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11/18/97 COMMONWEALTH PENNSYLVANIA v. AARON SHELLY

November 18, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
AARON SHELLY, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Lycoming County, Criminal Division, at No. 94-10, 980, 94-11, 023. Before SMITH, J.

Before: Popovich, Saylor and Eakin, JJ. Popovich, J. filed a Concurring and Dissenting Opinion.

The opinion of the court was delivered by: Eakin

OPINION BY EAKIN, J.:

Filed November 18, 1997

Aaron Shelly appeals from the judgment of sentence entered in the Court of Common Pleas of Lycoming County, following his conviction on charges of possession of a controlled substance, firearms not to be carried without a license, prohibited offensive weapons and obstructing the administration of law or other governmental function. *fn1 On appeal, appellant contends the following: 1) the police did not have "reasonable suspicion of criminality" to "justify a request for consent to search" the vehicle in which he was a passenger; 2) the police did not have justification for a Terry *fn2 frisk; and 3) his act of providing a false name to police did not constitute the offense of obstructing the administration of law or other governmental function. For the reasons set forth below, we affirm in part and reverse in part.

Our standard of review for the first issues is well-settled:

In reviewing the denial of a motion to suppress, our responsibility is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal Conclusions drawn from those findings. If the suppression court held for the prosecution, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Lopez, 415 Pa. Super. 252, 255, 609 A.2d 177, 178-79, alloc. denied, 533 Pa. 598, 617 A.2d 1273 (1992) (citation omitted). "If the evidence supports the findings of the lower court, we are bound by such findings and may reverse only if the legal Conclusions drawn therefrom are in error." Commonwealth v. Espada, 364 Pa. Super. 604, 607, 528 A.2d 968, 969 (1987) (citation omitted).

The relevant facts in this case are not in dispute, and the record supports the suppression court's factual findings. On June 8, 1994, at approximately 12:10 a.m., Troopers R. Scott Hunter and David J. Hamer of the Pennsylvania State Police were on routine patrol in Williamsport when they saw a car travelling forty-eight to fifty miles per hour in a thirty-five mile per hour zone. Trooper Hunter clocked the vehicle for three-tenths of a mile, then directed it to the side of the road.

Trooper Hunter approached the driver and Trooper Hamer approached appellant, who was in the passenger's seat; the Troopers asked both for identification, but neither could produce any. The driver gave Trooper Hunter his correct name, date of birth and social security number, produced the vehicle's registration card and proof of insurance, and provided names and phone numbers of local people who could identify him. The car was registered in the name of an individual with a Philadelphia address; the driver told Trooper Hunter this was an acquaintance.

While Trooper Hunter was talking to the driver, Trooper Hamer talked to appellant, who said his name was Mauline Goodman and that the same individuals who could identify the driver could also identify him. The troopers contacted one of these individuals who confirmed the driver's identity, but stated appellant had lied about his identity, as appellant's correct name was Aaron Shelly.

Appellant's answers to other questions (triggered by his lack of ID) were vague, contradictory, and inconsistent with the driver's answers to the same questions. For instance, asked how long he had been in Williamsport, appellant said he "just got here"; later he said "three weeks." At one point he could not say where he was staying; later he said he was staying with a Mr. Brown on High Street. Police were able to contact a Mr. Brown, but he did not live on High Street.

After learning the vehicle was not listed in the NCIC computer as stolen, Trooper Hunter returned the registration card to the driver and issued a warning to him for the speeding violation. The trooper then asked the driver if he could search the vehicle; the driver consented. After the two men stepped out of the car, both were frisked; Trooper Hamer discovered a pistol in appellant's waistband. Based on this, appellant was arrested, arraigned, and taken to the Lycoming County Prison. No contraband was discovered during the search of the car.

The same day, Corrections Officer Kelly searched appellant's pants pockets at the prison and discovered narcotics. On June 23, 1994, Corrections Officer Miller discovered cocaine in the front flap of appellant's underwear which had been in a secured receiving area since his commitment to prison.

Appellant filed a pre-trial motion to suppress the pistol and narcotics. Following an evidentiary hearing, the motion was denied. Appellant was tried October 19, 1994 and convicted of all charges; on January 26, 1995, he was sentenced to an aggregate sentence of three to nine years. This appeal followed.

In addressing appellant's arguments, *fn3 we first note he does not contend the initial stop of the vehicle in which he was a passenger was improper, or that the officers' conduct prior to issuing the driver a warning was improper. *fn4 Appellant has advanced two concise issues in regard to the search and seizure in this case, namely, whether the troopers had sufficient reasonable suspicion to justify a ...


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