J-S62015-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

RODRICK M. BRAYBOY,

                            Appellant                  No. 2322 EDA 2013


       Appeal from the Judgment of Sentence entered March 23, 2011,
             in the Court of Common Pleas of Delaware County,
           Criminal Division, at No(s): CP-23-CR-0005604-2009



BEFORE: ALLEN, OLSON, and OTT, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED OCTOBER 08, 2014

       Rodrick M. Brayboy (“Appellant”) appeals from the judgment of

sentence imposed after a jury convicted him of persons not to possess a

firearm, firearm carried without a license, two counts of aggravated assault,

driving under the influence, two counts of terroristic threats, theft by

receiving stolen property, and resisting arrest.1

       The trial court detailed the pertinent facts and procedural history as

follows:

             [O]n April 11, 2009, Appellant was arrested and charged
       with the [aforementioned crimes]. Appellant, through counsel,
       filed several pretrial omnibus motions, including a motion to
____________________________________________


1
  18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 2702(a)(3), 3802(a)(1), 2706,
3925, and 5104.
J-S62015-14


     suppress and a motion to dismiss based upon Pa.R.Crim.P. Rule
     600, prior to the commencement of his jury trial on February 2,
     2011. Appellant also filed numerous pro se omnibus pretrial
     motions while represented by counsel.

           A suppression hearing began on January 28, 2010 and was
     continued and concluded on May 12, 2010.             Following the
     hearing, [the trial] court denied Appellant’s “Motion to Suppress
     Evidence” on June 14, 2010. ... . [The trial] court also denied
     Appellant’s “Motion to Dismiss Pursuant to Pa.R.Crim.P. Rule
     600” in open court following a hearing on August 10, 2010.
     Following the denial of Appellant’s Rule 600 motion, the [trial]
     court issued findings of fact and conclusions of law on August 30,
     2010. ...

            Prior to trial Appellant also filed several interlocutory
     appeals with the Superior Court. On February 2, 2011, [the
     trial] court proceeded to trial based upon Pa.R.A.P. Rule
     1701(b)(6). Following a two day trial, a jury found Appellant
     guilty of all charges except one count of aggravated assault. On
     March 23, 2011, [the trial] court sentenced Appellant to the
     following:

           Information A.    Persons not to possess a firearm: 60 to
                             120 months of incarceration in state
                             prison.

           Information B. Firearms not to be carried without a
                           license: 42 months to 84 months of
                           incarceration in state prison, concurrent
                           to Information A.

           Information C.   Aggravated assault: 27 months to 54
                            months of incarceration in state prison,
                            concurrent to Information A & B.

           Information D.    DUI, Tier 3, refusal: 72 hours to 6
                             months of incarceration in state prison,
                             concurrent to Informations A, B, & C.

           Information E.    Terroristic threats:




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                                Count one:        6 months to 12 months
                                of   incarceration   in   state  prison,
                                consecutive to Information A.

                                Count two: 6 months to 12 months of
                                incarceration in state prison, consecutive
                                to Information A and E1.

              Information F:    Receiving stolen property: 3 years of
                                state    probation,     consecutive to
                                Information A, B, C, D, E1 & E2.

              Information I:    Resisting arrest: 2 years of state
                                probation, consecutive to Informations A,
                                B, C, D, E1, E2 & F.

               Appellant was also ordered to complete a drug and alcohol
        evaluation, a Court Reporting Network [CRN] evaluation, submit
        to DNA testing, Safe Driving School, pay a fine of $1,000, and
        forfeit the firearm relating to the incident.     Appellant was
        ordered to comply with the general rules and regulations
        governing probation and/or parole.

               On April 21, 2011, Appellant filed a direct appeal.
        Thereafter, trial counsel petitioned for leave to withdraw and
        Steven O’Meara, Esquire, was appointed to represent Appellant
        on his appeal. Thereafter, on November 15, 2011, Appellant’s
        appeal was dismissed for counsel’s failure to file a brief.
        Thereafter, Appellant filed a “Motion for Post-Conviction
        Collateral Relief” seeking reinstatement of his appeal rights nunc
        pro tunc. Counsel was appointed, and following an amended
        petition, a response from the Commonwealth, and a hearing on
        this motion, [the trial] court granted this petition on July 10,
        2013. Appellant filed the instant appeal on August 5, 2013.
        [Both Appellant and the trial court have complied with Pa.R.A.P.
        1925.]

Trial Court Opinion, 3/5/14, at 1-3 (footnote omitted).

        Appellant presents the following issues for our review:

   I.      Was the Trial Court in error for failing to find a violation of
           Pennsylvania Rule of Criminal Procedure 600 in that the
           Appellant was incarcerated without Trial beyond both the one

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           hundred eighty (180) day as well as the three hundred sixty
           five (365) day limit as provided in said Rule?

   II.     Was the Trial Court in error for failing to grant [Appellant’s]
           Motion to Suppress Physical Evidence as a result of an illegal
           search and/or investigation by the police?

Appellant’s Brief at 4.

         Rule 600 was designed “to prevent unnecessary prosecutorial delay in

bringing a defendant to trial.”     Commonwealth v. Brock, 61 A.3d 1015

1021 (Pa. 2013). “In evaluating Rule 600 issues, our standard of review of

a trial court’s decision is whether the trial court abused its discretion.”

Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa. Super. 2004) (en

banc), appeal denied, 875 A.2d 1073 (Pa. 2005) (citations and internal

quotations omitted).       “The proper scope of review … is limited to the

evidence on the record of the Rule 600 evidentiary hearing, and the findings

of the trial court. An appellate court must view the facts in the light most

favorable to the prevailing party.”     Id. at 1238-39 (internal citations and

quotation marks omitted).        Importantly, a court will grant a motion to

dismiss on Rule 600 grounds only if a defendant has a valid Rule 600 claim

at the time the motion is filed. Id. at 1243.

          Rule 600 provides, in pertinent part:

         (A)   …

               (2)   Trial in a court case in which a written complaint is
                     filed against the defendant, when the defendant is
                     incarcerated on that case, shall commence no later



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                 than 180 days from the date on which the
                 complaint is filed.


           (3)   Trial in a court case in which a written complaint is
                 filed against the defendant, when the defendant is at
                 liberty on bail, shall commence no later than 365
                 days from the date on which the complaint is
                 filed.

                                    ***
     (C)   In determining the period for commencement of trial,
           there shall be excluded therefrom:


           (1)   the period of time between the filing of the written
                 complaint and the defendant's arrest, provided that
                 the defendant could not be apprehended because his
                 or her whereabouts were unknown and could not be
                 determined         by         due          diligence;

                                    ***
           (3)   such period of delay at any stage of the proceedings
                 as results from:
                 (a)   the unavailability of the defendant or the
                       defendant's                       attorney;

                 (b)   any continuance granted at the request of the
                       defendant or the defendant's attorney.


     (G)

                                    ***
     If the court, upon hearing, shall determine that the
     Commonwealth exercised due diligence and that the
     circumstances occasioning the postponement were beyond the
     control of the Commonwealth, the motion to dismiss shall be
     denied and the case shall be listed for trial on a date certain. ...
     If, at any time, it is determined that the Commonwealth did not
     exercise due diligence, the court shall dismiss the charges and
     discharge the defendant.

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Pa.R.Crim.P. 600 (emphasis added).2

       In the present case, Rule 600 required the Commonwealth to bring a

defendant to trial within 180 days of the filing of the criminal complaint. See

Pa.R.Crim.P., Rule 600(A)(2). Rule 600, however, specifically contemplates

that certain periods of time shall be excluded in calculating compliance. In

the context of Rule 600, “excludable time” is differentiated from “excusable

delay” as follows:

       ‘Excludable time’ is defined in Rule 600(C) as the period of time
       between the filing of the written complaint and the defendant’s
       arrest, … any period of time for which the defendant expressly
       waives Rule 600; and/or such period of delay at any stage of the
       proceedings as results from:       (a) the unavailability of the
       defendant or the defendant’s attorney; (b) any continuance
       granted at the request of the defendant or the defendant’s
       attorney. ‘Excusable delay’ is not expressly defined in Rule 600,
       but the legal construct takes into account delays which occur as
       a result of circumstances beyond the Commonwealth’s control
       and despite its due diligence.


Commonwealth v. Brown, M., 875 A.2d 1128, 1135 (Pa. Super. 2005),

appeal denied, 891 A.2d 729 (Pa. 2005) (quoting Commonwealth v. Hunt,

858 A.2d 1234, 1241 (Pa. Super. 2004) (en banc), appeal denied, 875 A.2d

1073 (Pa. 2005).

____________________________________________


2
 Prior Rule 600 was rescinded on October 1, 2012, and a revised Rule 600
was made effective on July 1, 2013. See 42 Pa.B. 6622. Since “Prior Rule
600” was in effect at the time of the trial court’s decision on Appellant’s Rule
600 motion, our analysis will focus on that version of the Rule.



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            To summarize, the courts of this Commonwealth employ
      three steps ... in determining whether Rule 600 requires
      dismissal of charges against a defendant. First, Rule 600(A)
      provides the mechanical run date.        Second, we determine
      whether any excludable time exists pursuant to Rule 600(C).
      We add the amount of excludable time, if any, to the mechanical
      run date to arrive at an adjusted run date.

            If the trial takes place after the adjusted run date, we
      apply the due diligence analysis set forth in Rule 600( [D] ). As
      we have explained, Rule 600[ ] encompasses a wide variety of
      circumstances under which a period of delay was outside the
      control of the Commonwealth and not the result of the
      Commonwealth's lack of diligence. Any such period of delay
      results in an extension of the run date. Addition of any Rule
      600[ ] extensions to the adjusted run date produces the final
      Rule 600 run date. If the Commonwealth does not bring the
      defendant to trial on or before the final run date, the trial court
      must dismiss the charges.

Commonwealth v. Armstrong, 74 A.3d 228, 236 (Pa. Super. 2013)

(citations omitted).   “Due diligence is a fact-specific concept that must be

determined on a case-by-case basis. Due diligence does not require perfect

vigilance and punctilious care, but rather a showing by the Commonwealth

that a reasonable effort has been put forth.” Commonwealth v. Brown,

875 A.2d 1128, 1138 (Pa. Super. 2005) (citations and internal quotations

omitted).   “Reasonable effort includes such actions as the Commonwealth

listing the case for trial prior to the run date to ensure that [defendant] was

brought to trial within the time prescribed by Rule [600].     This Court has

further held the Commonwealth exercised reasonable effort when within the

run date the Commonwealth was ready to commence trial and was




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prevented from doing so by an administrative error which resulted in a trial

date three days beyond the run date.” Id.

      Here, the mechanical run date was Monday, October 8, 2009, 180

days after the complaint against Appellant was filed.         See Pa.R.Crim.P.

600(A)(2).   Both Appellant and the Commonwealth agree that Appellant’s

trial did not commence until February 1, 2011, 481 days after expiration of

the mechanical run date. The trial court concluded, however, that because

trial commenced prior to the adjusted run date of February 25, 2011 (after

accounting for all excusable and excludable delay), Appellant was not

entitled to Rule 600 relief. We agree with the trial court.

      In the portion of his brief pertaining to his Rule 600 claim, Appellant

does not set forth any arguments challenging the delay that occurred prior

to August 31, 2010.       Appellant’s Brief at 12-13.      Moreover, Appellant

acknowledges that the delay that occurred between August 31, 2010 and

December     5,   2010   was excludable    due   to   Appellant’s   requests   for

continuances. Id. Appellant argues, however, that he is entitled to Rule 600

relief for the delay that occurred after December 6, 2010, because he was

prepared to proceed to trial on December 6, 2010, and the trial court’s

decision to continue the trial until February 2, 2011 was not excusable. Id.

      The trial court refuted Appellant’s Rule 600 claim as follows:

      On December 6, 2010, [the trial court] presided over the
      [unrelated] jury trial of Commonwealth v. Wariso Jumbo, No.
      3268-10, and was not available to preside over Appellant’s trial.
      Appellant was given a new trial date of January 10, 2011, which

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      was the earliest consistent with [the trial] court’s calendar. [The
      trial] court finds that the 35 DAYS between these dates, which
      occurred through no lack of due diligence by the Commonwealth,
      are EXCUSABLE.

                                       ...

      On January 10, 2011, [the trial] court was not available to sit for
      Appellant’s trial because it was presiding over other cases on its
      list that week and provided a new trial date of January 24, 2011,
      which was the earliest date consistent with [the trial] court’s
      calendar. [The trial] court finds that the 14 DAYS between these
      dates, which occurred through no lack of due diligence by the
      Commonwealth, are EXCUSABLE.

Trial Court Opinion, 3/5/14, at 10 (capitalization in original).

      Given that the trial court was presiding over another matter on

December 6, 2010, and our review of the record confirms that on January

10, 2011, the trial court entered an order continuing Appellant’s trial to

January 31, 2011 because the trial court was “unavailable the week of

1/10/11,” we find no abuse of discretion in the trial court’s determination

that the period after December 6, 2011 was excusable.              See Trial Court

Order, 1/10/11. We have explained:

      Judicial delay may justify postponing trial beyond the adjusted
      run date if the Commonwealth was prepared to commence trial
      prior to the expiration of the mandatory period but the court was
      unavailable because of ‘scheduling difficulties and the like.’ It
      would be ill-advised to require courts to continually arrange and
      rearrange their schedules to achieve a rigid accommodation of
      the deadlines imposed by Pennsylvania's speedy trial procedural
      rules. Any such interpretation of Rules 600 or 1013 would
      require judges, prosecutors, and defense attorneys to be
      available at all times to try defendants whose adjusted run date
      is about to expire. The procedural rules were designed to
      promote the administration of criminal justice within the context


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      of the entire judicial system, not to render that system hostage
      to its own closed logic.

Commonwealth v. Preston, 904 A.2d 1, 14 (Pa. Super. 2006) (citations

and internal quotations omitted).     For the foregoing reasons, we find no

abuse of discretion in the trial court’s denial of Appellant’s Rule 600 motion.

      Appellant next argues that the trial court erred in failing to grant his

motion to suppress the evidence recovered after his vehicle was stopped by

police. The trial court recounted the circumstances surrounding the stop of

Appellant’s vehicle as follows:

             On April 11, 2009, just before 2:00 A.M., Officer William
      Carey of the Chester City Police Department was on patrol in full
      uniform and in a marked vehicle. Officer Carey was traveling
      east on Ninth Street when he stopped at a red light at the
      intersection of Ninth Street and Central Avenue, on the west side
      of the city. There were about four or five cars in front of Officer
      Carey, including a blue four-door Oldsmobile which was later
      determined to be operated by Appellant, which was third in line.
      Once the light turned green, the Appellant drove out of his lane,
      passed the two vehicles in front of him on the right at a high
      rate of speed, and then got back in the original lane. Officer
      Carey testified that once the vehicle passed other vehicles, it
      “kind of jerked its way back into the traffic lane, swerving back
      and forth, and gained control.” As a result of this action, Officer
      Carey activated his emergency lights and siren and pursued the
      vehicle. Officer Carey testified that he accelerated in excess of
      60 miles per hour to start gaining on the vehicle. Officer Carey
      was able to catch up to the vehicle when it pulled over on Lloyd
      Street. Once the vehicle pulled over, the Appellant shut off the
      vehicle’s lights; however, the vehicle was still running. Officer
      Carey had several lights on the Appellant’s vehicle, including a
      spotlight and overhead takedown lights and was able to observe
      Appellant “lean down in the seat and forward.” Officer Carey
      testified that through his training and experience, in which he
      has made nearly 60 firearm arrests, that Appellant’s movement
      was a “red flag.” There was also one passenger in the vehicle,
      later identified as Eric McClary. Officer Carey radioed and waited

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     for backup to arrive prior to approaching Appellant’s vehicle.
     Soon thereafter, Officers Joseph Dougherty, Danny Bornaman,
     and later, Robert McCreight arrived on scene.

           Officer Carey approached the driver’s side door while
     Officer Dougherty approached the passenger’s side door. Upon
     command, Appellant placed the car in park and shut the vehicle
     off. Appellant provided his name and date of birth, but was
     unable to provide his license, registration, and insurance
     information.   While talking to the Appellant, Officer Carey
     “detected a strong odor of alcoholic beverage coming from the
     vehicle and from his breath.” Officer Carey also observed that
     Appellant’s eyes were bloodshot and his speech was somewhat
     slurred. The Appellant also had an aggressive tone with Officer
     Carey and stated that Officer Carey had no right to stop him.

           Based upon these observations, Officer Carey asked
     Appellant to step out of the vehicle in order to pat him down and
     to check the wingspan of the vehicle for safety purposes. When
     asked if he had any weapons on his person, the Appellant
     responded in the negative. Officer Carey testified at trial that
     nothing was recovered from the pat down of Appellant. The
     Appellant was then moved to the back of the vehicle where he
     was supervised by Officer Bornaman. Thereafter, Officer Carey
     directed his attention to the passenger of the vehicle.

           Meanwhile, Officer Dougherty was standing by the
     passenger side doorway with his flashlight, looking through the
     vehicle. Without touching anything inside the vehicle, Officer
     Dougherty observed the rear of a pistol grip of a firearm
     protruding from underneath the driver’s seat. The firearm was
     within arm’s reach of the driver and the passenger. Officer
     Dougherty immediately alerted the other officers to handcuff the
     Appellant and the passenger. As soon as Officer Bornaman
     placed Appellant in handcuffs, an altercation ensued. Appellant
     kicked Officer Bornaman and attempted to wrestle his way free,
     but the two fell to the street and the struggle continued.
     Thereafter, Appellant failed to comply with the officers’ requests
     to stop resisting, and proceeded to continue to kick both Officers
     Bornaman and Dougherty. Appellant became violent, loud, and
     screamed at the officers. Eventually, Officer Dougherty deployed
     his taser in order to subdue Appellant. Officer Carey testified
     that this struggle took about a minute and he emphasized that
     “a minute is a long time.”

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            Once in handcuffs and under control, both Appellant and
      the passenger were placed in the back of Officer Carey’s police
      vehicle and placed under arrest

Trial Court Opinion, 3/5/14 at 4-6 (citations to notes of testimony and

footnotes omitted).

      Appellant argues that Officer Carey’s actions in ordering Appellant to

exit his vehicle were unsupported by reasonable suspicion and further, that

the officer’s warrantless seizure of the gun was not justified under the

limited automobile exception to the warrant requirement, and therefore

unconstitutional. Appellant’s Brief at 16. Our scope and standard of review

is well-settled:

             An appellate court's standard of review in addressing a
      challenge to a trial court's denial of a suppression motion is
      limited to determining whether the factual findings are supported
      by the record and whether the legal conclusions drawn from
      those facts are correct. [Because] the prosecution prevailed in
      the suppression court, we may 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. Where the record supports the factual findings of
      the trial court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) (citations

omitted).

      “In order to justify a pat-down search, or Terry stop, the officer must

have reasonable suspicion, under the totality of the circumstances, that

criminal activity is afoot and that ‘the individual whose suspicious behavior

he is investigating at close range is armed and presently dangerous to the

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officer or to others. 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.’” Commonwealth v. Guess, 53 A.3d 895, 901 (Pa. Super.

2012) (citations omitted).

      In denying Appellant’s suppression motion, the trial court determined:


           … Once [Appellant] pulled over, Officer Carey [based on
      his observation of Appellant passing a vehicle on the right,
      swerving into oncoming traffic, and speeding], asked for
      [Appellant’s] license, registration, and insurance information,
      which is standard procedure during any vehicle stop.
      Commonwealth v. Sands, 887 A.2d 261 (Pa. Super. 2005).

           While asking for these documents, which [Appellant] did
      not provide, Officer Carey detected a strong smell of alcohol
      coming from [Appellant’s] breath; [Appellant] also slurred his
      words.

            Once Officer Carey obtained sufficient information from
      [Appellant] to check on his operator status, he discovered that
      [Appellant] had a suspended license. Officer Carey was well
      within his rights to have [Appellant] and the passenger step out
      of the vehicle. Police officers may request this during a traffic
      stop “as a matter of course”; not even reasonable suspicion is
      needed.     Commonwealth v. Clinton, 905 A.2d 1026 (Pa.
      Super. 2006) (internal citations omitted).

             Once Officer Carey had [Appellant] exit the vehicle, he
      needed a reasonable belief that [Appellant] was armed to justify
      his frisk of [Appellant] and the passenger. Commonwealth v.
      Gray, 896 A.2d 601, 606 (Pa. Super. 2006) [Appellant’s
      suspended license, failure to produce any documentation,
      combined with Officer Carey’s observation of [Appellant]
      “slump[ing] down and lean[ing] forward,” were sufficient for
      Officer Carey to have a reasonable suspicion that [Appellant]
      might be armed and dangerous, justifying the pat-down. See
      Commonwealth v. Mack, 953 A.2d 587 (Pa. Super. 2008)
      (Appellant was engaged in suspicious movement after being


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      pulled over, and could not provide a driver’s license registration,
      or insurance paperwork).

            Officer Carey testified that one reason he frisked
      [Appellant] was a concern for “officer safety.” The fact that
      there were multiple officers on the scene does not mean that
      Officer Carey’s concern for officer safety was unreasonable. As
      the court noted in Mack, “the fact that an officer may be
      outnumbered is certainly a factor to be considered when
      determining whether an officer’s safety is at risk, but the reverse
      scenario does not amount to a lesser chance that the suspect is
      not armed.” Mack, 653 A.2d 587, 591.


Trial Court Findings of Fact and Conclusions of Law, 6/14/10, at 4-5

(emphasis in original, citations to notes of testimony omitted).

      Our review of the record supports the trial court’s determination that

Officer Carey’s pat down of Appellant was supported by reasonable

suspicion. At the suppression hearing, Officer Carey testified that when he

conducted the stop of Appellant’s vehicle, he observed both occupants of the

vehicle “moving around”, and in particular observed Appellant in the driver’s

seat making suspicious movements, slumping down and leaning forward in

his seat in a manner that caused Officer Carey to fear for his safety, giving

the officer an “eerie feeling”, such that he sought cover by moving “around

to the rear of [his] patrol vehicle and waited for backup” before approaching

Appellant’s   vehicle.   N.T.,   1/28/10,   at   65-66.   When     Officer   Carey

subsequently approached the driver’s side door of Appellant’s vehicle to

speak with Appellant, Officer Carey had to instruct Appellant multiple times

to turn the vehicle off, and Appellant did not immediately comply. Id. at 68



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Officer Carey then requested that Appellant keep his hands on the steering

wheel, and due to Appellant’s lack of compliance, Officer Carey had to repeat

the instruction multiple times. Id. Given the foregoing, we find no error in

the trial court’s determination that under the totality of the circumstances,

Officer Carey articulated sufficient facts to support a belief that Appellant

might be armed and dangerous. See Commonwealth v. Mack, 953 A.2d

at 591 (“An overt threat by the suspect or clear showing of a weapon is not

required for a frisk.   It is well-established that ‘[t]he officer need not be

absolutely certain that the individual is armed; the issue is whether a

reasonably prudent man in the circumstances would be warranted in the

belief that his safety or that of others was in danger.’”).

      Appellant next argues that the police seizure of the gun from

underneath    the   driver’s    seat   of   Appellant’s   vehicle   constituted   an

unconstitutional warrantless seizure. Appellant’s Brief at 15. We disagree.

As the trial court explained:

            It was while Officer Carey was patting down [Appellant]
      and the passenger for weapons that Officer Dougherty saw a gun
      handle sticking out from under the seat, which he was able to
      see from outside the car while using his flashlight.


                                            ***

            [The plain view exception to the warrant requirement]
      permits a valid warrantless seizure of an item where: (1) the
      police are at a lawful vantage point (where the police have not
      violated the Fourth Amendment in arriving at the location from
      which the item could be viewed); (2) the incriminating character
      of the item is immediately apparent; and (3) the police have a

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       lawful right of access to the item itself. Commonwealth v.
       MCCree, 924 A.2d 621, 625 (2007); Commonwealth v.
       Jones, 988 A.2d 649 (2010).

             [T]he police lawfully seized the gun under the plain view
       exception. As set forth above, Officers Carey and Dougherty
       lawfully approached the vehicle in which the gun was observed.

              The incriminating nature of the gun handle in the vehicle
       was also immediately apparent to Officer Dougherty. Using a
       flashlight to look inside a car does not violate plain view, so
       Officer Dougherty did not violate [Appellant’s] constitutional
       protections when he used the flashlight to illuminate the inside
       of the car. Commonwealth v. Merkt, 600 A.2d 1297, 1299
       (Pa. Super. 1992).

             [T]he police had [a] lawful right to access the item. After
       [Appellant] and the passenger were detained, [Appellant]
       assaulted Officer Bornaman. It was after this occurred that the
       gun was seized from the vehicle. [The trial court found] that the
       seizure of the gun was justified under the limited automobile
       exception to the warrant requirement.


Trial Court Findings of Fact and Conclusions of Law, 6/14/10, at 5-6

(citations to notes of testimony omitted and footnote omitted). 3 Our review

of the record supports the trial court’s findings, and we find no error in the

trial court’s determination that seizure of the gun was permissible under the

plain view exception. See, e.g., N.T., 1/28/10, at 85-88.

____________________________________________


3
   In Commonwealth v. Gary, 91 A.3d 102, 104 (2014) (opinion
announcing the judgment of the court), our Supreme Court adopted the
federal automobile exception to the warrant requirement, “which allows
police officers to search a motor vehicle when there is probable cause to do
so and does not require any exigency beyond the inherent mobility of a
motor vehicle.” The search in Appellant’s case, however, occurred before
Gary was decided.



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     For the foregoing reasons, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/8/2014




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