Com. v. Noel, M.

• Court: Superior Court of Pennsylvania
• Decided: February 13, 2018
• Docket: 568 EDA 2017
• Status: Unpublished

Opinion

J-A05026-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MALIK H. NOEL : : Appellant : No. 568 EDA 2017

Appeal from the Judgment of Sentence December 2, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006259-2013, MC-51-CR-0006441-2013

BEFORE: DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 13, 2018

Malik H. Noel (Appellant) appeals from the judgment of sentence

imposed after the trial court convicted him of possession of a firearm by a

prohibited person, carrying a firearm without a license, and carrying a

firearm on public streets or public property in Philadelphia.1 We affirm.

The pertinent facts and procedural history are as follows: On February

14, 2013, Philadelphia Police Sergeant William Schmid received three

separate radio reports relaying anonymous tips of a black male with a gun in

the area of the 3000 block of North 22nd Street in Philadelphia. The reports

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1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108.

____________________________________ * Former Justice specially assigned to the Superior Court. J-A05026-18

indicated that the male was wearing a white thermal shirt, and that he had

entered a barbershop.

Upon arriving on the 3000 block, Sergeant Schmid and his partner

entered a hair salon to ask whether anyone had made the reports of a male

with a gun. A female responded that they did not, but informed the officers

that there was a barbershop on the upstairs floor of the building. The

officers left the hair salon and proceeded to the barbershop. Upon entering,

they observed two barbers attending to clients. The officers asked whether

anyone had reported a male with a gun, and received no response.

Sergeant Schmid then observed Appellant seated in a barber chair and

wearing a black barber’s cape. Appellant’s arms, which were not covered by

the barber’s cape, revealed that he was wearing a white thermal shirt.

When Sergeant Schmid observed Appellant move his left hand under the

cape, the sergeant approached Appellant, asked to see his hand, and

removed the cape. Appellant then leaned forward, and Sergeant Schmid

saw the outline of a very large handgun protruding from Appellant’s

waistband. Sergeant Schmid recovered the gun and arrested Appellant.

The Commonwealth charged Appellant with the aforementioned

firearms offenses. Appellant presented a suppression motion which,

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following a hearing on March 13, 2014, the trial court granted.2 Thereafter,

the Commonwealth filed an interlocutory notice of appeal with this Court,

certifying that the suppression order had terminated or substantially

handicapped the prosecution. See Pa.R.A.P. 311(d). On June 17, 2015, a

panel of this Court reversed the order granting the suppression motion, and

remanded the case to the trial court. Commonwealth v. Noel, 122 A.3d

1134 (Pa. Super. 2015) (unpublished memorandum). Following a non-jury

trial, the trial court on January 12, 2016 found Appellant guilty of the

aforementioned firearms offenses. On December 2, 2016, the trial court

sentenced Appellant to an aggregate five years and one day to 17 years of

imprisonment.

On January 5, 2017, Appellant filed a petition seeking reinstatement of

his direct appeal rights, which the trial court granted on January 27, 2017.

Appellant filed a notice of appeal on February 9, 2017. Both Appellant and

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

Appellant presents the following two issues for our review:

1. Was Sgt. Schmid’s Terry frisk of [A]ppellant unlawful?

2. Should the firearm seized from [A]ppellant by Sgt. Schmid be suppressed as fruit of the poisonous tree? ____________________________________________

2 No written suppression motion or trial court order granting the motion appears in the record. However, on March 13, 2014, Appellant orally moved to suppress the firearm and the trial court granted the suppression motion on the record. N.T., 3/13/14, at 5, 63-64; see also Commonwealth v. Noel, 122 A.3d 1134 (Pa. Super. 2015) (unpublished memorandum at 3-4).

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Appellant’s Brief at 5.

In both of his issues, Appellant argues that the firearm should have

been suppressed as the product of an unlawful search and seizure.

Appellant’s Brief at 10-12. Notably, Appellant “concedes that the present

panel of the Superior Court cannot overrule the previous panel.” Id. at 9.

Nevertheless, Appellant asserts that no reasonable and articulable basis

existed to justify Sergeant Schmid’s actions, and that the firearm should

have been suppressed as the product of an unlawful search and seizure and

subsequent fruit of the poisonous tree. Id. at 10-12.

Upon review, we find that we are precluded from reviewing Appellant’s

claims by the Law of the Case Doctrine. As noted above, this Court

previously held that under the totality of the circumstances, suppression of

the firearm was improper because Sergeant Schmid articulated specific facts

which gave rise to reasonable suspicion and justified Sergeant Schmid’s

actions in recovering the firearm.

“Whether the Law of the Case Doctrine precludes review in a given

situation is a pure question of law. Therefore, our standard of review is de

novo.” Commonwealth v. Lancit, 139 A.3d 204, 206 (Pa. Super.

2016), appeal denied sub nom., Commonwealth v. Lancit, 164 A.3d

465 (Pa. 2016) (internal citations omitted). “The Law of the Case Doctrine is

an important tool of judicial efficiency that ‘serves to protect the

expectations of the parties, to insure uniformity of decisions, to maintain

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consistency in proceedings, to effectuate the administration of justice, and to

bring finality to the litigation.’” Id. at 206-207.

Our Supreme Court has explained:

[T]he “law of the case” doctrine . . . refers to a family of rules which embody the concept that a court involved in the later phases of a litigated matter should not reopen questions decided by another judge of that same court or by a higher court in the earlier phases of the matter. Among the related but distinct rules which make up the law of the case doctrine are that . . . upon a second appeal, an appellate court may not alter the resolution of a legal question previously decided by the same appellate court . . .

The various rules which make up the law of the case doctrine serve not only to promote the goal of judicial economy (as does the coordinate jurisdiction rule) but also operate (1) to protect the settled expectations of the parties; (2) to insure uniformity of decisions; (3) to maintain consistency during the course of a single case; (4) to effectuate the proper and streamlined administration of justice; and (5) to bring litigation to an end.

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (emphasis

added) (internal citations omitted).

Accordingly, we are bound by this Court’s prior holding that

suppression was improper because the firearm was not the product of an

unlawful search and seizure. We recognize that a prior decision may be

departed from in “exceptional circumstances such as where there has been

an intervening change in the controlling law, a substantial change in the

facts or evidence giving rise to the dispute in the matter, or where the prior

holding was clearly erroneous and would create a manifest injustice if

followed.” Commonwealth v. Santiago, 822 A.2d 716, 724 (Pa. Super.

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2003), appeal denied, 843 A.2d 1237 (Pa. 2004), cert. denied, 542 U.S.

942 (2004). Here, however, Appellant has not alleged, nor do we find, that

any of the exceptions to the Law of the Case Doctrine apply. Appellant

merely reiterates his claim that “no evidence exists upon which the Terry

search of [A]ppellant could be justified” – an argument that this Court

already rejected. Appellant’s Brief at 11; Noel, supra. We therefore affirm

the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date:2/13/18

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