Com. v. Keys, M., Jr.

• Court: Superior Court of Pennsylvania
• Decided: March 27, 2015
• Docket: 731 MDA 2014
• Status: Unpublished

Opinion

J. S71005/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : MICHAEL SEAN KEYS, JR., : No. 731 MDA 2014 : Appellant :

Appeal from the Judgment of Sentence, April 24, 2014, in the Court of Common Pleas of York County Criminal Division at No. CP-67-CR-0007095-2013

BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 27, 2015

Appellant, Michael Sean Keyes, Jr., appeals from the judgment of

sentence entered on April 24, 2014, in the Court of Common Pleas of York

County. Appointed counsel, John M. Hamme, Esq., has filed a petition to

withdraw accompanied by an Anders brief.1 We grant counsel’s withdrawal

petition and affirm.

Appellant was a backseat passenger during a vehicle stop. During the

traffic stop, the officer discovered appellant had warrants for his arrest. A

search incident to this arrest led to the discovery of an illegal firearm and

* Former Justice specially assigned to the Superior Court. 1 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). J. S71005/14

marijuana. A review of the facts presented at the suppression hearings

follows.

Officer Tiffany Vogel testified that at approximately 1:30 a.m. on

June 28, 2013, she was in uniform and on patrol in a marked police vehicle

with another officer. Officer Vogel observed a white Chevy Cobalt pass her

police vehicle. (Notes of testimony, 3/21/14 at 6-7.) As it passed, she

noticed the registration lamps were not illuminating the registration tag as

required by the Vehicle Code. (Id. at 7.) Officer Vogel testified she was

approximately 12 to 20 feet from the vehicle and could not see the tag at

all, “it was that black, that dark.” (Id. at 12.) The officer, who was in

uniform and driving a marked police vehicle, began to follow the vehicle and

then observed the Chevy pull over to the side of the road. (Id.)

Officer Vogel proceeded to drive around the back; when the officer returned,

she observed the vehicle had pulled back out onto the street and was

traveling in front of the police cruiser. (Id. at 7-9.)

Officer Vogel initiated a traffic stop based on the failure of the vehicle

to have operating registration lamps. (Id.) The officer approached the

vehicle and put her hand underneath the registration lamp; she observed

that the bulb was lit, however, it was “so dim.” (Id. at 10-11.) When

Officer Vogel approached the vehicle and saw the driver, she recalled that

she had previously pulled this vehicle over for a registration lamp failing to

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illuminate. She had provided the driver with a warning but did not cite him

at this first encounter. (Id. at 11.)

Officer Vogel then observed appellant in the rear of the vehicle. (Id.)

The officer ran appellant’s name and discovered warrants for his arrest. A

search incident to this arrest led to the discovery of an illegal firearm and

marijuana. Appellant was placed under arrest.

Appellant filed a motion to suppress on January 15, 2014; following a

hearing, the motion was denied and a stipulated bench trial commenced.

Thereafter, appellant was found guilty of firearms not to be carried without a

license, 18 Pa.C.S.A. § 6106(a)(1), and possession of a small amount --

personal use, 35 P.S. § 780-113(a)(31)(i). On April 24, 2014, appellant was

sentenced to an aggregate term of 3½ to 7 years’ incarceration.

A timely notice of appeal was filed. Thereafter, counsel complied with

the trial court’s order to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court

has filed an opinion. Subsequently, on August 13, 2014, Attorney Hamme

filed a petition for leave to withdraw and an Anders brief with this court;

attached was his letter to appellant explaining there are no non-frivolous

issues that could be raised on appeal. Appellant has not responded to the

petition to withdraw.

“When presented with an Anders brief, this [c]ourt may not review

the merits of the underlying issues without first passing on the request to

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

2010), citing Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super.

2007) (en banc) (citation omitted).

In order for counsel to withdraw from an appeal pursuant to Anders, certain requirements must be met, and counsel must:

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

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

We note that the holding in Santiago altered prior requirements for withdrawal under Anders. Santiago now requires counsel to provide the reasons for concluding the appeal is frivolous. The Supreme Court explained that the requirements set forth in Santiago would apply only to cases where the briefing notice was issued after the date that the opinion in Santiago was filed, which was August 25, 2009.

Id. As the briefing notice in this case followed the filing of Santiago, its

requirements are applicable here.

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Our review of Attorney Hamme’s application to withdraw, supporting

documentation, and Anders brief reveals that he has complied with all of

the foregoing requirements. We note that counsel also furnished a copy of

the brief to appellant, advised him of his right to retain new counsel,

proceed pro se, or raise any additional points that he deems worthy of this

court’s attention, and attached to the Anders petition a copy of the letter

sent to appellant as required under Commonwealth v. Millisock, 873 A.2d

748, 751 (Pa.Super. 2005). See Daniels, 999 A.2d at 594 (“While the

Supreme Court in Santiago set forth the new requirements for an Anders

brief, which are quoted above, the holding did not abrogate the notice

requirements set forth in Millisock that remain binding legal precedent.”).

As Attorney Hamme has complied with all of the requirements set forth

above, we will proceed with our review.

The following is the sole issue presented on appeal:

I. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S PRETRIAL MOTION TO SUPPRESS WHEN THE FACTS PRESENTED ESTABLISH THAT POLICE OFFICERS DID NOT HAVE THE REQUIRED REASONABLE SUSPICION TO BELIEVE A VIOLATION OF THE VEHICLE CODE HAD BEEN COMMITTED AND THE STOP OF THE VEHICLE WAS UNLAWFUL[?]

Appellant’s brief at 4.

We begin our analysis of the suppression issues with this standard of

review:

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[I]n addressing a challenge to a trial court’s denial of a suppression motion [we are] limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Since the [Commonwealth] prevailed in 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 record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa.Super. 2010), quoting

Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003).

Appellant argues that the Commonwealth failed to establish that the

police officers had reasonable suspicion to believe that a violation of the

Vehicle Code had been committed, and as such, the stop was unlawful.

Therefore, appellant argues that the evidence gained from the subsequent

search of his person was “fruit of the poisonous tree” and should have been

suppressed. (Appellant’s brief at 7.) We conclude that appellant’s argument

warrants no relief.

A police officer has the authority to stop a vehicle when he or she has

reasonable suspicion that a violation of the Vehicle Code has taken place, for

the purpose of obtaining necessary information to enforce the provisions of

the Code. 75 Pa.C.S.A. § 6308(b). However, if the violation is such that it

requires no additional investigation, the officer must have probable cause to

initiate the stop. Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa.

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2010), appeal denied, 25 A.3d 327 (Pa. 2011). As further investigation

would not help to establish whether appellant was in violation of

Section 4304(b), the officers were required to have probable cause to

initiate the stop.2

Based on the testimony adduced at the suppression hearing, we

conclude that the officer articulated sufficient facts she possessed at the

time of the challenged traffic stop, which provided probable cause to believe

that the license plate lamp on the vehicle in which appellant was a

passenger was not sufficiently illuminated in violation of Section 4303(b). 3

Officer Vogel testified that her attention was drawn to the Chevy Cobalt as

the license plate was not illuminated. Thereafter, the officers stopped the

vehicle. Upon approach, she observed that the bulb was lit but was

“so dim.” (Notes of testimony, 3/21/14 at 10-11.) The trial court found

Officer Vogel’s testimony credible. The record supports the court’s credibility

determination, which we decline to disturb. Cauley, supra. Accordingly,

2 Although the suppression court opined that the officers had reasonable suspicion, rather than probable cause, to effectuate the traffic stop, this rationale does not entitle appellant to any relief, as we are free to affirm the trial court decision if there is any basis for its support. See, e.g., Commonwealth v. Kemp, 961 A.2d 1247, 1254 n.3 (Pa.Super. 2008) (en banc). 3 Section 4303(b) of the Motor Vehicle Code provides, in pertinent part: “Every vehicle operated on a highway shall be equipped with a . . . license plate light, in conformance with regulations of the department.” 75 Pa.C.S.A. § 4304(b).

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we find the traffic stop was legal and therefore find no error in the trial

court’s denial of appellant’s motion to suppress evidence.

Appellant also argues that the demand of the officer that he provide

his name or other identification information was in violation of his rights

under the Fourth Amendment of the United States Constitution, as well as

Article I Section 8 of the Pennsylvania Constitution. (Appellant’s brief at 9.)

He has waived this specific argument. Appellant’s Rule 1925(b) statement

focused solely on whether the officers had reasonable suspicion to believe a

violation of the Vehicle Code had been committed. (See Docket #21.)

Rule 1925(b)(4) provides, in pertinent part, as follows:

The Statement shall concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge.

Pa.R.A.P. 1925(b)(4)(ii). Pursuant to Rule 1925(b)(4)(vii), “Issues not

included in the Statement and/or not raised in accordance with

[Rule 1925(b)(4)] are waived.” As our supreme court recently reiterated:

Our jurisprudence is clear and well-settled, and firmly establishes that: Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered; any issues not raised in a Rule 1925(b) statement will be deemed waived; the courts lack the authority to countenance deviations from the Rule’s terms; the Rule’s provisions are not subject to ad hoc exceptions or selective enforcement; appellants and their counsel are responsible for complying with the Rule’s requirements.

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Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011). Consequently, we

must conclude that appellant’s claim concerning his expectation of privacy is

waived.

Judgment of sentence affirmed. Petition to withdraw granted.4

Panella, J. joins the Memorandum.

Fitzgerald, J. files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/27/2015

4 Even if we were to agree with the dissenting memorandum regarding waiver, we nevertheless would find no reason to remand as the issue is clearly meritless as explained in counsel’s Anders brief. See Commonwealth v. Campbell, 862 A.2d 659 (Pa.Super. 2004) (defendant who was passenger in vehicle did not have reasonable expectation of privacy in his identification, and thus police officer did not violate defendant’s Fourth Amendment right against unreasonable searches and seizures when he asked defendant to identify himself after traffic stop; identity was not incriminating in and of itself, and defendant’s name was subject to repeated disclosures every day).

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