J-A21024-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

MARQUESE COLLINS

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1574 EDA 2022

Appeal from the Order Entered June 7, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0000391-2021

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 30, 2023

The Commonwealth appeals from the June 7, 2022 Order entered in the 

Philadelphia Court of Common Pleas that granted Appellee Marquese Collins’

motion to suppress evidence seized without a warrant during a traffic stop. 

After careful review, we affirm.

A.

The relevant factual and procedural history is as follows. On January 

24, 2020, at approximately 9:00 PM, Philadelphia Police Officer Anthony 

Mooney was on patrol with his partner near the 2900 block of 22nd Street.

They observed Appellee driving a Dodge sedan accompanied by a passenger, 

D'Angelo Ray Thomas. The vehicle had a Pennsylvania registration sticker, 

but a New Jersey license plate. Officer Mooney ran the license plate and found 

that it was registered to a Cadillac, not a Dodge. The officers initiated a traffic 

stop to investigate these registration anomalies.
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Upon request, Appellee produced his driver’s license but was unable to 

provide his registration papers, despite looking in several places around the 

driver’s seat.

1 Officer Mooney, suspecting that the vehicle may have been 

stolen, asked Appellee to step out of the car and placed him in the back of the

police car, leaving Mr. Thomas in the car. Officer Mooney then searched under

the driver’s seat and in the door pocket, claiming to be searching for evidence 

of ownership.

2

Officer Mooney next stepped out of the vehicle and looked through the 

rear driver’s side window from outside the car with his flashlight. He saw an 

infant in a car seat and a firearm laying on the floor between the driver’s seat 

and the back seat. Officer Mooney’s partner then removed Mr. Thomas from 

the vehicle. “[W]ithin the next couple of minutes,” Officer Mooney recovered 

a firearm. N.T. Hr’g, 6/7/22, at 13. After calling a detective, the officers 

arrested Appellee. The infant remained in the vehicle until Appellee’s parents 

arrived and the officers released her and Appellee’s vehicle into their care. 

On January 25, 2020, the Commonwealth charged Appellee with 

violations of the Uniform Firearms Act.

3 On June 7, 2022, prior to the start of 

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1 At some point during the stop, Appellant informed the officers that he had 

recently purchased the vehicle. N.T. Hrg., 6/7/22, at 28.

2 The Commonwealth conceded that Officer Mooney’s initial search of the front 

of the car was unlawful. N.T. Hr’g at 38.

3 18 Pa.C.S. §§ 6106 and 6108. The Commonwealth did not file “any charges 

against [Appellant] related to a stolen vehicle.” N.T. Hr’g. at 24.
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his waiver trial, Appellee moved to suppress the firearm. The court 

immediately proceeded to a suppression hearing.

Officer Mooney was the sole witness at the suppression hearing. He 

testified that when he spoke with Appellee, Appellee appeared “extremely 

nervous,” but he did not describe any other behavior to support his conclusion 

that Appellee was nervous. N.T. Hr’g at 10. Officer Mooney further testified 

on cross-examination that Appellee was cooperative and compliant, and even 

seemed surprised that officers found a firearm. 

The court granted the Motion to Suppress. The Commonwealth filed a 

timely appeal pursuant to Pa.R.A.P. 311(d).4 Both the Commonwealth and 

the suppression court complied with Pa.R.A.P. 1925.

The Commonwealth raises the following issue for our review:

Did the lower court erroneously suppress a gun police seized after 

observing it in plain view, and exigent circumstances existed?

Commonwealth’s Br. at 4.

B.

Our review of a grant of a suppression motion is limited to determining 

“whether the record supports the trial court’s factual findings and whether the 

legal conclusions drawn from those facts are correct.” Commonwealth v. 

Carmenates, 266 A.3d 1117, 1122-23 (Pa. Super. 2021) (en banc) (citation 

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4 Rule 311(d) provides that “the Commonwealth may take an appeal as of 

right from an order that does not end the entire case where the 

Commonwealth certifies in the notice of appeal that the order will terminate 

or substantially handicap the prosecution.” Pa.R.A.P. 311(d).
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omitted). We defer to the suppression court’s factual findings if they are 

supported by the record. Commonwealth v. Batista, 219 A.3d 1199, 1206 

(Pa. Super. 2019). However, we give no such deference to the suppression 

court’s legal conclusions and, instead, review them de novo. Id. An appellate 

court can affirm a valid judgment for any reason supported by the record. 

Commonwealth v. Hamlett, 234 A.3d 486, 488 (Pa. 2020).

“We may only consider evidence presented at the suppression hearing.” 

Carmenates, 266 A.3d at 1123 (citation omitted). Additionally, “[b]ecause 

the defendant prevailed on this issue before the suppression court, we 

consider only the defendant’s evidence and so much of the Commonwealth’s 

evidence as remains uncontradicted when read in the context of the 

suppression record as a whole.” Id. (citation omitted).

Once a defendant files a motion to suppress, “it is the Commonwealth’s 

burden to prove, by a preponderance of the evidence, that the challenged 

evidence was not obtained in violation of the defendant’s rights.” 

Commonwealth v. Wallace, 42 A.3d 1040, 1047–48 (Pa. 2012) (citing 

Pa.R.Crim.P. 581(H)).

In his Motion to Suppress, Appellant challenged the search of the vehicle

and the legality of his arrest. “Both the Fourth Amendment of the United 

States Constitution and Article I, Section 8 of the Pennsylvania Constitution 

guarantee individuals freedom from unreasonable searches and seizures.” 

Commonwealth v. Heidelberg, 267 A.3d 492, 502 (Pa. Super. 2021), 
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appeal denied, 279 A.3d 38 (Pa. 2022) (citation omitted). As a general rule, 

“a warrant stating probable cause is required before a police officer may 

search for or seize evidence[,]” unless one of “a few clearly delineated 

exceptions” applies. Id. (citations omitted)

There are two exceptions to the warrant requirement that the 

Commonwealth raises in its appeal: the plain view exception and, in the 

alternative, the automobile exception.

“The plain view doctrine allows the admission of evidence seized without 

a warrant when: (1) an 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.” Commonwealth v. 

Davis, 287 A.3d 467, 471 (Pa. Super. 2022) (emphasis omitted). All three 

prongs must be satisfied to support a warrantless seizure based on the plain 

view doctrine. Commonwealth v. Miller, 56 A.3d 424, 431 (Pa. Super. 

2012)

Here, we confine our review to the second prong: whether it is 

immediately apparent that the object is incriminating. In determining whether 

the incriminating nature of an object is immediately apparent to a police 

officer, courts consider the totality of the circumstances. Commonwealth v. 

Smith, 285 A.3d 328, 333 (Pa. Super. 2022).

“An officer can never be one hundred percent certain that [an object] in 

plain view is incriminating, but his belief must be supported by probable 
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cause.” Id. (citation omitted). Probable cause, in turn, “requires that the 

facts available to the officer would warrant a [person] of reasonable caution 

in the belief[] that certain items may be contraband or stolen property or 

useful as evidence of a crime.” Id. (citation omitted). However, “mere 

suspicion or conjecture is insufficient” to establish probable cause. 

Commonwealth v. Mazzochetti, 445 A.2d 1214, 1217 (Pa. Super. 1982). 

Absent other indicia of criminality, possession of a firearm is insufficient 

to establish probable cause that the defendant possesses the firearm illegally. 

See Commonwealth v. Hicks, 208 A.3d 916, 936 (Pa. 2019) (holding that 

mere possession of a firearm is insufficient to establish reasonable suspicion). 

Rather, a properly licensed individual may carry a firearm “in public, openly 

or concealed, within a vehicle or without, throughout every municipality in 

Pennsylvania.” Id. at 926. Thus, the Commonwealth “cannot simply point to

[carrying a firearm,] conduct in which hundreds of thousands of citizens 

lawfully may engage, then deem that conduct to be presumptively criminal.” 

Id. at 940.

C.

The Commonwealth first argues that the suppression court erroneously 

granted the Motion to Suppress based on its finding that the firearm was not 

in plain view. Commonwealth’s Br. at 8. Specifically, the Commonwealth 

maintains that all three prongs of the plain view test were met: (1) Officer 

Mooney viewed the firearm from a lawful vantage point (from outside the car)
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after a lawful stop; (2) police had probable cause to believe that Appellee stole 

the car using the firearm; and (3) when the first and second prongs are met, 

“the lack of advance notice and opportunity to obtain a warrant provide[d] the 

officers a lawful right of access to seize the [firearm].” Id. at 10-12 (quoting 

Commonwealth v. Brown, 23 A.3d 544, 557 (Pa. Super. 2011) (en banc)).

As we find it determinative of the issue on appeal, we focus on the 

Commonwealth’s argument regarding the second prong of the plain view test.5

The Commonwealth argues that Officer Mooney had probable cause to believe 

the firearm was contraband because the totality of the circumstances 

indicated that Appellee had used the firearm to steal the vehicle. 

Commonwealth’s Br. at 11. In support, the Commonwealth notes that (1) 

Officer Mooney believed the vehicle might have been stolen, (2) Appellee was 

“extremely nervous,” and (3) the firearm was “haphazardly” tossed onto the 

floor. Id. It posits that these facts, taken together, “support the conclusion 

that [the firearm] had likely been used to help accomplish the theft of the 

car[.]” Id. 

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5 The trial court concludes that the Commonwealth failed to meet the first 

prong because the officer moved the seat and thus, the gun was not in plain 

view. The record, however, does not support this factual finding of the trial 

court. This does not, however, change our decision to affirm the decision of 

the trial court because as discussed above, the evidence does not support the 

second prong of the test and we can affirm a trial court on any basis. 

Hamlett, 234 A.3d at 488.
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In addressing this argument, the trial court observed that the officers 

“had no knowledge or reason to suspect criminal activity due to the presence 

of a firearm.” Trial Ct. Op., at 7. Our review of the record supports the court’s 

conclusion.

First, even if Appellee’s inability to locate the vehicle’s documents gave

the officers reason to suspect that the vehicle had been stolen, the officer’s 

mere speculation that the car might have been stolen does not establish 

probable cause that the firearm in the vehicle was used in a crime.

Mazzochetti, 445 A.2d at 1217. 6

Next, while Officer Mooney baldly testified that Appellee was “extremely 

nervous,” this Court has recognized that nervousness is expected during 

encounters with police. See, e.g., Commonwealth v. Cartagena, 63 A.3d 

294, 305–06 (Pa. Super. 2013) (“It is the rare person who is not agitated to 

some extent when stopped by police, even if the driver is a law-abiding citizen. 

. . .”). Here, Officer Mooney’s characterization of Appellee’s understandable 

reaction to being stopped does not support the Commonwealth’s implication 

that Appellee’s nervousness was sufficient to establish the officer had probable 

cause to believe that Appellee stole the vehicle and stole it using a firearm. 

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6 We reiterate that the officers released Appellee’s vehicle to his parents and 

that the Commonwealth did not file any charges related to a theft of the 

vehicle.
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Finally, the Commonwealth’s conclusion that the firearm was 

“haphazardly tossed” into the car is not supported by the record; rather, 

Officer Mooney merely testified that he found the firearm on the floor. N.T. 

Hr’g at 13. Finding a firearm in a vehicle does not itself indicate that it was 

used in a crime.

Considering the totality of the circumstances as presented at the 

suppression hearing, i.e., the mere presence of a firearm combined with mere 

speculation that a crime occurred and that that crime involved a firearm, the 

Commonwealth has failed to demonstrate probable cause sufficient to 

establish the second prong of the plain view doctrine.

Thus, the Commonwealth’s argument fails to garner relief.7

D.

In the alternative, the Commonwealth asserts that exigent 

circumstances existed to allow police to search the vehicle and seize the 

firearm without a warrant. Commonwealth’s Br. at 12. The Commonwealth 

relies upon Pennsylvania’s limited automobile exception, which requires police 

to have both probable cause and exigent circumstances to conduct a 

warrantless search of a vehicle. Commonwealth v. Alexander, 243 A.3d 

177, 207 (Pa. 2020). 

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7 Because the Commonwealth failed to establish the second prong of the plain 

view test, we need not address the other prongs. 
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Exigent circumstances exist when there is a “compelling need for official 

action and no time to secure a warrant,” and can include situations where 

there is a risk of harm to either officers or bystanders. Commonwealth v. 

Trahey, 228 A.3d 520, 530 (Pa. 2020) (citation omitted); Commonwealth 

v. Stewart, 740 A.2d 712, 717 (Pa. Super. 1999). See also, 

Commonwealth v. Demshock, 854 A.2d 553, 557 (Pa. Super. 2004)

(finding no exigency where police observed illegal activity from outside a 

house because police had time to obtain a warrant before occupants noticed 

them and destroyed evidence). Courts determine exigency based on the 

totality of the circumstances. Alexander, 243 A.3d at 208.

Here, the Commonwealth maintains that exigent circumstances existed 

because it permitted Appellee’s relatives to drive the car away after the traffic 

stop and, if the police did not seize the gun, the relatives would have driven 

the car away while the gun remained in close proximity to the child sitting in 

the car seat. In other words, the Commonwealth argues that, if the police did 

not seize the gun during the traffic stop, “the gun could conceivably have been 

triggered when the car experienced the natural bumps and jostles of traffic 

and potholes,” thus endangering the child in the car seat. Commonwealth’s 

Br. at 13. It also contends that “there was an inherent risk in leaving the very 

young, unsupervised child alone in the back seat with a gun present.” Id. 

Notably, the Commonwealth does not argue that officers lacked time to get a 

warrant.
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In addressing the Commonwealth’s argument, the trial court observed 

that the Commonwealth “has wholly ignored the physical limitations 

associated with the infancy of the child, and the fact that the child was 

completely restrained to a car seat during the entirety of the incident.” Trial 

Ct. Op. at 6. The court, thus, reasonably inferred that the child’s presence

was not an exigency that supports the warrantless seizure of the firearm under 

the facts of this case. 

We agree that the Commonwealth did not establish, as a matter of fact 

or law, that there was an exigency present that precluded police from 

obtaining a warrant prior to seizing the firearm. Accordingly, this argument 

merits no relief.

E.

In sum, we conclude that the trial court properly suppressed the 

evidence of the firearm since its seizure did not meet each element of the 

plain view doctrine and exigent circumstances did not exist to justify the 

warrantless search and seizure of the vehicle or the firearm. Accordingly, we 

affirm the order granting the suppression motion.

Order affirmed. 

President Judge Emeritus Bender joins the memorandum.

Judge Nichols concurs in result.
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Date: 11/30/2023