J-S15042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    ANDRE LAMONT RANDOLPH                      :
                                               :
                       Appellant               :      No. 1503 WDA 2018

        Appeal from the Judgment of Sentence Entered October 9, 2018
                In the Court of Common Pleas of Fayette County
            Criminal Division at No(s): CP-26-CR-0000458-2018


BEFORE:      GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                            FILED MAY 10, 2019

        Appellant, Andre Lamont Randolph, appeals from the judgment of

sentence entered in the Fayette County Court of Common Pleas, following his

jury trial convictions for four counts each of possession of a controlled

substance and possession with intent to deliver (“PWID”), and one count of

possession of drug paraphernalia.1 For the following reasons, we affirm.

        The relevant facts and procedural history of this case are as follows.

The City of Connellsville Police Department, in conjunction with the Fayette

County Bureau of Investigation, had an ongoing investigation into a series of

drug sales out of a residence located at 109 Gibson Terrace in Connellsville.

Police had conducted multiple controlled drug buys at the residence and


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1   35 P.S. §§ 780-113(a)(16), (30), and (32), respectively.
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* Retired Senior Judge assigned to the Superior Court.
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learned that Appellant was the person selling drugs from the home.           On

January 29, 2018, police received information that Appellant was going to

leave 109 Gibson Terrace in a white Chevy truck, travel to Pittsburgh, and

then return to the property. Based on this information, Detective Thomas

Patton drove to the home and observed Appellant enter the front passenger

side of a white Chevy truck. When the vehicle left the property, Detective

Patton followed it for some time. While following the truck, Detective Patton

observed it had an out-of-state license plate and a broken taillight.

      Police had also received information that the truck would take the

Pennsylvania Turnpike to and from Pittsburgh.       Multiple officers stationed

themselves at the New Stanton Interchange to await Appellant’s return. Soon

after the truck returned to Connellsville, police effectuated a traffic stop for

the broken taillight. Upon approaching the vehicle, Detective Patton noticed

a strong odor of marijuana, particularly around Appellant who was sitting in

the front passenger seat. Detective Patton asked Appellant to step out of the

vehicle and patted Appellant down purportedly for “officer safety.” Appellant

was wearing multiple layers of clothing, which impaired the pat-down, but

Detective Patton felt an unidentified object hanging from Appellant’s leg. Due

to the odor of marijuana, the unidentified object, and the circumstances

surrounding Appellant’s involvement in the 109 Gibson Terrace investigation,

police took Appellant into custody.    At the police station, Detective Patton

searched Appellant before placing him in a holding cell. In Appellant’s multiple


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layers of clothing Detective Patton found a pill bottle containing marijuana,

four cellular phones, $6,467.00 in cash, $5.64 in coins, a flashlight, a lock, an

inhaler, three compact discs, an ID belonging to “Cody Nicholson,” and a set

of keys. During the inventory search, Detective Patton asked Appellant about

the keys, and Appellant answered that the keys were to a safe.

        Given all of the circumstances, police obtained a search warrant for 109

Gibson Terrace and discovered more contraband, including four digital scales

and six firearms (five handguns and a sawed off shot gun).           Police also

discovered a safe. Using the keys found on Appellant’s person, police opened

the safe and discovered crack cocaine, heroin, marijuana, and cash.         As a

result, the Commonwealth charged Appellant with six counts of possession of

a firearm prohibited, four counts each of possession of a controlled substance

and PWID, two counts of receiving stolen property, and one count each of

possession of drug paraphernalia and possession of offensive weapons.

        On October 1, 2018, Appellant filed an omnibus pre-trial motion to

suppress all of the evidence against him as originally derived from the Terry2

frisk that took place outside the truck, as well as his statement regarding the

key for the safe.        On the same day, the court suppressed Appellant’s

statement concerning the keys but otherwise denied the motion in regard to

the Terry frisk.      Following a trial on October 3, 2018, a jury convicted



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2   Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

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Appellant of all drug-related charges and acquitted him of all firearms charges.

The court sentenced Appellant on October 9, 2018, to twenty-four (24)

months’ to eight (8) years’ incarceration for PWID with no further penalties

for the remaining convictions. Appellant timely filed a notice of appeal on

October 18, 2018. On October 19, 2018, the court ordered Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), which Appellant timely filed on November 1, 2018.

      Appellant raises the following issue for our review:

         DID THE TRIAL COURT ERR IN DENYING APPELLANT’S
         MOTION TO SUPPRESS ALL EVIDENCE FOUND ON HIS
         PERSON BASED UPON THE OFFICER’S LACK OF
         JUSTIFICATION TO INSTITUTE A TERRY FRISK OF
         APPELLANT?

(Appellant’s Brief at 7).

      Appellant argues that police lacked justification to perform the Terry

frisk during the traffic stop.   Appellant alleges Detective Patton failed to

articulate specific facts which would have led an objective person to believe

Appellant was armed and dangerous and justified a pat-down search for

weapons. Appellant asserts police stopped the vehicle he was traveling in for

a broken taillight.   Appellant stresses Detective Patton testified he patted

Appellant down for “officer safety,” and further testified he did not believe the

unidentified object in Appellant’s pant leg was a weapon. Appellant maintains

he complied with all officer demands and did not make any furtive movements

during the stop. Appellant emphasizes that the odor of marijuana was not


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enough to justify the pat-down. Appellant contends this illegal Terry frisk led

to Appellant’s detention, the search of Appellant’s clothing at the police

station, the detection of the keys to the safe, and, ultimately, the discovery

of the contraband in the safe. Appellant concludes that all items found on

Appellant’s person, including the keys, should have been suppressed and

Appellant should be granted a new trial. We cannot agree.

      We review the denial of a suppression motion as follows:

         Our standard of review in addressing a challenge to a trial
         court’s denial of a suppression motion is limited to
         determining whether the factual findings are supported by
         the record and whether the legal conclusions drawn from
         those facts are correct.

            [W]e may consider only the evidence of the
            prosecution and so much of the evidence for the
            defense as remains uncontradicted when read in the
            context of the record as a whole. Where the record
            supports the findings of the suppression court, we are
            bound by those facts and may reverse only if the court
            erred in reaching its legal conclusions based upon the
            facts.

Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en

banc) (internal citations and quotation marks omitted).      “It is within the

suppression court’s sole province as factfinder to pass on the credibility of

witnesses and the weight to be given their testimony.” Commonwealth v.

Clemens, 66 A.3d 373, 378 (Pa.Super. 2013) (quoting Commonwealth v.

Gallagher, 896 A.2d 583, 585 (Pa.Super. 2006)).

      Section 6308 of the Motor Vehicle Code provides:

         § 6308. Investigation by police officers

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         (b) Authority of police officer.—Whenever a police
         officer is engaged in a systematic program of checking
         vehicles or drivers or has reasonable suspicion that a
         violation of this title is occurring or has occurred, he may
         stop a vehicle, upon request or signal, for the purpose of
         checking the vehicle’s registration, proof of financial
         responsibility, vehicle identification number or engine
         number or the driver’s license, or to secure such other
         information as the officer may reasonably believe to be
         necessary to enforce the provisions of this title.

75 Pa.C.S.A. § 6308(b). Pennsylvania law makes clear, however, that a police

officer has probable cause to stop a motor vehicle if the officer observed a

traffic code violation, even if it is a minor offense. Commonwealth v. Chase,

599 Pa. 80, 89, 960 A.2d 108, 113 (2008). “[W]hen a police officer lawfully

stops a motorist for a violation of the Pennsylvania Motor Vehicle Code, the

officer is permitted to ask the driver to step out of the vehicle ‘as a matter of

right.’” Commonwealth v. Boyd, 17 A.3d 1274, 1277 (Pa.Super. 2011),

appeal denied, 611 Pa. 677, 29 A.3d 370 (2011) (citation and internal

quotation marks omitted). Due to the inherent risks where an officer confronts

a suspect, an officer may conduct a protective search of a lawfully stopped

suspect if there are reasonable grounds to believe the suspect may be armed

and dangerous. Terry, supra.

      Instantly, police had probable cause to stop the white Chevy truck,

based on the broken taillight in violation of 75 Pa.C.S.A. § 4303 (governing

general lighting requirements of motor vehicles operated on roadways). See

Chase, supra. Police were also permitted to ask Appellant to step out of the

vehicle. See Boyd, supra. In evaluating whether police were justified in the

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Terry frisk of Appellant, however, the record lacked evidence that police had

reason to believe Appellant was armed and dangerous. The Commonwealth

presented no testimony that Appellant’s clothing had any unusual bulges or

that Appellant made furtive movements during the traffic stop.         Detective

Patton stated he patted Appellant down for “officer safety.”        That simple

statement alone does not rise to the level of a particularized or reasonable

suspicion Appellant was armed and dangerous. While the odor of marijuana

emanating from Appellant and the vehicle during the traffic stop was enough

to suspect criminal activity, it was still not enough to justify the pat-down for

weapons. See In Interest of S.J., 551 Pa. 637, 713 A.2d 45 (1998) (holding

Terry frisk was unjustified where, despite testimony officer detected odor of

marijuana on appellant and witnessed appellant’s group smoking marijuana,

officer failed to articulate specific facts to support belief that appellant was

armed and dangerous).       Absent specific, reasonable grounds to believe

Appellant was armed and dangerous, the pat-down of Appellant was unlawful.

See Terry, supra. In any event, the pat-down yielded nothing and did not

form the sole basis for Appellant’s detention.

      Notwithstanding the unlawful frisk during the traffic stop, the officers

already had probable cause to detain Appellant, given his strong odor of

marijuana as well as his extensive and verified involvement in the drug activity

at 109 Gibson Terrace.     As a result, the subsequent search of Appellant’s

clothing at the police station constituted a valid inventory search incident to


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his detention. See Commonwealth v. Nace, 524 Pa. 323, 327, 571 A.2d

1389, 1391 (1990), cert. denied, 498 U.S. 966, 111 S.Ct. 426, 112 L.Ed.2d

411 (1990) (stating: “[I]t is reasonable for police to search the personal

effects of a person under lawful arrest as part of the routine administrative

procedure at a police station house incident to booking and jailing the

suspect”). Thus, the court properly refused to suppress the tangible evidence

recovered. In other words, the earlier unlawful pat-down was not the sole

cause of Appellant’s detention and did not serve to taint the physical evidence

obtained at the police station and from the subsequent search of Appellant’s

residence per a valid warrant. Accordingly, we affirm.

      Judgment of sentence affirmed.

      Judge Colins joins this memorandum.

      Judge Shogan concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/2019




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