Commonwealth v. Felder

1

COMMONWEALTH OF PENNSYLVANIA Appellee v. ANTHONY L. FELDER Appellant COMMONWEALTH OF PENNSYLVANIA Appellee v. ANTHONY L. FELDER Appellant

Nos. 2431 EDA 2021, 2430 EDA 2021

No. J-A17037-23

Superior Court of Pennsylvania

December 21, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered October 20, 2021 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0002334-2020, CP-09-CR-0005807-2020

BEFORE: KING, J., SULLIVAN, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

PELLEGRINI, J.

Anthony L. Felder (Felder) appeals from the judgment of sentence entered in the Court of Common Pleas of Bucks County (trial court) following his bench trial convictions for two counts each of persons not to possess firearms and carrying firearms without a license, and one count of possession of a controlled substance.^[1] We affirm in part and reverse in part.

I.

A.

The trial court opinion set forth the relevant facts of this appeal as follows:

Officer Harley is a patrol officer for the Bensalem Township Police Department and has been so employed for approximately two years. Prior to his employment with the Bensalem Township Police Department, Officer Harley served as a SEPTA Transit Police Officer in Philadelphia for approximately three years. Officer Harley also testified to his personal experience and knowledge of firearms as, not only a seasoned police officer, but also as an avid collector. Officer Harley testified that he has owned revolver-type firearms in the past and explained that "Generally, a revolver, usually metal. Usually has a curved handle, solid curved handle, has a cylinder in the middle that holds the ammo. It has the hammer on the back that you can use to, you know, cock the gun."

On May 1, 2020, at approximately 10:31 p.m., Officer Harley responded to an "abandoned 911 call" reported from the Knights Inn motel room number 163 located at 2707 Lincoln Highway in Bensalem Township. Officer Harley testified that by "abandoned 911 call" what is meant is that someone from room 163 called the police 911 line and then hung up.

* * *

Officer Harley arrived on scene at approximately 10:44 p.m. Officer Harley parked his Bensalem Township patrol wagon in the parking lot of the Knights Inn near rooms 162 and 163. When Officer Harley first arrived on scene, he stayed in his patrol wagon in order to assess the area as Officer Harley did not know what to expect given that he was responding to an "abandoned 911 call."

* * *

Officer Harley testified that he sat in the patrol wagon for approximately forty seconds and observed an individual, later identified as Melvin Dixon, standing outside of room 163, the room from which the abandoned 911 call came. Officer Harley testified that he observed Mr. Dixon coming in and out of room 163 at this time. Officer Harley also observed Mr. Dixon making gestures towards a vehicle-an orange Ford Mustang-parked directly in front of rooms 162 and 163, as if an individual were inside the vehicle. Officer Harley observed the gestures of Mr. Dixon and explained that it appeared as if he was communicating with an individual inside the Mustang regarding Officer Harley's presence on scene. Officer Harley testified that he believed these individuals were attempting to communicate about him because Mr. Dixon would be "looking in the car at the subject sitting in the car, and then he would look at me and kind of shrug his shoulders, and then kind of look back at the guy in the car, and then kind of look over at me."

At this time, Officer Harley exited his vehicle and approached Mr. Dixon in front of room 163. As Officer Harley was walking, he noticed the individual inside the Mustang making furtive movements as if he was putting or grabbing something from the driver's door compartment. Officer Harley shined his flashlight into the vehicle through the passenger side window and observed Felder … hunched over in the driver seat reaching down into the driver's door compartment area. Officer Harley then asked Felder 'what he was doing' at which point Felder abruptly exited the vehicle, startling Officer Harley, and pointed to room 162 saying that was his room. Officer Harley testified … that Officer Harley did not ask Felder to exit the Mustang. Officer Harley then told [Felder]it looked like he was tucking something in the driver side door, which [Felder] denied and then told Officer Harley 'you can search everything.' Officer Harley then came around the back of the Mustang and asked Felder if he had any weapons on him, at which point [Felder] put up his hands and said "no."

* * *

Officer Harley then informed Felder that he was going to pat him down for officer safety.

* * *

From the pat down, which Officer Harley described as running his open palms over the silhouette of [Felder's] body, Officer Harley discovered a revolver on the left hip of [Felder], which Officer Harley confiscated. Specifically, Officer Harley explained that he immediately recognized the revolver from the plain feel on [Felder's] left hip because he "felt a curved shape solid object that was consistent with a handle of a revolver that was tight to his waist just above his belt line, just above his belt." Officer Harley checked the revolver and found that it contained no bullets. Officer Harley then handcuffed [Felder] and called for backup.

* * *

Officer Harley further testified that he was the only officer on scene at this point and that he was outnumbered by Felder and Mr. Dixon. Officer Harley is approximately 5' 7" and weighs approximately 165 pounds, whereas both Felder and Mr. Dixon are larger individuals, with [Felder]-in particular-being significantly larger than Officer Harley, as [Felder] is over 6 feet tall and weighs over 200 pounds. Officer Harley also testified while he was taking Felder into custody, Mr. Dixon also presented safety concerns in that he attempted to go back into Room 163 and Officer Harley told him to stop, because he did not want a potential suspect to leave his line of sight, especially by entering the very room Officer Harley was there to investigate.

Once Officer Harley had placed Felder in handcuffs, he asked Felder if he had a license to carry the revolver, to which Felder initially responded yes. However, Officer Harley then asked [Felder]if he had a criminal record, to which Felder said yes. At this point, Officer Harley asked Felder how he could have a license to carry a firearm if he had a criminal record. Felder said that he had his record expunged, to which Officer Harley explained to [Felder]that he was going to run a search to essentially discover whether or not [Felder] was telling him the truth. [Felder] finally responded that he did not have a license to carry the revolver.

(Trial Court Opinion, filed 5/2/22, at 6-11) (record citations omitted).^[2]

After Officer Harley placed Felder in the back of his patrol car, the backup officers who arrived at the scene decided to have the Mustang towed. The trial court explained the circumstances surrounding the tow as follows:

Officer [Michael] Owen further testified that the officers believed they had the authority to conduct an inventory search of the vehicle, before towing the vehicle away, because (1) the registration on the Mustang did not match the license plate and revealed that the license plate belonged to a Lexis owned by a different individual (2) a search of [Felder's] license revealed that his license was suspended and expired (3) the VIN number of the Mustang was designated as "open" which means the vehicle was not registered (4) the inspection stickers on the vehicle were invalid or expired and as such it would not be legal for this vehicle to be on the roadway (5) there were no individuals on scene that could rightfully take control of the vehicle as Mr. Dixon had an outstanding warrant and was intoxicated at the time and (6) that the Knights Inn is known to Bensalem Police as a high crime area where auto-theft and vehicle damage occurs frequently.^[3]

Officer Owen then testified to conducting the inventory search of the Mustang before towing the vehicle after receiving instructions from his superior officer, Sergeant McGinty. Officer Owen testified to completing the vehicle inventory form … while performing the inventory search of the vehicle, which is also captured on Officer Owen's body camera footage. The body camera footage demonstrates that the officer is physically conducting the inventory search in a manner consistent with an inventory search, carefully removing items from the trunk and recording relevant information on the required form. The body camera footage, along with the testimony of Officer Owen, shows that Officer Owen searched the trunk of the Mustang and found a garment bag. Officer Owen then felt the green garment bag and stated, on video, that it felt like a rifle, based off of the feel, length and weight of the item in the bag. Officer Owen then unzipped the garment bag and found a large blue fabric case inside, which Officer Owen then opened revealing the SKS rifle.

(Id. at 17-18) (record citations omitted).

B.

On April 23, 2021, Felder filed an omnibus pretrial motion seeking the suppression of evidence. Felder argued that "Officer Harley did not have probable cause or reasonable suspicion to believe that [Felder] was armed and dangerous," and the officer conducted an illegal pat down that "was not incident to a valid arrest or consent." (Suppression Motion, filed 4/23/21, at ¶24). Felder also argued that the police conducted an illegal search of the vehicle which "was not pursuant to a lawful consent, a lawful arrest, a search warrant or a valid inventory search." (Id. at ¶27). On August 2, 2021, the court commenced a...