J-S76037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                             Appellee

                        v.

JAMES JEFFERSON RHODES

                             Appellant                      No. 2336 EDA 2015


               Appeal from the Judgment of Sentence July 16, 2015
                In the Court of Common Pleas of Delaware County
               Criminal Division at No(s): CP-23-CR-0005006-2014


BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED DECEMBER 28, 2016

          James Jefferson Rhodes (“Appellant”) appeals from the judgment of

sentence entered in the Court of Common Pleas of Delaware County after

the court, sitting as finder of fact in Appellant’s non-jury trial, found him

guilty of Person Not to Possess a Firearm, Firearms Not to be Carried

Without a License,1 Possession of a Small Amount of Marijuana, Possession

of    a    Controlled   Substance,      and    Possession   of   Drug   Paraphernalia.2

Sentenced to an aggregate term of 60 to 120 months’ incarceration,

Appellant challenges the denial of his suppression motion and his judgment

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 6105 and 6106, respectively.
2
    35 P.S. §§ 780-113(a)(31), (16), and (32), respectively.
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of sentence on the charge of Possession of a Controlled Substance where he

possessed less than 30 grams of marijuana. We affirm.

      We glean the pertinent facts from the December 5, 2014, hearing on

Appellant’s pre-trial motion to suppress, where Officer Patrick Flynn of the

Chester Police Department testified about events surrounding his arrest of

Appellant. On May 21, 2014, at approximately 8:00 p.m., Officer Flynn and

several other officers assigned to the narcotics division entered a corner bar

located at 701 Lloyd Street in Chester in search of a man they believed was

part of a drug deal. N.T. 12/5/14 at 18-19. Both the street corner and the

bar itself were deemed “high-crime” areas, as Flynn indicated that many

shootings and drug deals had occurred inside and outside of the bar. N.T. at

20. Flynn was the third or fourth officer to enter, and he, like the others,

wore a shirt bearing the word “police,” verbally identified himself as an

officer, and displayed a badge as he entered.      N.T. at 32.   About ten to

fifteen people were in the bar when the officers arrived. N.T. at 22.

      Three officers immediately went to the left and Flynn stepped to the

right, when he noticed, from about 20 feet away, Appellant stand

momentarily to tuck something into his waistband before returning to his

barstool.   N.T. at 19-20, 29.    In Flynn’s estimation, Appellant was not

otherwise engaged in patently illegal activity, nor did Flynn suspect

Appellant was involved in the ongoing drug-related case, but his seven

years’ experience and training combined with the high-crime location gave

him concern that Appellant had just attempted to conceal a firearm in

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reaction to police presence. N.T. at 20, 30. Appellant did not see a gun, but

he testified “I suspected it was a gun by the way [Appellant] concealed it,

yes.” N.T. at 30.

      “Scared for his safety,” Flynn drew his firearm, pointed it at Appellant,

and ordered him to show his hands, which Appellant did.         N.T. at 20-21.

Officer Flynn approached, intending to pat down Appellant for weapons, and

asked Appellant to stand up with his arms remaining above his head.

Appellant, however, refused to comply.      N.T. at 21.   Flynn repeated the

command, but Appellant again refused. Id. When Flynn reached Appellant

and grabbed the back of his shirt in an effort to stand him up, a loaded

handgun fell out of Appellant’s waistband and onto the floor. N.T. at 21-22.

Seeing the handgun, Flynn dispensed with the weapons pat-down and

immediately placed Appellant under arrest.       N.T. at 31, 35.     A search

incident to Appellant’s arrest disclosed a small amount of marijuana on his

person.

      On December 9, 2014, the court denied Appellant’s motion to suppress

evidence, and Appellant proceeded to a January 13, 2015, non-jury trial

based on a stipulated record consisting of, inter alia, notes of testimony from

the suppression hearing and laboratory results of the marijuana.            On

February 12, 2015, the court found Appellant guilty on all charges and

imposed sentence, as indicated supra, on June 8, 2015. This timely appeal

followed.

      Appellant presents two questions for our consideration:

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      1. WHETHER    THE   COURT   ERRED   IN  DENYING  THE
         [APPELLANT’S] MOTION TO SUPPRESS THE STOP AND
         SEARCH AND SUBSEQUENT DISCOVERY OF A HANDGUN AND
         DRUG SEIZED FROM MR. RHODES WHILE LEGALLY AT A
         RESTAURANT BAR AND WITHOUT A SEARCH WARRANT,
         WHEREIN THERE WAS NO [SIC] THE REQUISITE PROBABLE
         CAUSE, REASONABLE SUSPICION THAT A CRIMINAL
         ACTIVITY WAS AFOOT OR VALID CONSENT TO DO SO?

      2. DID THE TRIAL COURT ERR IN FINDING THE [APPELLANT]
         GUILTY OF BOTH 35 Pa.C.S.A. § 780-113(A)(31), SMALL
         AMOUNT OF MARIJUANA, AND 35 Pa.C.S.A. § 780-113(A)(16)
         POSSESSION OF CONTROLLED SUBSTANCE, WHEREIN THE
         TOTAL WEIGHT OF THE MARIJUANA SEIZED FELL WITHIN
         THE SPECIFIC LANGUAGE OF THE DEFINITION OF UNLAWFUL
         POSSESSION OF SMALL AMOUNT OF MARIJUANA AND NOT
         FOR THE MORE SERIOUS OFFENSE OF POSSESSION OF A
         CONTROLLED SUBSTANCE?

Appellant’s brief at 4.

      When evaluating a suppression order, we must determine whether the

factual findings of the suppression court are supported by the record.

Commonwealth v. Hernandez, 935 A.2d 1275, 1280 (Pa. 2007). Where

the record supports the factual findings of the suppression court, an

appellate court may reverse only when the suppression court's legal

conclusions are in error.   Id.   “Moreover, appellate courts are limited to

reviewing only the evidence presented at the suppression hearing when

examining a ruling on a pre-trial motion to suppress.” Commonwealth v.

Stilo, 138 A.3d 33, 35–36 (Pa. Super. 2016).

      Here, Appellant maintains that police lacked reasonable suspicion to

order him to raise his hands and stand up from his bar stool in preparation

for a weapons pat-down as they searched for an unrelated, suspected drug

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dealer within the bar.    Where Officer Flynn admitted he did not observe

Appellant doing anything illegal when he ordered him to stand, Appellant

argues, it was incumbent upon the suppression court to conclude that he

was merely present in a high crime location and, therefore, wrongfully

subjected to a weapons pat-down. We disagree, as the evidence established

that Appellant’s specific hand movements in reaction to police entry into the

bar created a particularized suspicion that he was concealing a handgun in a

setting notorious for illegal gun possession and use.

      We set forth our standard of review:

      When reviewing the propriety of a suppression order, an
      appellate court is required to determine whether the record
      supports the suppression court's factual findings and whether
      the inferences and legal conclusions drawn by the suppression
      court from those findings are appropriate. Commonwealth v.
      Davis, 491 Pa. 363, 421 A.2d 179 (1980). Where the record
      supports the factual findings of the suppression court, we are
      bound by those facts and may reverse only if the legal
      conclusions drawn therefrom are in error. Commonwealth v.
      Bomar, 573 Pa. 426, 826 A.2d 831, 842 (2003). However,
      where the appeal of the determination of the suppression court
      turns on allegations of legal error, “the suppression court's
      conclusions of law are not binding on an appellate court, whose
      duty it is to determine if the suppression court properly applied
      the law to the facts.” Commonwealth v. Nester, 551 Pa. 157,
      709 A.2d 879, 881 (1998).

Commonwealth v. Kemp, 961 A.2d 1247, 1252–1253 (Pa.Super. 2008)

(en banc) (quoting Commonwealth v. Mistler, 912 A.2d 1265, 1269–70

(Pa. 2006)).

      Furthermore, it is settled that:




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     A police officer may detain an individual in order to conduct an
     investigation if that officer reasonably suspects that the
     individual is engaging in criminal conduct. Commonwealth v.
     Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999). “This standard,
     less stringent than probable cause, is commonly known as
     reasonable suspicion.” Id. In order to determine whether the
     police officer had reasonable suspicion, the totality of the
     circumstances must be considered. In re D.M., 566 Pa. 445,
     781 A.2d 1161, 1163 (2001). In making this determination, we
     must give “due weight to the specific reasonable inferences the
     police officer is entitled to draw from the facts in light of his
     experience.” Cook, 735 A.2d at 676 (quoting Terry v. Ohio,
     392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Also,
     the totality of the circumstances test does not limit our inquiry to
     an examination of only those facts that clearly indicate criminal
     conduct. Rather, “even a combination of innocent facts, when
     taken together, may warrant further investigation by the police
     officer.” Cook, 735 A.2d at 676.

Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa.Super. 2009) (en banc)

(quoting Kemp, supra at 1255).
      In Commonwealth v. Simmons, 17 A.3d 399 (Pa.Super. 2011), this

Court articulated the contours of a constitutional pat-down under the United

States Supreme Court’s seminal decision in Terry:

     Specifically, “[i]t is hornbook law that the [F]ourth [A]mendment
     to the United States Constitution as well as Article I, § 8 of the
     Pennsylvania Constitution protect citizens from ‘unreasonable
     searches and seizures.’”           Commonwealth v. Baer, 439
     Pa.Super. 437, 654 A.2d 1058, 1059 (1994).              Warrantless
     searches and seizures (such as occurred in this case) are
     unreasonable per se, unless conducted pursuant to specifically
     established and well-delineated exceptions to the warrant
     requirement. Katz v. United States, 389 U.S. 347, 357, 88
     S.Ct. 507, 19 L.Ed.2d 576 (1967). One such exception, the
     Terry “stop and frisk,” permits a police officer to briefly detain a
     citizen for investigatory purposes if the officer “observes unusual
     conduct which leads him to reasonably conclude, in light of his
     experience,      that     criminal   activity   may    be    afoot.”
     Commonwealth v. Fitzpatrick, 446 Pa.Super. 87, 666 A.2d
     323, 325 (1995); Terry, [392 U.S. at 30, 88 S.Ct. 1868].

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     Terry further held that “[w]hen an officer is justified in believing
     that the individual whose suspicious behavior he is investigating
     at close range is armed and presently dangerous to the officer or
     to others” the officer may conduct a pat down search “to
     determine whether the person is in fact carrying a weapon.”
     Terry, 392 U.S. at 24, 88 S.Ct. 1868. “The purpose of this
     limited search is not to discover evidence of crime, but to allow
     the officer to pursue his investigation without fear of violence.”
     Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32
     L.Ed.2d 612 (1972).

     In order to conduct an investigatory stop, the police must have
     reasonable suspicion that criminal activity is afoot. Terry, 392
     U.S. at 30, 88 S.Ct. 1868. 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, 101 S.Ct. 690, 66 L.Ed.2d
     621 (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, 101 S.Ct. 690. 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, 439 Pa.Super. 606, 654
     A.2d 1141, 1144 (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
     activity. Commonwealth v. Gibson, 536 Pa. 123, 638 A.2d
     203, 206–207 (1994).

Simmons, 17 A.3d at 402–03.

     In Simmons, police conducted a traffic stop of a vehicle in a high

crime area because its brake lights were inoperable. From a vantage point

behind the subject vehicle, one of the officers observed the passenger,

defendant, make a movement towards the floor, return to an upright

position, and then reach across his chest. The officer relied on his twelve

years’ experience to conclude that the defendant’s actions were consistent


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with concealing a weapon.           Based on that concern for their safety, the

officers frisked the defendant and recovered narcotics.

       The defendant in Simmons filed a motion to suppress in which he

asserted officers lacked reasonable suspicion to conduct a weapons pat-

down. The suppression court agreed, and granted his motion to suppress.

We reversed, however, concluding that a protective search was warranted

where the passenger/defendant’s particular furtive movements in a high-

crime area provided reasonable suspicion to believe he was armed and

dangerous. Id. at 403-405.3

       Our Pennsylvania Supreme Court has recognized, as well, that a

person unconnected with the target of a criminal investigation may

nevertheless behave in such a manner as to warrant a protective search

pursuant to Terry.        In Commonwealth v. Grahame, 7 A.3d 810 (Pa.
____________________________________________


3
   In Foglia, this Court sitting en banc held that an officer’s observation of
furtive hand movements at the waistband supplied a particularized basis for
approaching and conducting a protective search for weapons on a citizen
standing on a high-crime street and matching an anonymous tipster’s
description of a person carrying a gun. Specifically, we noted:

       whether the defendant was located in a high crime area similarly
       supports the existence of reasonable suspicion. [I]f a suspect
       engages in hand movements that police know, based on their
       experience, are associated with the secreting of a weapon, those
       movements will buttress the legitimacy of a protective weapons
       search of the location where the hand movements occurred.

Id. at 361.




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2010), the Pennsylvania Supreme Court rejected a “guns follow drugs”

rationale offered to justify the weapons search of a woman merely present in

a home where police surveillance implicated another person in selling illicit

drugs.    Adhering, instead, to Terry principles requiring the existence of

reasonable suspicion that a person is armed and dangerous before

conducting a weapons search, the Court first noted there was no indication

that the appellant had a criminal record or was connected in any way with

the drug dealer in question.

       Important for our present purposes, the Court also considered whether

appellant’s conduct justified a protective search, but it discerned no evidence

that the appellant conveyed a threat of danger to the officer:

       Furthermore, upon entering the house, Officer Russell did not
       detect any unusual behavior or furtive movements on Appellant’s
       part nor did she observe a suspicious bulge in Appellant’s purse.
       Since the Commonwealth failed to elicit any facts that supported
       an objectively reasonable belief that Appellant was armed and
       dangerous, the Superior Court’s decision [affirming conviction]
       cannot be sustained.

Id. at 817.4     Although the facts in Grahame did not support a protective

search, implicit in the Court’s rationale is that one who is proximate to an
____________________________________________


4
  For the proposition that those in proximity of an investigation into the
criminal activity of another may, under certain circumstances, create a
particularized basis for a protective search, see also Ybarra v. Illinois, 444
U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (striking down statute
automatically authorizing police search of anyone present during execution
of a search warrant; weapons search of customer Ybarra during execution of
warrant on subject tavern deemed unlawful where facts did not support
reasonable belief that he was armed and presently dangerous).



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ongoing investigation with which he otherwise has no connection may,

nevertheless, act in such a way as to create a particularized, objective basis

for conducting a protective search of his person.

      Here, Officer Flynn encountered Appellant during an investigation of a

suspected drug dealer who, officers believed, had entered the corner bar

Appellant was patronizing.   The officers announced their presence as they

entered the bar and sought to maintain a status quo while they conducted

their search of the premises. Immediately, however, Officer Flynn observed

Appellant stand from his bar stool, tuck something under his waistband, and

return to his seated position.    A seven-year veteran of the police force,

Officer Flynn recognized Appellant’s motion as one peculiar to an attempt to

conceal a handgun.

      Officer Flynn made this observation not from a distance while on

routine patrol, but, instead, during a search conducted within the close

confines of a bar notorious for firearms violations and shootings.        In a

setting where the potential for a volatile reaction to this police presence was

real, Appellant’s furtive hand movements consistent with handling a gun

gave Officer Flynn reason to believe Appellant may have been concealing a

weapon that threatened the safety of the officers and others.

      In such moments, we “must be guided by common sense concerns

that give preference to the safety of the police officer during an encounter

with a suspect where circumstances indicate that the suspect may have, or

may be reaching for, a weapon.”      Commonwealth v. Parker, 957 A.2d

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311, 316 (Pa.Super. 2008) (holding suspicious gestures of driver reaching

down and dipping shoulders right and left during traffic stop caused officer to

reasonably suspect driver might be concealing a weapon). For the foregoing

reasons, we find that Officer Flynn had reasonable suspicion to search

Appellant for a weapon, as Appellant’s conduct in reaction to a police

presence conveyed a threat of danger. Accordingly, we uphold the court’s

order denying Appellant’s motion to suppress.

        In his remaining issue, Appellant contends that it was improper to find

him guilty of both the greater offense of possession of a controlled

substance5 and the lesser offense of small amount of marijuana,6 as this

Court previously held in Commonwealth v. Gordon, 897 A.2d 504
____________________________________________


5
 Section 780-113(16) prohibits
      [k]nowingly or intentionally possessing a controlled or
      counterfeit substance by a person not registered under this act,
      or a practitioner not registered or licensed by the appropriate
      State board, unless the substance was obtained directly from, or
      pursuant to, a valid prescription order or order of a practitioner,
      or except as otherwise authorized by this act.”
35 P.S. § 780-113(16)
6
    Section 780-113(31) prohibits,
        [n]otwithstanding other subsections of this section, (i) the
        possession of a small amount of marihuana only for personal
        use; (ii) the possession of a small amount of marihuana with the
        intent to distribute it but not to sell it; or (iii) the distribution of a
        small amount of marihuana but not for sale.

      For purposes of this subsection, thirty (30) grams of marihuana
      or eight (8) grams of hashish shall be considered a small amount
      of marihuana.
35 P.S. § 780-113(31).



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(Pa.Super. 2006) that judgment of sentence on the greater offense is

improper where the defendant possessed a lesser offense amount of

marijuana. The Commonwealth replies that Gordon does not apply to the

present matter because Appellant received no sentence on the greater

possession of controlled substance charge. Only on the lesser small amount

of marijuana charge did the court ultimately impose a sentence.

      In Gordon, this Court recognized the legislative intent behind

including subsection (31) in Section 780-113 was to prevent imposition of a

more serious sentence where the defendant is found guilty of possessing an

amount of marijuana less than the benchmark limit demarcating the lesser

offense of a small amount of marijuana from the greater offense of

possession of a controlled substance (marijuana). In such a case, judgment

of sentence should be entered on only the less serious offense with the

correspondingly lesser sanctions.    While Appellant indeed possessed an

amount of marijuana less than the 30 gram benchmark set forth in the

lesser offense, it is also true that judgment of sentence was entered only on

this lesser offense.

      In Commonwealth v. Kriegler, 127 A.3d 840 (Pa.Super. 2015), we

explained our decision in Gordon as follows:

      In Gordon, the defendant was found to be in possession of 8.75
      grams of marijuana. Out of this one incident, he was charged
      with: (1) violation of 35 P.S. § 780–113(31), proscribing the
      possession of a small amount of marijuana, and (2) violation of
      the general proscription against possession of a controlled
      substance as defined in 35 P.S. § 780–113(16). The trial court


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     found him guilty of the more serious of these charged offenses
     which carried with it a harsher penalty. This court held that the
     legislature, by including Subsection (31) in Section 780–113 of
     the proscribed conduct section of the Drug Act, clearly separated
     out the specific crime of possession of a small amount of
     marijuana, and created a “graduated system of penalties” that
     imposes far heavier punishment for traffickers and lesser
     sanctions for casual users of marijuana:

           In our view, the General Assembly, by including
           subsection (31) in section 780–113 of the proscribed
           conduct of the Act, set out the specific crime of
           possession of a small amount of marijuana and
           created a graduated system of penalties that
           imposes far heavier punishment for traffickers and
           lesser sanctions for casual users of marijuana.

     Gordon, 897 A.2d at 509.

     We remanded the matter for the trial court to sentence the
     defendant under the lesser amount statute, as the legislature
     clearly intended that a small amount of marijuana be separately
     and less severely punishable than possession of a controlled
     substance.

Kriegler, 127 A.3d at 844–45.

     Unlike in Gordon, where the court imposed judgment of sentence only

on the greater amount offense carrying a harsher penalty, the case sub

judice involves a judgment of sentence entered only on the lesser amount

offense of a small amount of marijuana—precisely as mandated by Gordon.

That is, the record establishes that the court imposed no further penalty on

the greater amount offense of possession of a controlled substance.      As

such, we find Gordon and the rationale underpinning the decision satisfied

by the proceedings below, and we, accordingly, reject Appellant’s appeal

asking us to overturn his judgment of sentence on such basis.


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     Judgment of sentence is AFFIRMED.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/2016




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