Com. v. Alexander, A.

• Court: Superior Court of Pennsylvania
• Decided: April 11, 2024
• Docket: 1979 EDA 2022
• Status: Unpublished

Opinion

J-A26044-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : AQUIL ALEXANDER : : Appellant : No. 1979 EDA 2022

Appeal from the Judgment of Sentence Entered June 29, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0003707-2021

BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY KING, J.: FILED APRIL 11, 2024

Appellant, Aquil Alexander, appeals pro se from the judgment of

sentence entered in the Delaware County Court of Common Pleas, following

his bench trial convictions for persons not to possess firearms, carrying a

firearm without a license, and possession of drug paraphernalia.1 We affirm.

The relevant facts and procedural history of this case are as follows. At

approximately 1:15 a.m. on August 9, 2021, Pennsylvania State Police

Troopers Wendling and Worth conducted a traffic stop of Appellant’s vehicle

due to an expired registration.

During the stop Trooper Wendling approached Appellant, the driver, and he could not provide title or registration information. Trooper Wendling noticed [a] “raw marijuana shake” in the console and observed Appellant was nervous ____________________________________________

1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 35 P.S. § 780-113(a)(32), respectively. J-A26044-23

and speaking rapidly, and perspiring, and notably Appellant was moving around a lot in the driver’s seat. He also observed Appellant moving his hand down underneath the front of the driver seat, and from his officer safety perspective, alerted his partner [that] he saw [Appellant] reaching down under the seat.

Trooper Wendling decided further investigation was needed to determine who is the owner of the vehicle and whether the vehicle was registered properly. Importantly, Trooper Wendling testified in addition to several violations of the vehicle code, he also was investigating Appellant for possession of marijuana and driving under the influence. Having unresolved answers to the question of registration and ownership of the vehicle, having perceived Appellant’s nervousness, having observed the marijuana shake in the console, having concerns Appellant may have recently ingested the marijuana and may have been driving under the influence, and having observed the suspicious movements of Appellant in the driver’s side of the vehicle, he requested Appellant to exit the vehicle and after about a minute Appellant got out of the vehicle.

Trooper Wendling asked Appellant about the presence of firearms in the vehicle and asked for consent to search the vehicle. Appellant said yes and consented to the vehicle search, and he started walking back to the car. Trooper Wendling became concerned Appellant was going to try to get away or retrieve something from the vehicle. He prevented Appellant from getting back into the vehicle, and Appellant began to cry and became very upset stating he did not want to go back to jail and admitting he was on state parole. Appellant calmed down a little, and [the trooper again] asked Appellant if he could search the vehicle and Appellant consented for the second time. Trooper Wendling thought Appellant’s response [was] appropriate but “had never seen someone get so worked up as he did regarding … possibly getting found out for small amount of marijuana.” Trooper Wendling was clear Appellant was not under arrest when he gave consent.

(Trial Court Opinion, filed 4/5/23, at 5-7) (record citations omitted).

During the subsequent search, Trooper Wendling discovered a loaded

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firearm inside a backpack on the front passenger’s seat. Trooper Wendling

recovered a plastic vial “containing suspected raw marijuana residue” in the

glove compartment. (Affidavit of Probable Cause, dated 8/9/21, at 2). The

troopers also recovered a small amount of marijuana from Appellant’s person.

The Commonwealth charged Appellant with various offenses related to

his possession of the contraband. On January 13, 2022, Appellant filed an

omnibus pretrial motion, which included a request to suppress the evidence

seized from his vehicle. The court held a suppression hearing on February 15,

2022, and Trooper Wendling was the only witness to testify. On April 6, 2022,

the court denied Appellant’s suppression motion. Appellant filed a motion for

reconsideration of the suppression ruling, which the court denied on April 13,

2022. Following a stipulated bench trial, the court found Appellant guilty of

the aforementioned offenses. On June 29, 2022, the court sentenced

Appellant to an aggregate term of seventy-two (72) to one hundred forty-four

(144) months’ imprisonment, followed by three and one-half (3½) years of

probation.

Despite having counsel of record, Appellant timely filed a pro se notice

of appeal on July 27, 2022. The court did not order Appellant to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. On August 24,

2022, counsel filed an application to withdraw in this Court. Thereafter, this

Court remanded the matter for the trial court to conduct a hearing pursuant

to Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998). Upon

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remand, the court conducted the hearing and permitted Appellant to proceed

pro se.

Appellant now raises four issues on appeal:

Did the trial court err as a matter of law in denying Appellant’s omnibus pretrial motion to suppress evidence by not suppressing the marijuana, drug paraphernalia, and firearm in question when the trooper prolonged the traffic [stop] beyond its original mission, giving rise to a second investigative detention of Appellant?

Was the trooper required to have articulable reasonable suspicion to prolong the traffic stop and ask for consent to search and/or conduct a search of Appellant’s vehicle?

Did the trooper have reasonable suspicion to prolong the traffic stop and ask for consent to search and/or conduct a search of Appellant’s vehicle when he observed Appellant to be extraordinarily nervous … or fidgeting?

Did the trooper have reasonable suspicion to prolong the traffic stop and ask for consent to search and/or conduct a search of Appellant’s vehicle when he observed residue of a “green leafy substance” that was never tested or otherwise known to be an illegal substance at the time of observation?

(Appellant’s Brief at 4-5) (unnumbered).

In his first, third, and fourth issues, Appellant asserts that the court

erred in denying his suppression motion because the initial traffic stop

escalated into an illegal seizure. Appellant argues that reasonable suspicion

and exigent circumstances did not exist to support suspicion of any illegal

activity other than the initial violation of the Motor Vehicle Code. Appellant

emphasizes that his nervous behavior and the presence of alleged marijuana

residue were insufficient to justify an extended period of detention. Appellant

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concludes that the troopers conducted an illegal seizure by commencing an

investigation, without reasonable suspicion, that was unrelated to the purpose

of the original traffic stop. We disagree.

The following principles govern our review of an order denying a motion

to suppress:

An appellate court’s 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 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, the appellate court is bound by [those] findings and may reverse only if the court’s legal conclusions are erroneous. Where 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 courts below are subject to plenary review.

Commonwealth v. Ford, 175 A.3d 985, 989 (Pa.Super. 2017), appeal

denied, 647 Pa. 522, 190 A.3d 580 (2018).

Contacts between the police and citizenry fall within three general

classifications:

The first [level of interaction] is a “mere encounter” (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. The second, an “investigative detention” must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not

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involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or “custodial detention” must be supported by probable cause.

Commonwealth v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal

denied, 583 Pa. 668, 876 A.2d 392 (2005) (quoting Commonwealth v.

Phinn, 761 A.2d 176, 181 (Pa.Super. 2000)).

An “investigative detention” is interchangeably labeled as a “stop and

frisk” or a “Terry stop.” Commonwealth v. Brame, 239 A.3d 1119

(Pa.Super. 2020), appeal denied, ___ Pa. ___, 251 A.3d 771 (2021).

An investigative detention, unlike a mere encounter, constitutes a seizure of a person and thus activates the protections of Article 1, Section 8 of the Pennsylvania Constitution. To institute an investigative detention, an officer must have at least a reasonable suspicion that criminal activity is afoot. Reasonable suspicion requires a finding that based on the available facts, a person of reasonable caution would believe the intrusion was appropriate.

* * *

Reasonable suspicion exists only where the officer is able to articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity.

Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005) (internal

citations omitted).

To ensure officers’ safety during a traffic stop, police may order both

drivers and passengers to exit the vehicle, even without reasonable suspicion

that criminal activity is afoot. Commonwealth v. Malloy, 257 A.3d 142, 150

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(Pa.Super. 2021). During a traffic stop, the officer “may ask the detainee a

moderate number of questions to determine his identity and to try to obtain

information confirming or dispelling the officer’s suspicions.”

Commonwealth v. Wright, 224 A.3d 1104, 1109 (Pa.Super. 2019), appeal

denied, 661 Pa. 533, 237 A.3d 393 (2020). “Further, ‘if there is a legitimate

stop for a traffic violation … additional suspicion may arise before the initial

stop’s purpose has been fulfilled; then, detention may be permissible to

investigate the new suspicions.’” Id. (quoting Commonwealth v. Chase,

599 Pa. 80, 93 n.5, 960 A.2d 108, 115 n.5 (2008)).

Instantly, Trooper Wendling testified that he stopped Appellant’s vehicle

due to an invalid registration. Upon approaching Appellant’s vehicle, Trooper

Wendling observed “loose green leaves,” resembling “raw marijuana shake,”

on the center console. (N.T. Suppression Hearing, 2/15/22, at 9). Trooper

Wendling opined that the purported marijuana “could be indicative of recent

marijuana use, so I might go into a DUI investigation at that point.” (Id. at

15). Trooper Wendling also noticed that Appellant spoke rapidly, was

sweating, and moved around in his seat. Trooper Wendling suspected that

Appellant was “nervous about something else that’s in the vehicle.” (Id. at

10). Moreover, Appellant moved his hands underneath the driver’s seat.

Trooper Wendling explained that this movement raised concerns from “an

officer safety perspective,” because he did not know if Appellant was reaching

for a weapon. (Id.)

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After Appellant could not provide registration, Trooper Wendling asked

him to exit the vehicle. Appellant took about one minute to exit, and it

“[s]eemed like he was trying to delay … getting out of the car.” (Id. at 12).

With Appellant outside, Trooper Wendling asked if there were any firearms

inside the vehicle. Trooper Wendling also asked for consent to search the

vehicle. At that point, Appellant “started walking back to the car after saying

yes, like he was debating what he wanted to do now.” (Id. at 13). Based on

Trooper Wendling’s experience with traffic stops, he posited that Appellant

“had no other reason for going back to that car [other] than to either get away

or to retrieve something from the vehicle.” (Id.) When the troopers

prevented Appellant from getting back into the vehicle, Appellant began to

cry. Trooper Wendling stated, “I’ve never seen someone get as worked up as

he did regarding … possibly getting found out for—small amount of marijuana,

or anything like that.” (Id. at 16).

The suppression court concluded that Trooper Wendling’s observations

justified additional detention for further investigation. Our review of the

record confirms that reasonable suspicion of new criminal activity arose before

the initial traffic stop’s purpose had been fulfilled, thereby justifying an

additional period of detention. See Wright, supra. Specifically, reasonable

suspicion existed due to: 1) Trooper Wendling noticing what appeared to be

raw marijuana on the center console; 2) Appellant’s nervous behavior and

furtive movement; 3) Appellant’s attempt to get back into the vehicle, and 4)

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Appellant’s emotional reaction to the troopers’ refusal to permit his reentry.

Under these circumstances, Trooper Wendling’s specific observations led him

to the reasonable conclusion that Appellant was involved in some type of

criminal activity beyond the initial purpose of the traffic stop. See Jones,

supra. Thus, Appellant is not entitled to relief on his claims.

In his second issue, Appellant acknowledges that he consented to the

troopers’ search of his vehicle. Appellant insists, however, he consented

under duress because the troopers created a coercive atmosphere that made

him fear for his safety. Additionally, Appellant maintains that his consent was

uninformed because the troopers did not explain that he could refuse to

consent, the consequences of consent, or the scope of the intended search.

Based upon the foregoing, Appellant concludes that this Court must reverse

the order denying his suppression motion. We disagree.

“Both the Fourth Amendment of the United States Constitution and

Article I, Section 8 of the Pennsylvania Constitution guarantee individuals

freedom from unreasonable searches and seizures.” Commonwealth v.

Heidelberg, 267 A.3d 492, 502 (Pa.Super. 2021) (en banc), appeal denied,

___ Pa. ___, 279 A.3d 38 (2022). “As a general rule, ‘a warrant stating

probable cause is required before a police officer may search for or seize

evidence.’” Id. (quoting Commonwealth v. Anderson, 40 A.3d 1245, 1248

(Pa.Super. 2012)). Regarding automobiles, “Article I, Section 8 affords

greater protection to our citizens than the Fourth Amendment, and … the

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Pennsylvania Constitution requires both a showing of probable cause and

exigent circumstances to justify a warrantless search of an automobile.”

Commonwealth v. Alexander, 664 Pa. 145, 151, 243 A.3d 177, 181 (2020).

“Absent the application of one of a few clearly delineated exceptions, a

warrantless search or seizure is presumptively unreasonable.” Heidelberg,

supra at 502 (quoting Commonwealth v. Whitlock, 69 A.3d 635, 637

(Pa.Super. 2013)). “One such exception is consent, voluntarily given.”

Commonwealth v. Strickler, 563 Pa. 47, 56, 757 A.2d 884, 888 (2000).

“Whether an individual has voluntarily consented to a search ‘is [a question

of] fact which must be determined in each case from the totality of the

circumstances.’” Commonwealth v. Rosas, 875 A.2d 341, 349 (Pa.Super.

2005), appeal denied, 587 Pa. 691, 897 A.2d 455 (2006) (quoting

Commonwealth v. Mancini, 490 A.2d 1377, 1383 (Pa.Super. 1985)).

“The central Fourth Amendment inquiries in consent cases entail

assessment of the constitutional validity of the citizen/police encounter giving

rise to the consent; and, ultimately, the voluntariness of consent. Where the

underlying encounter is found to be lawful, voluntariness becomes the

exclusive focus.” Strickler, supra at 56-57, 757 A.2d at 888-89 (internal

citations and footnote omitted).

[T]he Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice—not the result of duress or coercion, express or implied, or a will overborne—under the totality of the circumstances. As noted, while knowledge of the right to refuse to consent to the search is a factor to be

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taken into account, the Commonwealth is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. Additionally, although the inquiry is an objective one, the maturity, sophistication and mental or emotional state of the defendant (including age, intelligence and capacity to exercise free will), are to be taken into account.

Id. at 79, 757 A.2d at 901. “The test for the validity of a consent to search

is the same for both the Fourth Amendment and Article I, Section 8, i.e., that

the consent is given voluntarily.” Commonwealth v. Mack, 568 Pa. 329,

334, 796 A.2d 967, 970 (2002).

Instantly, Trooper Wendling testified that Appellant consented to the

search of his vehicle on two separate occasions. Initially, after Appellant

exited the vehicle, Trooper Wendling asked Appellant, “May I search the

vehicle?” (N.T. Suppression Hearing at 17). Appellant “said yes, and then he

started walking back” to the vehicle. (Id.) After the troopers stopped

Appellant from going back into the vehicle, Trooper Worth asked Appellant

multiple times, “What do you have in the car?” (Id. at 41). Appellant became

emotional and denied having any contraband in the vehicle. Trooper Wendling

described this exchange with Appellant as follows:

We were asking him, “What’s going on, we’re all humans here, what are you worried about,” you know. It—I mean, when someone walks back to that car—you know, you didn’t see me tackle him, you didn’t see me put him in handcuffs.[2] He’s still standing there, with his arms ____________________________________________

2At the suppression hearing, the Commonwealth played a video from the motor vehicle recording device inside the troopers’ vehicle. Although the (Footnote Continued Next Page)

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crossed, you know? I treated him like a human being. You know, he’s obviously upset, possibly violated his parole, so you know, we’re—I’m being kind with him, I’m treating him like a human being. I’m not threatening him in any way. I’m not telling him, “You’re going back to jail….”

(Id. at 17). After Appellant calmed down “slightly,” Trooper Wendling again

requested consent to search the vehicle. (Id. at 15). Appellant granted

consent, and the troopers conducted the search.

On this record, the suppression court determined that “Appellant’s

consent, given two times, to the search of the vehicle was unequivocal,

specific, and voluntary[.]” (Trial Court Opinion at 7). Our review of the record

confirms this conclusion. We emphasize that Appellant did not present any

evidence to dispute Trooper Wendling’s rendition of what occurred during the

traffic stop. Trooper Wendling’s uncontroverted testimony established that

Appellant voluntarily consented to the search during a constitutionally valid

citizen/police interaction. See Stricker, supra. Although the troopers’ initial

questioning and request for consent caused Appellant to start crying, this

response constituted a disproportionate reaction to the interaction.

Thereafter, the troopers waited for Appellant to regain his composure before

asking for consent a second time. Absent more, we cannot say that

Appellant’s consent was anything other than the product of an essentially free

and unconstrained choice. See id. Thus, Appellant is not entitled to relief on

____________________________________________

Commonwealth entered this video into evidence, it was not included with the certified record on appeal.

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his claim, and the court properly denied the suppression motion. Accordingly,

we affirm the judgment of sentence.

Judgment of sentence affirmed.

Date: 4/11/2024

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