Commonwealth v. Alexander

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered June 29, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0003707-2021

Benjamin D. Kohler, Esq.

BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM

KING, J.

Appellant, Aquil Alexander, appeals pro se from the judgment of sentence entered in the Delaware County Court of Common Pleas, following his bench trial convictions for persons not to possess firearms, carrying a firearm without a license, and possession of drug paraphernalia.^[1] We affirm.

The relevant facts and procedural history of this case are as follows. At approximately 1:15 a.m. on August 9, 2021, Pennsylvania State Police Troopers Wendling and Worth conducted a traffic stop of Appellant's vehicle due to an expired registration.

During the stop Trooper Wendling approached Appellant, the driver, and he could not provide title or registration information. Trooper Wendling noticed [a] "raw marijuana shake" in the console and observed Appellant was nervous

and speaking rapidly, and perspiring, and notably Appellant was moving around a lot in the driver's seat. He also observed Appellant moving his hand down underneath the front of the driver seat, and from his officer safety perspective alerted his partner [that] he saw [Appellant] reaching down under the seat

Trooper Wendling decided further investigation was needed to determine who is the owner of the vehicle and whether the vehicle was registered properly. Importantly, Trooper Wendling testified in addition to several violations of the vehicle code, he also was investigating Appellant for possession of marijuana and driving under the influence Having unresolved answers to the question of registration and ownership of the vehicle, having perceived Appellant's nervousness, having observed the marijuana shake in the console, having concerns Appellant may have recently ingested the marijuana and may have been driving under the influence, and having observed the suspicious movements of Appellant in the driver's side of the vehicle, he requested Appellant to exit the vehicle and after about a minute Appellant got out of the vehicle.

Trooper Wendling asked Appellant about the presence of firearms in the vehicle and asked for consent to search the vehicle. Appellant said yes and consented to the vehicle search, and he started walking back to the car. Trooper Wendling became concerned Appellant was going to try to get away or retrieve something from the vehicle. He prevented Appellant from getting back into the vehicle, and Appellant began to cry and became very upset stating he did not want to go back to jail and admitting he was on state parole. Appellant calmed down a little, and [the trooper again] asked Appellant if he could search the vehicle and Appellant consented for the second time. Trooper Wendling thought Appellant's response [was] appropriate but "had never seen someone get so worked up as he did regarding … possibly getting found out for small amount of marijuana." Trooper Wendling was clear Appellant was not under arrest when he gave consent.

(Trial Court Opinion, filed 4/5/23, at 5-7) (record citations omitted).

During the subsequent search, Trooper Wendling discovered a loaded

firearm inside a backpack on the front passenger's seat. Trooper Wendling recovered a plastic vial "containing suspected raw marijuana residue" in the glove compartment. (Affidavit of Probable Cause, dated 8/9/21, at 2). The troopers also recovered a small amount of marijuana from Appellant's person.

The Commonwealth charged Appellant with various offenses related to his possession of the contraband. On January 13, 2022, Appellant filed an omnibus pretrial motion, which included a request to suppress the evidence seized from his vehicle. The court held a suppression hearing on February 15, 2022, and Trooper Wendling was the only witness to testify. On April 6, 2022, the court denied Appellant's suppression motion. Appellant filed a motion for reconsideration of the suppression ruling, which the court denied on April 13, 2022. Following a stipulated bench trial, the court found Appellant guilty of the aforementioned offenses. On June 29, 2022, the court sentenced Appellant to an aggregate term of seventy-two (72) to one hundred forty-four (144) months' imprisonment, followed by three and one-half (3½) years of probation.

Despite having counsel of record, Appellant timely filed a pro se notice of appeal on July 27, 2022. The court did not order Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On August 24, 2022, counsel filed an application to withdraw in this Court. Thereafter, this Court remanded the matter for the trial court to conduct a hearing pursuant to Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998). Upon

remand, the court conducted the hearing and permitted Appellant to proceed pro se.

Appellant now raises four issues on appeal:

Did the trial court err as a matter of law in denying Appellant's omnibus pretrial motion to suppress evidence by not suppressing the marijuana, drug paraphernalia, and firearm in question when the trooper prolonged the traffic [stop] beyond its original mission, giving rise to a second investigative detention of Appellant?

Was the trooper required to have articulable reasonable suspicion to prolong the traffic stop and ask for consent to search and/or conduct a search of Appellant's vehicle?

Did the trooper have reasonable suspicion to prolong the traffic stop and ask for consent to search and/or conduct a search of Appellant's vehicle when he observed Appellant to be extraordinarily nervous … or fidgeting?

Did the trooper have reasonable suspicion to prolong the traffic stop and ask for consent to search and/or conduct a search of Appellant's vehicle when he observed residue of a "green leafy substance" that was never tested or otherwise known to be an illegal substance at the time of observation?

(Appellant's Brief at 4-5) (unnumbered).

In his first, third, and fourth issues, Appellant asserts that the court erred in denying his suppression motion because the initial traffic stop escalated into an illegal seizure. Appellant argues that reasonable suspicion and exigent circumstances did not exist to support suspicion of any illegal activity other than the initial violation of the Motor Vehicle Code. Appellant emphasizes that his nervous behavior and the presence of alleged marijuana residue were insufficient to justify an extended period of detention. Appellant

concludes that the troopers conducted an illegal seizure by commencing an investigation, without reasonable suspicion, that was unrelated to the purpose of the original traffic stop. We disagree.

The following principles govern our review of an order denying a motion to suppress:

An appellate court's 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, the appellate court is bound by [those] findings and may reverse only if the court's legal conclusions are erroneous. Where the appeal of the determination of the