J-A05026-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MALIK H. NOEL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 568 EDA 2017

Appeal from the Judgment of Sentence December 2, 2016

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

No(s): CP-51-CR-0006259-2013, 

MC-51-CR-0006441-2013

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

MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 13, 2018

Malik H. Noel (Appellant) appeals from the judgment of sentence 

imposed after the trial court convicted him of possession of a firearm by a 

prohibited person, carrying a firearm without a license, and carrying a 

firearm on public streets or public property in Philadelphia.1 We affirm.

The pertinent facts and procedural history are as follows: On February 

14, 2013, Philadelphia Police Sergeant William Schmid received three 

separate radio reports relaying anonymous tips of a black male with a gun in 

the area of the 3000 block of North 22nd Street in Philadelphia. The reports 

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1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108.
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indicated that the male was wearing a white thermal shirt, and that he had 

entered a barbershop.

Upon arriving on the 3000 block, Sergeant Schmid and his partner 

entered a hair salon to ask whether anyone had made the reports of a male

with a gun. A female responded that they did not, but informed the officers 

that there was a barbershop on the upstairs floor of the building. The 

officers left the hair salon and proceeded to the barbershop. Upon entering,

they observed two barbers attending to clients. The officers asked whether 

anyone had reported a male with a gun, and received no response. 

Sergeant Schmid then observed Appellant seated in a barber chair and

wearing a black barber’s cape. Appellant’s arms, which were not covered by 

the barber’s cape, revealed that he was wearing a white thermal shirt. 

When Sergeant Schmid observed Appellant move his left hand under the 

cape, the sergeant approached Appellant, asked to see his hand, and 

removed the cape. Appellant then leaned forward, and Sergeant Schmid 

saw the outline of a very large handgun protruding from Appellant’s 

waistband. Sergeant Schmid recovered the gun and arrested Appellant.

The Commonwealth charged Appellant with the aforementioned 

firearms offenses. Appellant presented a suppression motion which, 
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following a hearing on March 13, 2014, the trial court granted.

2

 Thereafter, 

the Commonwealth filed an interlocutory notice of appeal with this Court, 

certifying that the suppression order had terminated or substantially 

handicapped the prosecution. See Pa.R.A.P. 311(d). On June 17, 2015, a 

panel of this Court reversed the order granting the suppression motion, and 

remanded the case to the trial court. Commonwealth v. Noel, 122 A.3d 

1134 (Pa. Super. 2015) (unpublished memorandum). Following a non-jury 

trial, the trial court on January 12, 2016 found Appellant guilty of the 

aforementioned firearms offenses. On December 2, 2016, the trial court 

sentenced Appellant to an aggregate five years and one day to 17 years of 

imprisonment.

On January 5, 2017, Appellant filed a petition seeking reinstatement of 

his direct appeal rights, which the trial court granted on January 27, 2017.

Appellant filed a notice of appeal on February 9, 2017. Both Appellant and 

the trial court have complied with Pa.R.A.P. 1925.

Appellant presents the following two issues for our review:

1. Was Sgt. Schmid’s Terry frisk of [A]ppellant unlawful?

2. Should the firearm seized from [A]ppellant by Sgt. Schmid be 

suppressed as fruit of the poisonous tree?

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2 No written suppression motion or trial court order granting the motion 

appears in the record. However, on March 13, 2014, Appellant orally moved 

to suppress the firearm and the trial court granted the suppression motion 

on the record. N.T., 3/13/14, at 5, 63-64; see also Commonwealth v. 

Noel, 122 A.3d 1134 (Pa. Super. 2015) (unpublished memorandum at 3-4).
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Appellant’s Brief at 5.

In both of his issues, Appellant argues that the firearm should have 

been suppressed as the product of an unlawful search and seizure.

Appellant’s Brief at 10-12. Notably, Appellant “concedes that the present 

panel of the Superior Court cannot overrule the previous panel.” Id. at 9. 

Nevertheless, Appellant asserts that no reasonable and articulable basis 

existed to justify Sergeant Schmid’s actions, and that the firearm should 

have been suppressed as the product of an unlawful search and seizure and 

subsequent fruit of the poisonous tree. Id. at 10-12.

Upon review, we find that we are precluded from reviewing Appellant’s 

claims by the Law of the Case Doctrine. As noted above, this Court 

previously held that under the totality of the circumstances, suppression of 

the firearm was improper because Sergeant Schmid articulated specific facts 

which gave rise to reasonable suspicion and justified Sergeant Schmid’s 

actions in recovering the firearm.

“Whether the Law of the Case Doctrine precludes review in a given 

situation is a pure question of law. Therefore, our standard of review is de 

novo.” Commonwealth v. Lancit, 139 A.3d 204, 206 (Pa. Super. 

2016), appeal denied sub nom., Commonwealth v. Lancit, 164 A.3d 

465 (Pa. 2016) (internal citations omitted). “The Law of the Case Doctrine is 

an important tool of judicial efficiency that ‘serves to protect the 

expectations of the parties, to insure uniformity of decisions, to maintain 
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consistency in proceedings, to effectuate the administration of justice, and to 

bring finality to the litigation.’” Id. at 206-207.

Our Supreme Court has explained:

[T]he “law of the case” doctrine . . . refers to a family of 

rules which embody the concept that a court involved in the later 

phases of a litigated matter should not reopen questions decided 

by another judge of that same court or by a higher court in the 

earlier phases of the matter. Among the related but distinct 

rules which make up the law of the case doctrine are that . . . 

upon a second appeal, an appellate court may not alter 

the resolution of a legal question previously decided by 

the same appellate court . . .

The various rules which make up the law of the case 

doctrine serve not only to promote the goal of judicial economy

(as does the coordinate jurisdiction rule) but also operate (1) to 

protect the settled expectations of the parties; (2) to insure 

uniformity of decisions; (3) to maintain consistency during the 

course of a single case; (4) to effectuate the proper and 

streamlined administration of justice; and (5) to bring litigation 

to an end. 

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (emphasis 

added) (internal citations omitted). 

Accordingly, we are bound by this Court’s prior holding that 

suppression was improper because the firearm was not the product of an 

unlawful search and seizure. We recognize that a prior decision may be 

departed from in “exceptional circumstances such as where there has been 

an intervening change in the controlling law, a substantial change in the 

facts or evidence giving rise to the dispute in the matter, or where the prior 

holding was clearly erroneous and would create a manifest injustice if 

followed.” Commonwealth v. Santiago, 822 A.2d 716, 724 (Pa. Super. 
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2003), appeal denied, 843 A.2d 1237 (Pa. 2004), cert. denied, 542 U.S. 

942 (2004). Here, however, Appellant has not alleged, nor do we find, that 

any of the exceptions to the Law of the Case Doctrine apply. Appellant 

merely reiterates his claim that “no evidence exists upon which the Terry

search of [A]ppellant could be justified” – an argument that this Court 

already rejected. Appellant’s Brief at 11; Noel, supra. We therefore affirm

the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date:2/13/18