J-S44028-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CORY JONES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1519 EDA 2022

Appeal from the Judgment of Sentence Entered June 3, 2022

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

No(s): CP-51-CR-0008671-2019

BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.: FILED MARCH 28, 2024

Appellant Cory Jones appeals from the judgment of sentence imposed 

following his conviction for VUFA and related offenses. Appellant challenges 

the sufficiency of the evidence, the denial of his motion to suppress, and the 

discretionary aspects of his sentence. We affirm.

The trial court summarized the underlying facts and procedural history 

of this matter as follows:

On November 6, 2019, at approximately 11:46 p.m., uniformed 

[Philadelphia] police officers Stallbaun and Devlin were on routine 

patrol in the City’s 39th Police District. N.T., 3/1/22, 8-9. Officer 

Stallbaun noticed a black Chrysler Sebring pass their marked 

cruiser at a high rate of speed. Id. at 9. Without activating their 

lights or sirens, Officers Stallbaun and Devlin began to follow the 

Sebring from a distance of several car-lengths back. Id. at 10. 

Still moving at a high rate of speed, the officers watched the 

Sebring make an abrupt right turn. Id. at 10. Without signaling, 

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* Retired Senior Judge assigned to the Superior Court.
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the Sebring pulled into an illegal parking space—partially on the 

pavement and too near a fire hydrant. Id. at 10-11. 

Activating the cruiser’s lights, the officers exited their vehicle and 

approached the Sebring. Id. at 12-13. [Appellant] quickly exited 

from the Sebring’s driver-side and began walking away. Id. at 

13-14. The officers gave him verbal commands to return to his 

vehicle, but [Appellant] ignored their commands and continued 

walking. Id. at 14. The officers caught up to [Appellant] and 

escorted him back to the Sebring. Id. at 15. [Appellant] resisted 

these efforts and grew enraged as the officers continued talking. 

Id. A struggle ensued. Id. For their safety, the officers 

attempted to handcuff [Appellant], but they could not restrain 

him. Id. As [Appellant’s] struggle grew more violent, each officer 

deployed his taser in turn, but neither could subdue [Appellant]. 

Id. at 15-16. Only once backup arrived were the officers able to 

secure the scene. Id. at 16. Thereafter, one of the backup 

officers alerted Officer Stallbaun to an exposed handgun on the 

Sebring’s driver-side floorboard, in plain-view through the 

window. Id. at 17. The car had no other occupants. Id. at 20. 

[Appellant] was subsequently charged with four counts: (i) 

possession of firearm prohibited, (ii) firearms not to be carried 

without a license, (iii) carrying firearms on public streets in 

Philadelphia, and (iv) resisting arrest or other law enforcement.[1]

On September 12, 2020, [Appellant] moved to suppress the 

recovered firearm. On November 12, 2020, the Honorable Donna 

M. Woelpper denied his motion. [Appellant] elected a bench trial 

and, on March 1, 2022, was tried before this court. [Appellant]

was found guilty on all four counts. 

On June 3, 2022, this court sentenced [Appellant] to a term of 

three-to-six-years of incarceration with a two-year probationary 

tail. The present appeal ensues.

Trial Ct. Op., 1/18/23, 1-2 (some formatting altered).

Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P 

1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing 

Appellant’s claims.

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1 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 6108, and 5104.
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On appeal, Appellant raises the following issues:

1. Whether the evidence presented at trial was sufficient to 

establish each and every element of the crimes for which 

Appellant was convicted. 

2. Whether the suppression court erred by denying the motion to 

suppress despite evidence of a warrantless search of 

Appellant’s vehicle without exigent circumstances. 

3. Whether the sentencing court abused its discretion by imposing 

a manifestly excessive sentence that was not based upon the 

gravity of the violation, the extent of Appellant’s record, his 

prospect of rehabilitation, nor an assessment of the mitigating 

and aggravating factors as noted in 42 Pa. C.S. Section 9721 

of the Sentencing Code.

Appellant’s Brief at 8.

Sufficiency of the Evidence

In his first claim, Appellant argues that there was insufficient evidence 

to sustain his convictions. Appellant’s Brief at 14. Specifically, Appellant 

argues that the Commonwealth failed prove that he constructively possessed 

the firearm. Id. Appellant further claims that the Commonwealth’s evidence 

was uncorroborated and “in contradiction to the physical facts, as proven by 

the inconclusive DNA results.” Id. at 15-16.

In reviewing a challenge to the sufficiency of the evidence, our standard 

of review is as follows: 

Because a determination of evidentiary sufficiency presents a 

question of law, our standard of review is de novo and our scope 

of review is plenary. In reviewing the sufficiency of the evidence, 

we must determine whether the evidence admitted at trial and all 

reasonable inferences drawn therefrom, viewed in the light most 

favorable to the Commonwealth as verdict winner, were sufficient 

to prove every element of the offense beyond a reasonable doubt. 
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[T]he facts and circumstances established by the Commonwealth 

need not preclude every possibility of innocence. It is within the 

province of the fact-finder to determine the weight to be accorded 

to each witness’s testimony and to believe all, part, or none of the 

evidence. The Commonwealth may sustain its burden of proving 

every element of the crime by means of wholly circumstantial 

evidence. Moreover, as an appellate court, we may not re-weigh 

the evidence and substitute our judgment for that of the factfinder. 

Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation 

omitted).

This Court has explained that in order to “preserve a sufficiency claim, 

[an appellant’s] Rule 1925(b) statement must specify the element or elements 

upon which the evidence was insufficient.” Commonwealth v. Widger, 237 

A.3d 1151, 1156 (Pa. Super. 2020). If an appellant does not specify such 

elements, the sufficiency claim is waived. See Commonwealth v. Roche, 

153 A.3d 1063, 1072 (Pa. Super. 2017). 

Here, Appellant filed a Rule 1925(b) statement challenging the 

sufficiency of the evidence for all of his underlying convictions. See Rule 

1925(b) Statement, 12/18/22, at 1. However, Appellant did not identify the

element or elements for which the evidence was insufficient.2 See id. 

Therefore, because Appellant failed to identify the specific elements on which 

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2 As noted above, Appellant was convicted of separate firearms charges and 

resisting arrest, which have disparate and unrelated elements. See 18 

Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 6108, and 5104.
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his sufficiency claim was based, his claim is waived for appellate review.3 See 

Roche, 153 A.3d at 1072; Widger, 237 A.3d at 1156. Therefore, Appellant 

is not entitled to relief.

Motion to Suppress

Appellant also argues that the suppression court erred in denying his 

motion to suppress the firearm recovered from his vehicle. Appellant’s Brief 

at 16. Specifically, Appellant claims that “[e]ven if the suppression court 

found the testimony that the gun was in plain view to be credible,” the firearm 

was illegally seized from his vehicle because there were no exigent 

circumstances to justify a warrantless search. Id. at 17-18 (citing 

Commonwealth v. Alexander, 218 A.3d 380 (Pa. 2019)).

The Commonwealth responds that the firearm was lawfully seized by 

police under the plain view exception to the warrant requirement. 

Commonwealth’s Brief at 15-16. Further, to the extent Appellant relies on

Alexander, the Commonwealth notes that Alexander did not address the 

plain view exception and is therefore inapplicable to the instant case. Id.

(citing, inter alia, Commonwealth v. McMahon, 280 A.3d 1069, 1073 (Pa. 

Super. 2022), Commonwealth v. Lutz, 270 A.3d 571, 576 (Pa. Super. 

2022); Commonwealth v. Smith, 285 A.3d 328, 332 (Pa. Super. 2022)).

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3

In any event, the trial court explained that there was evidence establishing 

that Appellant had constructive possession of the firearm. See Trial Ct. Op. 

at 4. Therefore, even if Appellant properly preserved this claim for review, we 

would affirm based on the trial court’s analysis of this issue.
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Our standard of review is as follows:

An appellate court’s 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. Gray, 211 A.3d 1253, 1260 (Pa. Super. 2019) (citation 

omitted). 

This Court has explained:

The Fourth Amendment to the United States Constitution and 

Article I, Section 8 of the Pennsylvania Constitution protect 

individuals from unreasonable searches and seizures, thereby 

ensuring the right of each individual to be let alone.”

Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super. 2002) 

(citations and quotation marks omitted). “A warrantless search 

or seizure is presumptively unreasonable under the Fourth 

Amendment and Article I, § 8, subject to a few specifically 

established, well-delineated exceptions.” Commonwealth v. 

McCree, 924 A.2d 621, 627 (Pa. 2007) (citation 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. Simonson, 148 A.3d 792, 797 (Pa. Super. 

2016) (citation omitted). 

Smith, 285 A.3d at 332.
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“The plain view doctrine provides that evidence in plain view of the 

police can be seized without a warrant.” Commonwealth v. Luczki, 212 

A.3d 530, 546 (Pa. Super. 2019) (citation omitted). “This doctrine permits a 

valid warrantless seizure of an item where: (1) the police have not violated 

the Fourth Amendment in arriving at the location from which the item could 

be viewed; (2) the item is in plain view; (3) the incriminating character of the 

item is immediately apparent; and (4) the police have a lawful right of access 

to the item itself.” Id. (citation omitted).

In his brief, Appellant relies on Alexander to support his claim that 

exigent circumstances were necessary for the police to seize the firearm from 

Appellant’s vehicle. See Appellant’s Brief at 16-18. 

This Court has explained:

Regarding the automobile exception, in [Alexander,] our 

Supreme Court reaffirmed that “the Pennsylvania Constitution 

requires both a showing of probable cause and exigent 

circumstances to justify a warrantless search of an automobile.” 

Alexander, 218 A.3d at 181. In reaching this conclusion, the 

Court expressly overruled Commonwealth v. Gary, 91 A.3d 102 

([Pa.] 2014), which had adopted the federal automobile exception 

to the warrant requirement that allowed police to conduct a 

warrantless vehicle search based solely on probable cause, with 

no exigency required beyond the inherent mobility of a motor 

vehicle. However, the decision in Alexander does not address 

the plain view exception or any alterations to its requirements. 

Therefore, where the circumstances permit an application of the 

plain view exception, we need not apply Alexander.

Smith, 285 A.3d at 332; see also McMahon, 280 A.3d at 1073 (explaining 

that “Alexander addresses the automobile exception to the warrant 

requirement, not the plain view exception”); Lutz, 270 A.3d at 576 (holding 
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that “Alexander did not impact [the trial court’s] ruling because its decision 

did not ‘rest upon the analytical underpinnings of the automobile exception to 

the warrant requirement, but rather upon an application of the plain view’” 

exception); Commonwealth v. Davis, 287 A.3d 467, 473 (Pa. Super. 2022) 

(rejecting the appellant’s claim that “Alexander requires the Commonwealth 

to prove exigent circumstances where the officers have lawfully seized an 

object under the plain view doctrine”).

Our Supreme Court has expressly recognized that 

incriminating objects plainly viewable [in the] interior of a 

vehicle are in plain view and, therefore, subject to seizure 

without a warrant. This doctrine rests on the principle that 

an individual cannot have a reasonable expectation of 

privacy in an object that is in plain view. 

Commonwealth v. Turner, 982 A.2d 90, 92 (Pa. Super. 2009)

(citations and quotation marks omitted). The Pennsylvania 

Supreme Court has distinguished the limited intrusion of the 

seizure of evidence in plain view from the greater intrusion of an 

automobile search. McCree, 924 A.2d at 627.

Id.

Here, the suppression court addressed Appellant’s claim as follows:

At the suppression hearing, Officer Stallbaum testified that he 

observed [Appellant] driving approximately 10 miles per hour 

above the speed limit, before making an abrupt turn onto a “small”

street (Archer Street), whereupon [Appellant] again traveled at 

an excessive rate of speed, before turning into the parking lane 

and on top of the sidewalk without using his turning signal. As 

such, police observed multiple violations of the Vehicle Code, 

justifying their investigation.

[Appellant] does not take issue with the seizure of his person, nor 

could he, as he clearly failed to comply with the officers’ repeated 

instructions to return to the vehicle. See Commonwealth v. 

Pratt, 930 A.2d 561, 567 (Pa. Super. 2007) (police are permitted 
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to order an individual who exits a lawfully stopped vehicle to 

return to the vehicle; “a police officer’s instructions to a passenger 

of a lawfully stopped vehicle to re-enter and remain in the vehicle 

do not violate an individual’s rights under the Article I, Section 8

of the Pennsylvania Constitution.”) 

Moreover, when the officers attempted to place [Appellant] in 

handcuffs, his violence “escalated,” requiring the assistance of

back up officers just to place him in handcuffs. After [Appellant]

was taken into custody, Officer Stout observed a black handgun 

in plain view on the driver’s side floor of his vehicle. Officer 

Stallbaum testified that Officer Stout did not enter the vehicle but 

observed it from a lawful vantage point, which Officer Stallbaum 

also confirmed during questioning by the assigned Assistant 

District Attorney (ADA):

Q: And Officer Stout pointed to it? 

A: He did. 

Q: Do you know if he got into the car at all? 

A: He did not. 

Q: And how do you know that? 

A: I was right there. 

Q: So what happened after he pointed to the firearm? 

A: I went over and observed it myself. 

Q: And at some point this firearm was recovered? 

A: It was. 

Q: How did the recovery come about?

A: I recovered it from the floorboard. 

Q: How did you get into the vehicle? 

A: One of the other officers, I believe my partner, unlocked 

it. He picked up the keys that were dropped by [Appellant] 

in the middle of the street. 

N.T. 9/22/20 at 12-13.
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The record thus establishes that police observed the handgun in 

plain view from a lawful vantage point. Under such circumstances, 

police need not demonstrate exigent circumstances to justify the 

seizure. See Davis, 287 A.3d at 472 (“Our Supreme Court has 

expressly recognized that incriminating objects plainly viewable 

[in the] interior of a vehicle are in plain view and, therefore, 

subject to seizure without a warrant. This doctrine rests on the 

principle that an individual cannot have a reasonable expectation 

of privacy in an object that is in plain view.”) [(citation omitted)]. 

As such, the court did not err in denying [Appellant’s] motion.

Suppression Ct. Op., 2/7/23, at 6-8.

Following our review, we conclude that the record supports the 

suppression court’s factual findings and discern no error in the legal 

conclusions drawn from those facts. See Gray, 211 A.3d at 1260. The record 

reflects that the police lawfully seized the firearm from Appellant’s vehicle 

under the plain view exception to the warrant requirement. See Luczki, 212 

A.3d at 546. Unlike the vehicle search at issue in Alexander, police had a 

lawful right of access to the firearm observed in plain view. See McCree, 924 

A.2d at 627 (distinguishing the limited intrusion of the seizure of evidence in 

plain view from the greater intrusion of an automobile search); see also 

McMahon, 280 A.3d at 1073; Lutz, 270 A.3d at 576; Smith, 285 A.3d at

332. Accordingly, Appellant is not entitled to relief on this issue.

Discretionary Aspects of Sentence

In his remaining claim, Appellant challenges the discretionary aspects 

of his sentence. Appellant’s Brief at 19-20. Specifically, Appellant argues that 

the trial court’s sentence was unreasonable as the trial court “only considered 

the nature of the offense, without any consideration of the characteristics of 
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[A]ppellant or his rehabilitative needs.” Id. at 20. Appellant further contends 

that the trial court failed to “state any of the factors regarding [A]ppellant’s 

treatment needs as findings upon which the imposition of the sentence was 

based.” Id. Finally, Appellant asserts that “a state correctional sentence 

was unnecessary, as [A]ppellant was not a risk to commit another crime 

during a period of partial confinement or probation[,] Appellant could receive 

the necessary treatment without commitment to a state institution, and a 

lesser sentence would not depreciate the seriousness of [A]ppellant’s crime.” 

Id. 

“[C]hallenges to the discretionary aspects of sentencing do not entitle 

an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987, 

991 (Pa. Super. 2016) (citations omitted). Before reaching the merits of such 

claims, we must determine: 

(1) whether the appeal is timely; (2) whether Appellant preserved 

his issues; (3) whether Appellant’s brief includes a [Pa.R.A.P. 

2119(f)] concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary aspects of 

sentence; and (4) whether the concise statement raises a

substantial question that the sentence is inappropriate under the 

sentencing code. 

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations 

omitted).

“To preserve an attack on the discretionary aspects of sentence, an 

appellant must raise his issues at sentencing or in a post-sentence motion. 

Issues not presented to the sentencing court are waived and cannot be raised 
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for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247, 

1251 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a) 

(stating that “[i]ssues not raised in the trial court are waived and cannot be 

raised for the first time on appeal”).

Here, the record reflects that Appellant failed to preserve this issue at 

sentencing or in a post-sentence motion. Therefore, Appellant’s claim is 

waived. See Malovich, 903 A.2d at 1251; see also Pa.R.A.P. 302(a) 

Accordingly, Appellant is not entitled to relief.

Judgment of sentence affirmed. Jurisdiction relinquished.

Date: 3/28/2024