J-A13002-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CURTIS WALTON 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2136 EDA 2021

Appeal from the Judgment of Sentence Entered September 7, 2021

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0000991-2020

BEFORE: OLSON, J., DUBOW, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 08, 2022

Appellant, Curtis Walton, appeals from the judgment of sentence 

entered on September 7, 2021, following his stipulated bench trial convictions 

for persons not to possess a firearm and carrying a firearm without a license.1 

We affirm Appellant’s convictions and remand for resentencing consistent with 

this decision.

We briefly summarize the facts and procedural history of this case as 

follows. On January 3, 2020, Officer Kevin Fritchman, an officer with over 

nine years’ experience, was on patrol in a marked police car at the corner of 

Wayne Avenue and Scott Alley in Norristown, Montgomery County, 

Pennsylvania. Trial Court Opinion, 1/5/2022, at 1. The locality was described 

as a “hot spot” and “high crime area” where shots had been fired and two men 

____________________________________________

1

 18 Pa.C.S.A. §§ 6105 and 6106, respectively. 
J-A13002-22

- 2 -

had been arrested for firearms violations in the proceeding two-month period. 

Id. At 7:12 p.m. on the day in question, Officer Fritchman observed a silver 

Audi automobile, with heavily tinted windows, park in front of a laundromat. 

Id. at 2. Appellant, the driver, and a female passenger alighted from the 

vehicle and entered the laundromat. Id. Officer Fritchman searched the 

National Crime Information Center database for vehicle information and 

learned the automobile was owned by Appellant and that his license was 

suspended. Id. Approximately four minutes later, Appellant returned to the 

vehicle by himself and drove away. Id. Officer Fritchman initiated a traffic 

stop of the vehicle based upon Appellant’s “operation of the vehicle [with] a 

suspended license, as well as the vehicle’s heavily tinted windows.”2 Id. 

Officer Fritchman ordered Appellant, several times, to roll down all of the car’s

windows to ensure police safety. Id. After approximately 30 seconds, 

Appellant opened his car door and leaned out. Id. As Officer Fritchman

approached Appellant’s vehicle, the officer instructed Appellant to close the 

door and, again, commanded Appellant to roll down all of the windows. Id. 

Appellant told Officer Fritchman that he had to turn on the engine to comply. 

Id. Appellant turned on the car’s engine and rolled all of the windows down. 

Id. Officer Fritchman approached the vehicle and asked Appellant for his

driver’s license, car registration, and proof of insurance. Id. at 3. Appellant 

____________________________________________

2

 These violations constitute summary offenses under the Motor Vehicle 

Code. See 75 Pa.C.S.A. §§ 4107 (violation of vehicle equipment standards) 

and 1543 (driving while operating privilege is suspended or revoked), 

respectively. Those charges are not at issue herein. 
J-A13002-22

- 3 -

produced registration and insurance information but did not have his driver's 

license. Id. Officer Fritchman returned Appellant’s documents, but had not 

issued Appellant a citation for the Motor Vehicle Code violations. Id. “During 

this time, Officer Fritchman observed that [Appellant] appeared very nervous, 

with trembling hands and labored breathing.” Id. Officer Fritchman asked 

Appellant if there were any firearms or weapons in the vehicle and Appellant 

responded that there were not. Id. Officer Fritchman asked, and Appellant 

consented, to a search of the vehicle. Id. “At this point, [Appellant] started 

to shuffle and move about the vehicle’s interior, reaching [near] his pocket, 

and then turning and starting to reach towards a blanket on the vehicle’s rear 

seat.” Id. Officer Robert Nolan arrived on-scene, approached Appellant’s

vehicle from behind on the passenger side, noticed two small caliber bullets 

on the vehicle’s rear passenger seat, and alerted Officer Fritchman. Id. 

Officer Fritchman instructed Appellant to stop reaching toward his pocket and 

exit the vehicle. Id. When Officer Fritchman conducted a protective pat-down 

of Appellant, Appellant “forced his body flat against the vehicle’s side [...] as 

if to prevent the officer’s hands from reaching [Appellant’s] front waistband.” 

Id. Officer Fritchman directed Appellant to cooperate and then felt what he 

recognized immediately as the barrel of gun in Appellant’s waistband. Id. 

When Officer Fritchman recovered a .32 caliber revolver, Appellant 

“spontaneously uttered, ‘I just got myself 10 more years.’” Id. at 4. Appellant 

confirmed that he had a prior felony conviction when Officer Fritchman asked 

Appellant him if he were eligible to possess a firearm. Id. Once Appellant 
J-A13002-22

- 4 -

was in police custody, Officer Fritchman confirmed Appellant had a prior felony 

conviction. Id. 

The Commonwealth charged Appellant with the aforementioned 

firearms violations, as well as driving with a suspended license. On September 

18, 2020, Appellant filed a motion to suppress the evidence recovered from 

his vehicle and his statements to the police. The trial court held a suppression 

hearing on July 7, 2021 and denied relief by order entered on July 14, 2021. 

On September 7, 2021, the trial court held a stipulated bench trial and 

convicted Appellant of persons not to possess a firearm and carrying a firearm 

without a license. Appellant waived the preparation of a presentence 

investigation report and proceeded directly to sentencing wherein he 

presented character witness evidence and exercised his right to allocution. 

The trial court imposed a sentence of six-and-one-half to 13 years of 

imprisonment for persons not to possess a firearm. The trial court also 

imposed a concurrent term of five to 10 years of imprisonment for carrying a 

firearm without a license. On September 17, 2021, Appellant filed a 

post-sentence motion challenging the discretionary aspects of sentencing. 

The trial court denied relief by order entered on September 23, 2021. This 

timely appeal resulted.3

____________________________________________

3

 Appellant filed a timely notice of appeal on October 15, 2021. The trial 

court directed Appellant to file a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on 

November 9, 2021. The trial court issued an opinion pursuant to Pa.R.A.P. 

1925(a) on January 5, 2022. 
J-A13002-22

- 5 -

On appeal, Appellant presents the following issue for our review:

Whether the trial court erred in denying [A]ppellant’s [m]otion to 

[s]uppress [e]vidence which challenged the lawfulness of the 

continuation of a traffic stop after [A]ppellant was pulled over for 

driving with a suspended license?

Appellant’s Brief at 4.

In sum, Appellant argues:

The officers involved in this case failed to articulate facts and 

observations that g[a]ve rise to a reasonable belief that 

[A]ppellant was engaged in criminal activity or any other violation 

of the law other than the traffic infraction which was the basis of 

the initial vehicle stop. Accordingly, officers did not have a 

reasonable suspicion to prolong the traffic stop beyond that which 

was necessary to address the initial traffic violation.

Appellant submits that because the continued seizure of 

[A]ppellant was unlawful, the items found by searching Appellant 

are the fruits of the poisonous tree and should have been 

suppressed.

Id. at 6. More specifically, citing Commonwealth v. Sierra, 723 A.2d 644 

(Pa. 1999), Appellant claims that because the police in this matter returned 

Appellant’s “paperwork” or his “registration and insurance card,” the officers’

continued interrogation of Appellant amounted to an illegal detention. Id. at 

8-9. Appellant argues that “not lowering his windows immediately” and the 

officers’ belief that Appellant appeared nervous did not provide the police with 

“reasonable suspicion needed to escalate a traffic stop.” Id. at 9. Appellant 

also contends his consent to search the vehicle, “given moments after the 

unlawful investigative detention began, was not voluntary.” Id. at 11-13.
J-A13002-22

- 6 -

Our Supreme Court previously determined the standard of review 

governing an order denying a motion to suppress:

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, 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 [trial] court[] 

below are subject to our plenary review. 

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations 

and quotations omitted).

Here, Appellant does not contest the initial traffic stop. Instead, the 

crux of Appellant’s claim is that officers lacked reasonable suspicion to prolong 

the traffic stop and extend Appellant’s detention and that the items recovered 

by the police were subject to suppression. 

Appellant’s claim compels us to examine each facet of the interaction 

between Appellant and the investigating officers to determine whether the 

officers’ actions independently possessed lawful justification. We begin with 

Officer Fritchman’s decision to order Appellant from the vehicle and to search 

Appellant’s person and the passenger compartment of his vehicle for weapons. 
J-A13002-22

- 7 -

This aspect of the challenged encounter implicates the principles first 

announced in Terry v. Ohio, 392 U.S. 1 (1968). Because the record supports 

Officer Fritchman’s determination that Appellant may have been armed and 

dangerous during the traffic stop, we conclude that the officer lawfully ordered 

Appellant out of his vehicle and conducted a valid search of Appellant’s person 

and the passenger compartment of Appellant’s vehicle. Since this encounter 

yielded a gun, we next consider whether the officers were justified in 

investigating whether Appellant’s possession of a firearm was unlawful. Here, 

we conclude that specific, articulable facts (in addition to Appellant’s concealed 

possession of a firearm in public) established reasonable grounds to suspect 

that Appellant’s possession of a gun was unlawful. Accordingly, we conclude

that Officer Fritchman lawfully detained Appellant to investigate and confirm 

whether his possession of a firearm constituted an offense.

A Terry frisk is a type of investigative detention requiring 

reasonable suspicion that criminal activity is afoot and that ‘the 

individual whose suspicious behavior he is investigating at close 

range is armed and presently dangerous to the officer or to others. 

The purpose of a Terry frisk is not to discover evidence of a crime, 

but to protect the police officer conducting the investigation. 

The reasonable suspicion necessary to conduct a Terry frisk and, 

in fact, all investigative detentions

is a less demanding standard than probable cause not only 

in the sense that reasonable suspicion can be established 

with information that is different in quantity or content than 

that required to establish probable cause, but also in the 

sense that reasonable suspicion can arise from information 

that is less reliable than that required to show probable 

cause.
J-A13002-22

- 8 -

The determination of whether an officer had reasonable suspicion 

that criminality was afoot so as to justify an investigatory 

detention is an objective one, which must be considered in light 

of the totality of the circumstances. In assessing the totality of 

the circumstances, a court must give weight to the inferences that 

a police officer may draw through training and experience. Also, 

the totality of the circumstances test does not limit our inquiry to 

an examination of only those facts that clearly indicate criminal 

conduct. Rather, even a combination of innocent facts, when 

taken together, may warrant further investigation by the police 

officer.

Commonwealth v. Davis, 102 A.3d 996, 999–1000 (Pa. Super. 2014) 

(internal quotations and citations omitted).

We previously explained the application of Terry within the context of a 

lawful traffic stop.

[...P]rotection of police and others can justify protective searches 

when police have a reasonable belief that the suspect poses a 

danger, that roadside encounters between police and suspects are 

especially hazardous, and that danger may arise from the possible 

presence of weapons in the area surrounding a suspect. These 

principles compel our conclusion 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. See Terry [v. Ohio, 392 U.S. [1], at 21. “The issue 

is 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 27.

Commonwealth v. Murray, 936 A.2d 76, 78-79 (Pa. Super. 2007) (some 

citations and original brackets omitted; emphasis in original); see also 

Commonwealth v. Morris, 619 A.2d 709, 711–712 (Pa. Super. 1992) 
J-A13002-22

- 9 -

(“Concern over the safety of our police officers mandates that a police officer 

maintain the authority to order a driver out of a vehicle” and “is not an 

unreasonable seizure when balanced against legitimate concerns for the 

officer's safety.”); see also Commonwealth v. Graham, 721 A.2d 1075, 

1077 (Pa. 1998) (a “police officer may still legitimately seize a person ... and 

conduct a limited search of the individual's outer clothing in an attempt to 

discover the presence of weapons which might be used to endanger the safety 

of the police officer and others, if the police officer observes unusual and 

suspicious conduct on the part or the individual seized which leads him to 

reasonably conclude that criminal activity may be afoot and that the person 

with whom he is dealing may be armed and dangerous”).

Moreover, this Court has recognized:

When, during already dangerous traffic stops, officers must 

approach vehicles whose occupants and interiors are blocked from 

view by tinted windows, the potential harm to which the officers 

are exposed increases exponentially, to the point, we believe, of 

unconscionability. Indeed, we can conceive of almost nothing 

more dangerous to a law enforcement officer in the context of a 

traffic stop than approaching an automobile whose passenger 

compartment is entirely hidden from the officer's view by darkly 

tinted windows. As the officer exits his cruiser and proceeds 

toward the tinted-windowed vehicle, he has no way of knowing 

whether the vehicle's driver is fumbling for his driver's license or 

reaching for a gun; he does not know whether he is about to 

encounter a single law-abiding citizen or to be ambushed by a 

car-full of armed assailants. He literally does not even know 

whether a weapon has been trained on him from the moment the 

stop was initiated.

United States v. Stanfield, 109 F.3d 976, 981 (4th Cir. 1997), 

cert. denied, 522 U.S. 857 (1997) (emphasis in original).

* * *
J-A13002-22

- 10 -

Specifically, the knowledge of the neighborhood being a 

well-known narcotics area, when coupled with [] excessive 

movement inside the vehicle and hour of night, raise[s] serious 

and obvious safety concerns that justifie[s] a search for weapons. 

See, e.g., United States v. Caruthers, 458 F.3d 459, 466 (6th

Cir. 2006), cert. denied, 549 U.S. 1088 (2006) (furtive 

movements made in response to a police presence may properly 

contribute to an officer's suspicions); United States v. Evans, 

994 F.2d 317, 321 (7th Cir. 1993), cert. denied, 510 U.S. 927, 

(1993) (officers properly executed a Terry search on driver and 

car when driver leaned forward as if reaching or concealing 

something).

Id. at 79-80.

Here, the trial court determined:

[I]n this case, the totality of the circumstances [clearly provided 

Officer Fritchman with reasonable suspicion that Appellant was 

attempting to conceal something, that Appellant might be armed 

and dangerous, and that a weapons patdown for officer safety was 

necessary. The record established the following: Appellant was 

present in a high crime area], where [Officer] Fritchman was 

specifically dispatched to conduct a directed patrol for reports of 

recent gunshots; the heavily tinted windows of [Appellant’s] 

vehicle; [Appellant’s] inexplicably slow response to [Officer] 

Fritchman’s simple repeated commands to lower his windows and 

apparent attempt to exit the vehicle instead of rolling down the 

windows as directed; [Appellant’s] extreme nervousness, 

trembling hands, and breathlessness, [Appellant’s] failure to 

produce a driver’s license; [and, Appellant’s fumbling, shuffling 

movements about the vehicle after having consented to its search, 

including] reaching toward his pocket area and then to the rear of 

the vehicle where a blanket concealed [two] bullets[.] 

[Appellant] would have [the trial court] analyze whether 

reasonable suspicion existed, as if each of the above-referenced 

events occurred in discrete segments as opposed to an analysis of 

the totality of circumstances in real time[.]

Trial Court Opinion, 1/5/2022, at 7-8 (case citations omitted).
J-A13002-22

- 11 -

In view of the trial court’s uncontested factual findings, Terry permitted 

the officers to remove Appellant from his vehicle and conduct a weapons 

search of Appellant’s person and the passenger areas of Appellant’s car. 

Appellant’s entire interaction with police lasted “[m]aybe a minute to two 

minutes.” N.T., 7/7/2021, at 38. Officer Fritchman, an officer with nine and 

one-half years of experience, was directed to patrol a “hot spot” known for 

gun violence. Id. at 6-8. Officer Fritchman initiated a traffic stop4 because 

Appellant’s car windows were “heavily tinted” and he learned Appellant was 

driving with a suspended license. Id. at 9-10. Officer Fritchman commanded 

Appellant to roll down all of his windows because he could not see into the 

vehicle, did not know how many people were in the vehicle, and was 

“concern[ed] that somebody might exit with a firearm and shoot.” Id. at 11-

12. Officer Fritchman “yelled multiple times, very loud, to roll down all the 

windows. Approximately 30 seconds went by. At that time, [Officer 

Fritchman] believe[d] that [Appellant] was trying to hide something illegal in 

the vehicle at the time.” Id. at 13. Instead, Appellant opened his car door 

and peeked out. Id. For his safety, Officer Fritchman told Appellant to get 

back into the car. Id. at 14. Once the officer approached, he noticed 

Appellant appeared extremely nervous, was breathing heavily, and his hands 

were trembling. Id. at 15. Officer Fritchman asked Appellant if there were 

weapons in the vehicle, Appellant replied no, but consented to a vehicle 

____________________________________________

4

 We note that Appellant does not challenge the legality of the initial traffic 

stop.
J-A13002-22

- 12 -

search. Id. Before Appellant was removed from the vehicle, he made furtive 

movements towards his pocket and a blanket on the back seat and Officer 

Nolan noticed two bullets in plain view in the rear of the vehicle. Id. at 15-

16. Officer Fritchman ordered Appellant to step out of the vehicle and when 

he told Appellant to put his hands on the roof of the car to conduct the frisk, 

Appellant “pushed himself – his whole body – forward right against the car” 

as though “he was trying to conceal [the front of his body so that Officer 

Fritchman] couldn’t reach around the front of [Appellant’s] person.” Id. at 

17. Officer Fritchman then recovered a firearm from Appellant’s waistband 

when conducting a protective frisk. Id. at 16-17. Terry permitted this search 

for weapons, which yielded a gun.

This analysis does not conclude our review of the trial court’s 

suppression ruling, however. In Commonwealth v. Hicks, 208 A.3d 916 

(Pa. 2019), our Supreme Court explained that an individual’s mere possession 

of a concealed firearm in public does not, per se, support a reasonable 

suspicion that criminal activity is afoot under the totality of circumstances and, 

relatedly, does not permit continued detention for further inquiry. In Hicks, 

the Court found

no justification for the notion that a police officer may infer 

criminal activity merely from an individual's possession of a 

concealed firearm in public. [...I]t is not a criminal offense for a 

license holder [] to carry a concealed firearm in public. Although 

the carrying of a concealed firearm is unlawful for a person 

statutorily prohibited from firearm ownership or for a person not 

licensed to do so, see 18 Pa.C.S.A. §§ 6105-6106, there is no way 

to ascertain an individual's licensing status, or status as a 
J-A13002-22

- 13 -

prohibited person, merely by his outward appearance. As a 

matter of law and common sense, a police officer observing an 

unknown individual can no more identify whether that individual 

has a license in his wallet than discern whether he is a criminal.

Unless a police officer has prior knowledge that a specific 

individual is not permitted to carry a concealed firearm, and 

absent articulable facts supporting reasonable suspicion that a 

firearm is being used or intended to be used in a criminal manner, 

there simply is no justification for the conclusion that the mere 

possession of a firearm, where it lawfully may be carried, is alone 

suggestive of criminal activity.

Hicks, 208 A.3d at 936–937 (footnote omitted).

Here, however, Officer Fritchman articulated facts beyond Appellant’s 

mere possession of a gun which showed that Appellant unlawfully possessed 

the firearm. The notes of testimony from Appellant’s suppression hearing 

establish that, once the firearm was recovered, Appellant spontaneously 

stated, “I got myself another ten years.” Id. N.T., 7/7/2021, at 17. Officer 

Fritchman “asked [Appellant] what does that mean, do you have a prior 

felony, and [Appellant] said yes.” Id. After Appellant admitted that he had a 

felony conviction which disqualified him from possessing a firearm, Officer 

Fritchman acquired articulable facts which supported a reasonable suspicion 

that Appellant’s possession of the firearm was unlawful. Hence, Officer 

Fritchman attained lawful justification to detain Appellant for further inquiry.

Under the totality of the circumstances here, Terry permitted a 

weapons search within a context of a lawful, and unchallenged, traffic stop. 

Thereafter, specific and articulable facts emerged, beyond Appellant’s mere 

possession of a weapon, to support Officer Fritchman’s inference that criminal 

activity was afoot. These facts justified the continued detention of Appellant 
J-A13002-22

- 14 -

for further inquiry. See Hicks, supra. Because the challenged detention and 

search were legally justified, Appellant’s consent is legally irrelevant and the 

trial court did not error in denying suppression. 

Moreover, we reject Appellant’s reliance on Commonwealth v. Sierra, 

723 A.2d 644, 645 (Pa. 1999), as we find that case to be distinguishable. In 

Sierra, the police observed Sierra speeding. See Sierra, 723 A.2d at 645. 

Our Supreme Court determined that once the police returned Sierra’s driver’s 

license and vehicle registration and issued a warning for speeding, Sierra 

was free to leave. Id. (emphasis added). However, “[g]iven the 

circumstances surrounding the encounter” including that “two officers 

continued to surround the vehicle” and that an officer “exerted continued 

pressure on the driver by repeating the same question despite having received 

a negative response to his initial inquiry” was “such that no reasonable person 

would have felt free to terminate the encounter.” Id. Here, unlike in Sierra, 

the initial traffic stop had not concluded. While Officer Fritchman returned 

Appellant’s vehicle registration and proof of insurance, he had yet not issued 

a citation for the vehicular violations. N.T., 7/7/2021, at 38-39. In short, 

the traffic encounter here was not resolved. Moreover, because Appellant was 

driving with a suspended license, the police would not have allowed him simply 

to drive away and, instead, would have towed and impounded the vehicle. Id.

at 39. We conclude that this was not a situation where the initial traffic stop 

had concluded, but the police continued to coerce and detain Appellant. 
J-A13002-22

- 15 -

Finally, we note that “[i]n preparing the record for review,” the trial 

court recognized that “the [five] to 10[-]year sentence imposed on Count Two,

[firearms not to be carried without a license,] a third-degree felony, exceeds 

the statutory maximum, and as such, remand is warranted for resentencing 

on that count.” Trial Court Opinion, 1/5/2022, at 4, n.10. We agree. “The 

legality of a criminal sentence is non-waivable, and this Court may raise and 

review an illegal sentence sua sponte.” Commonwealth v. Pi Delta Psi, 

Inc., 211 A.3d 875, 889 (Pa. Super. 2019) (citation omitted). “[W]here an 

appellate [c]ourt determines a sentence is illegal or otherwise improper, the 

Court may not superimpose its judgment on the trial court by directing the 

sentence to be imposed.” Commonwealth v. Holiday, 954 A.2d 6, 10 (Pa. 

Super. 2008) (citation omitted). As such, while we affirm Appellant’s 

convictions, we remand the case for resentencing. 

Convictions affirmed. Remand for resentencing consistent with this 

decision. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/8/2022