J-A24021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

FARID BROWN,

                            Appellee                  No. 2370 EDA 2013


                 Appeal from the Order Entered on July 18, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002004-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

DISSENTING MEMORANDUM BY BENDER, P.J.E.:FILED FEBRUARY 13, 2015

        The Majority concludes that Appellee, Farid Brown, lacked a reasonable

expectation of privacy in the specific location within the vehicle when that

vehicle was searched without a warrant.        The Majority also concludes that

Brown abandoned the vehicle and, thus, lacked standing to challenge the

legality of that search. However, Brown’s expectation of privacy in a specific

portion of the vehicle is not a question before this Court.     Furthermore, I

would conclude that the trial court was correct in concluding that Brown did

not abandon the vehicle. In any event, the Majority lacks the authority to

overturn the trial court’s decision in that regard because, in doing so, the



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Majority is simply substituting its judgment for that of the trial court.

Accordingly, I respectfully dissent.

      First, the Majority begins its analysis in this case by undermining the

factual determinations of the trial court by applying an incorrect standard of

review. The Majority correctly states a substantial portion of our standard of

review following the grant of a motion to suppress, but then omits two

critical components, specifically, that “[t]he suppression court's findings of

facts bind an appellate court if the record supports those findings[,]”

Commonwealth v. Deck, 954 A.2d 603, 606 (Pa. Super. 2008) (quoting

Commonwealth v. Scott, 916 A.2d 695, 696 (Pa. Super. 2007)), and that

“[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. Dutrieville, 932 A.2d 240, 242 (Pa. Super. 2007)

(citation omitted).

      Thus, the Majority’s conclusion that it is “questionable that [Brown]

had permission to use the vehicle on that date” is a misapplication of our

standard of review.     While I admit that the vehicle owner’s testimony

regarding such permission was less than precise, it is not the province of this

Court to assess her credibility. Indeed, the Majority’s characterization that it

is “questionable” whether Brown had permission to operate the vehicle

bespeaks of a credibility determination rather than a conclusion that such a

factual finding lacks support in the record.    If there is no support in the

record for the trial court’s determination regarding whether the owner had

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given such permission, the Majority would have simply said so. Moreover,

the Commonwealth did not even present any arguments regarding whether

Brown had permission to operate the vehicle in its Pa.R.A.P. 1925(b)

statement.   Accordingly, any such argument is waived, and should not be

considered by this Court. See Commonwealth v. Lord, 719 A.2d 306, 309

(Pa. 1998) (“Any issues not raised in a 1925(b) statement will be deemed

waived.”).

      Second, the Majority mischaracterizes existing law and the legal

dispute before the suppression court when it states that “the trial court’s

conclusion that [Brown] had a legitimate expectation of privacy in a broken

gearshift box of a car owned by a third party is not supported by law.”

Majority Memorandum, at 8. Significantly, the suppression court concluded

that the police conducted a warrantless search of the vehicle.     Trial Court

Opinion (TCO), 12/19/13, at 3.        The nature of the Commonwealth’s

argument, at least the one preserved in its Rule 1925(b) statement, is not

that the search was justified by an exception to the warrant requirement, or

that Brown never had an expectation of privacy in the vehicle at all (or any

specific portion therein), but that he discarded his standing to challenge the

search of the vehicle when he abandoned it.        See Commonwealth v.

Shoatz, 366 A.2d 1216, 1220 (Pa. 1976) (“It is well settled that no one has

standing to complain of a search or seizure of property that he has

voluntarily abandoned.”). Consequently, for the purposes of this appeal, the

location of the contraband in the vehicle is simply irrelevant.    The police

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were not lawfully within the vehicle when the search occurred and,

consequently, the Majority’s parsing of what parts of the interior of the

vehicle were subject to Brown’s expectation of privacy is irrelevant.

      Third, the Majority’s characterization of Brown as a mere passenger is,

as discussed above, belied by the record and the factual findings of the trial

court. Brown was not a mere passenger. He was also given permission to

operate the vehicle.   Consider the absurdity of the proposition that one’s

position in a vehicle is the primary or final arbiter of one’s expectation of

privacy in that vehicle. Does the owner of a vehicle abandon his expectation

of privacy in his vehicle’s trunk because he sits in the passenger seat and

permits another person to drive?       Clearly not.    Nevertheless, Brown’s

position on the spectrum between owner and mere passenger is irrelevant in

this case as well, because the Commonwealth only preserved the claim in its

Rule 1925(b) statement that Brown had abandoned the vehicle and, thus,

that he lost standing to challenge a search of any part of that vehicle. This

Court cannot address and, therefore, cannot grant relief on a claim that has

been waived. Lord, supra.

      Fourth, and finally, the only legal question for this Court is whether

Brown’s conduct constituted an abandonment of the vehicle.         The limited

facts presented by the Commonwealth in its brief appear to compel a finding

of abandonment (speeding away from police, exiting the car, and fleeing).

However, the Commonwealth both mischaracterizes these facts and neglects

to mention other factual findings made by the trial court that constitute

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relevant circumstances existing at the time of the alleged abandonment.

Although this Court is not bound by the trial court’s legal conclusion that

there was no abandonment in this case, we are bound by its factual findings.

Deck, supra.    In that regard, this Court must consider all of the factual

findings of the trial court, not just those selected by the Commonwealth to

highlight in this appeal. The Majority’s Memorandum fails to adhere to this

standard.

     The trial court justified its conclusion that the vehicle had not been

abandoned by Brown as follows:

     The Commonwealth asserts that [Brown] abandoned the vehicle
     … but the evidence indicates no such abandonment …. When the
     police arrived at the Walgreens, the vehicle was properly parked
     in the store's parking lot. [Brown] and the driver were no longer
     in the vehicle and, in fact, were walking in different directions at
     a normal pace before they were spotted by the police. It was
     not until they saw the officers that they fled the area. When the
     driver was apprehended and the police returned to the vehicle,
     there were no indicia of abandonment, i.e., the car was not
     running, the keys were not in the ignition, and the doors were
     not open. The vehicle was simply parked. The “mere fact that
     the property was placed in an area open to the general public is
     not sufficient to establish abandonment.” Commonwealth v.
     Johnson, 431 Pa.Super. 291, 296, 636 A.2d 656, 659 (1994).
     Based on the circumstances “existing at the time” of the search,
     … the police had no basis to conclude that the property had
     been abandoned. Therefore, [Brown] maintained his privacy
     interest in the vehicle, and a warrant was required before it
     could be searched.

TCO, at 4.

     Clearly, the trial court placed more emphasis on the circumstances

that existed closest in time to when the search was conducted (car properly



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parked, defendants’ walking away at a normal pace, key not in ignition, door

not left ajar) and less emphasis on the circumstances that existed

beforehand, as emphasized by the Commonwealth and the Majority.                  I

believe the factual findings considered by the trial court are adequately

supported by the record.       This suggests that the true nature of the

Commonwealth’s     argument     implicates   the   weight   afforded   to    these

individual factors rather than any error in the court’s legal conclusion. Based

upon the actual factual findings made by the trial court, I cannot discern any

legal error in the conclusion that there was not a “clear intent … to relinquish

control” of the vehicle. Shoatz, 366 A.2d at 1219.

      The Majority mischaracterizes the nature of the question before us by

stating that the “trial court has failed to provide any legal support for its

holding that the fact that the driver parked the car in a parking lot, with

closed doors, and no keys, precludes a finding of abandonment.” Majority

Memorandum, at 10-11.       The trial court has no burden to satisfy in the

Commonwealth’s appeal from the grant of a motion to suppress.               In any

event, the trial court never stated that it was “precluded” from finding

abandonment.     In fact, the court correctly stated the appropriate legal

standard as follows:

      A criminal defendant does not have standing to challenge the
      search of property that he has voluntarily abandoned.
      Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216,
      1219-1220 (1976) (citations omitted).           The theory of
      abandonment is "predicated upon the clear intent of an
      individual to relinquish control of the property he possesses."
      Id. at 1219. Intent is determined from "words, acts, and all

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      relevant circumstances existing at the time the property is
      purportedly deserted." Commonwealth v. Sodomsky, 939
      A.2d 363, 366 (Pa. Super. 2007).

TCO, at 3-4.

      The Majority’s statement also overlooks that the trial court was

comparing facts that were present in the cases cited favorably by the

Commonwealth and, indeed, now cited favorably by the Majority, and

comparing those facts with the facts of the instant case.         Such analysis is

wholly appropriate and unobjectionable.

      The Majority suggests that the evidence was conclusively in favor of a

finding of abandonment by referencing other cases with facts similar to

some of the facts at issue in this case. The Majority’s citations of supporting

authority,   however,   merely   establish   that   the   facts   in   favor   of   a

determination of abandonment were, indeed, facts that supported a finding

of abandonment. The Majority implicitly concludes, therefore, that the facts

that do not support a finding of abandonment are inconsequential or not

dispositive. However, the Majority cites no authority for the proposition that

the facts favoring a finding of abandonment can be considered at the

exclusion of all other facts, and particularly of the facts that tend to support

a finding that abandonment did not occur.            The Majority’s conclusion

strongly suggests that it is substituting its judgment for that of the trial

court, because there was evidence both for and against a finding of

abandonment in this case.        I believe there was nothing irrational or




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unreasonable about the trial court’s conclusion that the totality of the

circumstances weighed against a finding of abandonment.

      In sum, the police searched the vehicle without first obtaining a

warrant, and without any applicable exception to the warrant requirement.

The trial court’s determination regarding Brown’s standing to challenge that

illegal search, that he had not abandoned the vehicle, is adequately

supported by the record and not contradicted by any case cited by the

Majority. Consequently, I would affirm the trial court’s grant of Brown’s

suppression   motion.    Because   the   Majority   concludes   otherwise,   I

respectfully dissent.




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