J-A18032-19

2020 PA Super 138

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM ARRINGTON 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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.

DISSENTING OPINION BY BOWES, J.: FILED JUNE 09, 2020

I join the Majority to the extent that it affirms the trial court’s rulings. 

However, unlike the Majority, I would also affirm the trial court’s findings that 

the protective search of the vehicle, and resulting inventory search, were

lawful. As such, I dissent to the portion of the Majority Opinion that concludes 

that the handgun recovered, along with any other evidence derived from the

later inventory search, should have been suppressed.

First, I disagree with the Majority’s decision to reach the substantive 

suppression issues without first considering whether Appellant had established 

a reasonable expectation of privacy in the contents of the vehicle. It is wellestablished that before we may proceed to a determination of an appellant’s 

substantive suppression claim, we must first discern whether Appellant has 

established standing to challenge the search and a privacy interest in the area 
J-A18032-19

- 2 -

searched. See Commonwealth v. Burton, 973 A.2d 428, 434-35 (Pa.Super. 

2009). 

Our Supreme Court has emphasized that these are distinct analyses:

While curiously similar, standing and privacy interest are different 

concepts serving different functions. Standing is a legal interest 

that empowers a defendant to assert a constitutional violation and 

thus seek to exclude or suppress the government’s evidence 

pursuant to the exclusionary rules under the Fourth Amendment 

of the United States Constitution or Article 1, Section 8 of the 

Pennsylvania Constitution. It ensures a defendant is asserting a 

constitutional right of his own. The expectation of privacy is an 

inquiry into the validity of the search or seizure itself; if the 

defendant has no protected privacy interest, neither the Fourth 

Amendment nor Article I, § 8 is implicated. In essence, while a 

defendant’s standing dictates when a claim under Article I, § 8 

may be brought, his privacy interest controls whether the claim 

will succeed – once a defendant has shown standing, he must, in 

short, have brought his claim, demonstrate its merits by a 

showing of his reasonable and legitimate expectation of privacy in 

the premises. 

See Commonwealth v. Enimpah, 106 A.3d 695, 698-99 (Pa. 2014) 

(citations and quotations omitted).

Since Appellant was charged with a possessory offense, he automatically 

had standing to challenge the suppression of the items seized. See 

Commonwealth v. Viall, 890 A.2d 419, 421 (Pa.Super. 2005). However, 

the Commonwealth contends that Appellant failed to establish a legitimate 

expectation of privacy in the vehicle’s contents. See Commonwealth’s brief 

at 5. I agree.

A reasonable expectation of privacy exists when an individual exhibits 

an actual subjective expectation of privacy and that expectation is one that 
J-A18032-19

- 3 -

society is prepared to recognize as legitimate. See Commonwealth v. 

Jones, 874 A.2d 108, 118 (Pa.Super. 2005). In order to discern whether an 

expectation of privacy is reasonable, the totality of the circumstances must be 

considered and the societal interests involved must be balanced. Id. at 118 

(“The constitutional legitimacy of an expectation of privacy is not dependent 

on the subjective intent of the individual asserting the right but on whether 

the expectation is reasonable in light of all the surrounding circumstances.”).

The Commonwealth relies on Commonwealth v. Maldonado, 14 A.3d 

907 (Pa.Super. 2012), as support for its position that Appellant did not have 

a reasonable expectation of privacy in the vehicle. See Commonwealth’s brief 

at 7. In Maldonado, the defendant was pulled over while driving a car owned 

by his paramour. Maldonado, supra at 911. Police searched the vehicle and 

recovered drugs and guns. The defendant challenged the search in a pretrial 

motion. At the resulting suppression hearing, the Commonwealth adduced

evidence that the vehicle was owned by the defendant’s girlfriend and that 

they both lived at the address where the vehicle was registered. Id. However, 

the defendant did not testify or offer any evidence that he had permission to 

drive the vehicle. Id. The suppression court granted the defendant’s 

suppression motion. On appeal we reversed, finding that Appellant had not 

established a reasonable expectation of privacy in the vehicle since he did not 

own the vehicle, it was not registered to him, and he had not shown authority 

to operate it. Id. at 911-12.
J-A18032-19

- 4 -

Here, at the suppression hearing, the Commonwealth established that 

the automobile was a leased vehicle. See N.T. Suppression Hearing, 2/14/18, 

at 15, 34-35, 37. However, it was never revealed to whom the vehicle was 

leased. Appellant did not testify or otherwise offer any evidence establishing

that he was the lessee of the vehicle or that he had the lessee’s permission to 

operate it. Instead, the sole testimony about the ownership of the car came 

from Pittsburgh Police Officer Gino Macioce, who explained that the vehicle 

was a leased car, but that he did not know to whom the vehicle was leased.1 

Id. at 39-40. 

Accordingly, as in Maldonado, I would conclude that Appellant has 

failed to establish a legally cognizable expectation of privacy in the vehicle. 

See, Maldonado, supra at 911-12; see, e.g., Commonwealth v. Perea, 

791 A.2d 427, 429 (Pa.Super. 2002) (finding that an appellant had not 

established a privacy interest in a vehicle where he merely possessed the keys 

needed to unlock it, without any paperwork to show ownership or any other 

legitimate connection to it). Since we may affirm on any basis supported by 

the record, I would affirm the trial court’s denial of the suppression motion on 

____________________________________________

1

In its brief, the Commonwealth correctly points out that although testimony 

at trial revealed that Appellant had rented the vehicle, we cannot examine 

evidence beyond the suppression hearing when reviewing a pretrial 

suppression issue, unless it is established that such evidence was unavailable 

during the suppression hearing. See Commonwealth’s brief at 5 n.1. 

Appellant has leveled no such contention.
J-A18032-19

- 5 -

the ground that Appellant did not establish a reasonable expectation of privacy 

in the vehicle and its contents. 

Although my proposed disposition would obviate the need to reach the 

substantive suppression issue addressed by the Majority, I will briefly explain 

why I also disagree with this portion of my colleagues’ analysis. In short, our 

differing conclusion on the substantive suppression issue stems from the 

Majority’s failure to apply the proper standard of review. See Majority Opinion

at 4. In its summation, the Majority reviewed the facts elicited at the 

suppression hearing de novo. It is well-settled that where “the 

Commonwealth prevail[s] before the suppression court, we 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.” Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super. 

2017). Therefore, while the trial court’s conclusions of law are subject to 

plenary review, we are bound by the trial court’s factual findings when they 

are supported by the record. Id. 

The Majority summarized the factual findings that the suppression court 

made that led it to determine that the officers were justified in performing a 

protective sweep of the vehicle as follows:

In its factual findings, the suppression court credited Officer 

Macioce’s testimony that: (1) the stop occurred in the dark at 

2:00 a.m. in a high crime area; (2) Appellant exhibited signs of 

intoxication and nervousness when he was staring off and failing 

to comply with the officer’s requests and demands; (3) Appellant 

was observed moving slowly and deliberately inside of the vehicle, 
J-A18032-19

- 6 -

raising concerns that Appellant could have access to a weapon; 

(4) Appellant’s concealed carry permit had been revoked; and (5) 

that the DUI investigation was ongoing such that officers were 

going to have to release Appellant from the handcuffs in order for 

him to do field sobriety testing. 

See Majority Opinion at 11. However, instead of accepting the foregoing facts 

as true, and discerning whether the law supported the suppression court’s 

ultimate legal conclusion, the Majority substituted in its own evaluation of the 

credibility of Officer Macioce’s testimony. Specifically, the Majority concluded

that Officer Macioce’s testimony did not support a finding that Appellant 

engaged in furtive movements or appeared nervous, facts that the 

suppression court plainly found when it credited Officer Macioce’s testimony. 

See Majority Opinion at 11. Such a conclusion runs counter to our standard 

of review. 

When viewing the evidence through the lens that our standard of review 

mandates, and applying the legal standard required for a wingspan search as 

articulated by the Majority, I would find that the protective sweep was legally 

justified. The stop occurred shortly after midnight in an “extreme high crime 

area,” creating a heightened danger that the officers would not be able to view 

Appellant if he did reach for a weapon. See Commonwealth v. Jackson, 

907 A.2d 540, 545 (Pa.Super. 2006) (recognizing that frisks for weapons can 

be appropriate when police confront a suspect in an area known for guns and 

violence). Appellant had been driving dangerously and initially failed to 

comply with basic commands to put his vehicle in park. Appellant also 
J-A18032-19

- 7 -

exhibited nervousness, had a revoked gun permit, and was observed 

“reaching around” while in the vehicle. This evasive behavior supported the 

officers’ concerns for their safety. Commonwealth v. Truggles, 58 A.3d 

840, 844 (Pa.Super. 2012) (“Where a person performs an activity that is 

indicative of an attempt to secrete a weapon, that movement, regardless of 

whether it is singular or multiple, can support a belief that the person has a 

gun.”). 

Given the totality of the facts at Officer Macioce’s disposal, I agree with 

the trial court that the officer reasonably believed that a weapon may have 

been secreted within Appellant’s wingspan, such that the resulting search was 

not unconstitutional. See, e.g., Commonwealth v. In re O.J., 958 A.2d 

561, 566 (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, made furtive movements inside the vehicle, and was going 

to be released back to his vehicle). 

In arriving at its contrary conclusion, the Majority views as dispositive 

the fact that, at the time of the protective sweep, Appellant had already been 

removed from the vehicle and handcuffed. See Majority Opinion at 12 

(“Arrington was in handcuffs, positioned at the rear of his vehicle, out of reach 

of the passenger compartment. . . . Therefore, Arrington posed no threat to 

the officers’ safety.”). However, reaching such a definitive conclusion based 

solely on the fact that Appellant had been temporarily removed from the 
J-A18032-19

- 8 -

vehicle is not supported by our precedent or the testimony elicited at the 

suppression hearing. 

It is well-established that a protective search of the interior of a vehicle 

is not unreasonable simply because the person is under police supervision 

outside of the vehicle. See Commonwealth v. Morris, 644 A.2d 721 (Pa. 

1994) (adopting Michigan v. Long, 463 U.S. 1032, 1051 (1983) (rejecting 

the contention that a protective search of the interior of a car is unreasonable 

where the person is under police supervision outside of the vehicle)). Instead, 

a proper analysis focuses on whether a danger remains that the suspect could 

access weapons inside of the vehicle. See, e.g. In re O.J., supra at 563 

(“Even though Appellee and the passenger were secure at that point, a brief 

search of the car was necessary because Appellee and the passenger were not 

going to be placed under arrest for the Motor Vehicle Code violations but were 

going to be allowed to return to their car.”); see also Long, supra at 1051 

(upholding a protective sweep where the police intended to release the 

suspect from his handcuffs, because once the suspect reentered his 

automobile, he would regain access to any weapons that might have been

located in the vehicle). 

Here, the officers intended to remove the handcuffs from Appellant so 

that he could engage in field sobriety testing. N.T. Suppression Hearing, 

2/14/18, at 40. Further, Officer Macioce explained that, if Appellant had 

succeeded on the field sobriety testing, he would have been released back to 
J-A18032-19

- 9 -

his vehicle because he would have only been charged with a Motor Vehicle 

Code violation. Id. Therefore, the danger that Appellant could have accessed 

a weapon secreted inside the vehicle had not been extinguished at the time 

that the officers conducted the protective sweep. 

Based on the foregoing discussion, I would affirm the trial court’s denial 

of Appellant’s suppression motion and respectfully dissent from the Majority’s 

decision to reverse the judgment of sentence on Appellant’s firearms not to 

be carried without a license, possession of drug paraphernalia, possession of 

a controlled substance, and possession with intent to deliver convictions.