J-S74038-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                   Appellee              :
                                         :
             v.                          :
                                         :
JOSHUA RAYMOND WATSON,                   :
                                         :
                   Appellant             : No. 1479 EDA 2014

            Appeal from the Judgment of Sentence April 28, 2014,
                Court of Common Pleas, Montgomery County,
              Criminal Division at No. CP-46-CR-0002077-2013

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                           FILED JUNE 23, 2015

       Appellant, Joshua Raymond Watson (“Watson”), appeals from the

judgment of sentence entered on April 28, 2014 by the Court of Common

Pleas of Montgomery County, Criminal Division, following his convictions of

persons not to possess, use, manufacture, control, sell, or transfer firearms

and firearms not to be carried without a license.1       Watson’s appellate

counsel (“Counsel”) seeks to withdraw from representation pursuant to

Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).        Upon review, we grant Counsel’s

petition to withdraw and affirm Watson’s judgment of sentence.

       The trial court summarized the facts and procedural history of this

case as follows:



1
    18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1).


*Retired Senior Judge assigned to the Superior Court.
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          The charges arose from events that occurred on
          February 11, 2013.        Around 11:20 p.m. that
          evening, Officer Daren Swain [(“Officer Swain”)] was
          monitoring traffic on Lancaster Avenue, in Lower
          Merion Township, Montgomery County.         After he
          noticed a silver Nissan travel through a red light, he
          activated his overhead lights in order to initiate a
          traffic stop of the vehicle. The vehicle eventually
          pulled over into a Getty gas station on Lancaster
          Avenue, which is in Haverford Township. Officer
          Swain approached the vehicle and became aware
          that Terrell Watson was in the driver’s seat, while
          [Watson] was in the passenger seat.

          Officer Swain detected the odor of burnt marijuana
          through the driver’s side window[,] which was
          cracked open. He also noticed that Terrell Watson’s
          eyes were a red, glassy color, consistent with
          someone smoking marijuana. Additionally, Terrell
          Watson fumbled his wallet while trying to retrieve his
          driver’s license in order to comply with the officer’s
          request. Upon being asked, Terrell Watson indicated
          that he did not have any marijuana on his person but
          that he smoked earlier with a female at Rosemont
          College. Officer Swain, having the suspicion that
          Terrell Watson could be driving under the influence
          of a controlled substance, requested backup from
          another officer.

          Officer Jeff Sullivan [(“Officer Sullivan”)] arrived to
          help and accordingly approached the passenger side
          of the vehicle.      At that point, Officer Sullivan
          observed American Eagle 9-millimeter ammunition in
          the back of the vehicle, which he called to the
          attention of Officer Swain who eventually began field
          sobriety-testing Terrell Watson. Officer Sullivan then
          opened the passenger’s door to speak with [Watson]
          and was hit with a strong odor of marijuana.
          [Watson] was asked to produce [] identification,
          which he eventually did after first indicating he did
          not believe he had one, and nervously patting his
          pockets. Officer Sullivan asked [Watson] if there
          were any weapons in the car or on him, and



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            [Watson] indicated several times that there were
            not.

            Officer Sullivan then requested that [Watson] get out
            of the vehicle in order for the officer to perform a
            pat-down search.        This prompted [Watson] to
            exclaim, “I have a gun on my right hip.” Officer
            Sullivan seized the weapon and handcuffed [Watson]
            to be taken into custody. He then performed a
            search incident to arrest on [Watson] and recovered
            a magazine that was loaded for the gun and
            marijuana that was in the pocket of his pants.

            A suppression hearing was held on October 30,
            2013, and the court denied the Motion to Suppress
            the firearm, ammunition magazine, and marijuana.
            [Watson] then continued to a stipulated bench trial
            on November 1, 2013. This court found [Watson]
            guilty of [the above-referenced] violations of the
            Uniform Firearms Act. Thereafter, he was sentenced
            on April 28, 2014 to [four to nine years of
            incarceration], to be served in a State Correctional
            Institution.

            [Watson] did not file any post-sentence motions. On
            May 12, 2014, he filed a counseled Notice of Appeal
            with [the] Superior Court. [Watson] subsequently
            complied with this court’s directive that he produce
            and serve a Concise Statement of Matters
            Complained of on Appeal within 21 days and in
            accordance with Pennsylvania Rule of Appellate
            Procedure 1925(b).

Trial Court Opinion, 7/18/14, at 2-4 (record citations omitted).

      On appeal, Counsel has filed a petition to withdraw and brief pursuant

to Anders and Santiago.        There are particular mandates that counsel

seeking to withdraw pursuant to Anders and Santiago must follow. These

mandates and the significant protection they provide to an appellant arise




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because a criminal defendant has a constitutional right to a direct appeal

and to counsel on that appeal. Commonwealth v. Woods, 939 A.2d 896,

898 (Pa. Super. 2007).      We have summarized these requirements as

follows:

            Direct appeal counsel seeking to withdraw under
            Anders must file a petition averring that, after a
            conscientious examination of the record, counsel
            finds the appeal to be wholly frivolous. Counsel must
            also file an Anders brief setting forth issues that
            might arguably support the appeal along with any
            other issues necessary for the effective appellate
            presentation thereof.

            Anders counsel must also provide a copy of the
            Anders petition and brief to the appellant, advising
            the appellant of the right to retain new counsel,
            proceed pro se or raise any additional points worthy
            of this Court’s attention.

            If counsel does not fulfill the aforesaid technical
            requirements of Anders, this Court will deny the
            petition to withdraw and remand the case with
            appropriate instructions (e.g., directing counsel
            either to comply with Anders or file an advocate’s
            brief on Appellant’s behalf).

Id. (citations omitted).

      Moreover, there are requirements as to the precise contents of an

Anders brief:

            [T]he Anders brief that accompanies court-appointed
            counsel’s petition to withdraw … must: (1) provide a
            summary of the procedural history and facts, with
            citations to the record; (2) refer to anything in the
            record that counsel believes arguably supports the
            appeal; (3) set forth counsel’s conclusion that the
            appeal is frivolous; and (4) state counsel’s reasons



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            for concluding that the appeal is frivolous. Counsel
            should articulate the relevant facts of record,
            controlling case law, and/or statutes on point that
            have led to the conclusion that the appeal is
            frivolous.

Santiago, 978 A.2d at 361. When faced with a petition to withdraw and an

Anders brief, we may not review the merits of the underlying issues without

first deciding whether counsel has properly requested permission to

withdraw. Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super.

2008) (citation omitted).    If counsel has met these obligations, “it then

becomes the responsibility of the reviewing court to make a full examination

of the proceedings and make an independent judgment to decide whether

the appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 354 n.5.

      We conclude that Counsel has complied with the requirements outlined

above.   Counsel has filed a petition with this Court stating that after

reviewing the record, he finds this appeal to be wholly frivolous. Petition to

Withdraw as Counsel, 8/29/14, ¶ 8. Counsel has filed a brief setting forth

one issue that he believes might arguably support an appeal. See Anders

Brief at 4, 16-27. In conformance with Santiago, Counsel’s brief includes

summaries of the facts and procedural history of the case and discusses the

issue he believes might support Watson’s appeal.           See id. at 5-27.

Counsel’s brief sets forth his conclusion that the appeal is frivolous and

includes citation to relevant authority.   See id. at 16-27. Finally, Counsel

has attached to his petition the letter that he sent to Watson, which enclosed



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Counsel’s petition and Anders brief and advised Watson of his right to

proceed pro se or with private counsel and to raise any additional issues that

he deems worthy of this Court’s consideration.2      Petition to Withdraw as

Counsel, 8/29/14, at 5-6.   Accordingly, we turn our attention to the issue

raised by Counsel in his Anders brief.

      Counsel raises one issue as arguably supporting an appeal: “[d]id the

trial court commit reversible error when it denied [Watson]’s motion to

suppress physical and testimonial evidence obtained by police at the time of

the traffic stop?” Anders Brief at 4. Counsel presents three arguments in

support of this issue.

      When reviewing a challenge to a trial court’s denial of a suppression

motion, our standard of review is as follows:

            Our standard of review in addressing a challenge to
            the denial of a suppression motion is limited to
            determining whether the suppression court’s factual
            findings are supported by the record and whether
            the legal conclusions drawn from those facts are
            correct.     Because the Commonwealth prevailed
            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. Where the suppression court’s
            factual findings are supported by the record, we are
            bound by these findings and may reverse only if the
            court’s legal conclusions are erroneous. Where, as
            here, the appeal of the determination of the
            suppression court turns on allegations of legal error,


2
  Watson did not file a pro se response raising any additional issues for our
consideration.


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              the suppression court’s legal conclusions are not
              binding on an appellate court, whose duty it is to
              determine if the suppression court properly applied
              the law to the facts. Thus, the conclusions of law of
              the courts below are subject to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012)

(quoting Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa. Super.

2012)). “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).

     The first argument that Counsel presents is that the trial court lacked

reasonable suspicion to stop the silver Nissan because the traffic signal was

not red when the vehicle traveled through the intersection and therefore, the

vehicle was not in violation of section 3112(a)(3)(i) of the Motor Vehicle

Code. Anders Brief at 20. Section 3112(a)(3)(i) of the motor vehicle code

provides:

              (i) Vehicular traffic facing a steady red signal alone
              shall stop at a clearly marked stop line, or if none,
              before entering the crosswalk on the near side of the
              intersection, or if none, then before entering the
              intersection and shall remain standing until an
              indication to proceed is shown except as provided in
              subparagraph (ii).

75 Pa.C.S.A. § 3112(a)(3)(i).

     Additionally, probable cause to stop a motor vehicle exists “where the

facts and circumstances within the officer’s knowledge are sufficient to



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warrant a person of reasonable caution in the belief that an offense has been

or is being committed.      We evaluate probable cause by considering all

relevant facts under a totality of circumstances analysis.” Commonwealth

v. Brown, 64 A.3d 1101, 1105 (Pa. Super. 2013), appeal denied, 79 A.3d

1096 (Pa. 2013) (quotations and citation omitted).

      We agree with Counsel that this issue is frivolous.      Officer Swain’s

testimony established sufficient probable cause to stop the silver Nissan for

a violation of section 3112(a)(3)(i). Officer Swain testified that he observed

the silver Nissan travel through a solid red signal.    N.T., 10/30/13, at 9.

Officer Swain explained that the light facing him was green, and the light

perpendicular to that, which the silver Nissan travelled through, was red.

Id. at 10.   The trial court found Officer Swain’s testimony credible.     Trial

Court Opinion, 7/18/14, at 5. Therefore, the record supports the trial court’s

determination that Officer Swain’s stop of the silver Nissan was lawful.

      The second argument that Counsel presents is that Officer Swain

violated the Municipal Police Jurisdiction Act (“MPJA”), 42 Pa.C.S.A. §§

8951–8954, when he travelled outside of his primary jurisdiction of Lower

Merion Township to stop the silver Nissan in Haverford Township. Anders

Brief at 21-23. Section 8953 of the MPJA governs statewide municipal police

jurisdiction and provides in pertinent part:

             (a) General rule.--Any duly employed municipal
             police officer who is within this Commonwealth, but
             beyond the territorial limits of his primary



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           jurisdiction, shall have the power and authority to
           enforce the laws of this Commonwealth or otherwise
           perform the functions of that office as if enforcing
           those laws or performing those functions within the
           territorial limits of his primary jurisdiction in the
           following cases:

                                *     *     *

                 (2) Where the officer is in hot pursuit of any
                 person for any offense which was committed,
                 or which he has probable cause to believe was
                 committed, within his primary jurisdiction and
                 for which offense the officer continues in fresh
                 pursuit of the person after the commission of
                 the offense.

42 Pa.C.S.A. § 8953(a)(2). Importantly, our Supreme Court has held that

“‘hot pursuit’ and ‘fresh pursuit’ require some sort of investigation and

tracking of the perpetrator and that [the] pursuit be immediate, continuous

and uninterrupted.”   Commonwealth v. Peters, 965 A.2d 222, 225 (Pa.

2009).

     We likewise agree with Counsel that this claim is frivolous.       Here,

Officer Swain testified that he observed the silver Nissan run a red light in

his primary jurisdiction of Lower Merion Township. N.T., 10/30/13, at 9-10.

Officer Swain further testified that he immediately began to follow the silver

Nissan, that he continuously tracked the vehicle until he was able to catch

up with it, at which point he activated his emergency lights and initiated a

traffic stop. See id. at 10. Officer Swain stated that he ultimately stopped

the silver Nissan outside of his primary jurisdiction in Haverford Township.




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Id.   Accordingly, the record supports the trial court’s determination that

Officer Swain’s stop of the silver Nissan was lawful as his actions were in

conformance with section 8953(a)(2). See Commonwealth v. McGrady,

685 A.2d 1008, 1011 (Pa. Super. 1996) (holding that section 8953(a)(2)

permitted police officer to continue pursuit of appellant outside the officer’s

primary jurisdiction in order to issue a citation for a motor vehicle code

violation committed in the officer’s primary jurisdiction).

      The third argument that Counsel presents is that the search and

seizure of Watson by the police following the vehicle stop was illegal because

the police had no reason to suspect that Watson was involved in any criminal

activity. Anders Brief at 23-27. The law regarding investigatory stops and

frisks is well-settled:

             In order to conduct an investigatory stop, the police
             must have reasonable suspicion that criminal activity
             is afoot. [Terry v. Ohio, 392 U.S. 1, 30 (1968)]. In
             order to determine whether the police had
             reasonable     suspicion,    the   totality   of   the
             circumstances – the whole picture – must be
             considered. United States v. Cortez, 449 U.S.
             411, 417[] (1981). “Based upon that whole picture
             the detaining officers must have a particularized and
             objective basis for suspecting the particular person
             stopped of criminal activity.” Id. at 417–418[]. To
             conduct a pat down for weapons, a limited search or
             “frisk” of the suspect, the officer must reasonably
             believe that his safety or the safety of others is
             threatened. Commonwealth v. Arch, [] 654 A.2d
             1141, 1144 ([Pa. Super.] 1995).          If either the
             seizure (the initial stop) or the search (the frisk) is
             found to be unreasonable, the remedy is to exclude
             all evidence derived from the illegal government



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           activity. Commonwealth v. Gibson, [] 638 A.2d
           203, 206–207 ([Pa.] 1994).

           The Terry totality of the circumstances test applies
           to traffic stops or roadside encounters in the same
           way that it applies to typical police encounters. See
           Commonwealth v. Mesa, [] 683 A.2d 643, 646
           ([Pa. Super.] 1996). Moreover, the principles of
           Terry apply to all occupants of the stopped vehicle,
           not just the driver. See id. (applying the principles
           of Terry to determine whether the police were
           permitted to conduct a pat down search of the
           passenger in a vehicle that was stopped pursuant to
           a motor vehicle violation). Indeed, as we have
           observed, “roadside encounters, between police and
           suspects are especially hazardous, and that danger
           may arise from the possible presence of weapons in
           the area surrounding a suspect.” In re O.J., 958
           A.2d 561, 564 (Pa. Super. 2008) (en banc)[.]

Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa. Super. 2011).

     We agree with Counsel that this claim is frivolous.       The evidence

supports the trial court’s finding that Officer Sullivan had reasonable

suspicion to believe that Watson may have been in possession of a weapon.

Officer Sullivan testified that the stop occurred late at night, that he

observed ammunition in plain view in the back seat of the silver Nissan, and

that Watson appeared anxious and nervously patted his pockets when asked

to produce identification. N.T., 10/30/13, at 48-50, 55. Watson, just prior

to the pat down, after initially stating he had no weapons, exclaimed to

Officer Sullivan that he had a gun on his right hip.   Id. at 51-52.   While

Watson asserts that the trial court should have suppressed this statement, it

was nonetheless admissible as evidence against him.      Our Court has held



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that “volunteered or spontaneous utterances by an individual are admissible

without the administration of Miranda warnings.”          Commonwealth v.

Garvin, 50 A.3d 694, 698 (Pa. Super. 2012).             Therefore, the record

supports the trial court’s conclusion that Officer Sullivan articulated specific

facts, which, under the totality of the circumstances, led him to reasonably

infer that Watson was armed, and therefore threatening his safety and the

safety of others.

      Finally, after conducting our own independent review of the record, we

conclude that there are no issues of merit and agree with Counsel’s

assessment that Watson’s direct appeal is frivolous. Accordingly, we find this

appeal wholly frivolous and permit Counsel to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.

      Bender, P.J.E. joins the Memorandum.

      Strassburger, J. files a Concurring Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/23/2015




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