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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
AL-QUADIR HUBBARD,                      :          No. 479 MDA 2014
                                        :
                        Appellant       :


         Appeal from the Judgment of Sentence, January 24, 2014,
             in the Court of Common Pleas of Luzerne County
             Criminal Division at No. CP-40-CR-0004253-2012


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED JANUARY 16, 2015

      Al-Quadir Hubbard appeals from the judgment of sentence of

January 24, 2014, following his conviction of possession, possession with

intent to deliver (“PWID”) (heroin), and firearms offenses.    We affirm the

judgment, but remand for re-sentencing.

      The trial court made the following findings of fact relative to

appellant’s pre-trial suppression motion:

            1.    While on routine patrol, Officer Robert Collins,
                  of the Wilkes-Barre Police Department,
                  observed a parked vehicle in the area of
                  Northampton and South Welles Street in the
                  City of Wilkes-Barre on August 26, 2012 at
                  approximately 5:00 p.m.

            2.    Officer Robert Collins, Wilkes-Barre Police
                  Department, initially observed the subject
                  vehicle with a driver in the vehicle and



* Former Justice specially assigned to the Superior Court.
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                [appellant] leaning into said vehicle from the
                passenger side with the door open.

          3.    Officer Collins, knowing the above referenced
                area of Wilkes-Barre to be a high crime and
                high drug area, approached the vehicle to
                speak with the driver and passenger.

          4.    Upon Officer Collins approaching the vehicle,
                [appellant] then started moving about and sat
                in the front passenger seat but did not close
                the car door.

          5.    The driver told police he was visiting his friend
                ([appellant]) who lived on South Welles Street,
                Wilkes-Barre, Pa. However, [appellant] told
                police he lived in Plymouth, PA.

          6.    The driver and [appellant] both acted and
                appeared nervous.

          7.    Officer Collins observed a large bulge in
                [appellant]’s right front pants pocket, and
                further observed [appellant] reaching down
                and around the area of his pocket and twisting
                as if trying to conceal something.

          8.    When asked if there were any guns or weapons
                in the vehicle, neither the driver nor
                [appellant] answered Officer Collins.

          9.    [Appellant] was asked to exit the vehicle and
                submit to a “Terry frisk” for officer safety.

          10.   Officer Collins immediately felt a gun in the
                passenger’s pocket.

          11.   The gun, which was observed by Officer Collins
                to have obliterated serial numbers[,] was
                seized by Officer Collins.

          12.   The testimony of the Commonwealth’s witness
                was credible.



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Findings of fact and conclusions of law, 9/25/13 at 1-2 (docket #24).

      On September 25, 2013, appellant’s suppression motion was denied.

On November 22, 2013, following a waiver trial before the Honorable

David W. Lupas, appellant was found guilty of the above offenses.1         On

January 24, 2014, appellant received a mandatory minimum sentence of 5

to 10 years’ imprisonment on count 1, PWID, and a consecutive sentence of

18 to 36 months on count 3, firearms not to be carried without a license, for

an aggregate sentence of 6½ to 13 years’ imprisonment.              Count 4,

possession, merged for sentencing purposes; the remaining sentences were

run concurrently.2   No post-sentence motions were filed; on February 3,

2014, appellant filed a timely notice of appeal.      On February 6, 2014,

appellant was ordered to file a concise statement of errors complained of on

appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. On

February 7, 2014, counsel was permitted to withdraw, and new counsel was

appointed to represent appellant on the appeal.      On February 13, 2014,

appellant filed a Rule 1925(b) statement, alleging trial court error in the




1
  After Officer Collins recovered the firearm, during a search incident to
arrest, Officer Collins found four bricks of heroin, a cell phone, and $112 in
appellant’s left-front pants pocket. (Notes of testimony, 11/22/13 at 12.)
2
  On November 22, 2013, appellant pled guilty to an additional count of
PWID at a separate docket number, relating to the execution of a
subsequent search warrant. (Notes of testimony, 11/22/13 at 22-27.)


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denial of his motion to suppress evidence. On June 3, 2014, the trial court

filed a Rule 1925(a) opinion.3

      Appellant has raised the following issue for this court’s review:

“Whether the Trial Court erred in denying Appellant’s Motion to Suppress

Evidence[?]” (Appellant’s brief at 1.)4

                  Our standard of review where an
                  appellant appeals the denial of a
                  suppression motion is well-established:
                  we are limited to determining whether
                  the factual findings are supported by the
                  record and whether the legal conclusions
                  drawn from those facts are correct. We
                  may consider the evidence of the
                  witnesses offered by the prosecution, as
                  verdict winner, and only so much of the
                  defense      evidence     that   remains
                  uncontradicted when read in the context
                  of the record as a whole. We are bound
                  by facts supported by the record and
                  may reverse only if the legal conclusions


3
  We note that appellant failed to attach to his brief either his Rule 1925(b)
statement or the trial court’s Rule 1925(a) opinion, in violation of
Pa.R.A.P. 2111.
4
  The trial court contends that the issue is waived due to appellant’s vague
Rule 1925(b) statement.        (Trial court opinion, 6/3/14 at 4.)       See
Commonwealth v. Smith, 955 A.2d 391, 393 (Pa.Super. 2008) (en banc)
(“when issues are too vague for the trial court to identify and address, that
is the functional equivalent of no concise statement at all”), citing
Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.Super. 2001). In
appellant’s Rule 1925(b) statement, he alleged only that, “The trial court
erred in denying [appellant]’s Motion to Suppress Evidence.” (Docket #36.)
However, the only issue to be decided at the suppression stage of the
proceedings was whether or not Officer Collins had the requisite reasonable
suspicion to stop and frisk appellant. (Notes of testimony, 8/21/13 at
14-16.) Therefore, in context, we determine that appellant’s statement is
not impermissibly vague.


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                reached by     the    court   below   were
                erroneous.

          Commonwealth v. Scott, 878 A.2d 874, 877
          (Pa.Super.2005), appeal denied, 586 Pa. 749, 892
          A.2d 823 (2005) (citations omitted).

Commonwealth v. Smith, 904 A.2d 30, 35 (Pa.Super. 2006).

                There    are  three    levels   of    recognized
          interactions between the police and the citizenry:

                The first [level of interaction] is the
                ‘mere    encounter’    (or   request    for
                information)    which     need    not   be
                supported by any level of suspicion, but
                carries no official compulsion to stop or
                respond. The second, an ‘investigative
                detention’ must       be   supported by
                reasonable suspicion; it subjects a
                suspect to a stop and period of
                detention, but does not involve such
                coercive conditions as to constitute the
                functional equivalent of arrest. Finally,
                an arrest or ‘custodial detention’ must be
                supported by probable cause.

          Commonwealth v. Stevenson, 894 A.2d 759, 770
          (Pa.Super.2006) (citation omitted).

Commonwealth v. Clinton, 905 A.2d 1026, 1030 (Pa.Super. 2006),

appeal denied, 934 A.2d 71 (Pa. 2007).

          “An investigative detention occurs when a police
          officer temporarily detains an individual by means of
          physical force or a show of authority for investigative
          purposes. [See Commonwealth v. Ellis, 541 Pa.
          285, 662 A.2d 1043 (1995).] Such a detention
          constitutes a seizure of a person and thus activates
          the protections of the Fourth Amendment and the
          requirements of [Terry].”        Commonwealth v.
          Barber, 889 A.2d 587, 592 (Pa.Super.2005).



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Smith, supra.5 “The appellate courts have mandated that law enforcement

officers, prior to subjecting a citizen to an investigatory detention, must

harbor at least a reasonable suspicion that the person seized is then

engaged     in   unlawful   activity.”    Barber,   889   A.2d   at   593,   citing

Commonwealth v. Nagle, 678 A.2d 376 (Pa.Super. 1996).

        Preliminarily, we observe that when Officer Collins initially approached

the vehicle, it was a mere encounter.          Officer Collins was driving an

unmarked car and parked behind the driver, Shaheed Coleman’s, vehicle.

(Notes of testimony, 8/21/13 at 10-11.) Officer Collins did not activate any

lights or siren, and did not have his weapon drawn.              (Id. at 11-12.)

Officer Collins was in full uniform, and alone. (Id. at 12, 19.) Officer Collins

asked Coleman “what’s going on.” (Id. at 9.) Coleman stated that he was

visiting a friend and motioned towards appellant. (Id.) The interaction at

that point was a mere encounter, which does not implicate constitutional

prohibitions against unreasonable searches and seizures. Commonwealth

v. Davis, 2014 WL 5140282 at *2 (Pa.Super. filed October 14, 2014), citing

Commonwealth v. Coleman, 19 A.3d 1111, 1116-1117 (Pa.Super. 2011)

(police officers’ approaching defendant on street and asking questions was

mere encounter).      However, Officer Collins’ subsequent action in patting

down appellant’s pants pockets was a Terry frisk.

              A Terry frisk is a type of investigative detention
              requiring reasonable suspicion “that criminal activity

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


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          is afoot and that ‘the individual whose suspicious
          behavior he is investigating at close range is armed
          and presently dangerous to the officer or to others.’”
          Commonwealth v. Guess, 53 A.3d 895, 901
          (Pa.Super.2012) (quoting Terry, 392 U.S. at 24).
          The purpose of a Terry frisk is not to discover
          evidence of a crime, but to protect the police officer
          conducting the investigation.        Id.; see also
          Commonwealth v. Scarborough, 89 A.3d 679,
          683 (Pa.Super.2014).

Id.

          The reasonable suspicion necessary to conduct a
          Terry frisk and, in fact, all investigative detentions

                is a less demanding standard than
                probable cause not only in the sense that
                reasonable suspicion can be established
                with information that is different in
                quantity or content than that required to
                establish probable cause, but also in the
                sense that reasonable suspicion can arise
                from information that is less reliable than
                that required to show probable cause.

          Commonwealth v. Fell, 901 A.2d 542, 545
          (Pa.Super.2006) (quoting Alabama v. White, 496
          U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301
          (1990)).

Id.

          “The determination of whether an officer had
          reasonable suspicion that criminality was afoot so as
          to justify an investigatory detention is an objective
          one, which must be considered in light of the totality
          of the circumstances.” Commonwealth v. Holmes,
          609 Pa. 1, 14 A.3d 89, 96 (Pa.2011). In assessing
          the totality of the circumstances, a court must give
          weight to the inferences that a police officer may
          draw through training and experience. Id. at 95.
          “Also, the totality of the circumstances test does not
          limit our inquiry to an examination of only those


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              facts that clearly indicate criminal conduct. Rather,
              even a combination of innocent facts, when taken
              together, may warrant further investigation by the
              police officer.” Commonwealth v. Rogers, 578 Pa.
              127, 849 A.2d 1185, 1189 (Pa.2004) (internal
              quotation and alteration omitted); see also
              Scarborough, 89 A.3d at 684 (holding that the
              “single factor of the defendant keeping his hand in
              his pocket after being asked to remove it”
              constituted reasonable suspicion to stop and frisk).

Id. at *3.     “Review of an officer’s decision to frisk for weapons requires

balancing two legitimate interests:           that of the citizen to be free from

unreasonable searches and seizures; and that of the officer to be secure in

his personal safety and to prevent harm to others.”                Commonwealth v.

Zhahir, 751 A.2d 1153, 1158 (Pa. 2000), citing Dunaway v. New York,

442 U.S. 200, 209 (1979).

        Instantly, Officer Collins testified that this was a high-crime, high-drug

area.    (Notes of testimony, 8/21/13 at 8.)           Officer Collins had made prior

drug arrests at that intersection.           (Id.)     Officer Collins had 6½ years’

experience as a police officer.        (Id. at 7.)       When Officer Collins asked

Coleman     where    his   friend   lived,   Coleman      stated   that   he   lives   on

South Welles Street, which was the street on which they were parked. (Id.

at 9.)     However, when Officer Collins asked appellant where he lived,

appellant said he lived in Plymouth.           (Id.)    When appellant got into the

passenger seat of the car, Officer Collins noticed that he had a large bulge in

his right front pocket. (Id.) Officer Collins testified that both appellant and




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Coleman appeared to be very nervous.         (Id. at 13.)     Officer Collins was

concerned that the object could be a handgun. (Id. at 13, 24.)

        Officer Collins asked appellant to keep his hands where he could see

them.     (Id. at 9, 13.)   Officer Collins testified that appellant ignored his

request and continued to keep his hands near his pocket.             (Id. at 9.)

Appellant was also twisting his body in an apparent attempt to conceal

whatever was in his pocket.      (Id. at 9, 13.)    At that point, Officer Collins

asked Coleman and appellant whether they had any guns in the vehicle or

on their person; neither responded.         (Id.)    Officer Collins then asked

appellant to step out of the vehicle so he could conduct a Terry frisk. (Id.

at 14.)    Officer Collins patted down appellant’s right front pocket and felt

what he immediately perceived to be a handgun.             (Id.)   Officer Collins

recovered a handgun with the serial numbers scratched off. (Id.) At that

point, appellant was placed under arrest. (Id.)

        Clearly, considering the totality of the circumstances, Officer Collins

had reasonable suspicion that criminal activity was afoot and that appellant

was armed and potentially dangerous.            Coleman and appellant gave

conflicting stories about where appellant lived.          Both appeared to be

nervous. Appellant had a large bulge in his right front pocket and refused to

remove his hands from that area, even after being specifically instructed to

do so by Officer Collins.   Appellant was also contorting his body in such a

way as to conceal the area from Officer Collins’ view.        Officer Collins was



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justifiably concerned that the object could be a gun.   See Davis, supra

(finding reasonable suspicion for Terry frisk where the officer observed the

defendant and another individual standing over an unconscious man in the

middle of the street at 2:00 a.m. in a high-crime area, and the officer

noticed an object weighing down the right breast pocket of the defendant’s

jacket); Zhahir, 751 A.2d at 1158 (“there is no reason why an officer . . .

should have to ask one question and take the risk that the answer might be

a bullet”), quoting Terry, supra at 33. We also note that the trial court,

sitting as finder-of-fact at the suppression hearing, found Officer Collins’

testimony to be credible. The trial court did not err in denying appellant’s

motion to suppress the evidence.

     Finally, we must address the legality of appellant’s sentence.     The

Commonwealth notes that appellant was sentenced to a mandatory

minimum of 5 to 10 years’ incarceration for PWID under 42 Pa.C.S.A.

§ 9712.1 (drug offenses committed with firearms). (Commonwealth’s brief

at 9 n.1.) In Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014)

(en banc), we found Section 9712.1 unconstitutional in light of Alleyne v.

United States,       U.S.    , 133 S.Ct. 2151 (2013), which held that any

fact that served to aggravate the minimum sentence must be found by a

jury beyond a reasonable doubt.    “Under Alleyne, the possession of the

firearm must be pleaded in the indictment, and must be found by the jury

beyond a reasonable doubt before the defendant may be subjected to an



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increase in the minimum sentence.”      Newman, 99 A.3d at 98.      Because

Section 9712.1 allows the trial court, as opposed to a jury, to increase a

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

that the defendant was dealing drugs while in possession of a firearm, or

that a firearm was “in close proximity” to the drugs, it does not pass

constitutional muster under Alleyne. Id.

      We also observe that appellant does not raise this issue on appeal.

However, as the Commonwealth acknowledges, legality of sentencing issues

are non-waivable and may even be raised by this court sua sponte.

(Commonwealth’s brief at 9 n.1.)     Commonwealth v. Fennell, 2014 WL

6505791 at *1 (Pa.Super. 2014), citing Commonwealth v. Lawrence, 99

A.3d 116, 123 (Pa.Super. 2014) (“issues pertaining to Alleyne go directly to

the legality of the sentence”); Commonwealth v. Miller,           A.3d     ,

2014 WL 4783558 at *5 (Pa.Super. 2014) (“this Court is endowed with the

ability to consider an issue of illegality of sentence sua sponte”), quoting

Commonwealth v. Orellana, 86 A.3d 877, 883 n.7 (Pa.Super. 2014)

(citation omitted).   Therefore, it is necessary to remand for re-sentencing

without regard for any mandatory minimum sentence prescribed by

Section 9712.1.   Newman, supra.       Furthermore, since our decision will

upset the trial court’s overall sentencing scheme, we will vacate all of

appellant’s sentences and remand for complete re-sentencing.




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      Judgment of sentence vacated.    Case remanded.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/16/2015




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