J-A26037-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HENRY JOHNSON : : Appellant : No. 1907 EDA 2020
Appeal from the Judgment of Sentence Entered September 9, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003591-2019
BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED JUNE 8, 2022
Henry Johnson (Appellant) appeals from the judgment of sentence
imposed in the Philadelphia County Court of Common Pleas following his non-
jury conviction of persons not to possess firearms, firearms not to be carried
without a license, and carrying firearms on public streets in Philadelphia.1
Appellant contends the trial court erred in denying his pretrial motion to
suppress evidence and statements when: (1) the police lacked reasonable
suspicion to detain him following a traffic stop; (2) the police unlawfully seized
evidence absent a warrant, or probable cause and exigent circumstances; (3)
the police unlawfully searched his vehicle; and (4) the Commonwealth failed
to prove statements he made were lawfully obtained. For the reasons below,
we vacate the judgment of sentence, and remand for further proceedings. ____________________________________________
1 See 18 Pa.C.S. §§ 6105(a)(1), 6016(a)(1), and 6108, respectively. J-A26037-21
The relevant facts, developed during Appellant’s pretrial suppression
hearing, are as follows. At approximately 8:50 p.m. on May 3, 2019,
Philadelphia Police officer Nabil Assad and his partner2 were on duty in the
500 block of 59th Street in Philadelphia when they observed a vehicle traveling
“with a driver’s side headlight out and the high-beams on[.]” N.T. Suppression
H’rg, 10/10/19, at 9-10. They stopped the vehicle in an area Officer Assad
described as “violent.” Id. at 10, 12. There were two occupants — the driver,
later identified as Appellant, and a female passenger. See id. at 10.
Officer Assad described what happened when he approached Appellant’s
vehicle:
I approached the driver and asked him for his license, registration, and insurance. When he handed me over his driver’s license, I could see his chest was rising in and out. He was breathing at a rapid pace, his hands were shaking when he handed me over his driver’s license, and there was an odor of [fresh] marijuana coming from the vehicle.
N.T., Suppression H’rg, at 10. At that point, the officer “went back” to talk to
his partner “[a]bout his observation and what [they] were going to do next.”
Id. at 14-15. Officer Assad testified:
I then had [Appellant] step out [of the vehicle]. I patted him down for weapons; didn’t find any. I then had him step back with my partner. And as soon as I looked down at the vehicle, on the driver floorboard there was a black-and-purple handgun.
Id. at 10. The officer stated the gun was observed “out in the open” by where
the driver’s right foot would be located. Id. at 11. Officer Assad “recovered ____________________________________________
2 The name of Officer Assad’s partner is not revealed in the record.
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the gun and . . . had the passenger step out.” Id. He then searched the
vehicle and recovered a “clear gray pill bottle . . . in the center console with
marijuana residue.” Id. There was also a small amount of marijuana in the
passenger’s purse, which Appellant claimed was his. Id. at 11-12. Officer
Assad acknowledged he did not ask Appellant about the marijuana odor before
directing him to step out of the vehicle and frisking him. Id. at 15.
Appellant was subsequently arrested and charged with the three
firearms offenses and possession of a small amount of marijuana;3 however,
the marijuana charge was later dismissed. On July 2, 2019, Appellant filed an
omnibus pretrial motion seeking to suppress evidence obtained as a result of
an illegal frisk and arrest, and a warrantless search. See Appellant’s Omnibus
Motion, 7/2/19, at 1 (unpaginated). He filed a supplemental motion on the
morning of his scheduled suppression hearing — October 10, 2019 — in which
he argued the warrantless search of his vehicle, absent exigent circumstances,
violated the Pennsylvania Constitution, and “[t]he statement [he] gave to a
detective after the unlawful search of his car should be suppressed as fruit of
the poisonous tree.” See Appellant’s Supplementary Motion to Suppress
Physical Evidence and Statement, 10/10/19, at 1, 3.
Prior to the start of the hearing, the Commonwealth’s attorney
acknowledged that she had received the supplemental motion from Appellant
that morning, but that “it should not change [her] argument.” N.T., ____________________________________________
3 35 P.S. § 780-113(a)(31).
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Suppression H’rg, at 4. Appellant’s counsel explained to the trial court that
his argument involved a “relatively recent development” since the
Pennsylvania Supreme Court had recently granted a petition for allowance of
appeal in Commonwealth v. Alexander, 3246 EDA 2017 (unpub. memo.)
(Pa. Super. Mar. 5, 2019).4 See N.T., Suppression H’rg, at 7.
The only witness who testified at the suppression hearing was Officer
Assad. Following his testimony, Appellant’s counsel conceded “the validity of
the car stop[ because there was] no dispute that the headlight was out[,]”
and that the officer had the authority to ask Appellant “to step out of the car.”
N.T., Suppression H’rg, at 18-19. However, Appellant was contesting the
legality of the frisk — since there was no evidence Appellant was armed and
dangerous — and the propriety of the vehicle search. The trial court denied
the suppression motion that same day.
On March 2, 2020, Appellant filed a motion requesting the court reopen
the record and reconsider the denial of his suppression motion. Appellant
sought to present evidence regarding the number of medical marijuana
cardholders in Pennsylvania and that fact that medical marijuana may be in
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4 As we will discuss infra, the Supreme Court’s subsequent decision in Alexander changed the landscape of warrantless vehicle searches in Pennsylvania. See Commonwealth v. Alexander, 243 A.3d 177, 207 (Pa. 2020) (holding that, under the Pennsylvania Constitution, warrantless vehicle searches require both probable cause and exigent circumstances; ‘one without the other is insufficient’”) (citation omitted and emphasis added).
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dry leaf form.5 See Appellant’s Motion to Reopen the Presentation of Evidence
and to Reconsider the Denial of Motion to Suppress, 3/2/20, at 3. Appellant
also argued that the Pennsylvania Supreme Court’s May 2019 decision in
Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019) — which held that
possession of a concealed firearm does not itself create reasonable suspicion
that an individual may be dangerous — applied, with equal force, to the
possession of marijuana.6 See Appellant’s Motion to Reopen the Presentation
of Evidence and to Reconsider the Denial of Motion to Suppress at 3-4.
The trial court heard argument on Appellant’s motion prior to the start
of his criminal trial on March 4, 2020. The court granted the motion to reopen
the record, and permitted Appellant to present evidence, by way of a
stipulated exhibit, of the number of active medical marijuana cards in
Pennsylvania during the relevant time periods. See N.T., Trial, 3/4/20, at 11.
However, the court denied the motion to reconsider its suppression ruling. Id.
at 11-12.
5 By way of background, at the suppression hearing, Appellant’s counsel argued to the court that although Officer Assad testified he detected an odor of marijuana, “marijuana at this point is sort of proliferating as a medicinal substitute.” N.T., Suppression H’rg, at 21. We note that Appellant’s suppression hearing was conducted before the Supreme Court’s decision in Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021), which we will discuss infra. The court responded that it did not believe “fresh marijuana [was] sold in” medical marijuana dispensaries. N.T., Suppression H’rg, at 22 (emphasis added). Thus, Appellant intended to present evidence to dispute the court’s belief.
6 Hicks was decided prior to Appellant’s suppression hearing.
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Appellant proceeded immediately to a stipulated non-jury trial, where
the court found him guilty of all charges. On September 9, 2020, he was
sentenced to three concurrent terms of two to four years’ imprisonment,
followed by two years’ probation. This timely appeal followed. Thereafter,
Appellant complied with the trial court’s directive to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. In response, the trial
court issued an opinion requesting that we vacate the judgment of sentence
and remand for reconsideration in light of two recent decisions — Alexander,
supra, and Commonwealth v. Barr, 240 A.3d 1263 (Pa. Super. 2020)7 —
which set “new legal standards” for evaluating the propriety of a vehicle search
based on the odor of marijuana. See Trial Ct. Op., 2/4/21, at 5-6.
Appellant raises the following claims for our review:
A. Did not the lower court err in denying suppression of physical evidence and statements where Appellant was the subject of an investigative detention, the police lacked even reasonable
7 Although the trial court relied on this Court’s opinion in Barr, that decision was subsequently vacated by the Pennsylvania Supreme Court. See Barr, 266 A.3d at 44. Nevertheless, the Supreme Court agreed with this Court’s determination that “the odor of marijuana alone does not amount to probable cause to conduct a warrantless search of a vehicle but, rather, may be considered as a factor in examining the totality of the circumstances.” Id. Its decision to vacate this Court’s opinion was based on the fact that we remanded the case to the trial court to consider whether there were other factors — in addition to the odor of marijuana — supporting probable cause. See id. The Supreme Court determined that, because “the record supported[ed] the trial court’s conclusion that the troopers searched the car in question based solely on the odor of marijuana coming from it[,]” a remand was unwarranted. Id. (emphasis added).
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suspicion to detain Appellant, and all evidence subsequently obtained was fruit of the poisonous tree?
B. Did not the lower court err in denying suppression of physical evidence that was seized without a search warrant and in the absence of probable cause and exigent circumstances?
C. Did not the lower court err in denying suppression of physical evidence where the police unlawfully searched Appellant’s car?
D. Did not the lower court err in denying suppression of Appellant’s statement where the Commonwealth failed to prove that the statements were lawfully obtained?
Appellant’s Brief at 3.
Our review of a trial court’s order denying a pretrial motion to suppress
is guided by the following:
[O]ur standard of review . . . is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. We are bound by the suppression court’s factual findings so long as they are supported by the record; our standard of review on questions of law is de novo. Where, as here, the defendant is appealing the ruling of the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted. Our scope of review of suppression rulings includes only the suppression hearing record and excludes evidence elicited at trial.
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations and
footnote omitted).
Because all of Appellant’s claims challenging the denial of his
suppression motion are interrelated, we will consider them together.
Appellant first argues he was subject to an investigative detention absent
reasonable suspicion that criminal activity was afoot. Appellant’s Brief at 13-
14. Although he does not contest the legitimacy of the initial traffic stop, or
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the authority of the police to order him out of the vehicle while investigating
the traffic violation, see N.T., Suppression H’rg, at 18-19, Appellant contends
that he was frisked absent specific and articulable facts that he was armed
and dangerous. See Appellant’s Brief at 20-21. Moreover, he insists the
officers then continued to detain him without reasonable suspicion.
Appellant’s Brief at 14.
Appellant argues the odor of marijuana, itself, does not support a
presumption of criminality since the passage of the Medical Marijuana Act
(MMA).8 See 35 P.S. §§ 10231.101-10231.2110; see also Appellant’s Brief
at 14-15. Further, he contends the other potential bases for his detention —
his nervous demeanor and the fact the stop occurred in a “violent” area — did
not supply the requisite reasonable suspicion. See id. at 16-18. Thus, he
asserts the physical evidence and his statements obtained following the frisk
should be suppressed as fruit of the poisonous tree. Id. at 22.
Appellant also insists that the seizure of the gun was not permissible
under the plain view doctrine. Appellant’s Brief at 25. Appellant argues that
“[b]ut for [Officer Assad’s] unlawful frisk and seizure . . ., the officer would
not have been in a position to see the firearm.” Id. at 26. Moreover, based
upon Hicks, Appellant asserts that the “incriminating character of the gun was
not immediately apparent, so as to justify its seizure.” Id. at 26. ____________________________________________
8Appellant, like the trial court, relies on this Court’s decision in Barr. We will discuss only the Supreme Court’s subsequent ruling in our analysis.
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With regard to the subsequent vehicle search, Appellant contends the
search was unlawful pursuant to Alexander, which held that an officer must
possess both probable cause and exigent circumstances to conduct a
warrantless search of a vehicle. Appellant’s Brief at 29. He contends both “of
these things were lacking here.” Id.
Lastly, he notes that, at his stipulated trial, the court permitted the
Commonwealth to introduce a statement he made “in which he allegedly
admitted to possession of the gun.” Appellant’s Brief at 30. However, he
claims the Commonwealth presented “no testimony whatsoever regarding this
alleged statement” during the suppression hearing, and, thus, “failed to prove
that the statement was lawfully obtained” in accordance with the dictates of
Miranda.9 Id. at 30-31.
In response to Appellant’s arguments, the Commonwealth insists
Appellant is attempting to “complicate this straightforward case[.]”
Commonwealth’s Brief at 12. It summarizes:
This is a case in which a police officer lawfully stopped a car for a Vehicle Code violation at night and in a violent area. During the traffic stop, the driver was very nervous, and the officer saw a gun lying “out in the open” on the floor of the vehicle and within reach of one of the car’s occupants. The officer seized the weapon, and given that he had an objectively reasonable basis to fear for his safety, that seizure was justified.
Id.
9 Miranda v. Arizona, 384 U.S.436 (1966).
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The Commonwealth downplays the significance of both the frisk and the
vehicle search — noting no evidence was recovered “as a result of the frisk”
and “the sole drug charge was dismissed prior to trial.” Commonwealth’s Brief
at 20, 30. However, the Commonwealth contends Officer Assad was justified
in seizing the firearm he observed in plain view. Id. at 20. It emphasizes
that during the traffic stop, the officer had the authority to order Appellant
“out of the vehicle and to direct him to stand where his partner was.” Id. at
21. Consequently, the Commonwealth maintains Officer Assad had the right
to be in the position where he was when he saw the firearm in plain view. Id.
Once that occurred, he could seize the weapon because it posed a danger to
him and his partner. Id. at 22.
Finally, with regard to Appellant’s statements, the Commonwealth
asserts (1) the statements were not “fruit of the poisonous tree” since Officer
Assad did not act unlawfully, and (2) Appellant waived his Miranda challenge
because he did not include it in either his original or supplemental pretrial
motion. Commonwealth’s Brief at 31-32. Accordingly, the Commonwealth
contends the trial court properly denied Appellant’s suppression motion, and
we should affirm the judgment of sentence.
Upon our review, we conclude the Commonwealth’s summary of the
“facts” is far too simplistic and overlooks key details. Moreover, we agree with
the trial court that the Supreme Court’s recent decisions in Alexander and
Barr have changed the landscape of traffic stops during which an officer
detects an odor of marijuana. See Trial Ct. Op. at 4-5.
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In Alexander, the Supreme Court reconsidered its 2014 plurality
decision in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), which had
adopted the federal automobile exception to the warrant requirement, and
held that the only prerequisite to a warrantless vehicle search was probable
cause. See Gary, 91 A.3d at 138 (“[N]o exigency beyond the inherent
mobility of a motor vehicle is required.”). The Alexander Court, however,
reversed course — and overruled Gary — based upon the “greater protection”
afforded to Pennsylvania citizens under our Constitution. Alexander, 243
A.3d at 181. The Court held:
As a result of today’s decision, we return to the pre- Gary application of our limited automobile exception under Article I, Section 8 of our Constitution, pursuant to which warrantless vehicle searches require both probable cause and exigent circumstances; one without the other is insufficient.
Id. at 207 (citation and quotation marks omitted).
In Barr, the Supreme Court considered “to what extent, if at all, the
smell of marijuana can be considered when determining whether law
enforcement had probable cause to conduct a warrantless search of a vehicle”
in light of the enactment of the MMA. Barr, 266 A.3d. at 28. The Court
explained that although “the MMA makes abundantly clear that marijuana no
longer is per se illegal in this Commonwealth[,]” the possession of marijuana
is still illegal under the Controlled Substance, Drug, Device and Cosmetic Act10
“for those not qualified under the MMA.” Id. at 41. Accordingly, the Supreme ____________________________________________
10 35 P.S. §§ 780.101 et seq.
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Court held that “the odor of marijuana may be a factor, but not a stand-alone
one, in evaluating the totality of the circumstances for purposes of
determining whether police had probable cause to conduct a warrantless
search.” Id. In reaching this conclusion, the Court relied upon its decision in
Hicks, wherein it held that an individual’s mere possession of a concealed
firearm — absent any information that the individual was not permitted to
carry a firearm or that the individual intended to use the firearm for criminal
activity — did not supply the requisite reasonable suspicion to justify a Terry11
stop and frisk. Id. at 43. The Barr Court summarized:
Applying such jurisprudence to the facts presented, we conclude that if lawful possession of an item due to legislative authorization to possess it cannot, in and of itself, permit an officer to infer criminal activity for purposes of effectuating a Terry stop, lawful possession of an item pursuant to legislative authorization is alone insufficient to satisfy the more stringent requirement of probable cause of criminal activity required to conduct a warrantless search of a vehicle.
We agree with the trial court that the “new legal standards in Barr and
Alexander are retroactively applicable in this case.” Trial Ct. Op. at 5. Both
decisions were filed while Appellant’s case was pending on direct appeal, and
Appellant preserved these challenges in the trial court. See Commonwealth
v. Cabeza, 469 A.2d 146, 148 (Pa. 1983) (“[W]here an appellate decision
overrules prior law and announces a new principle, unless the decision
11 Terry v. Ohio, 392 U.S. 1 (1968).
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specifically declares the ruling to be prospective only, the new rule is to be
applied retroactively to cases where the issue in question is properly preserved
at all stages of adjudication up to and including any direct appeal.”).
Barr, in particular, is applicable to the case sub judice. Here, the
Commonwealth focuses on the legality of the traffic stop and the officers’
authority to order Appellant out of the car during the stop. See
Commonwealth’s Brief at 21. Moreover, it emphasizes Appellant’s nervous
demeanor, and that fact the stop occurred in “an area that was known for its
violence.” Id. at 27. The Commonwealth then summarily states: “[W]hen
the officer directed [Appellant] to get out of the car, as he was entitled to do,
he discovered that a handgun was lying on the floor of the car ‘out in the open’
right where [Appellant’s] feet had been.” Id.
The Commonwealth all but ignores the fact that the odor of marijuana
precipitated Officer Assad’s decision to order Appellant out of the car and frisk
him. According to the officer’s testimony at the suppression hearing, he did
not observe the gun until after the frisk — which revealed no contraband or
weapons — and after he continued to detain Appellant by directing him to
move away from the car and towards his partner. See N.T., Suppression H’rg,
at 10. Thus, if the frisk and continued detention were not supported by
reasonable suspicion, then, as Appellant argues, the officer did not lawfully
observe the gun in plain view. See Commonwealth v. Heidelberg, ___
A.3d ___, ___, 2021 WL 5458398, *8 (Pa. Super. Nov. 23, 2021) (“The plain-
view doctrine permits the warrantless seizure of an object when: (1) an
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officer views the object from a lawful vantage point; (2) it is
immediately apparent to him that the object is incriminating; and (3) the
officer has a lawful right of access to the object.”) (citation omitted and
emphasis added).
Here, the trial court explicitly stated in its opinion that the only factor
it considered in determining whether Officer Assad had probable cause for the
search of Appellant’s vehicle was the smell of marijuana. Trial Ct. Op. at 5.
The court “did not . . . evaluate any other factors in conjunction with the odor
of marijuana in its probable cause analysis.” Id. (citation and quotation marks
omitted). This is impermissible under Barr. Thus, we agree that we are
compelled to remand for reconsideration under the new standard.12
We note, too, that upon remand, the trial court should also consider the
underlying basis for Officer Assad’s frisk and subsequent detention of
Appellant — for it was only after these acts that the officer observed the gun
in plain view. As explained supra, the Commonwealth ignores these crucial
factual determinations and argues that Officer Assad had the authority not ____________________________________________
12 Should the trial court determine the frisk and continued detention was proper, it should then consider whether Alexander impacts the officer’s subsequent search of the vehicle. See Commonwealth v. Lutz, ___ A.3d ___, ___, 2022 WL 433446, *5 (Pa. Super. Feb. 14, 2022) (officer properly seized marijuana pipe in plain view in car without warrant; “the still-running vehicle and open car door fulfilled the requirement of exigent circumstances because the [officer] needed to enter the car to turn off the ignition[,]” and once he did so, “he had lawful access to the pipe sitting on the driver’s seat and seizure of it was lawful under the plain view doctrine, as informed by Alexander”)
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only to order Appellant out of the car, but also to “control all movement in
[the] traffic encounter[.]” Commonwealth’s Brief at 18, citing
Commonwealth v. Wright, 224 A.3d 1104 (Pa. Super. 2019), appeal
denied, 237 A.3d 393 (Pa. 2020). Therefore, it maintains, “he was entitled
to have [Appellant] move back to where his partner was while he took the
actions necessary to complete the traffic stop.” Id.
However, the reason Officer Assad frisked Appellant, and then continued
to detain him, is an important consideration. As the Supreme Court reinforced
in Hicks, “to proceed from a [lawful investigatory] stop to a frisk, the police
officer must reasonably suspect that the person stopped is armed and
dangerous.” Hicks, 208 A.3d at 921 (citation omitted and emphasis added).
In the present case, the trial court did not state whether this prerequisite was
satisfied.
With regard to Appellant’s continued detention after the frisk, this Court
has recently explained:
[W]here the purpose of an initial traffic stop has ended and a reasonable person would not have believed that he was free to leave, the law characterizes a subsequent round of questioning by the police as an investigative detention or arrest. In the absence of either reasonable suspicion or probable cause to support the arrest, the citizen is considered unlawfully detained. . . .
Our Supreme Court has expressly recognized that an officer conducting a valid traffic stop may order the occupants of a vehicle to alight to assure his own safety. Once the primary traffic stop has concluded, however, the officer’s authority to order either the driver or occupant from the car is extinguished. Thus, if the officer directs or requests the occupants to exit the vehicle after resolution of the reason for the initial stop, the officer’s show of authority may constitute an investigatory detention subject to a
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renewed showing of reasonable suspicion. Significantly, absent more, a police officer’s assessment that the occupants of a vehicle appear nervous does not provide reasonable suspicion for an investigative detention.
Commonwealth v. Mattis, 252 A.3d 650, 655 (Pa. Super. 2021) (citations
omitted). Moreover, it is well settled that, following a lawful traffic stop,
“additional suspicion may arise before the initial stop’s purpose has been
fulfilled; then, detention may be permissible to investigate the new
suspicions.” Wright, 224 A.3d at 1109 (citation and quotation marks
omitted). Again, the trial court did not determine when primary traffic stop
concluded, and, if it was before Officer Assad directed Appellant to move
toward his partner, the court did not analyze whether the officer possessed
reasonable suspicion to continue to detain Appellant.
Thus, because we conclude that, in light of Barr and Alexander, there
remain several factual determinations that must be made in the first instance
by the trial court, we vacate the judgment of sentence and remand for
reconsideration of Appellant’s suppression motion. See Yandamuri, 159
A.3d at 516. We also direct the court to consider whether the officer’s “plain
view” of the firearm was impacted by the preceding frisk (which garnered no
contraband), and whether the continued detention of Appellant was part of
the initial traffic stop, or a new investigation, that must be supported by
reasonable suspicion.13 ____________________________________________
13In light of our disposition, we decline to address Appellant’s argument concerning his alleged inculpatory statements. Indeed, the trial court did not (Footnote Continued Next Page)
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Judgment of sentence vacated. Case remanded for proceedings
consistent with this Memorandum. Jurisdiction relinquished.
Judge Bowes joins the memorandum.
Judge Stabile files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/08/2022
determine whether the statement introduced by the Commonwealth at trial was properly obtained. If, upon remand, the trial court determines that the seizure of the firearm was lawful, then it should also address Appellant’s argument regarding his statement to police.
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