Com. v. Tillery, S.

C
J-A27009-20


                                   

2021 Pa. Super. 53

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                             Appellant

                        v.

    STEVEN TILLERY

                             Appellee                   No. 1219 EDA 2019


                   Appeal from the Order Entered April 2, 2019
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0006849-2018


BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*

OPINION BY STABILE, J.:                               FILED: MARCH 26, 2021

        The Commonwealth appeals from the April 2, 2019 order entered in the

Court of Common Pleas of Philadelphia County, granting the motion to

suppress filed by Appellee, Steven Tillery.1 Upon review, we affirm.
     In Commonwealth v. Cartegena, 

63 A.3d 294

(Pa. Super. 2013) (en

banc), this Court reiterated:

        When reviewing the propriety of a suppression order, an appellate
        court is required to determine whether the record supports the
        suppression court’s factual findings and whether the inferences
        and legal conclusions drawn by the suppression court from those
        findings are appropriate. [Where the defendant] prevailed in the
        suppression court, we may consider only the evidence of the
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 In accordance with Pa.R.A.P. 311(d), the Commonwealth certified in its
notice of appeal that “this order terminates or substantially handicaps the
prosecution.” Commonwealth’s Notice of Appeal, 4/24/19.
J-A27009-20


      defense and so much of the evidence for the Commonwealth as
      remains uncontradicted when read in the context of the record as
      a whole. Where the record supports the factual findings of the
      suppression court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.
      However, where the appeal of the determination of the
      suppression court turns on allegations of legal error, the
      suppression court’s conclusions of law are not binding on an
      appellate court, whose duty it is to determine if the suppression
      court properly applied the law to the facts.

Id. at 298

(quoting In re O.J., 

958 A.2d 561

, 564 (Pa. Super. 2008) (en

banc) (in turn quoting Commonwealth v. Mistler, 

912 A.2d 1265

, 1268-69

(Pa. 2006) (additional citations omitted)). As this Court has explained, “Our

scope of review from a suppression ruling is limited to the evidentiary record

that was created at the suppression hearing.”           Commonwealth v.

Copenhaver,      

238 A.3d 509

,   513   (Pa.   Super.   2020)    (quoting

Commonwealth v. Rapak, 

138 A.3d 666

, 670 (Pa. Super. 2016) (alteration

and additional citation omitted)).

      As indicated in Cartegena, this Court must determine whether the

record supports the suppression court’s factual findings and whether the

inferences and legal conclusions drawn by the suppression court from those

findings are appropriate.   Ordinarily, we would look to the findings of fact

entered on the record at the conclusion of the suppression hearing. However,

in this case, the suppression court did not enter on the record a statement of




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findings of fact, as directed by Pa.R.Crim.P. 581.2         Therefore, because

Appellee prevailed in the suppression court, “we may consider only the

evidence of the defense and so much of the evidence for the Commonwealth

as remains uncontradicted when read in the context of the record as a whole.”

Cartegena, 63 A.3d at 298

. See also Commonwealth v. Millner, 

888 A.2d

680

, 685 (Pa. 2005) (where suppression court fails to issue specific findings

of fact, “the appellate court should consider only the evidence presented by

the prevailing party and so much of the evidence of the other side, as fairly

read in the context of the record as a whole, that remains uncontradicted.”)

       Appellee presented one witness at the suppression hearing, his brother,

Kalil Tillery (“Kalil”). Kalil indicated he was a passenger in the car operated

by Appellee at 1:30 a.m. on August 22, 2018. Notes of Testimony, 4/1/19,

at 30. The car was stopped by officers, including Commonwealth witness,

Officer Kanan, but the officers did not use their lights or sirens until Appellee

stopped the car.

Id. Kalil testified that

the officers did not say why they

stopped the car and did not ask Appellee for his license and registration.

Rather, from the time the officers approached the car, Officer Kanan was

talking to Appellee, saying that he knew him.

Id. at 31.

Officer Kanan asked


____________________________________________


2 Pa.R.Crim.P. 581(I) provides that “[a]t the conclusion of the hearing, the
judge shall enter on the record a statement of findings of fact and conclusions
of law as to whether the evidence was obtained in violation of the defendant’s
rights, or in violation of these rules or any statute, and shall make an order
granting or denying the relief sought.”


                                           -3-
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Appellee to get out of the car. Appellee asked why and the officer again asked

him to get out of the car. Appellee complied and the officer took him to the

back of the car. Kalil said that the officer did not ask Appellee if he had a

weapon in the car.

Id. Eventually, Kalil also

was removed from the car.

Id.

In addition to

Kalil’s testimony, there is Commonwealth evidence that

remained uncontradicted in the context of the record as a whole. For instance,

Appellee stopped his car in a parking spot outside a grocery store on the 6400

block of Woodland Avenue in Philadelphia, a block from the police station.

Officer Kanan, a two-year veteran of the department, stated he stopped

Appellee’s car and initiated an investigation because Appellee pulled the car

into the parking spot right in front of Cousin’s Supermarket without using a

turn signal. Officer Kanan admitted that upon approaching the car, he did not

observe any furtive movements, did not detect any odor of marijuana or

alcohol, and did not see any contraband or bulges in anyone’s clothes.

Id. at

7, 11, 14,

and 15. Officer Kanan searched the car and recovered a gun from

the center console of the car.

Id. at 9.

      Although the suppression court did not issue findings of fact, the court

did address the credibility of Officer Kanan in its Rule 1925(a) opinion. As our

Supreme Court has instructed, this Court cannot upset the credibility

determinations of the suppression court, “within whose sole province it is to

pass on the credibility of witnesses and the weight to be given their

testimony.” Commonwealth v. Poplawski, 

130 A.3d 697

, 711 (Pa. 2015).


                                     -4-
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      Here, the suppression court stated:

      [T]he court did not find the testimony of the Commonwealth’s lone
      witness to be credible. In addition to assessing his demeanor on
      the witness stand, the court found Officer Kanan’s testimony itself
      to be vague and conclusory (see, e.g., N.T. 04/01/19 at 7)
      (stating that he stopped Appellee for pulling into an “illegal
      parking spot” without elaboration), and internally inconsistent
      (see, e.g., N.T. 04/01/19 at 9, 22-25) (flip-flopping repeatedly
      on whether Appellee made the alleged statement about the gun
      before or after it was recovered, as well as the number of times
      he made such a statement). In sum, Officer Kanan’s testimony,
      in conjunction with his overall demeanor on the witness stand,
      rendered his testimony incredible. As such, for this reason alone,
      the court’s ruling should not be disturbed.

Suppression Court Rule 1925(a) Opinion, 2/18/20, at 8 (citations and some

capitalization omitted).   Again, it is within the suppression court’s sole

province to pass on witness credibility and this Court cannot upset credibility

determinations. 

Poplawski, 130 A.3d at 711

.

      At the conclusion of the proceedings on April 1, 2019, the court took the

matter under advisement.       The court reconvened the proceedings the

following day and entered an order granting Appellee’s motion to suppress,

announcing its conclusion of law, i.e., “The police did not have reasonable

suspicion or probable cause to stop the defendant and also remove him from

the car.” Notes of Testimony, 4/2/19, at 3. This timely appeal followed. The

Commonwealth and the suppression court complied with Pa.R.A.P. 1925.

      The Commonwealth presents two issues for our consideration:

      I.    Did the [suppression] court err in suppressing a gun police
            found in the center console of the car [Appellee] was driving,
            with his brother as a passenger, where the police stopped
            the car for a traffic violation at 1:30 in the morning,

                                     -5-
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            [Appellee] acted nervously and declined to respond to the
            officer’s inquiries about whether there was a weapon in the
            car, the officer told him to exit the car and he was slow to
            respond, when he finally got out he immediately ran away,
            and when police apprehended him he blurted out that [] “the
            gun” was his and not his brother’s?

      II.   Did the [suppression] court err in suppressing [Appellee’s]
            blurted statement as poisonous fruit of a supposedly illegal
            stop?

Commonwealth Brief at 4. We shall address these issues together.

      We have summarized the evidence of Appellee and the evidence of the

Commonwealth that remains uncontradicted in the record. Therefore, we may

reverse only if the suppression court’s legal conclusions are in error.

      With respect to a traffic stop, this Court has observed:

      A police officer has the authority to stop a vehicle when he or she
      has reasonable suspicion that a violation of the vehicle code has
      taken place, for the purpose of obtaining necessary information to
      enforce the provisions of the code. 75 Pa.C.S. § 6308(b).
      However, if the violation is such that it requires no additional
      investigation, the officer must have probable cause to initiate the
      stop.

Commonwealth v. Brown, 

64 A.3d 1101

, 1105 (Pa. Super. 2013) (citing

Commonwealth v. Feczko, 

10 A.3d 1285

, 1291 (Pa. Super. 2010)).

      Put another way, if the officer has a legitimate expectation of
      investigatory results, the existence of reasonable suspicion will
      allow the stop—if the officer has no such expectations of learning
      additional relevant information concerning the suspected criminal
      activity, the stop cannot be constitutionally permitted on the basis
      of mere suspicion.

Id. (quoting Commonwealth v.

Chase, 

960 A.2d 108

, 115 (Pa. 2008)).




                                     -6-
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       Here, Officer Kanan contended he and his partner stopped Appellee’s

vehicle when Appellee pulled into a parking spot without using a turn signal.3

The statute governing use of signals provides, in relevant part, as follows:

       § 3334. Turning movements and required signals

       (a) General rule.—Upon a roadway no person shall turn a vehicle
       or move from one traffic lane to another or enter the traffic stream
       from a parked position unless and until the movement can be
       made with reasonable safety nor without giving an appropriate
       signal in the manner provided in this section.

75 Pa.C.S.A. § 3334(a).          Because the “violation” required no additional

investigation, the officers were required to have probable cause to initiate the

stop. 

Brown, 64 A.3d at 1105

.

       The suppression court considered the language of Section 3334(a) in

the context of the statutory construction principles set forth in 1 Pa.C.S.A.

§ 1921 and concluded:

       Applying [principles of statutory construction], under the plain
       words of the statute at issue, a turn signal is required when

____________________________________________


3  The Commonwealth initially asserted that Appellee was also stopped for
parking in an illegal parking spot. The suppression court suggests the
Commonwealth abandoned that argument on appeal, see Suppression Court
Rule 1925(a) Opinion, 2/18/20, at 8 n.2. The Commonwealth contests this
assertion, see Commonwealth Brief at 17 n. 2, contending it was challenging
suppression based on both violations. However, at the suppression hearing,
the Commonwealth did not present any evidence that Appellee pulled into an
illegal parking spot. Rather, the Commonwealth simply noted that Appellee
pulled into a parking spot “right in front of Cousin’s Supermarket,” Notes of
Testimony, 4/1/19, at 14. There was no testimony or evidence to support
that the spot was an illegal parking spot. Again, our scope of review is limited
to the evidentiary record that was created at the suppression hearing.

Copenhaver, 238 A.3d at 513

.


                                           -7-
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      moving “from one traffic lane to another [traffic lane]” or
      when “enter[ing] the traffic stream from a parked position.” The
      statute does not require a turn signal when moving from a traffic
      lane to a parking position.

Suppression Court Rule 1925(a) Opinion, 2/18/20, at 7 (emphasis in original).

      As the court recognized, “the legislature certainly had the ability to

include such a proscription had it intended to do so, but it did not. As such,

the court may not ‘read into the statute terms that broaden its scope.’”

Id.

(quoting Commonwealth v.

Booth, 

766 A.2d 843

, 846 (Pa. 2001)).

“Indeed, this interpretation is further supported by the ‘statutory mandate

that penal statutes shall be strictly construed.’”

Id. (quoting Commonwealth

v.

McCoy, 

962 A.2d 1160

, 1168 (Pa. 2009) (emphasis in original) (additional

citation and internal quotations omitted).

      The suppression court determined:

      Because [Section 3334(a)] does not require a motorist to use a
      turn signal when pulling into a parking position, the purported
      basis for the initial stop in the case was invalid from the start.
      Accordingly, the evidence and alleged statement subsequently
      obtained were tainted by the unconstitutional action, and thus
      properly suppressed as fruits of the poisonous tree. See Wong
      Sun v. United States, 

371 U.S. 471

, 485-86 (1963);
      Commonwealth v. Shabezz, 

166 A.3d 278

, 290 (Pa. 2017).

Id. at 8

(footnote omitted).

      Neither party cites any binding authority holding that a driver must use

a turn signal before pulling into a parking spot. Our research has similarly

failed to unearth any such authority, although the issue was mentioned in

Commonwealth v. Richard, 

238 A.3d 522

(Pa. Super. 2020). In Richard,



                                     -8-
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the suppression court granted Richard’s suppression motion, finding the

arresting officers did not have probable cause to stop Richard based on pulling

into a parking spot without using a turn signal. We reversed. However, the

reversal was not based on Richard’s failure to use a turn signal when pulling

into a parking spot. Rather, we reversed because the suppression court failed

to consider a separate basis for the traffic stop, i.e., prior to initiating the stop,

the officers had determined Richard’s car was unregistered. Because the stop

was justified on that basis, the Court went on to discuss the propriety of the

search without returning to the question of whether Richard’s failure to use a

turn signal was a violation of Section 3334(a).4

____________________________________________


4 By happenstance, the officer in Richard was the same officer involved in
Appellee’s case, and he used similar language to describe Richard’s driving
maneuver, as reflected in this Court’s summary of evidence from Richard’s
suppression hearing:

       On November 5, 2017, at approximately 2:10 a.m., Philadelphia
       Police Officer Abdel Kanan was on patrol in his marked vehicle
       when he observed a blue Ford traveling eastbound on Kingsessing
       Avenue. . . . Officer Kanan checked the license plate of the vehicle
       when the vehicle “abruptly pulled into a parking spot without using
       a turning signal.” At the same time, the record to the vehicle
       showed it was not registered. Officer Kanan then “activated his
       lights and sirens to initiate a vehicle investigation.”


Richard, 238 A.3d at 527

(references to notes of testimony and alterations
omitted).     At Appellee’s hearing, Officer Kanan explained on directed
examination that he observed a gray Pontiac, which “suddenly turned into an
illegal parking spot without using a turn signal. At this point we activated
lights and sirens to initiate a vehicle investigation.” Notes of Testimony,
4/1/19, at 7. On cross-examination, he testified, “It pulls—goes into the



                                           -9-
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        The   Commonwealth         directs     our   attention   to   an   unpublished

memorandum issued by this Court eight months prior to our published opinion

in Richard.      In Commonwealth v. Puit, 

2020 WL 211536

(Pa. Super.

January 14, 2020), Puit was convicted of driving under the influence and other

offenses following a stop based on pulling his vehicle into a parking space

without using his turn signal. The suppression court denied Puit’s suppression

motion based on testimony of the arresting state trooper who testified “he

was trained on the Vehicle Code, and that a driver is required to use a turn

signal when leaving or entering a lane of travel.”

Id. at *2.

Affirming the

denial of suppression, the panel determined that “because the Code requires

a driver to signal to other drivers his intention to move out of the flow of

traffic, it was objectively reasonable for [the trooper] to believe that Section

3334(b) requires a driver to signal when he pulls out of the travel lane to park

his car.”

Id. (emphasis added).5 The

Commonwealth cited Puit for its

____________________________________________


parking spot. We were behind it driving and then it suddenly turns into the
illegal parking spot. . . . Once he pulled over without using a turn signal we
activated our lights and sirens.”

Id. at 12-14.
5

  Section 3334(b) provides:

        (b) Signals on turning and starting.--At speeds of less than
        35 miles per hour, an appropriate signal of intention to turn right
        or left shall be given continuously during not less than the last 100
        feet traveled by the vehicle before turning. The signal shall be
        given during not less than the last 300 feet at speeds in excess of
        35 miles per hour. The signal shall also be given prior to entry of
        the vehicle into the traffic stream from a parked position.



                                          - 10 -
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persuasive value, citing Pa.R.A.P. 126(b).         However, not only are we not

bound by Puit, but also we do not agree with the panel’s reading of the Code—

whether Section 3334(b) cited by that panel, or Section 3334(a), which was

at issue in the instant case—because neither subsection imposes a duty to

signal an intention “to move out of the flow of traffic.” Moreover, as Appellee

suggests, Puit is inapposite.

       The court in Puit applied the mistake of law doctrine described in
       Heien v. North Carolina, 

574 U.S. 54

, 67 (2015) to uphold a
       traffic stop for failure to use a turn signal when pulling over to
       park. The doctrine allows that in certain rare circumstances,
       where the law is unclear, an officer’s objectively reasonable
       misapplication of the law to justify a stop will not invalidate a stop.
       

Heien, 574 U.S. at 66-67

. This principle does not provide an
       officer leeway “through a sloppy study of the laws he is duty-
       bound to enforce.”

Id. at 67.

       While a trained and experienced officer might, in rare cases, be
       given the benefit of the mistake of law doctrine described in
       Heien, and applied in Puit, such leeway is not due here. The
       court in Puit was faced with a state trooper specifically trained on
       the Vehicle Code, who stopped the defendant for one reason only,
       and whose testimony was unmarred by adverse credibility
       findings. Officer Kanan, unlike the trooper in Puit, presented no
       testimony as to his training and experience. His second reason
       for stopping Appellee was clearly erroneous: Appellee pulled the
       car over in a[n] “illegal parking spot.” Not only did the officer fail
       to explain what prohibitions against stopping existed at the
       location where Appellee stopped his car, it is not illegal to stop a
       car in a no parking zone. 75 Pa.C.S.A. § 3353 (delineating varying
       prohibitions against stopping a car or, separately, parking a car in
____________________________________________


75 Pa.C.S.A. § 3334(b).




                                          - 11 -
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         various locations and zones). The suppression court also made
         adverse credibility findings against Officer Kanan.

Appellee’s Brief at 17-18 (some capitalization and references to notes of

testimony omitted).

         We find Puit inapposite, in addition to being non-binding, and conclude

the panel’s reading of Section 3334 in that case improperly broadened the

scope of the statute beyond the plain terms adopted by the legislature. Simply

stated, the terms of the statute require that a person shall not “turn a vehicle6

or move from one traffic lane to another or enter the traffic stream from a

parked position” without giving a signal. 75 Pa.C.S.A. § 3334(a). The statute

does not address “mov[ing] out of the flow of traffic,” contrary to the Puit

panel’s assertion, or require the use of a turn signal to pull into a parking

place.

         Appellee was not required under Section 3334(a) to use his turn signal,

nor did he violate the Vehicle Code by pulling into a parking spot in front of a

supermarket. Therefore, there was no probable cause to justify the stop of

Appellee’s vehicle. Cf. 

Slattery, 139 A.3d at 224

(where trooper incorrectly

believed Section 3334(b) required a driver to signal at least 100 feet before



____________________________________________


6 With respect to “turning,” in Commonwealth v. Slattery, 

139 A.3d 221

(Pa. Super. 2016), this Court noted that the language of Section 3334 “is
consistent with the interpretation that the term ‘before turning’ means before
a vehicle makes a turn onto another roadway, not before a person changes
lanes.”

Id. at 224.

– 12 –

J-A27009-20


changing lanes, there was no probable cause to justify the stop of the vehicle).

Because the officers did not have probable cause to seize the vehicle, the

suppression court correctly concluded that the gun discovered during the

subsequent search, as well as statements attributed to Appellee by Officer

Kanan, must be suppressed as fruit of the poisonous tree.

      We have summarized the evidence in accordance with Cartegena and

Millner and we accept the suppression court’s credibility findings with respect

to Officer Kanan. Further, we find no error in the court’s legal conclusion, i.e.,

that “[t]he police did not have reasonable suspicion or probable cause to stop

the defendant and also remove him from the car.”           Notes of Testimony,

4/2/19, at 3. Because the suppression court properly applied the law to the

facts, we affirm the suppression court’s order.

      Order affirmed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/21




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