J-A07026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DEVON DAUSJAY MIMS-CARTER

                            Appellant                  No. 536 WDA 2015


           Appeal from the Judgment of Sentence February 27, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0016495-2013


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                                FILED APRIL 14, 2016

        Appellant, Devon Dausjay Mims Carter, appeals from the February 27,

2015 aggregate judgment of sentence of 11½ to 23 months’ incarceration,

imposed after the trial court convicted Appellant of one count each of

possession with intent to deliver a controlled substance (PWID), possession

of a controlled substance, and resisting arrest.1      After careful review, we

affirm.

        The trial court summarized the factual history of this case as follows.

                    Officer Josh Alfer of the McKeesport Police
              Department, a police officer with nine years’
              experience, testified that he was on patrol duty on
              October 29, 2013. At 2:30 a.m., he made a traffic
              stop on a gold Pontiac Sunfire for failing to signal
____________________________________________


1
    35 P.S. § 780-113(a)(30) and (16), and 18 Pa.C.S.A. § 5104, respectively.
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          prior to making a left turn. Appellant was seated in
          the front passenger seat of the car, and a female
          was the driver. Officer Alfer radioed the traffic stop
          into dispatch, and Officer Bryan Easter responded as
          back-up.

                 Officer Alfer observed Appellant leaning
          forward in his seat, reaching towards his right side
          pocket in between his hip and the door. Officer Alfer
          instructed all occupants of the car to keep their
          hands where he could see them. Appellant originally
          complied with the officer’s instruction, but later
          reached down towards his right side, out of the view
          of the officer. Officer Alfer testified that the area in
          which the car was stopped was a high crime area
          with a history of violent crimes including numerous
          shootings. When Appellant was again asked to show
          his hands, Officer Alfer observed that Appellant’s
          breathing was increased, and Appellant began to
          look from right to left in what the officer described as
          a nervous motion. Officer Alfer testified that, due to
          Appellant’s movements within the vehicle, and the
          officer’s concern that Appellant may have a firearm
          on his person, Officer Alfer instructed Appellant and
          the female driver to exit the vehicle.

                Officer Alfer observed Appellant exit the vehicle
          and saw Officer Easter begin a pat-down search of
          Appellant. As Officer Easter approached Appellant’s
          right front pocket, Appellant immediately began to
          pull away and a struggle ensued between Appellant
          and Officer Easter. Officer Alfer came around the car
          to assist. He instructed Appellant to stop moving.
          When Appellant failed to comply, Officer Alfer
          discharged his Taser and Appellant was subsequently
          handcuffed.

                Officer Easter also testified to his encounter
          with Appellant. Officer Easter testified that, as he
          approached the vehicle, Appellant kept looking over
          his shoulder to see where the officer was. Officer
          Easter observed Appellant move his shoulder and
          reach towards the right side of his body near his
          waistband, pocket area. Appellant’s hands were not
          in plain view at that time. After Officer Alfer asked

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              the driver to exit the vehicle, Officer Easter also
              asked Appellant to exit the car.      Appellant was
              directed to face the vehicle and place his hands
              behind his head, interlocking his fingers. Appellant
              put his hands on his head but did not interlock his
              fingers.

                     Officer Easter began a pat down of Appellant
              for weapons. As the officer brought his hand down
              toward Appellant’s right pocket area, Appellant
              immediately started to spin away from the officer.
              Officer Easter felt something in Appellant’s pocket,
              but did not know at that time what it was. Appellant
              kept trying to break away from Officer Easter, who
              instructed him to stop or he would be tased.
              Appellant did not comply and Officer Alfer deployed
              his Taser. After Appellant had been handcuffed,
              Officer Easter searched Appellant incident to arrest
              and recovered from Appellant’s right pocket a white
              plastic grocery bag containing numerous packets of
              heroin.

Trial Court Opinion, 5/29/15, at 3-4 (internal citations omitted).

       Appellant was charged with the aforementioned offenses. On June 20,

2014, he filed a motion to suppress the evidence obtained from the traffic

stop. The trial court convened a suppression hearing on February 19, 2015,

and denied the motion after hearing testimony from the two officers, and

arguments of counsel. N.T., 2/19/15, at 40. Appellant proceeded to a non-

jury trial, after which the trial court rendered its guilty verdicts. 2   On


____________________________________________


2
  Also that same day, Appellant pled guilty to one count of escape at docket
number, CP-02-CR-7805-2014. Id. at 68-69. He was sentenced to three to
six months’ incarceration, concurrent to the sentence imposed in the instant
case. N.T., 2/27/15, at 18.




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February 27, 2015, the trial court sentenced Appellant to 11½ to 23 months’

incarceration, to be followed by three years’ probation for PWID, and

imposed no further penalty for possession of a controlled substance and

resisting arrest.    Appellant did not file a post-sentence motion.   Appellant

filed a timely notice of appeal on March 27, 2015.3

       On appeal, Appellant presents a single issue for our review.

              Did the suppression court err in failing to suppress
              the evidence obtained against Appellant, as there
              was no reasonable suspicion to conduct a Terry frisk
              on the passenger in a car stopped for a traffic
              violation, because the initial stop had ended and the
              officers had no particular and articulable facts to
              believe that Appellant was armed and dangerous?

Appellant’s Brief at 5.

       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,
____________________________________________


3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.




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                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).

        Instantly, Appellant does not dispute the constitutionality of the initial

traffic stop.     Appellant’s Brief at 11, 23.   However, Appellant argues that

“once the traffic stop was concluded, the occupants of the car should have

been free to go.”       Id. at 11.    Appellant specifically claims that the police

lacked reasonable suspicion to continue the stop and conduct a Terry4 frisk,

where there was no indication that criminal activity was afoot, and “the

officer noticed that [Appellant] looked nervous, but saw nothing else

incriminating.” Id. at 23.        Appellant asserts that “leaning to the right and

looking nervous are not sufficient to support a finding of reasonable

suspicion.” Id. at 24.

        Before reaching the merits of Appellant’s argument, we turn to the

Commonwealth’s contention that Appellant’s argument is waived because

Appellant’s counsel, at the suppression hearing, “conceded the Terry pat-

____________________________________________


4
    Terry v. Ohio, 392 U.S. 1 (1968).



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down was permissible and lawful.” Commonwealth’s Brief at 10. Our review

of   the   suppression   hearing   transcript   supports   the   Commonwealth’s

contention. After the two police officers testified, Appellant’s counsel stated

as follows.

                     Defense rests. I just have argument. A few
              things. One, I would argue that we don’t know what
              happened. As far as the inaccuracies, [the police
              officer was] basically testifying that the police report
              was inaccurate and also, I believe that the argument
              is going to be, obviously the initial argument I would
              have is that it was not immediately apparent by
              patting someone down that there’s heroin for sale in
              their pocket. There’s absolutely no way [the police]
              could tell that by just a pat-down and I have case
              law to support that argument.

                     From the testimony you can tell that I spoke
              with an officer this morning that had a slightly
              different take on the facts of this case and it changed
              the argument that I’m going to make now, and I
              understand now that the Commonwealth may be
              arguing that [Appellant] was trying to get away and
              escape. However, under the – and that’s what he
              was being arrested for, is the escape, and not the
              pat-down      and    officer’s     safety,   which    I
              wholeheartedly believe that the police officers
              have the right to have my client get out [of the
              car and] pat him down for their officers’ safety
              and for anyone else’s safety. However, that’s a
              Terry frisk and it doesn’t give them great latitude to
              find contraband. It’s not pretextual to find anything
              else other than weapons or knives, guns, whatever
              else can be used as a weapon which they testified
              there was none.

N.T., 2/19/15, at 34-35 (emphasis added).

      Consistent with the above, the trial court observed as follows.

                 Okay, basically it does appear that there’s an
              error in the police report. The officer who actually

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J-A07026-16


           did the pat didn’t write it. The charge of resisting,
           while that may be wrong, doesn’t change the fact
           that [Appellant] did attempt to escape a lawful
           detention and an investigative pat-down which
           the Defense concedes was appropriate under
           the facts. So once [Appellant] was then down on
           the ground and cuffed he was lawfully detained or
           attempted escape and I would have to deny the
           suppression.

Id. at 40 (emphasis added).

     Similarly, in responding to Appellant’s Rule 1925(b) statement, in

which Appellant asserted “the officers in this case did not have reasonable

suspicion to conduct a Terry frisk” of Appellant, the trial court commented,

“Appellant’s counsel conceded that the police officers had the right to have

Appellant exit the vehicle and pat him down for weapons for officer safety

pursuant to Terry v. Ohio[.]”       Statement of Errors Complained of on

Appeal, 4/20/15, at 3; Trial Court Opinion, 5/29/15, at 5.

     The Commonwealth cites Commonwealth v. Little, 903 A.2d 1269,

1272-1273 (Pa. Super. 2006), for the proposition that “our appellate review

of an order denying suppression is limited to examination of the precise

basis under which suppression initially was sought; no new theories of relief

may be considered on appeal.”         We quoted Little most recently in

Commonwealth v. Freeman, 128 A.3d 1231, 1241 (Pa. Super. 2015), in

which we also referenced Commonwealth v. Thur, 906 A.2d 552, 566 (Pa.

Super. 2006), (holding “[w]hen a defendant raises a suppression claim to

the trial court and supports that claim with a particular argument or



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arguments, the defendant cannot then raise for the first time on appeal

different arguments supporting suppression[]”).        Given the foregoing

authority, we agree with the Commonwealth that Appellant has waived his

appellate argument regarding reasonable suspicion for a Terry frisk,

because   Appellant’s   counsel   conceded   that   same   argument   at   the

suppression hearing.      Therefore, we decline to review the merits of

Appellant’s issue on appeal.

      Based on the foregoing, we conclude Appellant’s sole issue on appeal

is waived.    Accordingly, the trial court’s February 27, 2015 judgment of

sentence is affirmed.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2016




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