J-A06009-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JIMMY MONTALMONT,

Appellant No. 1689 EDA 2011

Appeal from the Judgment of Sentence Entered May 27, 2011

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s):

CP-51-CR-0007754-2009

CP-51-CR-0007755-2009

BEFORE: BENDER, P.J.E., PANELLA, J., and LAZARUS, J. 

MEMORANDUM BY BENDER, P.J.E. FILED OCTOBER 15, 2014

Appellant, Jimmy Montalmont, appeals from the judgment of sentence 

of two to four years’ incarceration, followed by three years’ probation, 

imposed after he was convicted, following a non-jury trial, of robbery, 

criminal conspiracy to commit robbery, theft by unlawful taking, receiving 

stolen property, possessing an instrument of crime (PIC), terroristic threats, 

and simple assault. Appellant argues that the court erred by denying his 

pretrial motion to suppress evidence obtained during a search of his cell 

phone. We are compelled to agree; therefore, we vacate Appellant’s 

judgment of sentence and remand for a new trial.

Appellant was arrested and charged with various offenses in February 

of 2011 based on his involvement in robberies of pizza deliverymen. Prior to 

trial, Appellant filed a motion to suppress, which the court denied. After a 
J-A06009-14

- 2 -

non-jury trial was conducted on May 27, 2011, Appellant was found guilty of 

the above-stated crimes. The court sentenced him that same day to an 

aggregate term of two to four years’ imprisonment, followed by three years’ 

probation. Appellant filed a timely notice of appeal. On September 2, 2011, 

he timely complied with the court’s order to file a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). For some 

reason not apparent in the record, the trial court did not issue a Rule 

1925(a) opinion until May 15, 2013. 

While Appellant’s appeal was pending, he filed with this Court a pro se 

request for new counsel to represent him on appeal, claiming that his 

current counsel had been disbarred. After confirming that fact, this Court 

remanded Appellant’s case and the trial court appointed a new attorney to 

represent Appellant. That attorney filed a brief on Appellant’s behalf raising 

one issue for our review: “Whether the court erred in failing to grant the 

motion to suppress the physical evidence?” Appellant’s Brief at 4.1

We begin by noting our standard of review of an order denying a 

motion to suppress evidence:

In reviewing a trial court's denial of a motion to suppress, we 

determine whether the record supports its factual findings. We 

“consider only the evidence of the prosecution and so much of 

the evidence for the defense as remains uncontradicted when 

read in the context of the record as a whole. We are bound by 

____________________________________________

1 The Commonwealth had until September 18, 2014, to file a new appellee’s 

brief. No brief was filed as of that date. However, we will consider the 

arguments presented in the Commonwealth’s original brief filed on February 

7, 2014.
J-A06009-14

- 3 -

the suppression court's findings if they are supported by the 

record, and may only reverse the suppression court if the legal 

conclusions drawn from the findings are in error.” In suppression 

hearings, “[t]he Commonwealth shall have the burden of going 

forward with the evidence and of establishing that challenged 

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

Commonwealth v. Thompson, 939 A.2d 371, 375 (Pa. Super. 2007) 

(citations omitted). 

Here, in Appellant’s motion to suppress, he averred that police 

unlawfully detained him and conducted a warrantless search of a cell phone 

discovered in his possession. A hearing was conducted on Appellant’s 

motion, at which the following pertinent evidence was presented. Officer 

Qasim Edwards testified that in February of 2009, he was investigating a 

string of robberies involving pizza deliverymen. N.T. Suppression Hearing, 

5/16/11, at 7-8. As part of the investigation, police posted a flyer listing the 

phone number used by the suspected robbers. Id. at 9. The flyer also 

provided a description of the suspects, stating that they were “two unknown 

black males; No. 1 is 20 years, black jacket, blue jeans; No. 2 is a black 

male, 24 years, gray jacket, also wearing black masks.” Id. at 10. On 

February 11, 2009, at approximately 9:40 p.m., Officer Edwards responded 

to a report from Allegro’s Pizza that a delivery order had been placed from 

the phone number listed on the flyer. Id. at 9.

When Officer Edwards arrived at the restaurant, he was instructed by 

his sergeant to pose as a pizza deliveryman and go to 1933 North 52nd
J-A06009-14

- 4 -

Street, the address provided in the delivery order.2 Id. at 11. Officer 

Edwards was dressed in plain clothes and was carrying a pizza box when he 

arrived at that address and knocked on the door. Id. at 12-13. Officer 

Edwards stood at the door for approximately two minutes, at which time he 

heard another officer at the scene, Sergeant Anthony Jackson, yell, “[w]e 

got him.” Id. at 13. Officer Edwards subsequently observed Sergeant 

Jackson detaining two males, one of whom he identified at the suppression 

hearing as Appellant. Id. at 14. 

Sergeant Jackson testified that he also responded to Allegro’s Pizza 

and then accompanied Officer Edwards to the 52nd Street residence. Id. at 

23, 35. Sergeant Jackson was in uniform and was driving a marked patrol 

car. Id. at 26. The sergeant stated that he parked his vehicle on 52nd

Street, got out, and “started walking up to the address where the delivery 

was supposed to take place” so he could “keep an eye ... on Officer Edwards 

because he was going to actually walk up to the door to make the 

delivery....” Id. Sergeant Jackson described what occurred next, as follows:

[Sergeant Jackson:] As I was walking up the street to keep an 

eye on Edwards, I saw two males come out of the driveway of 

Arlington Street. They were coming out – it looked like they 

were going towards Officer Edwards. They saw me and then 

they just started walking across the street, 52nd Street.

[The Commonwealth:] And you were in uniform?

____________________________________________

2 Testimony at the suppression hearing indicated that this was a “[h]igh 

crime area” known for criminal activity involving drugs, robberies and “a lot 

of burglaries.” Id. at 42.
J-A06009-14

- 5 -

[Sergeant Jackson:] I was in full uniform, yes.

[The Commonwealth:] The driveway that you were talking 

about, is that the driveway for the area where – like the 

driveway by 1933 North 52nd Street?

[Sergeant Jackson:] That’s correct. The address where the 

delivery was, it was a corner property, right on the corner of this 

rear driveway.

[The Commonwealth:] Did they come out before or after Officer 

Edwards knocked on the property?

[Sergeant Jackson:] They came out, I would say, afterwards 

because he was standing there, and then they started walking 

out the driveway, that’s when I saw them and they, in turn, saw 

me.

Id. at 26-28. Sergeant Jackson also indicated that he saw Appellant 

“fumbling around in his waist” as he walked. Id. at 32.

When asked to describe what happened next, Sergeant Jackson 

stated:

[Sergeant Jackson:] As they walked across the street, I start[ed] 

walking across towards them and I called to them. I told them 

to stop. I wanted to talk to them.

[The Commonwealth:] What were your exact words, if you can 

recall?

[Sergeant Jackson:] Exactly? I don’t know. Just, you know, 

[c]ome here. Yo, guys, hold up for a second, something to that 

effect.

...

[The Commonwealth:] And once you said, Yo, guys, come here, 

what did they do?

[Sergeant Jackson:] They both took off running. They started to 

run.

Id. at 28-29. 
J-A06009-14

- 6 -

Sergeant Jackson stated that he gave chase after Appellant and his 

companion began running, and that he caught Appellant after a short 

distance. Id. at 29. At that time, he handcuffed Appellant “[f]or everyone’s 

safety,” and because he “didn’t know what was going on yet and ... why they 

ran.” Id. at 30. Sergeant Jackson “[p]atted [Appellant] down for 

weapons....” Id. at 31. The sergeant did not find any weapons on 

Appellant’s person. Id. Sergeant Jackson then “passed [Appellant] off to 

[other] officers[,]” who searched Appellant again before placing him in the 

patrol vehicle. Id. at 35-36. During this second pat-down, officers 

discovered and seized a cell phone from Appellant’s person. Id. at 36-37. 

While this second pat-down was occurring, Sergeant Jackson searched an 

area of the ground where he believed Appellant had discarded something 

prior to running. Id. at 32. The sergeant discovered a cordless drill 

wrapped in a t-shirt in that area. Id. Sergeant Jackson testified that that 

item could have been used to “simulate ... a gun.” Id. 

In regard to the second pat-down of Appellant’s person and the 

discovery of his cell phone, Officer Melissa Martin indicated that she may 

have been the officer who conducted this pat-down, but she could not

specifically recall. Id. at 44. In any event, Officer Martin stated that she 

and her partner, Officer Johnson, were the officers who recovered the cell 

phone from Appellant. Id. at 44. However, she could not “remember the 

circumstances of actually feeling or retrieving” the phone. Id. at 45. 
J-A06009-14

- 7 -

Once the phone was recovered, it was handed over to Officer Edwards. 

Id. at 21. Officer Edwards stated that he “looked into the phone” and “saw 

the phone numbers of the pizza stores” that had been robbed, and also saw 

a “call to Allegro’s Pizza that night[.]”3 Id. at 14-15, 21. Officer Edwards’ 

search of the phone also confirmed that Appellant’s cell phone had “the 

same phone number that was used to commit the robberies....” Id. at 21. 

At this point, Appellant was placed under arrest. Id. at 33. 

Based on this evidence, the trial court issued an order denying 

Appellant’s motion to suppress. While the court did not draft an 

accompanying opinion explaining its rationale, in its Rule 1925(a) opinion, 

the court attempts to offer some insight into its reasoning. Unfortunately, 

the court’s discussion is rather confusing. First, the court explains why 

officers had reasonable suspicion to stop Appellant. Trial Court Opinion 

(TCO), 5/15/13, at 5. However, the court does not discuss the validity of 

the pat-downs – or the seizure of Appellant’s cell phone – which followed 

Appellant’s detention. Instead, the court moves directly into a discussion of 

the “inevitable discovery doctrine,” concluding that Appellant’s cell phone 

would have been seized and searched incident to his lawful arrest. Id. at 6. 

Specifically, the court states that, “[a]lthough [Appellant’s] phone was 

searched before he was under arrest, the [o]fficers had the requisite 

____________________________________________

3 Officer Edwards did not specifically describe what digital information he 

searched in Appellant’s phone to confirm this information. However, 

Appellant testified that the officer “look[ed] at the numbers in [the phone’s] 

call history.” Id. at 51.
J-A06009-14

- 8 -

probable cause to arrest based on the totality of the circumstances at the 

time that the search was conducted, [and] as such[,] the phone would have 

been discovered in the search incident to arrest.” Id. (emphasis added).

Curiously, however, in describing the circumstances that provided officers 

with probable cause to arrest Appellant prior to the search of his phone, the 

court includes the fact that Appellant’s cell phone “matched the phone 

[number] used in the commission of the crimes.” Id. at 7. 

The court’s rationale for denying Appellant’s motion to suppress is 

flawed in several respects. First, we agree with Appellant that even if the 

officers possessed reasonable suspicion to stop him and conduct a Terry4

frisk of his person, the officers’ seizure and search of the contents of 

Appellant’s phone exceeded the scope of Terry. Our Supreme Court has 

stated:

[T]he purpose of the frisk under Terry is not to discover 

evidence, but to allow the officer to pursue his investigation 

without fear of violence. In keeping with such purpose, the frisk 

must be limited to that necessary for the discovery of weapons. 

The United States Supreme Court has held, however, that an 

officer may also properly seize non-threatening contraband 

detected through the sense of touch during a protective frisk for 

weapons. In so holding, the Court adopted what it characterized 

as the plain feel doctrine....

Commonwealth v. Zhahir, 751 A.2d 1153, 1158-1159 (Pa. 2000). 

Under the plain feel doctrine,

____________________________________________

4 Terry v. Ohio, 392 U.S. 1 (1968). 
J-A06009-14

- 9 -

a police officer may seize non-threatening contraband 

detected through the officer's sense of touch during a 

Terry frisk if the officer is lawfully in a position to detect 

the presence of contraband, the incriminating nature of the 

contraband is immediately apparent from its tactile 

impression and the officer has a lawful right of access to 

the object. [T]he plain feel doctrine is only applicable 

where the officer conducting the frisk feels an object 

whose mass or contour makes its criminal character 

immediately apparent. Immediately apparent means 

that the officer readily perceives, without further 

exploration or searching, that what he is feeling is 

contraband. If, after feeling the object, the officer lacks 

probable cause to believe that the object is contraband 

without conducting some further search, the immediately 

apparent requirement has not been met and the plain feel 

doctrine cannot justify the seizure of the object.

Commonwealth v. Pakacki, 901 A.2d 983, 989 (Pa. 2006) (emphasis 

added) (quoting Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa. 

2000)).

In this case, we cannot conclude that it was immediately apparent to 

the frisking officer(s) that Appellant’s cell phone was contraband. Initially, 

there was no testimony from any officer who recalled conducting the patdown, let alone any evidence of exactly why “the mass or contour” of 

Appellant’s phone made “its criminal character immediately apparent.” Id. 

Nevertheless, it is clear that the cell phone, in and of itself, was not 

obviously criminal in nature. While it is true that the officers knew that a 

cell phone had been used to place the delivery calls just prior to the 

robberies, it was not immediately apparent from the plain feel of Appellant’s 

cell phone that it was the phone used to place those calls. Instead, the 

officers only became aware of that fact after “further exploration or 
J-A06009-14

- 10 -

searching” of the phone. Pakacki, 901 A.2d at 989. Consequently, the 

plain feel doctrine was not applicable in this case, and the seizure and search 

of Appellant’s phone exceeded the lawful scope of Terry. 

Nevertheless, we acknowledge (as does Appellant) that “[w]hen the 

scope of a Terry search is exceeded, this alone does not automatically 

exclude the evidence seized from the illegal search.” Commonwealth v. 

Ingram, 814 A.2d 264, 272 (Pa. Super. 2002). Instead, such evidence may 

still be admissible pursuant to the inevitable discovery doctrine, which 

provides:

[E]vidence which would have been discovered was 

sufficiently purged of the original illegality to allow 

admission of the evidence.... [I]mplicit in this doctrine is 

the fact that the evidence would have been discovered 

despite the initial illegality.

If the prosecution can establish by a preponderance of the 

evidence that the illegally obtained evidence ultimately or 

inevitably would have been discovered by lawful means, 

the evidence is admissible. The purpose of the inevitable

discovery rule is to block setting aside convictions that 

would have been obtained without police misconduct.

Commonwealth v. Bailey, 986 A.2d 860, 862 (Pa. Super. 2009) (citation 

omitted).

Here, the trial court applied the inevitable discovery doctrine, 

concluding that there was probable cause to arrest Appellant and, as such, 

his cell phone would have been lawfully searched incident to that arrest. 

Initially, the court’s analysis is flawed because it factored in the evidence 

discovered on Appellant’s phone to determine that probable cause existed to 
J-A06009-14

- 11 -

arrest him. In any event, even if we accepted the court’s conclusion that 

there was probable cause to arrest Appellant prior to the search of his cell 

phone, the search of the contents of Appellant’s phone would still have been 

unlawful. Recently, in Riley v. California, 134 S.Ct. 2473 (2014), the 

United States Supreme Court held that police generally may not conduct a 

warrantless search of digital information on a cell phone seized from an 

individual pursuant to a lawful arrest.5 Id. at 2494-2495. In 

Commonwealth v. Stem, 2014 WL 3377450 (Pa. Super. 2014), this Court 

applied Riley to hold that the search of the contents of Stem’s cell phone 

after his lawful arrest was unconstitutional.6 Under Riley and Stem, it is 

____________________________________________

5 Especially pertinent to the instant case, the Riley Court also rejected the 

government’s contention “that officers should always be able to search a 

phone’s call log....” Id. at 2492.

6 We acknowledge that Riley and Stem were decided during the pendency 

of this appeal. However, 

[t]he general rule followed in Pennsylvania is that we apply the 

law in effect at the time of the appellate decision. 

Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983). 

This principle applies with equal force to both civil and criminal 

proceedings. Id.; Commonwealth v. Brown, 494 Pa. 380, 431 

A.2d 905 (1981). This means that we adhere to the principle 

that, “a party whose case is pending on direct appeal is entitled 

to the benefit of changes in law which occurs before the 

judgment becomes final.” Commonwealth v. Brown, supra, 

431 A.2d at 906–07, citing August v. Stasak, 492 Pa. 550, 424 

A.2d 1328 (1981). 

Blackwell v. Com., State Ethics Com'n, 527 Pa. 172, 182, 589 A.2d 

1094, 1099 (Pa. 1991).
J-A06009-14

- 12 -

apparent that even had Appellant been lawfully arrested prior to the search 

of his phone, that search would still have been illegal without the officers’ 

first obtaining a warrant. Thus, the inevitable discovery doctrine does not 

cure the otherwise illegal search of Appellant’s phone during the Terry frisk.

For these reasons, we are compelled to conclude that the court should 

have granted Appellant’s motion to suppress the evidence discovered on his 

cell phone. Accordingly, we vacate his judgment of sentence and remand for 

a new trial.7

Judgment of sentence vacated. Case remanded. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/15/2014

____________________________________________

7 On September 3, 2014, Appellant’s current counsel filed with this Court a 

“Motion to File Supplemental 1925b Statement of Matters,” requesting 

permission to file a more concise Rule 1925(b) statement than that which 

was filed by Appellant’s initial attorney. In light of our disposition herein, we 

deny that motion. 
J-A06009-14

- 13 -