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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RONALD BURKE                               :
                                               :
                       Appellant               :   No. 1630 WDA 2018

        Appeal from the Judgment of Sentence Entered October 18, 2018
               In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0011511-2017


BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY PANELLA, P.J.:                        FILED DECEMBER 20, 2019

        Appellant, Ronald Burke, appeals from the judgment of sentence

entered on October 18, 2018, in the Court of Common Pleas of Allegheny

County, following his conviction of one count each of possession of heroin and

crack cocaine.1 On appeal, Burke claims the trial court erred in denying his

motion to suppress because the police did not have reasonable suspicion to

conduct a wingspan search for officer safety in the area of the car where Burke

was sitting. After review, we affirm.

        In the evening of March 3, 2017, City of McKeesport Police Officer Dante

Diberadin stopped a vehicle after he observed it make a right turn from a left-

turn only lane. As he approached the vehicle, he saw Burke, the passenger in


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1   35 P.S. § 780-113(a)(16).
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the vehicle, place an object furtively under his seat. Concerned for his safety,

Officer Diberadin removed Burke and the driver from the vehicle and

performed a search of the vehicle. He found heroin and crack cocaine.

      Burke moved to suppress the narcotics. After a suppression hearing,

the court denied the motion to suppress, and the court held a bench trial. The

trial court found Burke guilty of both charges and immediately sentenced him

to an aggregate term of incarceration of 6-12 months’ imprisonment.

      Burke filed a timely notice of appeal, and filed a timely Rule 1925(b)

statement.

      In his only issue appeal, Burke contends the trial court erred by denying

his motion to suppress the heroin and crack cocaine found during Officer

Diberadin’s search of the vehicle.   Burke maintains the “police did not have

reasonable suspicion to conduct a wingspan search for officer safety of the

area where Mr. Burke was seated in the vehicle[.]” Appellant’s Brief at 6. We

disagree.

      In reviewing a denial of a motion to suppress, this Court’s role is to

decide:

      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, we are bound by these findings and may
      reverse only if the court’s legal conclusions are erroneous. Where,
      as here, the appeal of the determination of the suppression court

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        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 our plenary review. . . . Our scope of review is limited
        to the evidence presented at the suppression hearing.

Commonwealth v. Thran, 185 A.3d 1041, 1043 (Pa. Super. 2018) (citations

omitted), appeal denied, 195 A.3d 558 (Pa. 2018).

        Here, Burke does not challenge the initial stop of the motor vehicle.

Moreover, he concedes the police can request the driver and any passengers

exit the car. See Appellant’s Brief, at 14. However, he argues the police did

not have reasonable suspicion to conclude either Burke was in possession of

a weapon or that he might gain control of one. See id. He maintains furtive

movements are not enough to establish reasonable suspicion and relies on

this Court’s decision in Commonwealth v. Reppert, 814 A.2d 1196, 1205

(Pa. Super. 2002) (en banc) to support his claim. See Appellant’s Brief, at

13. For the reason discussed below, we find Burke’s reliance on Reppert is

misplaced.

        In Commonwealth v. Simmons, 17 A.3d 399 (Pa. Super. 2011), this

Court stated:

        [An officer]’s observation of furtive movements, within the scope
        of a lawful stop, led him to reasonably be concerned for his safety
        and therefore justified the Terry[2] protective frisk. Indeed, on
        multiple occasions we have held that similar furtive movements,
        when witnessed within the scope of a lawful traffic stop, provided
        a reasonable basis for a protective frisk.
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2   Terry v. Ohio, 392 U.S. 1 (1968).

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Id., at 404 (citations omitted); see also in re O.J., 958 A.2d 561, 566

(stating defendant’s “rapid and furtive hand movements over the console

indicated that he may have been hiding a weapon in that location[;]” “the

police officer was permitted to engage in a search of that compartment for his

own protection[;]” “constitutional safeguards do not require an officer to

gamble with his life[.]”).

      Despite this, this Court has explained:

      [P]re-stop furtive movements, by themselves, may not be used to
      justify an investigative detention and search commenced after the
      conclusion of a valid traffic stop where the totality of
      circumstances has established that the furtive movements did not
      raise immediate concern for the safety of the officer who
      undertook the initial vehicle detention.

Simmons, 17 A.3d at 405; see also Commonwealth v. Moyer, 954 A.2d

659, 670 (Pa. Super. 2008) (en banc) (stating “[f]urtive movements and

nervousness, standing alone, do not support the existence of reasonable

suspicion).

      In sum, the Commonwealth must both show the police saw furtive

movements during the stop and that there were additional reasons for them

to be concerned about the presence of weapons in order to demonstrate

reasonable suspicion. See Commonwealth v. Buchert, 68 A.3d 911, 916-

17 (Pa. Super. 2013).




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      At the suppression hearing, the Commonwealth presented the testimony

of Officer Diberadin. He was on routine patrol at night along Wall Street in the

City of McKeesport. N.T. Suppression Hearing, 10/18/18, at 4-6. This was a

high-crime area; Officer Diberadin made over 500 arrests there and knew

about shootings near the location of the motor vehicle stop. See id. at 5-6.

      While on patrol, Officer Diberadin observed a vehicle make a right hand

turn from a left turn only lane, he further observed that the vehicle did not

have a license plate. See id. at 6. Officer Diberadin pulled the vehicle over

and approached it; when he got close to the vehicle, he saw a temporary Ohio

registration sticker on the back seat of the car. See id.

      As he spoke with the driver, Officer Diberadin saw Burke, the front-seat

passenger and the only other person in the car, reach down and place an

unknown object under his seat. See id. at 7-8.       Concerned for his safety,

once other officers arrived on the scene, Officer Diberadin had both the driver

and Burke removed from the car, handcuffed, and detained at the rear of the

vehicle. See id. at 10-11.

      The Commonwealth next presented the testimony of City of McKeesport

Police Lieutenant (then Sergeant) Joshua Alfer. Lieutenant Alfer also

participated in the motor vehicle stop. See id. at 13. He was familiar with

the high-crime area of the traffic stop, and knew about several homicides close

by. See id. at 14. When he arrived at the scene, both the driver and Burke




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were still in the car; he observed Burke reach towards the bottom of the

vehicle. See id.

     He ordered Burke to stop and keep his hands in sight. See id. at 14.

Burke ignored the order and again reached under his seat. See id. at 14-15.

Lieutenant Alfer again ordered Burke to keep his hands in sight. See id. at

15. Burke’s movements concerned Lieutenant Alfer because “I have made

numerous arrests where the defendant has reached down under the seat and

towards the center console of the vehicle, where there have been firearms

along with drugs.” Id.

     The Commonwealth then recalled Officer Diberadin. He testified that

following removal of the driver and Burke from the car, he performed a

wingspan search of the passenger seat area. See id. at 22. He found 50

stamp bags of heroin and a sandwich bag of crack cocaine under the

passenger seat. See id. at 23.

     Here, as discussed in detail above, Burke made at least two separate

furtive movements during the traffic stop. Officer Diberadin observed Burke

reach down and place something under his seat.        Lieutenant Alfer also

observed Burke reaching down under the seat; when he ordered him to stop

and put his hands at eye level, Burke disobeyed and made another furtive

movement under the seat.

     The traffic stop took place at night and in a high crime area.     This

combination of factors provided a reasonable basis for the police to suspect


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that there might be a weapon in the vehicle. See Bouchert, 68 A.3d at 916-

17 (holding sufficient reasonable suspicion to justify wingspan search where

traffic stop took place at night, police observed passenger making furtive

movements during stop, and defendant behaved in nervous manner).

      Moreover, we find Burke’s reliance on our decision in Reppert

misplaced. In Reppert, an unmarked police car followed a car with expired

inspection and registration stickers; prior to initiating the traffic stop, the

police officer observed one of the passengers move his head and shoulders.

See id. at 1199. Throughout the traffic stop, during which the police decided

not to issue a citation, the police officer noted the defendant seemed nervous

but did not see any additional movements. See id.

      However, because of the pre-stop movement, the officer eventually

ordered the defendant out of the vehicle and observed bulges in the pockets

of his jacket; although the defendant initially refused to empty his pockets,

he ultimately complied, removing cash, drugs, and drug paraphernalia. See

id.   In the decision, this Court largely discussed the issue of whether the

traffic stop had already concluded when the police ordered the defendant to

exit the car and, after concluding that it had, whether the police had

justification for an additional seizure. See id. at 1202-04.   Ultimately, the

Reppert panel concluded, under the particular circumstances in the case, the

police did not possess a sufficient basis to conduct a search based on a single




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furtive movement, which took place before the police even attempted to stop

the car. See id. at 1206.

      However, as we have since pointed out, the decision in Reppert applies

to a narrow set of circumstances:

      [w]hen properly understood, Reppert stands for the proposition
      that pre-stop furtive movements, by themselves, may not be used
      to justify an investigative detention and search commenced after
      the conclusion of a valid traffic stop where the totality of
      circumstances has established that the furtive movements did not
      raise immediate concern for the safety of the officer who
      undertook the initial vehicle detention.

Buchert, 68 A.3d at 914-15 (citation omitted).

      Here, the circumstances are entirely different from Reppert as this case

involves a situation where Burke made at least two separate furtive

movements during the traffic stop, and made one of the movements after the

police specifically ordered him to stop moving his hands, thus directly raising

concerns for officer safety during a nighttime stop in a high-crime area.

Therefore, we find our decision in Reppert is inapplicable in the current

matter.

      For the reasons discussed above, we find the record supports both the

trial court’s factual findings and its legal conclusions. Burke’s only issue on

appeal does not merit relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2019




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