J-S71012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 QUADIR POWELL                             :
                                           :
                     Appellant             :   No. 1031 EDA 2017

            Appeal from the Judgment of Sentence January 23, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002889-2016


BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY PANELLA, J.:                         FILED OCTOBER 08, 2019

      Appellant, Quadir Powell, appeals from the judgment of sentence

imposed following his guilty plea to violations of the Uniform Firearms Act

(“VUFA”).     Specifically, Appellant challenges the denial of his motion to

suppress the discovery of a firearm. The suppression court properly found

that the arresting police officer had reasonable suspicion for a traffic stop and

to perform pat-down searches on Appellant, which ultimately revealed a

loaded .22 caliber revolver. Accordingly, we affirm.

      The trial court summarized the evidence presented at the suppression

hearing:

      [On March 2, 2016,] Philadelphia Police Officer [Jeffrey] Donahue
      was working with his partner Police Officer Gerard in a marked
      patrol vehicle, in the vicinity of the 6500 block [of Paschall
      Avenue] in the City and County of Philadelphia. (N.T. [Suppression
      Hearing, 8/18/16] at 5 and 6)[.] He described it as “a high crime
      area a high-drug, high-crime, high-shooting area. At the time I
J-S71012-18


     was in our tactical squad, I had several officers make gun arrests
     in that exact location.” (N.T. at 13)[.]

            At approximately 7:44 p.m., they noticed a dark Dodge
     Charger, with three occupants, traveling westbound on Paschall
     Avenue. The car had no license plate, only a temporary sticker,
     with no readily visible identifying numbers or letters, in the rear
     window. (NT. at 5-7)[.] The police issued no ticket for this
     violation. (N.T. at 16)[.] The police pulled over the Charger, using
     lights and sirens. The car stopped in the running lane and all the
     occupants turned and looked in the direction of the police. (N.T.
     at 7)[.] Officer Gerard then signaled for the driver to pull over to
     the side of the road, which he did. Again, all occupants turned and
     looked at the police. [Appellant] was the front passenger. (N.T. at
     8)[.]

            As Officer Donahue approached the passenger side he saw
     [Appellant], “reach up with his left hand several times and touch
     his left front pocket of his jacket. The kind of thing people do when
     they’re checking on their gun.” He described the coat as a “puffy”
     winter coat. (N.T. at 9).

           The key testimony regarding removing [Appellant] from the
     car and frisking him was:

           BY MS. BIRCH (Prosecutor):

             Q. Based on your observation what, if anything, did
        you do?

               A. At that point, I knocked on the window to indicate
        for him to roll it down. He turns and asks, What? I ask him
        to roll down the window. He does.

               I began asking him a few questions of where he lives
        and where they were going that evening. He was being very
        vague. Like when I asked him where he was living, he would
        just give an area where he lives, like, Buist Ave. And he was
        not being direct.

              While I’m asking him questions, he touches his pocket
        again. At that point in time, I feel that he had something on
        him that could either endanger myself or my partner and I
        ask him to step out of the vehicle. As he steps out, I do a

                                     -2-
J-S71012-18


         frisk of the outer garments of him and I don’t feel anything
         at this point in time. I pass him back to the vehicle where
         there was back up officers standing there with the other
         occupants. Then I was about to begin a search of the
         immediate area where he was sitting.

                Q. Where is the [Appellant] when you are about to
         start the frisk of where he’s sitting?

               A. He’s on the back of the trunk area with his hands
         on the trunk.

                Q. And do you have the opportunity to look back at
         him?

               A. That’s correct. As I’m getting ready to do the frisk
         search of the car, I make a quick glance back to make sure
         the other officers were safe. Again, I see him take his hands
         off and touch the pocket.

                Q. Same motion as before?

                A. That’s correct.

                Q. After you observe him what, if anything, did you
         do?

               A. I go back to the vehicle and I do another frisk at
         which point I feel in the left front pocket, a small firearm.
         (NT. at 9, 10 and 11)[.]

               In addition, the police did a check through NCIC, PCIC
         and found that Defendant had an outstanding warrant for a
         probation violation. (NT. at 12)[.]

Suppression Court Opinion, 11/20/17, at 3-4. The suppression court denied

the motion.

      On November 14, 2016, Appellant entered an open guilty plea to illegally

possessing a firearm (due to his prior conviction of possession with intent to

deliver), 18 Pa.C.S.A. § 6105; carrying a firearm without a license, 18

                                     -3-
J-S71012-18


Pa.C.S.A. § 6106; and carrying a firearm on public streets or public property

in Philadelphia, 18 Pa.C.S.A. § 6108. See N.T. Guilty Plea, 11/14/16, 8-9.

The trial court accepted the plea. Without objection from the Commonwealth,

the trial court also granted Appellant’s request to reserve the right to appeal

the denial of his motion for suppression.

      On January 23, 2017, the court sentenced him to three concurrent

sentences for an aggregate county sentence of not less than eleven-and-one-

half nor more than twenty-three months of confinement, to be followed by

five years of reporting probation. This timely appeal followed. Both Appellant

and the suppression court complied with Pa.R.A.P. 1925.

      On appeal, Appellant presents one over-arching general question and

four subsidiary questions for our review:

            Did the [trial] court violate the Fourth and Fourteenth
      Amendments to the United States Constitution and Article 1,
      Section 8 of the Pennsylvania Constitution in denying Appellant’s
      motion to suppress because:

               A. The police lacked reasonable suspicion or probable
         cause to conduct a traffic stop where the officer’s belief that
         the law requires a metal plate in addition to a valid
         temporary registration plate is not objectively reasonable,
         such that the recovery of the firearm was fruit of the
         unlawful seizure?;

                B. The police lacked reasonable suspicion that
         Appellant’s act of touching his pocket several times
         established that Appellant was armed and dangerous
         sufficient to conduct a Terry frisk, such that the second frisk
         and recovery of the firearm were fruit of the initial unlawful
         frisk?;




                                      -4-
J-S71012-18


               C. The police lacked reasonable suspicion to conduct
         a second Terry frisk of Appellant because the first frisk
         dispelled any suspicion that Appellant was armed and
         dangerous, and Appellant engaged in no new conduct which
         would provide reasonable articulable facts that Appellant
         remained armed and dangerous?; and

               D. The officer exceeded the permissible scope in
         conducting the second Terry frisk because the officer
         manipulated the item inside Appellant’s pocket without the
         requisite probable cause?

Appellant’s Brief, at 3.

      Our standard of review for a challenge to the denial of a motion to

suppress evidence is well-settled:

      [An appellate court’s] standard of review in addressing a challenge
      to the denial of a suppression motion 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. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (citation

omitted). For our review, we examine the totality of the circumstances. See

Commonwealth v. Smith, 77 A.3d 562, 572 (Pa. 2013).




                                     -5-
J-S71012-18


      In his first issue, Appellant claims, in effect, that because Officer

Donahue misconstrued the statutory requirements for display of a temporary

license plate, his stop of the vehicle in which Appellant was a passenger was

in error and violated the state and federal constitutions.       (See Appellant’s

Brief, at 11-15). We disagree.

      “The issue of what quantum of cause a police officer must possess in

order to conduct a vehicle stop based on a possible violation of the Motor

Vehicle Code is a question of law, over which our scope of review is plenary

and our standard of review is de novo.” Commonwealth v. Holmes, 14 A.3d

89, 94 (Pa. 2011) (citation omitted). Where it is not necessary to stop a

vehicle to determine that a vehicle code violation has occurred, an officer must

possess   probable   cause   of   the   violation   to   stop   the   vehicle.    See

Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015).

      The United States Supreme Court has held that a police officer’s

reasonable mistake of law can give rise to reasonable suspicion sufficient to

justify a vehicle stop under the Fourth Amendment.          See Heien v. North

Carolina, 135 S. Ct. 530, 536 (2014): “[W]e have repeatedly affirmed, the

ultimate touchstone of the Fourth Amendment is reasonableness.                   To be

reasonable is not to be perfect, and so the Fourth Amendment allows for some

mistakes on the part of government officials, giving them fair leeway for

enforcing the law in the community's protection.”          (citations and internal

quotation marks omitted).


                                        -6-
J-S71012-18


      Here, as in Heien, we have no difficulty concluding that Officer

Donahue’s interpretation of the requirements for display of a license plate,

even if the officer’s conclusion may have amounted to a technical error of law,

was objectively reasonable. See 75 Pa.C.S.A. § 1331 (requiring display of

necessary identifying numbers and letters on a license plate, and requiring

PennDOT to provide temporary plates); see also 75 Pa.C.S.A. § 1332(b)(3)

(prohibiting display of registration plate which, for any reason, is illegible at a

reasonable distance or is obscured in any manner).

      In this case, Officer Donahue observed that the vehicle in which

Appellant was a passenger had no outside license plate.            It only had a

temporary sticker in the rear window. From the officer’s vantage point in the

patrol car, the sticker in the rear window did not display any identifying

numbers or letters visible from a reasonable distance. See, N.T., Suppression

Hearing, 8/18/16, at 7. He decided that the sticker did not comply with the

statutory requirement to display visible letters and numbers. See id.

      Under Heien, Officer Donahue’s observations were sufficient to support

a finding of probable cause of a vehicle code violation. See Commonwealth

v. Wilbert, 858 A.2d 1247, 1250 (Pa. Super. 2004) (concluding that officer’s

inability to discern information on license plate until she inspected the plate

closely supported a finding of probable cause of a violation of 75 Pa.C.S.A. §

1332). Therefore, even if we assume Appellant is correct in his assertion that




                                       -7-
J-S71012-18


Officer Donahue was mistaken about the technical requirements for a

temporary plate, Appellant is due no relief.

      Appellant’s remaining three questions all challenge the legality of the

frisks, especially the second frisk, which uncovered the loaded weapon.      See

Appellant’s Brief, at 3. Chiefly, Appellant challenges whether Officer Donahue

possessed reasonable suspicion to perform two pat-downs for weapons. We

address Appellant’s reasonable suspicion arguments together.

      Appellant argues that Officer Donahue lacked reasonable suspicion to

frisk him either the first or the second time. He maintains that touching his

jacket pocket multiple times was the “primary reason” he was frisked.

Appellant’s Brief, at 15. He contends this repeated gesture was insufficient to

justify a frisk. See id. He concludes that his sentence must be vacated, and

the matter remanded for a new trial. We disagree.

      There must be a narrowly drawn authority to permit a reasonable
      search for weapons for the protection of the police officer, where
      he has reason to believe that he is dealing with an armed and
      dangerous individual, regardless of whether he has probable
      cause to arrest the individual for a crime. The officer need not be
      absolutely certain that the individual is armed; 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.

Terry v. Ohio, 392 U.S. 1, 27 (1968) (citations omitted).

      A police officer may conduct a quick frisk for weapons if he or she
      reasonably fears that the person with whom he or she is dealing
      may be armed and dangerous. The officer need not be absolutely
      certain that the individual is armed; the issue is whether a
      reasonably prudent man in the circumstances would be warranted
      in the belief that his safety or the safety of others was in danger.

                                     -8-
J-S71012-18


      The existence of reasonable suspicion to frisk an individual must
      be judged in light of the totality of the circumstances confronting
      the police officer.

Commonwealth v. Cooper, 994 A.2d 589, 592–93 (Pa. Super. 2010)

(citation omitted).

      [I]f the officer has a reasonable suspicion, based on specific and
      articulable facts, that the detained individual may be armed and
      dangerous, the officer may then conduct a frisk of the individual’s
      outer garments for weapons. Since the sole justification for a
      Terry search is the protection of the officer or others nearby, such
      a protective search 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.

Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)

(citations omitted).

      Here, Appellant asserts that he was compliant with Officer Donahue.

Nevertheless, he concedes “[h]e might not have been as forthcoming as the

officer would have liked, but that should be irrelevant.” Appellant’s Brief, at

19.   He posits that “a lack of full cooperation” should not be treated as

suspicious conduct. Id. To do so, he insists, “would allow police to use the

assertions of constitutional rights as evidence of a crime.” Id.

      Appellant’s argument is misconceived and mistaken.              His bald,

unsupported generalization overlooks, or chooses to ignore, decades of well-

settled jurisprudence beginning with Terry itself:

      Where a police officer observes unusual conduct which leads him
      reasonably to conclude in light of his experience that criminal
      activity may be afoot and that the persons with whom he is dealing
      may be armed and presently dangerous, where in the course of
      investigating this behavior he identifies himself as a policeman

                                     -9-
J-S71012-18


      and makes reasonable inquiries, and where nothing in the initial
      stages of the encounter serves to dispel his reasonable fear for his
      own or others’ safety, he is entitled for the protection of himself
      and others in the area to conduct a carefully limited search of the
      outer clothing of such persons in an attempt to discover weapons
      which might be used to assault him. Such a search is a
      reasonable search under the Fourth Amendment, and any
      weapons seized may properly be introduced in evidence
      against the person from whom they were taken.

Terry, 392 U.S. at 30–31 (emphasis added).

      Furthermore, Appellant posits, but fails to support by reference to

pertinent authority, a de facto rule imposing unspecified conditions under

which a second frisk is prohibited. Instead, Appellant employs the simple but

unsupported expedient of citing numerous cases which permitted a second

frisk, and concluding that none of the cases cited fit the situation here. See

Appellant’s Brief, at 21. Appellant’s reliance is misplaced. His argument lacks

merit.

      On independent review of the totality of circumstances, we conclude

that the suppression court properly determined that Appellant’s motion did

not merit relief. The police made a lawful traffic stop at night in “a high-crime,

high-shooting area.” N.T., Suppression Hearing, 8/18/16, at 13. Appellant

gave Officer Donahue hesitant and vague answers to simple questions, such

as where he was from. See id., at 10. Appellant’s unresponsive answers failed

to give Officer Donahue the assurance that everything was in order. See id.




                                     - 10 -
J-S71012-18


      Officer Donahue also noticed that Appellant repeatedly patted the upper

left pocket of his puffy winter coat. See id. He patted Appellant down for

weapons but found none. See id.

      However, when he observed Appellant continuing to pat the upper left

pocket of his coat, the officer checked again. See id., at 11. This time he

found the loaded revolver. See id.

      In view of these facts, we cannot blind ourselves to the
      need for law enforcement officers to protect themselves
      and other prospective victims of violence in situations
      where they may lack probable cause for an arrest. When an
      officer is justified in believing that the individual whose suspicious
      behavior he is investigating at close range is armed and presently
      dangerous to the officer or to others, it would appear to be clearly
      unreasonable to deny the officer the power to take necessary
      measures to determine whether the person is in fact carrying a
      weapon and to neutralize the threat of physical harm.

Commonwealth v. Stevenson, 894 A.2d 759, 771–72 (Pa. Super. 2006)

(quoting Terry, 392 U.S. at 23-24) (emphasis in original).

      Finally, Appellant argues that the second frisk was unlawful under the

plain feel doctrine, citing cases in which a weapons search uncovered other

contraband. Appellant’s argument misconstrues the relevance of some of his

authority. See Appellant’s Brief, at 22, citing, inter alia, Adams v. Williams,

407 U.S. 143, 149 (1972) (concluding that heroin was properly admitted at

trial, where arrest on weapons charge supported by probable cause, and

search of defendant and vehicle incident to arrest was lawful). In any event,

Appellant’s argument is essentially irrelevant to the issues on this appeal. No

non-weapon contraband was discovered here. There is, therefore, no issue of

                                     - 11 -
J-S71012-18


using a weapons search as a justification for the warrantless search for non-

weapons contraband evidence. Appellant’s argument does not merit relief.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/8/19




                                   - 12 -
