J-S21014-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TIMOTHY ERIC POELLNITZ                     :
                                               :
                       Appellant               :   No. 973 WDA 2019

          Appeal from the Judgment of Sentence Entered April 9, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0007794-2018


BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                                FILED MAY 22, 2020

        Timothy Eric Poellnitz appeals from the judgment of sentence, entered

in the Court of Common Pleas of Allegheny County, following his convictions

for firearms not to be carried without a license (VUFA)1 and two summary

traffic violations2 after a stipulated non-jury trial. Upon careful review, we

affirm.

        The Honorable Mark V. Tranquilli summarized the relevant procedural

history and facts of the case as follows:

        On December 20, 2018, the [c]ourt conducted a suppression
        hearing, entering its Findings of Fact[] and Conclusions of Law on
        the record.    [Poellnitz’s] motion was denied, and the case
        proceeded immediately to [] a stipulated non-jury [trial] with the
        suppression hearing testimony incorporated therein. [Poellnitz]
____________________________________________


1   18 Pa.C.S.A. § 6106(a)(1).

2 75 Pa.C.S.A. § 1543(B) (driving while operating privilege suspended or
revoked); 75 Pa.C.S.A. § 4302 (periods requiring lighted lamps).
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      was convicted of the above charges, and on April 9, 2019, this
      [c]ourt sentenced him to one [] to two [] years of incarceration
      followed by three [] years of probation for the VUFA conviction,
      and a consecutive period of forty-five [] to ninety [] days of
      incarceration for [] driving with a suspended license; no further
      penalty was imposed at the remaining summary conviction. []

      The facts as summarized represent the [c]ourt’s suppression
      Findings of Fact[]. On March 4, 2018, shortly before midnight,
      [University of Pittsburgh Police Officer Donald] Chichilla conducted
      a traffic stop for a vehicle driving without headlights. While
      making contact with [Poellnitz], the operator of the vehicle, Officer
      Chichilla detected a strong odor of marijuana coming from the
      vehicle and observed an open container inside the vehicle
      compartment. During the traffic stop, [Poellnitz] informed [Officer
      Chichilla] that his driver’s license was suspended [due to his
      involvement in a prior] DUI []. Thereafter, [Poellnitz] was ordered
      to exit the vehicle, and assisting Officer William Mathias performed
      a frisk for weapons after [Poellnitz] repeatedly put his hands in his
      pants pockets despite instruction to keep [his hands] visible. As
      Officer Mathias approached [Poellnitz] to conduct the pat down,
      he detected a strong odor of marijuana coming from [Poellnitz]’s
      person. The subsequent search of [Poellnitz’s] outer clothing
      resulted in the recovery of a loaded .22 caliber pistol.

Trial Court Opinion, 10/28/19, at 2-3 (footnote omitted).

      Following his trial and sentencing, Poellnitz filed a timely post-sentence

motion on April 15, 2019, in which he requested an additional sixty days to

file an amended post-sentence motion. The trial court granted the extension,

and on June 13, 2019, Poellnitz filed a timely amended post-sentence motion.

On June 20, 2019, the trial court entered an order denying that motion. On

July 1, 2019, Poellnitz filed a timely notice of appeal. On July 11, 2019, the

trial court ordered Poellnitz to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.        Poellnitz filed a timely Rule 1925(b)

statement on July 17, 2019.



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        Poellnitz raises the following issues on appeal:

        (1)   Was the trial court correct in determining there were specific
              and articulable facts articulated by Officer William Mathias
              [] that justified a Terry[3] frisk of [] Poellnitz, thus leading
              the trial court to [incorrectly] deny [] Poellnitz’s [m]otion to
              [s]uppress the evidence obtained as a result of that frisk?

        (2)   Was the trial court’s sentence an abuse of its discretion
              given the fact that [Poellnitz] presented a character
              witness[] during his sentencing and the trial court’s finding
              of several factors weighing in favor of a sentence in the
              mitigated range?

Appellant’s Brief, at 3.

        Poellnitz first claims that the trial court erred when it denied his motion

to suppress because Officer Mathias’ testimony lacked “sufficient specific and

articulable facts” to support the frisk. Appellant’s Brief, at 13. Our standard

of review for a challenge to the denial of a suppression motion is well-settled:

        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. 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
        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.
____________________________________________


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

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Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal quotations

and citations omitted).

      The Fourth Amendment to the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution protect against unreasonable

searches and seizures. Commonwealth v. Thomas, 179 A.3d 77, 81 (Pa.

Super. 2018).     “Search and seizure jurisprudence defines three levels of

interaction between citizens and police officers and requires different levels of

justification based upon the nature of the interaction.” Id. (quoting

Commonwealth v. Baldwin, 147 A.3d 1200, 1202-03 (Pa. Super. 2016)).

      These categories include (1) a mere encounter, (2) an
      investigative detention, and (3) custodial detentions. . . . The
      second, an “investigative detention” must be supported by
      reasonable suspicion; it subjects a suspect to a stop and a period
      of detention, but does not involve such coercive conditions as to
      constitute the functional equivalent of an arrest.

Thomas, 179 A.3d at 82.           Our Supreme Court has explained that,

“[r]easonable suspicion is a less stringent standard than probable cause

necessary to effectuate a warrantless arrest, and depends on the information

possessed by police and its degree of reliability in the totality of the

circumstances.”    Commonwealth v. Brown, 996 A.2d 473, 476 (Pa.

2010). “When considering the totality of the circumstances, we need not limit

our inquiry to only those facts that clearly and unmistakably indicate criminal

conduct. Instead, even a combination of innocent facts, when taken together,

may warrant further investigation by the police officer.” Commonwealth v.




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Caban, 60 A.3d 120, 129 (Pa. Super. 2012) (citations and quotations

omitted).

      Additionally,   our   Supreme   Court   has   previously   explained   the

requirements for justifying a valid frisk search pursuant to an investigative

detention:

      To conduct a limited search for concealed weapons, an officer
      must possess a justified belief that the individual, whose
      suspicious behavior he is investigating at close range, is armed
      and presently dangerous to the officer or to others. In assessing
      the reasonableness of the officer’s decision to frisk, we do not
      consider his unparticularized suspicion or hunch, but rather the
      specific reasonable inferences which he is entitled to draw from
      the facts in light of his experience.

Commonwealth v. Zhahir, 751 A.2d 1153, 1158 (Pa. 2000) (citations,

quotations, brackets, ellipses omitted). See also Commonwealth v. Hicks,

208 A.3d 916, 933 (Pa. 2019) (“[T]o proceed from a stop to a frisk, the police

officer must reasonably suspect that the person stopped is armed and

dangerous.”).

      We have recently found a suspect’s refusal to comply with police

requests to remove his hands from his pockets justified a frisk of his person

for the protection of police officers, so that they could pursue their

investigation without fear of violence. See Thomas, 179 A.3d at 83-84. See

also Commonwealth v. Scarborough, 89 A.3d 679, 683-84 (Pa. Super.

2014) (frisk justified where suspect, located in high crime area, reaches into

jacket pocket and keeps hand there after police direct him to remove hand

from pocket).


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      With regard to the validity of the frisk at hand, we note that at the

suppression hearing, Officer William Mathias testified as follows:

      [By the Commonwealth attorney]:

      Q. Now, when you arrived on scene, what happened after that?

      A. Officer Chichilla had [] Poellnitz out of the vehicle and []
      Poellnitz was standing next to Officer Chichilla with his hands in
      his pockets. So Officer Chichilla informed me he was going to
      search the vehicle because of the smell of marijuana that was
      coming from the vehicle. So I told [] Poellnitz to step back to my
      location. When he started walking back to me, he took his hands
      out of his pockets. When he got to my location, he put his hands
      back in his pockets.

      Q. And at that point, approximately how far away from you was
      he?

      A. [] Probably [] a foot, two feet.

                                   *    *    *

      Q. At that point what did you do?

      A. He kept putting his hands in his pockets. He had a strong smell
      of marijuana on his person. It made me nervous. I thought he
      might be armed. So I told him to turn around, put his hands
      behind his head and I began to search him, pat him down for
      weapons.

      Q. And when you patted him down, did you feel anything on his
      person?

      A. The first area I patted down was his right pants pocket. I felt
      a bulge in there I instantly recognized as a handgun. I went into
      his pocket and retrieved a handgun out of his pocket.

N.T. Suppression Hearing/Stipulated Non-jury Trial, 12/20/18, at 7-9. With

regard to the particular facts Officer Mathias relied upon in justifying his frisk



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of Poellnitz, Officer Mathias clarified his testimony on cross-examination as

follows:

      [By Poellnitz’s attorney]:

      Q. Well, isn’t it true that in your supplemental report, you
      indicated that you instructed Poellnitz to remove his hands from
      his pockets and that you began to pat Poellnitz down due to the
      smell of marijuana and his placing of his hands into his pockets,
      correct?

      A. Yeah, the combination of the smell of marijuana and the fact
      that I told him a couple times to take his hands out of his pockets.
      He kept reaching in his pockets, and [] as soon as I asked if he
      had any weapons, his hands immediately went into his pockets.

      Q. So you thought it was important to note in conjunction with the
      hands in the pocket in your report that you patted him down,
      because you kept smelling marijuana, right?

      A. Yeah, it’s been my experience drugs [] and guns go hand-in-
      hand a lot of times.

      Q. So the reason you believed he was armed and dangerous was
      the smell of marijuana?

      A. No. The fact that he kept putting his hands in his pockets.

Id. at 11-12 (emphasis added).

      The suppression court made the following conclusions of law after the

suppression hearing:

      [The court:]

      But the [c]ourt does find that for the reasons stated, Officer
      Mathias did have reasonable suspicion to conduct a Terry frisk for
      officer[] safety[. U]nlike the Melendez case[,] where the search
      was predicated solely upon a smell of marijuana, and unlike other
      cases where searches have been predicated solely upon an
      officer’s observation of some sort of nervous behavior on a


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      defendant, this case is different and is an amalgam of and a
      totality of the circumstances reviewed.

      Officer Mathias was a backup officer [] tasked with keeping an eye
      on [Poellnitz]. It was shortly before midnight. He noted that
      [Poellnitz] was within two feet of him. There was a strong smell
      of marijuana coming directly from [Poellnitz.] . . . [Poellnitz] kept
      taking his hands in and out of his pants pockets, and although the
      officer did not discern the outline of a firearm, the officer was
      concerned based upon that behavior, both by [Poellnitz’s]
      approach, and more importantly, [because Poellnitz continued to
      place his hands in his pockets] after [he] had been directed to
      keep his hands out of his pockets[. Poellnitz,] in close proximity
      to the officer[,] put his hands back in his front pants pocket, and
      the [c]ourt does find that Officer Mathias had reasonable suspicion
      that criminal activity could be afoot and that [Officer Mathias] was
      in danger both by [Poellnitz’s] proximity, but, more importantly,
      by [Poellnitz’s] failure to follow the officer’s directions to keep his
      hands out of his pockets.

                                   *    *    *

      In this case, Officer Mathias did testify that based on his
      experience, guns and drugs go hand-in-hand, but I don’t believe
      that this case can be painted into any particular corner [based
      solely on any single particular factor in this case]; rather, under
      the totality of the circumstances evaluation considering all of the
      behaviors, one in concert with the others, we do feel that the
      requisite level of reasonable suspicion was met.

Id. at 21-24 (emphasis added).

      We agree with the trial court.          Here, under the totality of the

circumstances, Officer Mathias had reasonable suspicion to frisk Poellnitz

where Poellnitz disobeyed the officer’s command to remove his hands from

his pockets, in close proximity to the officer, late at night, after the officer

smelled drugs on the defendant, and where the officer’s experience led him to

believe that drugs and guns are often found together. See Thomas, supra.

See also Commonwealth v. Hall, 713 A.2d 650, 653 (Pa. Super.


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1998), rev'd on other grounds, 771 A.2d 1232 (Pa. 2001) (finding defendant’s

persistence in keeping his hand in his pocket after police asked to see his

hands escalated mere encounter and justified stop and frisk). The suppression

court’s factual findings are supported by the record and its legal conclusions

drawn from those facts are correct. Thus, Poellnitz’s motion to suppress was

properly denied. See Jones, supra.

      In Poellnitz’s second issue on appeal, he challenges the discretionary

aspects of his sentence. Such challenges are not entitled to review as of right.

Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015). In

Caldwell, we restated our four-part test for reaching the merits of challenges

to discretionary aspects of sentencing claims:

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:
      (1) whether appellant has filed a timely notice of
      appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was
      properly preserved at sentencing or in a motion to reconsider and
      modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s
      brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
      is a substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

Id. (quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011)).

      Here, Poellnitz filed a timely notice of appeal and preserved the issue in

a post-sentence motion. Poellnitz also included a Rule 2119(f) statement of

reasons to allow an appeal of the discretionary aspects of his sentence. See

Appellant’s Brief, at 11-12. We must, therefore, determine whether Poellnitz



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raises a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code. See Caldwell, supra.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 526,

533 (Pa. Super. 2011). “A defendant presents a substantial question when

he sets forth a plausible argument that the sentence violates a provision of

the sentencing code or is contrary to the fundamental norms of the sentencing

process.” Commonwealth v. Conte, 198 A.3d 1169, 1174 (Pa. Super. 2018)

(quoting Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013)).

      Poellnitz raises two claims in his 2119(f) statement:

      [First, Poellnitz] contends that the [t]rial [c]ourt exercised
      manifestly unreasonable judgment when it sentenced him without
      due or meaningful consideration of the statutory factors of 42
      Pa.C.S. § 9721(b) and 42 Pa.C.S. §9781(d). . . . [Second,
      Poellnitz claims] that the [s]entencing [c]ourt imposed a
      manifestly excessive sentence where guideline sentences were
      imposed consecutively at each count of the criminal information.

Appellant’s Brief, at 11-12.

      We have previously held that a trial court’s failure “to consider relevant

sentencing criteria, including the protection of the public, the gravity of the

underlying offense, and the rehabilitative needs of [the] Appellant, as 42

Pa.C.S.A.   §    9721(b)       requires,”   raises   a   substantial   question.

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012). Conversely,

with regard to challenges to the imposition of consecutive sentences, we have

previously stated:




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      [I]mposition of consecutive rather than concurrent sentences lies
      within the sound discretion of the sentencing court. Long[-
      ]standing precedent of this Court recognizes that 42 Pa.C.S.A. §
      9721 affords the sentencing court discretion to impose its
      sentence concurrently or consecutively to other sentences being
      imposed at the same time or to sentences already imposed. A
      challenge to the imposition of consecutive rather than concurrent
      sentences does not present a substantial question regarding the
      discretionary aspects of sentence. We see no reason why a
      defendant should be afforded a volume discount for his crimes by
      having all sentences run concurrently.

      However, we have recognized that a sentence can be
      so manifestly excessive in extreme circumstances that it may
      create a substantial question. When determining whether a
      substantial question has been raised, we have focused upon
      whether the decision to sentence consecutively raises the
      aggregate sentence to, what appears upon its face to be, an
      excessive level in light of the criminal conduct in this case.

Commonwealth v. Zirkle, 107 A.3d 127 (Pa. Super. 2014) (emphasis

added; citations, quotations, brackets omitted).

      Here, Poellnitz’s first discretionary claim—that the court exercised

manifestly unreasonable judgment in sentencing Poellnitz without due or

meaningful consideration of the statutory factors—raises a substantial

question; thus, we may review its merits. See Riggs, supra. Regarding

Poellnitz’s second discretionary claim, Poellnitz’s criminal conduct included a

VUFA conviction and two summary traffic violations.       For these offenses,

Poellnitz received an aggregate sentence of thirteen-and-one-half to twenty-

seven months’ incarceration. We note that if Poellnitz were sentenced in the

standard range for only his VUFA conviction, he would have been sentenced

to twenty-four to thirty-six months’ incarceration. The trial court’s aggregate




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sentence, under these circumstances, was not so manifestly excessive such

that it raises a substantial question. See Zirkle, supra.

      We therefore review only Poellnitz’s first discretionary sentencing claim

on its merits.   Our standard of review of the discretionary aspects of a

sentence is well-settled:

      In reviewing a challenge to the discretionary aspects of
      sentencing, we evaluate the court’s decision under an abuse of
      discretion standard. Additionally, this Court’s review of the
      discretionary aspects of a sentence is confined by the statutory
      mandates of 42 Pa.C.S. § 9781(c) and (d). Section 9781(c)
      reads:

         (c) Determination on appeal.—The appellate court shall
         vacate the sentence and remand the case to the sentencing
         court with instructions if it finds:

            (1) the sentencing court purported to sentence within
            the sentencing guidelines but applied the guidelines
            erroneously;

            (2) the sentencing court sentenced within the
            sentencing guidelines but the case involves
            circumstances where the application of the guidelines
            would be clearly unreasonable; or

            (3) the sentencing court sentenced outside the
            sentencing   guidelines and  the  sentence   is
            unreasonable.

         In all other cases the appellate court shall affirm the
         sentence imposed by the sentencing court.

      42 Pa.C.S. § 9781(c).

      In reviewing the record, we consider:

         (1) The nature and circumstances of the offense and the
         history and characteristics of the defendant.

         (2) The opportunity of the sentencing court to observe the
         defendant, including any presentence investigation.


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         (3) The findings upon which the sentence was based.

         (4) The guidelines promulgated by the commission.

      42 Pa.C.S. § 9781(d).

Dodge, 77 A.3d at 1274.         “Where pre-sentence reports exist, we shall

continue to presume that the sentencing judge was aware of relevant

information   regarding   the   defendant’s   character   and   weighed      those

considerations along with mitigating statutory factors. A pre-sentence report

constitutes the record and speaks for itself.” Commonwealth v. Devers,

546 A.2d 12, 18 (Pa. 1988).

      Here, the sentencing court sentenced Poellnitz within the mitigated

range of the sentencing guidelines; therefore, Poellnitz must show that the

application of the guidelines was clearly unreasonable.      See 42 Pa.C.S. §

9781(c)(2). Poellnitz argues that the trial court abused its discretion because:

      The trial court’s sentence of [] Poellnitz was inconsistent with the
      Sentencing Code, as there was no victim, [] Poellnitz’s
      rehabilitative needs are better served surrounded by his familial
      support system, and [] Poellnitz stated he was not a threat to
      society. The aggregate sentence imposed by the trial court
      implies that [] Poellnitz is incapable of reform or a return to
      society, thus necessitating confinement for an extended period of
      time. [] Poellnitz asserts that the mitigating evidence presented
      during the sentencing hearing contradicts that assumption.

Appellant’s Brief, at 19. Poellnitz argues further that, at sentencing, the trial

court did not properly weigh the mitigating evidence presented including:

Poellnitz’s prior record score, his lack of a violent history, his family support

system, his honorable military service, and that he was not a threat to himself

or others. See id. at 19-21. Additionally, Poellnitz claims the court did not



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properly consider the testimony of RaWanda Morris, with whom Poellnitz was

in a long-term relationship and helped raise children. Her testimony was that

Poellnitz had been a model “significant other.” See id. at 19-20.

      In arguing an abuse of discretion, Poellnitz essentially asks this Court to

re-weigh the sentencing factors presented to the trial court. This we cannot

do.   See Commonwealth         v.   Griffin,   804   A.2d   1,   9   (Pa.   Super.

2002) (citing Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super.

1989) (en banc) (allegation sentencing court failed to consider or did not

adequately consider various factors is request that this Court substitute its

judgment for that of lower court in fashioning appellant’s sentence, which does

not raise substantial question)). Also, at sentencing, Judge Tranquilli stated

that he had the benefit of reading Poellnitz’s pre-sentence report. See N.T.

Sentencing, 4/9/19, at 3, 10, 11, 14. Therefore, we assume that the trial

court properly weighed Poellnitz’s mitigating statutory factors. See Devers,

supra. Finally, despite Poellnitz’s claims to the contrary, the sentencing court

did consider his stated mitigating factors:

      [T]here are some mitigating factors in this case. And I do always
      consider mitigating factors no matter what the circumstance. One
      of the mitigating factors is you really don’t have a violent history.
      Another one of the mitigating factors is you have a family support
      system. Another mitigating factor is you served your country and
      were honorably discharged. I do believe you deserve a mitigated-
      range sentence.

N.T. Sentencing, 4/9/19, at 13. Consequently, Poellnitz has not shown that

application of the sentencing guidelines would be clearly unreasonable; thus,

his discretionary aspect of sentencing claim fails.         See 42 Pa.C.S. §

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9781(c)(2). Therefore, the sentence imposed on Poellnitz was not an abuse

of the trial court’s discretion. See Dodge, supra.

     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2020




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