J-A06009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,       IN THE SUPERIOR COURT OF
                                          PENNSYLVANIA
                  Appellee

                    v.

JIMMY MONTALMONT,

                          Appellant                  No. 1689 EDA 2011


         Appeal from the Judgment of Sentence Entered May 27, 2011
            In the Court of Common Pleas of Philadelphia County
                          Criminal Division at No(s):
                          CP-51-CR-0007754-2009
                          CP-51-CR-0007755-2009

BEFORE: BENDER, P.J.E., PANELLA, J., and LAZARUS, J.

MEMORANDUM BY BENDER, P.J.E.                      FILED OCTOBER 15, 2014

      Appellant, Jimmy Montalmont, appeals from the judgment of sentence

of two to four years’ incarceration, followed by three years’ probation,

imposed after he was convicted, following a non-jury trial, of robbery,

criminal conspiracy to commit robbery, theft by unlawful taking, receiving

stolen property, possessing an instrument of crime (PIC), terroristic threats,

and simple assault.      Appellant argues that the court erred by denying his

pretrial motion to suppress evidence obtained during a search of his cell

phone.    We are compelled to agree; therefore, we vacate Appellant’s

judgment of sentence and remand for a new trial.

      Appellant was arrested and charged with various offenses in February

of 2011 based on his involvement in robberies of pizza deliverymen. Prior to

trial, Appellant filed a motion to suppress, which the court denied. After a
J-A06009-14



non-jury trial was conducted on May 27, 2011, Appellant was found guilty of

the above-stated crimes.                  The court sentenced him that same day to an

aggregate term of two to four years’ imprisonment, followed by three years’

probation. Appellant filed a timely notice of appeal. On September 2, 2011,

he timely complied with the court’s order to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).                  For some

reason not apparent in the record, the trial court did not issue a Rule

1925(a) opinion until May 15, 2013.

        While Appellant’s appeal was pending, he filed with this Court a pro se

request for new counsel to represent him on appeal, claiming that his

current counsel had been disbarred.                After confirming that fact, this Court

remanded Appellant’s case and the trial court appointed a new attorney to

represent Appellant. That attorney filed a brief on Appellant’s behalf raising

one issue for our review: “Whether the court erred in failing to grant the

motion to suppress the physical evidence?” Appellant’s Brief at 4. 1

        We begin by noting our standard of review of an order denying a

motion to suppress evidence:

        In reviewing a trial court's denial of a motion to suppress, we
        determine whether the record supports its factual findings. We
        “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. We are bound by
____________________________________________
1
  The Commonwealth had until September 18, 2014, to file a new appellee’s
brief. No brief was filed as of that date. However, we will consider the
arguments presented in the Commonwealth’s original brief filed on February
7, 2014.


                                                 -2-
J-A06009-14


      the suppression court's findings if they are supported by the
      record, and may only reverse the suppression court if the legal
      conclusions drawn from the findings are in error.” In suppression
      hearings, “[t]he Commonwealth shall have the burden of going
      forward with the evidence and of establishing that challenged
      evidence was not obtained in violation of the defendant's rights.”

Commonwealth v. Thompson, 939 A.2d 371, 375 (Pa. Super. 2007)

(citations omitted).

      Here, in Appellant’s motion to suppress, he averred that police

unlawfully detained him and conducted a warrantless search of a cell phone

discovered in his possession.      A hearing was conducted on Appellant’s

motion, at which the following pertinent evidence was presented.         Officer

Qasim Edwards testified that in February of 2009, he was investigating a

string of robberies involving pizza deliverymen. N.T. Suppression Hearing,

5/16/11, at 7-8. As part of the investigation, police posted a flyer listing the

phone number used by the suspected robbers.          Id. at 9.    The flyer also

provided a description of the suspects, stating that they were “two unknown

black males; No. 1 is 20 years, black jacket, blue jeans; No. 2 is a black

male, 24 years, gray jacket, also wearing black masks.”          Id. at 10.   On

February 11, 2009, at approximately 9:40 p.m., Officer Edwards responded

to a report from Allegro’s Pizza that a delivery order had been placed from

the phone number listed on the flyer. Id. at 9.

      When Officer Edwards arrived at the restaurant, he was instructed by

his sergeant to pose as a pizza deliveryman and go to 1933 North 52 nd




                                     -3-
J-A06009-14



Street, the address provided in the delivery order.2               Id. at 11.   Officer

Edwards was dressed in plain clothes and was carrying a pizza box when he

arrived at that address and knocked on the door.                Id. at 12-13.   Officer

Edwards stood at the door for approximately two minutes, at which time he

heard another officer at the scene, Sergeant Anthony Jackson, yell, “[w]e

got him.”         Id. at 13.           Officer Edwards subsequently observed Sergeant

Jackson detaining two males, one of whom he identified at the suppression

hearing as Appellant. Id. at 14.

        Sergeant Jackson testified that he also responded to Allegro’s Pizza

and then accompanied Officer Edwards to the 52nd Street residence. Id. at

23, 35. Sergeant Jackson was in uniform and was driving a marked patrol

car.     Id. at 26.         The sergeant stated that he parked his vehicle on 52 nd

Street, got out, and “started walking up to the address where the delivery

was supposed to take place” so he could “keep an eye … on Officer Edwards

because he was going to actually walk up to the door to make the

delivery….” Id. Sergeant Jackson described what occurred next, as follows:

        [Sergeant Jackson:] As I was walking up the street to keep an
        eye on Edwards, I saw two males come out of the driveway of
        Arlington Street. They were coming out – it looked like they
        were going towards Officer Edwards. They saw me and then
        they just started walking across the street, 52nd Street.

        [The Commonwealth:] And you were in uniform?

____________________________________________
2
  Testimony at the suppression hearing indicated that this was a “[h]igh
crime area” known for criminal activity involving drugs, robberies and “a lot
of burglaries.” Id. at 42.


                                                -4-
J-A06009-14


     [Sergeant Jackson:] I was in full uniform, yes.

     [The Commonwealth:] The driveway that you were talking
     about, is that the driveway for the area where – like the
     driveway by 1933 North 52nd Street?

     [Sergeant Jackson:] That’s correct. The address where the
     delivery was, it was a corner property, right on the corner of this
     rear driveway.

     [The Commonwealth:] Did they come out before or after Officer
     Edwards knocked on the property?

     [Sergeant Jackson:] They came out, I would say, afterwards
     because he was standing there, and then they started walking
     out the driveway, that’s when I saw them and they, in turn, saw
     me.

Id. at 26-28.    Sergeant Jackson also indicated that he saw Appellant

“fumbling around in his waist” as he walked. Id. at 32.

     When asked to describe what happened next, Sergeant Jackson

stated:

     [Sergeant Jackson:] As they walked across the street, I start[ed]
     walking across towards them and I called to them. I told them
     to stop. I wanted to talk to them.

     [The Commonwealth:] What were your exact words, if you can
     recall?

     [Sergeant Jackson:] Exactly? I don’t know. Just, you know,
     [c]ome here. Yo, guys, hold up for a second, something to that
     effect.
     …

     [The Commonwealth:] And once you said, Yo, guys, come here,
     what did they do?

     [Sergeant Jackson:] They both took off running. They started to
     run.

Id. at 28-29.


                                    -5-
J-A06009-14



        Sergeant Jackson stated that he gave chase after Appellant and his

companion began running, and that he caught Appellant after a short

distance. Id. at 29. At that time, he handcuffed Appellant “[f]or everyone’s

safety,” and because he “didn’t know what was going on yet and … why they

ran.”     Id. at 30.     Sergeant Jackson “[p]atted [Appellant] down for

weapons….”        Id. at 31.     The sergeant did not find any weapons on

Appellant’s person.    Id.     Sergeant Jackson then “passed [Appellant] off to

[other] officers[,]” who searched Appellant again before placing him in the

patrol vehicle.     Id. at 35-36.       During this second pat-down, officers

discovered and seized a cell phone from Appellant’s person. Id. at 36-37.

While this second pat-down was occurring, Sergeant Jackson searched an

area of the ground where he believed Appellant had discarded something

prior to running.      Id. at 32.     The sergeant discovered a cordless drill

wrapped in a t-shirt in that area. Id. Sergeant Jackson testified that that

item could have been used to “simulate … a gun.” Id.

        In regard to the second pat-down of Appellant’s person and the

discovery of his cell phone, Officer Melissa Martin indicated that she may

have been the officer who conducted this pat-down, but she could not

specifically recall. Id. at 44. In any event, Officer Martin stated that she

and her partner, Officer Johnson, were the officers who recovered the cell

phone from Appellant. Id. at 44. However, she could not “remember the

circumstances of actually feeling or retrieving” the phone. Id. at 45.




                                        -6-
J-A06009-14



        Once the phone was recovered, it was handed over to Officer Edwards.

Id. at 21. Officer Edwards stated that he “looked into the phone” and “saw

the phone numbers of the pizza stores” that had been robbed, and also saw

a “call to Allegro’s Pizza that night[.]”3 Id. at 14-15, 21. Officer Edwards’

search of the phone also confirmed that Appellant’s cell phone had “the

same phone number that was used to commit the robberies….” Id. at 21.

At this point, Appellant was placed under arrest. Id. at 33.

        Based on this evidence, the trial court issued an order denying

Appellant’s motion to suppress.                 While the court did not draft an

accompanying opinion explaining its rationale, in its Rule 1925(a) opinion,

the court attempts to offer some insight into its reasoning. Unfortunately,

the court’s discussion is rather confusing.           First, the court explains why

officers had reasonable suspicion to stop Appellant.            Trial Court Opinion

(TCO), 5/15/13, at 5. However, the court does not discuss the validity of

the pat-downs – or the seizure of Appellant’s cell phone – which followed

Appellant’s detention. Instead, the court moves directly into a discussion of

the “inevitable discovery doctrine,” concluding that Appellant’s cell phone

would have been seized and searched incident to his lawful arrest. Id. at 6.

Specifically, the court states that, “[a]lthough [Appellant’s] phone was

searched before he was under arrest, the [o]fficers had the requisite
____________________________________________
3
  Officer Edwards did not specifically describe what digital information he
searched in Appellant’s phone to confirm this information.           However,
Appellant testified that the officer “look[ed] at the numbers in [the phone’s]
call history.” Id. at 51.


                                               -7-
J-A06009-14



probable cause to arrest based on the totality of the circumstances at the

time that the search was conducted, [and] as such[,] the phone would have

been discovered in the search incident to arrest.”     Id. (emphasis added).

Curiously, however, in describing the circumstances that provided officers

with probable cause to arrest Appellant prior to the search of his phone, the

court includes the fact that Appellant’s cell phone “matched the phone

[number] used in the commission of the crimes.” Id. at 7.

        The court’s rationale for denying Appellant’s motion to suppress is

flawed in several respects. First, we agree with Appellant that even if the

officers possessed reasonable suspicion to stop him and conduct a Terry4

frisk of his person, the officers’ seizure and search of the contents of

Appellant’s phone exceeded the scope of Terry.        Our Supreme Court has

stated:

        [T]he purpose of the frisk under Terry is not to discover
        evidence, but to allow the officer to pursue his investigation
        without fear of violence. In keeping with such purpose, the frisk
        must be limited to that necessary for the discovery of weapons.
        The United States Supreme Court has held, however, that an
        officer may also properly seize non-threatening contraband
        detected through the sense of touch during a protective frisk for
        weapons. In so holding, the Court adopted what it characterized
        as the plain feel doctrine….

Commonwealth v. Zhahir, 751 A.2d 1153, 1158-1159 (Pa. 2000).

        Under the plain feel doctrine,
____________________________________________


4
    Terry v. Ohio, 392 U.S. 1 (1968).




                                               -8-
J-A06009-14


          a police officer may seize non-threatening contraband
          detected through the officer's sense of touch during a
          Terry frisk if the officer is lawfully in a position to detect
          the presence of contraband, the incriminating nature of the
          contraband is immediately apparent from its tactile
          impression and the officer has a lawful right of access to
          the object. [T]he plain feel doctrine is only applicable
          where the officer conducting the frisk feels an object
          whose mass or contour makes its criminal character
          immediately apparent. Immediately apparent means
          that the officer readily perceives, without further
          exploration or searching, that what he is feeling is
          contraband. If, after feeling the object, the officer lacks
          probable cause to believe that the object is contraband
          without conducting some further search, the immediately
          apparent requirement has not been met and the plain feel
          doctrine cannot justify the seizure of the object.

Commonwealth v. Pakacki, 901 A.2d 983, 989 (Pa. 2006) (emphasis

added) (quoting Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa.

2000)).

      In this case, we cannot conclude that it was immediately apparent to

the frisking officer(s) that Appellant’s cell phone was contraband. Initially,

there was no testimony from any officer who recalled conducting the pat-

down, let alone any evidence of exactly why “the mass or contour” of

Appellant’s phone made “its criminal character immediately apparent.” Id.

Nevertheless, it is clear that the cell phone, in and of itself, was not

obviously criminal in nature. While it is true that the officers knew that a

cell phone had been used to place the delivery calls just prior to the

robberies, it was not immediately apparent from the plain feel of Appellant’s

cell phone that it was the phone used to place those calls.         Instead, the

officers only became aware of that fact after “further exploration or


                                      -9-
J-A06009-14



searching” of the phone.    Pakacki, 901 A.2d at 989.       Consequently, the

plain feel doctrine was not applicable in this case, and the seizure and search

of Appellant’s phone exceeded the lawful scope of Terry.

      Nevertheless, we acknowledge (as does Appellant) that “[w]hen the

scope of a Terry search is exceeded, this alone does not automatically

exclude the evidence seized from the illegal search.”     Commonwealth v.

Ingram, 814 A.2d 264, 272 (Pa. Super. 2002). Instead, such evidence may

still be admissible pursuant to the inevitable discovery doctrine, which

provides:

         [E]vidence which would have been discovered was
         sufficiently purged of the original illegality to allow
         admission of the evidence.... [I]mplicit in this doctrine is
         the fact that the evidence would have been discovered
         despite the initial illegality.

         If the prosecution can establish by a preponderance of the
         evidence that the illegally obtained evidence ultimately or
         inevitably would have been discovered by lawful means,
         the evidence is admissible. The purpose of the inevitable
         discovery rule is to block setting aside convictions that
         would have been obtained without police misconduct.

Commonwealth v. Bailey, 986 A.2d 860, 862 (Pa. Super. 2009) (citation

omitted).

      Here, the trial court applied the inevitable discovery doctrine,

concluding that there was probable cause to arrest Appellant and, as such,

his cell phone would have been lawfully searched incident to that arrest.

Initially, the court’s analysis is flawed because it factored in the evidence

discovered on Appellant’s phone to determine that probable cause existed to



                                    - 10 -
J-A06009-14



arrest him.         In any event, even if we accepted the court’s conclusion that

there was probable cause to arrest Appellant prior to the search of his cell

phone, the search of the contents of Appellant’s phone would still have been

unlawful.        Recently, in Riley v. California, 134 S.Ct. 2473 (2014), the

United States Supreme Court held that police generally may not conduct a

warrantless search of digital information on a cell phone seized from an

individual       pursuant         to    a      lawful   arrest.5    Id.   at   2494-2495.   In

Commonwealth v. Stem, 2014 WL 3377450 (Pa. Super. 2014), this Court

applied Riley to hold that the search of the contents of Stem’s cell phone

after his lawful arrest was unconstitutional.6                     Under Riley and Stem, it is

____________________________________________
5
 Especially pertinent to the instant case, the Riley Court also rejected the
government’s contention “that officers should always be able to search a
phone’s call log….” Id. at 2492.
6
  We acknowledge that Riley and Stem were decided during the pendency
of this appeal. However,

        [t]he general rule followed in Pennsylvania is that we apply the
        law in effect at the time of the appellate decision.
        Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983).
        This principle applies with equal force to both civil and criminal
        proceedings. Id.; Commonwealth v. Brown, 494 Pa. 380, 431
        A.2d 905 (1981). This means that we adhere to the principle
        that, “a party whose case is pending on direct appeal is entitled
        to the benefit of changes in law which occurs before the
        judgment becomes final.” Commonwealth v. Brown, supra,
        431 A.2d at 906–07, citing August v. Stasak, 492 Pa. 550, 424
        A.2d 1328 (1981).

Blackwell v. Com., State Ethics Com'n, 527 Pa. 172, 182, 589 A.2d
1094, 1099 (Pa. 1991).



                                                    - 11 -
J-A06009-14



apparent that even had Appellant been lawfully arrested prior to the search

of his phone, that search would still have been illegal without the officers’

first obtaining a warrant. Thus, the inevitable discovery doctrine does not

cure the otherwise illegal search of Appellant’s phone during the Terry frisk.

        For these reasons, we are compelled to conclude that the court should

have granted Appellant’s motion to suppress the evidence discovered on his

cell phone. Accordingly, we vacate his judgment of sentence and remand for

a new trial.7

        Judgment of sentence vacated.                   Case remanded.   Jurisdiction

relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/15/2014




____________________________________________
7
 On September 3, 2014, Appellant’s current counsel filed with this Court a
“Motion to File Supplemental 1925b Statement of Matters,” requesting
permission to file a more concise Rule 1925(b) statement than that which
was filed by Appellant’s initial attorney. In light of our disposition herein, we
deny that motion.


                                               - 12 -
J-A06009-14




              - 13 -
