J-S61034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RAHNIR CLARK                               :
                                               :
                       Appellant               :   No. 374 EDA 2019

        Appeal from the Judgment of Sentence Entered January 16, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0002094-2018


BEFORE:      BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JANUARY 16, 2020

        Appellant, Rahnir Clark, appeals from the judgment of sentence entered

in the Court of Common Pleas of Delaware County. The court, sitting as finder

of fact in Appellant’s and Co-Defendant’s joint trial, acquitted Co-Defendant

but found Appellant guilty of one count of Possession with Intent to Deliver

(“PWID”), two counts of Possession of a Controlled Substance, and one count

of Use/Possession of Drug Paraphernalia.1

        Sentenced to five to 10 years’ incarceration for the PWID conviction,

with concurrent sentences on the remaining charges, Appellant filed a timely

notice of direct appeal and a court-ordered Pa.R.A.P. 1925(b) statement in

which he challenged the denial of his pre-trial motion to suppress and asserted

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   35 Pa.C.S.A. §§ 780-113(a)(30), (16), and (32), respectively.
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sentencing counsel harbored a conflict of interest by having served as Co-

Defendant’s counsel during trial. We affirm.

     The relevant facts for purposes of reviewing the present appeal are set

forth in the trial court’s “Findings of Fact” made from evidence adduced at

Appellant’s suppression hearing:

     1. Sergeant Matthew P. Goldschmidt is employed by the City of
        Chester Police Department since January of 2007.           For
        approximately eight years of his career he was assigned to the
        Chester Police Department Narcotics Unit and the Delaware
        County Drug Task Force. N.T. Suppression, 8/16/2018, p. 7,
        8.

     2. During his career, he has been involved in well over 1,000 drug
        investigations. The majority of those investigations involved
        cocaine. Having worked in the City of Chester for over ten
        years, Sergeant Goldschmidt is familiar with the various
        neighborhoods in the City of Chester and the crime statistics in
        those neighborhoods. N.T. at 9.


     3. Sergeant Goldschmidt knows the Sun Village area of Chester
        as a high crime and a high drug area. The police respond there
        almost daily to investigate violent and/or drug crimes. N.T. at
        10.


     4. Sergeant Goldschmidt has specialized training in the area of
        drug investigations and has been qualified as an expert witness
        in that regard in the Delaware County Court of Common Pleas
        and District Courts. N.T. at 10, 11.


     5. On January 18, 2018, he was on duty in his capacity as a
        Sergeant with the City of Chester Police Department in full
        uniform and in a marked police cruiser during the three in the
        afternoon until 11 p.m. at night shift. N.T. at 11.


     6. At approximately 7:22 that evening, Sergeant Goldschmidt
        was in the Sun Village area of Chester in the parking lot of a

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        carwash located at Morton Avenue and Sun Drive when he
        observed a red Chrysler 200 with dark tinted windows. He
        exited the parking lot and followed behind the red Chrysler.
        N.T. at 13.


     7. As Sergeant Goldschmidt followed the Chrysler he observed
        that the operator failed to use a turn signal while making a left-
        hand turn from Vauclain onto Remington Street and then again
        from Remington into a parking lot. After witnessing these
        Motor Vehicle Code violations, Sergeant Goldschmidt activated
        his emergency lights to make a traffic stop on said vehicle.
        N.T. at 14.


     8. When Sergeant Goldschmidt approached the driver’s side of
        the vehicle he observed that Defendant [hereinafter Co-
        Defendant], Raneisha Little, was the operator and Defendant
        [hereinafter “Appellant”], Rahnir Clark, was the front
        passenger of the vehicle. At that time, Officer Breyhew [Abreu]
        and Officer Murphy arrived as backup. N.T. at 16.


     9. Sergeant Goldschmidt asked to see the vehicle registration and
        insurance information and some type of identification from the
        occupants. Sergeant Goldschmidt noticed the occupants were
        extremely nervous and sweating heavily although it was 25
        degrees outside. They gave conflicting stories as to why they
        were there; they answered the officer’s questions with
        questions, there were no businesses open at that time of the
        night and their story failed to check out. N.T. at 17, 18, 49.


     10. As Sergeant Goldschmidt spoke with Co-Defendant Little,
        Officer Abreu requested Appellant exit the vehicle for Officers[’]
        safety. Officer Abreu frisked Appellant for weapons, however,
        Appellant prevented Officer Abreu from frisking his waist and
        groin area. N.T. at 21.


     11. Appellant’s      lack    of     cooperation  raised     Sergeant
        Goldschmidt’s suspicions. His experience in Chester clearly
        communicates to him that when a person will not cooperate
        when an officer is trying to frisk them, generally they are hiding
        something. Usually around the waist, [an officer] will find a
        weapon. This raises concern for officer safety. N.T. at 22.

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     12. As Sergeant Goldschmidt looked into the vehicle, he heard
        and observed a black BaoFeng police scanner attached to the
        passenger side front sun visor. He noticed that when he was
        speaking on his radio he could hear himself within the vehicle.
        This led Sergeant Goldschmidt to conclude the scanner was
        programmed to the police frequency for the City of Chester
        [where] they were located. N.T. at 23.


     13. Shortly thereafter Appellant was brought to the rear of the
        vehicle and placed into handcuffs for officer safety until their
        investigation was completed. N.T. at 24.


     14. Sergeant Goldschmidt then asked Co-Defendant Little if
        anything illegal was in the car. Co-Defendant Little stated she
        had a hand gun in her purse and that she had a valid permit to
        carry that firearm. N.T. at 25.


     15. Sergeant Goldschmidt asked Co-Defendant Little for
        consent to search the car. She orally agreed. Sergeant
        Goldschmidt then read her the Miranda warnings and asked
        her to complete a Chester Police Department Consent to
        Search Vehicle form. Co-Defendant Little signed the form.
        N.T. at 25-29.


     16. Sergeant Goldschmidt recovered from the vehicle baggies
        with cocaine and marijuana residue and items of drug
        paraphernalia.   Both [Co-Defendant and Appellant] were
        placed under arrest. At this time Sergeant Goldschmidt read
        Appellant the Miranda warnings.


     17. Officer Abreu and Sergeant Goldschmidt frisked Appellant
        again and felt a large, hard bulge underneath his groin.
        Sergeant Goldschmidt asked Appellant what the bulge was.
        Appellant responded it was four ounces of cocaine. Officer
        Abrue then went down his pants in Sergeant Goldschmidt’s
        presence and removed the drugs. N.T. at 32, 33.




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Trial Court Order Denying Appellant’s Motion to Suppress, 9/25/18, at 5.

      In Appellant’s first issue, he argues that evidence adduced at his

suppression hearing failed to demonstrate reasonable suspicion necessary to

order Appellant out of the vehicle and perform a weapons frisk on him. In an

appeal from the denial of a motion to suppress,

      [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, [the appellate court is] bound by [those]
      findings and may reverse only if the court's legal conclusions are
      erroneous. Where ... the appeal of the determination of the
      suppression court turns on allegations of legal error, 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 [ ] plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010).             Further, “the

record” refers to “the evidentiary record that was created at the suppression

hearing.” Commonwealth v. Cruz, 166 A.3d 1249, 1254 (Pa.Super. 2017);

In re L.J., 79 A.3d 1073 (Pa. 2013).

      There is no reasonable dispute that the officers possessed probable

cause to initiate the traffic stop after witnessing Co-Defendant commit a motor

vehicle code violation.   The issue before us as articulated by Appellant on

appeal is whether, during the lawful investigation stemming from the code




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violation, the officers formed a reasonable suspicion of criminality to support

a weapons frisk that uncovered cocaine in Appellant’s possession.

      As we have explained, “[t]he Fourth Amendment to the [United States]

Constitution and Article I, Section 8 of [the Pennsylvania] Constitution protect

citizens from unreasonable searches and seizures. To safeguard this right,

courts require police to articulate the basis for their interaction with citizens

in [three] increasingly intrusive situations.” Commonwealth v. McAdoo, 46

A.3d 781, 784 (Pa.Super. 2012). Our Supreme Court has categorized these

three situations as follows:

      The first category, a mere encounter or request for information,
      does not need to be supported by any level of suspicion, and does
      not carry any official compulsion to stop or respond. The second
      category, an investigative detention, derives from Terry v. Ohio[,
      392 U.S. 1 (1968)] and its progeny: such a detention is lawful if
      supported by reasonable suspicion because, although it subjects a
      suspect to a stop and a period of detention, it does not involve
      such coercive conditions as to constitute the functional equivalent
      of an arrest. The final category, the arrest or custodial detention,
      must be supported by probable cause.

Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003).

      After identifying the instant matter as one involving a second category

interaction, namely, an investigative detention, the suppression court

determined the totality of circumstances known to the sergeant and officer

during the lawful traffic stop supplied reasonable suspicion to support a

weapons frisk of Appellant and Co-Defendant for officers’ safety. We agree.

      In Commonwealth v. Simmons, 17 A.3d 399 (Pa.Super. 2011), this

Court stated:


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      [An officer]’s observation of furtive movements, within the scope
      of a lawful stop, led him to reasonably be concerned for his safety
      and therefore justified the Terry[] protective frisk. Indeed, on
      multiple occasions we have held that similar furtive movements,
      when witnessed within the scope of a lawful traffic stop, provided
      a reasonable basis for a protective frisk.

Id., at 404 (citations omitted); see also in re O.J., 958 A.2d 561, 566

(stating defendant’s “rapid and furtive hand movements over the console

indicated that he may have been hiding a weapon in that location[;]” “the

police officer was permitted to engage in a search of that compartment for his

own protection[;]” “constitutional safeguards do not require an officer to

gamble with his life[.]”).

      Nevertheless, this Court has explained:

      [P]re-stop furtive movements, by themselves, may not be used to
      justify an investigative detention and search commenced after the
      conclusion of a valid traffic stop where the totality of
      circumstances has established that the furtive movements did not
      raise immediate concern for the safety of the officer who
      undertook the initial vehicle detention.

Simmons, 17 A.3d at 405; see also Commonwealth v. Moyer, 954 A.2d

659, 670 (Pa.Super. 2008) (en banc) (stating “[f]urtive movements and

nervousness, standing alone, do not support the existence of reasonable

suspicion). Accordingly, the Commonwealth must both show the police saw

furtive movements during the stop and that there were additional reasons for

them to be concerned about the presence of weapons in order to demonstrate

reasonable suspicion. See Commonwealth v. Buchert, 68 A.3d 911, 916-

17 (Pa. Super. 2013).



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       At Appellant’s suppression hearing, the Commonwealth established

through the testimony of Sergeant Goldschmidt that the traffic stop took place

at   nighttime     in    a    high-crime,   high-drug   trafficking   location.     Upon

encountering Appellant and Co-Defendant, the sergeant observed them to

appear extremely nervous and oddly sweaty despite the cold temperature

outside.2    When the sergeant asked why they pulled into the commercial

parking lot after hours, Appellant and Co-Defendant said they were leaving

the car for service—repair of a bullet hole and replacement of brakes—that

the business in question did not provide.

       Appellant        and    Co-Defendant     persisted   in   their    evasive    and

uncooperative behavior by continually providing unresponsive answers or

answering the sergeant’s questions with questions of their own.                     They

particularly raised the officers’ concerns, however, by refusing repeated

requests to cooperate by keeping their hands up in plain view: “[Appellant]

continually kept putting his hands down where . . . [the officers] could not see

them . . . .” N.T. at 46; “[Appellant’s] hands . . . would go right back down

again after a couple of seconds.” N.T. at 61.

       Accordingly, Officer Abreu ordered Appellant out of the car for a

weapons frisk. When Appellant guarded against a frisk of his front waistband
____________________________________________


2 In both his cross-examination of the sergeant and his appellate brief,
Appellant notes that the record failed to rule out the possibility that the
temperature inside the vehicle was very warm. Pertinent to the suppression
court’s assessment of the totality of circumstances confronting the officers,
however, was that it is highly unusual for car passengers to sweat profusely,
particularly for no apparent reason.

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and groin—a common spot for concealment of a gun—it raised Sergeant

Goldschmidt’s suspicion of a weapon, and Appellant was handcuffed. At the

same time, Sergeant Goldschmidt noticed that a portable police scanner on

the passenger-side visor was tuned into the Chester Police Station frequency

and was playing the sergeant’s radio messages as he gave them. A second

attempt to frisk Appellant detected a hard bulge below the waistband, which

Appellant acknowledged was a bag of cocaine.

       This combination of erratic, furtive, and noncompliant behavior

occurring during a lawful,3 nighttime stop in a high crime/drug crime area

provided a reasonable basis for concerns about officer safety justifying a

weapons search of Appellant. See Buchert, 68 A.3d at 916-17 (holding frisk

supported by reasonable suspicion where passenger made furtive movements

and defendant behaved in nervous manner during nighttime traffic stop). The

record, therefore, supports the order denying Appellant’s motion to suppress.

       In Appellant's second issue, he demands a new trial because defense

counsel who represented him at sentencing failed to offer a colloquy disclosing

the potential for conflict arising from counsel’s having represented Co-

Defendant at trial. Appellant concedes he raised no pro se objection to dual

representation at his sentencing, but he contends waiver may not apply in the




____________________________________________


3 There is no dispute that at the time of the weapons frisk uncovering the
contraband in question, the lawful traffic stop for Co-Defendant’s motor
vehicle code violation was still in progress.

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absence of disclosure of potential conflict and the opportunity to waive

expressly his rights to exclusive counsel.

      Decisional law pertaining to dual representation and conflict of interest

is well-established:

      [D]ual representation is insufficient to support a finding of conflict
      of interest, and is not a per se violation of constitutional
      guarantees of effective assistance of counsel. To make the dual
      representation rise to a true conflict, appellant need not show that
      actual harm resulted, but must at least show the possibility of
      harm. The law applicable to dual representation cases was
      delineated in Commonwealth v. Breaker, 456 Pa. 341, 344–45,
      318 A.2d 354, 356 (1974):

            “Our dual representation cases make several
            principles clear. First, ‘[i]f, in the representation of
            more than one defendant, a conflict of interest arises,
            the mere existence of such conflict vitiates the
            proceedings, even though no actual harm results. The
            potentiality that such harm may result, furnishes the
            appropriate criterion.’      Commonwealth ex rel.
            Whitling v. Russell, 406 Pa. 45, 48, 176 A.2d 641,
            643 (1962). Second, a defendant must demonstrate
            that a conflict of interest actually existed at trial,
            because ‘dual representation alone does not amount
            to a conflict of interest.’ Commonwealth v. Wilson,
            429 Pa. 458, 463, 240 A.2d 498, 501 (1968);
            Commonwealth ex rel. Corbin v. Myers, 419 Pa.
            139, 213 A.2d 356 (1965), cert. denied, 386 U.S.
            1013, 87 S.Ct. 1361, 18 L.Ed.2d 445 (1967). Third,
            ‘[t]o make the dual representation rise to a true
            conflict, appellant need not show that actual harm
            resulted, ... but he must at least show the possibility
            of harm....’ Commonwealth v. Wilson, supra [429
            Pa.] at 463, 240 A.2d at 501. Fourth, appellant will
            satisfy the requirement of demonstrating possible
            harm, if he can show, inter alia, ‘that he had a defense
            inconsistent with that advanced by the other client, or
            that counsel neglected his case in order to give the
            other client a more spirited defense.’ Id. Accord,


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            Commonwealth v. Cox, 441 Pa. 64, 69, 270 A. 2d
            207, 209 (1970) (plurality opinion).”

      Commonwealth v. Evans, 306 Pa.Super. 25, 451 A.2d 1373,
      1374–1375 (1982).

Commonwealth v. Rogal, 120 A.3d 994, 1005-1006 (Pa.Super. 2015)

(addressing claim on direct review and dismissing it on the merits). See also

Commonwealth v. Collins, 957 A.2d 237, 251 (Pa. 2008) (“To show an

actual conflict of interest, the appellant must demonstrate that: (1) counsel

“actively represented conflicting interests”; and (2) those conflicting interests

“adversely affected his lawyer’s performance.”).

      Assuming, arguendo, this claim is ripe for direct review, we conclude

Appellant’s argument fails because it offers merely a bare assertion that dual

representation at sentencing carried the potential for conflict. Critically, he

makes no attempt to show, as decisional law requires, an actual conflict of

interest that adversely affected his lawyer’s performance.    Because Appellant

makes no such demonstration, he may not prevail on this claim.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/20



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