J-S54035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

HOWARD EUGENE STEWART, III

                         Appellant                  No. 9 MDA 2014


    Appeal from the Judgment of Sentence entered November 25, 2013
               In the Court of Common Pleas of York County
             Criminal Division at No: CP-67-CR-0000380-2011


BEFORE: LAZARUS, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                    FILED DECEMBER 22, 2014

      Howard Eugene Stewart, III, appeals from the judgment of sentence

entered following his convictions of firearms and drug-possession crimes,

and driving without a license. Counsel for Appellant has filed a brief under

Anders v. California, 386 U.S. 738 (1967), and petitioned to withdraw as

counsel, alleging that this appeal is wholly frivolous. We affirm and grant

the petition to withdraw.

      On December 11, 2011, Corporal Michael Georgiou of the York Area

Regional Police Department was on routine patrol on the overnight shift. At

around 2:00 a.m. in York Township, he observed a blue Mercury Grand

Marquis pull away from him. Using the Visual Average Speed Computer And

Recorder (VASCAR) in his car, Corporal Georgiou determined that the Grand

Marquis was travelling 48 mph in a 35 mph zone. He also noticed that one
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of the car’s brake lights was burnt out.                Finally, after checking the

registration, Corporal Georgiou found that the Grand Marquis was registered

to Appellant, who did not have a valid driver’s license.

       Corporal Georgiou stopped the vehicle and approached the driver to

ask for his license and registration. He smelled processed marijuana 1 inside

the vehicle. After checking the driver’s state ID card and registration using

the computer in his patrol cruiser, Corporal Georgiou determined that the

driver was Appellant. He returned to the car and informed Appellant that his

car was going to be towed and impounded, pursuant to standard procedure,

since Appellant did not have a driver’s license.

       Corporal Georgiou told Appellant that he smelled marijuana and asked

for consent to search the vehicle.             Appellant claimed that he bought the

Grand Marquis at an auto auction in Maryland and said nothing was inside.

He consented to the search nonetheless. Corporal Georgiou asked Appellant

if he had anything on him that he should not have. Appellant pulled a large

wad of cash out of his pocket, and Corporal Georgiou performed a pat-down

of Appellant. Notably, the pat-down occurred after Appellant consented to a


____________________________________________


1
  At the suppression hearing, Corporal Georgiou explained that processed
marijuana is marijuana that has been heated, dried, broken up, and
packaged for smoking. N.T. Suppression, 4/26/11, at 7. Based on his
experience, Corporal Georgiou testified that the smell of processed
marijuana is “significantly different than that of marijuana that is straight off
the plant.” Id.



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search of his car.      In Appellant’s sock, Corporal Georgiou found a bag of

marijuana. Corporal Georgiou counted the cash, $1,446.00, and then placed

Appellant in custody.       He searched the car prior to its impoundment, and

found a firearm in the trunk. At the suppression hearing, Corporal Georgiou

explained that he searched the vehicle pursuant to Appellant’s consent, and

that at any rate the vehicle would be impounded and the contents

inventoried. N.T. Suppression, 4/26/11, at 11-12.

       Appellant    was    charged     with    persons   not   to   possess   firearms,

possession of a small amount of marijuana, firearms not to be carried

without license, possession of drug paraphernalia, and driving without a

license.2 Appellant moved to suppress all evidence obtained from the traffic

stop, which the trial court denied. He later pleaded guilty, but successfully

withdrew his guilty plea. After a jury trial, Appellant was found guilty on all

counts and sentenced to an aggregate of five to ten years in prison.                On

December 24, 2013, Appellant filed this appeal.

       Counsel has directed this Court’s attention to the denial of Appellant’s

motion to suppress as a possibly meritorious issue. Appellant challenges the

frisk of his person and the search of his car.



____________________________________________


2
   18 Pa.C.S.A. § 6105(a)(1), 35 P.S. § 780-113(a)(31), 18 Pa.C.S.A.
§ 6106(a)(1), 35 P.S. § 780-113(a)(32), and 75 Pa.C.S.A. § 1501(a),
respectively.



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      Before we consider the merits, we must address whether counsel has

complied with the requirements to withdraw from representation under

Anders.    See Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.

2009).

      To withdraw under Anders/Santiago, counsel must (1) petition this

Court for leave to withdraw after certifying that a thorough review of the

record indicates the appeal is frivolous; (2) file a brief referring to anything

in the record that might arguably support the appeal; and (3) give the

appellant a copy of the brief and advise the appellant of the right to obtain

new counsel or file a pro se brief to raise any additional points for review.

Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005).

Additionally, the Anders/Santiago brief 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 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.

      We find that counsel has complied with Anders and Santiago.

Counsel has petitioned for leave to withdraw, filed a brief that refers us to

anything that might support the appeal, and informed Appellant of his right


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to hire a new lawyer or file a pro se response.3 Furthermore, counsel’s brief

meets Santiago’s substantive requirements listed above.

        We now turn to the issue raised in the Anders Brief: whether the trial

court should have granted Appellant’s motion to suppress.

        When reviewing the denial of a motion to suppress, we must
        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.[4] We are bound by the
        suppression court’s findings if they are supported by the record.
        Factual findings wholly lacking in evidence, however, may be
        rejected. We may only reverse the suppression court if the legal
        conclusions drawn from the findings are in error.

Commonwealth v. Gatlos, 76 A.2d 44, 52 (Pa. Super. 2013) (internal

quotations and citations omitted).

        Under our State and federal constitutions, warrantless searches are

presumptively unreasonable.          See, e.g., Commonwealth v. Stewart, 56

A.3d 424, 438 (Pa. Super. 2012).                 However, several well-delineated

exceptions to the warrant requirement exist, and several come into play in

this case.



____________________________________________


3
    Appellant has not filed a response.
4
  For cases in which the suppression hearing occurs after October 30, 2013,
the scope of review of a suppression order encompasses only the record
adduced at the suppression hearing. In the Interest of L.J., 79 A.3d
1073, 1088-89 (Pa. 2013). We may examine the entire record here,
because the suppression hearing occurred in 2011.



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        The first is a “Terry5 frisk.”           A police officer may perform an

investigative detention upon reasonable suspicion that criminal activity is

afoot. Commonwealth v. E.M., 735 A.2d 654, 659 (Pa. 1999). “If, during

the course of a valid investigatory stop, an officer observes unusual and

suspicious conduct on the part of the individual which leads him to

reasonably believe that the suspect may be armed and dangerous, the

officer may conduct a pat-down of the suspect’s outer garments for

weapons.” Id.

        Second, police may search incident to arrest a person after lawfully

arresting him.      Commonwealth v. Ventura, 975 A.2d 1128, 1139 (Pa.

Super. 2009) (quoting Commonwealth v. Trenge, 451 A.2d 701, 710 (Pa.

Super. 1982)). Unlike a Terry frisk, a search incident to arrest requires no

suspicion, but rather is automatic if the suspect is lawfully arrested. Id.

        Third, police may search a place upon voluntary consent.              See

Commonwealth v. Smith, 77 A.3d 562, 568 (Pa. 2013).                   A person’s

consent to search is valid if, under the totality of the circumstances, it is “the

product of an essentially free and unconstrained choice and not the result of

coercion or duress.” Id. (internal quotation omitted).

        Fourth, police need only probable cause to search an automobile. For

ease of discussion, we fully address the automobile exception, infra.

____________________________________________


5
    Terry v. Ohio, 392 U.S. 1 (1968).



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       Finally, though not an exception to the warrant requirement, the

inevitable discovery doctrine applies where police unlawfully seize evidence,

but they would have discovered the evidence lawfully. Commonwealth v.

Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009). For the doctrine to apply,

the inevitable discovery must be “sufficiently purged of the original

illegality.” Id. (quotation omitted).

       Appellant’s counsel contends the suppression issue is frivolous based

on a combination of inevitable discovery and the retroactive effect of our

Supreme      Court’s    adoption     of    the    federal   automobile   exception   in

Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014). We agree.

       In   Gary,    our   Supreme        Court   adopted    the   federal   automobile

exception, under which police need only probable cause to search an

automobile. Gary, 91 A.3d at 104 (Opinion Announcing the Judgment of the

Court (OAJC)).6        Prior to Gary, Pennsylvania had utilized a more limited

automobile exception, which required proof of exigent circumstances to

search an automobile without a warrant.               Id. at 112-24 (discussing the

history of Pennsylvania’s limited automobile exception).

____________________________________________


6
  The lead opinion in Gary is an OAJC representing the views of three
members of a six-justice court. OAJCs are generally non-binding plurality
decisions. See Commonwealth v. Brown, 23 A.3d 544, 555 (Pa. 2011).
The result in Gary, however, is precedential, because of the nature of
Justice Saylor’s concurring opinion. Gary, 91 A.3d at 138-39 (Saylor, J.,
concurring) (“I join the lead Justices in adopting the federal automobile
exception.”).



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      Gary was decided on April 29, 2014, and Appellant’s suppression

hearing occurred over three years prior.         Appellant’s counsel states that

Gary applies retroactively, because courts follow the law in effect at the

time of the appellate decision. Anders Brief at 10 (citing Commonwealth

v. Cabeza, 469 A.2d 146 (Pa. 1983)).

      At common law, a decision of our Supreme Court is generally

retroactive to all decisions pending on direct appeal at the time of

announcement.        Cabeza, 469 A.2d at 148.               Retroactive application,

however, is not automatic, and is a matter of judicial discretion. Blackwell

v. State Ethics Comm’n, 589 A.2d 1094, 1099 (Pa. 1991). No court has

explicitly addressed Gary’s retroactivity, but both this Court and the

Supreme      Court   have    assumed     that   it   applies    retroactively.     In

Commonwealth v. Hudson, 92 A.3d 1235, 1241-43 & n.5 (Pa. Super.

2014),   a   panel   of   this   Court   assumed     that   Gary   applied   to   the

Commonwealth’s appeal from an order suppressing evidence, but ultimately

held that police lacked probable cause to search the defendant’s vehicle. In

Commonwealth v. Dunn, 95 A.3d 272, 273 (Pa. 2014) (per curiam), our

Supreme Court granted allowance of appeal, vacated a decision of this

Court, and remanded for reconsideration in light of Gary. If Gary applied

prospectively only, there would be no need to order this Court to reconsider

a decision applying the now-superseded limited automobile exception.

Therefore, we agree with Appellant’s counsel that Gary applies retroactively

to this case.

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       As an initial matter, no party contests the legality of the traffic stop.

Corporal Georgiou had probable cause of several violations of the Vehicle

Code: speeding and a burnt-out taillight or brake light.      There is also no

question that, once he approached the vehicle, Corporal Georgiou had

probable cause that Appellant had committed a crime—possession of

marijuana based on the smell emanating from the car.              The smell of

marijuana provided probable cause to arrest Appellant—the only occupant of

the car—and search the vehicle. See Commonwealth v. Stoner, 344 A.2d

633, 635 (Pa. Super. 1975) (holding that the smell of marijuana provides

probable cause to search); see also Gary, 91 A.3d at 104-05, 138 (noting

that the smell marijuana emanating from inside the vehicle provided

undisputed probable cause to search).

       Once he smelled marijuana, Corporal Georgiou had probable cause to

arrest Appellant.       During a search incident to arrest, he would have

discovered the marijuana in Appellant’s sock.     Even if the Terry frisk was

unlawful7 the marijuana discovered in Appellant’s sock would have been

____________________________________________


7
   Corporal Georgiou performed the pat-down immediately after Appellant
took the wad of cash out of his pocket, and did not handcuff or restrain
Appellant until after counting the money. Although the traffic stop occurred
at night and Corporal Georgiou did not have a partner, the Commonwealth
presented no evidence that Corporal Georgiou suspected Appellant to be
armed and dangerous. See also Trial Court Rule 1925(a) Opinion, 3/18/14,
at 2 (“In this case, [Appellant] is correct that there was no articulable
suspicion that [Appellant] was armed and dangerous under the
circumstances.”).



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inevitably discovered during a search incident to a lawful arrest based on

probable cause that Appellant was in possession of marijuana.

       Moreover, Appellant consented to a search of his vehicle, and the

smell of marijuana emanating from the car provided probable cause to

search. Gary, 91 A.3d at 104-05; Stoner, 344 A.2d at 635. Even if, for

argument’s sake, Appellant’s consent was invalid—an argument Appellant

did not raise in his concise statement— Corporal Georgiou could search the

car under the automobile exception. Therefore, no non-frivolous argument

exists to challenge the seizure of the gun in the trunk of Appellant’s car. 8

       We have conducted a thorough review of the record. We discern no

non-frivolous arguments that could be raised on appeal. Appellant’s counsel

has complied with the applicable procedural and substantive requirements

necessary to withdraw as counsel.              Hence, we affirm and grant counsel’s

petition to withdraw.

       Judgment of sentence affirmed. Petition to withdraw granted.

       Judge Lazarus joins this memorandum.

       Judge Mundy concurs in the result.

____________________________________________


8
  The trial court ruled that the vehicle search was valid as either a consent
search or as an inventory search. N.T. Suppression, 4/26/11 , at 54 (“I do
think the consent was voluntarily given. I think that in any even an
inventory search would have discovered the evidence.”); see also Trial
Court Rule 1925(a) Opinion, 3/18/14, at 3-6. Because Appellant gave valid
consent to search the car, we need not address whether the search was
proper qua inventory search.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2014




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