J-S06022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOHN RICHARD VAZQUEZ

                            Appellant                 No. 536 MDA 2015


           Appeal from the Judgment of Sentence February 19, 2015
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0005723-2013



BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.:                             FILED MARCH 28, 2016

        Appellant, John Richard Vazquez, appeals from the February 19, 2015

aggregate judgment of sentence of nine to 23 months’ incarceration followed

by three years’ probation, imposed following his conviction at a bench trial of

firearms not to be carried without a license and receiving stolen property.1

After careful review, we affirm.

        The trial court summarized the factual and procedural background of

this case as follows.

                     On August 28, 2013, Appellant was arrested
              and charged with firearms not to be carried without
              a license, and receiving stolen property. A counseled
              omnibus pre-trial motion was filed on April 7, 2014,
              seeking to suppress certain physical evidence and
____________________________________________
1
    18 Pa.C.S.A. §§ 6106(a)(2) and 3925, respectively.



*Former Justice specially assigned to the Superior Court.
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              statements    as   the   fruit  of  an   allegedly
              unconstitutional and illegal search of Appellant’s
              person and property.

                    A suppression hearing was held on October 17,
              2014, at the conclusion of which [the suppression
              court] denied the motion in its entirety on the
              record.

Trial Court Opinion, 4/22/15, at 1-2

       At the suppression hearing, Officer Anthony Weaver of the Lancaster

City Bureau of Police was the only witness.        Based on his testimony, the

suppression court made the following findings.2


____________________________________________
2
  We note that the suppression court did not comply with Pennsylvania Rule
of Criminal Procedure 581(I), failing to contemporaneously record its
findings of fact. Its findings now belatedly appear in its Rule 1925(a)
opinion. Our Supreme Court has lamented such noncompliance, noting as
follows.

              We stress, however, the essential purposes served
              by the Rule, and we disapprove of non-compliance
              with its unambiguous mandate. A specific and
              contemporaneous announcement of suppression
              findings of fact and conclusions of law serves at least
              two salutary purposes. First, it permits the losing
              party to make a more intelligent assessment of
              whether or not to burden the appellate justice
              system with an appeal of the suppression ruling….
              Second, it is often the case … that the suppression
              judge is different from the trial judge yet, if there is
              a conviction, it will be the trial judge who will be
              responsible for preparation of the Rule 1925 opinion
              for appeal.

Commonwealth v. Millner, 888 A.2d 680, 688-689 (Pa. 2005) (footnote
omitted). As the noncompliance in this case does not hamper our review,
we need not remand. Compare, id. (declining to remand for compliance
(Footnote Continued Next Page)

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             The evidence at the suppression hearing established
             the following facts.        On August 28, 2013, at
             approximately 2:35 a.m., Officer Anthony Weaver of
             the Lancaster City Police parked his marked police
             cruiser near an intersection in a high crime area of
             the City as part of the community policing efforts to
             maintain high visibility, reduce crime and protect the
             citizens. Just minutes after parking, Officer Weaver
             observed Appellant wearing a backpack and walking
             “at a brisk pace” east on East End Avenue. Appellant
             “definitely saw” Officer Weaver who was in full
             uniform and in a marked police cruiser on East End
             Avenue. Officer Weaver then observed, through his
             rear view mirror, a Chrysler sedan pull up to the
             intersection of South Franklin Street and East End
             Avenue and illegally park in the intersection.
             Appellant crossed the street and entered the back of
             the vehicle. Officer Weaver made the decision to
             stop the vehicle for a traffic violation. The Chrysler
             began traveling west on East End Avenue and then
             south on Stevens Avenue. Officer Weaver followed
             the vehicle for a short distance while running a check
             on the registration plate, and eventually effectuated
             a traffic stop in the first block of South Broad Street
             in the City of Lancaster.

                   When the vehicle was pulled over, it was
             observed that there were four occupants in the
             vehicle. Officer Weaver called for backup and then
             approached the vehicle on the passenger side. After
             receiving the identification from the four occupants,
             Officer Weaver ordered the occupants to exit the
             vehicle at which time they were patted down and
             searched for weapons. The police then directed the
             occupants to sit on the curb.
                       _______________________
(Footnote Continued)
with Rule 581(I) where review was not hampered and for judicial economy,
with Commonwealth v. Landis, 89 A.3d 694, 703 (Pa. Super. 2014)
(remanding for compliance with Rule 581(I) where it was unclear from the
Rule 1925(a) opinion whether the suppression court employed the correct
standard).




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          While the occupants were seated on the curb, the
          police did a protective sweep of the car. Inside the
          car, a backpack was located on the rear seat, directly
          behind the driver’s seat, where Appellant had been
          sitting.    Officer Weaver opened the unlocked
          backpack and saw a laptop computer and a Ruger 9
          millimeter handgun inside a pocket. After locating
          the handgun, Officer Weaver asked Appellant
          whether he had a permit to carry the firearm, to
          which he responded, he did not. Appellant was then
          placed under arrest and taken to the Lancaster City
          Police Station. The other occupants were released at
          the scene, after a traffic citation was issued to the
          driver.

                                    …

                 In the instant case, Officer Weaver testified
          that this vehicle stop occurred in a high crime area of
          the City, where he had personally made over 100
          arrests, many for drug and gun-related crimes, and
          had been part of an officer-involved shooting. As
          part of the community policing in this area, Officer
          Weaver could attest to the heavy drug traffic, the
          high volume of police calls for service, the large
          number of citizen complaints of criminal activity, and
          the drug and prostitution investigations being
          conducted by the Selective Enforcement Unit of the
          Lancaster City Police in this particular part of the
          City. Additionally, these events happened in the
          middle of the night, which creates a heightened level
          of danger to a police officer, especially during a
          traffic stop. Moreover, after the traffic stop, the
          front seat passenger engaged in the furtive
          movement of leaning forward and nearly touching his
          toes on the floorboard multiple times. The other
          rear seat passenger also exhibited extreme
          nervousness.

                 Based upon his training and experience in
          conducting over 1000 traffic stops, his 14 years of
          service as a police officer, his special training in
          identifying armed individuals, and the particular facts

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              of this traffic stop, Officer Weaver believed that
              “there was a high probability that there could be a
              weapon in that vehicle, and [he] was extremely
              concerned.”

Id. at 3-5, 9 (footnotes and citations omitted).

                     The case proceeded to a stipulated bench trial
              on December 19, 2014, and concluded with a verdict
              of guilty on the firearms charge and the receiving
              stolen property charge.     Following the verdict,
              sentencing was deferred pending a pre-sentence
              investigation.

                    On February 19, 2015, Appellant was
              sentenced to a term of 3 to 23 months[’]
              incarceration in Lancaster County Prison on the
              firearms charge. Appellant received a concurrent
              split sentence of 9 to 23 months[’] incarceration
              followed by 3 years[’] probation on the felony charge
              of receiving stolen property.[3] Appellant filed no
              post sentence motions.      A timely appeal to the
              Superior Court of Pennsylvania was filed on March
              20, 2015.

Id., at 1-2 (footnotes and citations omitted).4

       Appellant raises the following question for our review.

              Did the trial court err in denying Appellant’s Motion
              to Suppress where police had neither reasonable
              suspicion nor probable cause to justify a stop of the
              vehicle in which Appellant was a passenger, and
              where police had neither reasonable suspicion nor
____________________________________________
3
   The trial court’s sentence also granted Appellant work release and
authorized transition from incarceration to electronically monitored house
arrest after three months, contingent on Appellant being a “model prisoner.”
N.T., 2/19/15, at 11.
4
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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               probable cause to conduct a sweep of the vehicle,
               including Appellant’s backpack, for weapons?

Appellant’s Brief at 5.    Appellant’s single question raises two distinct sub-

issues.      First, Appellant challenges the validity of the traffic stop, and

second, Appellant challenges the safety sweep of the vehicle and Appellant’s

backpack. We address each sub-issue seriatim.

      Our review of a trial court’s suppression ruling is guided by the

following.

                     Our 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. 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
               our plenary review. Commonwealth v. Jones, 605
               Pa. 188, 988 A.2d 649, 654 (2010) (citations,
               quotations,    and    ellipses  omitted).   Moreover,
               appellate courts are limited to reviewing only the
               evidence presented at the suppression hearing when
               examining a ruling on a pre-trial motion to suppress.
               See In re L.J., 622 Pa. 126, 79 A.3d 1073, 1083–
               1087 (2013).

Commonwealth v. Mathis, 125 A.3d 780, 783 (Pa. Super. 2015).

      Appellant first contends that the vehicle stop effected by Officer

Weaver was without reasonable suspicion or probable cause.              Appellant’s

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Brief at 18.   “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).

            [W]hen considering whether reasonable suspicion or
            probable cause is required constitutionally to make a
            vehicle stop, the nature of the violation has to be
            considered. If it is not necessary to stop the vehicle
            to establish that a violation of the Vehicle Code has
            occurred, an officer must possess probable cause to
            stop the vehicle. Where a violation is suspected, but
            a stop is necessary to further investigate whether a
            violation has occurred, an officer need only possess
            reasonable suspicion to make the stop.

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

Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en

banc), appeal denied, 25 A.3d 327 (Pa. 2011) (holding a police officer must

have probable cause to justify a stop of a vehicle when the investigation

subsequent to the stop serves no “investigatory purpose relevant to the

suspected violation”).

      Instantly, the trial court addressed Officer Weaver’s justification for

the initial stop of the vehicle for a violation of Section 3353(a)(1)(iii) and (iv)

of the Vehicle Code, i.e., stopping in an intersection or on a crosswalk, under




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a reasonable suspicion standard.5              Trial Court Opinion, 4/22/15, at 7-8.

Officer Weaver testified, however, that he made the stop because he

observed the vehicle stop in an intersection and crosswalk in violation of

Section 3353(a)(1)(iii) and (iv).         Because the stop could yield no further

investigatory information as to whether a violation of Section 3353(a)(1)(iii)

and (iv) occurred, we conclude that the police were required to have

probable cause for the stop. See Salter, supra.

       Determining whether probable cause exists requires consideration of

the totality of circumstances.         Commonwealth v. Thompson, 985 A.2d

928, 931 (Pa. 2009). “The police have probable cause ‘where the facts and

circumstances within the officer’s knowledge are sufficient to warrant a

person of reasonable caution in the belief that an offense has been …

committed.’”      Commonwealth v. Rogers, 849 A.2d 1185, 1192 (Pa.

2004), quoting, Commonwealth v. Gibson, 638 A.2d 203, 206 (Pa. 1994).

       As noted, Officer Weaver testified that he stopped the vehicle after it

had picked up Appellant for violating Section 3353(a)(1)(iii) and (iv) of the

Vehicle Code. N.T., 10/17/14, at 20. That section provides as follows.

____________________________________________
5
  Appellant’s omnibus pretrial motion initially framed the issue as the police
lacking “reasonable suspicion to stop the vehicle.” Omnibus Pretrial Motion,
4/8/14, at 2 ¶4.        At the suppression hearing, Appellant couched his
argument as the police lacking “probable cause” for the stop based on the
alleged traffic violation. N.T., 10/17/14, at 59. In their respective appellate
briefs, Appellant and the Commonwealth agree that probable cause is the
proper standard for the traffic stop in this case. See Appellant’s Brief at 18;
Commonwealth’s Brief at 10.


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              § 3353. Prohibitions in specified places

              (a) General rule.--Except when necessary to avoid
              conflict with other traffic or to protect the safety of
              any person or vehicle or in compliance with law of
              the directions of a police officer or official traffic-
              control device, no person shall:

                     (1) Stop, stand or park a vehicle:

                                               …

                            (iii) Within an intersection.

                            (iv) On a crosswalk.

                                               …

Pa.C.S.A. § 3353.        Officer Weaver testified that he observed the vehicle

“park[] in the traffic lanes on the corner of South Franklin and East End.”

N.T., 10/17/14, at 18. Officer Weaver testified that another vehicle had to

enter the other lane to go around the stopped vehicle. Id.6 He also testified

that the vehicle was blocking the intersection and the crosswalk. Id. at 20.

       Appellant argues the suppression court erred in crediting Officer

Weaver’s testimony.

              Officer Weaver claimed that, looking in his side and
              rear view mirrors, he could see the location of a
              vehicle in the dark, parked two blocks behind him.
              This testimony was simply incredible.       At best,
              Officer Weaver could only estimate the location of

____________________________________________
6
  Officer Weaver misstated the street the passing vehicle was travelling on
when it encountered the stopped vehicle. N.T., 10/17/14, at 18. Appellant
argues this is another reason to discredit the Officer’s testimony. See
Appellant’s Brief at 20.


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            the vehicle, based on his limited ability to see from
            nearly two blocks away.

                                       …

            “Despite the inconsistencies and incredible nature of
            Officer Weaver’s testimony, the trial court improperly
            chose to believe this testimony….”

Appellant’s Brief at 19-20 (citation and footnote omitted).

      As we related in the summary of our standard of review, we must view

the evidence in the light most favorable to the Commonwealth to determine

if there is support for the suppression court’s findings. See Mathis, supra.

Instantly, Officer Weaver’s testimony about his observation of the vehicle

stopping in a fashion that blocked a crosswalk and intersection, clearly

supports the suppression court’s factual findings.            Furthermore, such

observations were “sufficient to warrant a person of reasonable caution in

the belief that an offense has been … committed,” affording Officer Weaver

probable cause to stop the vehicle.     See Rogers, supra.        Therefore, we

conclude Appellant’s first sub-issue is meritless.

      Appellant next claims that even if the stop was proper, Officer Weaver

lacked reasonable suspicion that any of the occupants were armed or

dangerous as to justify the weapon pat down and sweep search of the

vehicle, including Appellant’s backpack. Appellant’s Brief at 22. Appellant

asserts that Officer Weaver’s claimed concerns about Appellant’s walking

and being picked up at night in a high-crime area, the “stretching”

movements of the front-seat passenger, and the rapid heartbeat of the other

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back-seat passenger, did not constitute reasonable suspicion that anyone in

the car was armed or dangerous, or that any criminal activity was in

progress. Id. at 23-24.

             Contrary to the trial court’s finding, these separate
             actions by two of the passengers did not reasonably
             lead Officer Weaver to believe that there might be a
             weapon in the vehicle or in [Appellant’s] backpack.
             Officer Weaver did not possess the requisite
             suspicion to believe that there was a weapon in [the
             driver’s] vehicle, or in [Appellant’s] backpack.

Id. at 24.

      The parties agree that the weapon sweep constituted an investigative

detention governed by Terry v. Ohio, 392 U.S. 1 (1968), and required the

police to have reasonable suspicion that criminal activity was underway, or

that an occupant was armed and dangerous.            Appellant’s Brief at 22;

Commonwealth’s Brief at 14.

             “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.” [Michigan v. Long, 463 U.S. 1032, 150
             n14 (1983)] (citation and quotation omitted). The
             Court stated that an officer must therefore have
             reasonable suspicion that the person subject to the
             stop has a weapon in order to conduct a lawful
             search of the passenger compartment of a vehicle at
             the time of the stop. Id.

             In Commonwealth v. Morris, 537 Pa. 417, 644
             A.2d 721 (1994), our Supreme Court applied the
             standard announced in Long to validate a vehicle
             search conducted during a traffic stop, finding the
             reasoning set forth in Long to be applicable to

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           Article I, Section 8 of the Pennsylvania Constitution.
           Id. at 422 n.3, 644 A.2d at 724 n.3.

Commonwealth v. Cartagena, 63 A.3d 294, 299 (Pa. Super. 2013) (en

banc) (footnotes omitted), appeal denied, 70 A.3d 808 (Pa. 2013).       “An

officer may conduct a Terry [search] for weapons if a reasonably prudent

man in the circumstances would be warranted in the belief that his safety or

that of others was in danger.” Commonwealth v. Kondash, 808 A.2d 943,

948 (Pa. Super. 2002) (internal quotation marks and citations omitted).

Such a belief must be based on “specific and articulable facts, that the

detained individual may be armed and dangerous.”        Commonwealth v.

Clemens, 66 A.3d 373, 381 (Pa. Super. 2013) (citation omitted). Further, a

determination of whether reasonable suspicion exists must be based on the

totality of the circumstances and involves a fact-specific case-by-case

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

2014), appeal denied, 102 A.3d 983 (Pa. 2014).        “[W]here a sufficient

number of [circumstances] coalesce, reasonable suspicion will be found.”

Id.

           The courts also have plainly held that officer safety
           concerns are heightened during traffic stops. The
           United States Supreme Court recently emphasized
           that “[t]raffic stops are especially fraught with
           danger to police officers, so an officer may need to
           take certain negligibly burdensome precautions in
           order to complete his mission safely.” Rodriguez v.
           United States, 135 S.Ct. 1609, 1616 (2015)
           (internal quotation marks and citations omitted).
           Safety concerns are even greater when the motor
           vehicle stop occurs at night.

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Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008).

     Our review of the suppression hearing transcript leads us to conclude

the suppression court’s findings are supported and the totality of the

circumstances supports Officer Weaver’s reasonable suspicion that one or

more of the occupants of the vehicle might be armed.                     Here, the

combination of factors included the fact that the activity occurred late at

night in a high crime area. In addition, Officer Weaver, upon approaching

the vehicle, noted two passengers exhibited excessive nervousness. One did

so by stretching in a stress-induced “flight or fight” manner, including

repeatedly reaching down to his feet and the floorboard, and the other

passenger exhibited extreme nervousness and an accelerated heartbeat.

N.T., 10/17/14, at 25-27.         We have previously held that a similar set of

circumstances supported a reasonable suspicion that justified a Terry search

for weapons. See Commonwealth v. Buchert, 68 A.3d 911 (Pa. Super.

2013) (holding police had a reasonable suspicion for a weapon search

where, upon approaching a vehicle during a nighttime traffic stop, the police

noticed the defendant exhibiting nervous behavior and furtive movements),

appeal denied, 83 A.3d 413 (2014).             Instantly, there was the additional

consideration   of   the   area    being   a     high-crime   neighborhood.   See

Commonwealth v. Thompson, 985 A.2d 928, 936 (Pa. 2009) (noting the

fact that a stop occurs in a high crime area when coupled with other factors

may support reasonable suspicion of dangerous or illegal activity).

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      Appellant also argues that the nervousness and behavior of the other

passengers did not justify a search of his person and his backpack.

Appellant offers no authority that, once a reasonable suspicion that a

member of a group may be armed, a police officer is limited in searching

only the members of the group exhibiting certain behavior, and we reject the

contention.   While a Terry search is limited in scope, once justified, an

officer may search the entire area in which a weapon might be readily

accessible.   See, e.g., Commonwealth v. Murray, 936 A.2d 76 (Pa.

Super. 2007) (upholding a protective search of the interior of a vehicle

where police officers stopped a defendant for a motor vehicle violation, in a

high crime area, and officers saw “excessive movement” inside the car). We

therefore conclude Appellant’s second sub-issue is also meritless.

      In light of the foregoing, we discern no error by the suppression court

in denying Appellant’s omnibus pretrial motion to suppress the evidence

obtained in the traffic stop and Terry search of Appellant’s backpack.

Accordingly, we affirm the February 19, 2015 judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2016

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