J. A04006/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.G., A MINOR :           IN THE SUPERIOR COURT OF
                                  :                 PENNSYLVANIA
APPEAL OF: D.G.                   :
                                  :                No. 282 WDA 2015


               Appeal from the Order Dated January 21, 2015,
             in the Court of Common Pleas of Allegheny County
                 Juvenile Division at No. Case No. T-181178,
                  Docket Number 1587-08, JID No. 72060-B


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND SHOGAN, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 18, 2016

     D.G. appeals from the January 21, 2015 dispositional order resulting

from his adjudication as delinquent for carrying a firearm without a license,

possession of a firearm by a minor, drivers required to be licensed, and

turning movements and required signals.1 We affirm.

     The trial court provided the following factual history:

                  City of Pittsburgh Police Officer Gary Messer
           was the sole witness in the hearing on the Motion to
           Suppress Evidence. Officer Messer testified that he
           had been employed by the City of Pittsburgh Police
           Department for six years. Part of [his] job duties
           included being assigned to the Plainclothes 99 Car
           Zone where he and other police officers would patrol
           “high impact trouble areas” that were the subject of
           citizen and mayor complaints. Officer Messer stated
           that the most concerning complaints to the unit were
           those complaints that consisted of “open air
           narcotics violations and shots fired complaints[.]”

1
  18 Pa.C.S.A. §§ 6106 and 6110.1 and 75 Pa.C.S.A. §§ 7501 and 3334,
respectively.
J. A04006/16



                 Officer Messer stated that on November 10,
          2014, he and his two partners were patrolling the
          Brighton Road, North Charles area of the City of
          Pittsburgh where several “shots fired” incidents had
          been recently reported. According to Officer Messer,
          he and his fellow officers were patrolling the area in
          order to show a police presence and to “curb” further
          violence and similar criminal activity.          While
          patrolling on Brighton Road, Officer Messer testified
          that he and the other officers observed a red
          Suburban SUV. This SUV fit the description of a
          large red or maroon SUV that had been involved in a
          shooting five days prior. Officer Messer and his
          partners followed the red Suburban as it traveled on
          Brighton Road. When the SUV reached Brightridge
          Street, it made a right turn without using a turn
          signal at which point the officers activated the police
          vehicle’s lights and siren and conducted a mid-block
          traffic stop. Officer Messer reported that the red
          SUV promptly pulled into a parking space on the
          right side of Brightridge Street and that he
          approached the stopped vehicle on the passenger
          side with Officer Achille approaching on the driver’s
          side. As Officer Achille approached the driver’s side
          of the vehicle, he alerted Officer Messer to
          movement in the front seat of the vehicle.
          Officer Messer reported that he saw three fresh
          bullet holes near the rear passenger side of the
          vehicle.

                 Officer Messer testified that he recognized the
          front seat passenger of the vehicle to be
          Sean Thomas who had been arrested by the officers
          in the past six months for narcotics and firearms
          violations. At the same time that Officer Messer
          identified Sean Thomas, Officer Achille began
          speaking with appellant, D.G., who was the operator
          of the vehicle. Officer Messer stated that he and the
          other officers also knew appellant from previous
          encounters. An unknown third passenger was sitting
          in the rear of the vehicle. Officer Achille asked D.G.
          if he had obtained his driver’s license and D.G.
          replied “no.” Officer Achille then asked D.G. to step


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          out of the vehicle and D.G. complied with this
          request.   Officer Messer testified that after D.G.
          exited the vehicle, he patted him down for weapons
          with negative results. Officer Messer then asked
          Sean Thomas to step out of the vehicle and patted
          him down for weapons, which also resulted in no
          weapons being found. The rear seat passenger was
          then removed from the vehicle.

                 Officer Messer testified that after the
          occupants of the vehicle were removed and patted
          down, he entered the vehicle from the passenger
          side door in order to conduct an inventory search
          prior to the vehicle being towed. Upon entering the
          vehicle, he observed that the cup holder was ajar as
          if it was manipulated in an “up” position instead of
          being flat. He then used his flashlight to illuminate
          the cup holder. Officer Messer observed a hole
          underneath the cup holder and saw a firearm sitting
          below the cup holder. Officer Messer alerted his
          partners to the discovery of the firearm.
          Subsequently, all three males were detained.

                Officer Messer reported that the back seat
          passenger was identified as Tyler Goodnight, who
          had an active homicide warrant from Penn Hills
          Township and consequently, Tyler Goodnight was
          taken into custody. Appellant was also taken into
          custody and transported to Zone 1 because he was a
          juvenile. Sean Thomas was released. The officers
          gave the keys to the Suburban to Mr. Thomas so
          that Mr. Thomas could deliver the keys to appellant’s
          mother so that the vehicle would not have to be
          towed and D.G.’s mother would not incur towing
          fees.

                  During cross-examination, Officer Messer
          explained that he entered the vehicle in order to
          conduct an inventory search of the vehicle because
          initially it was his intention to have the vehicle
          towed. In doing so, he shined the light from his
          flashlight on the cup holder and was able to view the
          firearm beneath the cup holder without manipulating
          or touching the cup holder.


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Trial court opinion, 4/24/15 at 4-7 (citations and footnotes omitted).

            On November 12, 2014, D.G. was charged in a
            delinquency petition under the Juvenile Act, 42 Pa.
            C.S.A. § 6301 et seq., with Carrying Firearm without
            a License pursuant to 18 Pa. C.S.A. § 6106(a)(1);
            Possession of a Firearm by a Minor [] pursuant to 18
            [Pa.] C.S.A. § 6110(a)(1); Drivers Required to be
            Licensed pursuant to 75 [Pa.] C.S.A. § 1501(a); and
            Turning Movements and Required Signals pursuant
            to 75 Pa. C.S.A. § 3334(a).

                  On November 17, 2014, a pre-hearing
            conference was held and a hearing on the petition
            was scheduled for December 22, 2014. [The trial
            court] also ordered that D.G. be released from
            detention and placed on electronic-home monitoring
            (EHM) pending the adjudicatory hearing.

                   On December 19, 2014 appellant filed a motion
            to suppress evidence. On December 22, 2014, the
            Attorney for the Commonwealth presented a Motion
            to Continue the Adjudicatory Hearing. The Motion
            for continuance was granted and the adjudicatory
            hearing was rescheduled for January 5, 2015. [The
            trial court] also scheduled a hearing on the Motion to
            Suppress      Evidence   for   January    5,  201[5],
            immediately before the adjudicatory hearing.

                   On January 5, 2015, a hearing on the Motion
            to Suppress Evidence was held. After the conclusion
            of the hearing and arguments by counsel on the
            motion to suppress, [the trial court] denied
            appellant’s motion. D.G. admitted to the summary
            motor vehicle offenses of Drivers Required to be
            Licensed and Turning Movements and Required
            Signals. With respect to the charges of Carrying
            Firearm without a License and Possession of a
            Firearm by a Minor, appellant denied the allegations
            contained within the petition and the case proceeded
            to trial.




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                 After the conclusion of the hearing and
           arguments by counsel, [the trial court] found that
           the Commonwealth had proven, beyond a reasonable
           doubt, that appellant committed the delinquent acts
           of Carrying Firearm without a License [] and
           Possession of a Firearm by a Minor. [The trial court]
           also accepted appellant’s admission to the summary
           offenses of Drivers Required to be Licensed [and]
           Turning Movements and Required Signals. Due [to]
           the serious nature of the offenses and appellant’s
           juvenile record, [the trial court] found that D.G. was
           also in need of treatment, supervision, and
           rehabilitation and he was adjudicated delinquent of
           the charge.        Disposition was deferred until
           January 21, 2015. [The trial court] ordered that
           D.G. should remain detained pending disposition and
           that the Probation Officer make referrals for
           placement.

                 After a dispositional hearing on January 21,
           2015, [the trial court] entered an order committing
           D.G. to the Adelphoi Village Anchor Residential
           Program. Appellant timely filed an appeal of the
           dispositional order on February 20, 2015.       On
           March 16, 2015 appellant filed a concise statement
           of matters complained of on appeal.

Id. at 1-3 (footnote omitted).

     The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on

April 24, 2015.   Therein, the court stated that it “erred in denying D.G.’s

motion to suppress the firearm.”     (Trial court opinion, 4/24/15 at 10.)

Specifically, the court found that the police did not conduct a proper

inventory search of the vehicle and were not authorized to conduct such a

search. (Id. at 11.)

     Appellant raises the following issue for our review:




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            Whether the juvenile court erred in failing to grant
            D.G.’s Motion to Suppress Evidence when the search
            of his vehicle was not a lawful inventory search?

Appellant’s brief at 5.

            This Court’s well-settled standard of review of a
            denial of a motion to suppress evidence is as follows:

                   [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. Jones, 605 Pa. 188, 988 A.2d
            649, 654 (2010) (internal citations and quotation
            marks omitted).




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Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa.Super. 2015)

(brackets in original).

         In the instant appeal, both trial court, in its Rule 1925(a) opinion, and

the Commonwealth concede that the inventory search conducted by the

police     was   improper.       (Trial   court   opinion,   4/24/15   at   10-11;

Commonwealth’s brief at 11.) The Commonwealth requests that we affirm

the trial court’s decision on any grounds, even if the reason has not been

raised either here or at the trial court.         (Commonwealth’s brief at 12.)

Specifically, the Commonwealth argues that the order denying the motion to

suppress should be affirmed on the grounds that appellant did not have a

reasonable expectation of privacy in the car, and, as a result, did not have

standing to contest the search of the car, or, alternatively, the police

properly conducted a protective sweep of the car.

         Our cases indicate that we may affirm a lower court’s order on any

grounds supported by the record, so long as the trial court’s decision is

legally sound.      Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa.

2012), cert. denied,             U.S.       ,     133 S.Ct. 2336 (2013), citing

Commonwealth v. Parker, 919 A.2d 943, 948 (Pa. 2007) (citation

omitted); see also Commonwealth v. Miller, 787 A.2d 1036, 1038

(Pa.Super. 2001), appeal denied, 798 A.2d 1288 (Pa. 2002) (“As an

appellate court, we may affirm by reasoning different than that used by the

trial court”) (citation omitted).



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      We agree with the Commonwealth that the record of the suppression

hearing supports a finding that reasonable suspicion existed for a protective

sweep of the vehicle.    Our standard of review when reviewing protective

sweeps of vehicles is as follows:

            In Michigan v. Long, 463 U.S. 1032, 103 S.Ct.
            3469,      77    L.Ed.2d     1201      (1983),   and
            Commonwealth v. Morris, 537 Pa. 417, 644 A.2d
            721 (1994), the respective Supreme Courts
            promulgated the test for determining whether a
            police officer may conduct a protective search of the
            interior compartment of a car for weapons. In Long,
            the United States Supreme Court applied the test
            announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
            1868, 20 L.Ed.2d 889 (1968), and held that a
            weapons search may be performed where an officer
            has reasonable suspicion that a firearm may be
            secreted in the car and that the search may
            encompass any area where a weapon could be
            hidden and accessible to the defendant in the
            vehicle. In Long, the High Court made the apt
            observation that “detentions involving suspects in
            vehicles are especially fraught with danger to police
            officers.” Long, supra at 1047, 103 S.Ct. 3469.
            The Long Court’s specific holding is 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 based on “specific and articulable
                  facts which, taken together with the
                  rational inferences from those facts,
                  reasonably warrant” the officers 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



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                 belief that his safety or that of others
                 was in danger.”

           Long, supra at 1049-50, 103 S.Ct. 3469 (partially
           quoting Terry, supra at 21, 88 S.Ct. 1868).

           In Morris, supra, our Supreme Court concluded that
           the Long standard comported with the Pennsylvania
           Constitution.

Commonwealth v. Tuggles, 58 A.3d 840, 842-843 (Pa.Super. 2012),

appeal denied, 69 A.3d 602 (Pa. 2013).

     When viewed in a totality of the circumstances, our cases indicate that

a “furtive hand movement” creates a reasonable suspicion that a weapon

may be hidden within a vehicle to justify a protective sweep of that vehicle.

Id. at 843.    As noted by the Tuggles court, we found that reasonable

suspicion existed based on the following:

           [T]he defendant performed a single action of patting
           his waistband, which is an area where weapons are
           frequently secreted. We concluded that police were
           justified in performing a search of that area for
           weapons when it was night in a high crime area, the
           defendant walked away upon viewing police, and
           police had received an anonymous tip that someone
           matching the defendant’s description was armed.

Id. at 844, citing Commonwealth v. Foglia, 979 A.2d 357, 360-361

(Pa.Super. 2009) (en banc), appeal denied, 990 A.2d 727 (Pa. 2010); see

also In re O.J., 958 A.2d 561, 566 (Pa.Super. 2008) (en banc), appeal

denied, 989 A.2d 918 (Pa. 2010) (upholding protective sweep of a vehicle

in which the stop occurred at night, the defendant did not immediately stop

his car, the police observed hand movements indicating the possibility that


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the defendant was attempting to secret a weapon, and the search was

confined to the area of the defendant’s hand movements).

      Here, we find O.J., Foglia, and Tuggles to be instructive. During the

suppression hearing, Officer Messer testified that he and his partner, Officer

Achille, initiated a traffic stop when the Suburban driven by appellant made

a right turn from Brighton Road onto Brightridge Street without using a turn

signal. (Notes of testimony, 1/5/15 at 8.) Officer Messer testified that the

area in which he was patrolling, the North Charles area in the City of

Pittsburgh, was identified as a “high impact trouble area,” and several shots

fired incidents had recently occurred. (Id. at 5-6.) The Suburban driven by

appellant had matched the description of a car that was involved in a

shooting five days prior, and Officer Messer observed three fresh bullet holes

in the rear of the vehicle. (Id. at 7-8). As the officers were approaching the

vehicle, Officer Achille alerted Officer Messer that he “saw movement in the

front seat of the vehicle.” (Id. at 8.)

      Based upon a totality of the circumstances, we find that the police

conducted a proper protective sweep of the vehicle.      Accordingly, we find

that the Commonwealth met its burden of production at the suppression

hearing that appellant’s constitutional rights were not infringed upon.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/18/2016




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