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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMES JEFFERSON RHODES
Appellant No. 2336 EDA 2015
Appeal from the Judgment of Sentence July 16, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005006-2014
BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 28, 2016
James Jefferson Rhodes (“Appellant”) appeals from the judgment of
sentence entered in the Court of Common Pleas of Delaware County after
the court, sitting as finder of fact in Appellant’s non-jury trial, found him
guilty of Person Not to Possess a Firearm, Firearms Not to be Carried
Without a License,1 Possession of a Small Amount of Marijuana, Possession
of a Controlled Substance, and Possession of Drug Paraphernalia.2
Sentenced to an aggregate term of 60 to 120 months’ incarceration,
Appellant challenges the denial of his suppression motion and his judgment
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 6105 and 6106, respectively.
2
35 P.S. §§ 780-113(a)(31), (16), and (32), respectively.
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of sentence on the charge of Possession of a Controlled Substance where he
possessed less than 30 grams of marijuana. We affirm.
We glean the pertinent facts from the December 5, 2014, hearing on
Appellant’s pre-trial motion to suppress, where Officer Patrick Flynn of the
Chester Police Department testified about events surrounding his arrest of
Appellant. On May 21, 2014, at approximately 8:00 p.m., Officer Flynn and
several other officers assigned to the narcotics division entered a corner bar
located at 701 Lloyd Street in Chester in search of a man they believed was
part of a drug deal. N.T. 12/5/14 at 18-19. Both the street corner and the
bar itself were deemed “high-crime” areas, as Flynn indicated that many
shootings and drug deals had occurred inside and outside of the bar. N.T. at
20. Flynn was the third or fourth officer to enter, and he, like the others,
wore a shirt bearing the word “police,” verbally identified himself as an
officer, and displayed a badge as he entered. N.T. at 32. About ten to
fifteen people were in the bar when the officers arrived. N.T. at 22.
Three officers immediately went to the left and Flynn stepped to the
right, when he noticed, from about 20 feet away, Appellant stand
momentarily to tuck something into his waistband before returning to his
barstool. N.T. at 19-20, 29. In Flynn’s estimation, Appellant was not
otherwise engaged in patently illegal activity, nor did Flynn suspect
Appellant was involved in the ongoing drug-related case, but his seven
years’ experience and training combined with the high-crime location gave
him concern that Appellant had just attempted to conceal a firearm in
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reaction to police presence. N.T. at 20, 30. Appellant did not see a gun, but
he testified “I suspected it was a gun by the way [Appellant] concealed it,
yes.” N.T. at 30.
“Scared for his safety,” Flynn drew his firearm, pointed it at Appellant,
and ordered him to show his hands, which Appellant did. N.T. at 20-21.
Officer Flynn approached, intending to pat down Appellant for weapons, and
asked Appellant to stand up with his arms remaining above his head.
Appellant, however, refused to comply. N.T. at 21. Flynn repeated the
command, but Appellant again refused. Id. When Flynn reached Appellant
and grabbed the back of his shirt in an effort to stand him up, a loaded
handgun fell out of Appellant’s waistband and onto the floor. N.T. at 21-22.
Seeing the handgun, Flynn dispensed with the weapons pat-down and
immediately placed Appellant under arrest. N.T. at 31, 35. A search
incident to Appellant’s arrest disclosed a small amount of marijuana on his
person.
On December 9, 2014, the court denied Appellant’s motion to suppress
evidence, and Appellant proceeded to a January 13, 2015, non-jury trial
based on a stipulated record consisting of, inter alia, notes of testimony from
the suppression hearing and laboratory results of the marijuana. On
February 12, 2015, the court found Appellant guilty on all charges and
imposed sentence, as indicated supra, on June 8, 2015. This timely appeal
followed.
Appellant presents two questions for our consideration:
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1. WHETHER THE COURT ERRED IN DENYING THE
[APPELLANT’S] MOTION TO SUPPRESS THE STOP AND
SEARCH AND SUBSEQUENT DISCOVERY OF A HANDGUN AND
DRUG SEIZED FROM MR. RHODES WHILE LEGALLY AT A
RESTAURANT BAR AND WITHOUT A SEARCH WARRANT,
WHEREIN THERE WAS NO [SIC] THE REQUISITE PROBABLE
CAUSE, REASONABLE SUSPICION THAT A CRIMINAL
ACTIVITY WAS AFOOT OR VALID CONSENT TO DO SO?
2. DID THE TRIAL COURT ERR IN FINDING THE [APPELLANT]
GUILTY OF BOTH 35 Pa.C.S.A. § 780-113(A)(31), SMALL
AMOUNT OF MARIJUANA, AND 35 Pa.C.S.A. § 780-113(A)(16)
POSSESSION OF CONTROLLED SUBSTANCE, WHEREIN THE
TOTAL WEIGHT OF THE MARIJUANA SEIZED FELL WITHIN
THE SPECIFIC LANGUAGE OF THE DEFINITION OF UNLAWFUL
POSSESSION OF SMALL AMOUNT OF MARIJUANA AND NOT
FOR THE MORE SERIOUS OFFENSE OF POSSESSION OF A
CONTROLLED SUBSTANCE?
Appellant’s brief at 4.
When evaluating a suppression order, we must determine whether the
factual findings of the suppression court are supported by the record.
Commonwealth v. Hernandez, 935 A.2d 1275, 1280 (Pa. 2007). Where
the record supports the factual findings of the suppression court, an
appellate court may reverse only when the suppression court's legal
conclusions are in error. Id. “Moreover, appellate courts are limited to
reviewing only the evidence presented at the suppression hearing when
examining a ruling on a pre-trial motion to suppress.” Commonwealth v.
Stilo, 138 A.3d 33, 35–36 (Pa. Super. 2016).
Here, Appellant maintains that police lacked reasonable suspicion to
order him to raise his hands and stand up from his bar stool in preparation
for a weapons pat-down as they searched for an unrelated, suspected drug
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dealer within the bar. Where Officer Flynn admitted he did not observe
Appellant doing anything illegal when he ordered him to stand, Appellant
argues, it was incumbent upon the suppression court to conclude that he
was merely present in a high crime location and, therefore, wrongfully
subjected to a weapons pat-down. We disagree, as the evidence established
that Appellant’s specific hand movements in reaction to police entry into the
bar created a particularized suspicion that he was concealing a handgun in a
setting notorious for illegal gun possession and use.
We set forth our standard of review:
When reviewing the propriety of a suppression order, an
appellate court is required to determine whether the record
supports the suppression court's factual findings and whether
the inferences and legal conclusions drawn by the suppression
court from those findings are appropriate. Commonwealth v.
Davis, 491 Pa. 363, 421 A.2d 179 (1980). Where the record
supports the factual findings of the suppression court, we are
bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error. Commonwealth v.
Bomar, 573 Pa. 426, 826 A.2d 831, 842 (2003). However,
where the appeal of the determination of the suppression court
turns on allegations of legal error, “the suppression court's
conclusions of law are not binding on an appellate court, whose
duty it is to determine if the suppression court properly applied
the law to the facts.” Commonwealth v. Nester, 551 Pa. 157,
709 A.2d 879, 881 (1998).
Commonwealth v. Kemp, 961 A.2d 1247, 1252–1253 (Pa.Super. 2008)
(en banc) (quoting Commonwealth v. Mistler, 912 A.2d 1265, 1269–70
(Pa. 2006)).
Furthermore, it is settled that:
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A police officer may detain an individual in order to conduct an
investigation if that officer reasonably suspects that the
individual is engaging in criminal conduct. Commonwealth v.
Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999). “This standard,
less stringent than probable cause, is commonly known as
reasonable suspicion.” Id. In order to determine whether the
police officer had reasonable suspicion, the totality of the
circumstances must be considered. In re D.M., 566 Pa. 445,
781 A.2d 1161, 1163 (2001). In making this determination, we
must give “due weight to the specific reasonable inferences the
police officer is entitled to draw from the facts in light of his
experience.” Cook, 735 A.2d at 676 (quoting Terry v. Ohio,
392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Also,
the totality of the circumstances test does not limit our inquiry to
an examination of only those facts that clearly indicate criminal
conduct. Rather, “even a combination of innocent facts, when
taken together, may warrant further investigation by the police
officer.” Cook, 735 A.2d at 676.
Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa.Super. 2009) (en banc)
(quoting Kemp, supra at 1255).
In Commonwealth v. Simmons, 17 A.3d 399 (Pa.Super. 2011), this
Court articulated the contours of a constitutional pat-down under the United
States Supreme Court’s seminal decision in Terry:
Specifically, “[i]t is hornbook law that the [F]ourth [A]mendment
to the United States Constitution as well as Article I, § 8 of the
Pennsylvania Constitution protect citizens from ‘unreasonable
searches and seizures.’” Commonwealth v. Baer, 439
Pa.Super. 437, 654 A.2d 1058, 1059 (1994). Warrantless
searches and seizures (such as occurred in this case) are
unreasonable per se, unless conducted pursuant to specifically
established and well-delineated exceptions to the warrant
requirement. Katz v. United States, 389 U.S. 347, 357, 88
S.Ct. 507, 19 L.Ed.2d 576 (1967). One such exception, the
Terry “stop and frisk,” permits a police officer to briefly detain a
citizen for investigatory purposes if the officer “observes unusual
conduct which leads him to reasonably conclude, in light of his
experience, that criminal activity may be afoot.”
Commonwealth v. Fitzpatrick, 446 Pa.Super. 87, 666 A.2d
323, 325 (1995); Terry, [392 U.S. at 30, 88 S.Ct. 1868].
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Terry further held that “[w]hen an officer is justified in believing
that the individual whose suspicious behavior he is investigating
at close range is armed and presently dangerous to the officer or
to others” the officer may conduct a pat down search “to
determine whether the person is in fact carrying a weapon.”
Terry, 392 U.S. at 24, 88 S.Ct. 1868. “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.”
Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32
L.Ed.2d 612 (1972).
In order to conduct an investigatory stop, the police must have
reasonable suspicion that criminal activity is afoot. Terry, 392
U.S. at 30, 88 S.Ct. 1868. In order to determine whether the
police had reasonable suspicion, the totality of the
circumstances—the whole picture—must be considered. United
States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d
621 (1981). “Based upon that whole picture the detaining
officers must have a particularized and objective basis for
suspecting the particular person stopped of criminal activity.”
Id. at 417–418, 101 S.Ct. 690. To conduct a pat down for
weapons, a limited search or “frisk” of the suspect, the officer
must reasonably believe that his safety or the safety of others is
threatened. Commonwealth v. Arch, 439 Pa.Super. 606, 654
A.2d 1141, 1144 (1995). If either the seizure (the initial stop)
or the search (the frisk) is found to be unreasonable, the remedy
is to exclude all evidence derived from the illegal government
activity. Commonwealth v. Gibson, 536 Pa. 123, 638 A.2d
203, 206–207 (1994).
Simmons, 17 A.3d at 402–03.
In Simmons, police conducted a traffic stop of a vehicle in a high
crime area because its brake lights were inoperable. From a vantage point
behind the subject vehicle, one of the officers observed the passenger,
defendant, make a movement towards the floor, return to an upright
position, and then reach across his chest. The officer relied on his twelve
years’ experience to conclude that the defendant’s actions were consistent
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with concealing a weapon. Based on that concern for their safety, the
officers frisked the defendant and recovered narcotics.
The defendant in Simmons filed a motion to suppress in which he
asserted officers lacked reasonable suspicion to conduct a weapons pat-
down. The suppression court agreed, and granted his motion to suppress.
We reversed, however, concluding that a protective search was warranted
where the passenger/defendant’s particular furtive movements in a high-
crime area provided reasonable suspicion to believe he was armed and
dangerous. Id. at 403-405.3
Our Pennsylvania Supreme Court has recognized, as well, that a
person unconnected with the target of a criminal investigation may
nevertheless behave in such a manner as to warrant a protective search
pursuant to Terry. In Commonwealth v. Grahame, 7 A.3d 810 (Pa.
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3
In Foglia, this Court sitting en banc held that an officer’s observation of
furtive hand movements at the waistband supplied a particularized basis for
approaching and conducting a protective search for weapons on a citizen
standing on a high-crime street and matching an anonymous tipster’s
description of a person carrying a gun. Specifically, we noted:
whether the defendant was located in a high crime area similarly
supports the existence of reasonable suspicion. [I]f a suspect
engages in hand movements that police know, based on their
experience, are associated with the secreting of a weapon, those
movements will buttress the legitimacy of a protective weapons
search of the location where the hand movements occurred.
Id. at 361.
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2010), the Pennsylvania Supreme Court rejected a “guns follow drugs”
rationale offered to justify the weapons search of a woman merely present in
a home where police surveillance implicated another person in selling illicit
drugs. Adhering, instead, to Terry principles requiring the existence of
reasonable suspicion that a person is armed and dangerous before
conducting a weapons search, the Court first noted there was no indication
that the appellant had a criminal record or was connected in any way with
the drug dealer in question.
Important for our present purposes, the Court also considered whether
appellant’s conduct justified a protective search, but it discerned no evidence
that the appellant conveyed a threat of danger to the officer:
Furthermore, upon entering the house, Officer Russell did not
detect any unusual behavior or furtive movements on Appellant’s
part nor did she observe a suspicious bulge in Appellant’s purse.
Since the Commonwealth failed to elicit any facts that supported
an objectively reasonable belief that Appellant was armed and
dangerous, the Superior Court’s decision [affirming conviction]
cannot be sustained.
Id. at 817.4 Although the facts in Grahame did not support a protective
search, implicit in the Court’s rationale is that one who is proximate to an
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4
For the proposition that those in proximity of an investigation into the
criminal activity of another may, under certain circumstances, create a
particularized basis for a protective search, see also Ybarra v. Illinois, 444
U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (striking down statute
automatically authorizing police search of anyone present during execution
of a search warrant; weapons search of customer Ybarra during execution of
warrant on subject tavern deemed unlawful where facts did not support
reasonable belief that he was armed and presently dangerous).
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ongoing investigation with which he otherwise has no connection may,
nevertheless, act in such a way as to create a particularized, objective basis
for conducting a protective search of his person.
Here, Officer Flynn encountered Appellant during an investigation of a
suspected drug dealer who, officers believed, had entered the corner bar
Appellant was patronizing. The officers announced their presence as they
entered the bar and sought to maintain a status quo while they conducted
their search of the premises. Immediately, however, Officer Flynn observed
Appellant stand from his bar stool, tuck something under his waistband, and
return to his seated position. A seven-year veteran of the police force,
Officer Flynn recognized Appellant’s motion as one peculiar to an attempt to
conceal a handgun.
Officer Flynn made this observation not from a distance while on
routine patrol, but, instead, during a search conducted within the close
confines of a bar notorious for firearms violations and shootings. In a
setting where the potential for a volatile reaction to this police presence was
real, Appellant’s furtive hand movements consistent with handling a gun
gave Officer Flynn reason to believe Appellant may have been concealing a
weapon that threatened the safety of the officers and others.
In such moments, we “must be guided by common sense concerns
that give preference to the safety of the police officer during an encounter
with a suspect where circumstances indicate that the suspect may have, or
may be reaching for, a weapon.” Commonwealth v. Parker, 957 A.2d
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311, 316 (Pa.Super. 2008) (holding suspicious gestures of driver reaching
down and dipping shoulders right and left during traffic stop caused officer to
reasonably suspect driver might be concealing a weapon). For the foregoing
reasons, we find that Officer Flynn had reasonable suspicion to search
Appellant for a weapon, as Appellant’s conduct in reaction to a police
presence conveyed a threat of danger. Accordingly, we uphold the court’s
order denying Appellant’s motion to suppress.
In his remaining issue, Appellant contends that it was improper to find
him guilty of both the greater offense of possession of a controlled
substance5 and the lesser offense of small amount of marijuana,6 as this
Court previously held in Commonwealth v. Gordon, 897 A.2d 504
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5
Section 780-113(16) prohibits
[k]nowingly or intentionally possessing a controlled or
counterfeit substance by a person not registered under this act,
or a practitioner not registered or licensed by the appropriate
State board, unless the substance was obtained directly from, or
pursuant to, a valid prescription order or order of a practitioner,
or except as otherwise authorized by this act.”
35 P.S. § 780-113(16)
6
Section 780-113(31) prohibits,
[n]otwithstanding other subsections of this section, (i) the
possession of a small amount of marihuana only for personal
use; (ii) the possession of a small amount of marihuana with the
intent to distribute it but not to sell it; or (iii) the distribution of a
small amount of marihuana but not for sale.
For purposes of this subsection, thirty (30) grams of marihuana
or eight (8) grams of hashish shall be considered a small amount
of marihuana.
35 P.S. § 780-113(31).
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(Pa.Super. 2006) that judgment of sentence on the greater offense is
improper where the defendant possessed a lesser offense amount of
marijuana. The Commonwealth replies that Gordon does not apply to the
present matter because Appellant received no sentence on the greater
possession of controlled substance charge. Only on the lesser small amount
of marijuana charge did the court ultimately impose a sentence.
In Gordon, this Court recognized the legislative intent behind
including subsection (31) in Section 780-113 was to prevent imposition of a
more serious sentence where the defendant is found guilty of possessing an
amount of marijuana less than the benchmark limit demarcating the lesser
offense of a small amount of marijuana from the greater offense of
possession of a controlled substance (marijuana). In such a case, judgment
of sentence should be entered on only the less serious offense with the
correspondingly lesser sanctions. While Appellant indeed possessed an
amount of marijuana less than the 30 gram benchmark set forth in the
lesser offense, it is also true that judgment of sentence was entered only on
this lesser offense.
In Commonwealth v. Kriegler, 127 A.3d 840 (Pa.Super. 2015), we
explained our decision in Gordon as follows:
In Gordon, the defendant was found to be in possession of 8.75
grams of marijuana. Out of this one incident, he was charged
with: (1) violation of 35 P.S. § 780–113(31), proscribing the
possession of a small amount of marijuana, and (2) violation of
the general proscription against possession of a controlled
substance as defined in 35 P.S. § 780–113(16). The trial court
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found him guilty of the more serious of these charged offenses
which carried with it a harsher penalty. This court held that the
legislature, by including Subsection (31) in Section 780–113 of
the proscribed conduct section of the Drug Act, clearly separated
out the specific crime of possession of a small amount of
marijuana, and created a “graduated system of penalties” that
imposes far heavier punishment for traffickers and lesser
sanctions for casual users of marijuana:
In our view, the General Assembly, by including
subsection (31) in section 780–113 of the proscribed
conduct of the Act, set out the specific crime of
possession of a small amount of marijuana and
created a graduated system of penalties that
imposes far heavier punishment for traffickers and
lesser sanctions for casual users of marijuana.
Gordon, 897 A.2d at 509.
We remanded the matter for the trial court to sentence the
defendant under the lesser amount statute, as the legislature
clearly intended that a small amount of marijuana be separately
and less severely punishable than possession of a controlled
substance.
Kriegler, 127 A.3d at 844–45.
Unlike in Gordon, where the court imposed judgment of sentence only
on the greater amount offense carrying a harsher penalty, the case sub
judice involves a judgment of sentence entered only on the lesser amount
offense of a small amount of marijuana—precisely as mandated by Gordon.
That is, the record establishes that the court imposed no further penalty on
the greater amount offense of possession of a controlled substance. As
such, we find Gordon and the rationale underpinning the decision satisfied
by the proceedings below, and we, accordingly, reject Appellant’s appeal
asking us to overturn his judgment of sentence on such basis.
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Judgment of sentence is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2016
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