Com. v. Micucci, J.

J-S05022-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

JOSEPH MICUCCI : No. 1135 EDA 2024

Appeal from the Order Entered April 2, 2024

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

No(s): CP-51-CR-0008386-2023

BEFORE: BOWES, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.: FILED MARCH 3, 2025

The Commonwealth appeals from the order granting Joseph Micucci’s

(Defendant) motion to suppress physical evidence seized from Defendant

during a traffic stop. After careful review, we reverse and remand for further

proceedings.

On November 16, 2023, at 6:37 p.m., Philadelphia Police Officers Marc

Kusowski (Officer Kusowski) and Anthony Rumano (Officer Rumano)

encountered a large pickup truck at the corner of Louden Street and C Street

in Philadelphia. N.T., 4/1/24, at 15-16. The truck was illegally parked in a

crosswalk and partially blocking traffic. Id. The truck was running and

Defendant, seated in the front passenger seat with the door open, was its only

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* Former Justice specially assigned to the Superior Court.

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occupant. Id. at 16. Defendant indicated the driver was in the nearby corner

store. Id. While Officer Kusowski went to find the driver, Officer Rumano

spoke with Defendant. Id. at 17, 40.

Defendant had a food container on his lap, and indicated he had stopped

at the store to get food. Exhibit C-10 (Officer Rumano’s body-worn camera

footage). Defendant began to open the food container, and Officer Rumano

asked him to “maybe hang off on eating for a second.” Id. Officer Rumano

asked to see Defendant’s identification, which Defendant provided. Id.

Defendant stated, “I don’t know what I did wrong.” Id. Officer Rumano

replied, “You’re in a car that’s being stopped by the police, that’s all.” Id.

Officer Rumano continued, “I’m just going to ask you a couple questions. I

ask everyone the same questions.” Id. Officer Rumano asked if Defendant

was on probation or parole, and Defendant stated he was on parole. Id.

Officer Rumano later testified he felt Defendant was becoming “increasingly

nervous.” N.T., 4/1/24, at 41. When Officer Rumano asked Defendant if there

was any reason why he was nervous, Defendant responded there was not.

Exhibit C-10.

Meanwhile, after Officer Kusowski encountered the driver in the store,

the driver returned to the truck and provided his license and registration.

N.T., 4/1/24, at 17-18, 22. When Officer Kusowski headed toward his police

vehicle to run a check on the license and registration, he observed Officer

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Rumano’s body language, felt “something was not right,” and approached to

assist Officer Rumano. Id. at 22.

Inside of the truck, Defendant had a satchel with its strap over his

shoulder. Id. at 41. Officer Rumano asked if Defendant had any weapons on

himself or in his satchel, and Defendant stated he did not. Exhibit C-10.

Officer Rumano asked if Defendant was willing to show him the satchel, and

Defendant replied, “Yeah, I can show you my bag.” Id. At that time, Officer

Rumano asked Defendant to exit the truck, and Defendant complied. Id.1

When Defendant exited the truck, the officers immediately observed a

firearm in the pocket of Defendant’s hooded sweatshirt. N.T., 4/1/24, at 23-

24, 43. Officer Kusowski ordered Defendant to stop and announced that

Defendant had a gun in his pocket. Id. at 23-24. Defendant then attempted

to charge through the officers, who tackled him. Id. at 23-25, 43. Defendant

struggled against the officers, who seized the firearm from his sweatshirt

pocket and subdued him with a taser. Id. at 25-26, 43. The officers arrested

Defendant, and recovered from the satchel $29,064 in cash and a bottle

containing twelve oxycodone pills. Id. at 26-27.

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1 Officer Rumano testified that he asked Defendant to exit the truck for “officer

safety reasons.” N.T., 4/1/24, at 42. Officer Rumano also testified that he

asked Defendant to exit the truck, in part, because the truck was “lifted,”

which meant Defendant was elevated “higher th[a]n a normal … interaction

with a car stop.” Id.; see also id. at 18 (Officer Kusowski’s testimony that

the truck was “really high”; that Officer Kusowski is six feet tall and “the seat

level may have come to my chest….”).

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The Commonwealth subsequently charged Defendant with one count

each of possession with intent to deliver a controlled substance, possession of

a controlled substance, possession of a firearm by a prohibited person,

carrying a firearm without a license, carrying a firearm on public streets in

Philadelphia, and resisting arrest.2 See Information, 12/8/23.

On February 28, 2024, Defendant filed a motion to suppress physical

evidence, arguing he “was subjected to a seizure and investigatory detention

without reasonable suspicion or probable cause.” Motion to Suppress,

2/28/24, ¶ 4. On April 1, 2024, the suppression court held a hearing on the

motion. Officers Kusowski and Rumano testified, and the Commonwealth

introduced videos from the officers’ body-worn cameras. See Exhibit C-10;

Exhibit C-11 (Officer Kusowski’s body-worn camera footage). Defendant

offered no evidence.

At the hearing’s conclusion, the suppression court issued its factual

findings on the record. See N.T., 4/1/24, at 62-67. The court found all of the

officers’ testimony credible, except for Officer Rumano’s testimony that

Defendant’s “hands [we]re a little shaky” when Defendant was retrieving his

identification. Id. at 41. The court stated:

In the body-worn camera[,] there’s nothing to indicate or show

that [D]efendant’s hand[s] are shaking in any way.

[D]efendant’s hands appear in front … the entire time as they are

visible on the body-worn camera. Now, of course the body-worn

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2 35 P.S. § 780-113(a)(30), (16); 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1),

6108, 5104.

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camera doesn’t always pick up the [officer’s] approach or some

of it.

Id. at 66. The court further stated:

I find that the officers were credible for all their testimony except

for the issue of the hand shaking[,] which the body-worn camera

shows something different. The[ officers are] not necessarily

credible on that but everyone’s memory is different. [Defendant’s

arrest occurred in] November of last year and … I think … both

[officers have] made one hundred plus arrests in the interim.

Id. at 67.

The court ultimately granted Defendant’s suppression motion, stating:

There was no reason to stop [D]efendant who [was] a passenger

in a parked vehicle. There’s nothing to indicate whatsoever that

[D]efendant was nervous. [The] body-worn camera … gives a

different story from the officers’ testimony. The stop occurred the

minute the officer took [Defendant’s] identification. There was no

reasonable suspicion or probable cause at that point in time.

Id.; see also id. at 13 (suppression court stating, “my biggest issue is … it is

a stop the minute you take the [identification].”).

The Commonwealth timely appealed. 3 The Commonwealth and the

suppression court have complied with Pa.R.A.P. 1925.

The Commonwealth presents a single question for our review: “Did the

[suppression] court err in suppressing a firearm and other evidence seized

from [D]efendant during a lawful traffic stop?” Commonwealth Brief at 4.

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3 In its notice of appeal, the Commonwealth certified that the suppression

order will terminate or substantially handicap the prosecution. See Pa.R.A.P.

311(d) (permitting the Commonwealth to “appeal as of right from an order

that does not end the entire case where the Commonwealth certifies in the

notice of appeal that the order will terminate or substantially handicap the

prosecution”).

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The Commonwealth argues the suppression court’s “ruling is based on

a fundamental misunderstanding of the relevant law.” Id. at 15. The

Commonwealth maintains the officers did not need reasonable suspicion or

probable cause to require Defendant to provide identification or exit the truck.

Id. at 20. The Commonwealth argues that, during a traffic stop, officers “may

ask any passengers to provide identification” without reasonable suspicion

that the passengers are involved in criminal activity. Id. at 16 (citing

Commonwealth v. Bumbarger, 231 A.2d 10, 18 (Pa. Super. 2020)). The

Commonwealth further argues officers may “control all movement in a traffic

encounter,” including that of a passenger. Id. (quoting Commonwealth v.

Pratt, 930 A.2d 561, 567 (Pa. Super. 2007). The Commonwealth maintains

officers may order a passenger to exit the vehicle “as a matter of right.” Id.

at 17 (quoting Commonwealth v. Mack, 953 A.2d 587, 589 (Pa. Super.

2008)). According to the Commonwealth, the officers “recovered

[Defendant’s] gun as a result of their asking [D]efendant to step out of the

truck, which they were entitled to do during the traffic stop.” Id. at 21. The

Commonwealth further asserts the officers recovered the drugs and money in

a lawful “search incident to [Defendant’s] arrest[.]” Id.

Defendant disagrees, arguing that the encounter was an investigative

detention requiring reasonable suspicion, which the officers lacked. See

Defendant’s Brief at 10-20. Defendant argues that because “the truck was

already parked [and Defendant] sat in the passenger seat with the door open,”

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the encounter should not be considered a traffic stop, but rather a pedestrian

stop. Id. at 8. Even if the encounter is considered a traffic stop, Defendant

asserts, the officers’ “investigation went significantly [and] measurably

beyond that necessary to enforce a parking violation, and therefore was

unlawful[,] even pursuant to the Commonwealth’s cited cases involving a

vehicle ‘stop.’” Id. Defendant maintains the officers “[a]sking whether

[Defendant] was on probation or parole [and] if they could search his bag …

is completely unnecessary” for enforcing a parking violation. Id. at 14.

Defendant argues “the duration of the stop [and the] scope of the

investigation, which included unnecessary interrogation, were well outside of

what is allowed by the Commonwealth’s own cases cited.” Id. (citing Mack,

953 A.2d at 589; Bumbarger, 231 A.3d at 18; Arizona v. Johnson, 555

U.S. 323, 333 (2009)).

We review suppression court orders

to determine whether the factual findings are supported by the

record and whether the legal conclusions drawn from those facts

are correct. We are bound by the suppression court’s factual

findings so long as they are supported by the record. In reviewing

an appeal by the Commonwealth of a suppression order, we may

consider only the evidence from the [defendant’s] witnesses along

with the Commonwealth’s evidence which remains

uncontroverted. Our scope of review of suppression court factual

findings is limited to the suppression hearing record. We,

however, are not bound by a suppression court’s conclusions of

law; rather, when reviewing questions of law, our standard of

review is de novo and our scope of review is plenary.

Commonwealth v. Anderson, 276 A.3d 282, 292 (Pa. Super. 2022) (en

banc) (quoting Commonwealth v. Barr, 266 A.3d 25, 39 (Pa. 2021)); see

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also Commonwealth v. Kuhlman, 300 A.3d 460, 464 (Pa. Super. 2023)

(the appellate court’s duty “is to determine if the suppression court properly

applied the law to the facts.”).

“The Fourth Amendment to the United States Constitution, incorporated

to states by and through the Fourteenth Amendment to the United States

Constitution, and Article I, Section 8 of the Pennsylvania Constitution, protect

citizens from ‘unreasonable searches and seizures.’” Commonwealth v.

Barnes, 296 A.3d 52, 56 (Pa. Super. 2023). This Court has explained:

The law recognizes three distinct levels of interactions between

police officers and citizens: (1) a mere encounter; (2) an

investigative detention, often described as a Terry stop, see

Terry v. Ohio, 392 U.S. 1 (1968); and (3) a custodial detention.

A mere encounter can be any formal or informal interaction

between an officer and a citizen, but will normally be an inquiry

by the officer of a citizen. The hallmark of this interaction is that

it carries no official compulsion to stop or respond and therefore

need not be justified by any level of police suspicion.

In contrast, an investigative detention carries an official

compulsion to stop and respond. Since this interaction has

elements of official compulsion it requires reasonable suspicion of

unlawful activity.

Finally, a custodial detention occurs when the nature,

duration and conditions of an investigative detention become so

coercive as to be, practically speaking, the functional equivalent

of an arrest. This level of interaction requires that the police have

probable cause to believe that the person so detained has

committed or is committing a crime.

Commonwealth v. Jefferson, 256 A.3d 1242, 1247-48 (Pa. Super. 2021)

(en banc) (citations, quotation marks, and ellipses omitted).

As provided for by statute, anytime a police officer has

“reasonable suspicion” to believe a violation of the Motor Vehicle

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Code is occurring or has occurred, the officer may initiate an

investigatory vehicle stop. 75 Pa.C.S.A. § 6308. Incident to this

stop, an officer may check the vehicle’s registration, the driver’s

license and obtain any information necessary to enforce provisions

of the motor vehicle code. Commonwealth v. Rosas, 875 A.2d

341, 346 (Pa. Super. 2005).

Mack, 953 A.2d at 589 (footnote omitted); see also Commonwealth v.

Campbell, 862 A.2d 659, 663 (Pa. Super. 2004) (“A forcible stop of a motor

vehicle by a police officer constitutes a seizure of a driver and the occupants;

this seizure triggers the protections of the Fourth Amendment.”).

Regarding the rights of passengers during traffic stops, this Court has

observed:

In Pennsylvania v. Mimms, 434 U.S. 106 (1977), the United

States Supreme Court held that police may require the driver of a

lawfully stopped vehicle to exit the vehicle without any additional

probable cause or reasonable suspicion[,] without violating an

individual’s Fourth Amendment rights. In so holding, the Court

balanced the need to protect police officers from the serious and

substantial dangers inherent in traffic stops, and the relatively

minor intrusion upon the privacy rights of the driver in situations

where the vehicle has been lawfully stopped.

Subsequently, this Court applied the rationale of Mimms to

allow a police officer to order passengers in a lawfully stopped

vehicle to exit that vehicle where the officer has an articulable and

reasonable suspicion that criminal activity may be afoot. See

Commonwealth v. Baer, 654 A.2d 1058 (Pa. Super. 1994);

Commonwealth v. Elliott, 546 A.2d 654 (Pa. Super. 1988).

Several years later, in Commonwealth v. Brown, 654

A.2d 1096 (Pa. Super. 1995), this Court, again relying on Mimms,

retreated from this reasonable suspicion standard and held that

“police may request both drivers and their passengers to alight

from a lawfully stopped car without reasonable suspicion that

criminal activity is afoot.” Brown, 654 A.2d at 1102. In so

holding, we opined that “in all cases involving lawful traffic stops,

it is not unreasonable for an officer to request that the passengers

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in a lawfully stopped car exit the vehicle so that the safety of the

officer is, if not insured, at least better protected.” Id. at 1102

n.5.

In Maryland v. Wilson, 519 U.S. 408 (1997), the United

States Supreme Court explicitly extended the rule of Mimms, as

this Court had in Brown, stating:

In summary, danger to an officer from a traffic stop is

likely to be greater when there are passengers in

addition to the driver in the stopped car. While there

is not the same basis for ordering the passengers out

of the car as there is for ordering the driver out, the

additional intrusion on the passenger is minimal. We

therefore hold that an officer making a traffic stop

may order passengers to get out of the car pending

completion of the stop.

Wilson, 519 U.S. at 414-15. Thus, following a lawful traffic

stop, an officer may order both the driver and passengers

of a vehicle to exit the vehicle until the traffic stop is

completed, even absent a reasonable suspicion that

criminal activity is afoot.

Pratt, 930 A.2d at 564 (Pa. Super. 2007) (citations modified; emphasis

added); see also Mack, 953 A.2d at 589 (“police may request both drivers

and their passengers to alight from a lawfully stopped car as a matter of

right.”); Campbell, 862 A.2d at 663-64 (quoting Wilson, 519 U.S. at 414)

(“The [Wilson] Court found that the interest in officer safety outweighs the

minor intrusion on passengers who are ‘already stopped by virtue of the stop

of the vehicle.’”). “Furthermore, police can require both the driver and

the passengers in a lawfully stopped vehicle to identify themselves

regardless of whether there is reasonable suspicion that the

passengers are engaged in criminal activity.” Bumbarger, 231 A.3d at

17-18 (citing Campbell, 862 A.2d at 664-65) (emphasis added).

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We have recognized that “roadside encounters between police and

suspects are especially hazardous, and that danger may arise from the

possible presence of weapons in the area surrounding a suspect.” In re O.J.,

958 A.2d 561, 564 (Pa. Super. 2008) (en banc) (quoting Michigan v. Long,

463 U.S. 1032, 1049 (1983)); see also Mimms, 434 U.S. at 110 (observing

“that a significant percentage of murders of police officers occurs when the

officers are making traffic stops” (citation omitted)); Brown, 654 A.2d at

1102 (observing that “due to the nature of the potential danger, an officer’s

concerns can only increase with the number of occupants in a car” (italics in

original)). As the United States Supreme Court has observed,

the risk of a violent encounter in a traffic-stop setting “stems not

from the ordinary reaction of a motorist stopped for a speeding

violation, but from the fact that evidence of a more serious crime

might be uncovered during the stop.” [Wilson, 519 U.S. at 414].

“[T]he motivation of a passenger to employ violence to prevent

apprehension of such a crime … is every bit as great as that of the

driver.” [Id.]

Johnson, 555 U.S. at 331-32.

Similarly, this Court has recognized

that when an officer detains a vehicle for violation of a traffic law,

it is inherently reasonable that he or she be concerned with safety

and, as a result, may order the occupants of the vehicle to alight

from the car. Allowing police officers to control all movement in a

traffic encounter is a reasonable and justifiable step towards

protecting their safety.

Commonwealth v. Wright, 224 A.3d 1104, 1109 (Pa. Super. 2019)

(citations, quotation marks, ellipses, and brackets omitted); see also Pratt,

930 A.2d at 567 (officers’ authority to control all movement during a traffic

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stop applies even where multiple officers are present, and does not depend

“on the ratio between officers and vehicle occupants”).

Instantly, the suppression court opined that it

properly granted the motion to suppress because the officers

subjected Defendant to an investigative detention without

reasonable suspicion. It is clear from the facts of the instant case

that a reasonable person in Defendant’s position would not believe

they were free to leave.

Suppression Court Opinion, 6/4/24, at 4; see also id. (“An investigative

detention, i.e., a Terry stop, occurs when, based on the totality of the

circumstances, a reasonable person would believe that they were not free to

go and were subject to police orders.”) (citing Commonwealth v. Plante,

914 A.2d 916, 921-22 (Pa. Super. 2006)).

The suppression court stated the officers

approached Defendant while he was sitting and eating food in the

passenger side of a parked vehicle. They then asked to see his

[identification] and instructed him to stop eating. N.T.[, 4/1/24,

at 40-41]. Therefore, the officers conducted an investigative

detention starting from the time they asked Defendant for his

[identification], and were required to have a reasonable suspicion

that criminal activity was afoot and that Defendant was involved.

The record shows no such reasonable suspicion.

The officers approached the vehicle because it was illegally

parked. [Id. at 15-16]. At the time of their approach, Defendant

was not in the driver’s seat of the vehicle, and Defendant

immediately told [the officers] that the driver was inside the

[corner store], which the officers confirmed. [Id. at 16].

Therefore, there could be no reasonable suspicion that Defendant

was involved in the criminal activity—here, illegally blocking a

crosswalk—that was afoot.

The behavior [the] officers alleged was “suspicious” began

after the investigate detention was underway, and the body-worn

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camera footage contradicts [the officers’] characterization of

Defendant’s behavior. [Id. at 41 (Officer Rumano’s testimony

that] Defendant becomes nervous as [Officer Rumano] is speaking

with him, around the time [Officer Kusowski] returns from the

[store])…. Officer Rumano testified that Defendant’s increasingly

nervous demeanor, including shaking hands, was a large part of

the reason [Officer Rumano] became suspicious, asked to search

Defendant’s bag, and had Defendant exit the vehicle. [Id. at 41].

[Officer Rumano] specifically noted Defendant’s hands were

shaking as he got his [identification]. However, the body-worn

camera footage contradicted this testimony. [The suppression

c]ourt, having reviewed the footage, determined that Defendant’s

hands were not shaking during the encounter, and that “there’s

nothing to indicate whatsoever that [D]efendant was nervous.”

[Id. at 66-67]. It is therefore clear from the record that [the]

officers did not have the reasonable suspicion or probable cause

required to detain Defendant, and that [the suppression c]ourt

properly granted the motion to dismiss.

Suppression Court Opinion, 6/4/24, at 4-5 (paragraph breaks added).

Our review discloses the suppression court’s factual findings are

supported by the record; however, its legal conclusion is erroneous. Because

Defendant was a passenger in a vehicle subject to a lawful traffic stop, 4 the

officers could require Defendant to provide identification and exit the vehicle

without reasonable suspicion that he was involved in criminal activity. See

Pratt, 930 A.2d at 564; Bumbarger, 231 A.3d at 17-18. The suppression

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4 Defendant cites no authority in support of his argument that the encounter

should be considered a pedestrian stop rather than a traffic stop. See

Defendant’s Brief at 8, 16. The suppression court specifically found Defendant

was “a passenger in a parked vehicle.” N.T., 4/1/24, at 67. It is undisputed

that the truck was parked in violation of the Motor Vehicle Code. See 75

Pa.C.S.A. § 3353 (prohibiting parking in a crosswalk); see also N.T., 4/1/24,

at 11-12 (suppression court stating, “It’s an egregious parking violation, no

doubt,” and Defendant’s counsel indicating agreement); Defendant’s Brief at

16 (acknowledging “the truck was obviously illegally parked”).

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court therefore erred in determining Officer Rumano’s request that Defendant

provide identification triggered an investigative detention requiring reasonable

suspicion. While Defendant may have believed he was not free to leave,

passengers in lawfully stopped vehicles are never free to leave, but rather are

subject to the officers’ authority to “control all movement in a traffic

encounter.” Wright, 224 A.3d at 1109; see also Johnson, 555 U.S. at 333

(“a traffic stop of a car communicates to a reasonable passenger that he or

she is not free to terminate the encounter with the police and move about at

will.”).

Our review discloses that, when Defendant exited the truck, the officers

immediately observed the firearm in Defendant’s sweatshirt pocket. Because

“police may request … passengers to alight from a lawfully stopped car without

reasonable suspicion that criminal activity is afoot,” Brown, 654 A.2d at 1102,

it is immaterial whether Defendant in fact displayed nervousness or otherwise

aroused the officers’ suspicion before requiring him to exit the truck. Upon

the officers’ immediate observation of the firearm, Defendant attempted to

flee and struggled with the officers. The officers lawfully seized the firearm

during the struggle, and recovered the drugs and money from Defendant’s

satchel in a lawful search incident to arrest. As the officers recovered the

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evidence without violating Defendant’s constitutional rights, 5 it should not

have been suppressed. Accordingly, we reverse the suppression court’s order.

Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Date: 3/3/2025

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5 Defendant’s argument that Officer Rumano’s questions to Defendant were

“completely unnecessary” to enforce the parking violation is unavailing.

Defendant’s Brief at 14. The United States Supreme Court has held that “[a]n

officer’s inquiries into matters unrelated to the justification for the traffic stop

… do not convert the encounter into something other than a lawful seizure, so

long as those inquiries do not measurably extend the duration of the stop.”

Johnson, 555 U.S. at 333 (citation omitted); see also Rodriguez v. U.S.,

575 U.S. 348, 354 (2015) (“the tolerable duration of police inquiries in the

traffic-stop context is determined by the seizure’s ‘mission’—to address the

traffic violation that warranted the stop and attend to related safety concerns.”

(citations omitted)); Commonwealth v. Ross, 297 A.3d 787, 798 (Pa.

Super. 2023) (officer asking whether driver “had a firearm was not

investigative and falls within the category of actions police officers may

undertake during a lawful traffic stop based solely on concerns for their safety

and security and without independent justification or cause.”). As Officer

Rumano’s conversation with Defendant addressed safety concerns and

occurred primarily while Officer Kusowski dealt with the driver, it did not

impermissibly extend the stop. Our review discloses just over two minutes

elapsed between the officers’ first contact with Defendant and their

observation of his firearm. See Exhibits C-10 and C-11. Officer Kusowski

spent less than twenty seconds assisting Officer Rumano with Defendant

before observing the firearm. Id.

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