J-A18032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 WILLIAM ARRINGTON                         :
                                           :
                    Appellant              :   No. 1117 WDA 2018

        Appeal from the Judgment of Sentence Entered July 10, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0002493-2017


BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

DISSENTING MEMORANDUM BY BOWES, J.:                   FILED MARCH 18, 2020

      I join the Majority to the extent that it affirms the trial court’s rulings.

However, unlike the Majority, I would also affirm the trial court’s findings that

the protective search of the vehicle, and resulting inventory search, were

lawful. As such, I dissent to the portion of the Majority memorandum that

concludes that the handgun recovered, along with any other evidence derived

from the later inventory search, should have been suppressed.

      First, I disagree with the Majority’s decision to reach the substantive

suppression issues without first considering whether Appellant had established

a reasonable expectation of privacy in the contents of the vehicle. It is well-

established that before we may proceed to a determination of an appellant’s

substantive suppression claim, we must first discern whether Appellant has

established standing to challenge the search and a privacy interest in the area
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searched. See Commonwealth v. Burton, 973 A.2d 428, 434-35 (Pa.Super.

2009).

     Our Supreme Court has emphasized that these are distinct analyses:

     While curiously similar, standing and privacy interest are different
     concepts serving different functions. Standing is a legal interest
     that empowers a defendant to assert a constitutional violation and
     thus seek to exclude or suppress the government’s evidence
     pursuant to the exclusionary rules under the Fourth Amendment
     of the United States Constitution or Article 1, Section 8 of the
     Pennsylvania Constitution. It ensures a defendant is asserting a
     constitutional right of his own. The expectation of privacy is an
     inquiry into the validity of the search or seizure itself; if the
     defendant has no protected privacy interest, neither the Fourth
     Amendment nor Article I, § 8 is implicated. In essence, while a
     defendant’s standing dictates when a claim under Article I, § 8
     may be brought, his privacy interest controls whether the claim
     will succeed – once a defendant has shown standing, he must, in
     short, have brought his claim, demonstrate its merits by a
     showing of his reasonable and legitimate expectation of privacy in
     the premises.

See Commonwealth v. Enimpah, 106 A.3d 695, 698-99 (Pa. 2014)

(citations and quotations omitted).

     Since Appellant was charged with a possessory offense, he automatically

had standing to challenge the suppression of the items seized.              See

Commonwealth v. Viall, 890 A.2d 419, 421 (Pa.Super. 2005). However,

the Commonwealth contends that Appellant failed to establish a legitimate

expectation of privacy in the vehicle’s contents. See Commonwealth’s brief

at 5. I agree.

     A reasonable expectation of privacy exists when an individual exhibits

an actual subjective expectation of privacy and that expectation is one that

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society is prepared to recognize as legitimate.     See Commonwealth v.

Jones, 874 A.2d 108, 118 (Pa.Super. 2005). In order to discern whether an

expectation of privacy is reasonable, the totality of the circumstances must be

considered and the societal interests involved must be balanced. Id. at 118

(“The constitutional legitimacy of an expectation of privacy is not dependent

on the subjective intent of the individual asserting the right but on whether

the expectation is reasonable in light of all the surrounding circumstances.”).

      The Commonwealth relies on Commonwealth v. Maldonado, 14 A.3d

907 (Pa.Super. 2012), as support for its position that Appellant did not have

a reasonable expectation of privacy in the vehicle. See Commonwealth’s brief

at 7. In Maldonado, the defendant was pulled over while driving a car owned

by his paramour. Maldonado, supra at 911. Police searched the vehicle and

recovered drugs and guns. The defendant challenged the search in a pretrial

motion. At the resulting suppression hearing, the Commonwealth put forth

evidence that the vehicle was owned by the defendant’s girlfriend and that

they both lived at the address where the vehicle was registered. Id. However,

the defendant did not testify or offer any evidence that he had permission to

drive the vehicle.   Id.   The suppression court granted the defendant’s

suppression motion. On appeal we reversed, finding that Appellant had not

established a reasonable expectation of privacy in the vehicle since he did not

own the vehicle, it was not registered to him, and he had not shown authority

to operate it. Id. at 911-12.


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       Here, at the suppression hearing, the Commonwealth established that

the automobile was a leased vehicle. See N.T. Suppression Hearing, 2/14/18,

at 15, 34-35, 37. However, it was never revealed to whom the vehicle was

leased. Appellant did not testify or otherwise offer any evidence establishing

that he was the lessee of the vehicle or that he had the lessee’s permission to

operate it. Instead, the sole testimony about the ownership of the car came

from Pittsburgh Police Officer Gino Macioce, who explained that the vehicle

was a leased car, but that he did not know to whom the vehicle was leased.1

Id. at 39-40.

       Accordingly, as in Maldonado, I would conclude that Appellant has

failed to establish a legally cognizable expectation of privacy in the vehicle.

See, Maldonado, supra at 911-12; see, e.g., Commonwealth v. Perea,

791 A.2d 427, 429 (Pa.Super. 2002) (finding that an appellant had not

established a privacy interest in a vehicle where he merely possessed the keys

needed to unlock it, without any paperwork to show ownership or any other

legitimate connection to it). Since we may affirm on any basis supported by

the record, I would affirm the trial court’s denial of the suppression motion on




____________________________________________


1In its brief, the Commonwealth correctly points out that although testimony
at trial revealed that Appellant had rented the vehicle, we cannot examine
evidence beyond the suppression hearing when reviewing a pretrial
suppression issue, unless it is established that such evidence was unavailable
during the suppression hearing.        See Commonwealth’s brief at 5 n.1.
Appellant has leveled no such contention.

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the ground that Appellant did not establish a reasonable expectation of privacy

in the vehicle and its contents.

      Although my proposed disposition would obviate the need to reach the

substantive suppression issue addressed by the Majority, I will briefly explain

why I also disagree with this portion of my colleagues’ analysis. In short, our

differing conclusion on the substantive suppression issue stem from the

Majority’s failure to apply the proper standard of review.       See Majority

Memorandum at 4. In its summation, the Majority reviewed the facts elicited

at the suppression hearing de novo.        It is well-settled that where “the

Commonwealth prevail[s] before the suppression court, we may consider only

the evidence of the Commonwealth and so much of the evidence for the

defense as remains uncontradicted when read in the context of the record as

a whole.”   Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super.

2017).   Therefore, while the trial court’s conclusions of law are subject to

plenary review, we are bound by the trial court’s factual findings when they

are supported by the record. Id.

      The Majority summarized the factual findings that the suppression court

made that led it to determine that the officers were justified in performing a

protective sweep of the vehicle as follows:

      In its factual findings, the suppression court credited Officer
      Macioce’s testimony that: (1) the stop occurred in the dark at
      2:00 a.m. in a high crime area; (2) Appellant exhibited signs of
      intoxication and nervousness when he was staring off and failing
      to comply with the officer’s requests and demands; (3) Appellant
      was observed moving slowly and deliberately inside of the vehicle,

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      raising concerns that Appellant could have access to a weapon;
      (4) Appellant’s concealed carry permit had been revoked; and (5)
      that the DUI investigation was ongoing such that officers were
      going to have to release Appellant from the handcuffs in order for
      him to do field sobriety testing.

See Majority Memorandum at 11.            However, instead of accepting the

foregoing facts as true, and discerning whether the law supported the

suppression court’s ultimate legal conclusion, the Majority substituted in its

own evaluation of the credibility of Officer Macioce’s testimony. Specifically,

the majority concluded that Officer Macioce’s testimony did not support a

finding that Appellant engaged in furtive movements or appeared nervous,

facts that the suppression court plainly found when it credited Officer

Macioce’s testimony. See Majority Memorandum at 11. Such a conclusion

runs counter to our standard of review.

      When viewing the evidence through the lens that our standard of review

mandates, and applying the legal standard required for a wingspan search as

articulated by the Majority, I would find that the protective sweep was legally

justified. The stop occurred shortly after midnight in an “extreme high crime

area,” creating a heightened danger that the officers would not be able to view

Appellant if he did reach for a weapon. See Commonwealth v. Jackson,

907 A.2d 540, 545 (Pa.Super. 2006) (recognizing that frisks for weapons can

be appropriate when police confront a suspect in an area known for guns and

violence).   Appellant had been driving dangerously and initially failed to

comply with basic commands to put his vehicle in park.          Appellant also


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exhibited nervousness, had a revoked gun permit, and was observed

“reaching around” while in the vehicle. This evasive behavior supported the

officers’ concerns for their safety.   Commonwealth v. Truggles, 58 A.3d

840, 844 (Pa.Super. 2012) (“Where a person performs an activity that is

indicative of an attempt to secrete a weapon, that movement, regardless of

whether it is singular or multiple, can support a belief that the person has a

gun.”).

      Given the totality of the facts at Officer Macioce’s disposal, I agree with

the trial court that the officer reasonably believed that a weapon may have

been secreted within Appellant’s wingspan, such that the resulting search was

not unconstitutional. See, e.g., Commonwealth v. In re O.J., 958 A.2d

561, 566 (Pa.Super. 2008) (finding reasonable suspicion where the traffic stop

occurred at night, the defendant initially failed to stop his vehicle when

signaled by police, made furtive movements inside the vehicle, and was going

to be released back to his vehicle).

      In arriving at its contrary conclusion, the Majority views as dispositive

the fact that, at the time of the protective sweep, Appellant had already been

removed from the vehicle and handcuffed. See Majority Memorandum at 12

(“Arrington was in handcuffs, positioned at the rear of his vehicle, out of reach

of the passenger compartment. . . . Therefore, Arrington posed no threat to

the officers’ safety.”). However, reaching such a definitive conclusion based

solely on the fact that Appellant had been temporarily removed from the


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vehicle is not supported by our precedent or the testimony elicited at the

suppression hearing.

      It is well-established that a protective search of the interior of a vehicle

is not unreasonable simply because the person is under police supervision

outside of the vehicle. See Commonwealth v. Morris, 644 A.2d 721 (Pa.

1994) (adopting Michigan v. Long, 463 U.S. 1032, 1051 (1983) (rejecting

the contention that a protective search of the interior of a car is unreasonable

where the person is under police supervision outside of the vehicle)). Instead,

a proper analysis focuses on whether a danger remains that the suspect could

access weapons inside of the vehicle. See, e.g. In re O.J., supra at 563

(“Even though Appellee and the passenger were secure at that point, a brief

search of the car was necessary because Appellee and the passenger were not

going to be placed under arrest for the Motor Vehicle Code violations but were

going to be allowed to return to their car.”); see also Long, supra at 1051

(upholding a protective sweep where the police intended to release the

suspect from his handcuffs, because once the suspect reentered his

automobile, he would regain access to any weapons that might have been

located in the vehicle).

      Here, the officers intended to remove the handcuffs from Appellant so

that he could engage in field sobriety testing.      N.T. Suppression Hearing,

2/14/18, at 40.    Further, Officer Macioce explained that, if Appellant had

succeeded on the field sobriety testing, he would have been released back to


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his vehicle because he would have only been charged with a Motor Vehicle

Code violation. Id. Therefore, the danger that Appellant could have accessed

a weapon secreted inside the vehicle had not been extinguished at the time

that the officers conducted the protective sweep.

      Based on the foregoing discussion, I respectfully dissent from the

Majority’s decision to reverse the judgment of sentence on Appellant’s

firearms not to be carried without a license, possession of drug paraphernalia,

possession of a controlled substance, and possession with intent to deliver

convictions.   I would also affirm the trial court’s denial of Appellant’s

suppression motion.




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