Com. v. Rodriguez

• Decision Date: 17 June 1997
• Parties: COMMONWEALTH of Pennsylvania v. Luis RODRIGUEZ, Appellant.
• Court: Pennsylvania Superior Court

Page 864

695 A.2d 864

COMMONWEALTH of Pennsylvania v. Luis RODRIGUEZ, Appellant.

Superior Court of Pennsylvania.

Submitted April 21, 1997.

Filed June 17, 1997.

Clinton L. Johnson, Chester, for appellant.

William R. Toal, III, Asst. Dist. Atty., Media, for Com., appellee.

Before CAVANAUGH, TAMILIA and OLSZEWSKI, JJ.

CAVANAUGH, Judge:

Luis Rodriguez appeals from the judgment of sentence of the Court of Common Pleas of Delaware County imposed following his convictions of possession of a controlled substance with intent to deliver, possession of drug paraphernalia and criminal conspiracy. We affirm.

On December 24, 1995, a criminal complaint was issued, charging appellant, Rodriguez, with the following: criminal conspiracy; resisting arrest or other law enforcement; knowingly or intentionally possessing a controlled substance; manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance; and possession of drug paraphernalia. The charges arose out of an incident which occurred when, on December 23, 1995, appellant was a front seat passenger in a vehicle stopped for a traffic violation and an open cardboard box containing several zip lock bags filled with marijuana was found on the front passenger floor.

A hearing was held on May 7, 1996 on appellant's motion to suppress the marijuana, and on May 29, 1996, said motion was denied. A jury trial was held on September 17 and 18, 1996, ¹ and appellant was found guilty of possession of a controlled substance with intent to deliver, possession of drug paraphernalia and criminal conspiracy. ² The trial court sentenced appellant on October 8, 1996 to a minimum of two years to a maximum of four years for possession of a controlled substance with intent to deliver; a minimum of six months to a maximum of twelve months for criminal conspiracy; and one year probation for possession of drug paraphernalia, with the sentences to run concurrently.

Rodriguez raises the following issues on appeal:

1. Whether the Trial Court erred in not granting the Appellant's Motion to Suppress Evidence where the police officer violated the Fourth Amendment of the U.S. Constitution, Article I, Section 8 of the Pennsylvania Constitution and the law articulated by the Pennsylvania Supreme Court in Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973), when the officer seized the passengers in a motor vehicle stopped for a traffic violation only, ordered them out of the vehicle and subjected them to a pat-down search, thereby causing a box of marijuana in the vehicle to come into the view of the police officer, where the police officer possessed no individualized or particularized probable cause or reasonable suspicion to believe that the occupants of the vehicle were engaged in criminal activity and where the police officer had no safety concerns, fears or beliefs that the occupants of the vehicle possessed weapons or that the police officers on the scene were in any kind of danger.

2. Whether the Trial Court erred in not severing the trial of the Appellant, Luis Rodriguez, from his Co-Defendants, where he sought a jury trial and they sought non-jury trials.

3. Whether the Appellant was prejudiced by the Trial Court dismissing his Co-Defendants from the trial and defense counsel table at the close of the Commonwealth's case, only leaving Appellant at the defense table half way through the trial of all Defendants to face the jury.

The facts of this case leading up to appellant's arrest and conviction are as follows:

On December 23, 1995, at approximately 7:00 p.m., appellant was the front seat passenger in a vehicle driven by Arturo Camacho. The vehicle was stopped by Police Officer Peter Lunn after he observed it failing to stop at a red light. The officer was in the process of writing a warning when he noticed that the registration information provided by the driver, Camacho, did not correspond with the tags on the vehicle. ³ Officer Lunn received assistance from Officer Jason Mark and prepared to issue citations and have the car towed because of the improper registration. Officer Mark, on instruction from Officer Lunn, directed the two rear passengers to exit the vehicle and they complied. As appellant got out of the front passenger seat, he was given a quick pat-down for weapons and directed to walk towards Officer Lunn. Officer Mark then moved closer to look in the vehicle and saw a coffee maker box in plain view. The box was open and a clear plastic bag was bulging out of it containing what the officer recognized to be marijuana. As Officer Mark looked back towards Officer Lunn, appellant began to run away. Officer Mark gave chase along with other officers and appellant was apprehended approximately five to six minutes later.

Prior to trial, appellant filed a motion to suppress the marijuana evidence, claiming that it had been observed and seized only after appellant had been unlawfully required to exit the vehicle. Appellant raises a Fourth Amendment claim and also cites Article I, Section 8, of the Pennsylvania Constitution as his basis for arguing in favor of suppressing the evidence. The trial court's denial of appellant's motion for suppression is the first

Initially, we note our standard for reviewing a claim that the trial court erred in denying a motion to suppress is well settled:

[T]he appellate court's responsibility is to determine whether the record supports the factual findings of the suppression court and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Hughes, 521 Pa. 423, 438, 555 A.2d 1264, 1271 (1989). In making this determination, we will consider the evidence of the prosecution's witnesses and so much of the evidence of the defense as, read in the context of the record as a whole, remains uncontradicted. Id. 521 Pa. at 438, 555 A.2d at 1271-72 (quoting Commonwealth v. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976)).

Commonwealth v. Brundidge, 533 Pa. 167, 170, 620 A.2d 1115, 1116 (1993). "It is, however exclusively the province of the suppression court to determine the credibility of witnesses and the weight to be accorded their testimony." Commonwealth v. Brinkley, 423 Pa.Super. 289, 620 A.2d 1226 (1993) (citation omitted). A suppression court's findings of fact are binding upon an appellate court in its review and the ruling of the suppression court may be reversed only if the legal conclusions drawn from those facts are in error. Commonwealth v. Whitney, 511 Pa. 232, 239-40, 512 A.2d 1152, 1156 (1986) (citing Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985)).

When a police officer forcibly stops a motor vehicle, this constitutes a seizure of a person and activates the protections of the Fourth Amendment of the U.S. Constitution. Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973). However, a forcible stop and seizure is not unreasonable under the Fourth Amendment where there is an outward sign that the vehicle or the operator are in violation of the Motor Vehicle Code or the officer has probable cause based on specific facts which indicate to him that either the vehicle or the driver are in violation of the code. Commonwealth v. Swanger, supra. In the case herein, the vehicle in which appellant was a passenger was stopped for a violation of the Motor Vehicle Code, permissible under 75 Pa.C.S.A. § 6308. Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988).

Appellant does not argue that the initial stop was improper, but that the officer was not justified in ordering him out of the vehicle following the traffic violation. Since Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the Fourth Amendment has consistently been held to permit the police to require the driver of a lawfully stopped vehicle to exit the vehicle without any additional probable cause or reasonable suspicion. The Mimms ' decision was based upon the need to protect police officers from the serious and substantial dangers inherent in traffic stops and the relatively minor intrusion upon the privacy rights of the driver under the circumstances where the vehicle has been lawfully stopped. Id.

It is also well settled that the rationale of Mimms applies to ordering passengers in a lawfully stopped vehicle to exit that vehicle when the officer has an articulable and reasonable suspicion that criminal activity may be afoot. See Commonwealth v. Baer, 439 Pa.Super. 437, 654 A.2d 1058 (1994) (after a valid traffic stop, a police officer may order a driver or a passenger from a vehicle when the officer reasonably believes that criminal activity is afoot or fears for his safety); Commonwealth v. Morris, 422 Pa.Super. 343, 619 A.2d 709 (1992) (officer's actions in directing passenger to exit vehicle were justified after observing the passenger's furtive movements in stuffing a brown bag under the front seat of the vehicle); Commonwealth v. Elliott, supra (the rationale in Mimms applies to passengers in a lawfully stopped vehicle when the officer has an articulable basis to believe that criminal activity is afoot).

Officer Lunn testified at the suppression hearing that prior to asking Officer Mark to remove the occupants of the vehicle: "We had a brief conversation in my vehicle and were concerned just the fact that we had a number of individuals in a vehicle where tags didn't match, possibly just a little bit suspicious." The credibility of witnesses and the weight to be accorded to their testimony is the sole province of the suppression court. Commonwealth v. Brinkley, supra. Therefore, we are in agreement with the suppression court's finding that the officer in the instant matter was proper in ordering the appellant from the vehicle based on "a reasonable suspicion that the occupants of the vehicle were engaged in criminal activity ... after Officer Lunn discovered that the vehicle tags, on the car stopped for a traffic violation,...