J-A05018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DEVONTE PAUL JOHNSON,

                        Appellant                   No. 333 WDA 2016


     Appeal from the Judgment of Sentence Entered January 21, 2016
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0005228-2015


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED APRIL 26, 2017

      Appellant, Devonte Paul Johnson, appeals from the judgment of

sentence of 2 to 5 years‟ incarceration, imposed after he was convicted of

carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(1), persons not to

possess a firearm, 18 Pa.C.S. § 6105(a)(1), and providing false identification

to law enforcement, 18 Pa.C.S. § 4914(a).      Appellant challenges the trial

court‟s denial of his pretrial motion to suppress evidence, as well as the

legality of his sentence. After careful review, we conclude that the court did

not err in denying Appellant‟s motion to suppress, but we agree with

Appellant that his sentence is illegal. Accordingly, we vacate his judgment

of sentence and remand for resentencing.

      Briefly, Appellant was arrested and charged with the above-stated

crimes after he was patted-down during the course of a traffic stop, and he
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was discovered to be in possession of a firearm. Prior to trial, Appellant filed

a motion to suppress the gun, arguing that the officer who conducted the

pat-down lacked reasonable suspicion that Appellant was armed and

dangerous.    Following a suppression hearing, the court denied Appellant‟s

motion, and his case immediately proceeded to a non-jury trial.          At the

conclusion thereof, Appellant was convicted of the two firearm offenses

stated, supra, as well as providing false identification to law enforcement.

On January 21, 2016, Appellant was sentenced to an aggregate term of 2 to

5 years‟ incarceration.

      Appellant filed a timely post-sentence motion, which the court denied.

He then filed a timely notice of appeal, and he also complied with the trial

court‟s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.      Herein, Appellant presents two issues for our

review:

      I. Whether the trial court erred in not granting [Appellant‟s]
      motion to suppress because even though the trial court found
      that Officer Reiche patted down [Appellant] for officer safety, the
      record manifestly established that he did not have reasonable
      suspicion, based on specific and articulable facts, to believe that
      [Appellant] was presently armed and dangerous?

      II. Whether the trial court imposed an illegal sentence when it
      failed to determine, at the time of sentencing, whether
      [Appellant] is an eligible offender under the Recidivism Risk
      Reduction Incentive Act [(“RRRI Act”), 61 Pa.C.S. §§ 4501-
      4512], thereby violating 61 Pa.C.S.[] § 4505(a)?

Appellant‟s Brief at 5.

      Regarding Appellant‟s first issue, we begin by noting that,


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      [i]n reviewing an order from a suppression court, we consider
      the Commonwealth‟s evidence, and only so much of the
      defendant‟s evidence as remains uncontradicted. We accept the
      suppression court‟s factual findings which are supported by the
      evidence and reverse only when the court draws erroneous
      conclusions from those facts.

Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998).

      In this case, Appellant challenges the legality of the pat-down of his

person.

      It is well settled that an officer may pat-down an individual
      whose suspicious behavior he is investigating on the basis of a
      reasonable belief that the individual is presently armed and
      dangerous to the officer or others. Commonwealth v. E.M.,
      558 Pa. 16, 735 A.2d 654, 661 (1999), citing Terry v. Ohio,
      392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To
      validate a Terry frisk, the police officer must be able to
      articulate specific facts from which he reasonably inferred that
      the individual was armed and dangerous. Commonwealth v.
      Preacher, 827 A.2d 1235, 1239 (Pa. Super. 2003) (citations
      omitted). In determining whether a Terry frisk was supported
      by a sufficient articulable basis, we examine the totality of the
      circumstances.

Commonwealth v. Gray, 896 A.2d 601, 605–06 (Pa. Super. 2006)

(footnote and one citation omitted).

      Here, we summarize the evidence presented at the suppression

hearing as follows.   The Commonwealth first called to the stand North

Versailles Police Officer Michael Sharp. Officer Sharp testified that on April

16, 2015, at approximately 10:50 a.m., he conducted a traffic stop of a

vehicle after learning, by running the vehicle‟s registration plate through

dispatch, that the vehicle‟s insurance had been canceled. N.T., 11/2/15, at

4.   When the officer stopped the vehicle and approached the driver‟s side



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door, he observed that there were four individuals in the car, one of whom

was Appellant. Id. at 6. Appellant was located in the “right rear” of the car.

Id. at 7. As the officer began speaking to the driver, he “noticed the smell

of marijuana coming from inside the vehicle.”      Id. at 5.     The driver also

informed the officer that his license was suspended.       Id.    Officer Sharp

asked each occupant of the vehicle for identification, which they all provided.

Id. at 6. Officer Sharp then “ran all four of them through the NCIC system”

and “three returned good and valid information.” Id. However, the officer

stated that the “information that [Appellant] had given [the officer] … did

not return any individual.” Id. At that point, Officer Sharp called for back-

up. Id. at 7.

      One of the two other officers who arrived to assist Officer Sharp was

North Versailles Police Officer David Reiche. When Officer Reiche arrived at

the scene, Officer Sharp informed him that he had smelled an odor of

marijuana emanating from the car, and that Appellant had provided false

identification. Id. at 12-13. The officers determined that they were going to

remove the individuals from the vehicle one at a time, beginning with

Appellant, as he was the only individual they could not identify. Id. at 7, 11.

Officer Reiche testified that he approached the rear passenger side of the

vehicle where Appellant was seated. Id. at 13. Before directing Appellant

to exit the vehicle, he “advised [Appellant] to keep his hands in place,” and

he told Appellant “to put his hands on the vehicle” after exiting. Id. at 14.

The officer testified that, “[a]s [Appellant] exited, he made a motion with his

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hand towards his waistband.”    Id.    Officer Reiche stated that he believed

Appellant could have been reaching for “anything,” including “something that

could harm [someone], drugs or other contraband.” Id. at 15. As such, the

officer “grabbed [Appellant‟s] wrist and redirected it to the right rear trunk

of the vehicle and began [a] pat down of [Appellant].” Id. When feeling the

“center” of Appellant‟s waistband, “where [Appellant‟s] hand was going

initially[,]” the officer felt an object that he immediately recognized as a

firearm. Id. at 15, 16. The firearm was seized and Appellant was arrested.

Id. at 16.

      Based on this evidence, the trial court concluded that the pat-down of

Appellant‟s person was lawful. The court noted that “[t]he car was lawfully

stopped[,]” and that Officer Sharp “smelled marijuana….”     Id. at 23. The

court also stressed that when Appellant was exiting the vehicle, “[h]e

gestured toward his waistband” and, therefore, “[t]he officer … patted him

down for officers‟ safety.”    Id. at 24.     Accordingly, the court denied

Appellant‟s motion to suppress the gun. Id.

      Now, on appeal, Appellant contends that the trial court erred, arguing

that Officer Reiche failed to provide specific and articulable facts to

demonstrate that he had a reasonable suspicion that Appellant was armed

and dangerous. In support of this argument, Appellant largely focuses on

what circumstances were not present in this case, such as the fact that the

officers were not responding to a crime in progress, there was no tip linking

Appellant to possession of a gun, and Officer Reiche did not observe “a bulge

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or something heavy along [Appellant‟s] waistband….”       Appellant‟s Brief at

13-14.

      Notably, Appellant offers little discussion about the circumstances that

were known to Officer Reiche. For instance, Appellant wholly ignores that

Officer Reiche knew that Officer Sharp had smelled an odor of marijuana

emanating from the vehicle, and that Appellant had provided a false name to

Officer Sharp.    The only fact in this case that Appellant spends any

significant time discussing is the movement of his hand toward his

waistband. Appellant attempts to downplay the import of this hand gesture

by claiming that it “only lasted a second or two,” and stressing that Officer

Reiche testified that Appellant‟s hand never actually touched his waistband.

Appellant‟s Brief at 20.

      We do not agree with Appellant that either of these facts diminish the

significance of his hand movement in our assessment of whether Officer

Reiche reasonably suspected Appellant was armed and dangerous. Officer

Reiche explicitly directed Appellant not to move his hands as he exited the

vehicle.   Appellant ignored that directive and began reaching toward his

waistband, at which point Officer Reiche grabbed Appellant‟s wrist and

secured his hands by placing them on the rear of the vehicle. Appellant‟s

hand movement toward his waistband was brief and incomplete because of

the officer‟s quick decision to secure Appellant‟s hand.     Considering the

totality of the facts known to the officer at the moment he saw Appellant

reaching for his waistband - i.e., the smell of marijuana in the car,

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Appellant‟s providing false identification, and Appellant‟s disregarding the

officer‟s direction not to move his hands - we conclude that it was

reasonable for the officer to suspect that Appellant could be reaching for a

weapon.1

       We are also unpersuaded by Appellant‟s claim that the pat-down was

not justified because he “was completely compliant when he was

subsequently ordered to put his hands on the vehicle.” Appellant‟s Brief at

20. As stated, supra, Officer Reiche testified that he directed Appellant not

to move his hands as he exited the vehicle. N.T. at 14. Appellant ignored

that request and moved his hand toward his waistband, which resulted in

Officer Reiche‟s “grabb[ing] his wrist and redirect[ing] it to the right rear

trunk of the vehicle….”       Id.   Contrary to Appellant‟s claim, this testimony

indicates that Appellant did not comply prior to the pat-down, thus

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1
   We also conclude that the totality of these facts make Appellant‟s case
distinguishable from the decisions on which he primarily relies. See In
Interest of S.J., 713 A.2d 45 (Pa. 1998) (concluding there was no
reasonable suspicion to warrant a Terry frisk where the officer saw S.J.
standing in a high crime area with a group of people, and the officer smelled
marijuana); Commonwealth v. Cooper, 994 A.2d 589 (Pa. Super. 2010)
(finding no reasonable suspicion to conduct a pat-down where Cooper, who
was standing next to a dumpster when police approached, moved his hand
toward his pocket but immediately stopped moving when so directed by the
officers); and Commonwealth v. Myers, 728 A.2d 960 (Pa. Super. 1999)
(concluding there was no reasonable suspicion to justify pat-down where
officers saw Myers briefly enter a house known for drug trafficking, exit
holding something in his closed hand, get into his car and drive away).
None of these cases involves facts that are significantly similar to the totality
of the circumstances surrounding Officer Reiche‟s pat-down of Appellant.



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bolstering Officer Reiche‟s reasonable suspicion that Appellant might be

armed and dangerous. While we recognize that Officer Reiche testified that

Appellant was compliant during the pat-down, id., that fact is irrelevant to

our analysis of whether Officer Reiche possessed reasonable suspicion to

initiate the Terry frisk.

      Finally, we reject Appellant‟s argument that Officer Reiche lacked

reasonable suspicion because the officer testified that: (1) Appellant (and

the other three occupants of the vehicle) were all going to be removed from

the car and patted down, regardless of Appellant‟s hand gesture, see N.T. at

15-16, and (2) when he saw Appellant reach toward his waistband, the

officer believed Appellant could have been reaching for “drugs or other

contraband[,]” id. at 15. Notably, this Court has emphasized that,

      reasonable suspicion is based upon an objective standard, not
      subjective intent. As the United States Supreme Court noted
      in Maryland v. Macon, 472 U.S. 463, 470–471, 105 S.Ct.
      2778, 86 L.Ed.2d 370 (1985), “Whether a Fourth Amendment
      violation has occurred „turns on an objective assessment of the
      officer's actions in light of the facts and circumstances
      confronting him at the time,‟ Scott v. United States, 436 U.S.
      128, 136, 98 S.Ct. 1717, 1722, 56 L.Ed.2d 168 (1978), and not
      on the officer's actual state of mind at the time the challenged
      action was taken. Id. at 138, 139, n. 13, 98 S.Ct. at 1724, n.
      13.”

Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa. Super. 2009) (emphasis

added).    In light of this law, we conclude that what Officer Reiche

subjectively believed at the time he decided to pat-down Appellant is not




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relevant to our objective analysis of whether the Terry frisk was supported

by reasonable suspicion.2

       In sum, Appellant‟s arguments do not convince us that the trial court

erred by concluding that Officer Reiche possessed reasonable suspicion that

Appellant might be armed and dangerous to justify the pat-down of

Appellant‟s person. Therefore, the court properly denied Appellant‟s motion

to suppress the gun.

       Next, we address Appellant‟s claim that his sentence is illegal because

the court failed to determine his eligibility under the RRRI Act. 3 Appellant

stresses that under the section 4505 of the RRRI Act, the sentencing court is
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2
  Nevertheless, we also point out that Appellant mischaracterizes Officer
Reiche‟s testimony by suggesting that the officer patted him down only
because the officer believed “drugs or other contraband” might be found on
Appellant‟s person. Appellant‟s Brief at 21 (quoting N.T. at 15). As stated,
supra, when asked what he believed Appellant might be reaching for when
he gestured toward his waist, Officer Reiche‟s full response was as follows:
“At that point, anything, something that could harm you, drugs or other
contraband.” N.T. at 15. Thus, the officer‟s testimony demonstrates that he
believed Appellant could have been reaching for a weapon, among other
things.
3
  Appellant admits that he failed to raise this claim below. See Appellant‟s
Brief at 5 n.1. However, we agree with him that his RRRI Act claim is not
waivable because it implicates the legality of his sentence.             See
Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010)
(concluding that a claim that “the trial court fail[ed] to make a statutorily
required determination regarding a defendant‟s eligibility for an RRRI
minimum sentence as required” constitutes “a non-waivable challenge to the
legality of [his] sentence”); Commonwealth v. Foster, 960 A.2d 160, 163
(Pa. Super. 2008) (“[C]laims pertaining to the legality of sentence are non-
waivable, may be leveled for the first time on appeal, and our jurisdiction
need not be invoked in a Pa.R.A.P. 2119(f) statement.”) (citation omitted).



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required to “make a determination whether the defendant is an eligible

offender.”    61 Pa.C.S. § 4505(a).         Here, Appellant maintains, and the

Commonwealth concedes, that the court failed to make a determination

regarding Appellant‟s RRRI eligibility.               See Appellant‟s Brief at 29;

Commonwealth‟s Brief at 20. Our review of the record confirms the parties‟

assertions.   Consequently, Appellant‟s sentence is illegal, and we must

vacate his sentence and remand for resentencing. See Robinson, 7 A.3d at

871   (“[W]here   the   trial   court   fails    to    make   a   statutorily   required

determination regarding a defendant‟s eligibility for an RRRI minimum

sentence as required, the sentence is illegal.”).

      Judgment of sentence vacated.              Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2017




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