J-A07016-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOBE WRIGHT

Appellant No. 1368 WDA 2015

Appeal from the Judgment of Sentence August 12, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No: CP-02-CR-0016470-2014

BEFORE: OLSON, STABILE, and STRASSBURGER,*JJ. 

MEMORANDUM BY STABILE, J.: FILED JUNE 5, 2017

Appellant, Jobe Wright, appeals from the August 12, 2015 judgment of 

sentence entered in the Court of Common Pleas of Allegheny County (“trial 

court”) sentencing Appellant to a period of incarceration of 11 months and 

29 days to 23 months and 29 days for firearms not to be carried without a 

license.1 Appellant is challenging the denial of his motion to suppress. Upon 

review, we affirm.

Following a motor vehicle stop on October 19, 2014, Appellant was 

charged with carrying a firearm without a license, persons not to possess, 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 6106(a)(1). 
J-A07016-17

- 2 -

use, manufacture, control, sell or transfer firearms,2and two motor vehicle 

code violations. Appellant filed an omnibus pretrial motion to suppress on 

April 10, 2015. A hearing was held on Appellant’s motion on May 13, 2015. 

The trial court summarized the factual findings and evidence presented at 

the suppression hearing as follows. 

On May 13, 2015, [the trial court] conducted a suppression 

hearing followed by a non-jury trial. The Commonwealth called 

only one witness, Officer Devin McGee (“McGee”) at the 

suppression hearing. McGee has been employed with the City of 

Pittsburgh Police since 2012. On October 19, 2014, he was 

patrolling the Hill District of Zone 2, which is a high crime area, 

with homicides, shootings, drug trafficking, robberies and gang 

violence. McGee testified he frequently patrolled the Hill District.

On October 19, 2015, McGee initiated a traffic stop of the 

vehicle [Appellant] was operating as the registration plate had 

an expired tag on it. When he ran the plate, it came back with 

no registration at all. When McGee initially stopped the vehicle, 

he saw the passenger side door open a few inches and there was 

tint on the windows. He also was able to observe a sticker 

hanging in the left rear window by one piece of tape. It 

appeared to be a temporary registration tag, but it was not 

secured to the window as it should be, secured by tape all the 

way around. McGee approached the vehicle’s driver side and 

made contact with [Appellant]. As McGee was informing 

[Appellant] as to why he was being pulled over, [Appellant] kept 

his hands between his legs, was visibly shaking, breathing heavy 

and then move[d] as if he were about to reach under the seat. 

The Officer identified Mr. Wright as [Appellant] in the red 

jumpsuit at defense table.

There were three people in the vehicle. [Appellant] was 

the only one with identification. The other two provided their 

names and birthdates, which McGee verified. The back seat 

____________________________________________

2 18 Pa.C.S.A. §§ 6106(a)(1) and 6105, respectively. 
J-A07016-17

- 3 -

passenger made a fist and hid it under his leg, and this put 

McGee on alert that he may be trying to hide or retrieve a 

weapon. Backup arrived next and because McGee told him of 

the movements, they began to have the occupants exit the 

vehicle. They were patted down for weapons and none were 

found. They were seated down on the curb behind the vehicle in 

between it and the police vehicle. McGee then began a 

wingspan search for weapons, starting at the driver’s side. 

McGee keyed in on the lower area near the driver’s lap would be 

as that’s where he observed [Appellant’s] hands moving and, 

then, he looked under the seat and observed a firearm.

At the time of the search, McGee had his dash cam video 

running and he was wearing a body microphone. He was able to 

copy the video and save it onto a disk and the microphone 

picked up the audio of the incident. The Commonwealth offered 

the stipulated dash cam video into evidence and played it before 

[the trial court]. McGee asked [Appellant] who owned the 

vehicle and he replied that it was his. After McGee retrieved the 

firearm, he placed [Appellant] into custody. At that point, the 

vehicle was to be towed away because [Appellant] was the 

driver, it was illegally parked and the other two occupants did 

not have a driver’s license. As a standard procedure, an 

inventory search was performed to protect the officers from any 

accusations that something of value was stolen out of the car. 

During the inventory search another firearm was found under 

the passenger seat.

Regarding the firearm under the driver’s seat, McGee 

stated that it was positioned as if you had it in your hand, with 

the grip closest to the driver’s side and the barrel facing the rear 

seat and tucked under the seat within inches. When McGee saw 

[Appellant] making movements toward the front edge of the 

seat, he feared for his safety. In addition, McGee asked 

[Appellant] if he was licensed to carry and he said “no.” McGee 

retrieved the firearm only after he became aware [Appellant] 

wasn’t licensed to carry.

At the conclusion of the suppression hearing, [the trial] 

court denied the omnibus pre-trial motion to suppress. The nonjury-trial began immediately thereafter. [The] Commonwealth 

next moved to integrate McGee’s testimony as well as the video 

evidence into the non-jury hearing.
J-A07016-17

- 4 -

Trial Court Opinion, 6/15/16, at 3-6. 

At the conclusion of the non-jury trial, Appellant was found guilty of 

carrying a firearm without a license and persons not to possess firearms. 

The trial court found Appellant not guilty of the motor vehicle code 

violations. The trial court sentenced Appellant on August 12, 2015.3 On 

September 8, 2015, Appellant filed a notice of appeal. The trial court 

directed compliance with Pa.R.A.P. 1925(b), and after multiple extensions of 

time, Appellant filed a concise statement of errors complained of on appeal 

on March 21, 2016. The trial court issued a Pa.R.A.P. 1925(a) opinion on 

June 15, 2016. 

Appellant raises one issue on appeal, which we repeat verbatim.

I. Whether the trial court erred in not granting [Appellant’s] 

motion to suppress the Hi Point firearm found under the 

driver’s seat of his car when the police did not have a 

warrant to search [Appellant’s] car and, under the 

circumstances of this case, no exception to the warrant 

requirement was applicable[.]

Appellant’s Brief at 5. 

Our standard of review for a denial of a motion to suppress is well 

established. 

____________________________________________

3 Appellant was sentenced to a period of incarceration of 11 months and 29 

days to one year, 11 months, and 29 days followed by a period of five years’ 

probation on the firearm to be carried without a license. The trial court 

imposed no additional sentence on the persons not to possess charge. 
J-A07016-17

- 5 -

[a]n appellate court may consider only the Commonwealth’s 

evidence 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 record supports the factual findings of 

the trial court, the appellate court is bound by those facts and 

may reverse only if the legal conclusions drawn therefrom are in 

error. However, it is also well settled that the appellate court is 

not bound by the suppression court’s conclusions of law. 

Commonwealth v. Nguyen, 116 A.3d 657, 663-64 (Pa. Super. 2015) 

(citations omitted). During an investigative stop, an officer must have 

reasonable suspicion based upon the totality of the circumstances to conduct 

a limited search. See Commonwealth v. Carter, 105 A.3d 765, 769 (Pa. 

Super. 2014) (en banc) (citation omitted). Moreover, 

“When a police officer lawfully stops a motorist for a violation of 

the Pennsylvania Motor Vehicle Code, the officer is permitted to 

ask the drive [(sic)] to step out of the vehicle ‘as a matter of 

right’.” Commonwealth v. Parker, 957 A.2d 311 (Pa. Super. 

2008), appeal denied, 600 Pa. 755, 966 A.2d 571 (2009). 

Further, “an officer has the right to conduct a weapons search of 

an automobile if there is a reasonable belief that the suspect is 

dangerous and that the suspect might gain immediate control of 

weapons.” Commonwealth v. Austin, 428 Pa.Super. 466, 631 

A.2d 625, 627 (1993).

Commonwealth v. Boyd, 17 A.3d 1274, 1277 (Pa. Super. 2011). In 

addition, 

“An officer could conduct a warrantless search of those portions 

of the passenger compartment of a vehicle in which a weapon 

could be hidden when the circumstances were such that ‘a 

reasonably prudent man in the circumstances would be 

warranted in the belief that his safety or the safety of the others 

was in danger,’ so long as this belief was based on specific 

articulable facts.”
J-A07016-17

- 6 -

Id. (quoting Commonwealth v. Morris, 644 A.2d 721, 723 (Pa. 1994), 

writ of certiorari denied, 513 U.S. 1031 (1994)). 

In the matter sub judice, Appellant is not challenging the investigative 

stop, instead, he is challenging the officer’s warrantless search of the 

vehicle. The trial court found that after stopping Appellant’s vehicle, Officer 

McGee informed Appellant why he was pulled over. At this time Appellant 

“kept his hands between his legs, was visibly shaking, breathing heavy[,] 

and then move[d\ as if he were about to reach under the seat.” Trial Court 

Opinion at 4. Furthermore, “[t]he backseat passenger made a fist and hid it 

under his leg, and this put McGee on alert that he may be trying to hide or 

retrieve a weapon.” Id. Similar to the matter sub judice, this Court found a 

protective search constitutionally valid in In re O.J., 958 A.2d 561 (Pa. 

Super. 2008) (en banc). In O.J. officers pulled over a vehicle for a motor 

vehicle violation. Id. at 563. This Court found that the driver’s rapid and 

furtive hand movements over the console, combined with the time of the 

stop, and the dangerous driving by the defendant, were articulable facts that 

supported the officers reasonable suspicion that a weapon may have been in 

the console. Id. at 566. Moreover, the search of the console in O.J. “was 

specifically confined to the area where the hand movements had occurred.” 

Id.

While an “unparticularized suspicion or ‘hunch’” is not sufficient to 

establish reasonable suspicion, the facts of the matter sub judice showcase 

that Officer McGee was able to base his suspicion on articulable facts. See 
J-A07016-17

- 7 -

Commonwealth v. Zhahir, 751 A.2d 1153, 1158 (Pa. 2000). In the 

matter sub judice, Officer McGee’s testimony revealed that Appellant 

appeared nervous, moved as if he was about to reach under the seat, and 

the passenger made a fist and hid it under his leg. Based on the totality of 

the circumstances, these facts led Officer McGee to reasonably believe a 

weapon was present. Thus, Appellant’s argument fails. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/5/2017