J-A23003-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
JACKIE MASON,                             :
                                          :
                  Appellant               : No. 778 WDA 2013

            Appeal from the Judgment of Sentence April 3, 2013,
                Court of Common Pleas, Allegheny County,
             Criminal Division at No. CP-02-CR-0010462-2012

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED SEPTEMBER 09, 2014

      Jackie Mason (“Mason”) appeals from the April 3, 2013 judgment of

sentence entered by the Allegheny County Court of Common Pleas.

Specifically, Mason appeals the trial court’s denial of his motion to suppress

a gun found in his vehicle during a traffic stop. Upon review, we affirm.

      The trial court summarized the facts adduced at the suppression

hearing as follows:

            On May 24, 2012, plain clothes narcotics detectives
            of the City of Pittsburgh Police Department were
            patrolling Shadeland Avenue in the Marshall-
            Shadeland section of the North Side of the City of
            Pittsburgh in an unmarked police car. (T.R. 4). While
            driving behind a car driven by [Mason], the
            detectives observed that the taillight on the
            driver[’]s side of [Mason]’s vehicle was completely
            burned out or not illuminated. The detectives
            initiated a traffic stop at the intersection of Woodland
            and Shadeland Avenues. (T.R. 4).
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          Detective Scott Love, along with three (3) other plain
          clothes detectives, approached [Mason]’s car. (T.R.
          9). Each detective had his badge displayed around
          his neck at the time of the encounter with [Mason].
          (TR. 7). All of their weapons were holstered and not
          drawn. (T.R. 12-13). As he approached the vehicle,
          Detective Love noted that there was a bullet hole in
          the front windshield, two (2) bullet holes in the
          passenger side of the car, and that the passenger
          side window was shattered. (T.R. 5, 9). Detective
          Love asked [Mason] to produce his license,
          registration and proof of insurance. (T.R. 5, 9). As
          [Mason] began to reach around to retrieve those
          items, Detective Love asked him if there were any
          weapons in the car that he (Detective Love) should
          know about. (T.R. 5-6, 10). [Mason] responded that
          there were no weapons, but he appeared to be
          visibly shaking, sweating and nervous. (T.R. 6, 10).
          Because of how nervous [Mason] was, Detective
          Love asked him if he could search the car, and
          [Mason] said ‘go ahead.’ (T.R. 6, 10). As [Mason]
          was exiting the vehicle at the request of the officers
          so that a search could be performed, [Mason] told
          Detective Love that he had lied and that he had a
          gun under his seat. (T.R. 6, 10-11). Detective Love
          looked under the driver’s seat and could see a gun,
          which he recovered. (T.R. 7, 11). The gun was a nine
          millimeter (9 mm) black Ruger. (T.R. 7).

          Detective Love stated that he asked [Mason] about
          the presence of a weapon because of the visible
          bullet holes in [Mason]’s vehicle and the way that he
          was behaving, i.e., sweating, shaking and being very
          nervous. (T.R. 8, 10). [Mason] had indicated to the
          officers that he had received the bullet holes in the
          East Commons housing complex, a high crime area
          that the officers were familiar with and in which they
          had made numerous gun and drug arrests. (T.R. 8).
          Given this history, Detective Love believed that
          [Mason] might have a gun in his vehicle for
          protection. (T.R. 8).




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           At the suppression hearing, [Mason] argued that he
           was detained at the time of the traffic stop, that his
           consent to search was not voluntary under the
           circumstance[s] and that he should have been
           Mirandized before he was asked about the presence
           of the gun. The Commonwealth argued that the
           consent to search was voluntary, the statement
           made was a spontaneous utterance, and that the
           detectives were permitted to ask [Mason] to step out
           of the vehicle for officer safety. This court denied
           [Mason]’s suppression motion, finding that [Mason]’s
           consent to search was voluntary and that the
           statement made by [Mason] was a spontaneous
           utterance. Following the denial of the suppression
           motion, [Mason] proceeded to a stipulated non-jury
           trial, after which this court found him guilty of both
           charges and sentenced him to one (1) year of
           probation and the payment of the summary fine.

Trial Court Opinion, 12/19/13, at 2-4.

     Mason filed a timely notice of appeal and complied with the trial court’s

order to file a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(b).   He raises one issue for our review:     “Did the trial

court err in denying [] Mason’s motion to suppress where, under the totality

of the circumstances, [] Mason’s consent was involuntarily obtained and

police independently lacked reasonable suspicion to believe [] Mason was

armed and dangerous?” Mason’s Brief at 4.

     “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.”        Commonwealth v.




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Thompson, 93 A.3d 478, 484 (Pa. Super. 2014) (citation omitted). We are

not bound by the trial court’s legal conclusions, but must apply the law to

the supported facts found by the trial court.         Id.    The trial court’s

conclusions of law are subject to our plenary review. Id.

      The trial court found that the police conducted a lawful traffic stop and

Mason voluntarily gave the police consent to search his vehicle. Trial Court

Opinion, 12/19/13, at 10. Mason asserts that the circumstances attendant

to his interaction with police – the number of detectives present, that each

detective was armed, the stop occurred at night, the investigative detention

was ongoing at the time of the request to search his car, and the detectives

did not inform Mason that he could decline their request to search his vehicle

– rendered involuntary his consent for police to search his vehicle pursuant

to, inter alia, this Court’s decision in Commonwealth v. Acosta, 815 A.2d

1078 (Pa. Super. 2003) (en banc). Mason’s Brief at 18-19. Mason further

argues that the police lacked reasonable suspicion to search the car for

weapons and therefore, the gun recovered during Detective Love’s search of

Mason’s car should have been suppressed. Id. at 22-23.

      We need not decide the issue of the voluntariness of Mason’s consent

because the record reflects that the police were justified in conducting a

protective search of the car pursuant to Michigan v. Long, 463 U.S. 1032

(1983), and Commonwealth v. Morris, 644 A.2d 721 (Pa. 1994), which

permit



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           the search of the passenger compartment of an
           automobile, limited to those areas in which a weapon
           may be placed or hidden, […] 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.      ‘[T]he issue is whether a
           reasonably prudent man in the circumstances would
           be warranted in the belief that his safety or that of
           others was in danger.’

Long, 463 U.S. at 1049–50 (quoting Terry v. Ohio, 329 U.S. 1, 21

(1968)); Morris, 644 A.2d at 421.

     The Commonwealth points us to Commonwealth v. Buchert, 68

A.3d 911 (Pa. Super. 2013), appeal denied, 83 A.3d 413 (Pa. 2014), to

support a finding that the police in the case at bar had the requisite

reasonable suspicion to conduct a protective search of Mason’s vehicle.

Commonwealth’s Brief at 11-13. In Buchert, police stopped a vehicle with

a broken taillight. Buchert, 68 A.3d at 912. As they approached the car,

the officers saw the defendant, seated in the front passenger seat, bend

forward and reaching under his seat.      Police did not see the defendant’s

hands or anything in them. The defendant and the driver were cooperative

with the police and kept their hands visible at their direction. According to

police, “the defendant appeared nervous as they were talking to him, and []

[the officer] could see the defendant’s heavy breathing and rapid heartbeat.”

Id. The officers ordered the two occupants to exit the car. A frisk of the




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defendant did not reveal any contraband. Thereafter, the officer performed

a protective search of the area of the vehicle within the defendant’s

immediate control, revealing a .22 caliber revolver. Id. Although the officer

testified that the stop occurred in a high narcotics area, the trial court did

not find that testimony to be credible. Id.

      The defendant filed a motion to suppress the firearm, which the trial

court granted, finding the police lacked “probable cause to search the

passenger area.” Id. at 913. The Commonwealth appealed, and this Court

reversed, concluding:

             The combination of [the defendant’s] furtive
             movement of leaning forward and appearing to
             conceal something under his seat, along with his
             extreme nervousness and the night time stop, was
             sufficient to warrant a reasonable police officer to
             believe that his safety was in danger and that
             Appellee might gain immediate control of a weapon.

Id. at 916-17.

      The record reflects that the stop in question occurred at 12:22 a.m.

during Detective Love’s routine patrol, and that he was “assigned to the

highest crime areas within the City of Pittsburgh.”    N.T., 4/13/13, at 3-4;

Affidavit of Probable Cause, 5/24/12, at 2.    As Detective Love approached

the car, he observed that there was a bullet hole in its windshield, two bullet

holes in the passenger side of the car, and its passenger-side window was

shattered.   N.T., 4/13/13, at 5.   Prior to Mason providing his license and

registration, Detective Love asked him if there were any weapons in the



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vehicle, as he routinely did during traffic stops. Id. at 5-6, 10. Mason said

there were no weapons in the car. Id. at 6. Mason was shaking, sweating,

and visibly nervous.      Id.   Despite Mason’s statement to the contrary,

Detective Love was nonetheless concerned that there were weapons in the

car because when he asked about the bullet holes in the car, Mason “said

that he had just gotten shot at down at 255 East Ohio Street. It’s a housing

complex that’s known to me as a high crime area. I’ve made numerous gun

[and] drug [] arrests.”1 Id. at 8. Detective Love testified that based on the

information he had before him, he believed Mason might have a gun in the

car for protection. Id.

      Thus, the specific facts articulated by Detective Love that led him to

believe Mason might have a weapon in the car included: a late-night traffic

stop in a high crime area; the car was riddled with bullet holes from a

shooting of which occurred in another high crime area; and Mason was

visibly nervous and sweating during his interaction with the police. Unlike

the defendant in Buchert, Mason did not make furtive movements;

however, the additional factors present in the case at bar include the


1
   Mason challenges the support in the record for the conclusion that Mason
informed the police about the source of the bullet holes prior to the search.
Mason’s Brief at 23. In his testimony, Detective Love indicated that his
concern that there was a weapon in the car stemmed in part from the
presence of the bullet holes and Mason’s statement “that he had just gotten
shot down at 255 East Ohio Street […] known to me as a high crime area.”
N.T., 4/13/13, at 8. It is clear from this testimony that Detective Love
became aware of this information prior to conducting the search of Mason’s
car.


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presence of bullet holes in the vehicle, Mason’s statement that he was shot

at in a high crime area, and his presence in yet another high crime area at

the time of the stop.     These factors, coupled with Mason’s nervousness

during the traffic stop, are sufficient to warrant a reasonably prudent man to

believe that his safety was in danger.    See Long, 463 U.S. at 1049–50;

Morris, 644 A.2d at 421; see also Buchert, 68 A.3d at 917.

      The trial court’s factual findings are supported by the record. Although

the trial court did not deny Mason’s motion to suppress based upon a finding

that the police had a reasonable suspicion to suspect that Mason had a

firearm in the car, its decision to deny suppression was correct.    We may

affirm a trial court’s decision regarding a motion to suppress on any ground,

“even where those grounds were not suggested to or known by the trial

court.” Commonwealth v. Gatlos, 76 A.3d 44, 62 n.14 (Pa. Super. 2013);

see also Thompson, 93 A.3d at 484 (we are not bound by the trial court’s

legal conclusions, but must apply the law to the supported facts found by the

trial court). We therefore affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/9/2014



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