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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

JERREL BIRCH

                         Appellee                     No. 63 EDA 2014


                 Appeal from the Order December 6, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0009203-2013


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                           FILED MAY 03, 2016

      Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Philadelphia County Court of Common Pleas, which granted

the motion to suppress evidence filed on behalf of Appellee, Jerrel Birch. We

affirm in part, reverse in part, and remand for further proceedings.

      The relevant facts and procedural history of this appeal are as follows:

         Officer Yancer was on duty in full uniform and in a marked
         police vehicle with his partner, Officer Makus, on June 29,
         2013. At approximately 3:15 p.m., their tour of duty
         brought them to the area of 4061 [Frankford] Avenue in
         the City and County of Philadelphia.         Officer Yancer
         testified that he [smelled] the odor of burnt marijuana and
         pulled into a gas station behind a grey Pontiac. Officer
         Yancer observed [Appellee] standing outside the driver
         side door of the vehicle. Officer Yancer then observed
         [Appellee] grab something from his waistband and reach
         toward the center console of the vehicle. Officer Yancer
         approached the vehicle, which had two male passengers
         and a female passenger. Once he arrived at the vehicle,
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          he observed four vials of marijuana in plain view in the cup
          holder. Officer Yancer then reached in and opened the
          center console of the vehicle, and found a silver 380
          Larson handgun. [Appellee] began walking away, and
          Officer Yancer caught up with him, frisked him, and placed
          him under arrest. [Appellee] admitted that he did not
          have a license to carry a handgun. Officer Yancer then
          obtained consent to search the vehicle from the vehicle’s
          owner, who was one of the other passengers. No other
          contraband was found in the vehicle.

(Trial Court Opinion, filed July 21, 2015, at 2) (internal citations omitted).

        Procedurally, Appellee filed a suppression motion on November 18,

2013.     The court held a suppression hearing on December 4, 2013, and

granted Appellee’s suppression motion on December 6, 2013. On January 6,

2014, the Commonwealth timely filed a notice of appeal1 and a voluntary

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

1925(b). The court also ordered the Commonwealth to file a Rule 1925(b)

statement on May 8, 2014, and the Commonwealth timely refiled the same

statement on May 15, 2014.

        The Commonwealth raises the following issue for our review:

          WHERE AN OFFICER APPROACHED A CAR BECAUSE IT
          SMELLED LIKE MARIJUANA, SAW [APPELLEE] LEAN INTO
____________________________________________


1
   The Commonwealth’s notice of appeal certifies that the court’s order
granting Appellee’s motion to suppress terminates or substantially handicaps
the prosecution. See Pa.R.A.P. 311(d); Commonwealth v. Huntington,
924 A.2d 1252, 1254 n.1 (Pa.Super. 2007), appeal denied, 593 Pa. 746, 931
A.2d 656 (2007) (stating: “The Commonwealth may take an appeal as of
right from an order that does not end the entire case if the Commonwealth
certifies in the notice of appeal that the order will terminate or substantially
handicap the prosecution”).



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         THE CAR AND PUT AN OBJECT FROM HIS WAISTBAND
         INTO THE CENTER CONSOLE, SAW MARIJUANA IN PLAIN
         VIEW IN THE CAR, AND THEN OPENED THE CONSOLE AND
         FOUND A GUN INSIDE, DID THE [SUPPRESSION] COURT
         ERR IN SUPPRESSING THE MARIJUANA AND GUN ON THE
         GROUND THAT THE OFFICER CONTINUED TO SEARCH THE
         CAR, WITHOUT OBTAINING A WARRANT, AFTER FINDING
         EVIDENCE OF A CRIME?

(Commonwealth’s Brief at 4).

      The Commonwealth argues Officer Yancer had probable cause to

search the vehicle, based on the smell of marijuana, his observation of

marijuana in plain view in the cup holder of the vehicle, and the fact that he

saw Appellee put an unidentified object into the center console of the

vehicle. The Commonwealth submits the console search was lawful because

Officer Yancer had probable cause to believe there was contraband inside

the console, having seen marijuana in plain view in the cup holder.       The

Commonwealth also asserts the search of the center console was proper as a

protective search because Officer Yancer and his partner were outnumbered

and Officer Yancer saw Appellee take an object from his waistband and put it

into the center console of the vehicle.   The Commonwealth concludes we

should reverse the suppression court’s order. We agree in part.

      When the Commonwealth appeals from a suppression order, the

relevant scope and standard of review are:

         [We] consider only the evidence from the defendant’s
         witnesses together with the evidence of the prosecution
         that, when read in the context of the entire record,
         remains uncontradicted.    As long as there is some
         evidence to support them, we are bound by the

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           suppression court’s findings of fact. Most importantly, we
           are not at liberty to reject a finding of fact which is based
           on credibility.

           The suppression court’s conclusions of law, however, are
           not binding on an appellate court, whose duty is to
           determine if the suppression court properly applied the law
           to the facts.

Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),

appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (internal citations and

quotation marks omitted).

      “[T]he Fourth Amendment to the United States Constitution and Article

I, § 8 of the Pennsylvania Constitution protect citizens from unreasonable

searches and seizures and, to that end, a search conducted without a

warrant is generally presumed unreasonable unless it is undertaken

pursuant     to   a   recognized    exception   to   the   warrant   requirement.”

Commonwealth v. Lechner, 685 A.2d 1014, 1016 (Pa.Super. 1996).

           The level of probable cause necessary for warrantless
           searches of automobiles is the same as that required to
           obtain a search warrant. The well-established standard for
           evaluating whether probable cause exists is the “totality of
           the circumstances” test. This test allows for a flexible,
           common-sense approach to all circumstances presented.
           Probable cause typically exists where the facts and
           circumstances within the officer’s knowledge are sufficient
           to warrant a person of reasonable caution in the belief that
           an offense has been or is being committed. The evidence
           required to establish probable cause for a warrantless
           search must be more than a mere suspicion or a good faith
           belief on the part of the police officer.

Id. (internal citations omitted).




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      The Pennsylvania Supreme Court recently held in Commonwealth v.

Gary, 625 Pa. 183, 91 A.3d 102 (2014), that Article I, Section 8 of the

Pennsylvania Constitution affords no greater protection with respect to

warrantless searches of motor vehicles than does the Fourth Amendment to

the United States Constitution. Id. at 242, 91 A.3d at 138. Under either

constitutional provision, “The prerequisite for a warrantless search of a

motor vehicle is probable cause to search; no exigency beyond the inherent

mobility of a motor vehicle is required.”     Id.   Additionally, “[i]f a car is

readily mobile and probable cause exists to believe it contains contraband,

the Fourth Amendment permits police to search the vehicle without more.”

Id. at 199, 91 A.3d at 111-12 (quoting Pennsylvania v. Labron, 518 U.S.

938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed. 2d 1031, ___ (1996)).

      “[W]here an appellate decision overrules prior law and announces a

new principle, unless the decision specifically declares the ruling to be

prospective only, the new rule is to be applied retroactively to cases where

the issue in question is properly preserved at all stages of adjudication up to

and including any direct appeal.” Commonwealth v. Cabeza, 503 Pa. 228,

233, 469 A.2d 146, 148 (1983). See also Commonwealth v. Hudson, 92

A.3d 1235 (Pa.Super. 2014), appeal denied, ___ Pa. ___, 106 A.3d 724

(2014) (reviewing order granting defendant’s motion to suppress; applying

standard enunciated in Gary, which was decided after search of defendant’s

car and after trial court’s ruling on suppression motion).


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      “Probable cause is made out when the facts and circumstances which

are within the knowledge of the officer at the time of the arrest, and of

which he has reasonably trustworthy information, are sufficient to warrant a

[person] of reasonable caution in the belief that the suspect has committed

or is committing a crime.”    Commonwealth v. Thompson, 604 Pa. 198,

203, 985 A.2d 928, 931 (2009) (internal quotation marks omitted).

         The question we ask is not whether the officer’s belief was
         correct or more likely true than false. Rather, we require
         only a probability, and not a prima facie showing, of
         criminal activity. In determining whether probable cause
         exists, we apply a totality of the circumstances test.

Id. (emphasis in original) (internal citations and quotation marks omitted).

      Additionally, any issue not raised in a Rule 1925(b) statement will be

deemed waived for appellate review. Commonwealth v. Castillo, 585 Pa.

395, 888 A.2d 775 (2005). An appellant’s concise statement must identify

the   errors   to   be   addressed    on   appeal   with   sufficient   specificity.

Commonwealth v. Dowling, 778 A.2d 683 (Pa.Super. 2001).

      Instantly, the Commonwealth presented one issue in its Rule 1925(b)

statement, challenging the court’s suppression of the gun only.                 (See

Commonwealth’s       Rule   1925(b)    Statement,     filed   5/15/14,     at    1.)

Consequently, any argument on appeal concerning suppression of the

marijuana is waived for failure to preserve it in the concise statement. See

Castillo, supra; Dowling, supra.

      With respect to the court’s suppression of the gun recovered from the


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vehicle, however, Appellee’s motion to suppress was still pending when Gary

was decided.   The Supreme Court did not specifically declare its ruling in

Gary to be prospective only. Therefore, it applies to Appellee’s case. See

Cabeza,    supra.      To   defeat   Appellee’s   suppression   motion,    the

Commonwealth needed only to prove Officer Yancer had probable cause to

believe the vehicle in question contained contraband. No exigency beyond

the inherent mobility of the vehicle was required. See Gary, supra.

     Here, the suppression court implicitly found the existence of probable

cause, but based its ruling on Appellee’s reasonable expectation of privacy,

and the Commonwealth’s failure to prove exigent or other circumstances

existed to permit Officer Yancer’s warrantless search of the vehicle after

seeing in plain view evidence of the crime he suspected had occurred

(marijuana). In light of the Pennsylvania Supreme Court’s recent adoption

of the federal standard for analyzing vehicle searches in Gary, however, the

suppression court stated that under this new standard, it would have

reached a different result regarding Appellee’s motion to suppress.

     Furthermore,    the    uncontradicted   evidence   presented     by   the

Commonwealth established the following. Officer Yancer smelled an odor of

burnt marijuana while driving near the vehicle where Appellee was standing.

As Officer Yancer approached the vehicle, he saw Appellee remove an object

from his waistband and place it in the center console of the vehicle. When

Officer Yancer approached the driver side of the vehicle, he observed four


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vials of marijuana in plain view in the cup holder. Based on the totality of

the circumstances, Officer Yancer had probable cause to believe the vehicle

contained contraband, which was all that was necessary to justify the search

of the vehicle. See id.; Lechner, supra. Therefore, the officers recovered

the gun as a result of a lawful search. Thus, the court should have denied

Appellee’s motion to suppress the gun.        Accordingly, we reverse the

suppression order in part concerning the gun, affirm the suppression order in

part regarding the marijuana on the basis of waiver, and remand for further

proceedings.

      Order affirmed in part and reversed in part; case remanded for further

proceedings. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




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