J-S50025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

MONTEZ BROWN

                            Appellant                       No. 1735 EDA 2014


             Appeal from the Judgment of Sentence May 30, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-00111444-2013


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                              FILED SEPTEMBER 09, 2015

       Appellant, Montez Brown, appeals from the May 30, 2014 aggregate

judgment of sentence of four to ten years’ imprisonment, to be followed by

three years’ probation, imposed after Appellant was found guilty of one

count each of possession of a firearm prohibited, possession of a firearm

with the manufacturer’s number altered, firearms not to be carried without a

license, and carrying a firearm in public in Philadelphia.1               After careful

review, we affirm.

       The trial court summarized the relevant factual and procedural

background of this case as follows.

____________________________________________
1
   18 Pa.C.S.A.        §§    6105(a)(1),       6110.2(a),   6106(a)(1),    and   6108,
respectively.
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              [O]n August 24, 2013, at approximately 9:00 PM,
              Police Officer Kevin Hanvey, a newly minted officer,
              and his partner, were on a “special beat” foot patrol
              in the vicinity of the 2500 West Fletcher Street in
              Philadelphia. The “special beat” was the result of
              shootings in the area, including a shooting within the
              previous week, about three blocks away.

                     The officer observed [Appellant] riding a
              bicycle the wrong way down 30th Street, a one way
              street running south.     As the officers discussed
              approaching [Appellant] to stop him for the traffic
              violation, before they spoke to him and while he was
              about a block away, [Appellant] was observed
              making some kind of “adjustment” to his left pant
              leg/boot area.

                    As the officers attempted to stop [Appellant],
              he threw his bike down toward Officer Hanvey, asked
              why he was being stopped, then turned and sprinted
              away.      Officer Hanvey gave chase, grabbed
              [Appellant] by his belt, restrained him and
              handcuffed him. The officers then saw a visible
              bulge    [by     Appellant’s] left   boot,    through
              [Appellant]’s tight pants. [Appellant] was frisked for
              the officers’ safety and the object was felt to be a
              hard metal object, which when retrieved proved to
              be a gun.

Trial Court Opinion, 11/4/14, at 2-3.2

       On September 13, 2013, the Commonwealth filed an information

charging Appellant with the above-listed offenses. Appellant filed a motion

to suppress on November 4, 2013. The trial court conducted a suppression

hearing on January 16, 2014, at the conclusion of which the trial court


____________________________________________
2
 We note the trial court’s opinion does not contain pagination. Therefore,
we have assigned each page a corresponding page number.



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denied said motion.        Appellant proceeded to a stipulated bench trial on

March 14, 2014, at the conclusion of which Appellant was found guilty of all

charges. On May 30, 2014, the trial court imposed an aggregate sentence

of four to ten years’ imprisonment, to be followed by three years’ probation.3

Appellant did not file a post-sentence motion. On June 11, 2014, Appellant

filed a timely notice of appeal.4

       On appeal, Appellant presents one issue for our review.

              Whether the [trial] court erred in failing to grant the
              motion to suppress the physical evidence?

Appellant’s Brief at 4.

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

              We may consider only the Commonwealth’s evidence
              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.          An
              appellate court, of course, is not bound by the
              suppression court’s conclusions of law.
____________________________________________
3
   Specifically, the trial court sentenced Appellant to four to ten year’s
imprisonment for possession of a firearm with the manufacturer’s number
altered and three and one-half to seven years’ imprisonment for firearms not
to be carried without a license. These imprisonment terms were to run
concurrently. The trial court also imposed a sentence of three years’
probation for possession of a firearm prohibited, to run consecutively to the
sentences of incarceration. The trial court imposed no further penalty for
carrying a firearm in public in Philadelphia.
4
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted).

        In the instant case, Appellant does not challenge Officer Hanvey’s

initial stop, rather he argues that the stop was pre-textual to investigate the

officers’ observation of the bulge in Appellant’s boot. Appellant’s Brief at 12.

Furthermore, Appellant avers the trial court incorrectly concluded that the

officers had probable cause to arrest Appellant for either simple assault or

fleeing or eluding an officer, rendering the frisk of Appellant’s person

unconstitutional.      Id. at 16-18.       The Commonwealth counters that the

officers did have probable cause to arrest, or in the alternative, they had

reasonable suspicion for a Terry5 frisk. Commonwealth’s Brief at 6-7.6

        “The Fourth Amendment of the Federal 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

….” Commonwealth v. Carter, 105 A.3d 765, 768 (Pa. Super. 2014) (en

banc), appeal denied, 117 A.3d 295 (Pa. 2015), quoting U.S. Const. amend.

IV.    “Likewise, Article I, Section 8 of the Pennsylvania Constitution states,

“[t]he people shall be secure in their persons, houses, papers and

possessions from unreasonable searches and seizures ….” Id., quoting Pa.


____________________________________________
5
    Terry v. Ohio, 392 U.S. 1 (1968).
6
 The Commonwealth has not presented any argument that Appellant could
have been arrested for fleeing or eluding an officer.



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Const. art. I, § 8. The Fourth Amendment, unlike most other constitutional

provisions, has built-in standards of “reasonableness” and “probable cause”

in its text. U.S. Const. amend. IV; see also Maryland v. King, 133 S. Ct.

1958, 1970 (2013) (stating that the “touchstone of the Fourth Amendment

is reasonableness[]”).    As a result, the Fourth Amendment does not

generally tolerate bright-line or per se rules.    See generally Bailey v.

United States, 133 S. Ct. 1031, 1044 (2013) (Scalia, J., concurring).

However, the Supreme Court has consistently held that the Fourth

Amendment permits the bright-line rule that police may automatically search

a suspect incident to lawful arrest.    Riley v. California, 134 S. Ct. 2473,

2483 (2014); United States v. Robinson, 414 U.S. 218, 235 (1973). As a

result, “the propriety of a search depends upon the validity of the arrest.”

Commonwealth v. El, 933 A.2d 657, 661 (Pa. Super. 2007) (citation

omitted), affirmed, 977 A.2d 1158 (Pa. 2009).

     “[L]aw enforcement authorities must have a warrant to arrest an

individual in a public place unless they have probable cause to believe that

1) a felony has been committed; and 2) the person to be arrested is the

felon.” Commonwealth v. Clark, 735 A.2d 1248, 1251 (Pa. 1999) (citation

omitted).

            Probable cause to arrest exists when the facts and
            circumstances within the police officer’s knowledge
            and of which the officer has reasonably trustworthy
            information are sufficient in themselves to warrant a
            person of reasonable caution in the belief that an
            offense has been committed by the person to be

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              arrested. Probable cause justifying a warrantless
              arrest is determined by the totality of the
              circumstances.

Commonwealth v. Salter, --- A.3d ---, 2015 WL 4626915, *7 (Pa. Super.

2015) (citation omitted).

       We only address Appellant’s argument that the trial court erred in

concluding that the officers had probable cause to arrest Appellant for

assault of a police officer, as we conclude it is dispositive of this appeal. 7 A

person commits aggravated assault when he or she “attempts to cause or

intentionally or knowingly causes bodily injury to any of the officers, agents,

employees or other persons enumerated in [Section 2702](c), in the

performance of duty[.]”         18 Pa.C.S.A. § 2702(a)(3).   Police officers are

enumerated in subsection (c). Id. § 2702(c)(1). Bodily injury is defined as

“[i]mpairment of physical condition or substantial pain.”      Id. § 2301.    In

addition, consistent with Clark, this offense is graded as a second-degree

felony. Id. § 2702(b).

       In this case, Officer Hanvey testified that after approaching Appellant

to stop him for the violation of the Motor Vehicle Code, Appellant “veered

away from [the officers] leaving [his] bike.”        N.T., 1/16/14, at 15-16.


____________________________________________
7
  We summarily reject Appellant’s argument that his constitutional rights
were violated because the officers’ stop was a pretext to investigate the
bulge they saw in his left boot. It is axiomatic that the Fourth Amendment
does not turn on the subjective intent of the officer. Whren v. United
States, 517 U.S. 806, 813 (1996).



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Appellant then threw his bike at Officer Hanvey, the seat of which landed on

Officer Hanvey’s foot. Id. at 16. After throwing the bike at Officer Hanvey,

Appellant turned around and sprinted down the street.        Id.   The officers

chased Appellant, Officer Hanvey grabbed him by the belt and pulled him to

a wall, where Appellant was handcuffed. Id. at 16-17. Upon the search of

Appellant’s person, the officers discovered a small .380 pistol in Appellant’s

left pant leg. Id. at 18-19.

      After careful review of the certified record, we conclude that

Appellant’s arrest was lawful. As noted above, Appellant threw his bicycle at

Officer Hanvey, which struck him in the foot. Id. at 16. Aggravated assault

on a police officer does not require bodily injury, only an “attempt[] to cause

… bodily injury[.]” 18 Pa.C.S.A. § 2702(a)(3). Therefore, even assuming,

arguendo, that Officer Hanvey was not in substantial pain when Appellant’s

bicycle seat struck him in the foot, we have no trouble concluding that when

one person heaves a bicycle at another person, the actor has attempted to

cause someone physical impairment or substantial pain. See generally id.

§ 2301. In addition, as this appeal only concerns probable cause, which is a

far lesser standard of proof than the proof beyond a reasonable doubt that is

required at trial, we need only decide whether Officer Hanvey’s observations

were “sufficient in themselves to warrant a person of reasonable caution in

the belief that an offense has been committed[.]”             Salter, supra.

Considering the totality of the circumstances, we conclude that there existed


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at least a probability that Appellant was attempting to cause Officer

Hanvey substantial pain in an effort to escape.    See id.     As a result, we

conclude that Appellant’s Fourth Amendment rights were not violated, as the

search in this case was incident to a lawful arrest.     See Riley, supra;

Robinson, supra; Clark, supra.

     Based on the foregoing, we conclude that the trial court properly

denied Appellant’s motion to suppress. See Gary, supra. Accordingly, the

trial court’s May 30, 2014 judgment of sentence is affirmed.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2015




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