J-A28007-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY LAMAR DANIEL :
:
Appellant : No. 1885 WDA 2019
Appeal from the Judgment of Sentence Entered November 18, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0003093-2019
BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 11, 2020
Appellant, Anthony Lamar Daniel, appeals from the judgment of
sentence entered on November 18, 2019, following his bench trial conviction
for simple possession of a controlled substance.1 We affirm.
The trial court summarized the facts and procedural history of this case
as follows:
On January 12, 2019, at approximately 11:00 p.m., North
Braddock Police Officer Ryan Johnston was on patrol in a marked
vehicle in the North Braddock area when he conducted a traffic
stop on a vehicle for an inoperable passenger brake light. Upon
approaching the vehicle, he observed four individuals in the
vehicle with Appellant seated in the front passenger seat. Officer
Johnston smelled an odor of marijuana emanating from the
vehicle. As such, the driver was removed from the vehicle, patted
down, and found in possession of marijuana. With the assistance
of other officers from the Braddock Police Department, Officer
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1 35 Pa.C.S.A. §780-113(a)(16).
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Johnston removed the remaining passengers who were all patted
down[.]
Officer Johnston patted Appellant down and immediately felt what
he knew from his training and experience to be crack cocaine in
Appellant's pocket. Officer Johnston recovered the suspected
crack cocaine, which later tested positive [as a] narcotic. Officer
Johnston then conducted a search of the vehicle and found three
loaded firearms in the glove compartment and a green nylon
holster under the passenger seat where Appellant had been
seated. All passengers were taken into custody. The driver
eventually claimed ownership of the firearms.
Trial Court Opinion, 6/8/2020, at 3-4 (record citations and footnote omitted).
The Commonwealth charged Appellant with possession of a controlled
substance, as well as various firearms and related offenses. Prior to trial,
Appellant filed an omnibus pretrial motion alleging, inter alia, the police
conducted an illegal search of Appellant’s person and that the trial court should
suppress evidence seized from his pocket. On November 4, 2019, the trial
court held a suppression hearing. At the suppression hearing, the
Commonwealth and Appellant stipulated to entering the notes of testimony
from Appellant’s preliminary hearing into the record. No other evidence was
presented. The trial court took the matter under advisement. On November
12, 2019, the trial court denied the motion to suppress and Appellant
immediately proceeded to a stipulated bench trial. On November 18, 2019,
the trial court found Appellant guilty of possession of a controlled substance
and not guilty of the firearms and related offenses. Directly thereafter, the
trial court sentenced Appellant to three to six months of incarceration, with
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credit for time served, and granted immediate parole. This timely appeal
resulted.2
On appeal, Appellant presents the following issue for our review:
Whether [Appellant’s] right[s] under both the Fourth Amendment
to the United States Constitution and Article I, Section 8 of the
Pennsylvania Constitution to be free from unreasonable searches
and seizures was violated when Officer Johnston, subsequent to a
pat-down, seized an item from [Appellant’s] person without
offering any basis other than his training and experience for
believing that the item was contraband?
Appellant’s Brief, at 3.
Appellant argues that the trial court erred in denying suppression
because “police officers [may only] conduct warrantless searches of suspects'
persons if, while conducting a lawful pat-down of the suspect, an officer
detects an object whose ‘incriminating nature is immediately apparent from
its tactile impression[.]’" Id. at 10, citing Commonwealth v. Zhahir, 751
A.2d 1153, 1159 (Pa. 2000). Appellant claims that the term “immediately
apparent” means that the officer readily perceives, without further exploration
or searching, that what he is feeling is contraband. Id. at 10 (citation and
original quotations omitted). Appellant argues that, in this matter, “Officer
Johnston could not say what about the item in [Appellant’s] pocket made it
immediately apparent as contraband.” Id. at 12. Appellant maintains that
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2 Appellant filed a timely notice of appeal on December 18, 2019. On January
3, 2020, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on January 22, 2020. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on June 8, 2020.
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“[b]ald assertions that an officer subjectively believed or [] knew an object to
be contraband, without identifying [additional], objective characteristics,
[we]re insufficient[.]” Id. at 13. As such, Appellant contends that the
Commonwealth failed to prove the seizure was legal and the trial court erred
in denying suppression.
Our standard of review for an order denying a motion to suppress
evidence is well-settled:
An appellate court's standard of review in addressing a challenge
to the denial of a suppression motion is limited to determining
whether the suppression court's factual findings are supported by
the record and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth prevailed before
the suppression court, we may consider only the evidence of the
Commonwealth 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 suppression court's factual findings are
supported by the record, the appellate court is bound by those
findings and may reverse only if the court's legal conclusions are
erroneous. Where the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court's legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526–527 (Pa. Super. 2015)
(brackets and ellipsis omitted).
Our Supreme Court has determined:
It is well-established that a police officer may conduct a brief
investigatory stop of an individual if the officer observes unusual
conduct which leads him to reasonably conclude that criminal
activity may be afoot. Terry v. Ohio, 392 U.S. 1 (1968).
Moreover, if the officer has a reasonable suspicion, based on
specific and articulable facts, that the detained individual may be
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armed and dangerous, the officer may then conduct a frisk of the
individual's outer garments for weapons. Since the sole
justification for a Terry search is the protection of the officer or
others nearby, such a protective search must be strictly “limited
to that which is necessary for the discovery of weapons which
might be used to harm the officer or others nearby.” Id. at 26.
Thus, the purpose of this limited search is not to discover
evidence, but to allow the officer to pursue his investigation
without fear of violence.
* * *
[A] police officer may seize non-threatening contraband detected
through the officer's sense of touch during a Terry frisk if the
officer is lawfully in a position to detect the presence of
contraband, the incriminating nature of the contraband is
immediately apparent from its tactile impression and the officer
has a lawful right of access to the object. […T]he plain feel
doctrine is only applicable where the officer conducting the frisk
feels an object whose mass or contour makes its criminal
character immediately apparent. Immediately apparent means
that the officer readily perceives, without further exploration or
searching, that what he is feeling is contraband. If, after feeling
the object, the officer lacks probable cause to believe that the
object is contraband without conducting some further search, the
immediately apparent requirement has not been met and the plain
feel doctrine cannot justify the seizure of the object.
Commonwealth v. Stevenson, 744 A.2d 1261, 1264–1265 (Pa. 2000)
(footnote and some citations omitted).
Here, the trial court determined:
Upon Officer Johnston's pat-down of Appellant for weapons, he
felt in his pocket what was immediately apparent, based on his
training and experience, as crack cocaine. No manipulation of the
object by the officer was needed for him to conclude the criminal
nature of the object.
Trial Court Opinion, 6/8/2020, at 7-8.
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Upon review of the record and applicable law, we agree with the trial
court’s assessment.3 Officer Johnston testified that he “patted down
[Appellant] and readily identified a suspected rock of crack cocaine and
removed it from his pocket.” N.T. Preliminary Hearing , 3/19/2019, at 9. The
officer was able to ascertain the contraband nature of the object without
further exploration. Officer Johnston immediately identified the mass and
contour of the object as a “rock” and readily perceived it as narcotics. Thus,
we reject Appellant’s suggestion that the officer failed to objectively identify
the characteristics of the object. Accordingly, we conclude the record supports
the trial court’s determination that, pursuant to the plain feel doctrine, the
incriminating nature of the contraband was immediately apparent from the
tactile impression the seized item imparted to Officer Johnston. As such, we
discern no error of law in denying suppression.
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3 Initially, we note that because Appellant stipulated to the facts from the
preliminary hearing in this case, he ostensibly agreed that the Commonwealth
had proven police seized the contraband based upon its plain feel. See
Commonwealth v. Mitchell, 902 A.2d 430, 460 (Pa. 2006), cert denied, 549
U.S. 1169 (2007) (“A stipulation is a declaration that the fact agreed upon is
proven, and a valid stipulation must be enforced according to its terms.”).
However, this Court has previously addressed the merits of an identical
challenge where there was a stipulation to the facts as set forth at a
preliminary hearing. See Commonwealth v. Angel, 946 A.2d 115 (Pa.
Super. 2008). Thus, in the exercise of caution, we proceed to examine the
merits of this case, as well. Further, we recognize that, in the instant matter,
Appellant does not dispute that police had reasonable suspicion to stop and
frisk him, the officer was lawfully in a position to detect the presence of
contraband, and/or the officer had a lawful right of access to the object.
Instead, the sole issue on appeal is whether the incriminating nature of the
contraband was immediately apparent from its tactile impression.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2020
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