J-A05018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEVONTE PAUL JOHNSON,
Appellant No. 333 WDA 2016
Appeal from the Judgment of Sentence Entered January 21, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005228-2015
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 26, 2017
Appellant, Devonte Paul Johnson, appeals from the judgment of
sentence of 2 to 5 years‟ incarceration, imposed after he was convicted of
carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(1), persons not to
possess a firearm, 18 Pa.C.S. § 6105(a)(1), and providing false identification
to law enforcement, 18 Pa.C.S. § 4914(a). Appellant challenges the trial
court‟s denial of his pretrial motion to suppress evidence, as well as the
legality of his sentence. After careful review, we conclude that the court did
not err in denying Appellant‟s motion to suppress, but we agree with
Appellant that his sentence is illegal. Accordingly, we vacate his judgment
of sentence and remand for resentencing.
Briefly, Appellant was arrested and charged with the above-stated
crimes after he was patted-down during the course of a traffic stop, and he
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was discovered to be in possession of a firearm. Prior to trial, Appellant filed
a motion to suppress the gun, arguing that the officer who conducted the
pat-down lacked reasonable suspicion that Appellant was armed and
dangerous. Following a suppression hearing, the court denied Appellant‟s
motion, and his case immediately proceeded to a non-jury trial. At the
conclusion thereof, Appellant was convicted of the two firearm offenses
stated, supra, as well as providing false identification to law enforcement.
On January 21, 2016, Appellant was sentenced to an aggregate term of 2 to
5 years‟ incarceration.
Appellant filed a timely post-sentence motion, which the court denied.
He then filed a timely notice of appeal, and he also complied with the trial
court‟s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Herein, Appellant presents two issues for our
review:
I. Whether the trial court erred in not granting [Appellant‟s]
motion to suppress because even though the trial court found
that Officer Reiche patted down [Appellant] for officer safety, the
record manifestly established that he did not have reasonable
suspicion, based on specific and articulable facts, to believe that
[Appellant] was presently armed and dangerous?
II. Whether the trial court imposed an illegal sentence when it
failed to determine, at the time of sentencing, whether
[Appellant] is an eligible offender under the Recidivism Risk
Reduction Incentive Act [(“RRRI Act”), 61 Pa.C.S. §§ 4501-
4512], thereby violating 61 Pa.C.S.[] § 4505(a)?
Appellant‟s Brief at 5.
Regarding Appellant‟s first issue, we begin by noting that,
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[i]n reviewing an order from a suppression court, we consider
the Commonwealth‟s evidence, and only so much of the
defendant‟s evidence as remains uncontradicted. We accept the
suppression court‟s factual findings which are supported by the
evidence and reverse only when the court draws erroneous
conclusions from those facts.
Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998).
In this case, Appellant challenges the legality of the pat-down of his
person.
It is well settled that an officer may pat-down an individual
whose suspicious behavior he is investigating on the basis of a
reasonable belief that the individual is presently armed and
dangerous to the officer or others. Commonwealth v. E.M.,
558 Pa. 16, 735 A.2d 654, 661 (1999), citing Terry v. Ohio,
392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To
validate a Terry frisk, the police officer must be able to
articulate specific facts from which he reasonably inferred that
the individual was armed and dangerous. Commonwealth v.
Preacher, 827 A.2d 1235, 1239 (Pa. Super. 2003) (citations
omitted). In determining whether a Terry frisk was supported
by a sufficient articulable basis, we examine the totality of the
circumstances.
Commonwealth v. Gray, 896 A.2d 601, 605–06 (Pa. Super. 2006)
(footnote and one citation omitted).
Here, we summarize the evidence presented at the suppression
hearing as follows. The Commonwealth first called to the stand North
Versailles Police Officer Michael Sharp. Officer Sharp testified that on April
16, 2015, at approximately 10:50 a.m., he conducted a traffic stop of a
vehicle after learning, by running the vehicle‟s registration plate through
dispatch, that the vehicle‟s insurance had been canceled. N.T., 11/2/15, at
4. When the officer stopped the vehicle and approached the driver‟s side
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door, he observed that there were four individuals in the car, one of whom
was Appellant. Id. at 6. Appellant was located in the “right rear” of the car.
Id. at 7. As the officer began speaking to the driver, he “noticed the smell
of marijuana coming from inside the vehicle.” Id. at 5. The driver also
informed the officer that his license was suspended. Id. Officer Sharp
asked each occupant of the vehicle for identification, which they all provided.
Id. at 6. Officer Sharp then “ran all four of them through the NCIC system”
and “three returned good and valid information.” Id. However, the officer
stated that the “information that [Appellant] had given [the officer] … did
not return any individual.” Id. At that point, Officer Sharp called for back-
up. Id. at 7.
One of the two other officers who arrived to assist Officer Sharp was
North Versailles Police Officer David Reiche. When Officer Reiche arrived at
the scene, Officer Sharp informed him that he had smelled an odor of
marijuana emanating from the car, and that Appellant had provided false
identification. Id. at 12-13. The officers determined that they were going to
remove the individuals from the vehicle one at a time, beginning with
Appellant, as he was the only individual they could not identify. Id. at 7, 11.
Officer Reiche testified that he approached the rear passenger side of the
vehicle where Appellant was seated. Id. at 13. Before directing Appellant
to exit the vehicle, he “advised [Appellant] to keep his hands in place,” and
he told Appellant “to put his hands on the vehicle” after exiting. Id. at 14.
The officer testified that, “[a]s [Appellant] exited, he made a motion with his
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hand towards his waistband.” Id. Officer Reiche stated that he believed
Appellant could have been reaching for “anything,” including “something that
could harm [someone], drugs or other contraband.” Id. at 15. As such, the
officer “grabbed [Appellant‟s] wrist and redirected it to the right rear trunk
of the vehicle and began [a] pat down of [Appellant].” Id. When feeling the
“center” of Appellant‟s waistband, “where [Appellant‟s] hand was going
initially[,]” the officer felt an object that he immediately recognized as a
firearm. Id. at 15, 16. The firearm was seized and Appellant was arrested.
Id. at 16.
Based on this evidence, the trial court concluded that the pat-down of
Appellant‟s person was lawful. The court noted that “[t]he car was lawfully
stopped[,]” and that Officer Sharp “smelled marijuana….” Id. at 23. The
court also stressed that when Appellant was exiting the vehicle, “[h]e
gestured toward his waistband” and, therefore, “[t]he officer … patted him
down for officers‟ safety.” Id. at 24. Accordingly, the court denied
Appellant‟s motion to suppress the gun. Id.
Now, on appeal, Appellant contends that the trial court erred, arguing
that Officer Reiche failed to provide specific and articulable facts to
demonstrate that he had a reasonable suspicion that Appellant was armed
and dangerous. In support of this argument, Appellant largely focuses on
what circumstances were not present in this case, such as the fact that the
officers were not responding to a crime in progress, there was no tip linking
Appellant to possession of a gun, and Officer Reiche did not observe “a bulge
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or something heavy along [Appellant‟s] waistband….” Appellant‟s Brief at
13-14.
Notably, Appellant offers little discussion about the circumstances that
were known to Officer Reiche. For instance, Appellant wholly ignores that
Officer Reiche knew that Officer Sharp had smelled an odor of marijuana
emanating from the vehicle, and that Appellant had provided a false name to
Officer Sharp. The only fact in this case that Appellant spends any
significant time discussing is the movement of his hand toward his
waistband. Appellant attempts to downplay the import of this hand gesture
by claiming that it “only lasted a second or two,” and stressing that Officer
Reiche testified that Appellant‟s hand never actually touched his waistband.
Appellant‟s Brief at 20.
We do not agree with Appellant that either of these facts diminish the
significance of his hand movement in our assessment of whether Officer
Reiche reasonably suspected Appellant was armed and dangerous. Officer
Reiche explicitly directed Appellant not to move his hands as he exited the
vehicle. Appellant ignored that directive and began reaching toward his
waistband, at which point Officer Reiche grabbed Appellant‟s wrist and
secured his hands by placing them on the rear of the vehicle. Appellant‟s
hand movement toward his waistband was brief and incomplete because of
the officer‟s quick decision to secure Appellant‟s hand. Considering the
totality of the facts known to the officer at the moment he saw Appellant
reaching for his waistband - i.e., the smell of marijuana in the car,
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Appellant‟s providing false identification, and Appellant‟s disregarding the
officer‟s direction not to move his hands - we conclude that it was
reasonable for the officer to suspect that Appellant could be reaching for a
weapon.1
We are also unpersuaded by Appellant‟s claim that the pat-down was
not justified because he “was completely compliant when he was
subsequently ordered to put his hands on the vehicle.” Appellant‟s Brief at
20. As stated, supra, Officer Reiche testified that he directed Appellant not
to move his hands as he exited the vehicle. N.T. at 14. Appellant ignored
that request and moved his hand toward his waistband, which resulted in
Officer Reiche‟s “grabb[ing] his wrist and redirect[ing] it to the right rear
trunk of the vehicle….” Id. Contrary to Appellant‟s claim, this testimony
indicates that Appellant did not comply prior to the pat-down, thus
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1
We also conclude that the totality of these facts make Appellant‟s case
distinguishable from the decisions on which he primarily relies. See In
Interest of S.J., 713 A.2d 45 (Pa. 1998) (concluding there was no
reasonable suspicion to warrant a Terry frisk where the officer saw S.J.
standing in a high crime area with a group of people, and the officer smelled
marijuana); Commonwealth v. Cooper, 994 A.2d 589 (Pa. Super. 2010)
(finding no reasonable suspicion to conduct a pat-down where Cooper, who
was standing next to a dumpster when police approached, moved his hand
toward his pocket but immediately stopped moving when so directed by the
officers); and Commonwealth v. Myers, 728 A.2d 960 (Pa. Super. 1999)
(concluding there was no reasonable suspicion to justify pat-down where
officers saw Myers briefly enter a house known for drug trafficking, exit
holding something in his closed hand, get into his car and drive away).
None of these cases involves facts that are significantly similar to the totality
of the circumstances surrounding Officer Reiche‟s pat-down of Appellant.
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bolstering Officer Reiche‟s reasonable suspicion that Appellant might be
armed and dangerous. While we recognize that Officer Reiche testified that
Appellant was compliant during the pat-down, id., that fact is irrelevant to
our analysis of whether Officer Reiche possessed reasonable suspicion to
initiate the Terry frisk.
Finally, we reject Appellant‟s argument that Officer Reiche lacked
reasonable suspicion because the officer testified that: (1) Appellant (and
the other three occupants of the vehicle) were all going to be removed from
the car and patted down, regardless of Appellant‟s hand gesture, see N.T. at
15-16, and (2) when he saw Appellant reach toward his waistband, the
officer believed Appellant could have been reaching for “drugs or other
contraband[,]” id. at 15. Notably, this Court has emphasized that,
reasonable suspicion is based upon an objective standard, not
subjective intent. As the United States Supreme Court noted
in Maryland v. Macon, 472 U.S. 463, 470–471, 105 S.Ct.
2778, 86 L.Ed.2d 370 (1985), “Whether a Fourth Amendment
violation has occurred „turns on an objective assessment of the
officer's actions in light of the facts and circumstances
confronting him at the time,‟ Scott v. United States, 436 U.S.
128, 136, 98 S.Ct. 1717, 1722, 56 L.Ed.2d 168 (1978), and not
on the officer's actual state of mind at the time the challenged
action was taken. Id. at 138, 139, n. 13, 98 S.Ct. at 1724, n.
13.”
Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa. Super. 2009) (emphasis
added). In light of this law, we conclude that what Officer Reiche
subjectively believed at the time he decided to pat-down Appellant is not
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relevant to our objective analysis of whether the Terry frisk was supported
by reasonable suspicion.2
In sum, Appellant‟s arguments do not convince us that the trial court
erred by concluding that Officer Reiche possessed reasonable suspicion that
Appellant might be armed and dangerous to justify the pat-down of
Appellant‟s person. Therefore, the court properly denied Appellant‟s motion
to suppress the gun.
Next, we address Appellant‟s claim that his sentence is illegal because
the court failed to determine his eligibility under the RRRI Act. 3 Appellant
stresses that under the section 4505 of the RRRI Act, the sentencing court is
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2
Nevertheless, we also point out that Appellant mischaracterizes Officer
Reiche‟s testimony by suggesting that the officer patted him down only
because the officer believed “drugs or other contraband” might be found on
Appellant‟s person. Appellant‟s Brief at 21 (quoting N.T. at 15). As stated,
supra, when asked what he believed Appellant might be reaching for when
he gestured toward his waist, Officer Reiche‟s full response was as follows:
“At that point, anything, something that could harm you, drugs or other
contraband.” N.T. at 15. Thus, the officer‟s testimony demonstrates that he
believed Appellant could have been reaching for a weapon, among other
things.
3
Appellant admits that he failed to raise this claim below. See Appellant‟s
Brief at 5 n.1. However, we agree with him that his RRRI Act claim is not
waivable because it implicates the legality of his sentence. See
Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010)
(concluding that a claim that “the trial court fail[ed] to make a statutorily
required determination regarding a defendant‟s eligibility for an RRRI
minimum sentence as required” constitutes “a non-waivable challenge to the
legality of [his] sentence”); Commonwealth v. Foster, 960 A.2d 160, 163
(Pa. Super. 2008) (“[C]laims pertaining to the legality of sentence are non-
waivable, may be leveled for the first time on appeal, and our jurisdiction
need not be invoked in a Pa.R.A.P. 2119(f) statement.”) (citation omitted).
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required to “make a determination whether the defendant is an eligible
offender.” 61 Pa.C.S. § 4505(a). Here, Appellant maintains, and the
Commonwealth concedes, that the court failed to make a determination
regarding Appellant‟s RRRI eligibility. See Appellant‟s Brief at 29;
Commonwealth‟s Brief at 20. Our review of the record confirms the parties‟
assertions. Consequently, Appellant‟s sentence is illegal, and we must
vacate his sentence and remand for resentencing. See Robinson, 7 A.3d at
871 (“[W]here the trial court fails to make a statutorily required
determination regarding a defendant‟s eligibility for an RRRI minimum
sentence as required, the sentence is illegal.”).
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2017
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