J-S57003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

JEROME JONES

                        Appellee                    No. 930 EDA 2014


                 Appeal from the Order February 28, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): MC-51-CR-0017542-2013

BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                         FILED JANUARY 05, 2016

     The Commonwealth appeals from the February 28, 2014 order

reversing the municipal court order of December 18, 2013, and granting

suppression in favor of Appellee, Jerome Jones.     After careful review, we

reverse and reinstate the December 18, 2013 judgment of sentence.

     The trial court summarized the facts of this case as follows.

                 The Commonwealth presented the testimony of
           Philadelphia Police Officer Brian Wolf at the
           evidentiary hearing on [Appellee’s] motion to
           suppress evidence. Officer Wolf testified that he and
           his partner were on routine bicycle patrol on the
           1600 block of Granite Street on May 4, 2013 at
           approximately 11:40 p.m. when he smelled what he
           believed to be the strong odor of PCP in the area.
           The officer likened the smell to the odor of cat urine.
           Officer Wolf observed [Appellee] walk over to a silver
           SUV and throw an unknown amount of cigarettes
           onto the rear floor of the vehicle. [Appellee] then
           walked around to the driver’s side where he tried to
           enter the vehicle. He was stopped and detained by
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              Officer Wolf’s partner while still outside the SUV.
              Officer Wolf acknowledged that [Appellee] was not
              free to leave at that point. After [Appellee] was
              secured, Officer Wolf looked through the rear window
              of the vehicle and observed two yellowish cigarettes
              on the floor. The officer then opened the rear door,
              reached into the vehicle and seized two cigarettes
              dipped in PCP.

Trial Court Opinion, 1/16/15, at 2.

        The trial court further detailed the procedural history of this case as

follows.

                    On May 4, 2013, [Appellee] was arrested on
              the 1600 block of Granite Street in Philadelphia and
              charged with possession of a controlled substance. [1]
              An evidentiary hearing on the motion to suppress
              physical evidence filed[2] by [Appellee] was held on
              August 16, 2013 before Municipal Court Judge
              Jacqueline Frazier-Lyde. At the close of the hearing,
              Judge Frazier-Lyde denied the motion. On December
              18, 2013, the Honorable Craig Washington found
              [Appellee] guilty and sentenced him to a term of 6 to
              23 months[’] incarceration.          A motion for

____________________________________________


1
    35 P.S. § 780-113(a)(16).
2
  Neither the certified record nor the trial court’s docket contains an entry for
a written suppression motion. However, Pennsylvania Rule of Criminal
Procedure 575 permits oral motions at the discretion of the suppression
court. See Pa.R.Crim.P. 575(A)(1) (stating, “[a]ll motions shall be in
writing, except as permitted by the court or when made in open court during
a trial or hearing[ ]”).      At the beginning of the suppression hearing,
Appellee’s counsel stated “[t]his is a motion to suppress” and proceeded to
state the reasons he sought suppression. N.T., 8/16/13, at 4. Immediately
thereafter, the municipal court conducted a suppression hearing. Therefore,
we presume it was an oral motion to suppress permitted by the municipal
court.




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              reconsideration of sentence was denied by Judge
              Washington on January 10, 2014.

                    On January 17, 2014[, Appellee] filed a Writ of
              Certiorari with [the trial court] alleging that the
              motion to suppress had been erroneously denied.
              On February 28, 2014, [the trial court] granted the
              writ and ordered the case against [Appellee]
              discharged. The Commonwealth thereafter filed the
              instant [] appeal.[3]

Id. at 1.

       On appeal, the Commonwealth presents the following issue for our

review.

                     Did the [trial] court, sitting as an appellate
              court, err in reversing [Appellee’s] Municipal Court
              conviction and discharging him on the ground that
              his motion to suppress should have been granted for
              supposed lack of reasonable suspicion or probable
              cause to arrest, where an experienced officer
              smelled the distinct odor of PCP, saw [Appellee]
              throw yellowish cigarettes characteristic of having
              been dipped in PCP into a car, and when he
              approached [Appellee] saw the cigarettes on the
              floor of the car in plain view?

Commonwealth’s Brief at 3.4

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3
 The Commonwealth and the trial court have complied with Pennsylvania
Rule of Appellate Procedure 1925.
4
   Appellee argues that the Commonwealth, in its voluntarily filed
Pennsylvania Rule of Appellate Procedure 1925(b) statement, did not
preserve the issue that the trial court erred in reversing the decision of the
municipal court denying Appellee’s motion to suppress.                    See
Commonwealth v. Snyder, 870 A.2d 336, 341 (Pa. Super. 2005)
(concluding the appellant waived all the issues not contained in his voluntary
Rule 1925(b) statement; “[i]t is of no moment that [the] appellant was not
(Footnote Continued Next Page)


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      We begin by noting our well-settled standard of review.

                   When the Commonwealth appeals from a
             suppression order, this Court may consider only the
             evidence from the defendant’s witnesses together
             with the evidence of the prosecution that, when read
             in the context of the record as a whole, remains
             uncontradicted. In our review, we are not bound by
             the suppression court’s conclusions of law, and we
             must determine if the suppression court properly
             applied the law to the facts.      We defer to the
             suppression court’s findings of fact because, as the
             finder of fact, it is the suppression court’s
             prerogative to pass on the credibility of the
             witnesses and the weight to be given to their
             testimony.

Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014)

(internal quotation marks and citations omitted), appeal denied, 106 A.3d

724 (Pa. 2014).

      The Fourth Amendment of the United States Constitution provides,

“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated

….”    U.S. Const. amend. IV.               Likewise, Article I, Section 8 of the
                       _______________________
(Footnote Continued)

ordered to file a 1925(b) statement[]”).        Appellee argues that the
Commonwealth framed its Rule 1925(b) in terms of whether the discharge
was proper, and it did not encompass whether the underlying reversal of the
municipal court’s decision denying suppression was correct. Appellee’s Brief
at 11. We disagree. Contrary to Appellee’s view, the Commonwealth in its
Rule 1925(b) statement was not challenging whether discharge or remand to
the municipal court for a new trial was the proper remedy. Id. at 13.
Instead, the Rule 1925(b) statement raised the issue of whether the
underlying reason for the discharge was correct, i.e., whether the evidence
should have been suppressed.          Therefore, we conclude that the
Commonwealth has preserved the issue for our review.



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Pennsylvania Constitution states, “[t]he people shall be secure in their

persons, houses, papers and possessions from unreasonable searches and

seizures ….” Pa. Const. Art. I, § 8. In general, prior to conducting a search,

the police must obtain a warrant from an independent judicial officer by

demonstrating probable cause. Commonwealth v. Gary, 91 A.3d 102, 106

(Pa. 2014) (plurality opinion). Moreover, “[w]arrantless searches or seizures

are presumptively unreasonable subject to certain established exceptions.”

Hudson, supra (citation omitted).

       One such exception to the warrant requirement is when evidence is

seized from an automobile. In Pennsylvania, “[u]ntil recently, in order for

police officers to conduct a lawful search of an automobile without a warrant,

the   officers   were     required     to      have   probable   cause   and   exigent

circumstances.”       Id. (emphasis added).            However, our Supreme Court

recently “adopt[ed] 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.” Gary, supra at 104.5

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5
  Gary is a plurality opinion, authored by Justice McCaffery and joined by
Justices Castille and Eakin. However, in his concurring opinion, Justice
Saylor specifically stated that he “join[ed] the lead Justices in adopting the
federal automobile exception.” Gary, supra at 138 (Saylor, J., concurring)
(writing separately to highlight the “inconsistency in the courts’ rejection of
bright-line rules restraining law enforcement as a means of protecting
individual rights, while simultaneously embracing such rules when they
(Footnote Continued Next Page)


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      In this case, the Commonwealth contends the trial court erred by

concluding    that     the    warrantless        search    of   Appellee’s   vehicle   was

unconstitutional because the Commonwealth did not show there were

exigent circumstances. Commonwealth’s Brief at 7. We agree that this is a

misstatement of the law following Gary.6                  The Commonwealth needed to

establish only that the police possessed probable cause in order to search

the interior of the vehicle. Even though the trial court did not opine whether

the Commonwealth demonstrated probable cause,7 we may consider the

                       _______________________
(Footnote Continued)

facilitate law enforcement”) (footnote omitted). Accordingly, the adoption of
the federal automobile exception is precedential, as four justices out of six
agreed to adopt it. See Commonwealth v. Brown, 23 A.3d 544, 556 (Pa.
Super. 2011) (explaining, “[i]n cases where a concurring opinion
enumerates the portions of the plurality opinion in which the author joins or
disagrees, those portions of agreement gain precedential value[]”).
6
 We note that at the time the trial court made its decision, on February 28,
2014, our Supreme Court had not yet issued Gary, which was decided on
April 29, 2015.    However, the trial court’s January 16, 2015 opinion
maintained that the automobile exception required the Commonwealth to
prove exigency. Even though Gary was announced after the trial court
decided to grant suppression, it appears Gary applies retroactively to cases
pending on direct appeal. See Commonwealth v. Dunn, 95 A.3d 272 (Pa.
2014) (per curiam) (vacating Superior Court decision based on a pre-Gary
application of the automobile exception and remanding in light of Gary).
Therefore, we apply Gary to this case because it was pending on direct
appeal when Gary was decided.
7
 The trial court explicitly stated, “even assuming arguendo that Officer Wolf
had probable cause to believe that the cigarettes he observed through the
window of the vehicle contained PCP, no exigency existed to excuse the
warrantless entry and seizure of items.” Trial Court Opinion, 1/16/15, at 3.
The Commonwealth erroneously states that the trial court “accepted that
Officer Wolf had probable cause[.]” Commonwealth’s Brief at 7.



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issue as it presents a question of law. See Commonwealth v. Newman,

84 A.3d 1072, 1080 (Pa. Super. 2014) (citation omitted), appeal denied, 99

A.3d 925 (Pa. 2014).

      “Probable cause exists where the facts and circumstances within the

officer’s knowledge are sufficient to warrant a prudent individual in believing

that an offense was committed and that the defendant has committed it.”

Commonwealth v. Griffin, 24 A.3d 1037, 1042 (Pa. Super. 2011) (citation

omitted), appeal denied, 34 A.3d 82 (Pa. 2011). We do not ask whether the

officer’s belief was “correct or more likely true than false.      Rather, we

require only a probability, and not a prima facie showing, of criminal

activity.”   Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009)

(citations and quotation marks omitted, italics in original). When assessing

whether probable cause was present, “we must consider the totality of the

circumstances as they appeared to the arresting officer.”     Griffin, supra.

(citation and quotation marks omitted). Further, an officer’s experience is a

relevant factor in determining probable cause if the officer demonstrates a

nexus between his experience and the search or seizure.           Thompson,

supra at 935.

      Further, the “plain view” exception to the warrant requirement applies

in this case. “[T]he plain view doctrine, permits the warrantless seizure of

an object when: (1) an officer views the object from a lawful vantage point;

(2) it is immediately apparent to him that the object is incriminating; and


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(3) the officer has a lawful right of access to the object.” Hudson, supra

(citation omitted).

              In determining whether the incriminating nature of
              an object [is] immediately apparent to the police
              officer, we look to the totality of the circumstances.
              An officer can never be one hundred percent certain
              that a substance in plain view is incriminating, but
              his belief must be supported by probable cause. In
              viewing the totality of the circumstances, the
              officer's training and experience should be
              considered.

Commonwealth v. Miller, 56 A.3d 424, 430 (Pa. Super. 2012) (citations

and quotation marks omitted).

      Here, we conclude the seizure of the PCP-coated cigarettes was

constitutionally permissible because Officer Wolf had probable cause to seize

the contraband without a warrant under the plain view and automobile

exceptions.     Specifically, the uncontradicted evidence presented by the

Commonwealth at the suppression hearing was as follows. Officer Wolf and

his partner were on bicycle patrol at night in an area known for narcotics.

N.T., 8/16/13, at 9. As Wolf passed Appellee, who was the only person in

the area at the time, he noticed “a strong odor of PCP [] in the air.” Id. at

7-8. Wolf explained that in his career he had made 10-15 arrests for PCP

possession and that the aroma of PCP is distinct, unmistakable, and “very

similar to cat urine.”   Id. at 8-9.   In addition, through his experience, he

knew that PCP is typically consumed by smoking marijuana joints or

cigarettes that have been dipped into PCP.      Id. at 12.   After smelling the


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PCP, Wolf watched Appellee as he abruptly approached a parked vehicle,

opened the rear door, and threw cigarettes into the vehicle. Id. at 8. At

that point, Wolf and his partner approached Appellee.     Id.    Wolf testified,

“[t]he smell of PCP coming from the entire car in his area was extremely

strong.   And I could tell it was coming from the car.”    Id.    While Wolf’s

partner detained Appellee, Wolf looked through the vehicle’s rear passenger

window and observed two cigarettes on the rear floor that looked “wet” and

“yellowish.” Id. at 10. Based on these circumstances, Wolf opened the rear

door and seized the cigarettes. Id. at 21.

      Applying the plain view exception to these facts, we conclude the

seizure was proper.   First, Wolf viewed the incriminating contraband, two

apparently PCP-coated cigarettes, in plain view on the floor of a vehicle from

a lawful vantage point, on a public street. See Hudson, supra. Second,

Wolf had probable cause to conclude that the incriminating nature of the

contraband was immediately apparent.         He smelled PCP, which he was

familiar with through his experience, both when Appellee passed him on the

street and again when he approached the vehicle. He watched Appellee toss

cigarettes into the car after the officers passed him. Wolf knew one typical

method used to consume PCP was to dip a cigarette into PCP and then

smoke it. The cigarettes on the floor of the car appeared wet, as if they had

been dipped into a liquid, and were discolored.        The totality of these

circumstances, viewed through Wolf’s experience, gave rise to probable


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cause that the cigarettes were incriminating.      See Miller, supra.   Third,

Wolf had a lawful right to access the contraband under the automobile

exception to the warrant requirement. As explained above, once an officer

has probable cause that evidence of a crime is in an automobile, the officer

may conduct a warrantless search of the vehicle.          See Gary, supra.

Therefore, the seizure of the PCP-coated cigarettes was constitutionally

permissible.

       In his brief, Appellee does not contest that the Commonwealth

established probable cause to conduct a warrantless search of his vehicle

under the plain view and automobile exceptions. Instead, he argues that his

stop was an investigative detention that was not supported by reasonable

suspicion or probable cause. Appellee’s Brief at 18. Appellee contends that

the recovery of the contraband must be suppressed as the fruit of his illegal

stop. Id. at 20. Assuming that Appellee was subjected to an investigative

detention,8 the police must have possessed a reasonable suspicion that

Appellee was engaged in criminal activity. Commonwealth v. McAdoo, 46

A.3d 781, 784 (Pa. Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013).

Our Supreme Court has explained reasonable suspicion as follows.


____________________________________________


8
  At the suppression hearing, Wolf testified that Appellee was held for an
investigative detention and he was not free to leave. N.T., 8/16/13, at 21.
The Commonwealth and the trial court did not address the legality of the
stop.



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                    Reasonable suspicion is a less stringent
             standard than probable cause necessary to
             effectuate a warrantless arrest, and depends on the
             information possessed by police and its degree of
             reliability in the totality of the circumstances. In
             order to justify the seizure, a police officer must be
             able to point to specific and articulable facts leading
             him to suspect criminal activity is afoot.           In
             assessing the totality of the circumstances, courts
             must also afford due weight to the specific,
             reasonable inferences drawn from the facts in light of
             the officer’s experience and acknowledge that
             innocent facts, when considered collectively, may
             permit the investigative detention.

Commonwealth v. Holmes, 14 A.3d 89, 95-96 (Pa. 2011) (internal

citations, quotation marks, and emphasis omitted).

      The totality of the evidence presented at the suppression hearing

established reasonable suspicion to subject Appellee to an investigative

detention. As described above, Wolf immediately identified the distinct smell

of PCP as Appellee passed him. See Commonwealth v. Stoner, 344 A.2d

633, 635 (Pa. Super. 1975) (explaining that “plain smell” may provide

probable cause and opining “[i]t would have been a dereliction of duty for

[the officer] to ignore the obvious aroma of an illegal drug which he was

trained to identify[]”). Appellee was the only other person present on the

block, a known high drug area, at that time of night. Wolf then observed

Appellee react to the police presence by abruptly discarding cigarettes,

which he knew from his experience to be a typical means to ingest PCP, into

a vehicle.   The totality of these circumstances in the light of the officer’s

experience gave rise to reasonable suspicion that Appellee was in possession

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of PCP.    See Holmes, supra.     Therefore, we conclude the police had

reasonable suspicion to conduct an investigative detention of Appellee. See

id.

      Based on the foregoing, we conclude that the trial court erred as a

matter of law by reversing the municipal court and suppressing the evidence

against Appellee. See id. Accordingly, the trial court’s February 28, 2014

order is reversed, and Appellee’s December 18, 2013 judgment of sentence

is reinstated.

      Order reversed. Judgment of sentence reinstated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2016




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