Com. v. Arrington, W.

J-A18032-19

                                   

  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  WILLIAM ARRINGTON,                           :
                                               :
                       Appellant               :       No. 1117 WDA 2018

         Appeal from the Judgment of Sentence Entered July 10, 2018
             in the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0002493-2017

BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

OPINION BY MUSMANNO, J.:                                  FILED JUNE 09, 2020

       William Arrington (“Arrington”) appeals from the judgment of sentence

entered following his convictions of one count each of firearms not to be

carried without a license, disregard traffic lane, failure to keep right, and

possession of drug paraphernalia, and two counts each of possession of a

controlled substance and possession with intent to deliver.1 We affirm in part,

reverse in part, and remand for further proceedings.

       On October 25, 2016, Pittsburgh Police Officers Gino Macioce (“Officer

Macioce”) and Rob Connors (“Officer Connors”) (collectively, “the officers”)

were on patrol in the Homewood neighborhood of Pittsburgh. At around 2:00

a.m., the officers observed Arrington’s vehicle driving towards them in their

lane of travel. Arrington’s vehicle remained in the incorrect lane of travel for

several seconds before returning to the correct side of the road. The officers

____________________________________________


1 See 18 Pa.C.S.A. § 6106(a)(1); 75 Pa.C.S.A. §§ 3309(4), 3301(a); 35 P.S.

§§ 780-113(a)(32), (a)(16), (a)(30).
J-A18032-19



suspected that Arrington was driving under the influence of drugs or alcohol

and conducted a traffic stop.

      When the officers approached Arrington’s vehicle, they witnessed

Arrington exhibit several signs of intoxication, and asked Arrington to step out

of the vehicle.     Arrington failed to immediately respond, and the officers

removed Arrington from the vehicle, conducted a pat down search, and placed

him in handcuffs.

      Officer Connors supervised Arrington, at the rear of Arrington’s vehicle,

while Officer Macioce ran Arrington’s name through the National Crime

Information Center (“NCIC”). The NCIC search revealed that Arrington had a

revoked concealed-carry permit.     The officers asked Arrington if he was in

possession of any weapons, which Arrington denied. Officer Macioce searched

the vehicle’s passenger compartment, and discovered a handgun in a closed

shoe box that was sitting on the vehicle’s back seat. Officer Macioce ended

his search, and ran the handgun’s serial number through the NCIC, which

indicated that the weapon was stolen.

      The officers placed Arrington under arrest, and conducted a second

search of Arrington and the vehicle. Officer Connors discovered U.S. currency

and a stamp bag of heroin in Arrington’s pockets. Officer Macioce discovered

81 bags of heroin, U.S. currency, and a digital scale in the vehicle’s center

console, and four cell phones on the driver and passenger seats.        A third

Pittsburgh Police Officer arrived and transported Arrington to a hospital for a

blood draw, which he refused.

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      Arrington filed a pre-trial suppression Motion, challenging the search of

his vehicle, which the trial court denied. Following a non-jury trial, Arrington

was found guilty of the above-mentioned offenses. The trial court sentenced

Arrington to an aggregate term of fifteen months of probation. Arrington filed

a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of errors complained of on appeal.

      On appeal, Arrington raises the following questions for our review:

      I. Whether the police had probable cause of a [M]otor [V]ehicle
      [C]ode infraction to support initially stopping [] Arrington beyond
      the momentary and minor actions testified to?

      II. The government searched [] Arrington’s vehicle while he was
      handcuffed behind the vehicle, out of reach. Was the search
      supported by reasonable, articulable suspicion that [] Arrington
      was dangerous and may have gained immediate control of a
      weapon in his vehicle?

      III. At the time police searched his vehicle incident to arrest, was
      [] Arrington unsecured and within reaching distance of the
      passenger compartment[,] or was it reasonable to believe the
      vehicle contained additional evidence of his possessing a firearm?

      IV. Did the trial court err in denying [] Arrington’s suppression
      [M]otion[,] because police conducted the search for criminal
      investigatory, rather than non-criminal inventory, purposes?

      V. Given the momentary and minor nature of [] Arrington’s
      violation of the [M]otor [V]ehicle [C]ode, was the evidence
      insufficient to prove his guilt beyond a reasonable doubt?

      VI. Where a gun was found within a shoebox on the back seat,
      and drugs were found in the center console of a rental vehicle,
      was the evidence insufficient to prove [] Arrington possessed
      these items beyond a reasonable doubt[,] without any evidence
      of [] Arrington’s knowledge of, or intent to possess, these items?

Brief for Appellant at 6-7 (issues renumbered).

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      Arrington’s first four claims challenge the trial court’s denial of his pre-

trial Motion to suppress evidence.

             We review the trial court’s denial of a motion to suppress to
      determine whether the record supports the trial court’s factual
      findings and whether it reached its legal conclusions in error. If
      the record supports the trial court’s findings of fact, we will reverse
      only if the trial court’s legal conclusions are incorrect.

Commonwealth v. Fleet, 

, 843 (Pa. Super. 2015) (citations

and quotation marks omitted).

      In his first claim, Arrington alleges that the officers lacked probable

cause to stop his vehicle.       See Brief for Appellant at 53-56.              Citing

Commonwealth v. Garcia, 

 (Pa. Super. 2004), Arrington

argues that his violation of the Motor Vehicle Code was “minor and

momentary.”     Brief for Appellant at 55.      Arrington directs us to Officer

Macioce’s testimony that Arrington’s vehicle crossed the centerline for

“seconds,” and posed no safety hazard to other vehicles. 

 Arrington claims

that he did not swerve, fishtail, or otherwise violate the Motor Vehicle Code,

beyond momentarily crossing the centerline. Id. at 55-56.

      Section 3301(a) of the Motor Vehicle Code provides, in relevant part,

that “a vehicle shall be driven upon the right half of the roadway….”              75

Pa.C.S.A. § 3301(a). This Court has previously held that a police officer has

probable cause to believe that Section 3301(a) has been violated where the

officer witnesses a driver’s vehicle cross the double-yellow centerline into the

oncoming lane, and remain there for approximately 2-3 seconds, while

another vehicle is approaching in the oncoming lane.         Commonwealth v.

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J-A18032-19



Enick, 

 (Pa. Super. 2013). But see 

 (stating

that “[o]ur analysis here does not foreclose the possibility that a momentary

and minor violation of § 3301 might, in a different case, be insufficient to

establish probable cause for a vehicle stop.”).

      Here, Officer Macioce testified that Arrington’s vehicle crossed the

double-yellow centerline, into the oncoming lane, and the entirety of

Arrington’s vehicle travelled in the oncoming lane for more than two seconds.

See N.T., 2/14/18, at 7-8, 35. Additionally, Arrington’s vehicle was in the

wrong lane as he approached the officers’ vehicle, which was less than a city

block away. Id. at 8. Officer Macioce testified that the officers’ vehicle would

not have been able to continue in their direction of travel had Arrington

maintained his vehicle’s position in the wrong lane.       Id.   Therefore, we

conclude that the officers had probable cause to believe that Arrington was in




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J-A18032-19



violation of Section 3301(a). See Enick, supra.2

       In his second claim, Arrington alleges that the officers’ initial search of

his vehicle was unconstitutional, and any evidence found during the search

should have been suppressed at trial.            See Brief for Appellant at 26-42.

Arrington argues that his initial interaction with the officers was an

investigatory stop, and the officers lacked reasonable suspicion that he was

dangerous and able to gain control of a weapon. Id. at 27-42. Arrington

points out that he made no furtive movements, was not overtly nervous, and

did not make any actions, or display any characteristics, that would indicate

he was armed and dangerous. Id. at 31-39. Arrington states that after he

was removed from the vehicle, he was immediately handcuffed, moved to the



____________________________________________


2 We acknowledge Arrington’s citation to   Garcia, 

, and find it
inapposite to Arrington’s case. In Garcia, this Court held that a defendant’s
“momentary and minor” crossing of a traffic line does not give an officer
probable cause to conduct a traffic stop under Section 3309(1) of the Motor
Vehicle Code. 

. Here, Arrington was stopped under Section 3301
of the Motor Vehicle Code. In Enick, we explained that

       [Section] 3309(1) of the Vehicle Code requires motorists to
       maintain a single lane “as nearly as practicable.” Thus, the
       statutory language does not foreclose minor deviations. In
       comparison, § 3301 provides that “a vehicle shall be driven on the
       right half of the roadway” subject to exceptions that are not
       implicated in this case. … Since the language of § 3301 does not
       include language allowing for unspecified deviations from the rule,
       we need not analyze whether [the defendant] complied with §
       3301 “as nearly as practicable.”

Enick, 

 (citations omitted).


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J-A18032-19



rear of his vehicle, out of reach of the passenger compartment, and supervised

by Officer Connors. Id. at 39-41.

            [I]t is hornbook law that the Fourth Amendment to the
     United States Constitution[,] as well as Article I, § 8 of the
     Pennsylvania Constitution[,] protect citizens from unreasonable
     searches and seizures. Warrantless searches and seizures … are
     unreasonable per se, unless conducted pursuant to specifically
     established and well-delineated exceptions to the warrant
     requirement. Katz v. United States, 

, 357 …
     (1967). One such exception, the Terry [v. Ohio, 

     (1968),] “stop and frisk,” permits a police officer to briefly detain
     a citizen for investigatory purposes if the officer “observes unusual
     conduct which leads him to reasonably conclude, in light of his
     experience, that criminal activity may be afoot.” … Terry[, 

].

           Terry further held that “when an officer is justified in
     believing that the individual whose suspicious behavior he is
     investigating at close range is armed and presently dangerous to
     the officer or to others[,]” the officer may conduct a pat down
     search “to determine whether the person is in fact carrying a
     weapon.” Terry, 392 U.S. at 24…. “The purpose of this limited
     search is not to discover evidence of crime, but to allow the officer
     to pursue his investigation without fear of violence.” Adams v.
     Williams, 

, 146 … (1972).

           In order to conduct an investigatory stop, the police must
     have reasonable suspicion that criminal activity is afoot. Terry,
     

. In order to determine whether the police had
     reasonable suspicion, the totality of the circumstances—the whole
     picture—must be considered. United States v. Cortez, 

, 417 … (1981). “Based upon that whole picture[,] the
     detaining officers must have a particularized and objective basis
     for suspecting the particular person stopped of criminal activity.”
     

 at 417-[18]…. To conduct a pat down for weapons, a limited
     search or “frisk” of the suspect, the officer must reasonably
     believe that his safety or the safety of others is threatened. If
     either the seizure (the initial stop) or the search (the frisk) is found
     to be unreasonable, the remedy is to exclude all evidence derived
     from the illegal government activity. The Terry totality of the
     circumstances test applies to traffic stops or roadside encounters
     in the same way that it applies to typical police encounters.

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J-A18032-19


Commonwealth v. Simmons, 

 (Pa. Super. 2011) (some

citations and quotation marks omitted; paragraph break and brackets

omitted). Our decision is guided by several notable cases from this Court that

contain similar factual patterns to the case sub judice.

       In Commonwealth v. Rosa, 

 (Pa. Super. 1999), a

Philadelphia police officer stopped a vehicle containing three adult males.

When the officer pulled the vehicle over, “he observed [one of the men]

‘looking back, and moving around, moving forward, and looking back—just

moving around a lot.’”         

.       After approaching the vehicle, he

observed, in plain view, two knives, and several crossbow arrows. 

 The

officer directed the men to step out of the car,3 and discovered two handguns

under the backseat of the vehicle. 

       This Court held that the officer was justified in his search, because (1)

the traffic stop occurred late at night; (2) the driver could not produce his

driver’s license, vehicle registration, and proof of insurance; (3) the vehicle’s

occupants possessed three knives and several crossbow arrows; and (4) the

man in the back seat was “extremely active … as [the officer] approached the

vehicle.” 

.




____________________________________________


3The officer discovered a third knife after the men had exited the vehicle.
Rosa, 

.


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J-A18032-19


       Similarly, we have held that a defendant’s “furtive movement of leaning

forward and appearing to conceal something under his seat, along with his

extreme nervousness and [a] night time stop, was sufficient to warrant a

reasonable police officer to believe that his safety was in danger and that [the

defendant] might gain immediate control of a weapon.” 4 Buchert, 68 A.3d

at 916-17; see also Commonwealth v. Simmons, 

 (Pa.

Super. 2011) (finding reasonable suspicion where the traffic stop was

conducted at night, in a high-drug and high-crime area, and the officer

witnessed the defendant make the furtive movement of reaching under his

seat and then towards his chest, consistent with concealing a weapon); In re

O.J., 

 (Pa. Super. 2008) (finding reasonable suspicion

where the traffic stop occurred at night, the defendant initially failed to stop

his vehicle when signaled by police, and the defendant made “rapid and furtive

hand movements over the [vehicle’s] console,” which had been left partially

opened); Commonwealth v. Murray, 

 (Pa. Super. 2007)

(finding reasonable suspicion where the traffic stop occurred at night and in a

high-narcotics area, the defendant’s vehicle had tinted windows, and the

defendant made “a lot of movement in the vehicle” as the officer was

approaching).


____________________________________________


4 The Court also noted one officer’s testimony that the area of the stop was a

“high narcotics area,” and that the defendant was so nervous that the officer
could see the defendant’s “heavy breathing and rapid heartbeat.”
Commonwealth v. Buchert, 

 (Pa. Super. 2013).

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J-A18032-19


      In contrast, this Court in Commonwealth v. Cartagena, 

(Pa. Super. 2013), found that an officer lacked reasonable suspicion to

conduct a warrantless search of a vehicle where (1) the stop occurred at night,

(2) the defendant’s vehicle had tinted windows, and (3) the defendant

appeared “extremely nervous.” 

. The Cartagena court noted that

there was no testimony indicating that the defendant had made furtive

movements, that the stop occurred in a high-crime area, or that the police

saw any weapons in the vehicle prior to conducting the search. 

 at 304-

06; see also Commonwealth v. Moyer, 

 (Pa. Super.

2008) (holding that evidence that a vehicle’s occupants engaged in furtive

movements and appeared nervous was insufficient to establish reasonable

suspicion); Commonwealth v. Reppert, 

 (Pa. Super.

2002) (same).

      The circumstances that supported reasonable suspicion in Rosa,

Buchert, Simmons, In re O.J., and Murray are mostly absent here. The

facts before us align more closely with those in Cartagena, Moyer, and

Reppert. Although the stop occurred late at night and in a high-crime area,

Arrington was able to produce his driver’s license and the car’s rental

agreement; the officers did not observe any weapons in plain view; Arrington

did not display extreme nervousness; and Arrington made no furtive

movements. Indeed, the sole factors in support of reasonable suspicion were

that the stop occurred at night, and in a high-crime neighborhood.


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J-A18032-19


      In support of its Order denying Arrington’s Motion, the trial court set

forth several additional factors which, in its view, supported the officers having

reasonable suspicion to search Arrington’s vehicle for a weapon.             See

“Findings of Fact and Order of Court,” 3/22/18, 6-7. The trial court pointed

out that (1) Arrington’s vehicle was not in park when the officers approached;

(2) Arrington did not immediately comply when the officers asked him to place

his vehicle in park; (3) Arrington was “staring around” and was non-

responsive to commands; (4) Arrington was “reaching around” in the vehicle

in a slow and deliberate manner; and (5) Officer Macioce testified that

Arrington’s actions were indicative of intoxication or nervousness. See 

      We disagree that these factors support reasonable suspicion that

Arrington was in possession of a firearm. While Officer Macioce testified that

Arrington made some actions that were “consistent with nervousness,” he also

testified that other actions “were consistent with a DUI,” and that “the first

thing [he] was thinking about was DUI.” N.T., 2/14/18, at 16. Additionally,

Officer Macioce testified that Arrington’s movements were “slow and

deliberate.”   Id. at 23.   The Commonwealth presented no evidence that

Arrington’s movements were sudden, indicative of reaching for a weapon, or

“furtive.” See id. at 11-31. Although Arrington’s actions may have indicated

that he was nervous, the nature of Arrington’s actions does not support a

conclusion that he was in possession of a weapon. See, e.g., Cartagena, 

 (stating that “[i]t is the rare person who is not agitated to


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J-A18032-19


some extent when stopped by police, even if the driver is a law-abiding citizen

who simply failed to notice or repair a broken taillight or was unaware that he

or she was driving above the speed limit. Whether described as nervousness,

apprehension, concern or otherwise, forced interaction with a police officer is

not an everyday occurrence for the average citizen.”).

      Moreover, “[w]e are … mindful of the legal standard requiring that we

view facts not in isolation but in light of the totality of the circumstances when

determining whether the police officers here had reasonable suspicion to have

concern for their safety.” Cartagena, 

 (emphasis added).

Here, Arrington was in handcuffs, positioned at the rear of his vehicle, out of

reach of the passenger compartment, and being supervised by Officer

Connors, with Officer Macioce nearby. Therefore, Arrington posed no threat

to the officers’ safety.

      Based on the totality of the circumstances, we conclude that the officers

lacked reasonable suspicion to conduct a protective weapons search of

Arrington and the passenger compartment of his vehicle.          See 

    Therefore, the officers’ first search was illegal, and the handgun

should have been suppressed. Simmons, 

. Moreover, without

this evidence, the officers would not have conducted the second search, and

discovered the U.S. currency, drugs, and drug paraphernalia. In accordance

with the exclusionary rule, all evidence obtained from this second search of

Arrington and his vehicle (i.e., the U.S. currency and stamp bag of heroin


                                     - 12 -
J-A18032-19


discovered on Arrington, and the handgun, 81 bags of heroin, U.S. currency,

digital scale, and four cell phones discovered in Arrington’s vehicle) should

also have been suppressed.        

   Accordingly, we reverse Arrington’s

judgment of sentence for firearms not to be carried without a license,

possession of drug paraphernalia, possession of a controlled substance, and

possession with intent to deliver. Further, we order suppression of the U.S.

currency and stamp bag of heroin discovered on Arrington, and the handgun,

81 bags of heroin, U.S. currency, digital scale, and four cell phones discovered




                                     - 13 -
J-A18032-19


in Arrington’s vehicle, and remand for further proceedings.5, 6

____________________________________________


5 My learned colleague states in the dissent that we failed to address the issue

of whether Arrington had a privacy interest in the area searched. As aptly
noted in the dissent, since Arrington was charged with a possessory offense,
he automatically has standing to challenge suppression of the items seized,
but Arrington must also have a reasonable expectation of privacy in the
vehicle’s contents. See Commonwealth v. Viall, 

 (Pa.
Super. 2005). Nevertheless, we did not address this issue, because it is not
properly before us. See Commonwealth v. Johnson, 

 (Pa.
Super. 2011) (stating that “claims not raised in the trial court may not be
raised for the first time on appeal.”).
       At the suppression hearing, the Commonwealth bore the initial burden
of production – i.e., the burden of producing evidence that Arrington lacked a
protected privacy interest in the vehicle. See Commonwealth v. Enimpah,

 (Pa. 2014) (holding that before the defendant must
prove a privacy interest in the area searched, the Commonwealth must initially
satisfy its burden of production by presenting evidence showing that the
defendant lacked any protected privacy interest; where the Commonwealth
fails to bear this initial burden, the burden never shifts to the defendant to
prove his privacy interest).
       Here, because the Commonwealth never produced evidence showing
that Arrington lacked a protected privacy interest, the burden never shifted to
Arrington to rebut that evidence. See 

 To be sure, and as
noted in the dissent, the Commonwealth presented evidence that Arrington’s
vehicle was a rental, and Officer Macioce was not sure who had rented the
vehicle. See N.T., 2/14/18, at 15, 34-35, 37, 39-40. However, Officer
Macioce did not state that the vehicle was not rented by Arrington, or that
Arrington otherwise lacked the authority to operate the vehicle. See, e.g.,
Commonwealth v. Maldonado, 

 (Pa. Super. 2012).
Nor did the Commonwealth challenge Arrington’s privacy interest in the
vehicle. See 

 (stating that “[t]he Commonwealth
may concede the privacy interest, choosing to contest only the legality of
police conduct; if it does so, the defendant’s ‘reasonable expectation of
privacy’ need not be established.”). As a result, Arrington’s burden of
persuasion was never triggered, see id.; this issue was never raised; and it
would be improper for us to address it on appeal. See 

6 In light of our disposition, we need not address Arrington’s third and fourth

claims.




                                          - 14 -
J-A18032-19


       Arrington’s fifth and sixth issues challenge the sufficiency of the

evidence to support each of his convictions.7 We apply the following standard

of review when considering a challenge to the sufficiency of the evidence:

              [W]hether[,] viewing all the evidence admitted at trial in the
       light most favorable to the verdict winner, there is sufficient
       evidence to enable the fact-finder to find every element of the
       crime beyond a reasonable doubt. In applying the above test, we
       may not weigh the evidence and substitute our judgment for the
       fact-finder. In addition, we note that the facts and circumstances
       established by the Commonwealth need not preclude every
       possibility of innocence. Any doubts regarding a defendant’s guilt
       may be resolved by the fact-finder unless the evidence is so weak
       and inconclusive that as a matter of law no probability of fact may
       be drawn from the combined circumstances. The Commonwealth
       may sustain its burden of proving every element of the crime
       beyond a reasonable doubt by means of wholly circumstantial
       evidence. Moreover, in applying the above test, the entire record
       must be evaluated and all evidence actually received must be
       considered. Finally, the finder of fact[,] while passing upon the
       credibility of witnesses and the weight of the evidence produced,
       is free to believe all, or part or none of the evidence.

Commonwealth v. Melvin, 

 (Pa. Super. 2014) (citation

omitted).

       Arrington alleges that the evidence was insufficient to support his

convictions for disregard traffic lane and failure to keep right. See Brief for

Appellant at 57. In support of this claim, Arrington restates the argument he

set forth in his first claim, i.e., that his “momentary and minor” crossing of




____________________________________________


7 We will limit our analysis to Arrington’s convictions for the traffic offenses,

as we have already reversed the remaining sentences.

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J-A18032-19


the centerline did not constitute a violation of Sections 3301(a) or 3309(4) of

the Motor Vehicle Code. 

       Section 3301(a) provides that “[u]pon all roadways of sufficient width,

a vehicle shall be driven upon the right half of the roadway,” except for when

one of six enumerated exceptions applies.          75 Pa.C.S.A. § 3301(a).     An

officer’s testimony that the defendant’s vehicle crossed the double-yellow

centerline into the oncoming lane, and remained there for approximately 2-3

seconds, while another vehicle approached in the oncoming lane, is sufficient

to support a conviction under Section 3301(a). See Enick, 

.

       Section 3309(4) provides that “[o]fficial traffic-control devices may be

installed prohibiting the changing of lanes on a section of roadway and drivers

of vehicles shall obey the directions of every such device.”        75 Pa.C.S.A.

§ 3309(4).

       Here, Officer Macioce testified that Arrington’s entire vehicle crossed the

double-yellow centerline, into the oncoming lane, and remained there for at

least two seconds. N.T. (suppression), 2/14/18, at 7-8, 35.8 Arrington has

not alleged that the roadway was of insufficient width, or that his actions

complied with one of the six exceptions. Additionally, the solid double-yellow

pavement marking is a “traffic control device” that prohibits the changing of



____________________________________________


8 The transcript of testimony from the February 14, 2018 suppression hearing

was incorporated into the non-jury trial record as Commonwealth Exhibit 4.
See N.T., 4/12/18, at 7.

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J-A18032-19


lanes.     See PennDOT, Bureau of Driver Licensing, Pennsylvania Driver’s

manual, https://www.dot.state.pa.us/Public/DVSPubsForms/BDL/BDL%20Ma

nuals/Manuals/PA%20Drivers%20Manual%20By%20Chapter/English/PUB%

2095.pdf, page 22. Accordingly, the evidence was sufficient to support

Arrington’s convictions under Section 3301(a) and 3309(4).     See 

         Judgment of sentence affirmed in part and reversed in part.   Case

remanded for further proceedings. Jurisdiction relinquished.

         Judge Nichols joins the opinion.

         Judge Bowes files a dissenting opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2020




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