J-S02020-18



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
    RAFAEL VAZQUEZ                         :
                                           :
                     Appellant             :   No. 2803 EDA 2016

            Appeal from the Judgment of Sentence November 8, 2013
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0003302-2012

BEFORE:       BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY NICHOLS, J.:                             FILED APRIL 24, 2018

        Appellant Rafael Vazquez appeals nunc pro tunc from the judgment of

sentence following his conviction for three violations of the Uniform Firearms

Act (VUFA).1 Appellant claims that the trial court erred in denying his pre-trial

motion to suppress. We affirm.

        We state the relevant facts and procedural history from the suppression

hearing as follows.     On February 27, 2012, at approximately 5:45 p.m.,

Philadelphia Police Officers Jason Czarnecki and Gerry Rahill were on routine

patrol in a high-crime area of Philadelphia.     After they observed a vehicle

disregard a stop sign, the officers initiated a traffic stop for violations of the



*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 6105, 6106, and 6108.
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Motor Vehicle Code.2    As the officers approached, they observed that the

windows of the vehicle were heavily tinted. N.T., 4/11/13, at 6. As a result,

they were unable to ascertain how many people were inside of the vehicle or

where they were seated. Id. at 8.

      Officer Rahill proceeded to the driver’s side of the vehicle, and Officer

Czarnecki approached the passenger side of the vehicle.            Officer Rahill

observed that the driver’s window was “cracked a couple of inches.” Id. at

29. Because the windows were so heavily tinted, he asked the driver to fully

lower the windows in order to ensure officer safety. Id. The driver replied

that he could not roll down the windows because they were broken.             Id.

Through the only opening at the top of the front window, Officer Rahill

observed the driver making some type of movement toward his feet and could

not see the driver’s hands. Id. at 31. Additionally, he noted that the driver

appeared to be shaky and nervous. Id. At that time, Officer Rahill signaled

to his partner, and informed the driver that they were going to open the

vehicle doors, which they then proceeded to do. Id. at 29.

      Officer Czarnecki made similar observations about his inability to see

through the heavily tinted windows:

      [Officer Czarnecki]: I couldn’t see into the car, and I couldn’t hear
      anything. And there were motions around, and I just don’t like
      when I can’t see in the car. I think it’s a safety issue for me.



2 The driver of the vehicle was issued traffic citations for disregarding a stop
sign, 75 Pa.C.S. § 3323(b); and window obstruction, 75 Pa.C.S. § 4524(e).


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        The court: And what’s the reason?

        [Officer Czarnecki]: In case there’s a gun in the car. There could
        have been a gun pointed right at me, and I would have no idea.

        The court: It was that opaque that you couldn’t see anything at
        all?

        [Officer Czarnecki]: Yes.


N.T., 4/11/13, at 16-17.

        After the doors were opened, Officer Czarnecki began speaking with

Appellant, who was seated on the rear passenger side of the vehicle. 3 Id. at

10. During the exchange, Officer Czarnecki observed a bulge in Appellant’s

waistband near his right hip. Id. When Officer Czarnecki asked Appellant

about the bulge, Appellant replied “it’s nothing.”        Id.   Appellant then

attempted to cover the bulge with his hands and a soda bottle.           Officer

Czarnecki testified that he became increasingly concerned for his safety, as

Appellant appeared nervous in his efforts to cover his waistband area. Id. at

12. He further testified that firearms are routinely concealed on a person’s

waistband and that he had personally recovered firearms from that area

“between five and ten [times] over the course of a couple of years.” Id. at

12.

        At that point, Officer Czarnecki asked Appellant to step out of the

vehicle, place his hands on the hood, and spread his feet so that the officer

could frisk him. Id. at 14. Appellant initially complied, but then pressed his



3   The record does not detail the verbal exchange.

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right hip against the vehicle. Id. Officer Czarnecki pulled Appellant away

from the vehicle, but Appellant pressed his body against the vehicle again.

Id. Officer Czarnecki unsuccessfully ordered Appellant to step away from the

vehicle.    Id.   The officer eventually recovered a firearm from Appellant’s

waistband. Id. As a result, Appellant was arrested and charged with three

counts of VUFA.

        On May 10, 2012, Appellant filed an omnibus pre-trial motion seeking

to suppress the firearm.     On April 11, 2013, the court held a suppression

hearing, at which Appellant argued the unconstitutionality of the stop.

Alternatively, he contended that even if the stop were valid, the officers did

not have reasonable suspicion to order Appellant from the car or probable

cause to effectuate a search. Id. at 59. The trial court denied the motion.

        Following a bench trial on July 2, 2013, the court found Appellant guilty

of all three counts of VUFA. On November 8, 2013, he was sentenced to five

to ten years’ incarceration, followed by five years’ probation. No direct appeal

was filed at that time.

        On August 25, 2016, Appellant’s direct appeal rights were reinstated

nunc pro tunc following his successful petition under the Post Conviction Relief

Act (PCRA).4      On August 31, 2016, Appellant timely appealed and, on

September 28, 2016, filed a court-ordered Pa.R.A.P. 1925(b) statement.

Therein, Appellant alleged that (1) “[t]he trial court erred in failing to suppress


4   42 Pa.C.S. §§ 9541-9546.


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the physical evidence, an alleged firearm, seized after an unlawful and

unconstitutional car stop without reasonable suspicion and probable cause”;

and (2) there was no reason to pull out all of the passengers and search them

without any reasonable suspicion or probable cause. Appellant’s 1925(b)

Stmt., 9/28/16.

      Appellant raises one issue on appeal:

      Did the trial court err in denying the suppression motion of
      [A]ppellant when the police officer had no reasonable suspicion or
      probable cause to open the front and back passenger side doors
      of the vehicle?

Appellant’s Brief at 2.5

      Appellant does not dispute the validity of the traffic stop in this appeal.

Instead, he focuses solely on the officers’ opening of the vehicle doors, which

he describes as “totally illegal and unconstitutional.” Appellant’s Brief at 7.

He reasons that opening the vehicle doors was unnecessary to effectuate the

stop and issue the traffic citation. Id. Appellant asserts that neither he nor

the other passenger did anything suspicious. Id. at 6. Thus, he argues the

police lacked reasonable suspicion and probable cause to open the vehicle




5 Appellant raised four issues in his 1925(b) statement, which the trial court
addressed in its 1925(a) opinion. However, Appellant did not pursue the
remaining issues in this appeal, so we need not address them.
Commonwealth v. Dunphy, 20 A.3d 1215, 1218 (Pa. Super. 2011) (noting
appellant abandoned issues raised in Rule 1925 statement that were not
identified in the statement of questions presented section of his brief or
developed in the argument section of his brief).



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doors, and it was only because of that illegal action that the officer saw the

alleged bulge. Id. at 7-8.6

      In addressing a challenge to the denial of a suppression motion, our

standard of review 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. Because the
      Commonwealth prevailed 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. Where the suppression
      court’s factual findings are supported by the record, we are bound
      by these findings and may reverse only if the court’s legal
      conclusions are erroneous. The suppression court’s legal
      conclusions are not binding on an appellate court, whose duty it
      is to determine if the suppression court properly applied the law
      to the facts. Thus, the conclusions of law of the courts below are
      subject to our plenary review.



6 We acknowledge that the Commonwealth contends that Appellant waived
this argument by failing to raise it in his Rule 1925(b) statement or in his pre-
trial motion to suppress. See Commonwealth’s Brief at 8. It is well-settled
that “appellate review of an order denying suppression is limited to
examination of the precise basis under which suppression initially was sought;
no new theories of relief may be considered on appeal.” Commonwealth v.
Little, 903 A.2d 1269, 1272–73 (Pa. Super 2006). Thus, “the failure to raise
a suppression issue prior to trial precludes its litigation . . . on appeal.”
Commonwealth v. Douglass, 701 A.2d 1376, 1378 (Pa. Super. 1997).
Here, the Commonwealth asserted that the police were more than justified in
ordering the passengers out on the grounds of officer safety. N.T., 4/11/13,
at 53-54. Appellant, however, countered that the police had no basis to search
the vehicle based on the doors’ tinted windows, see, e.g., id. at 61, and thus,
had no reason to open the doors. We are satisfied that Appellant raised
substantially the same argument at the suppression hearing and in his
1925(b) statement. See Little, 903 A.2d at 1272-73. Accordingly, we decline
to find waiver and will address the issue on its merits.



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      Moreover, appellate courts are limited to reviewing only the
      evidence presented at the suppression hearing when examining a
      ruling on a pre-trial motion to suppress.


Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014) (citations

and quotations omitted).

      In United States v. Stanfield, 109 F.3d 976 (4th Cir. 1997), three

police officers were on patrol in an unmarked patrol car in a high crime area

of Baltimore when they observed a vehicle with heavily tinted windows illegally

stopped in the middle of the street. Id. at 978.7 After parking their car in

front of the vehicle, the police observed the driver talking to a man leaning

from a building’s second-story window, who they recognized as a known drug

dealer. Id. The driver’s side window was rolled down, but the window on the

passenger side remained closed. Id. However, because the tinting on the

windows was so dark, the officers were unable to see inside the vehicle as

they approached. Id. As a result, the officer on the passenger side of the

vehicle opened the front passenger door in order to determine whether the




7 “While we recognize that federal court decisions are not binding on this
[C]ourt, we are able to adopt their analysis as it appeals to our reason.
Further, [w]hile it is a truism that decisions of sister states are not binding
precedent on this Court, they may be persuasive authority[.]”
Commonwealth v. Arthur, 62 A.3d 424, 429, n.9 (Pa. Super. 2013)
(citations and internal quotations omitted). “Pennsylvania has consistently
followed Fourth Amendment jurisprudence in stop and frisk cases.”
Commonwealth v. Wimbush, 750 A.2d 807, 810 n.2 (Pa. 2000) (citing
Commonwealth v. Jackson, 698 A.2d 571, 574 (Pa. 1997);
Commonwealth v. Melendez, 676 A.2d 226, 230 (Pa. 1996)).


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driver was armed, had access to weapons, and there were any passengers

inside of the vehicle. Id.

      After the officer opened the door, from his vantage point entirely outside

of the SUV, he saw cocaine in plain view on the back seat. Id. at 979. The

defendant moved to suppress, contending that the search as a result of the

officer’s “opening of the front passenger door was unconstitutional under the

Fourth Amendment and, therefore, that the cocaine discovered as a

consequence of that search must be suppressed.”          Id.   The district court

denied the motion, and the defendant appealed. Id.

      The Fourth Circuit resolved the constitutionality of the intrusion:

      In [Pennsylvania v. Mimms, 434 U.S. 106 (1977),] and
      Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882, 137 L.Ed.2d
      41 (1997), the [United States Supreme] Court . . . adopted bright-
      line rules that officers may, as a matter of course, order both
      drivers and passengers from vehicles during routine traffic stops
      in order to ensure that such stops are completed without incident.

                                      ***

      [W]e believe that the Court’s decisions in Mimms and Wilson in
      particular would support a holding that whenever, during a lawful
      traffic stop, officers are required to approach a vehicle with
      windows so heavily tinted that they are unable to view the interior
      of the stopped vehicle, they may, when it appears in their
      experienced judgment prudent to do so, open at least one of the
      vehicle’s doors and, without crossing the plane of the vehicle,
      visually inspect its interior in order to ascertain whether the driver
      is armed, whether he has access to weapons, or whether there
      are other occupants of the vehicle who might pose a danger to the
      officers.

                                      ***




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        But, apart from the fact that there is a considerably reduced
        privacy interest in a vehicle’s interior passenger compartment as
        a matter of law, the driver and other occupants of a lawfully
        stopped vehicle have already had their liberty curtailed. Moreover,
        because the driver must comply with routine requests for
        identification and registration, he will be required at some point
        during the brief detention to expose the interior compartment of
        his vehicle to view through at least one window, if for no other
        reason than to interact with the officer. Of course, when the driver
        lowers the window, then much if not all of the car’s interior will be
        visible to the officer. The additional interference with the
        occupants’ privacy interests affected by the opening of one of the
        vehicle’s doors would seem minimal when measured against the
        enormous danger law enforcement officers face when they
        approach a vehicle with heavily tinted windows. Such an intrusion
        would seem considerably less than the intrusions affected by
        ordering the driver and passengers to exit the vehicle and to
        proceed to the shoulder of the road, which were held in Mimms
        and Wilson, respectively, to be “de minimis” in comparison to the
        states’ interests in protecting their law enforcement personnel
        under circumstances far less inherently dangerous than those
        existing when the stopped vehicle has heavily tinted windows. Not
        only does the person subjected to the limited search entailed in
        the opening of the vehicle door not have his entire body exposed
        to the view of the officers and public, he also retains his liberty
        interest in remaining seated in his automobile during the duration
        of the detention. Indeed, the actual invasion of privacy entailed in
        an officer’s opening of the vehicle door is indistinguishable from,
        if not precisely the same as, that which occurs when an occupant
        is required to open a door to exit a vehicle pursuant to an order
        given under the authority of Mimms or Wilson.


Stanfield, 109 F.3d at 980-83; see also United States v. Holmes, 376 F.3d

270, 281 (4th Cir. 2004) (citing to Stanfield in holding that in light of officers’

reasonable fears during roadside encounters with dangerous suspects, “we do

not require[] that officers adopt alternate means to ensure their safety in

order to avoid the intrusion involved in a Terry[8] encounter, and, where


8   Terry v. Ohio, 392 U.S. 1 (1968).

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certain law enforcement tactics are themselves legitimate under the

circumstances, we hesitate to impose [reasonable alternatives] on the law

enforcement community as a matter of constitutional law” (internal citations

and quotations omitted)); cf. Commonwealth v. Cartagena, 63 A.3d 294

(Pa. Super. 2013) (discussing Stanfield, noting that reasonable suspicion

requires a totality of the circumstances analysis, in which tinted windows are

merely a factor).

      We find Stanfield controls the instant case. Both matters arose when

officers conducted a lawful traffic stop. Stanfield, 109 F.3d at 984. Both

stops also occurred in high crime areas and involved vehicles with heavily

tinted windows. Id. at 978; N.T., 4/11/13, at 8, 15. Here, after the vehicle

was stopped, Officer Rahill observed the driver making movements toward his

feet and further noted that he was unable to see the driver’s hands. N.T.,

4/11/13, at 31.     Officer Rahill initially instructed the driver to lower the

windows, but was told that they were broken. Id. at 29. As in Stanfield, at

least one of the windows was partially open. Stanfield, 109 F.3d at 978;

N.T., 4/11/13, at 29. Despite these efforts, the officers were still unable to

ascertain who or what was inside of the car. Stanfield, 109 F.3d at 978;

N.T., 4/11/13 at 8. The officers, like the police in Stanfield, testified to

specific and articulable facts leading them to believe they were concerned for

their safety. Stanfield, 109 F.3d at 979; N.T., 4/11/13 at 9. In response,

the police—identical to Stanfield—opened the passenger side doors to ensure

at least some degree of safety.         N.T., 4/11/13 at 9.      Because the

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uncontradicted record supports the factual determinations of the trial court

and we discern no error of law, we affirm the denial of the motion to suppress.

Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/18




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