Com. v. Gallo, W.

• Court: Superior Court of Pennsylvania
• Decided: September 24, 2024
• Docket: 331 WDA 2023
• Status: Unpublished

Opinion

J-S29014-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WENDY P. GALLO : : Appellant : No. 331 WDA 2023

Appeal from the Judgment of Sentence Entered March 14, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002503-2022

BEFORE: DUBOW, J., KING, J., and BENDER, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED: SEPTEMBER 24, 2024

Appellant, Wendy P. Gallo, appeals from the March 14, 2023 judgment

of sentence of 18 months of probation with 90 days of electronic home

monitoring entered in the Allegheny County Court of Common Pleas following

her conviction of one count of DUI—Controlled Substance.1 Appellant’s

counsel, Lisle T. Weaver, Esquire, has filed a Petition to Withdraw as Counsel

and an Anders2 Brief to which Appellant has not filed a response. Upon

review, we grant counsel’s petition to withdraw and affirm Appellant’s

judgment of sentence.

The relevant facts and procedural history are as follows. On January

22, 2022, White Oak Borough Police Officer Martell Fontaine was on patrol

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1 75 Pa.C.S. § 3802(d)(2).

2 Anders v. California, 386 U.S. 738 (1967). J-S29014-24

when he observed Appellant make a left-hand turn without using a turn signal.

As a result, Officer Fontaine initiated a traffic stop and ran the vehicle’s license

plate, which indicated that an active warrant was attached to the license plate

of the vehicle. Appellant stopped her vehicle in the parking lot of a gas station

and Officer Fontaine pulled up beside her. Officer Fontaine then approached

the driver’s side of Appellant’s vehicle, observed that there were three

passengers in it, and signaled for Appellant to roll down the window. Appellant

complied and Officer Fontaine advised Appellant why he had stopped her.

While Officer Fontaine was speaking with Appellant, he observed that she was

“making faces” at him and was not “in control of her body movements.” N.T.

Suppression, 10/2/22, at 9. This indicated to Officer Fontaine that Appellant

was under the influence of a controlled substance.

Officer Fontaine then asked Appellant for her driver’s license and

registration. His review of those documents revealed that the information on

the warrant on the license plate did not match Appellant’s information.3 About

60 to 90 seconds later, Officer Fontaine’s partner, Sergeant Jessica

Hetherington, arrived at the scene. Officer Fontaine then went to the

passenger side of the vehicle to identify and speak with the passengers, while

Sergeant Hetherington remained on the driver’s side where she observed

Appellant reaching under the seat and moving her hands around. Sergeant

3 Officer Fontaine explained that the “warrant hit” “didn’t necessarily hit off

the vehicle, but it may have hit off the registered owner of the vehicle.” N.T. Suppression at 16-17.

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Hetherington gave Appellant multiple verbal commands to stop reaching

under her seat and to show her hands, but Appellant did not comply. From

his position on the passenger side of the vehicle, while continuing to identify

the passengers in the vehicle, Officer Fontaine noticed that Appellant was

acting “[v]ery hostile; very argumentative[;] very - - her mood changes were

very up and down, pleasant one minute, upset the next.” Id. at 13. Sergeant

Hetherington, who observed Appellant appearing “lethargic . . . like she was

altered[,]” removed Appellant from the vehicle and patted her down for

weapons. Upon removing Appellant from the vehicle, Sergeant Hetherington

observed a “stamp bag” and an orange pill4 on the driver’s seat where

Appellant had just been seated. Id. at 41-42. Appellant continued to act

erratically—screaming, yelling, pushing, and elbowing Sergeant Hetherington.

Appellant stated that she had a “breathing issue” and Sergeant Hetherington

observed Appellant “nodding off” and Appellant’s “eyes fluttering.” Id. at 42.

Sergeant Hetherington concluded that Appellant “was definitely under the

influence of a controlled substance at that point.” Id.

Sergeant Hetherington then handcuffed Appellant, placed her into a

patrol vehicle, and transported her to the White Oak Police Station. At the

station, officers searched Appellant, finding drug paraphernalia including a

“glass meth pipe with residue and burn on it[,]” and conducted field sobriety

tests, which Appellant failed. Id. at 43. See also N.T. Trial, 1/17/23, at 7.

4 A “stamp bag” is a bag of heroin. The orange pill was Gabapentin.

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Officers who remained on the scene searched Appellant’s vehicle and seized a

“kit,” sitting on the floor, partially under the driver’s seat where Appellant had

been sitting.5

Following these events, the Commonwealth charged Appellant with two

counts of DUI and one count of Possession of Drug Paraphernalia.6

On August 1, 2022, Appellant filed a motion to suppress evidence

asserting that Sergeant Hetherington impermissibly extended the traffic stop

when she removed Appellant from Appellant’s vehicle, which necessitated

suppression of the warrantless seizure of the drug paraphernalia and container

from the vehicle.

On October 6, 2022, the trial court held a hearing on Appellant’s

suppression motion at which Officer Fontaine and Sergeant Heatherington

testified to the above facts. Officer Fontaine also testified that, prior to

Sergeant Hetherington’s arrival, he did not see any drugs, guns, or other

contraband, or Appellant making furtive movements or reaching around the

vehicle. N.T. Suppression at 26. Officer Fontaine clarified that the purpose

of the traffic stop was Appellant’s turn signal violation and the warrant hit.

Id. at 27.

5 Sergeant Hetherington explained that a “kit” is “common for people that use

heroin, methamphetamine. And they have their needles, their tie offs, the cotton swabs, purely drug use paraphernalia.” N.T. Suppression at 44.

6 75 Pa.C.S. §§ 3802(d)(1) and (d)(2), and 35 P.S. § 780-113(a)(32). The Commonwealth also charged Appellant with numerous summary traffic offenses.

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At the conclusion of testimony, Appellant also asserted that the court

should suppress the seized evidence because the original arrest was made

without probable cause.

On January 17, 2023, the trial court denied Appellant’s suppression

motion, concluding that the officers did not impermissibly extend the traffic

stop. The trial court found that, at the time that Sergeant Hetherington

instructed Appellant to exit the vehicle, the traffic stop had not yet been

concluded because Officer Fontaine had only begun the traffic stop 60 to 90

seconds earlier and he was still in the process of identifying the passengers in

the vehicle. In addition, the court concluded that because Sergeant

Hetherington observed Appellant reach under her seat and then fail comply

with Sergeant Hetherington’s instructions to cease doing so, Sergeant

Hetherington’s order that Appellant exit the vehicle was lawful in order to

effectuate officer safety.

That same day, Appellant proceeded to a stipulated bench trial, after

which the court convicted Appellant of DUI—Controlled Substance.7 On March

14, 2023, the court sentenced Appellant to 18 months of probation with 90

days of electronic home monitoring. This timely appeal followed.

On March 17, 2023, Appellant’s counsel filed a motion for leave to

withdraw, which the trial court granted. On May 22, 2023, the court appointed

current counsel, Attorney Weaver, to represent Appellant.

7 The court found Appellant not guilty of all the other charged offenses.

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On August 7, 2023, Attorney Weaver filed a Pa.R.A.P. 1925(c)(4)

statement indicating her belief that Appellant’s appeal is wholly frivolous.

On June 26, 2024, Attorney Weaver filed an Anders Brief. Appellant

did not file a response. In the Anders Brief, Attorney Weaver indicated that

Appellant wished to raise the following issue on appeal:

Whether the trial court abused its discretion and/or erred as a matter of law by denying Appellant’s Motion for Suppression of Evidence when the officers violated her due process rights under the Fourth Amendment of the United States Constitution and Article I, Section VIII of the Pennsylvania Constitution when the stop extended beyond a mere interaction and into a detention?

Anders Brief at 5.

A.

As a preliminary matter, we address appellate counsel’s request to

withdraw as counsel. “When presented with an Anders brief, this Court may

not review the merits of the underlying issues without first passing on the

request to withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.

Super. 2010). In order for counsel to withdraw from an appeal pursuant to

Anders, our Supreme Court has determined that counsel must meet the

following requirements:

(1) provide a summary of the procedural history and facts, with citations to the record;

(2) refer to anything in the record that counsel believes arguably supports the appeal;

(3) set forth counsel’s conclusion that the appeal is frivolous; and

(4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record,

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controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

Counsel has complied with the mandated procedure for withdrawing as

counsel. Additionally, counsel confirms that she sent Appellant a copy of the

Anders brief and petition to withdraw, as well as a letter explaining to

Appellant that he has the right to retain new counsel, proceed pro se, and to

raise any additional points. See Commonwealth v. Millisock, 873 A.2d 748,

751 (Pa. Super. 2005) (describing notice requirements). Because counsel has

satisfied the above requirements, we will address the substantive issue raised

in the Anders brief. Subsequently, we must “make a full examination of the

proceedings and make an independent judgment to decide whether the appeal

is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5 (citation omitted).

See also Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super.

2018) (en banc) (noting Anders requires the reviewing court to “review ‘the

case’ as presented in the entire record with consideration first of issues raised

by counsel”).

B.

In the Anders Brief, counsel indicates that Appellant seeks to challenge

the denial of her suppression motion. Anders Brief at 12-15. “Our standard

of review in addressing a challenge to a trial court’s denial of a suppression

motion is whether the factual findings are supported by the record and

whether the legal conclusions drawn from those facts are correct.”

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Commonwealth v. Evans, 153 A.3d 323, 327 (Pa. Super. 2016) (citation

omitted). “Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant’s

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047–48 (Pa. 2012).

Our scope of review of the suppression court’s factual findings is limited to the

record from the suppression hearing. Commonwealth v. Barr, 266 A.3d 25,

39 (Pa. 2021). “Where the record supports the findings of the suppression

court, we are bound by those facts and may reverse only if the legal

conclusions drawn therefrom are in error.” Commonwealth v. Bush, 166

A.3d 1278, 1282 (Pa. Super. 2017).

A motor vehicle stop constitutes a seizure for Fourth Amendment

purposes and “activates constitutional protections against unreasonable

searches.” Commonwealth v. Malloy, 257 A.3d 142, 147 (Pa. Super. 2021).

In addition, the law is clear that an “officer has probable cause to stop a motor

vehicle if the officer observes a traffic code violation, even if it is a minor

offense.” Commonwealth v. Calabrese, 184 A.3d 164, 167 (Pa. Super.

2018) (citation omitted). “[T]he tolerable duration of police inquiries in the

traffic-stop context is determined by the seizure’s ‘mission’—to address the

traffic violation that warranted the stop, [] and to attend to related safety

concerns.” Rodriguez v. United States, 575 U.S. 348, 354 (2015) (internal

citations omitted).

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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. Malloy, 257 A.3d at 150. See also

Commonwealth v. Ross, 297 A.3d 787, 793 (Pa. Super. 2023) (for officer

safety during a lawful traffic stop, the officer is permitted to order the driver

to exit the vehicle until the stop is completed, even if there is no reasonable

suspicion of criminal activity). 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) (citation

omitted). “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, 960 A.2d 108, 115 n.5

(Pa. 2008)).

Critically, in balancing the rights of citizens to be free of unreasonable

searches and seizures against protecting citizen and officer safety, the courts

must be “guided by common sense concerns, giving preference to the safety

of the officer during an encounter with a suspect where circumstances indicate

that the suspect may have, or may be reaching for, a weapon.”

Commonwealth v. Mack, 953 A.2d 587, 590 (Pa. Super. 2008).

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C.

Following our review, we conclude that the record supports the trial

court’s findings of fact and its legal conclusions. The parties do not dispute

that Appellant failed to use her turn signal when making a left turn, making

the initial stop lawful. The evidence indicates that Officer Fontaine’s license

plate search of Appellant’s vehicle revealed an active warrant matching the

license plate number. Officer Fontaine approached Appellant’s vehicle and

explained to her why he had pulled her over and observed the indicia of

intoxication. Sixty to 90 seconds later, while Officer Fontaine was still

identifying the passengers in the vehicle, Sergeant Hetherington arrived and

saw Appellant reaching under her seat. Despite repeated orders to stop

reaching under the seat and to show her hands, Appellant refused to comply,

resulting in her removal from the vehicle. Once Appellant exited the vehicle,

the officers saw a stamp bag and orange pill in plain view on the driver’s seat.

The foregoing evidence indicates that not only did the officers not

unlawfully prolong the traffic stop, but also that the stop had barely begun

when Sergeant Hetherington arrived. For her own safety, she lawfully

removed Appellant from the vehicle, resulting in the discovery, in plain sight,

of contraband. Accordingly, we discern no error in the trial court’s denial of

Appellant’s motion to suppress evidence.

D.

Following our review of the issue raised in counsel’s Anders Brief, we

agree with counsel and conclude that this appeal is wholly frivolous.

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Accordingly, we grant counsel’s Petition to Withdraw and affirm Appellant’s

Petition to Withdraw as Counsel granted; Judgment of Sentence

affirmed.

DATE: 9/24/2024

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