Com. v. Wilson

• Decision Date: 11 June 2007
• Docket Number: No. 644 WDA 2006.,644 WDA 2006.
• Citation: 927 A.2d 279
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Leevaughn WILSON, Appellant.
• Court: Pennsylvania Superior Court

927 A.2d 279

COMMONWEALTH of Pennsylvania, Appellee v. Leevaughn WILSON, Appellant.

No. 644 WDA 2006.

Superior Court of Pennsylvania.

Argued February 28, 2007.

Filed June 11, 2007.

Robert E. Mielnicki, Pittsburgh, for appellant.

Margaret K. Baker, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.

BEFORE: MUSMANNO, BOWES, and JOHNSON, JJ.

OPINION BY JOHNSON, J.:

¶ 1 Leevaughn Wilson appeals from the judgment of sentence entered following his convictions of two counts each of possession of a controlled substance and possession of a controlled substance with intent to deliver, and one count of driving with a suspended license. See 35 P.S. §§ 780-113(a)(16), (30); 75 Pa.C.S. § 1543. Wilson asserts that the trial court erred in denying his motion to suppress, claiming that the drugs were seized pursuant to an illegal Terry search and in violation of the "plain feel" and "plain view" doctrines. Wilson also contends that the trial court erred in allowing the Commonwealth's expert to testify to his state of mind and in failing to grant him a mistrial after the prosecutor commented improperly on his right to remain silent during closing arguments. Upon review, we conclude that although the officer conducted a lawful Terry frisk, neither his testimony nor the physical characteristics of the seized evidence established that the object he felt in Wilson's coat pocket reasonably appeared to be a weapon. Therefore, the officer's subsequent search and seizure of the drugs in Wilson's coat pocket exceeded the lawful scope of Terry. We further conclude that the drugs the officer seized were not alternatively admissible under the "plain view" or "plain feel" exceptions to the warrant requirement. Consequently, the officer obtained the drugs from Wilson's coat pocket in violation of Wilson's constitutional right to be free from an unreasonable search and seizure. Accordingly, we reverse the judgment of sentence and remand for proceedings consistent with this Opinion.

¶ 2 The trial court summarized the facts of this case as follows:

On January 25, 2004[,] at approximately 7:43 P.M., Officer Clarence L. Gunter, a police officer with the Allegheny County Housing Authority, observed a vehicle fail to stop at a stop sign at the intersection of Bedford and Chauncy Drives [in the Hill District section of Pittsburgh]. Officer Gunter pulled the vehicle over, called in the license plate, and approached the vehicle. The driver of the vehicle, [ ] the Defendant, did not have identification, so he gave the officer his date of birth. Officer Gunter called in the information and found out that the Defendant did not have a driver's license. The officer observed the Defendant checking his mirrors, putting his hands in his pockets, and appearing very nervous. Both the driver's and passenger's side windows were down, despite the cold weather. Officer Gunter told the Defendant he would be issuing him citations for his traffic violations. He asked the Defendant if he would mind getting out of the car so that he could perform a pat-down search on him. The Defendant complied and the officer felt a large hard ball in the Defendant's front left jacket pocket. Concerned that it was a weapon, Officer Gunter looked in the pocket and saw what he believed to be crack cocaine, at which point [he retrieved the bag and placed] the Defendant . . . under arrest. The Defendant began to struggle with the officer. He got away from the officer's grasp, jumped back into the car, and flung [another] baggie out of the passenger side window. [The baggie retrieved from the Defendant's pocket contained] 12 knotted plastic baggie corners, which was tested by the Allegheny County Crime Laboratory and found to be positive for cocaine with a net collective weight of 1.743 grams. [The baggie that the Defendant tossed out of the window contained] 21 loosely knotted yellow balloons and . . . a bundle of 10 taped white bags stamped "Chicago." These items were also tested by the Crime Lab and found to be positive for heroin with a collective net weight of 2.018 grams and 0.339 grams, respectively.

Trial Court Opinion (T.C.O.), 6/28/06, at 2-3 (citation to Notes of Testimony (N.T.) omitted).

¶ 3 The police eventually subdued Wilson and arrested him. Thereafter, the Commonwealth charged him with two counts each of possession of a controlled substance and possession of a controlled substance with intent to deliver. In addition, the Commonwealth charged Wilson with tampering with evidence, resisting arrest and driving with a suspended license. On May 25, 2005, Wilson filed an omnibus pre-trial motion to suppress, asserting that the drugs were obtained in violation of his right to be free from an unreasonable search and seizure. On August 15, 2005, the trial court denied Wilson's motion and the case proceeded to trial.

¶ 4 At trial, Detective David Schultz of the Allegheny County Police Department testified as an expert over Wilson's objection. He stated that in his professional opinion, Wilson possessed the narcotics with the intention of delivering them to third parties. When the Commonwealth concluded its case-in-chief, the trial court granted a judgment of acquittal on the charge of tampering with evidence. During closing argument, the prosecutor instructed the jury that when a defendant does not confess his/her intention to deliver drugs to a third party, his/her intent must be proven by the facts and circumstances of each case. At the conclusion of a three day trial, the jury found Wilson guilty on all four drug-related counts, but not guilty of resisting arrest. The trial court found Wilson guilty of the summary offense of driving with a suspended license. On March 21, 2006, the trial court sentenced Wilson to a mandatory period of incarceration of not less than three years nor more than six years in addition to a fine of $15,000.00.

¶ 5 Wilson now appeals to this Court, raising the following questions for our consideration:

1. Whether the lower court erred in denying Appellant's Motion to Suppress when the physical evidence was seized pursuant to an unlawful search conducted without the presence of a reasonable articulable belief that Appellant was involved in criminal activity or that he was armed and dangerous?

2. Whether the lower court erred in allowing the Commonwealth's expert witness to testify as to Appellant's state of mind?

3. Whether the lower court erred in failing to grant Appellant a mistrial when the prosecutor during his closing arguments made comments that improperly drew attention [to] Appellant's exercise of his right to remain silent?

Brief for Appellant at 4.

¶ 6 Wilson's first question challenges the trial court's denial of his motion to suppress.

Where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. In reviewing the ruling of a suppression court, our task is to determine whether the factual findings are supported by the record. Where, as here, the defendant challenges an adverse ruling of the suppression court, we will consider only the evidence for the Commonwealth and whatever evidence for the defense which is uncontradicted on the record as a whole. If there is support in the record, we are bound by the facts as found by the suppression court, and we may reverse that court only if the legal conclusions drawn from these facts are erroneous. Moreover, even if the suppression court did err in its legal conclusions, the reviewing court may nevertheless affirm its decision where there are other legitimate grounds for admissibility of the challenged evidence.

Commonwealth v. Andersen, 753 A.2d 1289, 1291 (Pa.Super.2000) (citations and internal quotation marks omitted).

¶ 7 Wilson first contends that the evidence seized from his person should have been suppressed because Officer Gunter did not have the requisite reasonable suspicion to conduct a Terry frisk. Brief for Appellant at 11-15. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Wilson concedes that he was lawfully stopped for a violation of the Motor Vehicle Code and that Officer Gunter was permitted under Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), to ask him to step out of his vehicle as a matter of right. Brief for Appellant at 13. Wilson argues, however, that during the routine traffic stop and investigatory detention, Officer Gunter did not develop reason to believe that he was armed and dangerous, and thus, the Terry frisk of his outer garments was illegal. Brief for Appellant at 12-13.

¶ 8 "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 weapons." Commonwealth v. E.M./Hall, 558 Pa. 16, 735 A.2d 654, 659 (1999). In order to establish reasonable suspicion, the police officer must articulate specific facts from which he could reasonably infer that the individual was armed and dangerous. See Commonwealth v. Gray, 896 A.2d 601, 606 (Pa.Super.2006). When assessing the validity of a Terry stop, we examine the totality of the circumstances, see id., giving due consideration to the reasonable inferences that the officer can draw from the facts in light of his experience, while disregarding any unparticularized suspicion or hunch. See Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153, 1158 (2000).

¶ 9 At the suppression hearing, Officer Gunter testified that Wilson appeared to be nervous and fidgety throughout their encounter. N.T. (Suppression), 8/15/05, at 5-7. When Officer Gunter first pulled Wilson over, Wilson was constantly looking into his rear view and side mirrors and his "shoulders and stuff" were moving around. N.T. (Suppression), 8/15/05, at 5-6. Officer Gunter...