J-S61042-19

2019 PA Super 358

COMMONWEALTH OF PENNSYLVANIA

v.

DAVON MARKIEM WRIGHT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2991 EDA 2018

Appeal from the Judgment of Sentence Entered June 7, 2018

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

No(s): CP-51-CR-0001903-2017

BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED DECEMBER 19, 2019

Appellant, Davon Markiem Wright, appeals from the judgment of 

sentence entered in the Court of Common Pleas of Philadelphia County 

following his conviction by a jury on the charges of possession of firearm 

prohibited, firearms not to be carried without a license, carrying firearms in 

public in Philadelphia, and unlawful body armor.1 After a careful review, we 

affirm.

The relevant facts and procedural history are as follows: Following his 

arrest, Appellant filed a counseled omnibus pre-trial motion seeking the 

suppression of physical evidence seized by the police. Specifically, Appellant 

averred the police lacked reasonable suspicion or probable cause to detain 

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 6108, and 907(c), respectively.
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him beyond what was necessary to effectuate a routine traffic stop. The 

matter proceeded to a suppression hearing on July 18, 2017, at which 

Philadelphia Police Officer John Lang was the sole testifying witness. 

Officer Lang, who has been a police officer for over eleven years,

testified that, on February 14, 2017, he and his partner were dispatched to 

Club Onyx on South Columbus Boulevard to investigate threats made against 

the club. N.T., 7/18/17, at 7-9, 15. Club Onyx is in an area where “numerous 

shootings” and “a few homicides” have occurred. Id. at 15-16. As the officers

were driving a marked police cruiser to the club, at approximately 11:20 p.m., 

they observed a black Hyundai parked a short distance from the club in one 

of the two southbound travel lanes of Columbus Boulevard. Id. at 9-10. The 

officers did not effectuate a stop of the Hyundai, but continued to the club to 

perform their investigation. Id. at 10. 

The officers were in the club for approximately thirty to forty-five 

minutes, and when they left, they travelled northbound on Columbus 

Boulevard. Id. As they drove away from the club, they noticed the same black 

Hyundai was still parked in the same southbound travel lane of Columbus 

Boulevard. Id. at 10-12. 

At this point, the officers drove their police vehicle across the island 

between the northbound and southbound lanes and parked in front of the 

black Hyundai so that the vehicles came “bumper to bumper” with each other. 

Id. at 10. Officer Lang testified they “indicate[d] a traffic stop” because the 
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black Hyundai was parked near the club where they were investigating the 

threat offenses, and additionally, the vehicle was parked in a lane of travel as 

opposed to being in a proper parking spot. Id. at 10-11. Officer Lang noted 

that people are not “allowed to park in that lane[,]” and “it’s very hazardous 

to...park there.” Id. at 11. 

Officer Lang testified that, after he and his partner initiated the traffic 

stop, he approached the driver’s side of the black Hyundai while his partner 

approached the passenger’s side. Id. at 12. Appellant was sitting in the

driver’s seat; there were no passengers in the black Hyundai. Id. Officer 

Lang testified he approached Appellant and asked him for his license, 

registration, and insurance card. Id. He also asked Appellant why he was 

parked in the travel lane, and Appellant responded that he was “using his cell 

phone[.]” Id. Officer Lang testified he had not seen Appellant using his cell 

phone. Id. at 12-13. Officer Lang indicated that at this point in the 

interaction, Appellant, who was wearing tactical pants, used his left hand to 

grab towards a small pocket on his left pant leg while his right hand went 

towards the gearshift in the center console. Id. at 13. 

Believing Appellant was going to drive away, Officer Lang and his 

partner repeatedly requested that Appellant exit the vehicle, and despite 

Appellant saying “I am, I am, I am[,]” Appellant made no move to exit the 

vehicle. Id. at 13-14. Instead, Appellant continued to reach for the gearshift. 

Id. at 14. Officer Lang opened the driver’s side door and, at this point, he 
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noticed Appellant was wearing a ballistic vest with a police-style insignia or 

badge indicating “agent.” Id. Appellant was also wearing a thin, partially 

unzipped windbreaker over the vest. Id. Officer Lang observed that the front 

center pocket of the windbreaker was “very weighted down,” and based on 

his training, he believed there was a firearm in the pocket. Id. at 14-15. 

Appellant continued to resist exiting the black Hyundai while reaching for the 

gearshift, so Officer Lang, who feared for his safety, with the assistance of his 

partner, forcibly removed Appellant from the black Hyundai. Id. at 15, 20.

After they removed Appellant from the vehicle, they put him face-down 

on the ground, and Officer Lang “hear[d] a clanking sound when [Appellant] 

hit the ground.” Id. at 21. Officer Lang believed the “clanking sound” was 

the sound of a gun hitting the ground. Id. Officer Lang indicated that 

Appellant would not put his hands behind his back but kept them underneath 

his body. Id. When Officer Lang reached under Appellant to grab his hands, 

he felt the firearm. Id. The officer took the firearm, which was a loaded Glock 

19, and slid it underneath the parked black Hyundai so that it was out of 

everyone’s reach. Id. at 22. Appellant was then successfully handcuffed. Id.

Officer Lang testified the police seized from Appellant’s person the 

ballistics vest, a PA certified badge, a bail enforcement badge, a Philadelphia 

permit to carry a firearm, a certified agent identification card, and a laminated 

bail enforcement identification card. Id. at 23. Officer Lang later determined 

that Appellant’s permit to carry a firearm was not valid. Id. 
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At the conclusion of the hearing, the suppression court denied 

Appellant’s suppression motion, and on March 26, 2018, a jury convicted 

Appellant of the offenses indicated supra. On June 7, 2018, the trial court 

sentenced Appellant to eight years to sixteen years in prison, to be followed 

by eighteen months of probation, for possession of a firearm prohibited; three 

years to six years in prison, to be followed by eighteen months of probation, 

for firearms not to be carried without a license; and three years to six years 

in prison, to be followed by eighteen months of probation, for unlawful body 

armor. The sentences were imposed concurrently to each other; no further 

penalty was imposed for carrying firearms in public in Philadelphia. 

Appellant filed a timely, counseled motion for reconsideration of 

sentence, which was denied by operation of law on October 5, 2018. On 

October 16, 2018, Appellant filed a timely, counseled notice of appeal.2 

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2 On October 18, 2018, recognizing its eighteen month probationary tail on 

the firearms not to be carried without a license and unlawful body armor 

convictions clearly exceeded the statutory maximum, the trial court entered 

an amended sentencing order to reflect that the probationary tail had been 

reduced to twelve months with regard to each conviction. We note the

Pennsylvania Supreme Court has recognized that the trial court possesses the 

inherent jurisdiction to correct “patent and obvious mistakes” beyond the 

general rule set forth in 42 Pa.C.S.A. § 5505 and Pa.R.A.P. 1701. See

Commonwealth v. Holmes, 593 Pa. 601, 933 A.2d 57, 66-67 (2007)

(holding the trial court may correct a sentence that is illegal on its face

notwithstanding the time limits set forth in Section 5505 and despite the fact 

an appeal is pending).
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On appeal, Appellant contends the suppression court erred in denying 

his motion to suppress the physical evidence seized by Officer Lang. 

Specifically, while Appellant does not challenge the validity of the initial traffic 

stop,3 he contends that “the stop was only permitted to last as long as 

necessary to issue a traffic citation[, but] the officer[s] detained Appellant for 

longer than necessary and conducted a search of Appellant...without 

reasonable suspicion.” Appellant’s Brief at 7. 

Our standard of review of the denial of a motion to suppress evidence 

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. 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 [the] 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 are] subject to plenary 

review.

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3

In any event, as the suppression court noted, the officers were permitted to 

effectuate a traffic stop due to Appellant’s violation of 75 Pa.C.S.A. § 3351, 

pertaining to parking a vehicle on the roadway. See Commonwealth v. 

Bozeman, 205 A.3d 1264 (Pa.Super. 2019) (discussing Section 3351).
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Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super. 2012).

Moreover, “[a]ppellate 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. Stilo, 138 A.3d 33, 35-36 

(Pa.Super. 2016) (citation omitted)). Also, “[i]t is within the suppression 

court’s sole province as factfinder to pass on the credibility of witnesses and 

the weight to be given their testimony.” Commonwealth v. Gallagher, 896 

A.2d 583, 585 (Pa.Super. 2006) (quotation marks and quotation omitted). 

It is well-settled that, during a traffic stop, the officer “may ask the 

detainee a moderate number of questions to determine his identity and to try 

to obtain information confirming or dispelling the officer’s suspicions.” 

Berkemer v. McCarty, 468 U.S. 420, 439 (1984). See Commonwealth v. 

Harris, 176 A.3d 1009 (Pa.Super. 2017). Moreover, during “a lawful traffic 

stop, the officer may order [] the driver...of a vehicle to exit the vehicle until 

the traffic stop is completed, even absent a reasonable suspicion that criminal 

activity is afoot.” Commonwealth v. Pratt, 930 A.2d 561, 564 (Pa.Super. 

2007). See Commonwealth v. Dunham, 203 A.3d 272 (Pa.Super. 2019) 

(noting a police officer conducting a lawful traffic stop may order the driver to 

get out of the car); Commonwealth v. Campbell, 862 A.2d 659 (Pa.Super. 

2004) (holding that during a routine traffic stop the police may request the 

driver exit the vehicle as a matter of course). We have recognized that “‘when 

an officer detains a vehicle for violation of a traffic law, it is inherently 
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reasonable that he or she be concerned with safety and, as a result, may order 

the occupants of the vehicle to alight from the car.’” Harris, 176 A.3d at 1009 

(quoting Commonwealth v. Rosas, 875 A.2d 341, 348 (Pa.Super. 2005)). 

“[A]llowing police officers to control all movement in a traffic encounter...is a 

reasonable and justifiable step towards protecting their safety.” Pratt, 930 

A.2d at 567-68. 

Further, “if there is a legitimate stop for a traffic violation...additional 

suspicion may arise before the initial stop’s purpose has been fulfilled; then, 

detention may be permissible to investigate the new suspicions.” 

Commonwealth v. Chase, 599 Pa. 80, 960 A.2d 108, 115 n.5 (2008). “[F]or 

their safety, police officers may handcuff individuals during an investigative 

detention.” Harris, 176 A.3d at 1021 (footnote and citation omitted). 

Additionally, the officer may conduct a pat-down of a suspect’s outer 

garments if the officer observes conduct that leads him to reasonably believe 

the suspect may be armed and dangerous. Commonwealth v. Mack, 953 

A.2d 587, 590 (Pa.Super. 2008) (noting officer’s observation of suspect’s 

reaching movements while suspect was in vehicle can lead officer to 

reasonably conclude his safety is in jeopardy). In considering whether 

evidence supports a Terry4frisk, we are “guided by common sense concerns, 

giving preference to the safety of the officer during an encounter with a 

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4 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968).
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suspect where circumstances indicate that the suspect may have, or may be 

reaching for, a weapon.” Mack, 953 A.2d at 590. “In order to establish 

reasonable suspicion, the police officer must articulate specific facts from 

which he could reasonably infer that the individual was armed and dangerous.”

Id. When assessing the validity of a Terry frisk, we examine the totality of 

the circumstances. Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153 

(2000).

Here, as the suppression court aptly noted, upon effectuating the lawful 

traffic stop, Officer Lang approached Appellant, who was sitting in the driver’s 

seat of the black Hyundai, and asked Appellant for his license, registration, 

and insurance card, as well as Appellant’s purpose for parking in the travel 

lane of Columbus Boulevard. We conclude these questions were all properly 

part of Officer Lang’s investigation of the initial traffic stop. See Harris, 

supra. 

During this initial interaction, Appellant responded that he was parked 

in the road because he was using his cell phone. Officer Lang noticed 

Appellant kept reaching his left hand towards a pocket on his left pant leg 

while Appellant’s right hand kept reaching towards the gearshift in the center 

console. Officer Lang testified he asked Appellant to exit the vehicle at this 

juncture because he was concerned Appellant was going to drive way. We 

conclude that, even assuming, arguendo, Officer Lang did not have reasonable 

suspicion to think criminal activity beyond the initial traffic stop was afoot, he 
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was permitted to order Appellant to exit the vehicle as a matter of course in 

connection with the initial traffic stop, which was still ongoing. See Dunham, 

supra; Pratt, supra; Campbell, supra. 

Officer Lang testified that, at this point, despite repeated requests, 

Appellant made no move to exit the vehicle and, instead, he kept reaching for 

the gearshift. Accordingly, Officer Lang opened the driver’s side door. This 

was legally permissible. See Commonwealth v. Thorne, 191 A.3d 901 

(Pa.Super. 2018). 

As soon as he opened the car door, Officer Lang noticed Appellant was 

wearing a ballistic vest with some kind of badge, as well as a thin windbreaker

which appeared to be “very weighted down” in the front pocket. Based on his 

training, Officer Lang believed the “heavy” item to be a handgun. Further, 

Officer Lang testified Appellant resisted exiting the black Hyundai while 

continuing to reach toward the gearshift, thus Officer Lang and his partner 

forcibly removed Appellant from the vehicle. 

Even assuming, arguendo, as Appellant argues, Officer Lang was not 

permitted to forcibly remove Appellant from the vehicle as a matter of course 

in connection with the initial traffic stop, we agree with the suppression court 

that additional reasonable suspicion arose such that Officer Lang was 

permitted to forcibly remove Appellant from the vehicle. See Mack, supra. 

Simply put, under the totality of the circumstances, Officer Lang had 

reasonable suspicion to believe that Appellant was armed and dangerous such 
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that he could remove Appellant from the vehicle to conduct a pat-down for 

weapons. See id. 

Thereafter, as Appellant continued to struggle, Officer Lang heard a 

“clanking sound” when Appellant was placed face-down on the ground, and 

when the officer reached under Appellant, he felt the firearm. Officer Lang 

properly seized the firearm at this juncture. See Harris, supra; Mack, 

supra. Further, upon seizing the gun, Officer Lang had probable cause to 

arrest, as well as search Appellant’s person incident to the arrest. See 

Commonwealth v. Simonson, 148 A.3d 792 (Pa.Super. 2016) (explaining 

probable cause to arrest and “search incident to arrest” exception). 

Accordingly, we conclude the suppression court properly denied Appellant’s 

motion to suppress.

For all of the foregoing reasons, we affirm.

Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/19/19