Commonwealth v. Saunders

COMMONWEALTH OF PENNSYLVANIA v. OMAR SAUNDERS Appellant

No. 2192 EDA 2021

Superior Court of Pennsylvania

December 13, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered September 28, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000208-2021

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

MEMORANDUM

BOWES J.

Omar Saunders appeals from the judgment of sentence of three and one-half to seven years of incarceration imposed after the trial court convicted him of three violations of the Uniform Firearms Act. We affirm.

On November 18, 2020, Philadelphia Police Officer Matthew Ibbotson was patrolling in the high crime area of the 2500 block of West Indiana Avenue in the city of Philadelphia with his partner, Officer Washington.^[1] See N.T Suppression Hearing, 5/20/21, at 7-11. At 6:55 p.m., he spotted an illegally parked silver Honda vehicle with heavily tinted windows. Id. at 8-11-12. As he drove closer, the vehicle pulled out in front of him, making a right turn onto Indiana Avenue without utilizing a turn signal. Id. Accordingly, Officer Ibbotson initiated a traffic stop for three violations of the Motor Vehicle Code: illegal parking, unlawfully tinted windows, and failure to use a turn signal.^[2] Id. The vehicle immediately pulled over.

Officer Ibbotson approached the vehicle, found that Appellant was the sole occupant, informed him of the above-described traffic code violations, and requested his license and proofs of registration and insurance. Id. at 12. Appellant asked for permission to retrieve his license from his pocket, which Officer Ibbotson granted after Appellant stated that he did not have any weapons in the vehicle. Id. at 12-13. Believing that Appellant had no weapons in the vehicle, Officer Ibbotson told Appellant that "he [could] move about the car and get the documents that [he] asked him for." Id. at 13. At this time, Appellant reached over with his right arm to the glove box area while simultaneously dropping his left arm down by his feet and moving it in a motion that led the officer to believe that Appellant was "pushing something." Id. at 14. In response, Officer Ibbotson repositioned himself to the front of the car, where he shined his flashlight through the windshield. Id. at 13, 28. From this vantage point, Officer Ibbotson observed the handle of a gun protruding from under Appellant's seat, next to Appellant's left hand. Id. at 15, 28.

Since Appellant had misled the officers about the presence of the firearm in the vehicle and his left hand had been observed next to it, Officer Ibbotson became concerned for his and his partner's safety. Id. at 16. Accordingly, he used a hand signal to warn his partner about the risk while asking Appellant to turn off and exit the vehicle. Id. Once Appellant complied, Officer Ibbotson frisked Appellant, placed him in handcuffs, and retrieved Appellant's license from his wallet. Id. After Appellant was handcuffed, Officer Ibbotson asked him if he had a firearm permit. Id. at 29-30. Appellant responded that he did not, and the officers placed Appellant in the back of their vehicle "for officer safety" while they continued their investigation. Id. at 17, 23.

Officer Ibbotson retrieved the loaded black Taurus PT840 40-caliber handgun from Appellant's vehicle. The officer also ran a check to confirm that Appellant did not have a firearm permit, which also led to the discovery that the weapon was stolen. Id. at 24, 29-30. As a result of these findings, Officer Ibbotson placed Appellant under arrest and charged him with possession of a firearm prohibited, carrying a firearm without a license, and carrying a firearm on a public street in Philadelphia.

On April 16, 2021, Appellant filed an omnibus pretrial motion seeking suppression of the firearm on the grounds that the evidence was obtained in violation of his United States and Pennsylvania constitutional rights. See Omnibus Motion, 4/16/21, at 1. On May 20, 2021, the trial court held a hearing on the motion. Before any evidence was introduced, the trial court instructed defense counsel to state the grounds for his motion. In response, trial counsel cited to Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020), arguing "that the officers did [not] have reasonable suspicion to pull the car over, that the stop was prolonged, and that under the line of cases the officer did not have the legal justification to reach into the car and seize the firearm at the time that he did."^[3] N.T. Suppression Hearing, 5/20/21, at 6. Officer Ibbotson testified consistently with the above summarized facts.

At the conclusion of the hearing, defense counsel argued that the warrantless search was illegal pursuant to Alexander since there were no exigent circumstances established. Id. at 33-37. When questioned about the applicability of the plain view exception to the warrant requirement, defense counsel claimed that post-Alexander, the plain view exception no longer gave officers permission to conduct warrantless searches of vehicles absent exigent circumstances.^[4] Id. at 39-45. The Commonwealth disputed defense counsel's interpretation of Alexander, contending that the plain view doctrine was unaffected by that holding. Id. at 56. In the Commonwealth's view, the requirements of the plain view exception were met, and the weapon was lawfully recovered. Id. at 56-57. The trial court continued the hearing so that both sides could submit case law and briefs. Appellant submitted a brief reiterating the arguments he made at the hearing. See Letter Brief, 6/14/21, at 2-8.

On June 17, 2021, the trial court reconvened the suppression hearing and denied the suppression motion, explaining that it found Officer Ibbotson's testimony credible and that it agreed with the Commonwealth that Alexander did not alter the plain view exception to the warrant requirement. See N.T. Suppression Hearing, 6/17/21, at 4-6, 8. Applying the plain view exception to the warrant requirement, the trial court held that the firearm was legally retrieved since Officer Ibbotson observed the contraband in plain view from a lawful vantage point. Id. at 8.

On August 3, 2021, Appellant proceeded to a non-jury trial, at which he was convicted of the aforementioned firearms offenses. On September 28, 2021, Appellant was sentenced to an aggregate sentence of three and one half to seven years of imprisonment. This timely appeal followed. Both Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925.

Appellant raises the following issue for our review: "Did not the trial court err in denying Appellant's motion to suppress a firearm that was (1) the fruit of an illegal arrest and (2) seized from Appellant's car without a warrant where there were no exigent circumstances or right of access?" Appellant's brief at 3.

In his first claim, Appellant contests the legality of his arrest, contending he was illegally placed under arrest the moment he exited the vehicle and was placed in handcuffs. See Appellant's brief at 12. Since the investigation into the legality of Appellant's possession of the firearm continued after he exited the vehicle, Appellant contends that the officers arrested him before they obtained the necessary probable cause to justify the arrest. Id. at 15-16. Relying on Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), Appellant contends that Appellant's possession of a firearm alone was insufficient to justify arresting Appellant.^[5] Id. at 14. Meanwhile, the Commonwealth contends that Appellant's first argument is waived, since he argued that he was subject to an illegal arrest for the first time on appeal. See Commonwealth's brief at 7. We are constrained to agree with the Commonwealth.

It is well-established that "issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). This rule applies equally to appellants who raise "a new and different theory of relief for the first time on appeal." Commonwealth v. McFalls, 251 A.3d 1286, 1293 (Pa.Super. 2021). Our review of the certified record confirms that Appellant did not present the suppression court with an argument that the officers obtained his firearm through an illegal arrest. Accordingly, he raised this theory of relief for the first time on appeal and it is waived. See Commonwealth v. Prizzia, 260 A.3d 263, 270-71 (Pa.Super. 2021) (finding a suppression theory waived where the appellant failed to raise it in her pretrial motions or at the suppression hearing.).^[6] In his second claim, Appellant relies upon Alexander to attack the trial court's application of the plain view exception to the warrant requirement. See Appellant's brief at 19-22. Appellant acknowledges that, in Commonwealth v. McMahon, 280 A.3d 1069, 1074 (Pa.Super. 2022), we recently rejected the precise claim he advances by holding that Alexander did not supplant the plain view exception for automobiles. See Appellant's Reply Brief at 2-3. Appellant nonetheless suggests that we should overrule or overlook this binding precedent and apply Alexander as requiring the Commonwealth to demonstrate exigent circumstances before invoking the plain view exception in the context of automobile searches. Id. at 6-13. Meanwhile, the Commonwealth contends that McMahon is directly on point and should control our analysis of this issue. See Commonwealth's brief at 18-21. We agree with the Commonwealth.

In McMahon, police officers encountered the defendant on a routine patrol. McMahon, supra at 1070. Both officers were aware that the defendant did not possess a valid driver's license. Id. at 1070-71. Consequently, they conducted a traffic stop of defendant. Id. at...