J-S16018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

SHAWN L. WOOD

                            Appellee                 No. 670 EDA 2015


                     Appeal from the Order February 5, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009244-2014


BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                 FILED MAY 03, 2016

        This is a Commonwealth appeal from the order1 entered February 5,

2015, in the Philadelphia County Court of Common Pleas, granting appellee,

Shawn L. Wood’s, motion to suppress the evidence recovered during a traffic

stop.    The Commonwealth argues the trial court erred in determining the

investigating officers were not authorized to remove Wood from his vehicle

and conduct a pat-down search for weapons during the stop. For the reasons

set forth below, we remand for additional findings of fact, and a

supplemental opinion.


____________________________________________


1
  The Commonwealth properly certified, in its notice of appeal, that “this
order terminates or substantially handicaps the prosecution of this case,” a
prerequisite to this Court’s jurisdiction pursuant to Pa.R.A.P. 311(d). Notice
of Appeal, 3/9/2015.
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        The facts underlying Wood’s arrest are summarized by the trial court

as follows:

        The evidence established that on July 13, 2014, at
        approximately 8:45 p.m., Officer Kyle Smith and his partner
        were on duty in the area of the 2000 block of 60 th Street in
        Philadelphia. Officer Smith testified that at that time and place
        he spotted a 2004 white Chevy Silverado traveling north in the
        southbound lane. Officer Smith’s partner signaled the driver to
        let him know he was on the wrong side of the road by flashing
        his lights once. The driver did not correct his lane of travel so
        Officer Smith’s partner activated the overhead lights and pulled
        the vehicle over for the sole reason of driving on the wrong side
        of the road.

               Officer Smith and his partner exited the police cruiser and
        approached [Wood’s] vehicle. As he got closer to the vehicle,
        Officer Smith stated that he could see [Wood], who “seemed
        nervous – seemed very nervous.” Officer Smith stated that he
        was nervous approaching the truck because they were in a “high
        crime area, lots of robberies”; that he had made numerous drug
        arrests and firearm arrests just blocks away from where they
        had stopped [Wood]. Officer Smith stated that because of these
        reasons he pulled [Wood] out of his vehicle and frisked him.
        [The officer also testified that Wood seemed “very nervous,” his
        breathing “didn’t appear normal,” and his knees were clenched
        as if he was “trying to conceal something.”2] No contraband was
        recovered.     Officer Smith then asked [Wood] if there was
        anything in the vehicle he should be aware of. [Wood] told him
        that he had a gun in the glove box which Officer Smith recovered
        without incident. There was no testimony whether or not the
        two other occupants were removed from the vehicle and frisked.
        Officer Smith described the area as a “high crime area” however
        no further evidence supporting the notion that this area was
        generally associated with a high degree of crime was offered.

             Jodi-Lyn Lowry testified for the defense. According to Ms.
        Lowry, [Wood] is her boyfriend and on July 13, 2014, they were
____________________________________________


2
    N.T., 2/5/2015, at 6, 9.




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        headed northbound, attempting to make a left-hand turn down a
        one-way street. A police car was headed southbound so they
        stopped to allow the officers to go by before [] Wood made the
        turn because she stated two cars could not fit.3 The police
        flashed their lights once. Thinking they were being giv[en] the
        right-[of]-way, [Wood] started to make the turn when the police
        flashed their lights completely.

        __________
           3
             Ms. Lowry described [Wood’s] truck as “pretty big” with
           solid work tool containers on each side which made the
           truck bigger than a normal truck.

        __________

               [Wood] testified that his work truck is bigger than usual;
        that it is like driving a U-haul. He stated that he was driving
        from his friend’s house near 60th Street to go to the store. When
        he got near where he needed to make a left turn to park, he
        pulled over a little bit to let a car go by. He saw the police car
        behind the car he had just let go by and waved at the police car
        to go before he made his turn; the police car flashed their lights
        at him once. Thinking he was being given the right-[of]-way, he
        went to turn and was about half-way through the turn when the
        police put the lights on completely. He immediately stopped and
        turned his vehicle off. According to [Wood], when the officer
        asked for his license and registration he told the officer there
        was a firearm in the glove box and that it was taken apart. The
        officer then took everyone out of the vehicle, recovered the
        weapon and proceeded to search the entire truck, including each
        individual tool container. [Wood] was subsequently arrested.

Trial Court Opinion, 6/16/2015, at 1-3 (record citations omitted).

        Wood was charged with two violations of the Uniform Firearms Act,3

namely, firearms not to be carried without a license, and carrying firearms



____________________________________________


3
    18 Pa.C.S. § 6101 et seq.




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on public streets or public property in Philadelphia.4 On February 5, 2015,

Wood filed a pre-trial suppression motion, arguing the traffic stop was

unlawful because the police did not have reasonable suspicion or probable

cause to believe he was engaged in criminal activity.          See Motion to

Suppress Evidence, 2/5/2015, at ¶ 12.            The trial court conducted a

suppression hearing on February 15, 2015. At the conclusion of the hearing,

the court entered an order granting Wood’s motion to suppress.              This

Commonwealth appeal followed.5

        The Commonwealth frames its issue on appeal as follows:

        Where officers in a high crime area with numerous gun and drug
        arrests properly stopped [Wood’s] truck, which contained two
        other passengers, at night, for a traffic offense; [Wood] was
        breathing heavily and appeared very nervous; the officers
        removed [Wood] from the vehicle and asked if there was
        anything that they should be aware of, and he responded that
        there was a gun in the glove box; and police then found a gun in
        the glove box; did the lower court err in suppressing [Wood’s]
        admission and the gun on the ground that the officers were not
        entitled to remove him from the vehicle?

Commonwealth’s Brief at 4.

        Our standard of review is well-established:

        When the Commonwealth appeals from a suppression order, we
        follow a clearly defined standard of review and consider only the
        evidence from the defendant’s witnesses together with the
____________________________________________


4
    See 18 Pa.C.S. §§ 6106(a)(1) and 6108, respectively.
5
   The Commonwealth filed a concise statement of matters complained of on
appeal pursuant to Pa.R.A.P. 1925(b) on March 9, 2015, the same day it
filed its notice of appeal.



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      evidence of the prosecution that, when read in the context of the
      entire record, remains uncontradicted. The suppression court’s
      findings of fact bind an appellate court if the record supports
      those findings. The suppression court’s conclusions of law,
      however, are not binding on an appellate court, whose duty is to
      determine if the suppression court properly applied the law to
      the facts.

Commonwealth v. Loughnane, 128 A.3d 806, 812-813 (Pa. Super. 2015)

(quotation omitted).

      In the present case, the trial court concluded it was not necessary to

determine whether the initial traffic stop of Wood’s vehicle was proper

because the court found the officer had no authority to remove Wood from

his vehicle during the stop.    The court explained that the Commonwealth

failed to provide “specific facts” to support a finding of “reasonable suspicion

that criminal activity was afoot,” and offered nothing more than Wood’s

“non-descriptive nervous behavior in a high crime area” to support its

determination that Officer Smith had reasonable suspicion to search Wood’s

truck. Trial Court Opinion, 6/16/2015, at 6, 9.

      However, it is well-settled that “an officer conducting a valid traffic

stop may order the occupants of a vehicle to alight to assure his own

safety.”    Commonwealth v. Reppert, 814 A.2d 1196, 1202 (Pa. Super.

2002)      (en   banc)   (emphasis   supplied   and   citations   omitted).   In

Pennsylvania v. Mimms, 434 U.S. 106 (1977), the United States Supreme

Court held the “additional intrusion” of ordering a validly stopped driver




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out of his vehicle “can only be described as de minimis.”6           Id. at 111

(emphasis supplied).

       Moreover, the subsequent search of Wood’s truck was not based on

reasonable suspicion deduced from Wood’s actions during the traffic stop.

Rather, it was based on his own statement to Officer Smith that he had a

gun in the glove compartment. Indeed, Officer Smith testified that after he

conducted the pat-down of Wood, he asked him “was there anything in the

vehicle [the officer] should be aware of.”          N.T., 2/5/2015, at 7.   Wood

responded, “there was a gun in the glove box.”7 Id. This Court has held

that a question posed to a driver during an investigatory traffic stop,

inquiring whether “there were any weapons or anything else the officer

should know about[,]” is not impermissibly coercive “simply because its

subject was the existence of weapons or anything else of which the police

had a legitimate reason to be aware.”            Commonwealth v. Clinton, 905


____________________________________________


6
  The Mimms Court explained: “The police have already lawfully decided
that the driver shall be briefly detained; the only question is whether he
shall spend that period sitting in the driver’s seat of his car or standing
alongside it.” Id. at 111.
7
   We note that Wilson, himself, admitted he told Officer Smith about the
gun. In fact, he testified he did so “as soon as [the officer] asked me for my
license and registration,” and before the officer “ordered everybody out of
the car.” Id. at 32. Therefore, based on Wilson’s testimony, Officer Smith
clearly had the authority to retrieve the gun from Wilson’s glove
compartment.




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A.2d 1026 (Pa. Super. 2006).8 Accordingly, the officer’s question to Wood,

and subsequent search based on his answer, was permissible.9
____________________________________________


8
   It merits emphasis that, in Clinton, like here, the officers had no
independent reason to suspect the driver had a weapon or drugs in his
vehicle. See Clinton, supra, 905 A.2d at 1028-1029.
9
 Wilson’s acknowledgement that he had a gun in his truck differentiates this
case from our en banc decision in Commonwealth v. Cartagena, 63 A.3d
294 (Pa. Super. 2013) (en banc), appeal denied, 70 A.3d 808 (Pa. 2013),
upon which the trial court relied.

       In Cartagena, the officers stopped the defendant’s vehicle because it
had heavily tinted windows. Id. at 296. The defendant driver did not
immediately respond to the officer’s request to lower the window, but then
did so and provided his driver’s license. Id. When they asked for his
registration and proof of insurance, the defendant “opened the center
console, looked inside[,] ‘… looked stunned and then closed it.’”        Id.
(citation omitted). The officers also testified that the defendant looked
“‘extremely nervous.’” Id. (citation omitted). After the defendant provided
the requested paperwork, one officer directed him to step out of the vehicle,
searched him, while another officer conducted a cursory search of the
driver’s seat and center console of the vehicle. Id. at 296-297. During this
search, the officer found a loaded gun. Id. at 297.

       The suppression court granted the defendant’s motion to suppress the
gun found during the officers’ warrantless search, and an en banc panel of
this Court affirmed on appeal. The Cartagena Court found the only factors
in support of a search that were supported by the record were: “(1) the
stop occurred at night, (2) [the defendant’s] windows were tinted, and (3)
[the defendant] appeared to be nervous.” Id. at 304. However, the en
banc panel concluded that “the totality of the circumstances, taken together,
fall short of a reasonable suspicion to conduct the search at issue in this
case.” Id.

      Conversely, in the case sub judice, Officer White did not search
Wilson’s truck until after Wilson told him there was a gun in the glove
compartment.    That fact alone distinguishes the case before us from
Cartagena.




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        Nevertheless, our determination of whether Officer Smith’s actions

violated Wood’s Fourth Amendment rights is dependent upon the legality of

the initial traffic stop. See Reppert, supra. As noted supra, the trial court

never decided whether the initial traffic stop was proper.            See N.T.,

2/5/2015, at 49 (“I find that whether or not the officer had the right to stop

the vehicle is not necessary for me to determine for this motion to

suppress.”).    Moreover, our review of the transcript from the suppression

hearing reveals a clear conflict in testimony on this issue. Although Officer

Smith testified he observed Wood’s truck “traveling northbound in the

southbound lane … driving on the wrong side of the road[,]” Lowry testified

that Wood’s truck remained, at all times, in the proper lane of travel. N.T.,

2/5/2015, at 13, 26-27.10         “[O]ur standard of review is highly deferential
____________________________________________


10
     Lowry testified, under cross-examination, was as follows:

        [Prosecutor:] So you ended up going in the wrong lane of traffic
        --

        [Lowry:] No.

        [Prosecutor:] -- to get down the right street?

        [Lowry:] No.

        [Prosecutor:] So you were always traveling the correct direction
        on the street?

        [Lowry:] Yes.

                                  ****
        [Prosecutor:] Okay. But at no time were you traveling in the
        wrong lane of traffic?
(Footnote Continued Next Page)


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with respect to the suppression court's factual findings and credibility

determinations,” which are within the sole province of the trial court.

Commonwealth v. Shabezz, 129 A.3d 529, 532 (Pa. Super. 2015)

(quotation omitted).        Accordingly, we remand this case to the trial court so

that it may make these additional findings, and file a supplemental opinion

within 30 days of the date of the filing of this Memorandum.

      Case remanded for findings of fact and a supplemental opinion. Panel

jurisdiction retained.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




                       _______________________
(Footnote Continued)

      [Lowry:] No.

N.T., 2/5/2015, at 26-27.




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