Com. v. Lewis, J. ( 2023 )

J-S10004-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFREY LEWIS :
:
Appellant : No. 1613 EDA 2022
Appeal from the Judgment of Sentence Entered February 23, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000423-2021
BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 4, 2023
Jeffrey Lewis appeals from the judgment of sentence imposed following
his convictions for possession of a firearm prohibited, firearms not to be
carried without a license, and carrying firearms on public streets in
Philadelphia. Lewis challenges the denial of his motion to suppress the firearm
recovered during a traffic stop. He additionally challenges the discretionary
aspects of his sentence. We affirm.
The following facts are undisputed. Shortly after midnight on December
9, 2020, Philadelphia Police Officer Paul Moore executed a vehicle stop after
witnessing Lewis’s vehicle abruptly cross two lanes of traffic and make a right
turn without signaling. Officer Moore pulled up behind the vehicle, which had
parked shortly after making the turn. When Officer Moore approached the
vehicle, he determined there were two individuals in the car—Lewis, who was
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driving, and a female passenger. Officer Moore then observed a firearm on
the floor at Lewis’ feet. Officer Moore drew his own weapon, aiming it at Lewis,
and removed the firearm from the vehicle while Lewis was still sitting inside.
Lewis apologized and stated the passenger did not know about the gun. Lewis
was then handcuffed and detained in the police cruiser. A National Crime
Information Center (“NCIC”) search revealed that Lewis was not licensed to
carry a firearm, and at that time, Lewis was arrested.
Lewis filed a motion to suppress the firearm, arguing that neither his
arrest nor the vehicle search was supported by probable cause. The trial court
heard arguments on the motion to suppress immediately prior to the start of
the bench trial. The trial court denied Lewis’ motion to suppress.
After the bench trial, Lewis was convicted of the abovementioned
firearms violations. The trial court deferred sentencing pending completion of
a pre-sentence investigation report (“PSI”). On February 23, 2022, the trial
court sentenced Lewis to concurrent terms of 10 to 20 years in prison for his
convictions for possession of a firearm prohibited and firearms not to be
carried without a license. For carrying firearms on public streets in
Philadelphia, the trial court entered a finding of guilt without further penalty.
Lewis filed a timely post-sentence motion seeking, in part,
reconsideration of his sentence. The trial court denied the post-sentence
motion. This timely appeal followed.
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In his first claim, Lewis argues the trial court erred by denying his motion
to suppress the firearm. See Appellant’s Brief at 9. Lewis does not contest the
legality of the initial traffic stop. See id. at 13. Lewis also concedes that Officer
Moore could have asked Lewis to exit the vehicle in order to secure the
firearm. See id. at 18 n.6. However, Lewis claims that Officer Moore’s
observance of the firearm, without more, did not permit further investigation
or a custodial detention.1 See id. at 13-14, 18-19; see also id. at 18-19 n.6
(arguing the interaction was a custodial detention because Officer Moore
pointed his service weapon at Lewis’ head).
Our Court’s standard of review for a suppression issue is deferential to
the suppression court’s finding of fact, but not its conclusions of law.
In reviewing an order that denied a motion to suppress, an
appellate court must determine 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
____________________________________________
1 Lewis relies on Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), in
support of this argument. In Hicks, our Supreme Court held possession of a
concealed firearm “alone is an insufficient basis for reasonable suspicion that
criminal activity is afoot.” Hicks, 208 A.3d at 945. However, the Court
specifically declined the consider whether possession of a firearm can provide
authorization to frisk a detainee following a lawful investigative detention. See
id. at 934. Because Lewis was lawfully stopped for a Motor Vehicle Code
violation, Hicks is not applicable to this case. See Commonwealth v. Ross,
___ A.3d ___, 2023 WL 4068547, *7 (Pa. Super. filed June 20, 2023)
(concluding Hicks was not controlling where police did not initiate a detention
because defendant was armed, and instead inquired about the presence of
weapons in the course of a lawful vehicle stop).
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court’s factual findings are supported by the record, we are bound
by these 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 our plenary review.
Commonwealth v. Malloy, 257 A.3d 142, 147 (Pa. Super. 2021) (citation,
brackets and ellipses omitted).
The Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution prohibit unreasonable searches and
seizures. See Commonwealth v. Thompson, 289 A.3d 1104, 1107 (Pa.
Super. 2023). Pennsylvania courts recognize “three levels of interaction
between the police and citizens: (1) a mere encounter, (2) an investigative
detention, and (3) a custodial detention.” Commonwealth v. Spence, 290
A.3d 301, 314 (Pa. Super. 2023) (citation omitted).
Generally, a motor vehicle stop is considered an investigative detention.
See id. “[A]n investigative detention, by implication, carries an official
compulsion to stop and respond, but the detention is temporary, unless it
results in the formation of probable cause for arrest, and does not possess the
coercive conditions consistent with a formal arrest.” Id. (citation omitted).
Pennsylvania courts have also clarified that an officer may order an individual’s
exit from a vehicle, ask questions to determine the individual’s identity, and
handcuff an individual without necessarily elevating the encounter to a
custodial detention. See Spence, 290 A.3d at 314. In furtherance of the
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officers’ safety interest, police may also inquire about the presence of
weapons. See Malloy, 257 A.3d at 150. However, police may not prolong a
vehicle stop for an “inquiry exclusively aimed at collecting evidence of
collateral wrongdoing.” Id. at 153 (citing Rodriguez v. United States, 575
U.S. 348, 355 (2015)).
Here, Officer Moore’s suppression hearing testimony confirms that after
stopping Lewis’s vehicle, he approached the drivers’ side, and “within seconds
[he] observed a firearm in between [Lewis’s] feet.” N.T. (Suppression),
10/19/21, at 10. Officer Moore drew his service weapon when he observed
the firearm at Lewis’s feet. See id. at 14. Officer Moore testified that he
subsequently opened the car door to recover the firearm before placing Lewis
in handcuffs and directing him to the back of the police cruiser. See id. at 10.
After conducting an NCIC search, Officer Moore determined that Lewis was
not licensed to carry a firearm. See id.
The suppression court highlighted the balance between the rights of
citizens and the safety interests of police officers, and concluded Officer Moore
did not violate Lewis’s Fourth Amendment rights under these circumstances.
See Trial Court Opinion, 8/10/22, at 11-12. The suppression court’s findings
are supported by the record, and we discern no error in its legal conclusions.
See id.; see also Ross, ___ A.3d ___, 2023 WL 4068547, **17-18
(emphasizing the risks inherent in traffic stops and stating, “police officers
may take reasonable precautions when the circumstances give rise to
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legitimate safety concerns.”), *19 (holding that officer’s safety concern
justified the proportional intrusion on defendant, i.e., asking defendant
whether he had a firearm); Commonwealth v. Davis, 287 A.3d 467, 469-
70, 473 (Pa. Super. 2022) (during a vehicle stop, the officer could ask
defendant whether he was licensed to carry a firearm after the officer
observed a handgun in plain view while securing the illegally-parked vehicle).
We therefore affirm on this basis with regard to Lewis’s first claim.
In his second claim, Lewis contends the trial court imposed an unduly
harsh sentence without consideration of mitigating factors. See Appellant’s
Brief at 21. Lewis acknowledges that the trial court imposed a sentence within
the standard range of the sentencing guidelines but claims his prior record
score is “highly misleading and vastly overstated his criminal history.” Id.2 He
emphasized that his prior record score of REVOC was the result of crimes he
committed on a single day, and within a several block radius, but which were
charged separately. See id. at 24; see also id. (explaining that he committed
the “spree” of robberies while he was young and intoxicated, while pretending
to have a gun, and on one occasion he stole only a sandwich).
Lewis challenges the discretionary aspects of his sentence, from which
there is no automatic right to appeal. See Commonwealth v. Mrozik, 213
____________________________________________
2 The applicable offense gravity score was 11, and Lewis had a prior record
score of REVOC (repeat violent offender category). Therefore, the sentencing
guidelines recommend a minimum sentence of 120 months, plus or minus 12
months for aggravating or mitigating factors. See 204 Pa. Code § 303.16(a).
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A.3d 273, 275 (Pa. Super. 2019). Instead, an appellant must invoke this
Court’s jurisdiction. See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010) (citation omitted).
We conduct a four-part analysis to determine: (1) whether
the appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether the appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
***
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial question
exists only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.
Moury, 992 A.2d at 170 (quotation marks, brackets, and some citations
omitted).
Here, Lewis preserved his claim in a post-sentence motion and filed a
timely notice of appeal. Lewis also included a separate Rule 2119(f) statement
in his appellate brief, asserting the trial court imposed an excessive sentence
without consideration of all relevant sentencing factors, including mitigating
factors. See Appellant’s Brief at 20. We conclude Lewis has raised a
substantial question for our review, and we proceed to the merits of his
sentencing challenge. See Commonwealth v. Caldwell, 117 A.3d 763, 770
(Pa. Super. 2015) (en banc) (“This Court has [] held that an excessive
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sentence claim—in conjunction with an assertion that the [trial] court failed to
consider mitigating factors—raises a substantial question.” (citation omitted)).
We review discretionary sentencing challenges with great deference to the
sentencing court:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Bullock, 170 A.3d 1109, 1123 (Pa. Super. 2017)
(citations and quotation marks omitted).
In its opinion, the trial court set forth the relevant law and fully
addressed Lewis’s claim. See Trial Court Opinion, 8/10/22, at 3-10. Our
review of the trial court’s opinion and the transcript of the sentencing hearing
in this matter confirms that the trial court was aware of all relevant sentencing
factors and had the benefit of a PSI. See Moury, 992 A.2d at 171 (explaining
that when the trial court has the benefit of a PSI, “we can assume the
sentencing court was aware of relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.” (internal quotation marks and citation omitted)). We adopt the trial
court’s well-reasoned analysis of this claim as our own. See Trial Court
Opinion, 8/10/22, at 3-10.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/04/2023
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Circulated 07/27/2023 12:04 PM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA-PHILADELPHIA
TRIAL DIVISION - CRIMINAL SECTION
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0000423-2021
v.
JEFFREY LEWIS 1613 EDA 2022
OPINION
Covington, J. :-"~~~ ~
On December 9, 2020, Jeffrey Lewis (hereinafter "Appellant") was arrestedcand]:~harged
1-:
with Possession of Firearm Prohibited, Firearms Not to be Carried Without License, and Canying
Firearms in Public in Philadelphia. 1 On October 19, 2021, a Motion to Suppress was Denied and,
following a non-jury trial, Appellant was convicted and found guilty of all charges. On Februaiy
23, 2022, the Court sentenced Appellant to a guideline term of 10 to 20 years of state incarceration.
A timely appeal followed.
Instantly, the Appellant claims the following points of error:
1. The Trial Comi abused its discretion in imposing a sentence of 10 to 20 years.
2. The Appellant's prior record was overstated by the sentencing guidelines, in
that the Appellant's prior record consisted of several robberies which all
occurred on the same say, within a span time of several hours, in which he
possessed a simulated weapon and where he plead guilty to all of the offenses
on the same date in a Rule 701 guilty plea consolidation.
3. The Trial Comi committed an error of law by denying Appellant's Motion to
Suppress because the police lacked sufficient grounds to detain Appellant at
point of gun in the absence of probable cause that the Appellant committed a
cnme.
1
18 Pa. C.S.A. § 6105 §§Al, 18 Pa. C.S.A. § 6106 §§Al, 18 Pa. C.S.A. § 6108 (respectively).
0026_Opinion
Statement of Matters Complained of on Appeal Pursuant to R.A.P. 1925(b) (hereinafter "1925(b)
Statement").
As discussed below, these claims are without merit. Accordingly, no relief is due.
I. FACTUAL HISTORY
On December 9, 2020, Police Officer Paul Moore was on duty at approximately 12:10
A.M. when he observed a gray Kia Forte travelling southbound on the 2200 block of North
Broad Street in Philadelphia. As the car approached Susquehanna A venue, it abruptly crossed
two lanes of traffic and made a right-hand turn onto Susquehanna A venue failing to signal.
The car stopped and parked on the 1400 block of West Susquehanna Avenue (N.T. 10/19/21,
7-9).
Lights and sirens were activated to investigate the vehicle. As Officer Moore
approached the driver's side window of the Kia, he immediately saw a firearm on the floor of
the vehicle at the Appellant's feet and drew his weapon. The officer opened the car door and
recovered a loaded black Taurus. There were two occupants inside: Appellant and a female
passenger. Appellant repeatedly apologized and stated several times that the passenger was
unaware of the gun. Appellant was handcuffed and placed in the police cruiser. Officer Moore
conducted an NCI CIPCIC check and determined Appellant was not licensed to carry a firearm.
Appellant was subsequently arrested and transported for processing. (N.T. 10/19/21, 7-14).
2
II. PROCEDURAL HISTORY
Appellant proceeded by waiver trial on October 19, 2021, and was convicted of
Possession of Firearm Prohibited, Firearms Not to be Carried Without License, and Carrying
Firearms in Public in Philadelphia. On February 23, 2022, Appellant received a guideline
sentence of 10 to 20 years of state custody. On March 2, 2022, Appellant filed a
Reconsideration of Denial of Motion to Suppress and Reconsideration of Sentence,
subsequently denied by the Court on May 31, 2022. This Appeal was timely filed on June 15,
2022, followed by the 1925(b) Statement on June 22, 2022.
III. DISCUSSION
A. Sentencing
1. Abuse of Discretion
Appellant asserts the Trial Court abused its discretion by imposing a sentence of 10 to
20 years. The scope of appellate review in sentencing is well-settled. Sentencing is vested
within the sound discretion of the trial court, the abuse of which requires that the sentence
either exceed statutory limits or be manifestly excessive. Commonwealth v. Pennington, 751
A.2d 212, 217 (Pa. Super. Ct. 2000) (citing Commonwealth v. DuPont, 730 A.2d 970, 986 (Pa.
Super. Ct. 1999) (citation omitted)). The court in Commonwealth v. Sheller ruled it is not
enough to allege an abuse of discretion rather,
the appellant must establish, by reference to the record, that the sentencing court
ignored or misapplied the law, exercised its judgment for reasons of partially,
prejudice, bias, or ill will, or arrived at a manifestly unreasonable decision.
When imposing a sentence, the sentencing court is required to consider the sentence
ranges set forth in the Sentencing Guidelines, but is not bound by the Sentencing
3
Guidelines. A court may depart from the guidelines if necessary, to fashion a
sentence which takes into account the protection of the public, the rehabilitative
needs of the defendant, and the gravity of the particular offense as it relates to the
impact on the life of the victim and the community. When a court chooses to depart
from the guidelines however, it must demonstrate on the record, as a proper starting
point, his awareness of the sentencing guidelines. Further, the court must provide a
contemporaneous written statement of the reason or reasons for the deviation from
the guidelines.
When reviewing a sentence outside of the guideline range, the essential question is
whether the sentence imposed was reasonable. An appellate court must vacate and
remand a case where it finds that the sentencing court sentenced outside of the
sentencing guidelines and the sentence is umeasonable.
Sheller, 961 A.2d 187, 190 (Pa. Super. Ct. 2008) (citations omitted and formatting altered).
The inquiry into the reasonableness of a sentence is difficult to define. Commonwealth v.
Walls, 926 A.2d 957, 964 (Pa. 2007).
The discretion of the sentencing judge must be accorded great weight because she
is in the best position to weigh various factors such as the nature of the crime, the
defendant's character, and the defendant's displays of remorse, defiance, or indifference.
Commonwealth v. Minott, 577 A.2d 928, 929 (Pa. Super. Ct. 1990). Given the broad range
of discretion in sentencing matters, the trial court may sentence defendants outside the
Sentencing Guidelines. Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002).
Furthem1ore, the vulnerability of the victim is a sufficient reason to aggravate a sentence.
See Commonwealth v. Darden, 531 A.2d 1144, 1148 (Pa. Super. Ct. 1987).
"A sentence may be found to be unreasonable after review of Section 9781(d)'s
four statutory factors ... " Walls, 926 A.2d at 964. Additionally, a sentence may also be
umeasonable if it was imposed "without express or implicit consideration" of the
protection of the public, the rehabilitative needs of the defendant, and the gravity of the
4
particular offense at it relates to the impact on the life of the victim and the community as
required by 42 Pa. C.S. § 9721(b). Id. The Superior Court has held that "where the trial
comt deviates substantially from the sentencing guideline range it is especially important
that the court consider all factors relevant to the determination of a proper sentence. Such
factors justifying an upward departure, however, may not include those already taken into
account in the guidelines' calculations." Commonwealth v. Messmer, 863 A.2d 567, 573
(Pa. Super. Ct. 2004) (citations omitted). "[T]his requirement is satisfied then the judge
states his reasons for the sentence on the record and in the defendant's presence."
Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super. Ct. 2014) (citations omitted).
[The Appellate] Court should not reweigh the proper sentencing factors considered by the
trial court and impose [their] own judgment in the place of the trial court. Commonwealth
v. Macias, 968 A.2d 771, 778 (Pa. Super. Ct. 2009).
Appellant's guidelines were comprised of a prior record score of "REVOC" and an
offense gravity score of "11," producing a recommended minimum sentence of "120 to
240 months, plus or minus 12 months." N.T. 02/23/22, 5-6. The Court issued a sentence of
10 to 20 years state custody. This Court's sentence was neither illegal nor manifestly
excessive as it was strictly within the recommended guidelines for each of the counts of
which Appellant was convicted.
The sentencing function is vested in the sound discretion of the trial court, whose
final judgment will not be disrupted by a higher court absent an abuse of discretion.
Commonwealth v. Walls, 926 A.2d 957, 962 (Pa. 2007). To constitute an abuse of
discretion, the sentence must exceed the statutory maximum. Commonwealth v. Pickering,
5
533 A.2d 735, 738 (Pa. Super. Ct. 1987). Finally, the sentence must be "so manifestly
excessive as to constitute too severe a punishment." Commonwealth v. De Luca, 418 A.2d
669, 671 (Pa. Super. Ct. 1980).
In this matter, the Comi considered the sentencing recommendations of both parties
and carefully followed the sentencing guidelines. This Court offered sufficient, valid
reasons for imposing its sentence. First, the Court considered the Appellant's reasons for
having a gun but emphasized Appellant's knowledge of his prior conviction prohibiting his
ability to carry a firearm. Next, the Court also acknowledged testimony and numerous
letters received from family and friends emphasizing their love and support of Appellant.
Finally, the Court afforded additional leniency to the Appellant for waiving his right to a
jury trial. (N.T. 02/23/22, 31-34).
However, the Trial Court discussed the substantial weight of Appellant's Pre-
Sentence Investigation Report (hereinafter "PSI") that noted his astonishing level of
"disrespect for the criminal justice system and for authority," indicating that he does not
"feel the Courts or probation will hold [him] accountable." N.T. 02/23/22, 33-34. The PSI
proved telling and indicative of the Appellant's true nature and propensity for future
offenses. Despite having a substantial drug and alcohol histo1y, Appellant claimed he was
sober of all drug use since age 35, which proved inaccurate: "while he was on state parole,
he tested positive for Oxycodone (Percocet) on many occasions including while he was
residing in a Community Corrections Center at Kintock Erie Group in 2016." Id Appellant
repeatedly refused all offers for drug treatment, claiming it was not needed and he did not
have an addiction problem. Id.6
It was further reported Appellant's adult record included 10 an-ests, seven
convictions, and five commitments. The current offenses directly violated Appellant's
Special Probation for committing 12 gunpoint robberies, and he "was well aware of being
prohibited from being in possession of any weapons or firearms as a condition of his state
probation." The report indicated Appellant "did exceptionally poor on ... supervision and
violated nearly every period of probation/parole imposed" and "violated his probations 23
times, but never had any of his sentences revoked." The PSI further noted the Appellant
"has an exceptional history of violent offenses which should not be underestimated,"
emphasizing Appellant "believes he can do whatever he wants with impunity and without
any repercussions. He has no sense of remorse for his actions. He is not amenable to
community or County supervision." Finally, the PSI described Appellant as an "overly self-
important and self-absorbed young man ... indifferent to the plight of his victims ... an
institutionalized individual who cannot function outside of a controlled, secure
environment ... [and] (his) risk of a future act of violence is very significant." (Presentence
Investigation Report 12/7/21).
Based upon careful consideration of all information provided, the Court
appropriately sentenced Appellant and the claim for relief is without merit.
2. Prior Record Score
Appellant avers the prior record score was overstated by the Sentencing Guidelines.
This assertion is without merit.
7
A sentencing judge is not bound by the Sentencing Guidelines. Commonwealth v.
Edwards, 194 A.3d 625 (Pa. Super. 2018). The Guidelines are merely advisory, Id., and a
court retains the ability and discretion to sentence below the mitigated range of the
Sentencing Guidelines provided that it clearly explains its reasons for doing so on the
record. Commonwealth v. Hoch, 936 A.2d 515 (Pa. Super. 2007). See also Commonwealth
v. Sheridan, 502 A.2d 694 (Pa. Super. 1985) (Sentencing Guidelines were enacted to
provide a guide to the courts; they do not preclude appropriate exercise of judicial
discretion).
The Trial Court is afforded broad discretion in sentencing because the Court is in
the best position to consider the proper penalty for the defendant based on an examination
of the defendant's character, display or remorse, defiance or indifference, and the overall
effect and nature of the crimes of which he or she was convicted. Commonwealth v. Minott,
577 A.2d 928, 929 (Pa. Super. Ct. 1990). While sentencing courts do possess broad
discretion in sentencing, this discretion remains subject to appellate review. Inquiiy into
the reasonableness of a sentence is difficult to define and is based in part on the factors
outlined in 18 Pa. C.S. §978l(d). Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007).
In reviewing the record, §978l(d), requires that the appellate court consider the following:
(1) The nature and circumstances of the offense and the history and
characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including
any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
8
A sentence imposed by the trial court may be found to be unreasonable or not
guided by sound judgment after review of §9781(d)'s four statutory factors. Id. Moreover,
the sentencing court must fashion a sentence that expressly or implicitly considers the
protection of the public, the gravity of the offense as it relates to the impact on the life of
the victim and on the community, and the rehabilitative needs of the defendant pursuant to
42 Pa. C.S. §9721(b). Id. [The Appellate] Court should not reweigh the proper sentencing
factors considered by the trial court and impose [their] own judgment in place of the in the
place of the trial court. Commonwealth v. Macias, A.2d 773, 778 (Pa. Super. Ct. 2009).
The Appellant claims that his prior record score vastly overstated his criminal
history. Prior to the sentencing hearing, the Trial Court thoroughly reviewed the
Presentence Investigation Report, a supervision history summary provided by the parole
office, along with defense counsel's mitigation packet containing 25-30 letters from family
and community members regarding Appellant. N.T. 02/23/22, 4-5. Additionally, the Trial
Court sympathetically contemplated the rehabilitative needs of Appellant by ordering drug
screens as well as drug treatment as necessary. Id. at 35. This Court heavily considered the
protection of the public in issuing her sentence and by reiterating to Appellant that he is
not to possess a firearm as she stated "We do everything possible, but bullets have no names
and people are getting shot who have nothing to do with anything happening in our
communities. And I don't know that the answer for any of us is carrying a firearm." Id. at
31.
Moreover, the Trial Court stated the Appellant "has such a disrespect for the
criminal justice system and for authority." The Appellant does not "feel the Courts or
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probation will hold [him] accountable." The Court emphasized the Appellant has "violated
probation over 23 times and [his] sentence has never been revoked." The Court concluded
"[T]he record is what it is: twelve gunpoint robberies, though they occurred in one day,
still effects as I indicated, twelve people in your past. Twelve crimes of twelve people, in
addition to the rest of your prior history." N.T. 02/23/22, 33-34.
For the above reasons, Appellant's claim on this matter is without merit.
B. Suppression
Appellant claims the Court erred by denying Appellant's Motion to Suppress. The
standard of review for challenges 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, the
appellate court 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 ifthe suppression 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 our
plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. Ct. 2012) (citations omitted
and formatting altered) appeal denied, 65 A.3d 413 (Pa. 2013) (parallel citation omitted).
On appeal of the denial of a motion to suppress, the Appellate Court is limited to
determining "whether the record supports the suppression court's factual findings and the
legitimacy of the inferences and legal conclusions drawn from those findings."
10
Commonwealth v. Griffin, 24 A.3d 103 7, 1041 (Pa. Super 2011) (quoting Commonwealth
v. Lohr, 715 A.2d 459, 461 (Pa. Super. 1998)). If the record supports the factual findings
of the trial court, the court reverses "only ifthere is an error in the legal conclusions drawn
from those factual findings." Id. (citation omitted).
The Appellant claims that the Trial Court erred in denying Appellant's motion to
suppress because the police lacked sufficient grounds to detain Appellant at point of gun
in the absence of probable cause that the Appellant committed a crime. See Appellant's Pa.
R.A.P. 1925(b) Statement.
Commonwealth v. Salter, provides that mere reasonable suspicion will not justify a
vehicle stop when the driver's detention cannot serve an investigatory purpose relevant to
the suspected violation. In such an instance, "it is encumbent [sic] upon the officer to
articulate specific facts possessed by him, at the time of the questioned stop, which would
provide probable cause to believe that the vehicle or the driver was in violation of some
provision of the Code." Salter, 121 A.3d 987, 992 (Pa. Super. 2015) (quoting
Commonwealth v. Feczko, 10 A.3d 1285, 1290-91 (Pa. Super. 2010)) (emphasis added).
However, in the present case, both parties stipulated to the legality of the traffic stop.
Officer Moore testified upon approach of Appellant's car, while outside of the
driver's side window, he saw the firearm on the floor of the vehicle at the Appellant's feet.
N.T. 10/19/22, 10. This observation falls directly under the plain view doctrine where: "(l)
an officer views the object from a lawful vantage point; [and] (2) it is immediately apparent
to him that the object is incriminating." Commonwealth v. Luczki, 212 A.3d 530, 547 (Pa.
Super. 2019). Additionally, this situation creates exigent circumstances and condition of
11
safety for Officer Moore, leading him to draw his weapon on Appellant to remove him and
the firearm from the vehicle. In Commonwealth v. Clinton, the Superior Court discusses
the issue of officer safety and the balance between the rights of citizens and the protection
of officers:
[T]here is the more immediate interest of the police officer in taking steps to assure
himself that the person with whom he is dealing is not armed with a weapon that
could unexpectedly and fatally be used against him. Certainly, it would be
unreasonable to require that police officers take unnecessary risks in the
performance of their duties.
Clinton, 905 A.2d 1026, 1030-31 (Pa. Super. Ct. 2006).
Moreover, the Superior Court has long held that police may order occupants out of
the car during car stops even without suspicion that criminal activity is afoot.
Commonwealth v. Morris, 644 A.2d 721 (1944); Commonwealth v. Rodriguez, 695 A.2d
864 (Pa. Super. 1997). And occupants may only be frisked, ifthere is reasonable suspicion
that they are armed and dangerous. Commonwealth v. Henderson, 663 A.2d 728 (1995);
Commonwealth v. Benton, 655 A.2d 1030 (1995). Clearly, in the instant matter, the
officer's observation of a handgun in Appellant's immediate reach is reasonable suspicion
he is armed and dangerous.
For the above reasons, Appellant's claim of insufficient probable cause is without
merit.
12
IV. CONCLUSION
In summary, this court has carefully reviewed the entire record and finds no
harmful, prejudicial, or reversible error and nothing to justify the granting of the
Appellant's request for relief. For the reasons set forth above, the judgment of the Trial
Comi should be affirmed.
BY THE COURT:
13
CERTIFICATE OF SERVICE
This is to ce1iify that a true and correct copy of the foregoing has been served upon the
following:
Defense Attorney: Gregory J. Pagano, Esquire
1315 Walnut Street, 12111 Floor
Philadelphia, PA 19107
Type of Service: (X) First Class Mail ( ) Ce1iified Mail ( ) Personal Service
District Attorney: Lawrence J. Goode, Esquire
Assistant District Attorney
City of Philadelphia Office of the District Attorney
Three South Penn Square
Philadelphia, PA 19107
Type of Service: (X) Inter-Departmental Mail () Ce1iified Mail ()Personal Service
Date: l5/ q / ?-