Com. v. Patton-Vincent, K.

J-A08042-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

KHALIL PATTON-VINCENT :

:

Appellant : No. 933 EDA 2023

Appeal from the Judgment of Sentence Entered November 30, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0008561-2021

BEFORE: BOWES, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 16, 2024

Khalil Patton-Vincent appeals from the judgment of sentence entered

following his convictions for possession of firearm prohibited, firearms not to

be carried without a license, and carrying firearms on the public streets in

Philadelphia.1 He challenges the denial of his suppression motion, the

sufficiency of the evidence, and the discretionary aspects of sentencing. We

affirm.

Following a traffic stop, a police officer observed a firearm in Patton-

Vincent’s vehicle. The Commonwealth charged him with the above offenses.

Patton-Vincent moved to suppress, arguing that the officers lacked both

reasonable suspicion to stop his vehicle and probable cause to conduct a

warrantless search of his vehicle. See Omnibus Pretrial Motion, filed 6/10/22,

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1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.

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at ¶¶ 5-6. At a suppression hearing, defense counsel offered additional

grounds for suppression, including that the officers “unlawfully detained

[Patton-Vincent] past the purpose of the window tint” and “the purpose of the

traffic stop was never even attempted to be accomplished.” N.T., Suppression

Hearing, 6/13/22, at 7. He further argued that even if the officer observed the

firearm, “it was from an unlawful vantage point, being that it was during the

unlawful extension of this encounter[.]” Id.

The Commonwealth then presented the testimony of Officer Edward

Lane, who said that on July 12, 2021, he received a radio call for a person

with a gun. Id. at 9, 11. Officer Lane’s partner, Officer Christopher Rycek, was

with him. Id. at 31, 32. The specific information they received was, “1100

Rising Sun, on Rising Sun, four black males, three of them dark complexion,

one light complexion, armed with guns, inside of a gray Dodge Durango with

tinted windows.” Id. at 11.

Officer Lane testified that when they arrived at the location, he observed

“a dark gray Dodge Durango with tinted windows on the 1000 block of Rising

Sun, double-parked in the running lanes.” Id. at 11-12. He described the tint

as “extremely dark, including the windshield, where I couldn’t see inside of

the vehicle.” Id. at 12. Officer Lane made a U-turn back towards the vehicle.

Id. By that time, the Durango had begun moving, and Officer Lane conducted

a traffic stop. Id. He approached the driver’s side of the vehicle and

encountered Patton-Vincent who was in the driver’s seat and the sole occupant

of the vehicle. Id. at 12, 16, 31. Officer Lane asked Patton-Vincent for his

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license and registration. Id. at 16. He asked if Patton-Vincent had any firearms

in the vehicle or a license to carry a firearm. Id. at 12. Patton-Vincent

answered, “No,” to both questions. Id. Officer Lane asked for consent to

search the vehicle, which Patton-Vincent denied. Id. at 12-13.

Officer Lane returned to his vehicle to look up Patton-Vincent’s

information and call for a K-9 unit to conduct an exterior sweep of the vehicle.

Id. at 13. While running Patton-Vincent’s information, Officer Rycek stayed

with Patton-Vincent.

Officer Rycek testified that as he was standing by the driver’s side door

speaking with Patton-Vincent, he “looked down at the floor board” and saw “a

firearm behind his feet underneath the driver’s seat.” Id. at 32. Officer Rycek

said he “saw the gun, maybe having a couple of inches on [Officer Lane]”,

who had later told Officer Rycek that he was “too short” and “couldn’t see the

gun” initially. Id. at 34. Once Officer Rycek saw the firearm, he immediately

opened the door to detain Patton-Vincent and yelled, “Gun in plain view,” to

Officer Lane. Id. at 37. Officer Lane exited his vehicle and went to the

passenger side door of Patton-Vincent’s vehicle. He opened the door “and

leaned across, and . . . could see [the firearm] at that point.” Id. at 14. Officer

Lane testified that he recovered the firearm from “underneath the driver’s

side. . . [o]n the driver’s side floor board, right in front of the driver’s seat.”

Id. Officer Rycek testified that the firearm was “within arm’s reach right under

the driver’s seat.” Id. at 39. The firearm was loaded with 15 live rounds. Id.

at 15.

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Officer Lane did not issue traffic citations for Patton-Vincent. Id. at 21.

The time between the initial stop and the officers’ taking Patton-Vincent into

custody was approximately nine minutes and 20 seconds, per the body cam

footage admitted into evidence. Id. at 24-25.

The court denied the motion and, on the same day, Patton-Vincent

proceeded by way of a stipulated waiver trial. See id. at 51, 53. The court

incorporated all relevant non-hearsay testimony from the suppression

hearing. Id. at 57. The Commonwealth also admitted a firearms report,

Patton-Vincent’s Secure Court Summary indicating his ineligibility to possess

a firearm, and a DNA report indicating that he was the major source of DNA

on the firearm. Id. at 57-58, 59-60; Exhibits C-4, C-5, C-6. The court found

Patton-Vincent guilty of the above-mentioned offenses.

At sentencing, the court heard testimony from Patton-Vincent’s father,

uncle, cousin, and grandmother. See N.T., Sentencing, 11/30/22, at 12, 14,

16, 18. Patton-Vincent told the court that he took full responsibility for

possessing a firearm, asked the court for leniency, and stated that as a

juvenile he was diagnosed with PTSD. Id. at 21, 22. Counsel notified the court

of information in the Pre-Sentence Investigation (“PSI”) report including

Patton-Vincent’s history with drugs and his mental health issues. Id. at 11.

For its part, the Commonwealth noted that the instant case was Patton-

Vincent’s third firearm conviction. Id. at 20.

The court sentenced Patton-Vincent to two and one half to five years’

incarceration followed by three years’ probation. See Order, filed 11/30/22.

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It also ordered a dual diagnosis program and drug and/or alcohol treatment.

See N.T., Sentencing, at 22. In explaining its sentence, the court stated:

This case is difficult because, obviously, you’ve been

arrested for, you know, three times with a gun. And,

obviously, we all know that you’re, you know, 6105

ineligible, so you’re not allowed to carry a firearm in –ever,

basically, for the rest of your life, but we still have these –

we still have these arrests for the gun charges.

All right. Based on what I see, two and a half to five at SCI

Chester. I’d like a dual-diagnosis, and I would like him to be

able to get therapy and/or drug or alcohol treatment if they

determine that he needs that . . . .

I am recommending Chester because I do think that he

needs a dual-diagnosis program; there’s PTSD and things of

that nature.

Id. at 22, 23. This timely appeal followed.

Patton-Vincent raises the following issues:

1. Whether the suppression court erred by denying the

motion to suppress despite evidence of a warrantless

search of [Patton-Vincent’s] vehicle without exigent

circumstances?

2. Whether the evidence presented at trial was sufficient to

establish each and every element of the crimes for which

[Patton-Vincent] was convicted?

3. Whether the sentencing court abused its discretion by

imposing a manifestly excessive sentence that was not

based upon the gravity of the violation, the extent of

[Patton-Vincent’s] record, his prospect of rehabilitation,

nor an assessment of the mitigating and aggravating

factors as noted in 42 Pa.C.S. Section 9721 of the

Sentencing Code?

Patton-Vincent’s Br. at 8.

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Patton-Vincent’s first issue challenges the court’s denial of his motion to

suppress. When reviewing the denial of a motion to suppress, we determine

whether the trial court’s “factual findings are supported by the record and

whether the legal conclusions drawn from those facts are correct.”

Commonwealth v. Jones, 266 A.3d 1090, 1094 (Pa.Super. 2021) (citation

omitted). “[W]e 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.” Id. (citation omitted). “Our scope of

review of suppression rulings includes only the suppression hearing record and

excludes evidence elicited at trial.” Commonwealth v. McMahon, 280 A.3d

1069, 1071 (Pa.Super. 2022) (citation omitted).

Patton-Vincent claims that the police unlawfully detained him and

illegally conducted a warrantless search of his vehicle. He maintains that the

officers did not have reasonable suspicion to perform the stop and lacked

probable cause to detain him and subsequently search his vehicle. He argues

that the Commonwealth failed to “establish any circumstances that would

provide a legitimate factual basis for the detention of [Patton-Vincent] and

seizure of physical evidence.” Patton-Vincent’s Br. at 14. He further maintains

that the K-9 search of his vehicle unreasonably prolonged the stop and

resulted in an unlawful detention. See id. at 15 (citing Rodriguez v. United

States, 575 U.S. 348 (2015) (holding that “[a] seizure justified only by a

police-observed traffic violation, . . . become[s] unlawful if it is prolonged

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beyond the time reasonably required to complete th[e] mission of issuing a

ticket for the violation”) (cleaned up)).

The Fourth Amendment of the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution, protects citizens from warrantless

searches and seizures unless an exception applies. See Commonwealth v.

Singleton, 169 A.3d 79, 82 (Pa.Super. 2017); Commonwealth v. Martin,

253 A.3d 1225, 1228 (Pa.Super. 2021). One exception is the plain view

doctrine. See Martin, 253 A.3d at 1228. “The plain view doctrine provides

that evidence in plain view of the police can be seized without a warrant[.]”

Commonwealth v. Luczki, 212 A.3d 530, 546 (Pa.Super. 2019) (citation

omitted). This exception applies when: “(1) an officer views the object from a

lawful vantage point; (2) it is immediately apparent to him that the object is

incriminating; and (3) the officer has a lawful right of access to the object.”

Commonwealth v. Smith, 285 A.3d 328, 332 (Pa.Super. 2022) The

incriminating character of an item is determined by the totality of the

circumstances. See id. at 333. “[W]here police officers observe incriminating-

looking contraband in plain view in a vehicle from a lawful vantage-point, the

lack of advance notice and opportunity to obtain a warrant provides the

officers with a lawful right of access to seize the object in question.”

Commonwealth v. Brown, 23 A.3d 544, 557 (Pa.Super. 2011) (en banc).

Here, after receiving a radio call for four men with firearms in a gray

Dodge Durango, Officer Lane observed a vehicle matching that description, in

the same area as the radio call. Officer Lane also observed that the vehicle

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had extremely dark tint, in violation of the Motor Vehicle Code (MVC). See 75

Pa.C.S.A. § 4524(e)(1) (“No person shall drive any motor vehicle with any sun

screening device or other material which does not permit a person to see or

view the inside of the vehicle through the windshield, side wing or side window

of the vehicle”). The heavy tint on Patton-Vincent’s vehicle gave officers

probable cause to conduct a traffic stop of his vehicle. See Commonwealth

v. Harris, 176 A.3d 1009, 1019 (Pa.Super. 2017) (stating officers have

probable cause to conduct a traffic stop when a traffic code violation is

observed).2

To the extent that Patton-Vincent argues that officers unreasonably

prolonged the traffic stop, the record belies this claim. Part of the nine minutes

of the traffic stop included Officer Lane returning to his vehicle to call for a K-

9 unit to conduct an exterior sweep of the vehicle and to look up Patton-

Vincent’s information. See N.T., Suppression Hearing, at 13. Here, the traffic

stop was still ongoing when Officer Lane called for the K-9 unit. Cf.

Rodriguez, 575 U.S. at 351-352 (holding that “a police stop exceeding the

time needed to handle the matter for which the stop was made violates the

Constitution’s shield against unreasonable seizures” and therefore detention

of defendant and conduction of K-9 sweep after completion of traffic stop and

issuance of traffic ticket was without reasonable suspicion).

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2 Officer Lane also testified that the Durango was double-parked. See Phila.

Code § 12-913(1)(a)(.1).

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Furthermore, the warrantless search of Patton-Vincent’s vehicle was

supported by the plain view doctrine. First, Officer Rycek viewed the firearm

from a lawful vantage point, standing on the driver’s side of the vehicle, while

the traffic stop was still ongoing. Second, the incriminating nature of the

firearm was immediately apparent to Officer Rycek. At the point of seeing the

firearm, Officer Rycek knew that Patton-Vincent had admitted that he did not

have a license to carry a firearm. See N.T., Suppression Hearing, at 12, 32.

Finally, Officer Rycek had a lawful right to access to the inside of Patton-

Vincent’s vehicle. Officer Rycek had observed the firearm partly under the

driver’s seat and had no advance notice or opportunity to obtain a warrant for

the firearm. See Commonwealth v. Davis, 287 A.3d 467, 474 (Pa.Super.

2022) (finding that a firearm under the driver’s seat fell within public view

doctrine, where the officer saw the firearm while standing outside of

defendant’s vehicle, defendant was parked illegally and did not have a license

to carry the firearm). The trial court did not err in denying the motion to

suppress.

Next, Patton-Vincent claims that the Commonwealth failed to present

sufficient evidence that he constructively possessed the firearm recovered

from the vehicle. He argues that the Commonwealth was required to prove

that he knew the firearm was in the vehicle and that he intended to control it.

He further maintains that Officer Rycek could not see under the driver’s seat

“from outside the vehicle, with the car door closed.” Patton-Vincent’s Br. at

19.

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Patton-Vincent’s sufficiency claim is waived. When an appellant

challenges the sufficiency of evidence, the appellant’s Rule 1925(b) statement

must specify the elements of the crime that the appellant believes were not

sufficiently proven. See Commonwealth v. Tyack, 128 A.3d 254, 260

(Pa.Super. 2015); Pa.R.A.P. 1925(b). Where the appellant fails to do so, the

claim is waived. See Tyack, 128 A.3d at 260.

Here, Patton-Vincent’s Rule 1925(b) reads verbatim: “The evidence

presented at trial was insufficient to sustain a conviction as a matter of law.

The evidence presented at trial did not establish appellant’s guilt beyond a

reasonable doubt. The trial court erred by failing to grant a judgment of

acquittal.” Statement of Matters Complained of on Appeal Pursuant to R.A.P.

1925(b), filed 4/10/23. Patton-Vincent failed “to specify the element or

elements upon which the evidence was insufficient.” Tyack, 128 A.3d at 260

(citation omitted). As such, the claim is waived.3

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3 Even if Patton-Vincent had not waived his sufficiency challenge, we would

reject his challenge to the finding of constructive possession for the reasons

that the trial court gave in its Rule 1925(a) opinion. See Trial Court Opinion,

filed Apr. 18, 2023, at 5. His “physical impossibility” argument fails because

the trial court was entitled to credit Officer Rycek’s testimony that he could

see the gun from outside the car, and reconcile his statement that the gun

was “behind [Patton-Vincent’s] feet underneath the driver’s seat,” with Officer

Lane’s testimony that it was “on the driver’s side floor board, right in front of

the driver’s seat.” See Commonwealth v. Simmons, 662 A.2d 621, 630

(Pa. 1995). The two statements are readily reconcilable. They are not so

incompatible as to render the evidence so unreliable or contradictory as to not

constitute proof beyond a reasonable doubt. See Commonwealth v.

Farquharson, 354 A.2d 545, 550 (Pa. 1976).

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Patton-Vincent’s final claim challenges the discretionary aspects of his

sentence, of which there is no automatic right of appeal. See

Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018). Before

we may address the merits of a challenge to the discretionary aspects of a

sentence, we must first determine whether: “(1) the appeal is timely; (2) the

appellant has preserved his issue; (3) his brief includes a concise statement

of the reasons relied upon for allowance of an appeal with respect to the

discretionary aspects of his sentence; and (4) the concise statement raises a

substantial question whether the sentence is inappropriate under the

Sentencing Code.” Commonwealth v. Green, 204 A.3d 469, 488 (Pa.Super.

2019).

Patton-Vincent fails the second prong of our four-part test. He did not

challenge the alleged excessiveness of his sentence at the sentencing hearing

or in a post-sentence motion. As such, he did not preserve this claim for

appeal. See Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super.

2013) (en banc) (stating claims challenging discretionary aspects of sentence

must be raised in post-sentence motion or at sentencing, and the failure to do

so results in waiver). We affirm the judgment of sentence.

Judgment of sentence affirmed.

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Date: 7/16/2024

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