Com. v. Davis, J. ( 2022 )

J-S38042-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAJUAN DEMAR DAVIS :
:
Appellant : No. 574 WDA 2021
Appeal from the Judgment of Sentence Entered May 4, 2021
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0002484-2018
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: MAY 20, 2022
Appellant, Jajuan Demar Davis, appeals from the aggregate judgment
of sentence of 18 to 36 months’ incarceration imposed by the Court of
Common Pleas of Fayette County following a jury trial at which he was
convicted of carrying a firearm without a license, possession of a controlled
substance, possession of a small amount of marijuana, and operating a vehicle
without a license plate light.1 After careful review, we affirm Appellant’s
convictions and judgment of sentence for carrying a firearm without a license,
possession of a small amount of marijuana, and operating a vehicle without a
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* Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S. § 6106(a)(1), 35 P.S. § 780-113 §§ (a)(16) and (31), and 75
Pa.C.S. § 4303(b), respectively.
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license plate light, but vacate his conviction and judgment of sentence for
possession of a controlled substance.
This case arises out of a traffic stop that occurred on September 22,
2017 at approximately 3:00 a.m. when a state trooper observed a vehicle
drive by with no light illuminating its license plate. Trial Court Opinion,
6/30/21, at 2; N.T. Suppression Hearing at 4-6, 11, 15-17. The trooper
followed the vehicle, which was being driven by Appellant, to confirm that the
license plate was not illuminated and after confirming this, had Appellant pull
over to the side of the roadway. Trial Court Opinion, 6/30/21, at 2; N.T.
Suppression Hearing at 5-7, 11, 15. The trooper approached the passenger
side of the vehicle and, when Appellant rolled down the window, the trooper
smelled a strong odor of alcohol and an odor of marijuana coming from the
vehicle. Trial Court Opinion, 6/30/21, at 2; N.T. Suppression Hearing at 6-7,
13, 17-18. The trooper asked Appellant to come out of the vehicle to perform
field sobriety tests and observed a handgun wedged between the driver’s seat
and the console when the Appellant exited the vehicle. Trial Court Opinion,
6/30/21, at 2; N.T. Suppression Hearing at 7-9, 20-22. The trooper then
frisked Appellant to determine that Appellant had no other weapon and
conducted field sobriety tests. Trial Court Opinion, 6/30/21, at 2; N.T.
Suppression Hearing at 8-9, 12, 14. Because the field sobriety tests showed
several indicators of impairment and Appellant smelled of alcohol even away
from the vehicle, the trooper placed the Appellant under arrest for driving
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under the influence (DUI). Trial Court Opinion, 6/30/21, at 2; N.T.
Suppression Hearing at 9-10, 14, 22-23. After arresting Appellant, the trooper
searched Appellant again and found a baggie of cocaine in his pants pocket.
Trial Court Opinion, 6/30/21, at 2; N.T. Suppression Hearing at 10, 14. The
trooper then searched the vehicle and found a small amount of marijuana
inside the vehicle and another baggie of cocaine in the gas cap. Trial Court
Opinion, 6/30/21, at 2; N.T. Suppression Hearing at 13-14.
On August 16, 2018, Appellant was charged with carrying a firearm
without a license, possession of a controlled substance with intent to deliver
(PWID), possession of a controlled substance, possession of a small amount
of marijuana, possession of drug paraphernalia, DUI, and the summary
offenses of driving on a suspended license and operating a vehicle without a
license plate light. Criminal Complaint. Appellant was arrested on those
charges on August 24, 2018. Docket Entries at 1. Appellant filed a motion to
suppress on September 28, 2020, in which he challenged the traffic stop and
asserted that police were required to obtain warrant before searching
Appellant’s vehicle. The trial court, on February 4, 2021, held a hearing on
the motion to suppress at which the trooper who stopped Appellant’s vehicle
testified, and denied the motion to suppress on March 17, 2021.
This case was tried to a jury from May 3 to May 4, 2021. On April 30,
2021, before the start of trial, Appellant filed a motion to dismiss all charges
with prejudice on the ground that the Commonwealth failed to bring him to
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trial within 365 days as required by Pa.R.Crim.P. 600. The trial court held a
hearing on this motion on May 3, 2021 before trial commenced and denied
the motion to dismiss. N.T. Rule 600 Hearing at 29.
On May 4, 2021, the jury convicted Appellant of carrying a firearm
without a license, possession of a controlled substance, and possession of a
small amount of marijuana, and acquitted him of possession of drug
paraphernalia and DUI. Jury Verdict Forms. The jury deadlocked on the PWID
charge and the trial court declared a mistrial on that charge. 5/4/21 Trial
Court Order.2 On the two summary offense charges, the trial court found
Appellant guilty of operating a vehicle without a license plate light and
acquitted Appellant of driving on a suspended license. Trial Court Non-Jury
Verdict Orders. The trial court sentenced Appellant to 18 to 36 months’
imprisonment for the carrying a firearm without a license conviction and a
concurrent term of 6 to 12 months’ imprisonment for possession of a
controlled substance and imposed no further penalty for possession of a small
amount of marijuana and operating a vehicle without a license plate light.
Sentencing Orders. This timely appeal followed.
Appellant presents the following two issues for our review:
1. Did the trial court commit an error of law and/or abuse its
discretion in denying Appellant's Motion to Suppress?
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2 The Commonwealth subsequently entered a nolle prosequi with respect to
the PWID charge. 5/17/21 Nolle Prosequi Order.
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2. Did the trial court commit an error of law and/or abuse its
discretion in denying Appellant's Rule 600 Motion?
Appellant’s Brief at 11 (suggested answers omitted). We address Appellant’s
second issue first.
Pennsylvania Rule of Criminal Procedure 600 requires that the
Commonwealth bring a defendant to trial within 365 days from the date on
which the criminal complaint was filed. Pa.R.Crim.P. 600(A)(2)(a);
Commonwealth v. Barbour, 189 A.3d 944, 947 (Pa. 2018). Rule 600
provides that in determining whether the 365-day period has expired, “periods
of delay at any stage of the proceedings caused by the Commonwealth when
the Commonwealth has failed to exercise due diligence shall be included in
the computation of the time within which trial must commence” and that
“[a]ny other periods of delay shall be excluded from the computation.”
Pa.R.Crim.P. 600(C)(1); see also Commonwealth v. Harth, 252 A.3d 600,
615 (Pa. 2021).
If the defendant is not brought to trial within that period, he may file a
motion at any time before trial requesting dismissal of the charges against
him with prejudice. Pa.R.Crim.P. 600(D)(1); Harth, 252 A.3d at 615. When
such a motion is filed, the trial court is required to conduct a hearing and
identify each period of delay and attribute it to the responsible party to adjust
the 365-day period and determine the date by which the defendant must be
tried. Pa.R.Crim.P. 600(D)(1); Barbour, 189 A.3d at 947. If the trial court
finds that the defendant was not brought to trial within Rule 600’s time limit,
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it must dismiss the charges and discharge the defendant. Harth, 252 A.3d at
615.
For periods of delay not caused by the defendant, the burden is on the
Commonwealth to show by a preponderance of the evidence that it acted with
due diligence to bring the defendant to trial within Rule 600’s time limit.
Harth, 252 A.3d at 617-18; Commonwealth v. Thompson, 136 A.3d 178,
182-83 (Pa. Super. 2016). Where the record shows that the Commonwealth
had not complied with its discovery obligations during periods of judicial delay,
those periods of judicial delay are not excludable from the Rule 600
calculation. Harth, 252 A.3d at 619-22.
We review a trial court’s denial of a Rule 600 motion to dismiss for abuse
of discretion. Commonwealth v. Leaner, 202 A.3d 749, 765-66 (Pa. Super.
2019); Commonwealth v. Bethea, 185 A.3d 364, 370 (Pa. Super. 2018);
Thompson, 136 A.3d at 182. In addition, when considering whether
dismissal is required under Rule 600,
this Court is not permitted to ignore the dual purpose behind Rule
[600]. Rule [600] serves two equally important functions: (1) the
protection of the accused’s speedy trial rights, and (2) the
protection of society. In determining whether an accused’s right
to a speedy trial has been violated, consideration must be given
to society’s right to effective prosecution of criminal cases, both
to restrain those guilty of crime and to deter those contemplating
it. However, the administrative mandate of Rule [600] was not
designed to insulate the criminally accused from good faith
prosecution delayed through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental speedy trial
rights of an accused, Rule [600] must be construed in a manner
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consistent with society’s right to punish and deter crime. In
considering [these] matters ..., courts must carefully factor into
the ultimate equation not only the prerogatives of the individual
accused, but the collective right of the community to vigorous law
enforcement as well.
Bethea, 185 A.3d at 370 (quoting Commonwealth v. Wendel, 165 A.3d
952 (Pa. Super. 2017)) (brackets and ellipsis in original) (emphasis omitted).
Here, the criminal complaint was filed on August 16, 2018 and
Appellant’s trial began on May 3, 2021, 991 days after the criminal complaint
was filed. The trial court found, however, that a total of 639 days, consisting
of 35 days in 2018, 116 days in 2019 and all of 2020 and of 2021 up to the
May 3, 2021 date of trial were excludable time and that the commencement
of his trial was therefore within Rule 600’s time limit. Trial Court Opinion,
6/30/21, at 5-7. The trial court’s findings that at least 630 of those days of
delay were excludable are supported by the record.
The record shows that Appellant caused a delay of 26 days in 2018,
from November 14, 2018 when he failed to appear for his preliminary hearing
until he was apprehended on a bench warrant on December 10, 2018 and
again released on bail. N.T. Rule 600 Hearing at 10, 21-22, 25; 11/19/18
Bench Warrant; 12/10/18 Trial Court Order.3 The record shows that on
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3 The trial court also found that 8 days of delay from August 16, 2018 to
August 24, 2018 in arresting Appellant were excludable. Trial Court Opinion,
6/30/21, at 5-6. We need not decide whether this time was excludable
because the other days of excludable time bring Appellant’s trial within the
Rule 600 time limit.
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September 6, 2019, Appellant requested a continuance until February 7, 2020,
resulting in 116 days of excludable time in 2019 from the Rule 600 time
calculation. N.T. Rule 600 Hearing at 5, 11; 9/6/19 Continuance Request.
The record also shows that all time in 2020, 366 days, and all time in
2021, 122 days, was properly excluded by the trial court. All of the delay in
2020 up to February 7, 2020 was caused by Appellant’s September 2019
continuance request. N.T. Rule 600 Hearing at 5, 11; 9/6/19 Continuance
Request. On February 3, 2020, before this continuance ended, Appellant
requested an additional 90-day continuance. N.T. Rule 600 Hearing at 12-
13; 2/3/19 Continuance Request. Before that second continuance ended, the
Pennsylvania Supreme Court issued an order on March 18, 2020, declaring a
judicial emergency in light of the COVID-19 pandemic, which closed the courts
for most functions and “DIRECTED that Rule of Criminal Procedure 600(C) is
hereby SUSPENDED in all judicial districts during the period of the statewide
judicial emergency” and “that the time period of the statewide judicial
emergency SHALL BE EXCLUDED from the time calculation under Rule
600(C).” In re General Statewide Judicial Emergency, 228 A.3d 1283,
1285-87 (Pa. 2020) (emphasis in original). The statewide judicial emergency
and suspension of Rule 600 was extended to and ended June 1, 2020.4 After
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4See In re General Statewide Judicial Emergency, 229 A.3d 229 (Pa.
2020); In re General Statewide Judicial Emergency, 230 A.3d 1015 (Pa.
2020); In re General Statewide Judicial Emergency, 234 A.3d 408 (Pa.
2020).
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the statewide judicial emergency was lifted, however, jury trials in Fayette
County were restricted through September 2020 to cases where the defendant
was incarcerated pending trial and because Appellant was out on bail, his jury
trial could not be held during this time period. N.T. Rule 600 Hearing at 13-
15, 24; Trial Court Opinion, 6/30/21, at 5-6.
In September 2020, before this excluded period ended, Appellant filed
a motion to suppress the Commonwealth’s evidence against him. N.T. Rule
600 Hearing at 16; Trial Court Opinion, 6/30/21, at 5-6. A hearing on that
motion, originally scheduled for December 2020, was continued to February
4, 2021 as a result of Appellant’s counsel’s COVID-19 exposure. Trial Court
Opinion, 6/30/21, at 6; 12/22/20 Trial Court Order. Following that hearing,
the trial court denied the suppression motion on March 17, 2021. N.T. Rule
600 Hearing at 16; Trial Court Opinion, 6/30/21, at 5. Time between the
defendant’s filing of a motion to suppress and the court’s ruling on the motion
is excluded from the calculation of the Rule 600 time limit unless the
Commonwealth did not exercise due diligence in responding to the motion or
delayed the resolution of the defendant’s motion. Commonwealth v. Hill,
736 A.2d 578, 587-88 (Pa. 1999); Commonwealth v. Cook, 865 A.2d 869,
875-76 (Pa. Super. 2004). There is no claim that the Commonwealth failed
to respond diligently to the motion to suppress or that it caused any delay in
the resolution of the motion. To the contrary, the delay in the hearing on the
motion was caused by Appellant’s counsel’s unavailability.
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Because Fayette County commences jury trials only in the first full week
of every month, the earliest possible date that Appellant’s trial could begin
after denial of his motion to suppress was April 5, 2021. N.T. Rule 600 Hearing
at 5-6, 16; Trial Court Opinion, 6/30/21, at 6. Appellant, however, failed to
appear for trial on April 5, 2021, and a bench warrant again was issued. N.T.
Rule 600 Hearing at 16; 4/5/21 Bench Warrant; Trial Court Opinion, 6/30/21,
at 5. Although the bench warrant was lifted on April 7, 2021, at that point,
as a result of Appellant’s failure to appear, other cases had been assigned to
all trial courtrooms and there were no courtrooms available for trial until the
May 2021 trial term, which began May 3, 2021. N.T. Rule 600 Hearing at 6,
16-18; 4/7/21 Trial Court Order; Trial Court Opinion, 6/30/21, at 5-6.
The record does not show any lack of diligence by the Commonwealth
or that it was not prepared to go to trial during the periods of judicial delay
that the trial court excluded. The only period where the record shows the
Commonwealth was not prepared to proceed or sought delay was in the period
from September 5, 2018 to November 14, 2018, when the Commonwealth
sought a continuance of the preliminary hearing, and that period was not
excluded by the trial court in its Rule 600 calculation. N.T. Rule 600 Hearing
at 25; Trial Court Opinion, 6/30/21, at 6. Appellant did not argue before the
trial court that the Commonwealth had failed to comply with its discovery
obligations or failed to act with diligence to move the case to trial. Rather,
Appellant argued that various periods of time between June and September
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2020 should not have been excluded from the Rule 600 calculation because
Appellant allegedly could have been tried in those time periods. N.T. Rule
600 Hearing at 25-29; Appellant’s Rule 600 Motion to Dismiss ¶14. The trial
court, however, found that Appellant could not be tried during any of those
times because no jury trials were held in June 2020 and jury trials in July to
September 2020 were limited to incarcerated defendants. N.T. Rule 600
Hearing at 13-15, 24; Trial Court Opinion, 6/30/21, at 5-6.
Because at least 630 of the 991 days between the filing of the criminal
complaint and Appellant’s trial are excludable time, no more than 361 days of
the 365-day period within which trial must commence passed before
Appellant’s May 3, 2021 trial. The trial court therefore did not abuse its
discretion in concluding that Appellant was brought to trial before Rule 600’s
time limit expired and its denial of Appellant’s Rule 600 motion must be
affirmed.
In the other issue that he has raised, Appellant argues that the trial
court erred in denying his motion to suppress because the trooper lacked
reasonable suspicion or probable cause for the traffic stop and because no
exigent circumstances were shown that would permit the warrantless search
of his vehicle. We conclude that the trial court correctly held that the traffic
stop did not violate Appellant’s constitutional rights and that it did not err in
denying the motion to suppress the gun, the cocaine seized from Appellant’s
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person, and the marijuana, but agree with Appellant that the trial court erred
in denying his motion to suppress the cocaine found in the vehicle’s gas cap.
Our standard of review on this issue is well-settled:
Our standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is whether the factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. When reviewing the ruling of a
suppression court, we must consider only the evidence of the
prosecution and so much of the evidence of the defense as
remains uncontradicted when read in the context of the record.
Where the record supports the findings of the suppression court,
we are bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Heidelberg, 267 A.3d 492, 498-99 (Pa. Super. 2021)
(en banc) (quoting Commonwealth v. Bumbarger, 231 A.3d 10 (Pa. Super.
2020)).
A law enforcement officer has authority to stop a motor vehicle where
he has reasonable suspicion that the vehicle or driver is in violation of the
Vehicle Code and further investigation is needed to determine that a violation
has occurred or where he has probable cause to believe that the vehicle or
driver is in violation of the Vehicle Code. 75 Pa.C.S. § 6308(b);
Commonwealth v. Shaw, 246 A.3d 879, 883-84 (Pa. Super. 2021);
Commonwealth v. Salter, 121 A.3d 987, 992-93 (Pa. Super. 2015);
Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en
banc). Here, the evidence at the suppression hearing showed that the trooper
had probable cause to believe that Appellant was in violation of the Vehicle
Code.
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Section 4303 of the Vehicle Code provides that “[e]very vehicle
operated on a highway shall be equipped with a rear lighting system
including, but not limited to, rear lamps, rear reflectors, stop lamps and
license plate light, in conformance with regulations of the
department.” 75 Pa.C.S. § 4303(b) (emphasis added). The applicable
department regulations provide that this license plate light “shall emit white
light and make the registration plate visible from [a] distance of 50 feet to the
rear of the vehicle.” 67 Pa.Code § 175.66(k); Salter, 121 A.3d at 993(brackets in original). The trooper testified that there did not appear to be
any light on the license plate of Appellant’s vehicle when Appellant passed
through the intersection in front of him and that before he stopped Appellant,
he followed Appellant’s vehicle and confirmed that the license plate was not
illuminated by turning off his headlights. N.T. Suppression Hearing at 5-6,
11, 15-17. That testimony is sufficient to establish probable cause for the
traffic stop and for the trooper to approach Appellant’s vehicle and
communicate with him. Shaw, 246 A.3d at 884-85; Salter, 121 A.3d at 993-
94.
The only action other than the traffic stop that Appellant contends
violated his rights under the Fourth Amendment to the United States
Constitution or Article I, Section 8 of the Pennsylvania Constitution is the
warrantless search of his vehicle after he was arrested. N.T. Suppression
Hearing at 12-13. Appellant specifically stated at the suppression hearing that
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he was not challenging the legality of the trooper’s request that Appellant
perform sobriety tests or the DUI arrest. Id. at 13. Neither the gun nor the
cocaine on Appellant’s person were found in the search of the vehicle that
Appellant has challenged.
Rather, the trooper testified that he saw the gun in plain view when
Appellant got out of the vehicle to perform field sobriety tests and the trial
court found that the gun was in plain view. N.T. Suppression Hearing at 7-9,
20-22; Trial Court Opinion, 3/17/21, at 3; Trial Court Opinion, 6/30/21, at 3-
4. The plain view doctrine is an established exception to the warrant
requirement and applies where an object in a vehicle is visible to a law
enforcement officer from a lawful vantage point outside the vehicle.
Heidelberg, 267 A.3d at 504; Commonwealth v. Lutz, 270 A.3d 571, 577
(Pa. Super. 2022). “There can be no reasonable expectation of privacy in an
object that is in plain view.” Heidelberg, 267 A.3d at 504 (quoting
Bumbarger). Appellant does not argue that the requirements of the plain
view doctrine were not satisfied with respect to the gun.
The cocaine on Appellant’s person was found in the trooper’s search of
Appellant following the DUI arrest. N.T. Suppression Hearing at 10, 14. The
search incident to arrest exception to the warrant requirement permits
arresting officers to search an arrestee’s person as a matter of course without
a determination of whether such search is needed to protect officer safety or
evidence in that case. Lutz, 270 A.3d at 579-80; Commonwealth v.
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Yorgey, 188 A.3d 1190, 1198 (Pa. Super. 2018) (en banc); Commonwealth
v. Simonson, 148 A.3d 792, 799 (Pa. Super. 2016). Because Appellant did
not contest the lawfulness of his DUI arrest, the search that found the cocaine
on Appellant’s person was therefore constitutionally permissible.
The denial of Appellant’s motion to suppress the marijuana and cocaine
found in Appellant’s vehicle, however, cannot be sustained on these bases.
Neither was in plain view; both were seized in the search of the vehicle that
Appellant has challenged. Although Appellant had been arrested, the vehicle
search cannot be upheld as a search incident to arrest because the vehicle
was no longer within Appellant’s control. Lutz, 270 A.3d at 580. The trial
court held that the search was constitutionally permissible because the trooper
had probable cause to believe that Appellant was engaged in criminal activity
and that even if the search was improper, exclusion of these items was not
required because they would have been discovered in an inventory search of
the vehicle. Trial Court Opinion, 6/30/21, at 4; Trial Court Opinion, 3/17/21,
at 3.
We agree with Appellant that the warrantless search of Appellant’s
vehicle violated his rights under Article I, Section 8 of the Pennsylvania
Constitution. In Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020),
our Supreme Court held that under Article I, Section 8, searches of
automobiles are not automatically exempt from the requirement that police
obtain a warrant and that a warrantless search of a vehicle is unconstitutional,
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even though the police have probable cause, unless exigent circumstances or
another exception to the warrant requirement is shown. Id. at 180-81, 207-
08. The Commonwealth did not show and the trial court did not find any
exigent circumstances that justified the search of Appellant’s vehicle or that
any other exception to the warrant requirement applied to the search of the
car and seizure of these two items.
Even where a search or seizure violates Article I, Section 8, however,
suppression of evidence is not required where the evidence would inevitably
have been obtained through lawful means without the unconstitutional search
or seizure. Heidelberg, 267 A.3d at 505; Commonwealth v. Bailey, 986
A.2d 860, 862 (Pa. Super. 2009). Under this “inevitable discovery” doctrine,
suppression is not required where the Commonwealth shows that the vehicle
was subject to towing and was going to be towed after the traffic stop and
that the evidence in question would have been obtained in a constitutionally
permissible inventory search. Heidelberg, 267 A.3d at 505-06; Bailey, 986
A.2d at 863. Here, the trooper testified that Appellant’s vehicle had to be
towed after his DUI arrest because it was parked in a lane of travel and that
an inventory search would have been conducted and the trial court found that
testimony credible. N.T. Suppression Hearing at 9, 22-25; Trial Court Opinion,
3/17/21, at 3. The record showed that the marijuana was found inside the
vehicle and that it therefore would have been found in the inventory search.
N.T. Suppression Hearing at 13-14. The trial court therefore properly denied
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Appellant’s motion to suppress with respect to the marijuana on inevitable
discovery grounds.5
We cannot, however, affirm the trial court’s failure to suppress the
cocaine found the vehicle’s gas cap on this basis. The trooper testified that
the gas cap would not have been searched in an inventory search. N.T.
Suppression Hearing at 25. Because the lawful inventory search would not
have found it, the second baggie of cocaine would not have inevitably been
discovered by lawful means. The trial court therefore erred in denying
Appellant’s suppression motion with respect to the second baggie of cocaine.
For the reasons set forth above, we conclude that the trial court did not
err in denying Appellant’s motion to dismiss pursuant to Rule 600 or in denying
suppression of the handgun and marijuana that were in his vehicle and the
cocaine found on his person, but that it erred in denying his motion to suppress
the cocaine found in the search of his vehicle. Because there was no error
with respect to any evidence relevant to the firearms, marijuana or summary
offense charges against Appellant, we affirm Appellant’s firearms, marijuana
and summary offense convictions and Appellant’s judgment of sentence of
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5 The record also shows that the firearm would have been found and seized in
the inventory search. N.T. Suppression Hearing at 7-9, 22-24. Therefore,
even if suppression of the gun were not denied on plain view grounds, we
would affirm the denial of Appellant’s suppression motion with respect to the
gun on inevitable discovery grounds.
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sentence for those convictions.6 Because the cocaine that the trial court
erroneously failed to exclude was relevant to the possession of a controlled
substance charge, we vacate his possession of a controlled substance
conviction and judgment of sentence and remand this case to the trial court
for a new trial on that charge at which the cocaine found in the gas cap of
Appellant’s vehicle shall not be admitted in evidence.
Judgment of sentence for carrying a firearm without a license,
possession of a small amount of marijuana, and operating a vehicle without a
license plate light affirmed, judgment of sentence for possession of a
controlled substance vacated. Case remanded with instructions to grant
Appellant’s motion to suppress with respect to the cocaine found in the search
of Appellant’s vehicle and for a new trial on the possession of a controlled
substance charge. Jurisdiction relinquished.
President Judge Emeritus Bender Joins the memorandum.
Judge Dubow files a Concurring Memorandum.
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6 There is no need to vacate Appellant’s judgment of sentence for any of these
convictions for resentencing because his sentence for the vacated conviction
is shorter than and concurrent to his sentence for the carrying a firearm
without a license conviction that we have affirmed and there is therefore no
disturbance of the trial court’s sentencing scheme.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/20/2022
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