicated at the suppression hearing that he intended to stop [the defendant] before he observed that behavior. However, reasonable suspicion is based upon anId. at 361 (emphasis added).
objective standard, not subjective intent. As the United States Supreme Court noted in Maryland v. Macon , 472 U.S. 463, 470-471, [ ] (1985), "Whether a Fourth Amendment violation has occurred 'turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,' Scott v. United States , 436 U.S. 128, 136 [ ], and not on the officer's actual state of mind at the time the challenged action was taken.
In Commonwealth v. Parker , 957 A.2d 311 (Pa. Super. 2008), an officer "pulled [the defendant] over because he noticed that the vehicle had a malfunctioning right brake light" and he observed the defendant "reach down, dipping his shoulders right and left". Id. at 313. "This movement caused the officer to believe that the [defendant] might be concealing a weapon." Id. This Court opined:
Examining the totality of the circumstances, the suspicious gestures and movements of [the defendant] could have caused the officer to reasonably conclude, in light of his experience, that [the defendant] was armed and dangerous. We "must be guided by common sense concerns that give preference to the safety of the police officer during an encounter with a suspect where circumstances indicate that the suspect may have, or may be reaching for, a weapon." Accordingly, the police officer did not unlawfully search [the defendant].Id. at 316 (citation omitted).
Instantly, Appellant's reliance on Reppert is unavailing. In Simmons , this Court opined:
Reppert did not hold that furtive movements are irrelevant to the totality of the circumstances test set forth in Terry. When properly understood, Reppert stands forSimmons , 17 A.3d at 405.
the proposition that pre-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.
Instantly, the trial court opined:
At bar, the totality of the circumstances including the location of the search in a high crime area, the nervousness of the driver, the furtive movements of the passengers and the violent history of the front seat passenger, led Corporal Shave to reasonably believe that his safety was in danger, thereby warranting a pat down of [Appellant]. . . . Corporal Shave was concerned for his safety in this area because the police are regularly called there to investigate drug crimes as well as violent crimes such as shootings and assaults.Trial Ct. Op. at 8-9, 10-11, 12-13 (citations omitted).
When Corporal Shave first began following the green Chevrolet, he noticed "a lot of movement" inside the car. . . . Corporal Shave observed [Appellant] hunched over in the back seat of the vehicle reaching for the floor. Corporal Shave's vehicle contained a motor vehicle recorder (MVR) wherein he captured the vehicle stop on video. The video from the MVR shows [Appellant] slide from the center of the back seat to the right passenger seat numerous times. These movements by the vehicle passengers concerned Corporal Shave to the point where he believed there was something in the car that could hurt him and called for back-up. . . .
* * *
The front seat passenger in the vehicle also concerned Corporal Shave, leading him to believe that his safety may be in danger. Upon approaching the vehicle, Corporal Shave immediately observed Davon Brown in the front passenger seat. Corporal Shave knew Davon Brown to be
a violent person, most recently being arrested for armed robbery. . . .
Finally, the fact that [Appellant] reached for his waistband upon exiting the vehicle supports Corporal Shave's suspicion that [Appellant] was attempting to conceal a weapon. Corporal Shave, upon lawfully stopping the vehicle, had the authority to ask [Appellant] to exit the vehicle. Upon exiting the vehicle, [Appellant] began hitting his stomach area of his waistband. This immediately alerted Corporal Shave that he may be attempting to conceal something, specifically a weapon. . . .
[Appellant's] argument that Corporal Shave intended to pat him down before he exited the vehicle is without merit. Reasonable suspicion to conduct a pat down search is based upon an objective standard, not subjective intent. . . . Corporal Shave conducted the vehicle stop in a high crime area and had observed furtive movements by [Appellant] as well as Davon Brown leading him to believe that there was something inside the vehicle that could very well harm him. [Appellant] then engaged in hand movements suggesting that he was attempting to conceal a weapon. . . .
* * *
The combination of a nervous driver, furtive movements, the presence of a passenger that had been previously arrested for violent crimes and a traffic stop that took place in a high crime area, provide reasonable suspicion to conduct a pat down of [Appellant].
Because the uncontradicted record supports the factual determinations of the trial court and we discern no error of law, we affirm the denial of the motion to suppress. See Ranson , 103 A.3d at 76. We hold the officer had the requisite level of reasonable suspicion to conduct a pat down of Appellant. See Simmons , 17 A.3d at 405; Foglia , 979 A.2d at 361; Parker , 957 A.2d at 316. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2015
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