J-A07015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DONTAY HILTON                            :
                                          :
                   Appellant              :   No. 604 EDA 2018

          Appeal from the Judgment of Sentence January 25, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0004357-2017


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

MEMORANDUM BY OLSON, J.:                             FILED APRIL 24, 2019

      Appellant, Dontay Hilton, appeals from the judgment of sentence

entered on January 25, 2018. We affirm.

      On appeal, Appellant claims that the trial court erred when it denied his

motion to suppress. Because the Commonwealth prevailed at the suppression

hearing, we “consider only the Commonwealth’s evidence 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. Russo, 934 A.2d 1199, 1203

(Pa. 2007) (quotations and citations omitted). 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). Viewed in this manner, the evidence is as

follows.



____________________________________
* Former Justice specially assigned to the Superior Court.
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      On February 26, 2017, at approximately 5:36 p.m., Philadelphia Police

Officer Michael Fischbach was on duty and driving a marked patrol vehicle in

the 2600 block of Frankford Avenue, in Philadelphia.        N.T. Suppression

Hearing, 10/30/17, at 7-8.     Officer Fischbach, a five-year veteran of the

Philadelphia Police Department, testified that the 2600 block of Frankford

Avenue is a high-crime area; he further testified that, at the time, “[t]he sun

was setting [and] . . . it was starting to get dark.” Id. at 10-15. Officer

Fischbach testified:

        I observed an orange Infiniti FX35 traveling northbound.

        I observed that it had a dark tinted front windshield along
        with dark tinted driver’s side windows. I believed that to be
        a hazard for nighttime driving, so I stopped the vehicle at
        2600 Frankford Avenue using my lights and sirens.

                                     ...

        At this point, [Appellant] pulled over. He immediately rolled
        down both driver’s side windows.

        Upon my approach to the driver’s side of the vehicle, I could
        see [Appellant] quickly reach towards his waist and then over
        to the passenger’s side of the vehicle. There was nobody else
        in the car, only a bag on the front passenger’s seat.

        I asked [Appellant] for his license, registration, and
        insurance. He was able to provide me with those. I returned
        to my vehicle.

        Before I returned to my vehicle, I noticed that he was visibly
        nervous with shaky voice, shaky hands.

        At that point, I returned to my vehicle, ran his driver’s
        license, which was valid. I was able to check his prison
        release records and observed that he had multiple
        firearm-related arrests.

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        So due to his nervousness, the furtive movements, and the
        prison release records, along with this being a very
        high-crime area . . . and from my previous experiences with
        other defendants carrying firearms, the waistband is a very
        common area to carry a firearm, so I believed he might have
        been attempting to conceal a firearm or contraband with
        those movements.

        I decided to frisk him for weapons. . . . I had him outside of
        the vehicle, I was frisking him for weapons.

        My backup arrived, Officers McBride and Robinson. I alerted
        . . . the officers to his movements towards the passenger’s
        side of the vehicle.

        As I was placing [Appellant] in the rear of my vehicle, Officer
        McBride . . . alerted me that he had found a black Glock
        firearm in the front passenger’s seat area of the vehicle.

        At this time, I ran [Appellant] for a valid permit to carry, and
        it was in a revoked status. [Appellant] was placed under
        arrest. . . .

Id. at 8-14.

      Philadelphia Police Officer John McBride testified that, when he came

upon the scene, he “observed Officer Fischbach with [Appellant] outside

[Appellant’s] vehicle.” Id. at 31-32. He testified:

        As I was walking up, [Officer Fischbach] said that [Appellant]
        was reaching towards the passenger’s side of the vehicle, so
        that’s where I began to start my look. . . . [Appellant’s]
        vehicle had an open laptop bag situated on the front
        passenger’s seat. I looked inside the laptop bag and I
        observed a firearm.

Id. at 32.

      Officer McBride specified that, when he observed the firearm, he was

standing outside of the vehicle, but was “reach[ing] in[].” Id.


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        The Commonwealth charged Appellant with numerous violations of the

Pennsylvania Uniform Firearms Act. Prior to trial, Appellant filed a motion to

suppress the firearm. Appellant claimed that the firearm must be suppressed

because he “was stopped[,] frisked, and searched without reasonable

suspicion” and the “firearm was obtained in violation of [Appellant’s] rights as

provided in Article I, Section[] 8 of the Pennsylvania Constitution, the Fourth

and [14th] Amendments to the United States Constitution and Terry v. Ohio[,

392 U.S. 1 (1968)].” Appellant’s Suppression Motion, 9/21/17, at 1; see also

Appellant’s Brief in Support, 11/14/17, at 1-4.

        On October 30, 2017, the trial court held a hearing on Appellant’s

suppression motion, where it heard the above-summarized evidence. The trial

court denied Appellant’s motion on November 22, 2017.               N.T. Hearing,

11/22/17, at 8-9. That day, Appellant proceeded to a stipulated, non-jury

trial and, at the conclusion of the trial, the trial court found Appellant guilty of

firearms not to be carried without a license, carrying firearms on the public

streets of Philadelphia, carrying a loaded weapon, and persons not to possess

firearms.1 N.T. Trial, 11/22/17, at 15. On January 25, 2018, the trial court

sentenced Appellant to serve an aggregate term of 11 ½ to 23 months in jail,

followed by five years of probation, for his convictions.

        Appellant filed a timely notice of appeal. He raises one claim to this

Court:

____________________________________________


1   18 Pa.C.S.A. §§ 6106(a)(1), 6108, 6106.1(a), and 6105(a)(1), respectively.

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         Did Officer Fischbach have reasonable suspicion to continue
         detaining Appellant beyond the amount of time necessary to
         issue a traffic citation and to search Appellant’s car?

Appellant’s Brief at 2.

      “Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant’s

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. Super.

2012) (en banc); see also Pa.R.Crim.P. 581(H). With respect to an appeal

from the denial of a motion to suppress, our Supreme Court has declared:

         Our standard of review in addressing a challenge to a trial
         court’s denial of a suppression motion is whether the factual
         findings are supported by the record and whether the legal
         conclusions drawn from those facts are correct. When
         reviewing [such a ruling by the] suppression court, we must
         consider only the evidence of the prosecution and so much of
         the evidence of the defense as remains uncontradicted when
         read in the context of the record. . . . Where the record
         supports the findings of the suppression court, we are bound
         by those facts and may reverse only if the legal conclusions
         drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted). “It 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. Gallagher, 896 A.2d 583, 585 (Pa. Super.

2006).

      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,


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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 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).

        In the case at bar, Officer Fischbach performed a traffic stop of

Appellant’s vehicle because he suspected that Appellant was violating Section

4524(e)(1) of the Vehicle Code.2 Appellant does not contest the validity of

this initial stop. See Appellant’s Brief at 6. Instead, Appellant claims that the

trial court erred when it denied his suppression motion because Officer

Fischbach neither possessed “reasonable suspicion to continue detaining

Appellant beyond the amount of time necessary to issue a traffic citation” nor
____________________________________________


2   Section 4524(e)(1) of the Vehicle Code provides:

          No person shall drive any motor vehicle with any sun
          screening device or other material which does not permit a
          person to see or view the inside of the vehicle through the
          windshield, side wing or side window of the vehicle.

75 Pa.C.S.A. § 4524(e)(1).

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J-A07015-19



a reasonable belief that Appellant was dangerous and could “gain immediate

control of weapons,” which was necessary to search Appellant’s car. Id. at 7.

The former claim is waived, the latter claim fails.

      At the outset, Appellant did not raise any claim at the trial level that he

was detained “beyond the amount of time necessary [for Officer Fischbach to]

issue [him] a traffic citation.” See Appellant’s Suppression Motion, 9/21/17,

at 1; N.T. Suppression Hearing, 10/30/17, at 5-6 and 35-36; Appellant’s Brief

in Support, 11/14/17, at 1-4. The claim is thus waived. Commonwealth v.

Thur, 906 A.2d 552, 566 (Pa. Super. 2006) (“[w]hen a defendant raises a

suppression claim to the trial court and supports that claim with a particular

argument or arguments, the defendant cannot then raise for the first time on

appeal different arguments supporting suppression”); Commonwealth v.

Little, 903 A.2d 1269, 1272-1273 (Pa. Super. 2006) (“[a]ppellate 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”); Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower

court are waived and cannot be raised for the first time on appeal”).

      Appellant also claims that the trial court erred when it denied his

suppression motion, as the police searched his vehicle without the necessary

reasonable suspicion that Appellant was dangerous and could “gain immediate

control of weapons.” See Appellant’s Brief at 7.

      In Terry, the United States Supreme Court held that, when an officer

has a reasonable belief “that the individual whose suspicious behavior he is

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investigating at close range is armed and presently dangerous to the officer

or to others,” the officer may “take necessary measures to determine whether

the person is in fact carrying a weapon and to neutralize the threat of physical

harm.”3,   4   Terry, 392 U.S. at 24. Both the United States Supreme Court and

this Court have held that traffic stops are “especially fraught with danger to

police officers.” Michigan v. Long, 463 U.S. 1032, 1047 (1983); see also

Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977) (“we have specifically

recognized the inordinate risk confronting an officer as he approaches a person

seated in an automobile”); Commonwealth v. Cartagena, 63 A.3d 294, 306

____________________________________________


3   The Pennsylvania Supreme Court has explained:

           Pennsylvania courts have consistently followed Terry in stop
           and frisk cases, including those arising under Article 1, § 8 of
           the Pennsylvania Constitution.           Commonwealth v.
           Jackson, 698 A.2d 571, 573 (Pa. 1997); Commonwealth
           v. Melendez, 676 A.2d 226, 230 (Pa. 1996) (Terry sets forth
           the standard for the reasonableness of a search under Art. 1,
           § 8).

Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999).

4 We note: “[a] Terry search, unlike a search without a warrant incident to a
lawful arrest, is not justified by any need to prevent the disappearance or
destruction of evidence of crime. The sole justification of the search is the
protection of police officers and others nearby.” Long, 463 U.S. at 1049 n.14
(quotations, citations, and corrections omitted); Minnesota v. Dickerson,
508 U.S. 366, 373 (1993) (“a protective search – permitted without a warrant
and on the basis of reasonable suspicion less than probable cause – must be
strictly limited to that which is necessary for the discovery of weapons which
might be used to harm the officer or others nearby”) (quotations and citations
omitted).




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(Pa. Super. 2013) (en banc) (“Courts are mindful that police officers risk their

lives daily in the line of duty, especially when conducting a vehicle stop, as

they do not know what they will encounter when they approach a car”).

       In following, the United States Supreme Court has held that, “once a

motor vehicle has been lawfully detained for a traffic violation, the police

officers may order the driver to get out of the vehicle without violating the

Fourth Amendment's proscription of unreasonable searches and seizures.”

Mimms, 434 U.S. at 333 n.6. Further, if, during a valid traffic stop, the officer

has a reasonable belief that “the suspect is dangerous and the suspect may

gain immediate control of weapons,” the officer may “search [] the passenger

compartment of [the vehicle], limited to those areas in which a weapon may

be placed or hidden.” Long, 463 U.S. at 1049-1050 (quotations and citations

omitted);5 see also Mimms, 434 U.S. at 333-334 (“once a motor vehicle has

been lawfully detained for a traffic violation, the police officers may order the

driver to get out of the vehicle [and, if the officer has] . . . reasonabl[y]

concluded that the person whom he had legitimately stopped might be armed

and presently dangerous[,] . . . [the officer may] conduct[] a limited search

for weapons”).

____________________________________________


5In Commonwealth v. Morris, 644 A.2d 721 (Pa. 1994), our Supreme Court
declared: “since Michigan v. Long is based on Terry's rationale of protecting
an officer's safety by permitting a limited search for weapons when the officer
has a reasonable and articulable suspicion that a suspect may have access to
a weapon, we hold that Long's reasoning is also applicable to Article I, § 8
[of the Pennsylvania Constitution].” Morris, 644 A.2d at 724 n.3.


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      As the United States Supreme Court has stressed, this “reasonable

belief” must be based upon:

        specific and articulable facts which, taken together with the
        rational inferences from those facts, reasonably warrant the
        officer[] in believing that the suspect is dangerous and the
        suspect may gain immediate control of weapons. The issue
        is whether a reasonably prudent man in the circumstances
        would be warranted in the belief that his safety or that of
        others was in danger. If a suspect is “dangerous,” he is no
        less dangerous simply because he is not arrested.

Long, 463 U.S. at 1049-1050 (citations, corrections, footnote, and some

quotations omitted). When assessing the validity of a protective search, “we

examine the totality of the circumstances, giving due consideration to the

reasonable inferences that the officer can draw from the facts in light of his

experience, while disregarding any unparticularized suspicion or hunch.”

Commonwealth v. Mack, 953 A.2d 587, 590 (Pa. Super. 2008).

      Appellant’s claim on appeal – that the search of his vehicle was

unconstitutional, as Officer Fischbach did not possess reasonable suspicion

that Appellant was dangerous and could “gain immediate control of weapons”

– fails. In this case, Officer Fischbach possessed a reasonable belief, based

on specific and articulable facts, that Appellant was dangerous and that

Appellant possessed a firearm in the passenger compartment of his vehicle.

To be sure, the evidence at the suppression hearing establishes that: Officer

Fischbach was an experienced, five-year veteran of the Philadelphia Police




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Department;6 the vehicle stop occurred in a high-crime area;7 at the time of

the stop, “[t]he sun was setting [and] . . . it was starting to get dark;”8

Appellant’s vehicle had a darkly-tinted windshield and darkly-tinted windows;9

when Officer Fischbach approached Appellant’s vehicle, he “could see


____________________________________________


6 See Cartagena, (holding that the officer’s “training and experience and its
role in formulating a reasonable suspicion that [the suspect] was armed and
dangerous” is a relevant consideration in the reasonable suspicion calculus).

7 See Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa. Super. 2009) (en
banc) (“whether the defendant was located in a high crime area [may] support
[] the existence of reasonable suspicion”).

On appeal, Appellant claims that, “though [Officer Fischbach] invoked the
words ‘high-crime area,’ he only knew the area to have narcotics and other
warrant-related arrests and did not detail any actual crimes he had
investigated in the area.” Appellant’s Brief at 19. We note that Appellant’s
presence in a “high crime area” was just one factor in the totality of the
circumstances, which justified the protective search of Appellant’s vehicle. We
further note that Officer Fischbach’s testimony regarding the high crime area
was indeed relevant to the issue of whether the officer possessed a reasonable
belief that Appellant was “dangerous and . . . may gain immediate control of
weapons.” Long, 463 U.S. at 1049-1050; see also Foglia, 979 A.2d at 361.

8 See Commonwealth v. Zhahir, 751 A.2d 1153, 1157 (Pa. 2000) (holding
that the time of day is relevant to a reasonable suspicion analysis); In re O.J.,
958 A.2d 561, 566 (Pa. 2008) (en banc) (holding that the officer’s “protective
search was constitutionally valid,” in part, because “[t]he vehicular stop
occurred at night, which creates a heightened danger that an officer will not
be able to view a suspect reaching for a weapon”).

9 See Commonwealth v. Murray, 936 A.2d 76, 80 (Pa. Super. 2007) (“we
can conceive of almost nothing more dangerous to a law enforcement officer
in the context of a traffic stop than approaching an automobile whose
passenger compartment is entirely hidden from the officer's view by darkly
tinted windows”) (quotations, citations, and emphasis omitted).




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J-A07015-19



[Appellant] quickly reach towards his waist and then over to the passenger’s

side of the vehicle;”10 “[t]here was nobody else in [Appellant’s] car, only a

bag on the front passenger’s seat;” based upon Officer Fischbach’s “previous

experiences with other defendants carrying firearms,” “the waistband is a very

common area to carry a firearm, so [Officer Fischbach] believed [Appellant]

might have been attempting to conceal a firearm;”11 when Officer Fischbach

asked for Appellant’s license, registration, and insurance, Officer Fischbach

noticed that Appellant “was visibly nervous with shaky voice, shaky hands;”12

and, when Officer Fischbach ran Appellant’s driver’s license, Officer Fischbach

“observed that [Appellant] had multiple firearm-related arrests.”13
____________________________________________


10See Commonwealth v. Buchert, 68 A.3d 911, 916-917 (Pa. Super. 2013)
(holding that “furtive movements” are a valid factor in determining whether
“a reasonable police officer [would] believe that his safety was in danger and
that [the defendant] may gain immediate control of a weapon”).

11 See Foglia, 979 A.2d at 361 (“if a suspect engages in hand movements
that police know, based on their experience, are associated with the secreting
of a weapon, those movements will buttress the legitimacy of a protective
weapons search of the location where the hand movements occurred”); see
also Commonwealth v. Tuggles, 58 A.3d 840, 844 (Pa. Super. 2012)
(“[w]here 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”).

12 See Commonwealth v. Thorne, 191 A.3d 901, 906 (Pa. Super. 2018)
(holding that a suspect’s “nervousness and quivering voice [are] additional
factors [that may] justif[y an officer’s] reasonable suspicion”).

13See United States v. Conley, 4 F.3d 1200, 1207 (3rd Cir. 1993) (“[t]he
use of prior arrests and convictions to aid in establishing probable cause is not
only permissible, but is often helpful”) (citations omitted); see also
Commonwealth v. Freeman, 150 A.3d 32, 40-41 (Pa. Super. 2016) (the



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       Viewed in the light most favorable to the Commonwealth, the above

evidence constitutes “specific and articulable facts which, taken together with

the rational inferences from those facts, reasonably warrant[ed Officer

Fischbach] in believing that [Appellant was] dangerous and . . . may gain

immediate control of weapons.” Long, 463 U.S. at 1049-1050 (quotations

and citations omitted).         Further, since Officer Fischbach possessed the

necessary reasonable suspicion, Officer McBride was permitted to perform the

protective search of the open laptop bag located on the front passenger’s seat.

Specifically, Officer Fischbach directed Officer McBride to perform the search

and the bag constituted an “area[] in which a weapon may be placed or

hidden.” See, e.g., Commonwealth v. Yong, 177 A.3d 876, 889 (Pa. 2018)

(“Pennsylvania adheres to the vertical approach of the collective knowledge

doctrine, which instructs that an officer with the requisite level of suspicion

may direct another officer to act in his or her stead”); Long, 463 U.S. at

____________________________________________


defendant’s prior arrest for “a weapons offense in New York” was part of the
totality of the circumstances, which, in the end, was “sufficient to support the
trial court’s determination that the [officer’s] detention of [the defendant] was
supported by reasonable suspicion”); Commonwealth v. Moore, 805 A.2d
616, 621 (Pa. Super. 2002) (noting that “[t]he prior criminal and supervisory
history of the offender” is a valid “factor[, which may be] taken into account
to determine the existence of reasonable suspicion to search a probationer”);
61 Pa.C.S.A. § 6153(d)(6).

We note that, on appeal, Appellant does not claim that the trial court erred in
considering his prior arrests under the “totality of the circumstances” test;
Appellant claims only that, since Officer Fischbach “did not know the outcome
of those arrests [or] . . . when the arrests occurred,” the factor of Appellant’s
prior arrests “should be of minimal weight.” Appellant’s Brief at 18-19.


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1049-1050; see also Morris, 644 A.2d 723-724 (holding: “the bag in

question was properly searched since it was large enough to hold a weapon”).

     Appellant’s claim on appeal thus fails.

     Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/19




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