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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

EMANUEL BRYANT,

                            Appellant                  No. 508 EDA 2013


        Appeal from the Judgment of Sentence entered January 8, 2013
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0002382-2011


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED FEBRUARY 18, 2015

        Emanuel Bryant (Appellant) appeals from the judgment of sentence of

six to twelve years’ incarceration plus two years’ probation, imposed January

8, 2013, following a bench trial resulting in his conviction for possession of a

controlled substance with intent to deliver, several firearms offenses,

knowing possession of a controlled substance, and possession of a small

amount of marijuana.1 Pursuant to Commonwealth v. Newman, 99 A.3d

86 (Pa. Super. 2014) (en banc), we vacate the judgment of sentence and

remand.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Respectively, 35 Pa.C.S. § 780-113(a)(30); 18 Pa.C.S. §§ 6105(a)(1),
6106(a)(1), 6108; 35 Pa.C.S. §§ 780-113(a)(16), and (a)(31).
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        In January 2011, Philadelphia police officers conducted a routine traffic

stop when they observed an automobile with dark-tinted windows. The stop

occurred at night in a high–crime area. As Officer Landherr approached the

automobile, Appellant engaged in unspecified, “furtive movements.” Notes

of Testimony (N.T.), 5/29/2012, at 29.        Appellant opened the driver-side

door.    Immediately, Officer Landherr smelled a strong odor of marijuana

emanating from the automobile.        Officer Landherr asked Appellant to step

out of the automobile and provide his license, registration, and insurance

information. Appellant exited the automobile and provided his license.

        The strong odor of marijuana persisted. Officer Landherr repeated his

request for the registration and proof of insurance.       Appellant responded

that the documentation was in the glove compartment.           Officer Denneny,

who was positioned on the passenger side of the vehicle, opened the door

and opened the glove compartment to retrieve the documentation. When he

did so, Officer Denneny observed four jars of what appeared to be crack

cocaine and an amber prescription pill bottle with no label.

        Appellant was arrested.     A subsequent search of the automobile,

pursuant to a warrant, revealed a small, loose quantity of marijuana in the

glove compartment and a loaded, semi-automatic handgun in the trunk.

        In May 2012, Appellant sought to suppress all physical evidence seized

from the automobile.       A hearing was held before the Honorable James

Murray Lynn, who denied the suppression motion. In October 2012, a bench


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trial commenced before the Honorable Angelo Foglietta.                 Following trial,

Appellant was convicted of the crimes set forth above. In January 2013, the

trial court imposed a sentence of six to twelve years’ incarceration plus two

years’ probation.       Appellant timely appealed.        Following delays awaiting

transcripts and the appointment of new counsel, Appellant timely filed a

court-ordered Pa.R.A.P. 1925(b) statement, and the suppression court filed

a responsive opinion.

      In   the   sole    issue   raised   on    appeal,   Appellant    challenges   the

suppression court’s denial of his motion to suppress all physical evidence

seized from the automobile. Appellant concedes that the police affected a

lawful stop of his vehicle.          See Appellant’s Brief, at 7 and 11-12.

Nevertheless, according to Appellant, the police officers had neither

reasonable suspicion nor probable cause to search the automobile.

      Where an appellant challenges the denial of his motion to suppress,

our standard of review is well settled.

      We may consider only the Commonwealth's evidence 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 factual findings of the trial court, we are
      bound by those facts and may reverse only if the legal
      conclusions drawn therefrom are in error. An appellate court, of
      course, is not bound by the suppression court's conclusions of
      law.

Commonwealth            v.   Gary,   91   A.3d    102,    106   (Pa.    2014)   (citing

Commonwealth v. Russo, 934 A.2d 1199, 1203 (Pa. 2007)).




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      Appellant’s argument focuses on a portion of Officer Landherr’s

testimony at the suppression hearing.        On cross-examination, Officer

Landherr testified as follows:

      Q.   And, now, it’s your testimony that you then asked him
      where was the registration and the insurance card, right?

      A.    That is correct.

      Q.    And his response was, as you stated or your testimony, is
      that he said it was in the glove compartment, is that right?

      A.    That’s correct.

      Q.    Did you ask him to get it?

      A.    I did not.

      Q.    Why not?

      A.    Based upon officer’s safety, I would not let this gentleman
      back in the vehicle when I have suspicions that there could be
      narcotics or weapons in the vehicle. So I would not let him back
      in the vehicle.

      Q.    [What] was the indicia that there were weapons in the
      vehicle?

      A.    Well, the marijuana, based upon my experience, where
      there is a strong smell of marijuana, there could possibly be
      weapons in the vehicle also.

N.T., 5/29/2012, at 15-16.

      Based upon Officer Landherr’s reference to officer safety, Appellant

crafts a red herring – rejecting as insufficient the evidence upon which the

suppression court could conclude that the officers had reasonable suspicion

to conduct a protective search of the glove compartment. See Appellant’s


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Brief, at 7 and 13-14 (citing in support Terry v. Ohio, 392 U.S. 1 (1968);

Commonwealth v. Zhahir, 751 A.2d 1153 (Pa. 2005); Commonwealth v.

Preacher, 827 A.2d 1235 (Pa. Super. 2003)).2

       In its opinion, filed nearly two years after the hearing, the suppression

court provided several bases for its denial of Appellant’s motion, including

that the officers were justified in conducting a protective search of the

passenger compartment of Appellant’s automobile. See Suppression Court

Opinion, 6/27/2014, at 5-6. We need not examine the merits of each legal

basis referenced by the suppression court.3         See Commonwealth v.

Cartagena, 63 A.3d 294, 301 (Pa. Super. 2013) (“[I]f the record supports

the result reached by the suppression court, we may affirm on any ground.”)

(en banc) (citing Commonwealth v. Lewis, 39 A.3d 341, 345 (Pa. Super.

2012)).     Rather, it is sufficient for our purposes to observe that the

suppression court’s initial ruling was that the strong odor of marijuana
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2
  None of the cases cited by Appellant is particularly helpful, as each
examines whether a police officer may stop and frisk an individual, not
whether an officer may conduct a protective search of an automobile.
Compare Terry, 392 U.S. at 7 (patting down a suspect’s overcoat), and
Zhahir, 751 A.2d at 1156 (same), and Preacher, 827 A.2d at 1237
(patting down the right pant leg of suspect), with Michigan v. Long, 463
U.S. 1032, 1034-35 (1983) (searching passenger compartment of
automobile), and Commonwealth v. Morris, 644 A.2d 721, 722 (Pa.
1994) (same), and Commonwealth v. Cartagena, 63 A.3d 294, 297 (Pa.
Super. 2013) (same).
3
  The suppression court relied, alternatively, on Appellant’s consent to
search, the plain view doctrine, a protective search for weapons, and the
plain smell doctrine.



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emanating from Appellant’s automobile presented probable cause for the

officers to search it. See N.T., at 77-81 (citing in support Commonwealth

v. Stoner, 344 A.2d 633 (Pa. Super. 1975)); see also Suppression Court

Opinion, at 6-8.

       In Stoner, this Court recognized “a ‘plain smell’ concept [as]

analogous to that of plain sight,” provided a police officer could “justify his

presence at the place … where he detected the odor[.]” Stoner, 344 A.2d

at 635. Here, Appellant concedes the validity of the traffic stop and does not

challenge the suppression court’s finding that a strong odor of marijuana

emanated from his automobile.           Moreover, marijuana was seized from the

automobile, and Appellant was convicted for its possession.          Thus, the

record supports the suppression court’s finding, and we discern no legal

error by the suppression court.         The strong smell of marijuana emanating

from Appellant’s automobile provided probable cause for the police officers

to search. Id.

       Nevertheless, we conclude that Appellant’s sentence is unlawful.4     In

Alleyne v. United States, 133 S.Ct. 2151 (2013), the United States

Supreme Court held that “[a]ny fact that, by law, increases the penalty for a

crime is an ‘element’ that must be submitted to the jury and found beyond a
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4
  Appellant does not challenge the legality of his sentence, but “[l]egality of
sentence questions are not waivable and may be raised sua sponte by this
Court.” Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013)
(en banc).



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reasonable doubt.”    Alleyne, 133 S.Ct. at 2155.      Thereafter, an en banc

panel of this Court declared that 42 Pa.C.S. § 9712.1 is unconstitutional, as

that statute “permits the trial court, as opposed to the jury, to increase a

defendant’s minimum sentence based upon a preponderance of the evidence

that the defendant was dealing drugs and possessed a firearm, or that a

firearm was in close proximity to the drugs.”       Newman, 99 A.3d at 98

(applying Alleyne). Here, the sentencing court relied upon Section 9712.1

expressly.      See N.T., 1/8/2013, at 67 (“The Court: … I note the

requirements of Section 9712.1, and I do find that it applies in this case[.]”).

Accordingly, we vacate Appellant’s judgment of sentence and remand for the

re-imposition of sentence, absent consideration of any mandatory minimum

sentence provided by Section 9712.1. Newman, 99 A.3d at 104.

      Judgment of sentence vacated.           Case remanded.        Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2015




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