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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HOWARD EUGENE STEWART, III
Appellant No. 9 MDA 2014
Appeal from the Judgment of Sentence entered November 25, 2013
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0000380-2011
BEFORE: LAZARUS, MUNDY, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 22, 2014
Howard Eugene Stewart, III, appeals from the judgment of sentence
entered following his convictions of firearms and drug-possession crimes,
and driving without a license. Counsel for Appellant has filed a brief under
Anders v. California, 386 U.S. 738 (1967), and petitioned to withdraw as
counsel, alleging that this appeal is wholly frivolous. We affirm and grant
the petition to withdraw.
On December 11, 2011, Corporal Michael Georgiou of the York Area
Regional Police Department was on routine patrol on the overnight shift. At
around 2:00 a.m. in York Township, he observed a blue Mercury Grand
Marquis pull away from him. Using the Visual Average Speed Computer And
Recorder (VASCAR) in his car, Corporal Georgiou determined that the Grand
Marquis was travelling 48 mph in a 35 mph zone. He also noticed that one
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of the car’s brake lights was burnt out. Finally, after checking the
registration, Corporal Georgiou found that the Grand Marquis was registered
to Appellant, who did not have a valid driver’s license.
Corporal Georgiou stopped the vehicle and approached the driver to
ask for his license and registration. He smelled processed marijuana 1 inside
the vehicle. After checking the driver’s state ID card and registration using
the computer in his patrol cruiser, Corporal Georgiou determined that the
driver was Appellant. He returned to the car and informed Appellant that his
car was going to be towed and impounded, pursuant to standard procedure,
since Appellant did not have a driver’s license.
Corporal Georgiou told Appellant that he smelled marijuana and asked
for consent to search the vehicle. Appellant claimed that he bought the
Grand Marquis at an auto auction in Maryland and said nothing was inside.
He consented to the search nonetheless. Corporal Georgiou asked Appellant
if he had anything on him that he should not have. Appellant pulled a large
wad of cash out of his pocket, and Corporal Georgiou performed a pat-down
of Appellant. Notably, the pat-down occurred after Appellant consented to a
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1
At the suppression hearing, Corporal Georgiou explained that processed
marijuana is marijuana that has been heated, dried, broken up, and
packaged for smoking. N.T. Suppression, 4/26/11, at 7. Based on his
experience, Corporal Georgiou testified that the smell of processed
marijuana is “significantly different than that of marijuana that is straight off
the plant.” Id.
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search of his car. In Appellant’s sock, Corporal Georgiou found a bag of
marijuana. Corporal Georgiou counted the cash, $1,446.00, and then placed
Appellant in custody. He searched the car prior to its impoundment, and
found a firearm in the trunk. At the suppression hearing, Corporal Georgiou
explained that he searched the vehicle pursuant to Appellant’s consent, and
that at any rate the vehicle would be impounded and the contents
inventoried. N.T. Suppression, 4/26/11, at 11-12.
Appellant was charged with persons not to possess firearms,
possession of a small amount of marijuana, firearms not to be carried
without license, possession of drug paraphernalia, and driving without a
license.2 Appellant moved to suppress all evidence obtained from the traffic
stop, which the trial court denied. He later pleaded guilty, but successfully
withdrew his guilty plea. After a jury trial, Appellant was found guilty on all
counts and sentenced to an aggregate of five to ten years in prison. On
December 24, 2013, Appellant filed this appeal.
Counsel has directed this Court’s attention to the denial of Appellant’s
motion to suppress as a possibly meritorious issue. Appellant challenges the
frisk of his person and the search of his car.
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2
18 Pa.C.S.A. § 6105(a)(1), 35 P.S. § 780-113(a)(31), 18 Pa.C.S.A.
§ 6106(a)(1), 35 P.S. § 780-113(a)(32), and 75 Pa.C.S.A. § 1501(a),
respectively.
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Before we consider the merits, we must address whether counsel has
complied with the requirements to withdraw from representation under
Anders. See Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009).
To withdraw under Anders/Santiago, counsel must (1) petition this
Court for leave to withdraw after certifying that a thorough review of the
record indicates the appeal is frivolous; (2) file a brief referring to anything
in the record that might arguably support the appeal; and (3) give the
appellant a copy of the brief and advise the appellant of the right to obtain
new counsel or file a pro se brief to raise any additional points for review.
Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005).
Additionally, the Anders/Santiago brief must:
(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes arguably
supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous;
and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to
the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
We find that counsel has complied with Anders and Santiago.
Counsel has petitioned for leave to withdraw, filed a brief that refers us to
anything that might support the appeal, and informed Appellant of his right
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to hire a new lawyer or file a pro se response.3 Furthermore, counsel’s brief
meets Santiago’s substantive requirements listed above.
We now turn to the issue raised in the Anders Brief: whether the trial
court should have granted Appellant’s motion to suppress.
When reviewing the denial of a motion to suppress, we must
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.[4] We are bound by the
suppression court’s findings if they are supported by the record.
Factual findings wholly lacking in evidence, however, may be
rejected. We may only reverse the suppression court if the legal
conclusions drawn from the findings are in error.
Commonwealth v. Gatlos, 76 A.2d 44, 52 (Pa. Super. 2013) (internal
quotations and citations omitted).
Under our State and federal constitutions, warrantless searches are
presumptively unreasonable. See, e.g., Commonwealth v. Stewart, 56
A.3d 424, 438 (Pa. Super. 2012). However, several well-delineated
exceptions to the warrant requirement exist, and several come into play in
this case.
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3
Appellant has not filed a response.
4
For cases in which the suppression hearing occurs after October 30, 2013,
the scope of review of a suppression order encompasses only the record
adduced at the suppression hearing. In the Interest of L.J., 79 A.3d
1073, 1088-89 (Pa. 2013). We may examine the entire record here,
because the suppression hearing occurred in 2011.
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The first is a “Terry5 frisk.” A police officer may perform an
investigative detention upon reasonable suspicion that criminal activity is
afoot. Commonwealth v. E.M., 735 A.2d 654, 659 (Pa. 1999). “If, during
the course of a valid investigatory stop, an officer observes unusual and
suspicious conduct on the part of the individual which leads him to
reasonably believe that the suspect may be armed and dangerous, the
officer may conduct a pat-down of the suspect’s outer garments for
weapons.” Id.
Second, police may search incident to arrest a person after lawfully
arresting him. Commonwealth v. Ventura, 975 A.2d 1128, 1139 (Pa.
Super. 2009) (quoting Commonwealth v. Trenge, 451 A.2d 701, 710 (Pa.
Super. 1982)). Unlike a Terry frisk, a search incident to arrest requires no
suspicion, but rather is automatic if the suspect is lawfully arrested. Id.
Third, police may search a place upon voluntary consent. See
Commonwealth v. Smith, 77 A.3d 562, 568 (Pa. 2013). A person’s
consent to search is valid if, under the totality of the circumstances, it is “the
product of an essentially free and unconstrained choice and not the result of
coercion or duress.” Id. (internal quotation omitted).
Fourth, police need only probable cause to search an automobile. For
ease of discussion, we fully address the automobile exception, infra.
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5
Terry v. Ohio, 392 U.S. 1 (1968).
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Finally, though not an exception to the warrant requirement, the
inevitable discovery doctrine applies where police unlawfully seize evidence,
but they would have discovered the evidence lawfully. Commonwealth v.
Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009). For the doctrine to apply,
the inevitable discovery must be “sufficiently purged of the original
illegality.” Id. (quotation omitted).
Appellant’s counsel contends the suppression issue is frivolous based
on a combination of inevitable discovery and the retroactive effect of our
Supreme Court’s adoption of the federal automobile exception in
Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014). We agree.
In Gary, our Supreme Court adopted the federal automobile
exception, under which police need only probable cause to search an
automobile. Gary, 91 A.3d at 104 (Opinion Announcing the Judgment of the
Court (OAJC)).6 Prior to Gary, Pennsylvania had utilized a more limited
automobile exception, which required proof of exigent circumstances to
search an automobile without a warrant. Id. at 112-24 (discussing the
history of Pennsylvania’s limited automobile exception).
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6
The lead opinion in Gary is an OAJC representing the views of three
members of a six-justice court. OAJCs are generally non-binding plurality
decisions. See Commonwealth v. Brown, 23 A.3d 544, 555 (Pa. 2011).
The result in Gary, however, is precedential, because of the nature of
Justice Saylor’s concurring opinion. Gary, 91 A.3d at 138-39 (Saylor, J.,
concurring) (“I join the lead Justices in adopting the federal automobile
exception.”).
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Gary was decided on April 29, 2014, and Appellant’s suppression
hearing occurred over three years prior. Appellant’s counsel states that
Gary applies retroactively, because courts follow the law in effect at the
time of the appellate decision. Anders Brief at 10 (citing Commonwealth
v. Cabeza, 469 A.2d 146 (Pa. 1983)).
At common law, a decision of our Supreme Court is generally
retroactive to all decisions pending on direct appeal at the time of
announcement. Cabeza, 469 A.2d at 148. Retroactive application,
however, is not automatic, and is a matter of judicial discretion. Blackwell
v. State Ethics Comm’n, 589 A.2d 1094, 1099 (Pa. 1991). No court has
explicitly addressed Gary’s retroactivity, but both this Court and the
Supreme Court have assumed that it applies retroactively. In
Commonwealth v. Hudson, 92 A.3d 1235, 1241-43 & n.5 (Pa. Super.
2014), a panel of this Court assumed that Gary applied to the
Commonwealth’s appeal from an order suppressing evidence, but ultimately
held that police lacked probable cause to search the defendant’s vehicle. In
Commonwealth v. Dunn, 95 A.3d 272, 273 (Pa. 2014) (per curiam), our
Supreme Court granted allowance of appeal, vacated a decision of this
Court, and remanded for reconsideration in light of Gary. If Gary applied
prospectively only, there would be no need to order this Court to reconsider
a decision applying the now-superseded limited automobile exception.
Therefore, we agree with Appellant’s counsel that Gary applies retroactively
to this case.
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As an initial matter, no party contests the legality of the traffic stop.
Corporal Georgiou had probable cause of several violations of the Vehicle
Code: speeding and a burnt-out taillight or brake light. There is also no
question that, once he approached the vehicle, Corporal Georgiou had
probable cause that Appellant had committed a crime—possession of
marijuana based on the smell emanating from the car. The smell of
marijuana provided probable cause to arrest Appellant—the only occupant of
the car—and search the vehicle. See Commonwealth v. Stoner, 344 A.2d
633, 635 (Pa. Super. 1975) (holding that the smell of marijuana provides
probable cause to search); see also Gary, 91 A.3d at 104-05, 138 (noting
that the smell marijuana emanating from inside the vehicle provided
undisputed probable cause to search).
Once he smelled marijuana, Corporal Georgiou had probable cause to
arrest Appellant. During a search incident to arrest, he would have
discovered the marijuana in Appellant’s sock. Even if the Terry frisk was
unlawful7 the marijuana discovered in Appellant’s sock would have been
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7
Corporal Georgiou performed the pat-down immediately after Appellant
took the wad of cash out of his pocket, and did not handcuff or restrain
Appellant until after counting the money. Although the traffic stop occurred
at night and Corporal Georgiou did not have a partner, the Commonwealth
presented no evidence that Corporal Georgiou suspected Appellant to be
armed and dangerous. See also Trial Court Rule 1925(a) Opinion, 3/18/14,
at 2 (“In this case, [Appellant] is correct that there was no articulable
suspicion that [Appellant] was armed and dangerous under the
circumstances.”).
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inevitably discovered during a search incident to a lawful arrest based on
probable cause that Appellant was in possession of marijuana.
Moreover, Appellant consented to a search of his vehicle, and the
smell of marijuana emanating from the car provided probable cause to
search. Gary, 91 A.3d at 104-05; Stoner, 344 A.2d at 635. Even if, for
argument’s sake, Appellant’s consent was invalid—an argument Appellant
did not raise in his concise statement— Corporal Georgiou could search the
car under the automobile exception. Therefore, no non-frivolous argument
exists to challenge the seizure of the gun in the trunk of Appellant’s car. 8
We have conducted a thorough review of the record. We discern no
non-frivolous arguments that could be raised on appeal. Appellant’s counsel
has complied with the applicable procedural and substantive requirements
necessary to withdraw as counsel. Hence, we affirm and grant counsel’s
petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judge Lazarus joins this memorandum.
Judge Mundy concurs in the result.
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8
The trial court ruled that the vehicle search was valid as either a consent
search or as an inventory search. N.T. Suppression, 4/26/11 , at 54 (“I do
think the consent was voluntarily given. I think that in any even an
inventory search would have discovered the evidence.”); see also Trial
Court Rule 1925(a) Opinion, 3/18/14, at 3-6. Because Appellant gave valid
consent to search the car, we need not address whether the search was
proper qua inventory search.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2014
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