Commonwealth v. Young

1

COMMONWEALTH OF PENNSYLVANIA v. JANNAI YOUNG Appellant

No. 2992 EDA 2022

No. J-A21041-23

Superior Court of Pennsylvania

February 8, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered September 15, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0004290-2021

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM

BENDER, P.J.E.

Appellant Jannai Young, appeals from the aggregate judgment of sentence of three to six years' incarceration, followed by one year probation, imposed after a jury convicted him of carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(1). On appeal, Appellant challenges the trial court's denial of his pretrial motion to suppress evidence obtained during what Appellant claims was an illegal stop, seizure, and frisk. After careful review, we affirm.

Briefly Appellant was arrested and charged with the above-stated offense after a vehicle in which he was riding was stopped by police. During the stop, Appellant was removed from the vehicle and frisked, which revealed a firearm in his possession. It was later discovered that Appellant was not licensed to carry that weapon.

Prior to trial, Appellant filed a motion to suppress the evidence recovered during his stop and frisk, and the court conducted a suppression hearing on April 20, 2022. On June 2, 2022, the court issued an order denying Appellant's motion to suppress. His case proceeded to a jury trial and, on August 12, 2022, Appellant was convicted of possessing a firearm without a license. On September 15, 2022, he was sentenced to the term set forth supra.

On September 26, 2022, Appellant filed a timely, post-sentence motion. Initially, this motion was not docketed or included in the certified record. However, the docket contains an order titled, "Notice Of Hearing," that was filed September 28, 2022, which directed the Commonwealth to show cause why the "within Post Sentence Motion, should not be granted." Order, 9/28/22, at 1 (unnumbered). Additionally, on October 20, 2022, an "Order Denying Defendant's Post-Sentence Motion" was entered. On November 18, 2022, the instant, counseled notice of appeal was filed.

On February 28, 2023, this Court issued a rule to show cause why this appeal should not be quashed as untimely filed on November 18, 2022, from the judgment of sentence imposed on September 15, 2022, given that the docket and record did not contain any post-sentence motion filed by Appellant. See Pa.R.A.P. 105(b) (providing that an appellate court "may not enlarge the time for filing a notice of appeal"); Pa.R.A.P. 903(c)(3) ("In a criminal case in which no post-sentence motion has been filed, the notice of appeal shall be filed within 30 days of the imposition of the judgment of sentence in open court."). On March 3, 2023, Appellant's counsel filed a response stating that a timely post-sentence motion had been filed on Monday, September 26, 2022, but it was not properly docketed or included in the certified record. On that same date, this Court received a supplemental record containing a corrected trial court docket indicating that a post-sentence motion was filed on September 26, 2022. The supplemental record also contained that post-sentence motion with a date stamp of September 26, 2022. On May 1, 2023, this Court entered an order discharging the show cause order and deferring the timeliness issue to the merits panel for review. Given this record, we conclude that Appellant timely-filed a post-sentence motion, and his appeal was timely filed from the court's order denying it.

On December 8, 2022, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and he timely complied. The court thereafter filed a Rule 1925(a) opinion. Herein, Appellant states two issues for our review, which we reorder for ease of disposition:

1. Whether this appeal was untimely filed such that it should be quashed?

2. Whether the trial court erred by denying [A]ppellant's motion to suppress physical evidence and statements where law enforcement lacked reasonable suspicion to stop [A]ppellant and probable cause to arrest him based solely upon information from a confidential informant [(CI)] that [A]ppellant was in possession of a firearm, in violation of the United States and Pennsylvania Constitutions?

Appellant's Brief at 3.

Given our discussion and conclusion, supra, that Appellant's appeal is timely, we need not discuss his first issue any further.

In regard to Appellant's second issue, he challenges the trial court's denial of his pretrial motion to suppress evidence.

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 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 plenary review.

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (cleaned up).

Instantly, Appellant presents two distinct claims, first challenging the legality of the stop of the vehicle in which he was riding, and second arguing that, even if the stop of the vehicle was legal, it was unlawful for police to remove him from the vehicle and frisk him, which revealed that he possessed a gun. We will address each claim in turn, beginning by setting forth the findings of fact and conclusions of law of the suppression court:

1. On April 20, 2022, a suppression hearing was held wherein the Commonwealth elicited testimony from Captain Matthew Goldschmidt, Officer Thomas Geromichalos, and Officer Michael Smalarz.

*** 7. On August 3, 2021, at approximately 6:00 p.m., Captain Goldschmidt received a phone call from a [CI]…. N.T., 4/20/22[, at] 14.

8. The CI told Captain Goldschmidt that a male (later identified as [Appellant]) was in possession of a 9-millimeter handgun and that he was entering a white van with a Delaware registration tag. [Id.]

9. The CI relayed that the van was currently in the 2700 block of Mary Street, the alleyway behind the 2700 block of West Third Street. [Id. at] 14-15.

10. The area is considered a high drug and high crime area, with shootings, homicides, aggravated assaults, robberies, gun arrests, and similar violence. [Id. at] 27.

11. As the van was moving, the CI was dictating its movements to Captain Goldschmidt. The van traveled down Mary Street and then made a right turn onto the 200 block of Highland Avenue, where it traveled northbound down Highland Avenue towards the 900 block. [Id. at] 15.

12. Captain Goldschmidt radioed the information out to Officers Geromichalos and Smalarz, who were on patrol in that area. [Id.]

13. Within a matter of minutes, Officer Geromichalos radioed that he observed the vehicle in question exactly where the CI said it would be traveling. [Id. at] 18.

14. Captain Goldschmidt received a second radio call that a traffic stop was initiated on the right-hand shoulder of I-95 South. [Id. at] 20.

15. Captain Goldschmidt arrived at the location of the stop and observed the white van with Delaware tags, with an older female driver and [Appellant] and a young child in the back of the vehicle. [Id. at] 20.

16. Officer Geromichalos had walked back to his patrol vehicle in order to run the driver's license and registration while Officer Smalarz had placed himself on the driver's side of the car, namely in the rear where [Appellant] was seated. [Id. at] 21.

17. Officer Smalarz asked Captain Goldschmidt to come around to his side because he observed a bulge in [Appellant]'s waistband area and [Appellant's] demeanor was overly nervous and he was sweating profusely. [Id.]

18. Captain Goldschmidt acknowledged that most people are nervous when stopped by police; however, [Appellant's] nervous behavior was over and above the standard nerves. [Id.]

19. Captain Goldschmidt also observed the bulge in [Appellant's] waistband. [Id. at] 22.

20. Captain Goldschmidt observed Officer Smalarz ask [Appellant] to step out of the vehicle; he complied, and Officer Smalarz conducted a brief search for officer safety and recovered a 9-millimeter firearm from [Appellant's] waistband. [Id. at] 23.

21. The entire stop from start to finish was approximately fifteen minutes. [Id.]

22. With regard to the CI, Captain Goldschmidt testified that he has worked with the CI for a little over a year and that the CI has also worked with other officers in the Department for more years than he has. [Id. at] 24.

23. The CI normally relays the location of people who are carrying guns and/or narcotics. [Id. at] 25.

24. The CI's information has led to arrests as well as convictions and Captain Goldschmidt has personally had the occasion to verify and corroborate the information from the CI at least six or seven times prior to the information given in this case. [Id.]

25. Prior to the traffic stop of [Appellant], the CI previously relayed information to

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