J.S45036/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                           Appellee         :
                                            :
                    v.                      :
                                            :
                                            :
GILBERT CAMPBELL,                           :
                                            :
                           Appellant        :     No. 2227 EDA 2013


              Appeal from the Judgment of Sentence July 10, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0010839-2011

BEFORE: BOWES, ALLEN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                        FILED AUGUST 27, 2014

        Appellant, Gilbert Campbell, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following a jury

trial and convictions for carrying a firearm without a license, 1 possession of a

firearm with the manufacturer number altered,2 and persons not to possess

firearms.3     Appellant suggests the police lacked reasonable suspicion or



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6106.
2
    18 Pa.C.S. § 6110.2.
3
  18 Pa.C.S. § 6105.       The court, and not the jury, tried Appellant for this
crime.
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probable cause to search his vehicle and thus the trial court erred in denying

his motion to suppress the evidence. We affirm.

      We state the facts and procedural history as set forth by the trial

court:

         On September 2, 2011, at 9 p.m., on the 2400 block of
         North Colorado Street, Police Officer David Rausch, an
         experienced     narcotics officer,   began   a    narcotics
         surveillance.    At 9:10 p.m. Officer Rausch observed
         [Appellant], whom he knew from a previous narcotics
         arrest, remove a clear baggie containing small items from
         his front waistband and then put it back. Based on Officer

         narcotics packaged for sale. [Appellant] walked out of

         silver Buick that was parked on the 1700 block of
         Cumberland Street and drove off. Officer Rausch put out
         information to back-up officers to stop [Appellant] for a
         narcotics investigation.

            Sergeant Sylvia Young, who was acting as a back up to
         Officer Rausch, received information from Officer Rausch
         to stop a silver Buick. The back-up officers double parked
         their police vehicle five feet in front of the Buick which was
         parked on the 2500 block of Colorado Street. Sergeant
         Young knew [Appellant] from previous encounters and
         believed that [Appellant] recognized her. As Sergeant
         Young approached the vehicle on foot, she observed
         [Appellant] bend down and make a motion towards the
         passenger seat. [Appellant] was immediately taken out of
         the vehicle.     Sergeant Young recovered a Kel-Tec 9-
         mil[l]imeter handgun loaded with eleven live rounds under
         the passenger seat and $5,195 U.S. [c]urrency on the
         passenger seat that was in plain view.             The officers
         arrested [Appellant].




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            At trial[,4] Officer Rausch testified consistent with his
         suppression hearing testimony.        Additionally, Sergeant
         Sylvia Young testified that she along with Police Officer
         Cherry, Police Officer Dougherty, and Police Officer
         Greninger were acting as a back up to Officer Rausch. At

         car which was parked on the 2500 block of Colorado
         Street.   When Sergeant Young exited her vehicle she
         observed [Appellant] reach under the passenger seat for
         what she believed was a weapon. Officer Dougherty took
         [Appellant] out of the car. Sergeant Young the Kel-Tec 9-
         mil[l]imeter handgun and $5,195 U.S. [c]urrency.

             Police Officer Ronald Weitman, an expert in the field of
         firearms examination, testified that the serial number on
         the firearm had been obliterated by gouging. The firearm
         was also operable. [Appellant] was not licensed to carry a
         firearm.

Trial Ct. Op., 9/13/13, at 2-3 (citations omitted).

      Appellant filed a motion to suppress the gun.           At the hearing,

Appellant alleged the police lacked reasonable suspicion or probable cause to

search his vehicle. N.T., 2/14/13, at 3. The court denied the motion and

the case proceeded to trial.

      On July 10, 2013, a jury convicted Appellant of the above crimes. The

court sentenced Appellant that day to an aggregate sentence of five to ten




4
  We acknowledge the holding of In re L.J., 79 A.3d 1073 (Pa. 2013), which
held that after October 30, 2013, the scope of review for a suppression issue
is limited to the record available to the suppression court. Id. at 1085, 1089
                                                                         -wide

filed prior to October 30, 2013, In re L.J. does not apply.




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post-sentence motion on July 22, 2013.         The docket and certified record,

how

                                                 -sentence motion.   Appellant,

although represented by counsel, filed a pro se notice of appeal on August 1,

2013.5 Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

       Appellant raises the following issue:

          Did the lower court err when it denied the defense motion
          to suppress physical evidence as Philadelphia police . . .
          had neither probable cause nor reasonable suspicion to

          automobile and seize a firearm from under the passenger
          seat of this vehicle?



totality of the circumstances did not establish the existence of a drug

transaction as to justify the stop and search of his vehicle. Specifically, he

maintains that the police could not identify the contents of the plastic baggy

he put into his waistband. We hold Appellant is not entitled to relief.

               Our standard of review in addressing a
               challenge to the denial of a suppression motion
               is   limited  to   determining    whether   the

               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

5
    The notice of appeal was dated July 22, 2013, which was prior to the
                                            -sentence motion.




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               uncontradicted when read in the context of the
               record as a whole. Where the suppression

               record, we are bound by these findings and may

               erroneous. Where, as here, the appeal of the
               determination of the suppression court turns on
               allegations of legal error, the suppression

               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.


        as fact finder to pass on the credibility of witnesses and
        the weight to be given their testimony.

Commonwealth v. Baker, 24 A.3d 1006, 1015 (Pa. Super. 2011)

(punctuation and citations omitted),                          , 78 A.3d 1044

(Pa. 2013).

      In Commonwealth v. Thompson, 985 A.2d 928 (Pa. 2009), our



        Probable cause is made out when the facts and
        circumstances which are within the knowledge of the
        officer at the time of the arrest, and of which he has
        reasonably trustworthy information, are sufficient to
        warrant a man of reasonable caution in the belief that the
        suspect has committed or is committing a crime. The
        questio
        correct or more likely true than false. Rather, we require
        only a probability, and not a prima facie showing, of
        criminal activity. In determining whether probable cause
        exists, we apply a totality of the circumstances test.

Id.




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the                                        Id. at 935.

       In Commonwealth v. Burnside, 625 A.2d 678 (Pa. Super. 1993),

                                                                       Id. at

680.

            On January 11, 1992, at approximately 10:15 p.m., a
         uniformed Philadelphia police officer observed [the
         defendant], who was standing in the brightly lit doorway to


         commonly contained cocaine packaged for the retail
         market. This sighting occurred in an area in which the
         police officer had conducted numerous arrests for drug
         offenses. Based on his knowledge and experience, the

         contained narcotics. The officer and his partner, both in
         uniform, decided to investigate the situation further.
         However, as soon as [the defendant] noticed the police
         presence, he shoved the packets into his jacket and
         stepped backward into the store.

            Police Officer Norman followed [the defendant] into the
         store and brought him outside.       Officer Albert Jones
         thereupon conducted a pat down search of [the defendant]
         which disclosed sixty-nine (69) blue-tinted packets and

         pow
         that time, [the defendant] also possessed one hundred
         twenty-one dollars ($121) in United States currency.

Id. at 679-80 (citations omitted).

       The trial court suppressed the evidence, and the Commonwealth

appealed, contending the police had probable cause for a warrantless arrest.

Id. at 681. The Burnside Court agreed, noting that the facts as set forth




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established probable cause                                     Id. at 681-82.

Accordingly, the Superior Court found the search lawful and reversed the

                                                          Id. at 682.

     In Commonwealth v. Murray, 936 A.2d 76 (Pa. Super. 2007), the

police, at night and in a high drug trade area, stopped a vehicle with

heavily-tinted windows for a traffic violation.   Id. at 77.   The police had

difficulty seeing through the windows but saw the defendant move

excessively.   Id.                                ssive movement, the police

pulled him out of the vehicle and frisked him. Id. The police did not find a

weapon on the defendant, but concerned for their safety, one officer entered

the vehicle and searched the area where the defendant was sitting and

recovered a firearm.    Id.   The defendant challenged the limited vehicle

search on appeal. Id.

     The Murray Court affirmed the reasonableness of the limited search:

        Our past cases indicate then that protection of police and
        others can justify protective searches when police have a
        reasonable belief that the suspect poses a danger, that
        roadside encounters between police and suspects are
        especially hazardous, and that danger may arise from the
        possible presence of weapons in the area surrounding a
        suspect. These principles compel our conclusion that
        the search of the passenger compartment of an
        automobile, limited to those areas in which a
        weapon may be placed or hidden, is permissible if
        the police officer possesses a reasonable belief
                                      iculable facts which, taken
        together with the rational inferences from those

        that the suspect is dangerous and the suspect may
        gain immediate control of weapons


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         whether a reasonably prudent man in the circumstances
         would be warranted in the belief that his safety or that of


Id. at 78-

neighborhood being a well-known narcotics area, when coupled with the

excessive movement inside the vehicle and hour of night, raised serious and

                                                                      Id. at 80

(citations omitted).



the Honorable Barbara A. McDermott, we affirm on the basis of the trial

                  See Trial Ct. Op. at 4-6 (holding: (1) facts, as set forth

above, established reasonable suspicion that Appellant was distributing

illegal drugs; (2) police had reasonable suspicion of criminal activity to stop



seat upon seeing police justified limited search under passenger seat as

police established articulable suspicion that Appellant may possess weapon);

see Murray, 936 A.2d at 78-80 (holding furtive movement justified limited

search of vehicle); Burnside, 625 A.2d at 681-

suppression of evidence because police had probable cause to search

defendant despite not observing drug transaction); see also Thompson,



determining    existence   of   probable   cause).   Accordingly,   because   the




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discern no error of law, we affirm the judgment of sentence. See Baker, 24

A.3d at 1015.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/27/2014




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