Com. v. Marcus, D.

• Court: Superior Court of Pennsylvania
• Decided: June 3, 2025
• Docket: 1319 EDA 2024
• Status: Unpublished

Opinion

J-S17004-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEVON MARCUS : : Appellant : No. 1319 EDA 2024

Appeal from the Judgment of Sentence Entered May 10, 2024 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005658-2022

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

MEMORANDUM BY MURRAY, J.: FILED JUNE 3, 2025

Devon Marcus (Appellant) appeals from the judgment of sentence

imposed following his convictions by a jury of persons not to possess firearms

and firearms not to be carried without a license. 1 Appellant claims the trial

court erred when it denied his pretrial motion to suppress evidence, and

subsequently made certain improper rulings at trial. After careful review, we

affirm.

The trial court summarized the evidence adduced at Appellant’s

suppression hearing as follows:

On November 18, 2022, Chester Township Police Officer[] Andrew Fridley [(Officer Fridley or the Officer) was] on patrol in full uniform in a marked police vehicle in [Brookhaven, Pennsylvania, in] the area of Toby Farms, 1100 block of Powell Road, a known high[-]crime area. N.T., 3/6/23, at 7-10. At app[roximately] ____________________________________________

1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1). J-S17004-25

11:07 p.m.[, Officer Fridley] observed a Jeep [(vehicle or the Jeep)] exiting a [convenience store] parking lot at a high rate of speed, turning on[]to Bridgewater Road without stopping at all or yielding to oncoming vehicles. Id. at 10-11. [Officer Fridley] observed the vehicle travel over the double yellow lines, with no obstructions or other vehicle[s] in his lane of travel. Id. at 11.

The vehicle had a [Carvana] license tag with no apparent state of origin, thus preventing the [O]fficer from determining whether the vehicle’s registration was valid. Id. at 11-12. [] Officer [Fridley] initiated a traffic stop. Id. at 12. Upon approaching the subject vehicle, [Officer Fridley] noticed [that Appellant] was the driver. Id. at 13[; see also id. (Officer Fridley stating there was a front-seat passenger in the vehicle, Rasheen Sanders (Ms. Sanders))]. The Officer also noted [that Appellant] was very nervous and was abnormally shaking while handing his driver’s license to the Officer. Id. at 14.

The Officer ran a records check on [Appellant’s] drivers’ license and noted that [Appellant] was on state parole for aggravated assault with a firearm. Id. While the Officer was running the license check, he [could see into the vehicle and] noticed [Appellant] bend down towards the floor of [the] vehicle more than once, and lift[] himself back up while he was looking at the police vehicle in his rear[]view mirror. Id. at 15.

After running [Appellant’s] license, the Officer re- approached the vehicle and requested [that Appellant] exit the vehicle. Id. As the Officer requested [Appellant] to exit, [Appellant] continued to make random movements inside the vehicle that the Officer was unable to see what [Appellant] was doing. Id. at 16. [Appellant’s] right hand went out of view a couple of times. Id.

Then, the Officer opened the driver’s door and guided [Appellant] from the vehicle. Id. Using a flashlight, the Officer was able to see inside of the vehicle and immediately observed a firearm on the driver’s side floor. Id. at 17. The Officer observed the entire gun while he was standing in the street at the driver’s door opening, peering into the vehicle. Id. At the time the gun was observed, no part of the Officer’s body was inside of the vehicle. Id. at 48. The gun was secured and made safe [by the Officer]. Id. at 18.

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Trial Court Opinion, 8/1/24, at 1-2 (citations, punctuation, and formatting

modified).

Following Appellant’s arrest, the Commonwealth charged him with

persons not to possess firearms, firearms not to be carried without a license,

and summary traffic offenses. On February 9, 2023, Appellant filed a motion

to suppress the firearm police found in the vehicle through private counsel,

Patrick A. Scanlon, Esquire (trial counsel). Appellant claimed police unlawfully

seized the firearm, where (1) “Officer Fridley lacked probable cause and

exigent circumstances to justify a warrantless search”; (2) the “firearm was

not in plain view”; and (3) “there was no justification for a protective sweep

search[.]” Motion to Suppress, 2/9/23, at 2, 4 (unpaginated) (capitalization

The suppression court held a suppression hearing on March 6, 2023,

wherein Officer Fridley testified as the sole witness. On April 6, 2023, the

Commonwealth filed a response in opposition to Appellant’s motion to

suppress. The Commonwealth claimed Officer Fridley lawfully (1) directed

Appellant to exit the vehicle as a safety precaution; and (2) seized the firearm

pursuant to the “plain view” exception to the warrant requirement, which we

discuss infra. See generally Response, 4/6/23.

On April 10, 2023, the suppression court denied Appellant’s motion to

suppress. Order, 4/10/23. The court subsequently issued findings of fact and

conclusions of law in connection with its denial of the suppression motion.

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See generally Order/Findings of Fact and Conclusions of Law, 4/19/23. The

court specifically “found the testimony of [] Officer [Fridley] to be credible,”

id. at 3, and determined that his

testimony … supports a finding that he had probable cause to believe that [Appellant] … violated the Motor Vehicle Code. Officer Fridley testified that he saw [Appellant’s] vehicle being driven erratically, and the validity of the license plate could not be verified. Accordingly, the stop of the vehicle was lawful.

Id. at 4 (formatting and capitalization modified). The court further concluded

that the warrantless seizure of the firearm was permitted under the plain view

doctrine. See id. at 5-6.

On April 24, 2023, Appellant filed a motion for reconsideration of the

denial of his suppression motion. The suppression court conducted a brief

hearing on the motion for reconsideration on May 1, 2023, and considered

argument from the parties. Four days later, the court denied the motion for

reconsideration.

The matter proceeded to a jury trial in February 2024. The

Commonwealth presented testimony from several witnesses, including Officer

Fridley and Chester Township Police Officer Michael Strofe (Officer Strofe).

Shortly after initiating the traffic stop, Officer Fridley called for backup, and

Officer Strofe responded to the scene in his marked police cruiser. N.T.,

2/27/24, at 174-75. Officer Strofe arrived prior to Appellant’s removal from

the vehicle. Id. at 175. Officer Strofe testified that after Appellant exited the

vehicle and Officer Fridley observed and seized the firearm, “[Appellant]

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indicated in front of myself and Officer Fridley that the firearm was his[.]” Id.

at 180. Officer Strofe further testified that Appellant did not have a license to

carry a firearm at the time of his arrest. Id. at 190-91; see also N.T.,

2/29/24, at 86 (the parties stipulating to same).

On cross-examination of Officer Strofe, trial counsel sought to question

him regarding Officer Fridley’s six-month suspension from the police force

between May 2023 and December 2023, following Officer Fridley’s guilty plea

to an unspecified summary offense in an unrelated case. 2 N.T., 2/27/24, at

211, 213-14. The prosecutor objected that such evidence was irrelevant to

the instant case, could confuse the jury, and was unduly prejudicial to the

Commonwealth’s case.3 Id. at 211-13. Following a sidebar discussion, the

trial court sustained the Commonwealth’s objection. Id. at 214. However,

the court permitted trial counsel to elicit testimony from Officer Strofe that he

had to take over the investigation in this case from Officer Fridley, who was

“temporarily … not employed” by the police department. Id. at 214-15.

____________________________________________

2 Though the record is unclear, it appears that Officer Fridley was charged with

simple assault in an unrelated case, and ultimately pled guilty to a summary offense.

3 Neither party filed a motion in limine concerning evidence of Officer Fridley’s

suspension. See N.T., 2/27/24, at 213 (trial court stating at trial, “unfortunately, somebody didn’t file a motion on [the admissibility of Officer Fridley’s suspension]. Now you’re hitting me [] totally cold at five o’clock. I know nothing about this.”).

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On the next day of trial, Officer Fridley testified consistent with his

testimony from the suppression hearing. He further testified that between

May and December of 2023, he was absent from the police department. N.T.,

2/28/24, at 24. During the Officer’s absence, his cases were handled by other

officers, and the instant case was assigned to Officer Strofe. Id. at 25.

Trial counsel cross-examined Officer Fridley about his leave of absence

as follows:

Q. [(trial counsel):] … Now officer, you testified that you took a leave of absence beginning [] May of 2023 and into December, 2023. Is that accurate?

A. [(Officer Fridley):] Yes.

Q. That was not a voluntary leave of absence, was it?

Id. at 44. The prosecutor objected and the trial court sustained the objection.

Id.; see also id. at 45 (trial court cautioning the jury: “There was an objection

made to that question. I sustained the objection and that means you’re not

allowed to consider that question.”).

Appellant testified on his own behalf at trial,4 after a thorough colloquy.

See generally N.T., 2/28/24, at 116-41. At the conclusion of trial, the jury

considered the parties’ respective closing arguments. During trial counsel’s

4 At Appellant’s bifurcated trial, he testified only in the portion of the trial related to the charge of firearms not to be carried without a license. After the jury returned a guilty verdict on that charge, the jury considered the parties’ stipulation that Appellant’s criminal history rendered him ineligible to possess a firearm. The jury then deliberated on the charge of persons not to possess, and returned a guilty verdict.

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closing, Appellant interrupted and repeatedly “object[ed].” N.T., 2/29/24, at

6. The trial court paused the proceedings and addressed the matter at

sidebar, wherein trial counsel clarified that Appellant desired to personally

address the jury. Id. at 9. The prosecutor responded, “I’m not going to let

[Appellant] sabotage this trial [b]ecause he thinks he’s going to lose and he’s

trying to make a mistrial out of this.” Id. at 6-7. Following the sidebar, the

trial court gave the jury a cautionary instruction, discussed infra, and advised

the jury not to consider Appellant’s outburst. Id. at 9-10.

The trial court cautioned Appellant not to interrupt the proceedings

again. Id. at 10. Immediately thereafter, however, Appellant interrupted the

proceedings, stating multiple times, “I would like to object.” Id. Trial counsel

then moved for a mistrial “based on [Appellant’s] conduct during closing

argument[.]” Id. at 11. The trial court denied the mistrial motion. Id. at 11,

12. The court repeatedly warned Appellant that if he continued to interrupt,

he would be removed from the courtroom. Id. at 18-19. Appellant persisted

with his courtroom misconduct, stating, “I’m still going to interrupt.” Id. at

18. The court paused the proceedings and ordered Appellant’s removal to a

different room, which displayed simultaneous audio and video of the

courtroom proceedings. Id. The jury convicted Appellant of the above-

mentioned firearms offenses.5 Id. at 85, 125.

5 Before the conclusion of trial, the Commonwealth withdrew all charges related to Motor Vehicle Code violations.

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On May 10, 2024, the trial court sentenced Appellant to an aggregate 6

to 12 years in prison. Appellant did not file post-sentence motions.

Appellant timely filed a notice of appeal on May 13, 2024. 6 Appellant

and the trial court have complied with Pa.R.A.P. 1925.

On appeal, Appellant presents four issues for our review:

1. Whether the trial court erred when it denied the motion for suppression where the Officer conducted the vehicle search without a warrant or probable cause and exigency[,] in violation of []Appellant’s rights as guaranteed to him by Article 1, Section 8 of the Pennsylvania Constitution and the Fourth and Fourteenth Amendments to the United States Constitution?

2. Whether the trial court erred when it limited [trial] counsel’s cross[-]examination impeachment questions of the arresting officer in this case, by not permitting [trial] counsel to question [the] Officer about his suspension from the force, when the actions of the Officer were at issue in this case, all in violation of Appellant’s constitutional rights as guaranteed to him by Article 1, Section 9 of the Pennsylvania Constitution and the Sixth Amendment to the United States Constitution, resulting in [] substantial prejudice to Appellant?

3. Whether the trial court erred when it denied [trial] counsel’s request for a mistrial after [] Appellant’s repeated outburst[s] before the jury, in violation of Article 1, Section 9 of the Pennsylvania Constitution and the Sixth Amendment to the United States Constitution?

4. Whether the trial court erred when it failed to sua sponte halt the jury trial proceedings and engage in a sufficient inquiry as to Appellant’s competency to proceed and competency to assist ____________________________________________

6 Contemporaneously with Appellant’s notice of appeal, trial counsel filed a petition to withdraw as counsel, emphasizing that Appellant had not retained trial counsel’s services for further proceedings. Petition to Withdraw, 5/13/24, ¶ 7. The trial court granted trial counsel permission to withdraw and appointed the Delaware County Public Defender’s Office to represent Appellant, which also represents him on appeal. Order, 5/17/24.

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his counsel after Appellant’s repeated outbursts before the jury, continued arguing with the trial court and nonsensical request to testify while the jury was in deliberation[, after] having waived his right to testify in the final phase of the trial?

Appellant’s Brief at 5-6 (footnote omitted; capitalization modified).

In his first issue, Appellant claims the trial court improperly denied his

motion to suppress, where Officer Fridley unlawfully seized the firearm from

the vehicle without a search warrant, establishing any exception to the

warrant requirement, or exigent circumstances. See id. at 18-24.

“Our 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.” Commonwealth v. Dewald, 317 A.3d

1020, 1030 (Pa. Super. 2024) (citation and brackets omitted). “We are bound

by the facts found by the [suppression] court so long as they are supported

by the record, but we review its legal conclusions de novo.” Commonwealth

v. Rivera, 316 A.3d 1026, 1031 (Pa. Super. 2024). “Our scope of review of

suppression rulings includes only the suppression hearing record and excludes

evidence elicited at trial.” Commonwealth v. Lear, 290 A.3d 709, 715 (Pa.

Super. 2023) (citation omitted), reversed on other grounds, 325 A.3d 552

(Pa. 2024).

“Where, as here, the defendant is appealing the ruling of the

suppression court, we may consider only the evidence of the Commonwealth

and so much of the evidence for the defense as remains uncontradicted.”

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Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citation

omitted). “[I]t is within the suppression court’s sole province as factfinder to

pass on the credibility of witnesses and the weight to be given their

testimony.” Commonwealth v. Ochoa, 304 A.3d 390, 396 (Pa. Super.

2023) (citation and brackets omitted); see also Commonwealth v.

Carmenates, 266 A.3d 1117, 1123 (Pa. Super. 2021) (en banc) (“We are

highly deferential to the suppression court’s factual findings and credibility

determination[s].”). “The suppression court is free to believe all, some or

none of the evidence presented at the suppression hearing.”

Commonwealth v. Byrd, 185 A.3d 1015, 1019 (Pa. Super. 2018) (citation

omitted).

In order to conduct a traffic stop for a violation of the Motor Vehicle

Code, a police officer must have probable cause to believe an offense has

occurred. Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008).

Instantly, Appellant concedes Officer Fridley had probable cause to effectuate

“a justified traffic stop” of Appellant’s vehicle, based on his observations of

Appellant’s above-described Motor Vehicle Code violations. Appellant’s Brief

at 22-23; see also Trial Court Opinion, 8/1/24, at 4 (determining the

testimony of Officer Fridley at the suppression hearing “supports a finding that

he had probable cause to believe that [Appellant] …, as the driver, violated

the Motor Vehicle Code. Officer Fridley testified that he saw [Appellant’s]

vehicle being driven erratically, and the validity of the license plate could not

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be verified. Accordingly, the stop of the vehicle was lawful.” (capitalization

modified)). Appellant further concedes “[i]t is valid that Office[r] Fridley could

request [Appellant] to get out of the Jeep” following the lawful traffic stop.

Appellant’s Brief at 22; see also Commonwealth v. Mack, 953 A.2d 587,

589 (Pa. Super. 2008) (“[P]olice may request both drivers and their

passengers to alight from a lawfully stopped car as a matter of right.”

(citations omitted)).

Appellant argues, however, that “Officer Fridley [was not] at a lawful

vantage point” when he “view[ed] the firearm and subsequently seize[d] it

under the plain view doctrine[.]” Appellant’s Brief at 23; see also id.

(asserting the Officer lacked “probable cause to enter the open car door and

view the interior of the Jeep.”). Appellant contends that Officer Fridley’s

opening of the vehicle’s driver’s side door was an unconstitutional violation

that tainted the Officer’s plain view of the firearm. Id. at 23 (“It was not until

Officer Fridley made the decision to search the vehicle, opened the driver’s

side door, physically guide[d Appellant] out of the [vehicle], remain[ed] inside

the now open compartment[,] and ‘peek[ed]’ under the driver’s seat with his

flashlight that he was able to view the firearm.”); see also id. (“When Officer

Fridley was in a lawful vantage point, just as any member of the public might

be, he was unable to see a firearm in plain view.”).

The Commonwealth counters the trial court properly denied Appellant’s

motion to suppress, where Officer Fridley observed the firearm in plain view,

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from a lawful vantage point, and all elements of the plain view doctrine were

met. See Commonwealth Brief at 10-15. The Commonwealth emphasizes it

is undisputed that Officer Fridley had the authority to order Appellant to alight

from the vehicle following the lawful traffic stop. Id. at 12. According to the

Commonwealth, Officer Fridley did not need probable cause to open the

vehicle’s driver’s side door. Id. at 14; see also id. at 14-15 (“Probable cause

is not required to ask an occupant to step from a vehicle during a traffic stop,

and there is [no] difference between Officer Fridley opening the car door

versus [Appellant] doing so.”). The Commonwealth further argues Officer

Fridley’s “use of [a] flashlight[] during the observation does not negate plain

visibility.” Id. at 13.

“When a police officer forcibly stops a motor vehicle, the stop constitutes

a ‘seizure’ within the meaning of the Fourth Amendment and activates

constitutional protections against unreasonable searches and detentions.”

Commonwealth v. Malloy, 257 A.3d 142, 147-48 (Pa. Super. 2021) (citation

omitted). We have recognized that

[a]s a general rule, a warrant stating probable cause is required before a police officer may search for or seize evidence. Absent the application of one of a few clearly delineated exceptions, a warrantless search or seizure is presumptively unreasonable.

Commonwealth v. Heidelberg, 267 A.3d 492, 502 (Pa. Super. 2021)

(internal citations and quotation marks omitted).

One exception to the warrant requirement is the plain view doctrine,

which we have explained as follows:

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The plain-view doctrine permits the warrantless seizure of an object when: (1) an officer views the object from a lawful vantage point; (2) it is immediately apparent to him that the object is incriminating; and (3) the officer has a lawful right of access to the object. There can be no reasonable expectation of privacy in an object that is in plain view.

Id. (citation omitted; emphasis added);7 see also Commonwealth v.

McCree, 924 A.2d 621, 627 (Pa. 2007) (distinguishing the limited intrusion

of the seizure of evidence in plain view from the greater intrusion of an

automobile search).

This Court has stated that

[w]hile the law of search and seizure is constantly evolving, its focus remains on the delicate balance of protecting the right of citizens to be free from unreasonable searches and seizures and protecting the safety of citizens and police officers by allowing police to make limited intrusions on citizens while investigating crime. Commonwealth v. Blair, 860 A.2d 567, 571 (Pa.[ ]Super. 2004). The court 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.] Zhahir, … 751 A.2d [1153,] 1158 [(Pa. 2000)].

Mack, 953 A.2d at 590 (emphasis added). The Mack Court further stated

that “[a]llowing police officers to control all movement in a traffic encounter

is a reasonable and justifiable step towards protecting their safety.” Id.

(citation and ellipses omitted).

7 In the instant appeal, Appellant contends the evidence failed to establish only the first prong of the plain view doctrine, i.e., police viewing the contraband from a lawful vantage point. See Appellant’s Brief at 23-24.

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Instantly, Officer Fridley testified at the suppression hearing that he

stopped Appellant’s vehicle, in a high-crime area, after observing undisputed

Motor Vehicle Code violations. N.T., 3/6/23, at 9-11, 20-22. Officer Fridley

approached the vehicle on the passenger side and conversed with the driver,

Appellant, through the open window. Id. at 14, 24. Officer Fridley noticed

that Appellant “seemed abnormally nervous,” would not initially make eye

contact with the Officer, and was “abnormally shaking” when he handed the

Officer his identification. Id. at 14; see also id. at 26 (Officer Fridley

testifying, on cross-examination, that although it is “fairly common” to see

indicators of a motorist’s nervousness during a traffic stop, Appellant exhibited

“extremely obvious nervousness,” which aroused the Officer’s suspicions).

Officer Fridley elaborated that based on his “training and experience[, he

observed] several overt indicators of deceptive behavior, nervousness coming

from [Appellant].” Id. at 26.

After Appellant provided his identification, Officer Fridley returned to his

police cruiser to conduct a computer check of Appellant’s records. Id. at 14.

Officer Fridley testified that his records check revealed that Appellant was on

parole for aggravated assault with a firearm. Id.

While he was performing the records check, Officer Fridley could

partially see inside Appellant’s vehicle and “observed [Appellant] bend down

towards the floor of the vehicle more than once, and upon lifting himself back

up, he was looking in his sideview mirror back at my patrol vehicle.” Id. at

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15; see also id. (Officer Fridley stating that when Appellant “looked in the

sideview mirror, [Appellant] appeared to be seeing if I was walking up to the

vehicle or where I was at, my location.”). Officer Fridley testified that “as

soon as I observed [Appellant] reaching towards the floor, … my goal was at

that point to make him exit the vehicle.” Id. at 29. The Officer further

testified he “believed that [Appellant] was either attempting to brandish or

conceal a weapon when I saw [Appellant’s body] movements [inside the

vehicle], and I wanted to make sure he was out of the vehicle for the safety

of [Appellant], myself, and [the backup officer, Officer Strofe].” Id. at 33.

Officer Fridley then exited his cruiser, approached the vehicle, and

requested Appellant “to exit the vehicle[; Appellant] began asking why.” Id.

at 15. Officer Fridley testified, “as I was explaining to [Appellant] the reason,

he continued to reach … around” and made “some other random movements

where I couldn’t see his right hand.” Id. at 16. The Officer believed that

Appellant was reaching “down either between the seats or … down towards

the floorboard.” Id.

Officer Fridley then opened the vehicle’s driver’s side door, “guided

[Appellant] from the vehicle,” and instructed him to walk towards the rear of

the vehicle, where Officer Strofe was waiting. Id. at 16, 39; see also id.

(Officer Fridley stating police also escorted Ms. Sanders from the vehicle).

After removing all occupants from the vehicle, Officer Fridley, with the

assistance of a flashlight, “looked to the area where [Appellant] had been

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reaching.” Id.; see also id. at 33 (“I intended to look where [Appellant] was

reaching because I believed he was either attempting to retrieve or conceal a

firearm.”). Officer Fridley “immediately observed[,]” “directly under” the

driver’s seat, “what appeared to be a semiautomatic firearm.” Id. at 17. But

see also id. at 42 (Officer Fridley confirming on cross-examination that he

did not see the firearm prior to illuminating the cabin of the vehicle with the

flashlight). The Officer testified the firearm “wasn’t pushed back. It was just

right at the … lip of the floorboard there where the seat is on its tracks.” Id.

at 17.8

Officer Fridley testified he observed the firearm while “[s]tanding

in the street at the driver’s door, which was open, and peering into the

vehicle” with a flashlight. Id. (emphasis added). The Officer further

confirmed that when he observed the firearm, at no point did any portion

of his body enter the vehicle. Id. at 48; see also id. at 45 (Officer Fridley

confirming his prior testimony at Appellant’s preliminary hearing that he

“didn’t have to get under [the vehicle’s seat] and look with a flashlight or

anything. You could see [the firearm] from where I was standing.”).

The trial court, in denying Appellant’s motion to suppress, specifically

“found the testimony of [] Officer [Fridley] to be credible.” Order/Findings of

8 Officer Fridley testified he did not take any photographs of the firearm prior

to securing it, as the firearm and Appellant “were both unsecured, and I immediately wanted to make the firearm safe to prevent any kind of safety issue before … [Appellant] was placed in handcuffs.” N.T., 3/6/23, at 18.

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Fact and Conclusions of Law, 4/19/23, at 3. As Appellant concedes, “the

parties, on appeal, are bound by the credibility determination of the trial

court[.]” Appellant’s Brief at 20 (citation and quotation marks omitted); see

also Carmenates, 266 A.3d at 1123 (stating appellate courts are “highly

deferential to the suppression court’s … credibility determination[s].”).

The trial court further concluded that the warrantless seizure of the

firearm was permitted under the plain view doctrine. See Trial Court Opinion,

8/1/24, at 5-6; Order/Findings of Fact and Conclusions of Law, 4/19/23, at 5-

6. We agree.

This Court’s recent decision in Commonwealth v. Veney, 328 A.3d

482 (Pa. Super. 2024) (unpublished memorandum),9 is analogous and

instructive. In Veney, Philadelphia Police Officer Chris Ficchi (Officer Ficchi),

while on routine highway patrol, observed Jamir Veney (Veney) driving a

vehicle that had unlawful window tint and effectuated a traffic stop. Veney,

328 A.3d 482 (unpublished memorandum at 1). Veney stopped the vehicle

and rolled down his windows to converse with Officer Ficchi. Id. at 2.

According to Officer Ficchi, Veney appeared very nervous and “kept moving

his hands,” despite the officer’s repeated requests “to stop moving his

hands[.]” Id.

Officer Ficchi asked Veney for his driver’s license and registration. He also asked Veney, “Do you have a permit to carry [a firearm], ____________________________________________

9 Pursuant to Pa.R.A.P. 126(b), this Court’s unpublished memoranda filed after

May 1, 2019, may be cited for their persuasive value.

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or anything that I need to know about?” Veney stated, “No. I just got this weed.” Officer Ficchi then opened Veney’s car door and saw a magazine from a handgun sticking out from under Veney’s seat in between Veney’s legs. Officer Ficchi testified that he did not move anything in Veney’s vehicle, nor did he have to look for anything in order to observe the firearm from his vantage point. He also stated he had a flashlight in his hand at this time.

Id. at 2-3 (citation and brackets omitted; emphasis added). Officer Ficchi

then seized the handgun and placed Veney in custody. Id. at 3.

The Commonwealth charged Veney with firearms offenses, and Veney

filed a motion to suppress evidence of the firearm, which the trial court denied.

Id. Following Veney’s conviction of firearms offenses, he appealed and

challenged the denial of his suppression motion, asserting “[Officer Ficchi’s]

opening of [Veney’s] car door after a traffic stop … was an unreasonable

unconstitutional intrusion that tainted [Officer Ficchi’s] observation of the

firearm after he opened the door[.]” Id. at 4 (citation omitted).

This Court affirmed, holding the trial court properly denied Veney’s

suppression motion, where Officer Ficchi lawfully seized the firearm under the

plain view doctrine:

Officer Ficchi observed the magazine sticking out from under the driver’s seat, from a lawful vantage-point—a public street where Officer Ficchi lawfully stopped Veney for a Vehicle Code violation, following which Officer Ficchi had the right to order Veney out of the car for his and [his partner’s] safety. At the suppression hearing, Officer Ficchi testified that he “opened [the] door due to the fact [Veney] was being really nervous. He was reaching around. And when he told me he had narcotics in the vehicle, that is when I opened the door.” N.T. Suppression Hearing, 9/22/22, at 21-22. Officer Ficchi stated: “I opened the door,[] just in case— it is a better stand[]point for me in case I have to go hands-on or

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deal with the actions of the defendant or the driver for that reason.” Id. at 23.

Based on the circumstances, including Veney’s behavior and admission regarding marijuana, the scope of the intrusion following the stop—opening the car door—was a “negligibly burdensome precaution” and objectively necessary for law enforcement safety. See Commonwealth v. Ross, … 297 A.3d 787, 792-93 (Pa. Super. 2023) (“[t]raffic stops are especially fraught with danger to police officers, so an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely.”) (citations omitted); see also [] Malloy, … 257 A.3d [at] 149 … (“[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 attend to related safety concerns.”) (emphasis added) (citation omitted). We agree with the Commonwealth that, under these circumstances, the mere fact that Officer Ficchi opened the car door, rather than waiting for Veney to do so himself, does not rise to the level of a constitutional violation or vitiate the officer’s lawful vantage-point.

Veney, 328 A.3d 482 (unpublished memorandum at 7-8) (italics emphasis

added; bold emphasis in original); see also id. at 6 (citing Pennsylvania v.

Mimms, 434 U.S. 106, 111 (1977) (“What is at most a mere inconvenience

[to a driver who is asked to step out of his or her car during a traffic stop]

cannot prevail when balanced against legitimate concerns for the officer’s

safety.”)).

Instantly, Officer Fridley observed Appellant commit multiple Vehicle

Code violations in a known high-crime area. N.T., 3/6/23, at 9, 20-21. During

the stop, Officer Fridley observed Appellant exhibit “extremely obvious

nervousness,” make random movements, and bend his body toward the floor

of the vehicle. Id. at 14-15, 26, 28. The Officer testified he “believed that

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[Appellant] was either attempting to brandish or conceal a weapon” based

upon his observations of Appellant’s body movements in the vehicle. Id. at

33. Further, the Officer’s check of Appellant’s identification revealed Appellant

was on parole for aggravated assault with a firearm. Id. at 14-15.

As stated above, Appellant concedes “[i]t is valid that Office[r] Fridley

could request [Appellant] to get out of the Jeep” during the lawful traffic stop.

Appellant’s Brief at 22; see also Mack, 953 A.2d at 589. Under these

circumstances, we conclude Officer Fridley was permitted to make the limited

intrusion of opening the vehicle’s driver’s side door and escorting Appellant

from the vehicle, to ensure the safety of all persons. See Veney, supra;

Mimms, supra; Mack, supra. Like the situation in Veney, “the scope of the

intrusion following the stop—opening the [vehicle’s] door—was a negligibly

burdensome precaution and objectively necessary for law enforcement

safety.” Veney, 328 A.3d 482 (unpublished memorandum at 7) (citation and

quotation marks omitted).

Moreover, the trial court correctly determined that Officer Fridley’s use

of a flashlight did not vitiate the Officer’s lawful vantage point, reasoning in

its opinion as follows:

The Pennsylvania Supreme Court has held that officers who observed stolen items [in plain view] through the windows of a van[, from a lawful vantage point outside of the vehicle] with the aid of a flashlight[,] were justified in seizing the items. Commonwealth v. Milyak, 493 A.2d 1346[, 1349] (Pa. 1985). Further, [in Milyak,] the fact that an officer required illumination from a flashlight to see into the darkened interior of the vehicle did not prevent the [contraband that police viewed inside the van]

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from being in plain view or render the policeman’s conduct unreasonable. [See id. at 1349, n.5 (“[T]he use of artificial light to look into a vehicle is generally justified[.]” (citations omitted)).]

Trial Court Opinion, 8/1/24, at 5-6.

Based upon the foregoing, we conclude the trial court correctly ruled

that Officer Fridley lawfully seized the firearm under the plain view doctrine

and properly denied Appellant’s suppression motion. See id.; see also

Veney, supra; Commonwealth v. Parker, 957 A.2d 311, 313, 316 (Pa.

Super. 2008) (upholding trial court’s denial of defendant/motorist’s motion to

suppress evidence, where the officer who initiated the lawful traffic stop

performed a pat-down search of defendant’s person, after observing

defendant, while seated inside defendant’s car, “reach down, dipping his

shoulders right and left[,]” which “caused the officer to believe that

[defendant] might be concealing a weapon.” (citations omitted));

Commonwealth v. Gallo, 328 A.3d 522 (Pa. Super. 2024) (unpublished

memorandum at 11) (upholding trial court’s denial of defendant/motorist’s

motion to suppress evidence of drugs police observed, in plain view on

defendant’s driver’s seat, during a lawful traffic stop, where police made their

plain view observations after removing defendant from the car for officer

safety). Accordingly, Appellant’s first issue does not merit relief.

In his second issue, Appellant claims the trial court erred, and violated

his rights under the Confrontation Clause, by limiting trial counsel’s cross-

examination of Officer Fridley at trial concerning his conviction in an unrelated

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case, and suspension from the police force. See Appellant’s Brief at 25-27.

Appellant points out that

[t]he Confrontation Clause of the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution confers the right upon a defendant in criminal proceedings to conduct cross-examination that reveals any motive that a witness may have to testify falsely.

Id. at 25 (citing Commonwealth v. Bozyk, 987 A.2d 753, 756 (Pa. Super.

2009) (discussed infra)). Appellant maintains Officer Fridley’s disciplinary

history established his motive to testify falsely in Appellant’s case. Id. at 27.

According to Appellant,

[t]he fact that the trial court permitted very limited cross- examination [at trial] regarding Officer Fridley’s suspension for misconduct demonstrates that the evidence is relevant, as defined by Pennsylvania Rule [o]f Evidence 402, and fall[s] within the purview of the Confrontation Clause. This finding of relevance also establishes that the trial court deemed that the suspension related to [Appellant’s] criminal charges and establish a motive for fabrication.

Id. (punctuation modified).

The Commonwealth counters the trial court properly limited Appellant’s

cross-examination of Officer Fridley, and no Confrontation Clause violation

occurred. See Commonwealth Brief at 16-19.

Contrary to [Appellant’s] contention, Officer Fridley’s unrelated conviction had no bearing on his actions in [Appellant’s] arrest, would not reveal any motive for him to fabricate testimony, and [had] no bearing on [Appellant’s] guilt or innocence. Resultingly, it was not appropriate impeachment; rather, the information would have resulted in nothing but confusion and misleading the jury as to the issues at hand.

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Id. at 16-17. The Commonwealth further claims Appellant “suffered no

prejudice. [Trial] counsel was able to elicit the testimony required to make

his arguments.” Id. at 17.

“We review a challenge to the trial court’s evidentiary rulings for an

abuse of discretion.” Commonwealth v. Williamson, 330 A.3d 407, 414

(Pa. Super. 2025) (citation omitted); see also Commonwealth v. Mendez,

74 A.3d 256, 260 (Pa. Super. 2013) (our “standard of review for a trial court’s

evidentiary rulings is narrow.” (citation omitted)).

An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias[,] or ill-will, as shown by the evidence or the record, discretion is abused.

Commonwealth v. Jackson, 283 A.3d 814, 817 (Pa. Super. 2022) (citation

“The threshold inquiry with admission of evidence is whether evidence

is relevant.” Id. (citation omitted). Evidence is relevant if “it has the tendency

to make a fact more or less probable than it would be without the evidence[,]”

and “the fact is of consequence in determining the action.” Pa.R.E. 401(a)-

(b). Pursuant to Rule of Evidence 403, a trial court “may exclude relevant

evidence if its probative value is outweighed by a danger of one of more of

the following: unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting cumulative evidence.”

Pa.R.E. 403; see also Commonwealth v. Brown, 212 A.3d 1076, 1086 (Pa.

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Super. 2019) (“Admission of evidence rests within the sound discretion of the

trial court, which must balance evidentiary value against the potential dangers

of unfairly prejudicing the accused, inflaming the passions of the jury, or

confusing the jury.” (citations and ellipses omitted)). “Unfair prejudice,” in

the context of applying Rule 403, means “a tendency to suggest decision on

an improper basis to divert the jury’s attention away from its duty of weighing

the evidence impartially.” Commonwealth v. Kane, 188 A.3d 1217, 1228

(Pa. Super. 2018) (citation omitted); see also Pa.R.E. 403, cmt. “Exclusion

is limited to evidence so prejudicial that it would inflame the jury to make a

decision upon something other than the legal propositions relevant to the

case.” Commonwealth v. Knupp, 290 A.3d 759, 776 (Pa. Super. 2023)

(citation, brackets, and quotation marks omitted).

This Court has discussed the admissibility of a police officer’s disciplinary

history as follows:

The pertinent case law permits a police witness to be cross- examined about misconduct as long as the wrongdoing is in some way related to the defendant’s underlying criminal charges and establishes a motive to fabricate. Commonwealth v. Peetros, 535 A.2d 1026 (Pa. 1987) (police witness had been demoted after it was discovered he repeatedly took bribes; defendant was improperly restricted from impeaching [the officer] with this evidence since it bolstered entrapment defense in defendant’s bribery prosecution); Commonwealth v. Dawson, 405 A.2d 1230 (Pa. 1979) (police officer was under investigation at trial and had been demoted for beating defendant’s co- defendant; defendant should have been permitted to question officer about the matter since it provided officer with motive to obtain conviction against defendant as well as to fabricate fact that defendant had confessed); Commonwealth v. Sullivan, 402 A.2d 1019 (Pa. 1979) (police witness faced suspension based

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upon outcome at defendant’s trial and defendant should have been allowed to explore that matter at his trial); Commonwealth v. Shands, 487 A.2d 973 (Pa. Super. 1985) (defendant awarded new trial because he had not been permitted to impeach officer with fact that he was part of group of police officers who were racially biased, made false arrests, and perjured themselves in criminal prosecutions).

However, if the prior police behavior is unrelated to the present matter and irrelevant, the trial court is permitted to restrict questioning on the prior incident. Commonwealth v. Boczkowski, 846 A.2d 75 (Pa. 2004) (fact that police witness withheld evidence in prior case was not relevant because there was no evidence of withholding evidence in case at hand); Commonwealth v. Bright, 420 A.2d 714 (Pa. Super. 1980) (defendant could not impeach police officer with potential disciplinary action for excessive use of force by different officer since that cross-examination had no relationship to case in question); see also Commonwealth v. Guilford, 861 A.2d 365, 369 (Pa. Super. 2004) (quoting Bright, [420 A.2d] at 716) (“a witness may not be contradicted on ‘collateral’ matters, ... and a collateral matter is one which has no relationship to the case at trial.”).

Bozyk, 987 A.2d at 757 (emphasis added; citations modified).

With respect to a defendant’s Confrontation Clause rights, we have

observed that “[w]hether a defendant was denied his right to confront a

witness … is a question of law for which our standard of review is de novo and

our scope of review is plenary.” Commonwealth v. Jones, 323 A.3d 13, 21

(Pa. Super. 2024) (citation and brackets omitted). This Court has explained

the relevant law regarding the Confrontation Clause as follows:

The Confrontation Clause of the Sixth Amendment confers a constitutional right upon the defendant to conduct cross- examination that reveals any motive that a witness may have to testify falsely; however, that right is not unlimited:

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The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” The right of confrontation, which is secured for defendants in state as well as federal criminal proceedings, Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L.Ed.2d 923 (1965), “means more than being allowed to confront the witness physically.” Davis v. Alaska, 415 U.S. [308,] 315, 94 S. Ct. [1105,] 1110 [39 L.Ed.2d 347 (1974)]. Indeed, “‘the main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.’” Id., at 315-316, 94 S. Ct., at 1110 (quoting 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940)). Of particular relevance here, “we have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Davis, supra, at 316-17, 94 S. Ct., at 1110 (citing Greene v. McElroy, 360 U.S. 474, 496 79 S. Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959)). It does not follow, of course, that the Confrontation Clause … prevents a trial judge from imposing any limits on defense counsel’s inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on [] cross-examination based on concerns about, among other things, harassment, and prejudice, confusion of the issues, … or interrogation that is … only marginally relevant.

Bozyk, 987 A.2d at 756 (emphasis in original omitted; emphasis added)

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986)).

Our decision in Bozyk is analogous to the instant case. In Bozyk,

Michael Bozyk (Bozyk) was convicted of gun possession charges, related to a

traffic incident involving Bozyk’s vehicle observed by Philadelphia Police

Officer Scott Schweizer (Officer Schweizer). Id. at 754. Prior to Bozyk’s jury

trial, the Commonwealth filed a motion in limine seeking to preclude reference

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at trial to Officer Schweizer’s police disciplinary history. Id. at 755; see also

id. (noting that in 2000, several years before Bozyk’s trial, the police internal

affairs division “found a disciplinary violation occurred due to Officer

Schweizer’s false statement in a police report, and he was suspended for two

days.”). The trial court granted the Commonwealth’s motion in limine,

“conclud[ing] that the conduct resulting in the disciplinary action was both

remote in time and isolated and that it had no nexus to the present matter.”

Id.

On appeal, Bozyk claimed the trial court abused its discretion in

precluding him from cross-examining Officer Schweizer about his disciplinary

history, which allegedly “provided a motive for Officer Schweizer to lie in

[Bozyk’s] prosecution.” Id. at 757. Bozyk claimed the trial court’s improper

ruling deprived him of his Confrontation Clause rights. Id. at 756. We

affirmed and rejected Bozyk’s claim, reasoning as follows:

The police investigation in 2000 would render Officer Schweizer less, rather than more, likely to commit perjury. The prior disciplinary action would motivate Officer Schweizer to be truthful in his police reports as well as on the witness stand so that he would not suffer further punishment. Officer Schweizer was not under investigation at the time of [Bozyk’s] trial and had already been reprimanded. He did not need to ingratiate himself to his superiors by obtaining a conviction because the prior matter was closed. The [internal affairs] investigation occurred years before trial, it was resolved with a minor, two-day suspension, and the officer had not been subject to any other disciplinary proceedings. This officer was not involved in bribery or perjury.

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Id. at 758. We “agree[d] with the trial court that the 2000 [internal affairs]

investigation was collateral, irrelevant, and did not provide Officer Schweizer…

with a motive to falsely accuse [Bozyk] of possessing a gun.” Id.

In the instant case, the trial court

found that the probative value [of evidence of Officer Fridley’s unrelated prior conviction] was outweighed by both unfair prejudice and confusing the issues. Accordingly, this court did not abuse its discretion or [commit] an error in sustaining the Commonwealth’s [objection to cross-examination of the Officer on this subject].

Trial Court Amended Opinion, 12/5/24, at 4 (capitalization modified).

The trial court’s finding is supported by the record and the law, and we

agree with its conclusion. Like the situation in Bozyk, Officer Fridley’s (1)

“conduct resulting in the disciplinary action was both remote in time and

isolated and [] it had no nexus to the present matter[,]” Bozyk, 987 A.2d at

755; and (2) unrelated, prior conviction “was collateral, irrelevant, and did not

provide Officer [Fridley]… with a motive to falsely accuse Appellant of

possessing a gun.” Id. at 758. Accordingly, because Officer Fridley’s

conviction “is unrelated to the [charges against Appellant] and irrelevant, the

trial court [was] permitted to restrict questioning on the prior incident.” Id.

at 757.

Moreover, the record contains no support for Appellant’s bald allegation

that the trial court implicitly “deemed that [Officer Fridley’s] suspension [was]

related to [Appellant’s] criminal charges[.]” Appellant’s Brief at 27. We

conclude the trial court did not abuse its discretion in limiting Appellant’s

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cross-examination of Officer Fridley. Appellant’s second issue does not merit

relief.

In his third issue, Appellant contends the trial court improperly denied

his motion for a mistrial, which he made in response to Appellant’s above-

described outburst during closing arguments. See Appellant’s Brief at 28-30.

Appellant asserts that, at trial, he

informed the trial court that he was dissatisfied with [trial] counsel’s cross-examination and closing argument. Although the trial court conducted a colloquy informing [Appellant] that he would be removed from the courtroom should he continue to interrupt counsel’s closing argument, the court did not inform [Appellant] regarding his Sixth Amendment right to be present and that his conduct would result in a waiver of that right. Therefore, [Appellant’s] request for [a] mistrial should have been granted.

Id. at 29 (internal citation to record omitted). Appellant complains the trial

court never advised him of his Sixth Amendment rights, and cites our Supreme

Court’s decision in Commonwealth v. Vega, 719 A.2d 227 (Pa. 1998), which

stated:

The Sixth Amendment to the United States Constitution guarantees the right of an accused to be present in court at every stage of a criminal trial. A defendant who has not been charged with a capital offense may, however, waive that right either expressly or impliedly. … For an individual to be able to make a knowing and intelligent waiver of a constitutional right, he must have been aware of both the nature of the constitutional right and the risk of forfeiting the same.

Id. at 230 (internal citations omitted); Appellant’s Brief at 28.

The Commonwealth counters the trial court properly denied Appellant’s

mistrial motion, where “[t]he incident did not prevent [Appellant] from

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receiving a fair trial as [Appellant’s] remarks did not prevent the jury from

weighing the evidence and rendering a verdict.” Commonwealth Brief at 20.

The Commonwealth emphasizes “[t]he only time the jury heard [Appellant]

interrupt was during [trial] counsel’s closing. Moreover, [Appellant’s] outburst

was not even that inflammatory.” Id. at 22. The Commonwealth claims

Appellant should not be rewarded for his volitional, boisterous conduct, which

the trial “court found to be nothing more than a tactical move by [Appellant]

to ensure his chance at a new trial.” Id. at 20. The Commonwealth points

out that the trial court issued the jury a cautionary instruction, which, it

asserts, “was adequate to overcome any potential prejudice”; therefore, the

“extreme remedy [of a mistrial] was unnecessary.” Id.

Further, the Commonwealth claims that no violation of Appellant’s Sixth

Amendment rights occurred, where “[Appellant’s] behavior, and his refusal to

change that behavior, led to him being removed” from the courtroom. Id. at

25; see also id. (pointing out that immediately after Appellant’s outburst

during closing arguments, the trial court “caution[ed Appellant] that additional

outbursts would result in his removal.”). The Commonwealth contends

Appellant’s reliance upon Vega, supra, is misplaced, as unlike the situation

in Vega, the instant case does not present “a situation wherein [Appellant]

expressly requested to be absent” from trial. Id. at 24.

Our standard of review in assessing the denial of a mistrial is as follows:

The trial court is in the best position to assess the effect of an allegedly prejudicial statement on the jury, and as such, the grant

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or denial of a mistrial will not be overturned absent an abuse of discretion. A mistrial may be granted only where the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict. Likewise, a mistrial is not necessary where cautionary instructions are adequate to overcome any possible prejudice.

Commonwealth v. Johnson, 107 A.3d 52, 53 (Pa. 2014) (citation omitted);

see also Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009)

(observing that a mistrial is an extreme remedy).

It is well settled that a mistrial is not necessary where cautionary

instructions are adequate to overcome any potential prejudice.

Commonwealth v. Spotz, 716 A.2d 580, 593 (Pa. 1998); see also

Commonwealth v. Philistin, 774 A.2d 741, 743 (Pa. 2001) (“Prejudice that

might result from a spectator outburst can be cured through a remedial

instruction to the jury.”). The law presumes that a jury will follow the trial

court’s instructions. Commonwealth v. Speight, 854 A.2d 450, 458 (Pa.

2004).

“Whether and to what extent relief is due from an incident such as an

emotional outburst in the courtroom is within the discretion of the trial court,

and unless the unavoidable effect of the incident is to deny the defendant a

fair trial, there is no error.” Commonwealth v. Bracey, 662 A.2d 1062,

1072 (Pa. 1995). “[I]n the area of bystander misconduct, … it is primarily

within the trial judge’s discretion to determine whether the defendant was

prejudiced by the misconduct.” Philistin, 774 A.2d at 743 (citations omitted).

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“A criminal defendant has both a rule-based right to be present for trial,

Pa.R.Crim.P. 602, as well as a constitutional right.” Commonwealth v.

Tejada, 188 A.3d 1288, 1293 (Pa. Super. 2018).

The United States Constitution [and] the Pennsylvania Constitution … guarantee the right of an accused to be present in the courtroom at every stage of a criminal trial. However, in Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L.Ed.2d 353 (1970), the United States Supreme Court determined that the right to be present in the courtroom is not absolute and explicitly held,

that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.

Id. at 343, 90 S. Ct. at 1060-1061, 25 L.Ed.2d at 359. See also Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976).

Commonwealth v. Basemore, 582 A.2d 861, 866-67 (Pa. 1990) (footnotes

Instantly, the trial court determined it properly denied Appellant’s

mistrial motion, reasoning in its opinion as follows:

It was not until the start of closing arguments on February 29, 2024[, that Appellant first] bec[a]me obstreperous. It was clear to the trial court that [Appellant] was purposely trying to force a mistrial. Moreover, when [Appellant] started interrupting the closing arguments, [the trial] court gave the jury a [cautionary] instruction, [N.T., 2/29/24,] at 9-10, which this

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court reasonably determined to be sufficient to cure any perception/misperception the jury may have had.

Trial Court Amended Opinion, 12/5/24, at 4-5 (emphasis added; citations,

capitalization, and punctuation modified).

At trial, the trial court gave the jury the following cautionary instruction

in response to Appellant’s outburst:

THE COURT: Ladies and gentlemen, [during] the closing argument by [trial counsel], he was interrupted. I did give trial counsel an opportunity to speak with his client. I’m hoping you did not hear any of that [conversation], but if you did, it’s not part of the evidence in this case. It has nothing to do with this case, [and is] not to be considered by you in any way. Your decision has to be solely based on the evidence presented during this trial. Also, as I already explained to you, each side gets an opportunity to make a closing argument that is being done by the attorneys and not by individuals. And so, I’m instructing you that the appropriate person to make the closing argument on behalf of [Appellant] is [trial counsel]. And I’m going to have [trial counsel] start doing that again. And I am advising [Appellant] that he should not interrupt.

N.T., 2/29/24, at 9-10 (punctuation modified).

We conclude the trial court’s cautionary instruction was adequate to

overcome any potential prejudice Appellant may have suffered from his own

outburst. See Spotz, 716 A.2d at 593 (stating a mistrial is not necessary

where cautionary instructions are adequate to overcome any potential

prejudice); Philistin, 774 A.2d at 744 (upholding the trial court’s denial of

defendant’s motion for a mistrial made in response to a courtroom outburst

by spectators during the announcement of the jury’s verdict, concluding,

“[g]iven the facts that the outburst occurred only once, that it was promptly

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brought under control by the trial court, and that a thorough curative

instruction was given to the jury before the proceedings continued, we are

satisfied that any potential prejudice was abated.”); Commonwealth v.

Marshall, 568 A.2d 590, 596 (Pa. 1989) (upholding the trial court’s denial of

defendant’s motion for a mistrial made in response to an emotional outburst

toward the defendant by one of the victims, stating, “[g]iven the fact that the

outburst was brief, occurred only once, and was followed by an immediate

instruction to the jury, we are satisfied that any prejudice was diffused[,] and

that [defendant’s right to a] fair trial was not threatened.”).

Moreover, we conclude no violation of Appellant’s right to be present for

trial occurred, where the trial court expressly warned Appellant that additional

courtroom outbursts would result in his removal, yet he persisted, impliedly

waiving his right to be present. See Basemore, supra. Appellant solely

caused the circumstances that led to his removal. We discern no error or

abuse of discretion in the trial court removing Appellant from the courtroom,

after he ignored its express warning, due to his outrageous and intentionally

disruptive behavior.

Finally, contrary to Appellant’s claim, Vega is inapposite. In Vega, prior

to the start of trial, after the trial court refused the defendant’s request for

the appointment of new counsel, the defendant expressly communicated that

he did not wish to be present during trial. See Vega, 719 A.2d at 228-29.

Our Supreme Court held that a defendant is entitled to a colloquy to “insure a

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defendant is aware of the dangers and disadvantages of waiving his right to

be present during trial.” Id. at 230. However, the Vega Court limited its

holding to cases where a defendant communicates an “express waiver” of his

right to be present at trial, distinguishing “those situations where a

defendant has impliedly waived his right to be present at trial through

his conduct or voluntary unexplained absence[.]” Id. at 229 (emphasis

added).

In sum, we conclude Appellant was not deprived of a fair and impartial

trial, and the trial court properly denied the extreme remedy of a mistrial.

See Johnson, supra; Judy, supra. Accordingly, Appellant’s third issue

merits no relief.

In his final issue, Appellant claims the trial court erred when, following

his outburst during closing arguments, it failed to “sua sponte engage in a

sufficient inquiry as to [Appellant’s] competency to proceed with trial and

assist [trial] counsel[.]” Appellant’s Brief at 30 (capitalization modified).

Appellant contends his outburst should have prompted the trial court to (1)

sua sponte call into question his mental competency; and (2) pause the trial

and conduct a competency hearing, as opposed to ordering Appellant’s

removal from the courtroom. Id. at 31 (“[T]he trial court violated

[Appellant’s] right to a fair trial by failing to order a competency hearing or

evaluation pursuant to Pennsylvania law.”). According to Appellant, “there

were sufficient signals to call his competence into question,” including

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his repeated outburst[s] before the jury, continued arguing with the trial court[,] and the nonsensical request to testify while the jury was deliberating the final severed charge presented at trial[,] after having declined to testify during the defense case in that portion of the proceedings.

The Commonwealth counters no sua sponte competency inquiry was

warranted, where Appellant exhibited no indication that he was unable to

understand the proceedings or participate in his defense. See Commonwealth

Brief at 25-28.

Throughout trial[, Appellant] had the ability to consult with [trial] counsel with a reasonable degree of understanding, participated in his defense, testified in his defense, and demonstrated that he understood the nature or object of the proceedings against him.

Id. at 27. According to the Commonwealth, Appellant’s unsolicited remarks

during closing arguments “were not bizarre or abnormal, or of such a nature

that would indicate a competency or mental problem.” Id.

It is established that “[a] defendant is presumed competent[,] and it is

[his] burden to show otherwise, the determination of which is within the sound

discretion of the trial court.” Commonwealth v. Bainey, 332 A.3d 66, 72

(Pa. Super. 2025) (citation omitted); see also Commonwealth v. Rainey,

928 A.2d 215, 236 (Pa. 2007) (stating a defendant’s burden of establishing

incompetency is a preponderance of the evidence); Pa.R.E. 601(a). 10 “A

10 Pennsylvania Rule of Evidence 601 provides as follows:

(Footnote Continued Next Page)

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determination of a defendant’s competency rests in the sound discretion of

the trial court and can be disturbed on appeal only on a showing of an abuse

of that discretion.” Commonwealth v. Bomar, 826 A.2d 831, 860 (Pa.

2003). A defendant bears the burden to

establish that he was either unable to understand the nature of the proceedings against him or to participate in his own defense. To obtain a hearing on this claim, [an a]ppellant would have to proffer evidence sufficient to meet this burden.

Commonwealth v. Smith, 17 A.3d 873, 900 (Pa. 2011) (internal citations

omitted); see also 50 P.S. § 7402(a) (incompetence to proceed on criminal

charges); Commonwealth v. Blakeney, 108 A.3d 739, 752 (Pa. 2014)

(“Competency to stand trial is measured by the relationship between counsel

Rule 601. Competency

(a) General Rule. Every person is competent to be a witness except as otherwise provided by statute or in these rules.

(b) Disqualification for Specific Defects. A person is incompetent to testify if the court finds that because of a mental condition or immaturity the person:

(1) is, or was, at any relevant time, incapable of perceiving accurately;

(2) is unable to express himself or herself so as to be understood either directly or through an interpreter;

(3) has an impaired memory; or

(4) does not sufficiently understand the duty to tell the truth.

Pa.R.E. 601.

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and client: To be deemed competent, the defendant needs to have the ability

to consult with counsel with a reasonable degree of understanding, in order

to participate in his defense, and he must be able to understand the nature or

object of the proceedings against him.”). A trial court is only required to order

a competency hearing if there “is reason to doubt the defendant’s

competency.” Commonwealth v. Uderra, 862 A.2d 74, 88 (Pa. 2004).

A trial court “may order an ‘incompetency examination’ of a criminal

defendant on its own motion and also upon application by the Commonwealth

or the defendant.” Commonwealth v. Humphrey, 283 A.3d 275, 290 (Pa.

2022) (quoting 50 P.S. § 7402(c), (d)). Our Supreme Court has stated that

[b]ecause the right not to be tried while incompetent is so fundamental, the trial court must “protect [it] even if the defendant has failed to make a timely request for a competency determination.” [Cooper v. Oklahoma, 517 U.S. 348, 354 n.4 (1996)]; Drope v. Missouri, 420 U.S. 162… (1975) (Where there are indications of incompetency, a defendant has a substantive due process right not to be tried while incompetent)[.]

Commonwealth v. Mason, 130 A.3d 601, 662 (Pa. 2015). Finally, appellate

courts afford “great deference” to “a trial judge’s competency determination

… because the judge has the opportunity to personally observe the

defendant’s behavior.” Bomar, 826 A.2d at 860 (citations omitted).

Instantly, the trial court opined that it correctly declined to sua sponte

order a competency hearing, reasoning as follows:

[The] defense rested its case after [Appellant] testified and was subject to cross[-]examination on February 28, 2024. N.T., 2/28/24, at 142. Up until this time, [Appellant] clearly was competent to assist [trial] counsel through[]out the case in chief.

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Trial Court Amended Opinion, 12/5/24, at 4.

Our review confirms the trial court’s determination is supported by the

record, and we discern no abuse of its discretion in failing to sua sponte order

a competency hearing. Appellant competently testified in his own defense at

trial, while represented by trial counsel, and exhibited no indicia of

incompetency. See generally N.T., 2/28/24, at 116-41.11 As stated above,

the first time Appellant exhibited any unexpected courtroom behavior was

during closing arguments in, as the trial court found, an unsuccessful attempt

to manufacture a mistrial. See Trial Court Amended Opinion, 12/5/24, at 4-

5. Appellant points to nothing that occurred during trial, aside from his own

last-minute outburst, to establish that he was incapable of understanding the

proceedings or unable to participate in his defense. See Smith, 17 A.3d at

900.

Moreover, we are persuaded by the Commonwealth’s claim that “it was

not [Appellant’s] lack of competency, but rather, his realization of the close of

trial and pending verdict, that [may have] spurred his” outburst during closing

arguments. Commonwealth Brief at 28. No violation of Appellant’s due

11 Appellant testified that Ms. Sanders owned the vehicle. See N.T., 2/28/24, at 116. Appellant denied bringing a firearm into the vehicle or knowing about the existence of the firearm in the vehicle. Id. at 118, 126, 137-38. However, Appellant conceded that the Commonwealth had presented evidence that forensic testing revealed Appellant’s DNA was on the surface of the firearm, but Appellant was unable to explain its presence. Id. at 126; see also id. at 90-94 (testimony of forensic DNA expert linking Appellant to the firearm).

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process rights occurred, and we will not afford Appellant relief for his own

courtroom misconduct. Appellant’s final issue merits no relief.

Based on the foregoing, we discern no abuse of discretion or error of

law in the trial court’s denial of Appellant’s motion to suppress evidence and

its rulings at trial. We thus affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Date: 6/3/2025

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