J-A03007-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSEPH WALLACE BLACKWELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 518 EDA 2022

Appeal from the Judgment of Sentence Entered February 14, 2022

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

No(s): CP-23-CR-0001073-2021

BEFORE: KING, J., SULLIVAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 9, 2023

Joseph Wallace Blackwell appeals from the February 14, 2022 aggregate 

judgment of sentence of 24 to 60 months’ imprisonment, to be followed by 3 

years’ probation, imposed after he was found guilty in a bench trial of

possession of firearm with altered manufacturer’s number, firearms not to be 

carried without a license, possession of a controlled substance, and possession 

of drug paraphernalia.1 On appeal, Appellant challenges the denial of his

omnibus motion to suppress physical evidence recovered during a traffic stop 

and the subsequent statements he made to police. After careful review, we 

affirm the judgment of sentence.

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 6110.2(a), 6106(a)(1), 35 P.S. §§ 780-113(a)(16), and 

(a)(32), respectively.
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The relevant facts and procedural history of this case, as gleaned from 

the certified record, are as follows: On the evening of February 14, 2021, 

Chester Police Officer Michael Spicer was in a marked vehicle, on patrol,

attired in full uniform, and traveling eastbound on the 300 block of Rose Street 

toward Upland Street in the City of Chester. At this time, Officer Spicer 

observed a white Buick sedan proceed through an intersection without first 

stopping at the stop sign. Based upon his training and experience, Officer 

Spicer knew the area surrounding the 300 block of Rose Street to be an area 

of high crime and immediately maneuvered his vehicle to directly pursue the

Buick. 

Officer Spicer activated his lights and sirens to initiate a traffic stop at 

the 1100 block off Upland Street. The Buick failed to immediately stop. 

Instead, it continued to move approximately fifty feet. During this time, 

Officer Spicer observed a female in the passenger seat who turned her head 

“a couple times” to look back at Officer Spicer. The Buick then turned onto 

East 11th Street and finally came to a complete stop. After the Buick stopped, 

Officer Spicer observed that the vehicle contained two occupants, the female 

in the front passenger seat whom Officer Spicer had previously observed 

looking back at him several times, and the driver. Officer Spicer observed the 

driver extend his right arm over the center console area towards the female 

passenger “with his torso leaning over as well.” 
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Based upon his training and experience, Officer Spicer believed that 

furtive movements such as the ones being made by the driver and passenger 

indicated an intent to conceal something in the glove box, center console, or

underneath the driver or passenger seat. 

Officer Spicer approached the driver, whom he identified as Appellant, 

and asked him to produce a driver’s license, registration, and proof of 

insurance. Appellant failed to produce any of the requested documentation. 

While Officer Spicer was speaking with Appellant, he could detect a strong 

odor of fresh marijuana emanating from the vehicle. Officer Spicer also 

observed that Appellant as very nervous, that his hands were shaking, and 

that he was sweating. Officer Spicer found the sweating to be particularly 

unusual because the outside temperature was approximately 35 degrees. 

Officer Spicer asked Appellant whether there was any marijuana in the vehicle, 

to which Appellant answered in the negative. Officer Spicer then asked

Appellant to exit the vehicle. 

Officer Spicer performed a pat-down of Appellant and a protective 

search of the driver’s side of the vehicle. Officer Spicer indicated that the 

purpose of these actions was to ensure officer safety. During the search of 

the driver’s side, Officer Spicer discovered a black mesh bag on the floor next 

to the gas pedal. As Officer Spicer got closer to the bag, he could smell a 

strong odor of fresh marijuana. When Officer Spicer felt the bag and held it 

in his hands, he observed that the bag felt as though there were smaller plastic 
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baggies inside the bag, and that there was a soft leafy substance located 

within those baggies. 

Officer Spicer also performed a protective search of the passenger side 

of the vehicle. In connection therewith, he requested that the passenger exit 

the vehicle. The passenger complied and threw her purse onto the hood and 

walked to the back of the vehicle. When her purse landed on the hood of the 

vehicle, the sound of the contact indicated that the bag was heavy. Officer 

Spicer conducted a pat-down of the passenger for officer safety. After doing 

so, the passenger and Appellant stood behind the vehicle with another officer. 

Officer Spicer then searched the vehicle’s center console and found a loaded 

Smith and Wesson magazine.

Officer Spicer inquired of Appellant and the passenger as to the location 

of the firearm to which the magazine belonged. The passenger informed 

Officer Spicer that the firearm was inside her purse, and Officer Spicer 

recovered it. Appellant claimed ownership of the firearm. 

During a subsequent interview at the police station with Officer Robert 

Shaughnessy, Appellant provided a written statement “taking full

responsibility ... [for] the gun and drugs found in my car.” The record reflects 

that Appellant was read his Miranda2 warnings prior to this interview. A check 

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2 Miranda v. Arizona, 384 U.S. 436 (1966).
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on the status of Appellant’s operating privileges also revealed that he was not 

currently licensed to operate a motor vehicle and that the vehicle in question 

was owned by Appellant’s sister, Gloria Cottman. Additionally, the leafy 

substances found inside the black mesh bag were tested and returned positive 

for marijuana.

Appellant was subsequently arrested and charged with possession with 

intent to distribute a controlled substance, possession of firearm with altered 

manufacturer’s number, and related offenses. On May 5, 2021, Appellant filed 

an omnibus pretrial motion to suppress both the physical evidence obtained 

pursuant to an “illegal warrantless search” of his vehicle and the various 

statements that he made to police. See “Omnibus Pre-trial Motion,” 5/5/21

at 2. Appellant filed a supplemental motion on September 14, 2021. Notably, 

Appellant did not contest the validity of the traffic stop nor argue that his 

statements to police were in violation of his Miranda rights. 

The suppression court held hearings on Appellant’s motion on June 30, 

July 9, September 17, October 22, and December 7, 2021, respectively. 

During the course of these hearings, the suppression court heard testimony 

from Officer Spicer, Officer Shaughnessy, and Cottman. Following these 

hearings, the suppression court denied Appellant’s suppression motion on 

December 9, 2021. 

On January 21, 2022, Appellant waived his right to a jury and proceeded 

to a bench trial. As noted, the trial court found Appellant guilty of possession 
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of firearm with altered manufacturer’s number, firearms not to be carried 

without a license, possession of a controlled substance, and possession of drug 

paraphernalia. On February 14, 2022, the trial court sentenced Appellant to 

an aggregate term of 24 to 60 months’ imprisonment, to be followed by 3 

years’ probation. This timely appeal followed on February 16. 2022.

3

 

Appellant raises the following issues for our review:

1. Did the trial court err in denying [Appellant’s] 

motion to suppress when it determined that a 

protective sweep search wherein law enforcement 

enters a vehicle and searches the inside of the 

vehicle is lawful and therefore there is no 

requirement to obtain a search warrant pursuant 

to Commonwealth v. Alexander, 243 A3d 177 

(Pa. 2020)?

2. Did the trial court err in determining that there 

was sufficient probable cause and exigent 

circumstances to enter and search [Appellant’s] 

vehicle without [his] consent and without a valid 

search warrant; and whether the fervent

movements of the appellant were sufficient 

exigent circumstances to justify a warrantless 

search?

3. Did the trial court err in determining that the 

statements made by [Appellant] without being 

properly advised of his rights under [Miranda], 

were not in violation of the [Appellant’s]

constitutional rights under the 5th Amendment of 

the United States Constitution and Article 1 

Section 8 of the Pennsylvania Constitution?

Appellant’s brief at 4.

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3 Appellant and the trial court have complied with Pa.R.A.P. 1925.
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Our standard of review in addressing a challenge to a denial of a 

suppression motion is well settled.

[Our] standard of review in addressing a challenge 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, 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 court’s factual findings are supported by 

the record, [the appellate court is] bound by [those] 

findings and may reverse only if the court’s legal 

conclusions are erroneous. 

Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation 

omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).

The crux of Appellant’s first two claims on appeal is that police were 

prohibited from conducting a warrantless search of his vehicle without first 

articulating sufficient probable cause and exigent circumstances to justify the 

search, pursuant to our Supreme Court’s decision in Alexander. Appellant’s 

brief at 9-39. Appellant contends this warrantless search of his vehicle 

violated his Fourth Amendment rights and, thus, the trial court should have 

granted his motion to suppress motion on this basis. Id. Following our careful 

review, we find that Appellant’s reliance on Alexander is misplaced.

“Both the Fourth Amendment of the United States Constitution and 

Article I, Section 8 of the Pennsylvania Constitution guarantee individuals 
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freedom from unreasonable searches and seizures.” Commonwealth v. 

Heidelberg, 267 A.3d 492, 502 (Pa.Super. 2021) (en banc) (citation 

omitted), appeal denied, 279 A.3d 38 (Pa. 2022); see also U.S. Const. 

amend. IV; Pa Const. art. I, § 8. 

“A warrantless search or seizure of evidence is ... presumptively 

unreasonable under the Fourth Amendment and Article I, § 8, subject to a few 

specifically established, well-delineated exceptions.” Commonwealth v. 

Luczki, 212 A.3d 530, 546 (Pa.Super. 2019) (citation and internal quotation 

marks omitted). These exceptions include “the consent exception, the plain 

view exception, the inventory search exception, the exigent circumstances 

exception, the automobile exception, ... the stop and frisk exception, and the 

search incident to arrest exception.” Commonwealth v. Smith, 285 A.3d 

328, 332 (Pa.Super. 2022) (citation omitted).

As a general rule, a warrantless search of a vehicle in Pennsylvania 

requires both probable cause and exigent circumstances. In Alexander, the 

case relied upon by Appellant, our Supreme Court recently reaffirmed that 

that Article I, Section 8 of the Pennsylvania Constitution “requires both a 

showing of probable cause and exigent circumstances to justify a warrantless 

search of an automobile.” Alexander, 243 A.3d at 181. In reaching this 

conclusion, the Alexander Court expressly overruled Commonwealth v. 

Gary, 91 A.3d 102 (Pa. 2014), which had adopted the federal automobile 

exception to the warrant requirement that permitted police to conduct a 
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warrantless search or seizure of an automobile solely based on probable cause 

without any need for a separate finding of exigent circumstances. Id.

However, in Michigan v. Long, 463 U.S. 1032 (1983), the United 

States Supreme Court extended the principles of the protective “stop and 

frisk” exception articulated in the Terry v. Ohio, 392 U.S. 1 (1968), to the 

interior of an automobile, principles which are applicable to the case sub 

judice. In this case, Long was convicted of possession of marijuana found by 

police in the passenger compartment. Long, 463 U.S. at 1034-1035.

The Long Court held that “the search of the passenger compartment of 

an automobile, limited to those areas in which a weapon may be placed or 

hidden, is permissible if the police officer possesses a reasonable belief based 

on specific, and articulable facts which, taken together with the rational 

inferences from those facts, reasonably warrant the officers in believing that 

the suspect is dangerous and the suspect may gain immediate control of 

weapons.” Id. at 1049 (citation and internal quotation marks omitted). The 

validity of a protective sweep of an automobile turns on whether “a reasonably 

prudent man in the circumstances would be warranted in the belief that his 

safety or that of others was in danger.” Id. at 1050. That is, whether the 

police officer possesses specific and articulable facts to sustain a reasonable 

suspicion that the person is dangerous and may gain control of a weapon. 

In reaching this conclusion, the Long Court emphasized that a Terry

investigation is “at close range, when the officer remains particularly 
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vulnerable in part because a full custodial arrest has not been effected, and 

the officer must make a quick decision as to how to protect himself and others 

from possible danger.” Id. at 1052.

Just as a Terry suspect on the street may, despite 

being under the brief control of a police officer, reach 

into his clothing and retrieve a weapon, so might 

a Terry suspect in a [vehicle stop] break away from 

police control and retrieve a weapon from his 

automobile. 

Long, 463 U.S. at 1051 (citations omitted).

The Long Court reasoned that the “the balancing required by Terry

clearly weighs in favor of allowing the police to conduct an area search of the 

passenger compartment to uncover weapons, as long as they possess an 

articulable and objectively reasonable belief that the suspect is potentially 

dangerous.” Id.

Courts in this Commonwealth have continually recognized that a police 

officer may conduct a limited protective search of a vehicle where he 

possesses reasonable suspicion that the vehicle’s occupant poses a risk of 

danger and has immediate access to weapons. See, e.g. Commonwealth 

v. Arrington, 233 A.3d 910, 916 (Pa.Super. 2020) (stating, “a defendant’s 

furtive movement of leaning forward and appearing to conceal something 

under his seat, along with his extreme nervousness and [a] nighttime stop, 

was sufficient to warrant a reasonable police officer to believe that his safety 

was in danger and that [the defendant] might gain immediate control of a 

weapon.” (citation omitted)); Commonwealth v. Simmons, 17 A.3d 399, 
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401 (Pa.Super. 2011) (finding reasonable suspicion where the traffic stop was 

conducted at night, in a high-drug and high-crime area, and the officer 

witnessed the defendant make the furtive movement of reaching under his 

seat and then towards his chest, consistent with concealing a weapon), 

appeal denied, 25 A.3d 328 (Pa. 2011).

Similarly, in the instant matter, the trial court opined that Officer 

Spicer’s limited search of Appellant’s vehicle was reasonable and justified 

under the “protective search or wingspan search” exception to the warrant 

requirement. See trial court opinion, 5/26/22 at 15-16. As the trial court 

stated in its opinion, 

this Court notes the following specific and articulable 

facts in support of reasonable suspicion:

1. [Appellant] was in his vehicle with a passenger. 

Officer Spicer observed the passenger look back 

at him several times after Officer Spicer had 

signaled [Appellant] to stop.

2. [Appellant] did not stop immediately but slowed 

down and proceeded to turn his vehicle onto 

another street before stopping.

3. Thereafter, as Officer Spicer was approaching 

the vehicle, he observed [Appellant] making 

furtive movements within the vehicle. In Officer 

Spicer’s experience, and based upon his 

training, he believed the movements to be 

consistent with an intent to conceal a weapon.

4. [Appellant] appeared extremely nervous, to the 

extent that his hands were shaking and he was 

sweating despite the fact that the outside 
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temperature was thirty-five (35) degrees 

Fahrenheit.

5. [Appellant] could not produce his license, 

registration, or proof of financial responsibility.

6. The stop occurred at night in a high crime area.

Trial court opinion, 5/26/22 at 15-16.

Upon review, we find ample evidence in the record to support the trial 

court’s conclusion that Officer Spicer possessed reasonable suspicion that his 

safety was at risk and that Appellant had immediate access to a weapon. 

Officer Spicer specifically testified that, based upon his training and 

experience, that the behavior he observed in the vehicle indicated that 

Appellant and his passenger were potentially attempting to conceal a firearm. 

Q. Officer, you testified regarding the behavior of

the passenger and the movements of the driver. 

Did that raise any concern at that time?

A. It did.

Q. And can you tell the Court what –

A. Through my training and experience over the 

past couple years working as a police officer, 

normally, when that type of movements inside

of the vehicle during a stop are initiated, it 

typically means that the passenger and the 

driver are attempting to conceal something.

. . . .

Q. And what do you learn in that training and 

experience?

A. You learn the furtive movements that the 

passengers and occupants of the vehicle 
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typically make when there’s a firearm on their 

person, and during a vehicle stop, you learn 

where they most likely conceal them inside of a 

vehicle.

. . . .

Q. So, this behavior that you saw from the female 

and the driver, why did it raise your concern?

A. Because of the way the driver’s -- had his body 

over the passenger seat, he could’ve been 

concealing something in the center console or 

with the passenger herself.

Notes of testimony, 6/30/21 at 14-16. 

Moreover, the search of the car was restricted to those areas that 

Appellant and the passenger would have immediate control of and could 

contain a weapon. Id. at 20-22. Thus, the intrusion was “strictly 

circumscribed by the exigencies which justified its initiation.” Long, 463 U.S. 

at 1051 (citation omitted). 

Based on the foregoing, we find that the trial court properly concluded

that Officer Spicer’s limited protective search of Appellant’s vehicle did not 

violate his rights under the 4th Amendment to the United States Constitution 

and Article I, Section 8 of the Pennsylvania Constitution. In reaching this 

conclusion we note that because Officer Spicer’s recovery of the evidence 

resulted from a lawful protective search of the vehicle, the Alexander decision 

relied on by Appellant is inapplicable. Alexander concerns the automobile 

exception to the warrant requirement, and Appellant has pointed to nothing 

in that holding which expressly modified “protective search or wingspan 
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search” exception, and we decline to do so. Accordingly, Appellant’s 

suppression claim warrants no relief.

Appellant next argues that his oral statements to police were made in 

violation of his Constitutional rights to remain silent under the 5th Amendment 

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

Constitution because he was not first advised of his Miranda rights. 

Appellant’s brief at 41-45.

The record reflects that Appellant failed to raise this claim in either his 

May 5, 2021 suppression motion; his September 14, 2021 supplemental 

motion; nor at any point during the proceedings. Pennsylvania Rule of 

Criminal Procedure 581(D) requires that a suppression motion “state 

specifically and with particularity the evidence sought to be suppressed, the 

grounds for suppression, and the facts and events in support thereof.” 

Pa.R.Crim.P. 581(D). It is well-settled that “issues not properly raised and 

preserved before the trial court are waived and cannot be raised for the first 

time on appeal.” Commonwealth v. Thorne, 276 A.3d 1192, 1196 (Pa.

2022) (citation and internal quotation marks omitted); see also Pa.R.A.P. 

302(a). Accordingly, Appellant has waived this claim. 

For all the foregoing reasons, we affirm the trial court’s February 14, 

2022 judgment of sentence. 

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/9/2023