J-A01027-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

RICHARD ALLEN SETTLES, JR., :

:

Appellant : No. 1729 WDA 2013

Appeal from the Judgment of Sentence October 9, 2013,

Court of Common Pleas, Fayette County,

Criminal Division at No. CP-26-CR-0000210-2012

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 24, 2015

Richard Allen Settles, Jr. (“Settles”) appeals from the judgment of 

sentence entered following his convictions of possession of a controlled 

substance and possession of a controlled substance with the intent to deliver 

(“PWID”).1 Settles challenges only the trial court’s denial of his motion to 

suppress. We find no error in the trial court’s denial of Settles’ suppression 

motion but conclude that his sentence is illegal. Accordingly, we vacate the 

judgment of sentence and remand for resentencing. 

The trial court summarized the facts underlying Settles’ convictions as 

follows: 

On January 27, 2012, around 1:12 a.m., Patrolman 

Jamie Holland of the Uniontown Police Department, 

conducted a traffic stop on a van that failed to use a 

right turn signal at an intersection. N.T., 7/31/2012, 

 

1 35 P.S. § 780-113(a)(16), (30). 
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at 3-4. As he exited his vehicle, Holland immediately 

detected the odor of marijuana coming from the van, 

the smell of which grew stronger as he neared the 

van. Id. at 6-7. After asking the driver of the van, [] 

Settles, for his identification, the officer alerted him 

that he could smell marijuana coming from the 

vehicle. Id. at 7.

Because of the odor of the marijuana, Holland had 

[Settles] exit the vehicle. Id. at 8. To ensure 

officer’s safety, Holland performed a Terry frisk on 

[Settles] to check for weapons. Id. at 8-9. During 

the pat down, in [Settles’] pants pocket, from the 

feel and packaging, the officer felt what he 

recognized to be a packaged narcotic. Id. at 9. The 

item was a small amount of marijuana in a clear 

plastic baggie that was tied and knotted in the corner 

of the baggie. Id. The officer then proceeded to 

conduct an investigative search of the driver’s area 

by looking into the van but[] not by entering the 

van. Id. at 10, 23-24. As he looked into the van, 

Holland could see, in plain view, a garbage bag with 

marijuana packed inside. Id. at 10, 23. Upon 

viewing the packaged marijuana, he obtained a 

search warrant to search the van. Id. at 11. 

Trial Court Opinion, 4/7/14, at 2-3. The search of the van revealed two 

garbage bags full of marijuana, weighing a total of 22,740 grams (or 50.13 

pounds). The marijuana recovered from Settles’ front pocket weighed 2.9 

grams. Following a jury trial, Settles was convicted of the above-mentioned 

crimes and sentenced to five years of imprisonment2and ordered to pay 

various fines and costs. This timely appeal follows. 

 

2 The trial court imposed this sentence on the PWID charge pursuant to 18 

Pa.C.S.A. § 7508(a)(1)(iii). See Trial Court Order, 10/9/13, at 1. 
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Settles sets forth two issues for our review in the statement of 

questions involved portion of his brief on appeal: “Whether all evidence 

should be suppressed when the Terry [f]risk [r]ule was violated” and 

“Whether the [e]xclusionary [r]ule applies to the warrantless search of 

vehicle [sic].” Settles’ Brief at 7.3

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. 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 courts 

below are subject to our plenary review. Moreover, 

appellate courts are limited to reviewing only the 

evidence presented at the suppression hearing when 

examining a ruling on a pre-trial motion to suppress.

Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014). 

 

3

In the argument section of his brief, Settles does not delineate two 

separate arguments. This runs afoul of our rules, which provide that “[t]he 

argument shall be divided into as many parts as there are questions to be 

argued; and shall have at the head of each part--in distinctive type or in 

type distinctively displayed--the particular point treated therein, followed by 

such discussion and citation of authorities as are deemed pertinent.” 

Pa.R.A.P. 2119(a). We urge Settles’ counsel to hew more closely to the 

rules governing briefing requirements in the future. 
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The thrust of Settles’ issues is that Officer Holland could not search his 

vehicle without a warrant, and therefore that the trial court should have 

suppressed the evidence found therein. We cannot agree. In 

Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), the Pennsylvania 

Supreme Court removed the twin requirements of both probable cause and 

exigency for a lawful search of an automobile without a warrant. It held as 

follows: 

In sum, our review reveals no compelling 

reason to interpret Article I, Section 8 of the 

Pennsylvania Constitution as providing greater 

protection with regard to warrantless searches 

of motor vehicles than does the Fourth 

Amendment. Therefore, we hold that, in this 

Commonwealth, the law governing warrantless 

searches of motor vehicles is coextensive with 

federal law under the Fourth Amendment. The 

prerequisite for a warrantless search of a 

motor vehicle is probable cause to search; 

no exigency beyond the inherent mobility 

of a motor vehicle is required. The 

consistent and firm requirement for probable 

cause is a strong and sufficient safeguard 

against illegal searches of motor vehicles, 

whose inherent mobility and the endless 

factual circumstances that such mobility 

engenders constitute a per se exigency 

allowing police officers to make the 

determination of probable cause in the first 

instance in the field.

Gary, 91 A.3d at 138 (emphasis added). Thus, an officer may lawfully 

search an automobile without a warrant when he or she has probable cause 

to believe that a crime has been committed or is being committed. At the 
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suppression hearing, Officer Holland testified that he smelled an 

overwhelming aroma of marijuana (not burning marijuana) emanating from 

Settles’ vehicle. N.T., 7/31/12, at 8. This provided probable cause to 

believe that criminal activity was occurring, see Commonwealth v. El, 933 

A.2d 657, 661 (Pa. Super. 2007), aff'd, 602 Pa. 126, 977 A.2d 1158 (2009) 

(“The standard for probable cause is whether the facts and circumstances 

within the officer's knowledge are sufficient to warrant a reasonably cautious 

person to believe that an offense has been or is being committed.”), and 

therefore permitted a lawful search of the vehicle without a warrant.4

We now turn our attention to Settles’ sentence.5 The trial court 

imposed only a minimum sentence of five years. Trial Court Order, 10/9/13, 

 

4 We pause to note two things. First, although the Gary decision was 

published four months before the briefs in this case were filed, neither 

Settles nor the Commonwealth mention it. Settles contended, at oral 

argument, that the holding of Gary would apply only prospectively. We 

disagree. See Passarello v. Grumbine, 87 A.3d 285, 307 (Pa. 2014) 

(“The general rule in Pennsylvania is that appellate courts apply the law in 

effect at the time of appellate review.”) Furthermore, despite his 

proclamation, Settles has not made a post-argument submission to this 

Court to expound on this theory or provide us with authority in support of 

his position. 

Second, the notes of testimony from the suppression hearing reveal that 

after observing marijuana in plain view, Officer Holland secured the vehicle 

and sought a warrant before continuing his search. N.T., 7/31/12, at 10-

11. He was not required to do so; as we explained, pursuant to Gary, 

Officer Holland could have performed the search without a warrant. 

5

It is axiomatic that this Court may raise issues concerning the legality of a 

sentence sua sponte. See Commonwealth v. Mitchell, 986 A.2d 1241, 

1244 n.3 (Pa. Super. 2009). 
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at 1. A flat sentence such as this is illegal because it violates section 9756 

of the sentencing code, which requires a trial court to specify both a 

maximum and minimum term when entering a sentence of total 

confinement. Commonwealth v. Mitchell, 986 A.2d 1241, 1243 (Pa. 

Super. 2009); see also 42 Pa.C.S.A. § 9756(b). Accordingly, we must 

vacate Settles’ sentence and remand to the trial court for resentencing.6 

Judgment of sentence vacated. Case remanded. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/24/2015

 

6

 We note that since the imposition of Settle’s sentence, this Court has 

found the statutory sentencing provision upon which the trial court relied, 18 

Pa.C.S.A. 7508, unconstitutional. Commonwealth v. Cardwell, __ A.3d 

__, 2014 WL 6656644 (Pa. Super. Nov. 25, 2014).