Commonwealth v. Malloy

257 A.3d 142

COMMONWEALTH of Pennsylvania

v.Toby MALLOY, Appellant

No. 1126 EDA 2020

Superior Court of Pennsylvania.

Submitted January 12, 2021

Filed: May 7, 2021

Reargument Denied July 14, 2021

Keir N. Barros-Bradford, Public Defender, Philadelphia, for appellant.

Owen W. Larrabee, Public Defender, Philadelphia, for appellant.

Aaron J. Marcus, Public Defender, Philadelphia, for appellant.

Katherine A. Muns, Public Defender, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Jonathan M. Levy, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., OLSON, J., and STRASSBURGER, J.^*

OPINION BY OLSON, J.:

Appellant, Toby Malloy, appeals from the judgment of sentence entered on February 24, 2020 in the Criminal Division of the Court of Common Pleas of Philadelphia County. We vacate and remand.

Appellant was arrested on February 28, 2019 and charged with possession of a firearm without a license, 18 Pa.C.S.A. § 6106, and carrying a firearm on a public street in Philadelphia, 18 Pa.C.S.A. § 6108. Prior to a stipulated bench trial, Appellant moved to suppress a firearm and certain statements he made to law enforcement officers. On February 24, 2010, the trial court convened a hearing on the suppression motion and, thereafter, made the following findings of fact in a written opinion prepared pursuant to Pa.R.A.P. 1925(a).

On February 24, 2020, [the trial c]ourt held an evidentiary hearing on [Appellant's] motion to suppress, through which [Appellant] sought to suppress a firearm and his statements to law enforcement. At the hearing, the Commonwealth presented the testimony of Philadelphia Police Officer Stephen Henry, which [the trial c]ourt found to be credible based on his demeanor and the substance of his uncontradicted testimony. The evidence at the hearing established the following facts.

During the early morning of February 28, 2019, Officer Henry was on routine patrol near the 1100 block of Olney Avenue in Philadelphia. At approximately 3:00 a.m., after noticing that a passing car appeared not to have a license plate, Officer Henry activated his patrol car's lights and sirens and pulled over the vehicle. As he walked towards it, Officer Henry saw a license tag on the car's rear windshield. He noticed that the tag was not properly displayed and secured, which he knew to be a violation of Pennsylvania's [Motor] Vehicle Code[, 75 Pa.C.S.A. § 1332 (display of registration plate)]. Officer Henry also observed several occupants within the car, including [Appellant], who was seated in the rear behind the driver. Officer Henry approached the driver and told him that the car did not have a license plate on the back. The driver responded that he had [obtained the car just two] days prior and still needed to get screws for the license plate.

Continuing his investigation, Officer Henry asked [Appellant] to roll down the passenger window on the driver's side. He then asked [Appellant] for identification, and [Appellant] responded by moving to pull a lanyard out from his hooded sweatshirt. When Officer Henry saw the lanyard, he immediately asked [Appellant] if he had a firearm on him. Officer Henry asked the question because, in his experience, it was common for people who worked in armed security positions at local bars to keep their identification badges in lanyards. [Appellant] answered that he did have a firearm and further explained that he had it because he worked in a security position at a bar named Bananas, where he and the other occupants of the car had just finished working for the day. Officer Henry was familiar with the bar and knew it to be a legitimate establishment that employed security guards. When Officer Henry asked where the firearm was located, [Appellant] responded that it was on his right hip. At that point, for his own safety and for the safety of the vehicle's other occupants, Officer Henry asked [Appellant] to exit the vehicle so that he could secure the firearm before continuing with his investigation. Officer Henry testified that it was routine for police officers to remove someone from a vehicle upon learning that the person was in possession of a weapon.

At the time Officer Henry secured the weapon, he again asked [Appellant] for his identification documents.^[1] [Appellant] responded by giving Officer Henry and "Act 235" card.¹ However, when Officer Henry reviewed the card, he noticed that the card had expired in September of 2013. [Appellant] claimed that he had another Act 235 card at home. Over the next 15 to 20 minutes, Officer Henry proceeded to run checks on [Appellant] to determine whether he had a valid Act 235 card or a license to carry [a firearm], including by contacting local detectives and the Pennsylvania State Police. The checks run by Officer Henry revealed that [Appellant's] Act 235 certification had expired.

Officer Henry arrested [Appellant] on charges related to the unlawful possession of a firearm but did not issue a citation to the driver of the vehicle, who had provided documentation establishing that he had just recently purchased the vehicle, consistent with his prior statements.

¹ Act 235 refers to the Lethal Weapons Training Act, which was enacted to provide for the "education, training, and certification of such privately employed agents who, as an incidence to their employment, carry lethal weapons." Act. No. 1974-235, P.L. 705 (Oct. 10, 2974, 22 P.S. § 42(b).

Trial Court Opinion, 6/8/20, at 2-4 (footnote in original; record citations omitted).

At the conclusion of the hearing, the trial court denied suppression and Appellant proceeded to his stipulated bench trial on the same day. The court found Appellant guilty of the above-referenced charges and sentenced him to five years of reporting probation.

Appellant filed a timely appeal and, pursuant to order of court, a timely concise statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). The court issued its Rule 1925(a) opinion on June 8, 2020.

In his brief, Appellant raises the following question for our review.

Should not the firearm and Appellant's statements have been suppressed as fruits of the poisonous tree where police illegally prolonged a routine traffic stop without reasonable suspicion to conduct an unrelated investigation into whether [Appellant] was legally allowed to carry a firearm?

Appellant's Brief at 3.

Appellant alleges on appeal that the trial court erred in denying his motion to suppress certain statements and a firearm recovered from him following the traffic stop that occurred on February 28, 2019.

Our standard and scope of review is as follows.

[In reviewing an order that denied a motion to suppress, an appellate court must determine] 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 ... 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.

Commonwealth v. Benitez , 218 A.3d 460, 469-470 (Pa. Super. 2019) (citation omitted).

On appeal, Appellant concedes that Officer Henry possessed lawful justification to initiate the February 28, 2019 traffic stop and to undertake certain additional actions related to officer safety and Motor Vehicle Code enforcement. Nevertheless, Appellant asserts that Officer Henry improperly prolonged the stop when he detained and questioned Appellant's legal authority to possess a firearm in the absence of reasonable suspicion that Appellant had engaged in criminal activity. As such, Appellant claims that the trial court erred in denying his motion to suppress.

For its part, the trial court concluded that Officer Henry did not unlawfully prolong the traffic stop, finding that the duration of the stop was reasonable and that Officer Henry's questions regarding Appellant's authority to carry a firearm were justified by concerns for officer safety and constituted ordinary lines of inquiry incident to a traffic stop which police officers are permitted to pursue. See Trial Court Opinion, 6/8/20, at 7-8. In the alternative, the trial court concluded that Officer Henry had reasonable suspicion to support a separate investigative detention relating to Appellant's possession of the firearm. See id . at 8.

We begin our analysis by reviewing the February 28, 2019 traffic stop.² On February 28, 2019 at approximately 3:00 a.m., Officer Henry was on routine patrol when he observed a vehicle that did not have a license plate affixed to it. Based upon this observation, Officer Henry positioned his cruiser behind the vehicle and activated his lights and sirens to summon the vehicle to a stop. After the vehicle came to rest, Officer Henry approached the car and proceeded to speak to the driver and, subsequently, Appellant.

When a police officer forcibly stops a motor vehicle, the stop constitutes a "seizure" within the meaning of the Fourth Amendment and activates constitutional protections against unreasonable searches and detentions. Whren v. United States , 517 U.S. 806, 809–810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). In Commonwealth v. Feczko , 10 A.3d 1285 (Pa. Super. 2010) (en banc ), appeal denied , 611 Pa. 650, 25 A.3d 327 (2011), this Court addressed the requisite legal...