Com. v. Parker

957 A.2d 311

2008 PA Super 208

COMMONWEALTH of Pennsylvania, Appellee v. Wendell Lamont PARKER, Appellant.

No. 1528 MDA 2007.

Superior Court of Pennsylvania.

Filed September 10, 2008.

James R. Robinson, York, for appellant.

Thomas J. Reilly, Assistant District Atorney, York, for Commonwealth, appellee.

BEFORE: STEVENS, PANELLA and HUDOCK, JJ.

OPINION BY PANELLA, J.:

¶ 1 Appellant, Wendell Lamont Parker, appeals from the judgment of sentence entered on August 29, 2007, by the Honorable John S. Kennedy, Court of Common Pleas of York County. After careful review, we affirm.

¶ 2 On January 27, 2007, at about 11:47 p.m., a Springettsbury Township Police Officer pulled Parker over because he noticed that the vehicle had a malfunctioning right brake light. When stopped behind the vehicle, the officer noticed that there was a passenger in the car and that the driver, Parker, "began to reach down, dipping his shoulders right and left." N.T., 7/10/07, at 37-38. This movement caused the officer to believe that the driver might have been concealing a weapon. Id. As the officer would eventually find out, Parker gave the officer a false name, social security number, and birthdate.

¶ 3 After Parker was unable to produce identification, the officer ordered him out of the car so he could pat him down to check for the presence of weapons. During the pat down, the officer felt two plastic bags with a "hard chunky substance" in Parker's pants pocket. Id. at 38. Based on the officer's experience, he believed the objects felt to be cocaine and seized them. During the search incident to arrest, the officer also found a smoking device used to smoke crack cocaine.

¶ 4 While the smoking device did test positive for crack cocaine residue, the hard chunky substance also seized was actually candle wax. After the officer advised him of his rights, Parker stated, "Man, that ain't real coke, it's candle wax ... I ain't going to lie, I was going to sell it if the opportunity presented itself. I got a really bad habit." Id. at 44. Parker was charged with various crimes arising from this incident.

¶ 5 At the hearing on July 10, 2007, the trial court denied Parker's motion for suppression of the evidence obtained during the pat down. The matter proceeded to trial on the same date. The arresting officer testified that he determined Parker's true identity from another jurisdiction "who had contact with him at one time." Id. at 45. Due to this remark, defense counsel requested a mistrial. The trial court denied this request, but provided the jury with a cautionary instruction that they cannot imply prior criminal conduct from the officer's statement. Id. at 47. The jury convicted Parker of criminal attempt to deliver a noncontrolled or counterfeit substance,¹ possession of drug paraphernalia,² and false identification to law enforcement.³ On August 29, 2007, the trial court sentenced Parker to an aggregate sentence of 2½ to 5 years incarceration, consecutive to a state parole violation. This timely appeal followed.

¶ 6 On appeal, Parker raises the following issues for our review:

1. Whether the trial court erred in denying the defendant's Motion to Suppress when the evidence used against him was seized following an unlawful detention and an unlawful pat-down search of his person that was not supported by probable cause or reasonable suspicion of on-going criminal activity nor that the defendant was armed and dangerous, and the search exceeded its permissible scope[?]

2. Whether the evidence was sufficient to support the jury's verdict finding the defendant guilty of Criminal Attempt to Deliver a Noncontrolled Substance?

3. Whether the trial court erred in denying the defendant's Motion for Mistrial after the police officer implied to the jury that the defendant had been involved in prior criminal activity?

Appellant's Brief, at 3.

¶ 7 In his first issue on appeal, Parker claims that the evidence seized during his traffic stop should have been suppressed by the trial court. He argues that the police officer unlawfully detained him without reasonable suspicion, unlawfully searched him without the proper suspicion that he was armed and dangerous, and unlawfully seized items in violation of the plain feel doctrine.

¶ 8 Our standard of review for suppression matters is well established:

[W]e must determine whether the factual findings [of the suppression court] are supported by the record and, assuming there is support in the record, we are bound by the facts and may reverse if the legal conclusions drawn from those facts are in error.

Commonwealth v. Pakacki, 587 Pa. 511, 516-517, 901 A.2d 983, 986 (2006) (quotation omitted).

¶ 9 When a police officer lawfully stops a motorist for a violation of the Pennsylvania Motor Vehicle Code, the officer is permitted to ask the driver to step out of the vehicle "as a matter of right." Commonwealth v. Wilson, 927 A.2d 279, 284, (Pa.Super.2007), citing, Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). During this investigatory stop, the officer can pat-down the driver "when the officer believes, based on specific and articulable facts, that the individual is armed and dangerous." Commonwealth v. Stevenson, 894 A.2d 759, 772 (Pa.Super.2006), appeal denied, 591 Pa. 691, 917 A.2d 846 (2007), citing, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969); Commonwealth v. Robinson, 410 Pa.Super. 614, 600 A.2d 957, 959 (1991), appeal denied, 533 Pa. 599, 617 A.2d 1273 (1992). Such pat-downs, which are permissible "without a warrant and on the basis of reasonable suspicion less than probable cause, must always be strictly limited to that which is necessary for the discovery of weapons" that might present a danger to the officer or those nearby. Commonwealth v. Ingram, 814 A.2d 264, 269 (Pa.Super.2002) (quotation omitted), appeal denied, 573 Pa. 671, 821 A.2d 586 (2003). When assessing the validity of a pat-down, "we examine the totality of the circumstances ... giving due consideration to the reasonable inferences that the officer can draw from the facts in light of his experience, while disregarding any unparticularized suspicion or hunch." Wilson, 927 A.2d at 284 (citation omitted).

¶ 10 If it becomes clear to the police officer during the pat-down that the suspect does not have any weapons on his person, the plain feel doctrine exists as an exception to allow for the seizure of "non-threatening contraband" when the officer feels an object "whose mass or contour makes its criminal character immediately apparent." Id. at 287 (quotation omitted); Pakacki, 587 Pa. at 521, 901 A.2d at 989 (citation omitted). The contraband is "immediately apparent" when "the officer readily perceives, without further exploration or searching, that what he is feeling is contraband." Id. The object cannot be seized if, "after feeling the object, the officer lacks probable cause to believe that the object is contraband without conducting some further search." Id.

¶ 11 The police officer lawfully pulled Parker over because of a malfunctioning brake light; therefore he also had the right to ask him to step out of the vehicle. Guidance is provided in the Mimms case, where the defendant, who was driving with expired license tags, was lawfully stopped and asked to exit the vehicle because he was also in violation of the Pennsylvania Motor Vehicle Code. The lawfulness of the investigatory stop in both Mimms and this case dispels any "question about the propriety of the initial restrictions on respondent's freedom of movement." Mimms, 434 U.S. at 109, 98 S.Ct. 330. Therefore, the officer lawfully detained Parker and requested that he step out of the car.

¶ 12 During the suppression hearing, the officer provided specific facts explaining why he had reason to believe Parker was armed and dangerous, which he observed immediately after he stopped and pulled behind him. The officer explained his reasons for patting down Parker as follows:

Q: What was your original reason for patting him down?

A: The furtive movements I observed upon stopping him, reaching down to his right and to his left.

Q: Why would you pat him down because of those movements?

A: Based on his movements, my safety in my opinion was in jeopardy, because I didn't know if he was trying to get a weapon or not. I wanted to be sure he did not possess a weapon, so we were both safe on the traffic stop.

N.T., 7/10/07, at 7. At the suppression hearing, the officer also described Parker's movements as "shoulders dipping from side to side as if he was trying to retrieve something." Id. at 12.

¶ 13 On very similar facts, we have previously found that an officer articulated sufficient facts to constitute reasonable suspicion for a pat-down. In Wilson, immediately after the officer stopped and pulled behind the defendant, he observed him "looking into his rear view and side mirrors and his "shoulders and stuff" were moving around." 927 A.2d at 284. The defendant's "suspicious gestures and movements, in conjunction with the fact that he placed his hands inside his coat pocket as if he were reaching for something, could lead Officer Gunter to reasonably conclude that his safety was in jeopardy." Id. at 284-285. See also Commonwealth v. Mack, 953 A.2d 587 (Pa.Super.2008) (the officer could have reasonably concluded that his safety was in jeopardy and so was justified in subjecting the defendant to a Terry frisk based on the defendant's "reaching movements in the vehicle while the officer approached," coupled with the time of day, the defendant's nervousness, and his lack of proper identification); Commonwealth v. Murray, 536 A.2d 76, 77 (Pa.Super.2007) (the officer articulated sufficient facts to lead him to conclude the defendant could have been armed and dangerous due to his "excessive movement inside the vehicle," in addition to the hour of night and the fact that the...