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Commonwealth v. Wright

Superior Court of Pennsylvania

December 19, 2019

COMMONWEALTH OF PENNSYLVANIA
v.
DAVON MARKIEM WRIGHT Appellant

          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

          STEVENS, P.J.E.

         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 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 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 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.

         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, ...


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