J-S39035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :       IN THE SUPERIOR COURT OF
                                            :             PENNSYLVANIA
                  Appellee                  :
                                            :
            v.                              :
                                            :
MICHAEL WHITEHEAD,                          :
                                            :
                  Appellant                 :            No. 2635 EDA 2014

      Appeal from the Judgment of Sentence entered on June 19, 2014
           in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No. CP-51-CR-0005247-2012

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                              FILED JULY 17, 2015

      Michael Whitehead (“Whitehead”) appeals from the judgment of

sentence imposed after he was convicted of possession of a controlled

substance, and three violations of the Uniform Firearms Act (collectively,

“the VUFA offenses”).1 We affirm.

      The trial court set forth the relevant facts underlying this appeal as

follows:

             On March 7, 2012, at 1:20 pm, Philadelphia Police Officer
      Daniel McMonagle [“Officer McMonagle”] was on routine patrol in
      a marked patrol car when he observed [Whitehead] operating a
      2002 silver Chevy Impala on Upsal Street[,] and approaching the
      intersection of Belfield Street. The traffic light at the intersection
      was a “steady red” when [Whitehead] made a right turn onto
      Belfield Street without stopping or using a right turn signal.
      Officer McMonagle stopped [Whitehead’s] vehicle because
      [Whitehead] committed a motor vehicle violation.


1
 See 35 P.S. § 780-113(a)(16); 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1),
6108.
J-S39035-15

           As Officer McMonagle approached the driver’s side of the
     vehicle, he observed [Whitehead] reaching across the vehicle[,]
     as well as leaning forward and reaching toward his sides.
     According to Officer McMonagle, [Whitehead] was “reaching
     around quite a bit” and was “reaching forward, down, and to his
     side all the way across the vehicle.”        Officer McMonagle
     described [Whitehead’s] reaching movements as being “more
     than just going to the glove box to get paperwork.” Based upon
     the observed movements, Officer McMonagle “thought that
     [Whitehead] was possibly trying to conceal a weapon.”

           Officer McMonagle ordered [Whitehead] to stop reaching
     and to provide his driver’s license, registration, and proof of
     insurance. In response, [Whitehead] stuttered and was fumbling
     with paperwork. He produced a photocopy of a driver’s license
     with the name Percey Whitehead[,] and the photo [was] blacked
     out. [Whitehead] stated that he was the owner of the vehicle
     and that he was driving home. [Whitehead] appeared to be
     nervous and “slightly standoffish.”

           During his interaction with [Whitehead], Officer McMonagle
     stood behind the door jam[b] of the vehicle and leaned forward
     toward the vehicle. He specifically testified that the door to the
     vehicle was closed and he “wasn’t in the vehicle.” From that
     viewpoint, he observed a clear, small Ziploc baggy – that he
     immediately recognized as narcotics packaging – on the floor
     mat at [Whitehead’s] feet. Based upon his observation of the
     narcotics packaging, Officer McMonagle removed [Whitehead]
     from his car and frisked him for weapons. [Officer McMonagle’s]
     partner detained [Whitehead] at the back of vehicle;
     [Whitehead] was not handcuffed at this time.

           Officer McMonagle went to the driver’s side of the vehicle
     to retrieve the narcotics packaging. As he was recovering the
     narcotics packaging, he observed that the plastic portion of the
     gear shifter was popped up and was cockeyed, or sitting off []
     center by a quarter to one[-]half of an inch. He thought that the
     dislodged gear shifter was unusual so he used his flashlight to
     look into the gear shifter. When he did so, he immediately
     recognized – based upon his familiarity with firearms – that
     there was a firearm inside the gear shifter from his observation
     of the top of the barrel or the slide of the firearm. He did not
     touch or otherwise manipulate the gear shifter in order to make
     his observations. Officer McMonagle did not recover the firearm,
     but rather requested a search warrant for the vehicle. The

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      narcotics packaging and firearm were both recovered and placed
      on property receipts; the firearm was recovered pursuant to a
      search warrant obtained by Detective Linda Hughes.

            Officer McMonagle regards the area where [Whitehead]
      was stopped as an “extremely high[-]crime area known for a lot
      of shootings.”       In his career as a police officer, Officer
      McMonagle has made more than 100 arrests for illegal narcotics.
      He is familiar with the type of narcotics packaging that he
      observed in [Whitehead’s] vehicle.     He also has extensive
      familiarity with firearms.

            During      cross-examination,    [Whitehead’s]     counsel
      repeatedly asked Officer McMonagle whether he “leaned in the
      vehicle” or “lean[ed] into the vehicle.” [Whitehead’s] counsel
      also showed the officer an arrest memo, which states that,
      “Police leaned into the vehicle to get a better view.”         In
      response, Officer McMonagle testified that he “leaned forward up
      to the vehicle,” “leaned forward to the driver,” and “was not in
      the vehicle” prior to observing the narcotics packaging. He
      further testified that he could see the narcotics packaging from
      where he was standing and without leaning into the car. Officer
      McMonagle testified that his partner[,] Officer Berryman[,]
      prepared the arrest memo based, in part, on information
      received from Officer McMonagle, but that it was not a verbatim
      account of his statements to Officer Berryman.

Trial Court Opinion, 12/12/14, at 1-3 (citations to record omitted).

      Following Whitehead’s arrest, the Commonwealth charged him with

possession of a controlled substance and the VUFA offenses.        Whitehead

subsequently filed a Motion to suppress the evidence seized from his vehicle,

asserting, inter alia, that Officer McMonagle’s warrantless search of the

vehicle was constitutionally infirm because it did not meet the “plain view”

exception to the warrant requirement.        After conducting a suppression

hearing on December 7, 2012, and considering the parties’ Memoranda of

Law, the suppression court denied Whitehead’s Motion to suppress.



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      The matter eventually proceeded to a non-jury trial, before a different

trial court judge, at the close of which the trial court found Whitehead guilty

of the above-mentioned crimes. On June 19, 2014, the trial court sentenced

Whitehead to an aggregate prison term of four to eight years.

      Whitehead timely filed a post-sentence Motion, challenging, inter alia,

the denial of his Motion to suppress. After a hearing on August 15, 2014,

the trial court denied the post-sentence Motion.      Whitehead filed a timely

Notice of Appeal. In response, the trial court ordered him to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.        Whitehead

timely filed a Concise Statement.

      On appeal, Whitehead raises the following issues for our review:

       1. Is a Philadelphia police officer in an unlawful vantage point
          to view an item he claims is in plain view[,] when he
          places his shoulder “in on a door jam[b]” of a car that has
          its window down[, and d]id the suppression court abuse its
          discretion by denying [Whitehead’s] Motion to suppress
          [on this basis]?

       2. Is a small[,] clear Ziploc baggy, consistent with narcotics
          packaging, not immediately apparent to be contraband[,
          and d]id the suppression court abuse its discretion by
          denying [Whitehead’s] Motion to suppress [on this basis]?

Brief for Appellant at 6 (capitalization omitted).2

      In reviewing the denial of a suppression motion,

      our role is to determine whether the record supports the
      suppression court’s factual findings and the legitimacy of the
      inferences and legal conclusions drawn from those findings. In
      making this determination, we may consider only the evidence of

2
  Whitehead admits that Officer McMonagle conducted a lawful traffic stop of
his vehicle. See Brief for Appellant at 10.

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     the prosecution’s witnesses and so much of the defense as, fairly
     read in the context of the record as a whole, remains
     uncontradicted. When the evidence supports the factual findings
     of the suppression court, we may reverse only if there is an error
     in the legal conclusions drawn from those factual findings. As a
     reviewing court, we are therefore not bound by the legal
     conclusions of the suppression court and must reverse that
     court’s determination if the conclusions are in error or the law is
     misapplied.

Commonwealth v. Page, 59 A.3d 1118, 1131 (Pa. Super. 2013) (citation

and brackets omitted).

     Both   of   Whitehead’s   issues   challenge    the   legality   of   Officer

McMonagle’s seizure of the contraband in Whitehead’s vehicle under the

“plain view” exception to the warrant requirement.

     “A search warrant is required before police may conduct any
     search.” Commonwealth v. Williams, 2013 PA Super 172, 73
     A.3d 609, 614 (Pa. Super. 2013) (citation omitted). “Absent the
     application of one of a few clearly delineated exceptions, a
     warrantless search or seizure is presumptively unreasonable.”
     Id. One of these exceptions is the “plain view” doctrine ….

           The plain view doctrine permits the warrantless search and
     seizure of an object when “(1) an officer views the object from a
     lawful vantage point; (2) it is immediately apparent to him that
     the object is incriminating; and (3) the officer has a lawful right
     of access to the object.” Commonwealth v. Whitlock, 2013
     PA Super 105, 69 A.3d 635, 637 (Pa. Super. 2013).                In
     determining whether the incriminating nature of an object is
     “immediately apparent” to a police officer, courts should
     evaluate the “totality of the circumstances.” Id. “Although
     courts have recognized that a police officer can never be certain
     that an object in plain view is incriminating, the officer’s belief
     must be supported by probable cause.” Id.

Commonwealth v. Sodomsky, 2015 PA Super 133 ** 19-20 (Pa. Super.

2015) (brackets omitted).




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      In his first issue, Whitehead argues that the evidence should have

been suppressed because Officer McMonagle was not at a lawful vantage

point when he viewed the alleged narcotics packaging,3 and, therefore, the

first prong of the plain view doctrine was not met. See Brief for Appellant at

11-13.   Whitehead contends that Officer McMonagle was impermissibly

leaning into Whitehead’s car when he viewed the packaging. See id. at 12-

13; see also id. at 13 (arguing that Officer McMonagle “did not have

permission to place his shoulder ‘in on’ the [door] jam[b].”).

      Here, the trial court concluded, in its Pa.R.A.P. 1925(a) Opinion, that

“the suppression court’s factual findings are supported by the record, i.e.,

that Officer McMonagle observed the narcotics packaging while standing

outside of [Whitehead’s] vehicle.”        Trial Court Opinion, 12/12/14, at 6

(emphasis added). We agree. The following testimony at the suppression

hearing supports this conclusion:

      Q. [The prosecutor]: What, if anything, did you do next[, i.e.,
      after Whitehead had given Officer McMonagle his identification
      paperwork during the stop]?

      A. [Officer McMonagle]: As of having our exchange, he has the
      paperwork, I’m standing behind the door jam[b] of the vehicle
      leaning forward and I observed what I believe to be narcotics
      packaging. … As I leaned in, I was able to observe what I
      believed to be narcotics packaging at [Whitehead’s] feet.

      Q. Now, you said you were leaning forward and looking in. At
      this point was the car door open or shut?


3
  We separately address below, in connection with Whitehead’s second issue,
his assertion that the packaging in question, i.e., a small Ziploc bag, was not
immediately identifiable as narcotics packaging.

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     A. The door was shut. I wasn’t in the vehicle. Leaning forward.

     ***

     A. My shoulder was in on the door jam[b] of the vehicle.

N.T., 12/7/12, at 14-15. Later, the following exchange transpired on cross-

examination:

     Q. [Defense counsel]: At some point in time you leaned in
     [Whitehead’s] vehicle, is that right?

     A. [Officer McMonagle]: Yes. Like I said, I leaned forward up to
     the vehicle.

     ***

     Q. So you didn’t lean into the vehicle?

     A. I leaned forward to the driver.

     Q. Did you lean into the vehicle? The third time.

     A. I was not in the vehicle.

     ***

     Q. This bag that you saw, where was it?

     A. It was on the floor at the driver’s feet.

     ***

     Q. Where you were standing[,] not leaning into the car[,] you
     could see it [the Ziploc bag]?

     A. Yes.

Id. at 28-31.

     Accordingly, the record supports the suppression and trial courts’

determinations that Officer McMonagle observed the narcotics packaging



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from a lawful vantage point for purposes of the plain view doctrine, and that

he was not in Whitehead’s vehicle.         See Page, supra (stating that a

suppression court’s findings of fact, where supported by the record, are

binding on a reviewing court); see also Commonwealth v. Colon, 777

A.2d 1097, 1103-04 (Pa. Super. 2001) (stating that “[t]here is no reason a

police officer should be precluded from observing as an officer what would

be entirely visible to him as a private citizen.         There is no legitimate

expectation of privacy shielding that portion of the interior of an automobile

which may be viewed from outside the vehicle by either inquisitive passersby

or diligent police officers.”) (citation, brackets and ellipses omitted).

      To the extent Whitehead emphasizes that Officer McMonagle used the

phrase “[a]s I leaned in,” N.T., 12/7/12, at 15, Whitehead overlooks the

main substance of the Officer’s testimony, and seeks to cast it in a light

most favorable to the defense, contrary to our standard of review.          See

Page, supra.     Officer McMonagle expressly testified that he never leaned

into Whitehead’s vehicle, and that he could see the narcotics packaging

without leaning into the vehicle.       Moreover, the mere fact that Officer

McMonagle had, at one point, leaned his shoulder on the door jamb of

Whitehead’s closed driver’s side door does not mean that he viewed the

narcotics packaging from an unlawful vantage point.          Thus, this claim is

without merit.

      In his second issue, Whitehead contends that “[e]ven if this Honorable

Court were to conclude that [] Officer [McMonagle] was in a lawful vantage

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point, his observations do not fulfill the second prong of the plain view

doctrine[,] which requires the incriminating nature of [the] item to be

immediately apparent.” Brief for Appellant at 13. Whitehead points out that

although Officer McMonagle testified that he saw what he believed to be

narcotics packaging (i.e., the small Ziploc bag) on the floor of Whitehead’s

vehicle, he conceded that he did not see any narcotics.     Id. at 14 (citing

N.T., 12/7/12, at 33, 51, and Commonwealth v. Stackfield, 651 A.2d

558, 562 (Pa. Super. 1994) (holding that the warrantless, protective pat-

down search of the defendant’s person did not meet the “plain feel” warrant

exception, and stating that “[a] zip-lock baggie is not per se contraband,

although material contained in a zip-lock baggie may well be.”)).

     Whitehead has waived this claim by his failure to include it in his

court-ordered   Rule   1925(b)    Concise   Statement.4       See   Pa.R.A.P.

1925(b)(4)(vii) (providing that “[i]ssues not included in the Statement … are

waived.”); see also Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.

1998) (holding that “[a]ny issues not raised in a 1925(b) statement will be


4
    The only issue in Whitehead’s Concise Statement that relates to
suppression/plain view doctrine states as follows: “The [suppression c]ourt
improperly denied a [M]otion to suppress a search of [Whitehead’s]
vehicle[,] as the police unlawfully gained a vantage point to the vehicle
without reasonable suspicion or probable cause, thus tainting the
subsequent search of the vehicle[,] which uncovered narcotics and a
firearm[.]” Concise Statement, 9/25/14, ¶ 3 (emphasis added); see also
Pa.R.A.P. 1925(b)(4)(ii) (providing that “[t]he Statement shall concisely
identify each ruling or error that the appellant intends to challenge with
sufficient detail to identify all pertinent issues for the judge.”). Here, the
trial court did not address Whitehead’s instant claim in its Rule 1925(a)
Opinion.

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deemed waived.”); Commonwealth v. Deck, 954 A.2d 603, 610 (Pa.

Super. 2008) (indicating that there must be strict compliance with Pa.R.A.P.

1925(b)).

      Even if this claim was not waived, however, we would conclude that it

lacks merit. Though it is true that Officer McMonagle saw only a small Ziploc

bag, and such bags can be used for purposes aside from storing narcotics,

see Stackfield, supra, Officer McMonagle testified that (1) he had made

more than 100 prior narcotics arrests; (2) during “several” of these arrests,

he had found narcotics contained in the same packaging that he saw on

Whitehead’s floor mat; and (3) he “immediate[ly]” thought that the Ziploc

bag in question may have contained narcotics. See N.T., 12/7/12, at 16-17.

It was not necessary for Officer McMonagle to be certain that the Ziploc bag

contained narcotics to meet the plain view exception; rather, he needed only

possess probable cause that it did.       See Sodomsky, supra; see also

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (stating that

“[t]he question we ask is not whether the officer’s belief was correct or more

likely true than false. Rather, we require only a probability, and not a prima

facie showing, of criminal activity.”) (citations and quotation marks omitted).

Moreover, Officer McMonagle’s viewing the Ziploc bag must be viewed under

the totality of the circumstances. See Sodomsky, supra; Thompson, 985

A.2d at 931. The traffic stop occurred late at night in an “extremely high[-

]crime area,” Whitehead was visibly nervous, and he made excessive




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movements, which, Officer McMonagle testified, raised his suspicion that

Whitehead was concealing contraband.

      Based upon the foregoing, we conclude that Whitehead was not

entitled to suppression of the contraband found in his vehicle.     All of the

prongs of the plain view exception were met in this case, and therefore, the

warrantless search and seizure of the contraband was proper.5

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/17/2015

5
  As an addendum, we are persuaded by the Commonwealth’s rationale that,
even if Officer McMonagle had not seen any narcotics packaging in
Whitehead’s vehicle, this would not require suppression of the seized
contraband, since, under the totality of the circumstances of the traffic stop,
Officer McMonagle could have legitimately conducted a protective search of
the passenger compartment of Whitehead’s vehicle. See Brief for the
Commonwealth at 22-23 (pointing out that the traffic stop occurred late at
night, in a high-gun-crime area, and Officer McMonagle testified that
Whitehead was visibly nervous, and engaged in excessive and suspicious
hand movements); id. at 23 (citing Commonwealth v. Murray, 936 A.2d
76, 80 (Pa. Super. 2007) (where the traffic stop occurred at night in a “high
narcotics area,” and the officer observed the defendant engage in excessive
hand movements inside the car, holding that the officer had sufficient
reasonable suspicion that the defendant may have been armed and
dangerous to conduct a lawful protective search of the car), and Illinois v.
Wardlow, 528 U.S. 119, 124 (2000) (recognizing that nervous, evasive
behavior is a pertinent factor in determining whether reasonable suspicion is
present)); see also N.T., 8/15/14 (post-trial Motion hearing), at 6-7
(wherein the trial court stated that the totality of the circumstances of the
encounter would have permitted Officer McMonagle to conduct a protective
search of Whitehead’s vehicle).

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