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2024 PA Super 36
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALBERTO RIVERA, JR. :
:
Appellant : No. 538 MDA 2023
Appeal from the Judgment of Sentence Entered March 13, 2023
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0000638-2022
BEFORE: PANELLA, P.J.E., KUNSELMAN, J., and COLINS, J.*
OPINION BY KUNSELMAN, J.: FILED: MARCH 4, 2024
Alberto Rivera, Jr. appeals from the judgment of sentence entered after
he was convicted of persons not to possess firearms, firearms not to be carried
without a license, and possession of a small amount of marijuana.1 He
challenges the denial of his motion to suppress evidence. We affirm.
On Thanksgiving morning, 2021, Lancaster City Police Officer Joseph
Graczyk arrested and charged Rivera for illegally possessing a gun. The above
counts were held for court. On July 19, 2022, Rivera moved to suppress “the
fruits of Officer Graczyk’s illegal detention” of him. (He also moved to
suppress the statements he made after his allegedly unlawful arrest.)
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 35 P.S. § 780-113(a)(31).
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The suppression court heard the matter on October 13, 2022. The court
later recounted the following facts from Officer Graczyk’s testimony.2
On November 25, 2021, Officer Graczyk was dispatched to
a car accident on the 200 block of Park Avenue following an
eyewitness report that two vehicles had been struck by another
vehicle. On cross-examination, Officer Graczyk clarified that the
eyewitness saw two vehicles on the sidewalk but did not see the
actual collision. Upon arrival, Officer Graczyk began to check the
entire block for any additional damaged vehicles. While driving in
his car, he noticed a gold Lexus sedan with Pennsylvania
registration [] that was damaged on the driver’s side rear bumper.
The vehicle was located about 25 to 30 yards from where the
vehicles were on the curb.
Officer Graczyk got out of his vehicle to inspect the Lexus
for additional damage and saw a male sitting in the driver’s seat
“completely slumped over.” During his testimony, Officer Graczyk
identified the defendant, Alberto Rivera, Jr., as the male sitting in
the vehicle. Officer Graczyk noted that Rivera’s “whole body was
slumped forward, [with] his hands hanging down between his legs
and his head on the steering wheel.” Based on his experience
with overdosed individuals, Officer Graczyk was concerned about
Rivera’s physical condition and was “unaware if he was breathing,
was still alive, [or] if he needed any further assistance.”
On cross-examination, Officer Graczyk testified that he
could eventually see that Rivera was breathing and did not appear
to have any skin discoloration. He explained that he looked at
Rivera’s hands to look for discoloration to make sure Rivera was
not deceased. As he “looked inside the vehicle, standing up
straight looking down through the window of the driver’s side
____________________________________________
2 By rule, a suppression court must enter findings of fact and conclusions of
law on the record at the conclusion of a suppression hearing. Pa.R.Crim.P.
581(I); see Commonwealth v. Sharaif, 205 A.3d 1286, 1289 (Pa. Super.
2019). Although “a 1925(a) opinion is no substitute for the failure to make
findings of fact and conclusions of law on the record at the conclusion of a
suppression hearing,” appellate review may be possible based on facts in an
opinion in support of an order on appeal. Commonwealth v. Grundza,
819
A.2d 66, 68 n.1 (Pa. Super. 2003).
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door, looking at [his] hands, [Officer Graczyk] could see the
firearm clearly lying on the floor.”
Officer Graczyk described the firearm as a “Glock semiautomatic pistol laying on the floorboard right about six inches
from [Rivera’s] hands. He said that the entirety of the pistol was
in plain view on the floorboards. Officer Graczyk could see a
magazine in the firearm but could not tell if the chamber was
loaded. He could also see “a metal tray sitting on the center
console armrest that had a large amount of marijuana in it.”
Officer Graczyk suspected it to be marijuana based on his
experience and familiarity with the substance as a police officer.
He did not see any paraphernalia such as needles, spoons, or
pipes near the marijuana, nor could he smell it. Officer Graczyk
stated that it appeared to be just a small amount of marijuana for
personal use.
Officer Graczyk called for backup, and when the other
officers arrived, he told them what he saw, and they opened the
unlocked driver’s side door of the vehicle. Immediately after
opening the door, Officer Graczyk removed the firearm from the
vehicle, and the other officers assisted in removing Rivera from
the vehicle. The officers identified themselves once Rivera began
to wake up and become aware of what was going on. Officer
Graczyk stated that at that point, Rivera would not have been free
to go because of the “unholstered firearm in the vehicle at his
feet.” Officer Graczyk’s purpose for detention was “to determine
whether or not [Rivera] was legally allowed to own that pistol and
if he had a concealed firearm license.” Rivera was placed in
handcuffs and detained . . . .
Without advising Rivera of his Miranda rights, [Officer
Graczyk] asked Rivera for his name and whether he had a permit
to carry a concealed firearm. Rivera answered both questions
truthfully and informed the officer that he did not have a permit
to carry a concealed firearm. Officer Graczyk followed up by
asking Rivera if the reason that he did not have a permit was due
to a prior criminal conviction, which Rivera confirmed. When
asked why he appeared to be asleep in the car, Rivera said it was
because he was currently homeless, and his ex-girlfriend was
allowing him to sleep in the vehicle. At that point, Officer Graczyk
took Rivera into custody based on his possession of the firearm.
After Rivera was transported to the police station, Officer
Graczyk called Rivera’s girlfriend . . . . When [she] arrived on the
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scene, the vehicle and keys were released to her after the
marijuana was removed from the vehicle. The marijuana was
eventually field-tested and weighed, and it was determined to
weigh 9 oz.
Suppression Court Opinion, 6/12/23, at 2–4 (record citations omitted).
The suppression court denied Rivera’s motion to suppress. The case
proceeded to a stipulated bench trial on March 13, 2023. The court found
Rivera guilty of the above offenses. It sentenced Rivera to an aggregate term
of 5 to 10 years of imprisonment.
Rivera timely appealed. Rivera and the trial court complied with
Pennsylvania Rule of Appellate Procedure 1925.
Rivera presents the following question for this Court’s review:
Did the trial court err in denying the Motion to Suppress the fruits
of Mr. Rivera’s illegal detention, where his detention was
unsupported by reasonable suspicion or probable cause and was
in violation of the Fourth and Fourteenth Amendments to the
United States Constitution and Article I, Section 8 of the
Constitution of Pennsylvania?
Rivera’s Brief at 6.
Rivera characterizes his encounter with the police as an investigative
detention. He argues that the investigative detention was unconstitutional
because Officer Graczyk’s observations did not provide reasonable suspicion
that Rivera was involved in criminal activity. Specifically, Rivera notes that
case law limits police ability to detain individuals for merely possessing items
that Pennsylvanians can be licensed to possess. See Commonwealth v.
Barr, 266 A.3d 25 (Pa. 2021) (marijuana); Commonwealth v. Hicks,
208
A.3d 916 (Pa. 2019) (firearms). Rivera submits that here, where Officer
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Graczyk saw only a pistol and marijuana, the totality of the circumstances did
not support a reasonable suspicion of criminal activity. Additionally, Rivera
disputes the suppression court’s reliance on Officer Graczyk’s initial testimony
that the amount of marijuana he saw was “large,” as the marijuana was later
tested to weigh 9 ounces.
The Commonwealth distinguishes Hicks and Barr because Rivera did
not just possess marijuana or a gun—he possessed both. The Commonwealth
contends that under applicable law, a person cannot be licensed to carry a
firearm while simultaneously possessing a medical marijuana card. Further,
the Commonwealth points to other circumstances that contributed to Officer
Graczyk’s suspicion, such as Rivera sleeping in a parked car and the marijuana
appearing to be kept in a manner inconsistent with legal medical use. The
Commonwealth thus argues that under the totality of the circumstances
viewed by a trained officer, Officer Graczyk had reasonable suspicion to
investigate Rivera.
This Court, in reviewing the denial of a motion to suppress evidence,
determines whether the record supports the findings of fact and whether the
suppression court’s legal conclusions are correct. Commonwealth v.
McFarland, 278 A.3d 369, 377 (Pa. Super. 2022) (citing Commonwealth v.
Yandamuri,
159 A.3d 503, 516 (Pa. 2017)).
We are bound by the suppression court’s factual findings so long
as they are supported by the record; our standard of review on
questions of law is de novo. Where, as here, the defendant is
appealing the ruling of the suppression court, we may consider
only the evidence of the Commonwealth and so much of the
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evidence for the defense as remains uncontradicted. Our scope
of review of suppression rulings includes only the suppression
hearing record and excludes evidence elicited at trial.
Id.
The United States and Pennsylvania Constitutions protect against
unreasonable searches and seizures. Commonwealth v. Cunningham, 287
A.3d 1, 7 (Pa. Super. 2022). Our courts categorize police–citizen encounters
to find whether an officer unreasonably seized a person. Id. at 7–8. Relevant
here, an investigative detention must be supported by “reasonable suspicion
that criminal activity is afoot.” Id. at 8.
To assess reasonable suspicion, we consider the totality of the
circumstances known to the officer at the time of the investigative detention.
Hicks, 208 A.3d at 927. We have explained:
In determining whether police had reasonable suspicion to
initiate an investigative detention, the fundamental inquiry is an
objective one, namely, whether the facts available to police at the
moment of the intrusion warrant a person of reasonable caution
in the belief that the action taken was appropriate.
This Court has recognized reasonable suspicion exists only
where the officer is able to articulate specific observations which,
in conjunction with reasonable inferences derived from those
observations, led him reasonably to conclude, in light of his
experience, that criminal activity was afoot and that the person
he stopped was involved in that activity.
To demonstrate reasonable suspicion, the detaining officer
must articulate something more than an inchoate and
unparticularized suspicion or hunch. To determine whether
reasonable suspicion exists, we examine the totality of the
circumstances through the eyes of a trained officer and not an
ordinary citizen.
Cunningham, 287 A.3d at 8–9 (formatting altered, citations omitted).
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In Pennsylvania, where many citizens are licensed to carry concealed
firearms, gun possession alone does not provide reasonable suspicion of a
crime. Hicks, 208 A.3d at 937. “Absent some other circumstances giving
rise to a suspicion of criminality, a seizure [based only on carrying a firearm]
is unreasonable.”
Id. at 945.
Likewise, because Pennsylvania allows certain individuals to possess and
use marijuana for medical purposes, the fact that a person has marijuana,
without any other facts, does not provide probable cause for a search. Barr,
266 A.3d at 43. However, “consistent with the reasoning in Hicks, the lawful
possession and use of marijuana, in conjunction with other articulable facts
supporting a finding of probable cause, may be considered in the requisite
analysis of the totality of the circumstances.” Id.; see also Cunningham,
287 A.3d at 9–10 (applying Barr to a reasonable-suspicion analysis).
Here, we initially address the factual finding that Officer Graczyk
observed a “large amount of marijuana.” N.T., 10/13/22, at 10. The officer
also estimated that it was “[j]ust a small amount for personal use.” Id. at
12. The suppression court acknowledged both descriptions and credited the
first description as a “large,” “notable amount” of marijuana. Suppression
Court Opinion, 6/12/23, at 3, 10–11. The court was free to do so, given a
discrepancy that was “not material.” Commonwealth v. Fudge, 213 A.3d
321, 327 (Pa. Super. 2019). What drives the analysis in this case is that
Rivera appeared to possess unpackaged marijuana, not the quantity of
marijuana that he appeared to have.
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The key facts are that while Officer Graczyk checked to see if Rivera
needed medical assistance, he saw both a Glock pistol and a metal tray with
marijuana in the car. Because the gun was in a vehicle, Rivera would need a
license to carry it. 18 Pa.C.S.A. § 6106(a)(1). Although the firearm alone, or
the marijuana alone, would not warrant police intrusion, the presence of both
justified further investigation. Significantly, the marijuana was unpackaged,
which suggested that it was not medical marijuana. See 35 P.S.
§ 10231.303(b)(6) (requiring medical marijuana to be kept in its original
packaging). The presence of the non-medical marijuana with the gun also
gave rise to the suspicion that Rivera was possessing the firearm illegally.
See Hicks, 208 A.3d at 945.
The law in Pennsylvania generally prohibits any marijuana user from
possessing a concealed firearm. The United States Code prohibits firearm
possession by anyone “who is an unlawful user of or addicted to any controlled
substance” as defined in federal law. 18 U.S.C. § 922(g)(3); see United
States v. Augustin,
376 F.3d 135, 139 (3d Cir. 2004) (requiring a “temporal
nexus” between unlawful drug use and firearm possession to sustain a Section
922(g)(3) conviction). Federal law classifies all marijuana as a Schedule I
controlled substance with no lawful use, notwithstanding Pennsylvania’s
Medical Marijuana Act.
21 U.S.C. § 812(c)(c)(10); see United States v.
Cannon,
36 F.4th 496, 500 (3d Cir. 2022) (per curiam). And anyone “who is
prohibited from possessing a firearm under the statutes of the United States”
cannot obtain a concealed carry license in Pennsylvania. 18 Pa.C.S.A.
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§ 6109(e)(1)(xiv). Under this statutory structure, a Pennsylvanian who uses
marijuana, even medical marijuana, is unable to obtain a license to carry a
concealed firearm.
As a result, Officer Graczyk’s observations of unpackaged marijuana and
a firearm in the vehicle provided reasonable suspicion to detain Rivera and
investigate whether he had a license to carry the firearm. Since this was a
lawful detention, Rivera’s arguments to the contrary fail. Therefore, the
suppression court did not err in denying Rivera’s motion to suppress the fruits
of the lawful detention, i.e., the gun, the marijuana, and Rivera’s statements.3
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 3/4/2024
____________________________________________
3 Rivera makes no separate argument on appeal whether his statements were
properly obtained under Miranda v. Arizona, 384 U.S. 436 (1966).
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