COMMONWEALTH OF PENNSYLVANIA v. WILLIAM MOORE, III
No. 477 WDA 2020
IN THE SUPERIOR COURT OF PENNSYLVANIA
OCTOBER 12, 2021
2021 PA Super 202
BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.*
Appeal from the Judgment of Sentence Entered March 10, 2020 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000599-2019
OPINION BY COLINS, J.:
FILED: OCTOBER 12,
Appellant, William Moore III, appeals from the judgment of sentence imposed after his convictions at a stipulated bench trial for: persons not to possess, use, manufacture, control, sell or transfer firearms; firearms not to be carried without a license; use of or possession with intent to use drug paraphernalia; and possessing instruments of crime (“PIC”).1 After careful review, we vacate Appellant‘s PIC conviction and affirm the judgment of sentence in all other respects.2
* Retired Senior Judge assigned to the Superior Court.
The trial court set forth the following factual background:
Agent Richard Castagna testified that he was conducting mobile surveillance on November 27, 2018 near Farnsworth Avenue and Miller Avenue in the City of Clairton due to a recent rash of shooting incidents and drug complaints. At the time of [Appellant]‘s arrest, Agent Castagna was a detective for the City of Clairton Police Department. At the time of trial, Agent Castagna was a narcotics agent for the Pennsylvania Attorney General‘s Office. While he was conducting surveillance, he observed a black automobile driving up Miller Avenue and turn onto Farnsworth Avenue without its turn signal activated. Agent Castagna then initiated a traffic stop of the vehicle on Madison Avenue. Prior to actually stopping the vehicle, Agent Castagna observed [Appellant] place a backpack (later described as a blue Kenneth Cole Reaction bookbag) behind the driver‘s seat. Agent Castagna approached the passenger side of the vehicle and Officer Tallie3 approached the driver‘s side. Both law enforcement officers smelled a strong odor of marijuana emanating from the vehicle. Both occupants of the vehicle were removed from the vehicle and patted down for officers’ safety. The driver, Kelsey Gori, was cooperative and admitted that she had
been smoking marijuana. She removed a baggie of marijuana from her bra and gave it to Officer Tallie. The passenger in the vehicle was [Appellant]. Upon being removed from the vehicle and being patted down, [Appellant] refused to identify himself. The officers began searching the vehicle. The officers also observed marijuana “roaches,” or burnt marijuana cigarettes, in the vehicle. Soon, [Appellant]‘s mother and brother arrived on the scene of the traffic stop. [Appellant] started to walk away from the site of the traffic stop. He was ordered not to leave. [Appellant] became irate and began yelling at the police officers that they could not search his backpack. He told the officers at least three times that they could not search the backpack. [Appellant]‘s mother also yelled at the police officers that they could not search the backpack. [Appellant]‘s mother was also detained at the scene. As the officers approached the backpack, [Appellant] left the scene of the traffic stop and entered a residence [on] Madison Avenue. Officer Tallie then searched the backpack. Inside the backpack was a .45 caliber Springfield Armory pistol, marijuana, ammunition, . . . and ripped baggies used for drug sales.
Trial Court Opinion, 7/15/20, at 1-3. The trial court also concluded that the backpack contained “a knife with a 14-inch blade[.]” Id. at 3.
Appellant filed a motion to suppress, and on July 18, 2019, the trial court conducted a hearing on the suppression motion. After accepting briefs and hearing additional oral argument, the trial court denied Appellant‘s suppression motion on October 16, 2019. The trial court concluded that officers had prоbable cause to search Ms. Gori‘s vehicle because “Agent Castagna and Officer Tallie both smelled marijuana emanating from the vehicle[,] observed ‘roaches’ of marijuana in the vehicle[,]” and had taken possession of marijuana from Ms. Gori that she had concealed on her person. Trial Court Opinion, 7/15/20, at 5. The trial court further determined that the probable cause to search the vehicle also authorized the search of Appellant‘s backpack within the car, but that, in any event, there existed independent probable cause to search the bag based upon Appellant‘s actions at the scene, including his uncooperativeness and demands that the bag not be searched. Id.
Appellant proceeded to a stipulated bench trial, where he was convicted of the aforementioned charges.4 On March 10, 2020, the trial court sentenced Appellant to a 5 to 10 year term of imprisonment, followed by 3 years of probation, on the persons not to possess, use, manufacture, control, sell or transfer firearms charge. No further punishment was imposed on his remaining convictions. Appellant then filed a timely notice of appeal.5
Appellant now presents the following issues for our review:
- Did the trial court err in denying the suppression motion because police did not have probable cause or exigent circumstances to conduct a warrantless search of the car and the closed backpack in the back seat of the car?
- Was the evidence . . . insufficient to sustain the conviction for [PIC], as the Commonwealth did not prove, beyond a reasonable doubt, that there was a knife in the backpack or that [Appellant] had an intent to use a knife criminally?
Appellant first challenges the denial of his suppression motion.
In reviewing the denial of a suppression motion, our role is to determine 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, we are bound by these findings and may reverse only if the court‘s legal conclusions are erroneous. Where, as here, 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 lаw of the [trial court] are subject to our plenary review.
Commonwealth v. Yim, 195 A.3d 922, 926 (Pa. Super. 2018) (citations and internal brackets omitted). Furthermore, our scope of review from a suppression ruling is limited to the evidentiary record created at the suppression hearing. Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa. 2018).
Prior to addressing Appellant‘s arguments on the merits of the trial court‘s suppression ruling, we first address the Commonwealth‘s contention that Appellant has waived any potential claim under the new rule applicable to automobile searches announced by our Supreme Court in Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020). Alexander was decided during the pendency of this appeal and overruled the Court‘s prior ruling in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), which had held that the search-and-seizure provision of
In Alexander, our Supreme Court concluded that the
The Commonwealth argues thаt Appellant cannot claim that the search of his backpack found within Ms. Gori‘s vehicle was constitutionally infirm under Alexander as he did not raise the issue in the
“Issues not raised in the trial court are waived and cannot be raised for the first time on appeal.”
Where a new principle of law is adopted while a case is pending on direct appeal, an appellant may be entitled to the retroactive application of the new rule so long as the issue was properly preserved for the reviewing court. Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc).
[W]here an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.
Id. (quoting Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983)) (emphasis omitted); see also Commonwealth v. Hays, 218 A.3d 1260, 1266-67 (Pa. 2019) (reaffirming Cabeza and rejecting proposed rule that an argument pertaining to a new rule adopted during the pendency of a direct appeal is preserved if timely raised at the first opportunity after the adoption of the rule).
Upon review, we agree with the Commonwealth that Appellant has waived his argument under Alexander that no exigent circumstances were present to justify the warrantless search of his backpack. Appellant did reference the warrant requirement and exigent circumstances in his suppression motion, alleging that police “performed a search of the vehicle without a warrant, [p]robable [c]ause, exigent circumstances or consent.” Motion to Suppress, 5/10/19, ¶4. However, at the suppression hearing, Appellant did not raise the issue of exigent circumstances, contend that a warrant was required to search the vehicle, or argue that Gary should be overruled; instead, he confined his argument to whether the police had “establish[ed] independent probable cause to search [Appellant‘s] bag” beyond the odor of marijuana in the vehicle and Ms. Gori‘s admission that she had been smoking marijuana. N.T., 7/18/19, at 32. Although the automobile exception in Gary was mentioned several times by the trial court and the Commonwealth at the suppression hearing, at no point did Appellant‘s counsel insinuate that the Supreme Court decision was wrongly decided.
Additionally, Appellant‘s Rule 1925(b) statement wholly failed to raise either the issue of whether the Commonwealth demonstrated exigent circumstances to justify the search of Appellant‘s bag or the validity
The Trial Court erred in denying the suppression motion because the police did not have independent probable cause to conduct a warrantless search of the closed backpack in the backseat of a car in which [Appellant] was a passenger after the police accounted for the odor of marijuana by discovering roaches in the front center console and marijuana on the driver. See Commonwealth v. Scott, 210 A.3d 359 (Pa. Super. 2019). The illegal search and seizure violated [Appellant‘s] rights under
Article 1 Section 8 of the Pennsylvania Constitution and the4th Amendment to the U.S. Constitution .
1925(b) Statement, 5/29/20, ¶4.a. As Appellant did not raise an issue with respect to exigent circumstances or challenge Gary in his Rule 1925(b) statement, the trial court did not address the issue in its Rule 1925(a) opinion. See Commonwealth v. Bonnett, 239 A.3d 1096, 1106 (Pa. Super. 2020) (noting that the Rule 1925(b) statement “is a crucial component of the appellate process because it allows the trial court to identify and focus on those issues the parties plan to raise on appeal”). Appellant also did not raise an argument pertaining to exigent circumstances in his principal brief on appeal to this Court but rather first raised the issue in his reply brief, after Alexander was decided.
Therefore, aside from a brief reference to the warrant requirement and exigent circumstances in his suppression motion, Appellant did not argue to the trial court that anything more than probable cause was required to support the vehicle search. Nor did Appellant include any argument in his Rule 1925(b) statement related to exigency, the lack of a warrant for the vehicle search, or the Gary automobile exception. This case thus falls in line with Grooms, where we declined to address whether exigent circumstances existed to justify a warrantless vehicle search as the appellant “did not contest the application of the automobile exception announced in Gary” and did not “address whether exigent circumstances existed to justify the officers’ judgment that obtaining a warrant was not reasonably practicable.” 247 A.3d at 37 n.9. Instead, the appellant “simply dispute[d] the existence of probable cause itself,” id. at 37, at the trial court level and therefore, we concluded that he was limited to his probable cause argument on appeal. Id. at 37 & n.8; accord Hays, 218 A.3d at 1262, 1266-67 (holding that argument premised on Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), was waived where the defendant only challenged probable cause for vehicle stop in suppression motion and did not argue that subsequent blood draw was involuntary).
In arguing that he did not waive his argument that the police‘s search of his bag was not supported by exigent circumstances, Appellant refers us to the waiver analysis in the Alexander decision itself where this Court rejected the argument that the appellant was required to specifically argue to the suppression court that Gary should be overturned in order to preserve that issue for appeal. Appellant contends that the Alexander Court found that the question of whether Gary remained good law was preserved when the appellant cited
Accordingly, we conclude that Appellant did not preserve his argument the warrantless search of his bag was unsupported by exigent circumstances as required by Alexander. As this argument was waived, we therefore only address Appellant‘s challenge to the denial of his suppression motion related to the issue of whether the officers possessed probаble cause to search Ms. Gori‘s vehicle and his bag.
“The level of probable cause necessary for warrantless searches of automobiles is the same as that required to obtain a search warrant.” Scott, 210 A.3d at 363 (citations omitted).
Probable cause does not demand the certainty we associate with formal trials. Rather, a determination of probable cause requires only that the totality of the circumstances demonstrates a fair probability that contraband or evidence of a crime will be found in a particular place.
Id. (citation omitted). Probable cause is a practical, “fluid concept [] turning on the assessment of probabilities in particular factual contexts [and] not readily, or even usefully, reduced tо a neat set of legal rules.” Commonwealth v. Glass, 754 A.2d 655, 663 (Pa. 2000) (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)).
Appellant‘s argument that the police lacked probable cause proceeds in two parts. First, Appellant contends that the search of Ms. Gori‘s vehicle was unconstitutional under Commonwealth v. Barr, 240 A.3d 1263 (Pa. Super. 2020), appeal granted, 252 A.3d 1086 (Pa. 2021), which held that the odor of marijuana cannot establish per se probable cause to conduct a search for contraband following the General Assembly‘s 2016 enactment of the
In Barr, Pennsylvania State Police troopers pulled over a car driven by the defendant‘s wife for a Vehicle Code violation and detected the smell of burnt marijuana upon approaching the vehicle. 240 A.3d at 1269-70. The troopers announced that they intended to search the vehicle based upon the probable cause from the odor of marijuana, whereupon the defendant, who was in the passenger seat of the vehicle, presented a medical marijuana identification card to the troopers. Id. at 1270-71. After uncovering a firearm and raw marijuana, the defendant was charged with persons not to possess a firearm and marijuana possessory offenses. Id. at 1269, 1271-72.
The trial court in Barr granted the defendant‘s suppression motion, reasoning that—following the passage of the MMA—the plain smell of burnt or raw marijuana is no longer indicative of an illegal act and therefore thе troopers lacked probable cause to conduct their search of the vehicle. Id. at 1273, 1283. On appeal, this Court agreed with the trial court that the MMA altered the probable cause analysis with respect to marijuana, but disapproved of the trial court‘s determination that the odor was wholly irrelevant to a determination of probable cause. Id. at 1283-86. Instead, we explained that:
The odor of marijuana alone, absent any other circumstances, cannot provide individualized suspicion of criminal activity when hundreds of thousands of Pennsylvanians can lawfully produce that odor [following the passage of the MMA]. What it does provide to police is a general, probabilistic suspicion of criminal activity based on the fact that mоst citizens cannot legally consume marijuana. Thus, it is a factor that can contribute to a finding of probable cause, consistent with prior precedent [], assuming some other circumstances supply more individualized suspicion that the activity is criminal.
Id. at 1287; see also Grooms, 247 A.3d at 40. As the factual record was inadequate with respect to the other factual circumstances that may have contributed to the troopers’ decision to undertake the vehicle search, we remanded for further proceedings on the suppression motion to determine whether other factors in addition to the odor of marijuana established probable cause for the search. Barr, 240 A.3d at 1288-89.
Contrary to Barr, the suppression record here establishes that at the time the officеrs initiated their search of Ms. Gori‘s vehicle, the officers had probable cause to believe that the occupants of the vehicle had engaged in the unlawful consumption of marijuana. First, unlike in Barr, neither Ms. Gori nor Appellant produced a medical marijuana identification card, nor did they indicate that they were certified as patients under the MMA. Rather, upon being questioned about the odor of burnt marijuana coming from her vehicle and before any search took place, Ms. Gori admitted to having smoked marijuana in the vehicle, produced a baggie containing 2.8 grams of fresh marijuana that had been tucked inside her bra, and indicated that there were roaches present in the center console of the vehicle. N.T., 7/18/19, at 6-7, 9, 19-20, 24.
Thus, at the time Detective Castagna and Officer Tallie began their search, they were aware that Ms. Gori and potentially other individuals had recently smoked marijuana in the vehicle and remnants of the smoked marijuana were present in the
In the second part of his probable cause challenge, Appellant argues that, even if officers could look inside Ms. Gori‘s vehicle, they did not have independent probable cause to search Appellant‘s backpack within the vehicle in light of our decision in Scott. Appellant contends that, as in Scott, officers fully accounted for the smell of burnt marijuana when they found roaches in the center console and when Ms. Gori gave officers the baggie containing 2.8 grams of marijuana. Appellant asserts that officers could only proceed further in their search and open his closed backpack in the back seat if they had probable cause to believe that there was more contraband to be found in the bag. As officers articulated no reason to believe that there was contraband inside of his bag, Appellant maintains that the search was constitutionally infirm and the contents of the search must be suppressed.
In In re I.M.S., 124 A.3d 311 (Pa. Super. 2015), this Court recognized that as our Supreme Court in Gary had adopted the federal warrantless automobilе search exception, courts in this Commonwealth should also follow United States Supreme Court precedent that authorizes officers to search any container in a vehicle so long as they have probable cause to search the vehicle generally. Id. at 317 (citing Wyoming v. Houghton, 526 U.S. 295 (1999)); see also Commonwealth v. Runyan, 160 A.3d 831, 837 (Pa. Super. 2017) (under I.M.S., “if [the o]fficer [] had probable cause to search the vehicle at issue for contraband he was also permitted to search any container found therein where the contraband could be concealed, including [the defendant‘s] purse”). However, in Scott, this Court narrowed the authority of law enforcement to search a closed container within a vehicle where the potential illegal activity that afforded the officer probаble cause to engage in the search had been accounted for by contraband already collected during the vehicle search.
In Scott, officers stopped the defendant‘s vehicle for a Vehicle Code violation and, upon their approach on foot, smelled the odor of burnt marijuana and saw smoke emanating from the vehicle. 210 A.3d at 361. The officers also observed the defendant put a blunt in the center console of the vehicle. Id. The defendant was removed from the vehicle and nothing was discovered on his person when he was patted down. Id. The officers then searched the main compartment of the vehicle, discovering the blunt in the center console, a jar containing what was believed to be marijuana in the front passenger door, and a black ski mask. Id. The officers
The defendant in Scott was charged with firearm offenses and moved to suppress the search of the trunk of the vehicle, which the trial court granted. Id. at 361-62. This Court agreed with the trial court that, under the circumstances presented in that case, “the odor of burnt marijuana and small amount of contraband recovered from the passenger compartment of the vehicle did not create a fair probability that the officer could recover additional contraband in the trunk.” Id. at 365. We noted that there was no indication of the smell of fresh marijuana emanating from the trunk, and the odor of burnt marijuana was consistent with the contraband discovered in the main passenger area of the vehicle. Id. at 364. Furthermore, while the defendant did make a furtive movement towards the center console at the time of the stop, there was no indication that the defendant had attempted to, or even had the ability to, access the trunk. Id. at 365. We finally noted the omission of any testimony that the officers involved had specialized training to support the belief that additional contraband might have been present in the trunk. Id.
While we are cognizant of Scott, we conclude that the trial court did not err in finding that Appellant‘s actions here provided independent probable cause to justify the search of Appellant‘s closed backpack for contrabаnd irrespective of the marijuana already recovered at the scene. Upon being asked to exit the vehicle to be patted down, Appellant initially became “very irate” with officers, refused to identify himself, and told officers that they could not pat him down. N.T., 7/18/19, at 6, 21, 25. As the search of the vehicle was progressing, Appellant initially walked away from the traffic stop and then returned and “yell[ed]” at the officers that they could not search his bag. Id. at 7-8, 28-29. In addition, a large crowd formed around the car, among them Appellant‘s mother who also insisted that officers could not search Appellant‘s bag, leading to her being detained because she was interrupting the police investigation. Id. at 8-9. When officers began to sеarch the area of the vehicle where his bag was, Appellant retreated inside a nearby residence located at 1501 Madison Avenue despite being instructed to remain on the scene. Id. at 9, 28.
Furthermore, Detective Castagna testified that, while he was following Ms. Gori‘s vehicle prior to the traffic stop, he saw the individual in the front passenger seat—later determined to be Appellant—move the backpack from his lap or between his legs to the area behind the driver‘s seat of the vehicle. Id. at 8, 27, 29. Moreover, in contrast to Scott, Appellant‘s backpack was located in the backseat of the vehicle behind the driver‘s seat, not in an inaccessible trunk area. Accordingly, in light of the indicia that marijuana had recently been smoked in the vehiсle, the accessible location of the backpack, the fact that Appellant had moved the backpack just prior to the traffic stop, and Appellant‘s defensive demeanor and flight from the scene indicating consciousness of guilt, we affirm the trial court‘s conclusion that the officers here were in possession of information that there was a “fair probability that contraband” would be found in Appellant‘s backpack. Scott, 210 A.3d at 363 (citation omitted).
As we have concluded that the trial court properly denied Appellant‘s suppression motion, we turn to his second appellate issue where he challenges the sufficiency of the evidence with respect to his PIC conviction. Appellant argues that the Commonwealth failed to prove beyond a reasonable doubt that a knife, the instrument of crime that he was charged with
A challenge to the sufficiency of the evidence presents a question of law and is subject to our plenary review under a de novo standard. Commonwealth v. Smith, 234 A.3d 576, 581 (Pa. 2020). When reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth, were sufficient to prove every element of the offense beyond a reasonable doubt. Id. “The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.” Commonwealth v. Wallace, 244 A.3d 1261, 1274 (Pa. Super. 2021) (citation omitted).
Under
We agree with Appellant that the Commonwealth did not show that he was in possession of an instrument of crime. In Count IV of the information, the Commonwealth alleged that Appellant committed the PIC offense by “possess[ing] one or more instruments of crime, namely, a 14 inch blade knife, with intent to employ it [] criminally. . . .” Information, 3/4/19. At the non-jury trial, the parties stipulated to the trial record as consisting of the testimony from the suppression hearing, three crime laboratory reports, a Pennsylvania State Police license and certification form, a certification of Appellant‘s prior convictions, a search warrant for the house Appellant flеd to after the firearm was discovered, and a video recording reflecting the events at issue. N.T., 3/10/20, at 7-8, 10-11. The recovery of the knife was not mentioned at the suppression hearing, nor do any of the laboratory reports or any of the other exhibits reference the knife. Similarly, the video recording submitted into evidence does not show the knife recovered from Appellant‘s backpack.7
The Commonwealth acknowledges that the knife was not mentioned in the stipulated suppression motion testimony or exhibits, see Commonwealth‘s Substituted Brief at 50, yet points to the oral argument of Appellant‘s counsel during the bench trial where the knife was referenced. The Commonwealth asserts that trial counsel was arguing that Appellant was unaware of the firearm in the bag and he had only claimed ownership and protested the search of the bag based upon the knife and
We do not find that Appellant, through the actions of his trial counsel, conceded that he was in possession of an instrument of crime. “[I]t is well-settled that arguments of counsel are not evidence.” Commonwealth v. Puksar, 951 A.2d 267, 280 (Pa. 2008). The comments by trial counsel concerning the knife were in the nature of oral argument rather than a stipulation of the existence of certain facts,8 and therefore, such statements could not have established a necessary element of the PIC offense.9
Furthermore, while trial counsel informed the trial court that he was not presenting oral argument as to the PIC charge, this did not act as a waiver of his sufficiency of the evidence challenge to that charge as a defendant may wait until an appeal is filed to raise a sufficiency argument for the first time. See
Accordingly, we conclude that the Commonwealth did not submit sufficient evidence to prove beyond a reasonable doubt that Appellant was in “possession of an object that is an instrument of crime.” Brockington, 230 A.3d at 1213 (citation omitted). We thus vacate Appellant‘s PIC conviction, but otherwise affirm the trial court‘s judgment of sentence. Because the trial court imposed no further penalty for the PIC conviction, this has no effect on the trial court‘s sentencing scheme, and no resentencing is therefore required. See In the Interest of P.S., 158 A.3d 643, 652-53 (Pa. Super. 2017).
Judgment of sentence affirmed in part and vacated in part. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2021