Commonwealth v. Moore

• Decision Date: 12 October 2021
• Docket Number: No. 477 WDA 2020,477 WDA 2020
• Parties: COMMONWEALTH of Pennsylvania v. William MOORE, III Appellant
• Court: Pennsylvania Superior Court

263 A.3d 1193

COMMONWEALTH of Pennsylvania

v.William MOORE, III Appellant

No. 477 WDA 2020

Superior Court of Pennsylvania.

Submitted April 5, 2021

Filed: October 12, 2021

Jamie T. Schuman, Public Defender, Pittsburgh, for appellant.

Keaton Carr, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.^*

OPINION BY COLINS, J.:

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

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 Tallie^{[3 ]} 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 probable 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:

I. 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?

II. 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's Substituted Brief at 5 (suggested answers, trial court disposition, and unnecessary capitalization omitted).

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 law 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 , 645 Pa. 296, 179 A.3d 475, 487 (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 , ––– Pa. ––––, 243 A.3d 177 (2020). Alexander was decided during the pendency of this appeal and overruled the Court's prior ruling in Commonwealth v. Gary , 625 Pa. 183, 91 A.3d 102 (2014), which had held that the search-and-seizure provision of Article I, Section 8 of the Pennsylvania Constitution provides no greater protection than does the Fourth Amendment of the United States Constitution with regard to warrantless searches of automobiles. Id. at 125 (Opinion Announcing Judgment of the Court). The Court in Gary thus concluded that, in line with United States Supreme Court decisions interpreting the Fourth Amendment, the only prerequisite for a warrantless search of a motor vehicle is probable cause to search, with no exigency required beyond the inherent mobility of a motor vehicle. Id. at 138.

In Alexander , our Supreme Court concluded that the Pennsylvania Constitution affords greater protection to our citizens than the Fourth Amendment of the United States Constitution, noting that "[t]he long history of Article I, Section 8 and its heightened privacy protections do not permit us to carry forward a bright-line rule that gives short shrift to citizens’ privacy rights." 243 A.3d at 207-08. Our Supreme Court thereby re-affirmed and reinstated the pre- Gary line of cases that required police to have both probable cause and exigent circumstances before conducting a warrantless search of an automobile. Id. at 181, 201, 207-09. The Supreme Court instructed that courts "will have to decide, just as they did pre- Gary , whether exigent circumstances justified warrantless searches in discrete scenarios, with a focus on the particular facts." Id. at 208.

The Commonwealth argues that 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 trial court or in his concise statement of errors filed pursuant to Rule of Civil Procedure 1925(b). While acknowledging that the application of the automobile exception under Gary was the subject of the suppression hearing, the Commonwealth asserts that Appellant did not directly challenge the holding of Gary or argue that exigent circumstances existed either at the suppression hearing or in the Rule 1925(b) statement. The Commonwealth directs our attention to this Court's decision in Commonwealth v. Grooms , 247 A.3d 31 (Pa. Super. 2021), where we found that the appellant had waived any claim pursuant to Alexander where he only disputed the existence of probable cause and did not raise the issue of exigent circumstances or challenge the continuing validity of Gary in the trial court. Id. at 37.

"Issues not raised in the trial court are waived and cannot be raised for the first...