J-S54023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JESUS MANUEL BELTRAN-LEON
Appellant No. 2214 MDA 2013
Appeal from the Judgment of Sentence October 28, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001711-2012
BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED OCTOBER 30, 2014
Appellant, Jesus Manuel Beltran-Leon, appeals from the October 28,
2013 aggregate judgment of sentence of four to eight years’ incarceration,
imposed following his conviction by a jury of persons not to possess a
firearm, firearms not to be carried without a license, possession of a
controlled substance (cocaine), and the summary traffic offense of periods
for requiring lighted lamps.1 After careful review, we affirm.
A review of the certified record reveals the following history of the
case. Based on circumstances that unfolded during a traffic stop, Appellant
was charged on December 25, 2011, with the latter three of the
aforementioned offenses. On March 27, 2012, the trial court permitted the
____________________________________________
1
18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 35 P.S. § 780-113(a)(16), and 75
Pa.C.S.A. § 4302(a)(1), respectively.
J-S54023-14
Commonwealth to amend its information to add the charge of persons not to
possess a firearm. On May 9, 2012, Appellant filed an omnibus pretrial
motion, including a motion to suppress physical evidence allegedly obtained
by the police as a result of their illegal detention of Appellant. After a
hearing held on June 25, 2012, the trial court denied Appellant’s pretrial
motions by order filed January 15, 2013. The matter proceeded to a jury
trial on September 13, 2013.2 At the conclusion of the trial, the jury found
Appellant guilty of all counts, and the trial court found Appellant guilty of the
summary traffic offense.
Prior to sentencing, Appellant’s privately retained trial counsel
petitioned for leave to withdraw his representation after Appellant’s
sentencing, as he had not been retained to represent Appellant beyond that
proceeding. The trial court granted the petition by order entered October
15, 2013, to be effective at the conclusion of Appellant’s sentencing. The
trial court sentenced Appellant on October 28, 2013, to an aggregate term of
incarceration of four to eight years.3 At sentencing, as the trial court was
____________________________________________
2
The trial was held jointly with Appellant’s co-defendant, Jose Rigoberto
Garcia-Quintero.
3
The trial court imposed a term of four to eight years’ incarceration on the
person not to possess firearm count, a concurrent term of incarceration of
three to six years on the possession of a firearm without a license count, and
a concurrent term of incarceration of six to 12 months on the possession of a
controlled substance count.
-2-
J-S54023-14
advising Appellant of his post-sentence rights, counsel initiated the following
exchange.
[TRIAL COUNSEL]: I had filed a motion to
withdraw which Judge Trebilcock had granted that on
October 15th effective after today’s date…. I think
[Appellant] is interested in filing an appeal. I think
his issues raised at the suppression matter are
certainly viable and I would request the court give []
consideration. I understand he’s filed for a public
defender. One has not been yet assigned to him.
THE COURT: Very well. We’ll direct[] the
transcription of the record, expand the time within
which to file post-sentence motions for 45 days
as well as time within which to file a [sic]
appeal. That can be expanded if the transcript has
not been provided to the public defender for good
cause shown.
N.T., 10/28/13, at 9-10 (emphasis added). Appellant did not file a post-
sentence motion. On December 12, 2013, Appellant filed a notice of
appeal.4
____________________________________________
4
We note that a timely appeal must be filed within 30 days of the judgment
of sentence in open court. Pa.R.A.P. 903(c)(3). “[T]he timeliness of an
appeal implicates our jurisdiction and may be raised sua sponte”
Commonwealth v. Trinidad, 96 A.3d 1031, 1035 (Pa. Super. 2014)
(citations omitted). The period for filing an appeal may not be enlarged by
this Court. Pa.R.A.P. 105(b). Instantly, Appellant’s notice of appeal was
filed 45 days after the trial court imposed its judgment of sentence, and
ordinarily we would quash the appeal as untimely. “However, we have held
that we will address an otherwise untimely appeal if fraud or breakdown in
the trial court’s processes resulted in an untimely appeal.” Commonwealth
v. Khalil, 806 A.2d 415, 420 (Pa. Super. 2002) (citation omitted), appeal
denied, 818 A.2d 503 (Pa. 2003). This Court has declined to quash an
appeal where a “problem arose as a result of the trial court’s misstatement
of the appeal period, which operated as a breakdown in the court’s
operation.” Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super.
(Footnote Continued Next Page)
-3-
J-S54023-14
On December 13, 2013, the trial court issued an order directing
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). On January
3, 2014, the trial court granted an extension, requiring Appellant to file his
Rule 1925(b) statement on or before February 3, 2014. Appellant filed his
Rule 1925(b) statement on February 4, 2014. In a footnote within his
concise statement, Appellant noted, “[t]he deadline for filing this 1925(b)
statement was February 3, 2014, however due to a winter snow storm, the
Clerk of Court’s Office was closed on that date.” 5 Appellant’s Rule 1925(b)
_______________________
(Footnote Continued)
2001). Instantly, the trial court advised Appellant that his new counsel
would have 45 days to file a post-sentence motion and notice of appeal.
Appellant filed his notice of appeal in reliance on the trial court’s
representation. In light of the cited authority, we decline to quash this
appeal.
5
Although counsel’s assertion, that due to inclement weather the Office of
the Clerk of Courts of York County was closed on February 3, 2014, is not
corroborated in the record, neither the trial court nor the Commonwealth
questions this assertion contained in his Rule 1925(b) statement, and we
see no reason to do so. Nevertheless, we note Appellant should have sought
leave to file nunc pro tunc for extraordinary circumstances per Rule
1925(b)(2), rather than assume acceptance of his late filing.
Commonwealth v. Kearney, 92 A.3d 51, 59-60 (Pa. Super. 2014).
However, even if we deem Appellant’s Rule 1925(b) statement untimely, we
note this Court has held that such “failure to timely file a Rule 1925(b)
statement is the equivalent of a failure to file said statement.”
Commonwealth v. Fischere, 70 A.3d 1270, 1275, n.2 (Pa. Super. 2013)
(en banc), appeal denied, 83 A.3d 167 (Pa. 2013), citing Commonwealth
v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012). Since such late filing is
tantamount to per se ineffective assistance of counsel, we may address any
late filed issues in lieu of a remand, if the trial court has fully addressed
them in its Rule 1925(a) opinion. Id., citing Thompson, supra. Such is
the case here.
-4-
J-S54023-14
Statement, 2/4/14, at 2, n.1. On February 24, 2014, the trial court filed its
Rule 1925(a) opinion. Therein the trial court referenced its January 15,
2013 opinion as containing the reasoning for its denial of Appellant’s pretrial
motions, now questioned on appeal.
On appeal, Appellant raises the following issue for our consideration.
Whether the suppression court committed an error of
law in denying Appellant’s Omnibus Pre-Trial Motion
to Suppress Evidence when the police maintained
Appellant in an unlawful investigatory detention after
determining that they lacked probable cause to
arrest Appellant for DUI?
Appellant’s Brief at 4.
A challenge to a trial court’s denial of a suppression motion implicates
this Court’s following standard of review.
[We are] 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.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations and
quotation marks omitted), cert. denied, Jones v. Pennsylvania, 131 S. Ct.
110 (2010).
This Court is bound by those of the suppression
court’s factual findings which find support in the
record, but we are not bound by the court’s
conclusions of law. When the suppression court’s
specific factual findings are unannounced, or there is
-5-
J-S54023-14
a gap in the findings, the appellate court should
consider only the evidence of the prevailing
suppression party … and the evidence of the other
party … that, when read in the context of the entire
record, remains uncontradicted.
Commonwealth v. Astillero, 39 A.3d 353, 357 (Pa. Super. 2012), appeal
denied, 48 A.3d 1246 (Pa. 2012) (citation omitted).
However, where the appeal of the determination of
the suppression court turns on allegations of legal
error, [t]he suppression court’s conclusions of law
[…] are not binding on an appellate court, whose
duty it is to determine if the suppression court
properly applies the law to the facts. As a result, the
conclusions of law of the suppression court are
subject to plenary review.
Commonwealth v. Anderson, 40 A.3d 1245, 1247 (Pa. Super. 2012),
appeal denied, 51 A.3d 837 (Pa. 2012) (citation omitted).
In this case, Appellant avers that the physical evidence seized from his
vehicle was “the result of [the police] illegally holding [Appellant] in
custody[, and] must be suppressed.” Appellant’s Brief at 12.
Article I, § 8 of the Pennsylvania Constitution
and the Fourth Amendment to the United States
Constitution both protect the people from
unreasonable searches and seizures. Jurisprudence
arising under both charters has led to the
development of three categories of interactions
between citizens and police. The first, a “mere
encounter,” does not require any level of suspicion or
carry any official compulsion to stop or respond. The
second, an “investigative detention,” permits the
temporary detention of an individual if supported by
reasonable suspicion. The third is an arrest or
custodial detention, which must be supported by
probable cause.
-6-
J-S54023-14
In evaluating the level of interaction, courts
conduct an objective examination of the totality of
the surrounding circumstances. Commonwealth v.
Strickler, 563 Pa. 47, 757 A.2d 884, 889 (2000)
(citations omitted).
Commonwealth v. Lyles, 97 A.3d 298, 302, (Pa. 2014) (some citations
omitted)
A totality-of-the-circumstances approach allows the
court to consider all facts at the officer’s disposal and
does not require the court to disregard those
adduced during a valid interdiction, [such as a]
traffic stop. Indeed, routine constitutional analysis
requires courts to utilize facts gathered during each
escalating phase of a police investigation in
determining whether police acted properly as the
interaction between police and citizen proceeded
towards an arrest.
Commonwealth v. Kemp, 961 A.2d 1247, 1258-1259 (Pa. Super. 2008).
In [Commonwealth v. Strickler, 757 A.2d
884, 889 (Pa. 2000)], our Supreme Court set forth a
number of factors to assist in determining whether
the interaction between a defendant and a police
officer following the conclusion of a valid traffic stop
is a mere encounter or an investigative detention:
(1) the presence or absence of police
excesses; (2) whether there was physical
contact; (3) whether police directed the
citizen's movements; (4) police demeanor and
manner of expression; (5) the location and
time of the interdiction; (6) the content of the
questions and statements; (7) the existence
and character of the initial investigative
detention, including its degree of coerciveness;
(8) ‘the degree to which the transition between
the traffic stop/investigative detention and the
subsequent encounter can be viewed as
seamless, ... thus suggesting to a citizen that
his movements may remain subject to police
-7-
J-S54023-14
restraint,’ ... and (9) whether there was an
express admonition to the effect that the
citizen-subject is free to depart, which ‘is a
potent, objective factor.’
Commonwealth v. Kemp, 961 A.2d 1247, 1253
(Pa.Super.2008) (en banc) (citing and quoting
Strickler, 563 Pa. at 75, 757 A.2d at 898–99).
When an individual has been subjected to a valid
detention but police then continue to engage the
person in conversation, the person is less likely to
believe that he is actually free to leave the scene.
Id.
Commonwealth v. Caban, 60 A.3d 120, 127-128 (Pa. Super. 2012),
appeal denied, 79 A.3d 1097 (Pa. 2013). “To maintain constitutional
validity, an investigative detention must be supported by a reasonable and
articulable suspicion that the person seized is engaged in criminal activity
and may continue only so long as is necessary to confirm or dispel such
suspicion….” Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000).
The facts involving the traffic stop, further detention and subsequent
arrest of Appellant transpired as follows. Appellant was driving on Carlisle
Street in Hanover Borough at around 11:00 p.m. on December 24, 2011.
N.T., 6/25/12, at 58. He was observed by Hanover Borough Police Officer
Kelly Brubaker to be travelling without headlights on. Id. Officer Brubaker
effected a traffic stop, and in her subsequent interaction with Appellant,
developed a suspicion of a possible driving under the influence of alcohol
(DUI) violation. Id. at 11, 64. Officer Brubaker then directed Appellant to
exit the vehicle in order to perform field sobriety tests. Id. As Appellant is
-8-
J-S54023-14
a native Spanish speaker, Officer Brubaker questioned his comprehension of
her instructions on how to perform the tests, which were not completed. Id.
at 12-13, 64. Hanover Borough Police Sergeant Jason Byers heard the
report of the traffic stop and proceeded to the scene due to his greater
relative experience with DUI arrests.6 Id. at 11. Upon arrival, Sergeant
Byers detected an odor of alcoholic beverage emanating from Appellant’s
breath and learned that Appellant had admitted to drinking. Id. at 12.
Sergeant Byers then administered an additional field sobriety test, which
Appellant completed successfully. Id. Sergeant Byers described Appellant’s
demeanor as “giggly and laughing,” and stated “he appeared he may be
intoxicated.” Id. at 14. The officers then had Appellant submit to a
preliminary test of his breath (PBT), which indicated a blood alcohol content
(BAC) of .158. Id. at 12.
Thereafter, the police officers determined there was no probable cause
to arrest Appellant for DUI. Id. at 13. This was due in part to the Hanover
Borough Police Department’s policy that “the [PBT] is not used to make an
arrest[, but] simply used to confirm [] suspicions.” Id. at 8. Nevertheless,
the officers did not release Appellant as they had concerns about Appellant’s
____________________________________________
6
Sergeant Beyers had nine years’ experience with the Hanover Borough
Police Department, handling about 10 to 20 DUI arrests per year. Officer
Brubaker and a third officer on the scene, Officer Mease, by contrast, each
had only about two years’ experience. N.T., 6/25/12, at 4-5, 11.
-9-
J-S54023-14
ability to drive home safely. Id. at 14-15. Specifically, Sergeant Byers
testified at the suppression hearing as follows.
[BY ASSISTANT DISTRICT ATTORNEY:]
Q. Okay. And I want to talk specifically
about some of the things that you observed about
[Appellant]. You indicated that you did not feel at
that time as though you had probable cause for the
arrest for [DUI]. Did [Appellant] appear to be
intoxicated or drunk?
[BY SERGEANT BYERS:]
A. He appeared to have been drinking,
obviously from admitting he had been drinking, the
odor of alcoholic beverage, he was giggly and
laughing, but he was not specifically what I would –
I’m trying to think how to phrase this. He appeared
he may be intoxicated, and certainly upon providing
the PBT, it was – I was able to say that, yes he very
well could have this BAC with the behaviors he’s
explained; however, I’m a firm believer that you
have to build the probable cause, and I’m not just
going to use a BAC to say that – or a breath test to
say, okay, now he’s intoxicated.
I certainly didn’t feel, upon learning of
the breath sample BAC, that I was going to allow
him to walk away. I did not feel it was safe for him
to walk away, and again, based on my observations
of the passenger, I was certainly not going to allow
him to drive or walk away from the scene.
Id. at 14-15.7
____________________________________________
7
The passenger was Appellant’s co-defendant, Garcia-Quintero, who had the
odor of alcoholic beverage emanating from his breath, had trouble staying
awake during the stop, and had trouble balancing upon exiting the vehicle.
N.T., 6/25/12, at 15-16.
- 10 -
J-S54023-14
After affording Appellant the opportunity to call for a ride, which
proved unsuccessful, the officers directed Appellant to enter the back of one
of the police cruisers in order to be transported home. Id. at 24. Upon
securing the keys to the vehicle, Sergeant Byers observed an open
container, containing what smelled like an alcoholic beverage. Id. at 42-43.
Sergeant Byers, then directed Garcia-Quintero to exit the passenger seat for
the same purpose. Id. Sergeant Byers returned to Appellant’s vehicle to
reposition it in a legally parked manner. Id. at 26. When closing the
passenger door, Sergeant Byer observed a gun leaning against the center
console. Id. at 27. Appellant and Garcia-Quintero were then removed from
the cruisers to be held more securely and were searched for weapons. Id.
at 29. In the process of securing the gun, Sergeant Byers observed a dollar
bill folded in a manner that according to his training suggested it was being
used as a packet for narcotics. Id. at 29-30. On closer inspection, it was
discovered that the dollar bill contained a white powdery substance, which
field-tested as cocaine. Id. at 31. Appellant was read his Miranda rights in
both Spanish and English. Id. at 58-59. Appellant then gave his permission
to the police to further search the vehicle. Id. at 33-34. Sergeant Byers
noted an abundance of air fresheners placed throughout the vehicle and
what appeared to be disturbed panel coverings. Id. at 34-35. After
checking databases, the police officers determined neither Appellant nor
Garcia-Quintero had a license to carry a firearm and neither was the
- 11 -
J-S54023-14
registered owner of the firearm. Id. at 32-33. Appellant was then placed
under arrest. Id. at 32. Thereafter, a search warrant was obtained for the
vehicle and two packets of cocaine were found in the subsequent search.
Id. at 35-36.
Instantly, Appellant concedes the initial traffic stop was legal and
supported by probable cause of the headlight infraction. Appellant’s Brief at
13, citing Commonwealth v. Chase, 960 A.2d 108, 115-116 (Pa. 2008).
Similarly, Appellant does not challenge that upon interacting with Appellant
during the traffic stop, Officer Brubaker, and later Sergeant Byers, made
observations supporting a reasonable suspicion of possible DUI. Id. at 13-
14. However, noting Strickler’s admonition that detentions based on
reasonable suspicion should last only so long “as is necessary to confirm or
dispel such suspicion,” Appellant argues his further detention by the police
after they determined no probable cause existed to arrest for DUI was
illegal. Id. at 12, 13, quoting Commonwealth v. LaMonte, 859 A.2d 495,
500 (Pa. Super. 2004), quoting Strickler, supra.
Making excuses to detain [Appellant] any longer
after the officers made [the] determination [that
probable cause for DUI did not exist] was a violation
of the 4th Amendment and Article 1, Section 8. The
appropriate course of action was to let Appellant go.
The seizure was illegal. The evidence obtained as a
result of the continued unlawful detention should
have been suppressed.
Id. at 17.
- 12 -
J-S54023-14
Citing Commonwealth v. Brown, 654 A.2d 1096, 1097 (Pa. Super.
1995), appeal denied, 664 A.2d 972 (Pa. 1995), the trial court concluded the
removal of Garcia-Quintero from the vehicle was lawful and “the weapon in
question, although not visible until [] Garcia-Quintero[] was taken out of the
vehicle, was not [obtained as] a result of illegal police conduct.” Trial Court
Opinion, 1/15/13, at 6. In Brown, we held “that an officer, when making a
lawful stop of a motor vehicle, may order the occupants out of the car
despite the lack of a reasonable suspicion that the passengers are engaged
in criminal activity.” Brown, supra. As Brown was an appeal by a
passenger challenging his own seizure without independent reasonable
suspicion during a traffic stop, it is inapposite to the instant appeal, where
Appellant lacks standing to challenge Garcia-Quintero’s detention.8
Instantly however, the decision by the police officers to not arrest
Appellant for DUI did not negate the existence of probable cause, which is
evaluated on an objective, not subjective, basis. Our Supreme Court has
recently clarified this principle.
In order to determine whether probable cause
exists to justify a warrantless arrest, we must
consider the totality of the circumstances.
[Commonwealth v. Clark, 735 A.2d 1248, 1252
____________________________________________
8
Although we deem the trial court’s rationale inapposite, we can
nonetheless affirm the trial court’s decision for reasons other than those
upon which it relied. See Commonwealth v. Harper, 611 A.2d 1211,
1213 n.1 (1992).
- 13 -
J-S54023-14
(Pa. 1999)]; see also lllinois v. Gates, 462 U.S.
213, 233 (1983). “Probable cause exists where the
facts and circumstances within the officer’s
knowledge are sufficient to warrant a person of
reasonable caution in the belief that an offense has
been or is being committed,” and must be “viewed
from the vantage point of a prudent, reasonable,
cautious police officer on the scene at the time of the
arrest guided by his experience and training.”
Clark, supra at 1252 (quotation omitted). As we
have stated:
Probable cause is made out when the
facts and circumstances which are within the
knowledge of the officer at the time of the
arrest, and of which he has reasonably
trustworthy information, are sufficient to
warrant a man of reasonable caution in the
belief that the suspect has committed or is
committing a crime. The question we ask is
not whether the officer’s belief was correct or
more likely true than false. Rather, we require
only a probability, and not a prima facie
showing, of criminal activity. In determining
whether probable cause exists, we apply a
totality of the circumstances test.
Commonwealth v. Thompson, 985 A.2d 928, 931
(Pa. 2009) (emphasis in original; citations and
quotation marks omitted).
In the Fourth Amendment context, “the fact
that the officer does not have the state of mind
which is hypothecated by the reasons which provide
the legal justification for the officer’s action does not
invalidate the action taken as long as the
circumstances, viewed objectively, justify that
action.” Whren v. United States, 517 U.S. 806,
813 (1996). In other words,
Fourth Amendment reasonableness is
predominantly an objective inquiry. We ask
whether the circumstances, viewed objectively,
justify the challenged action. If so, that action
- 14 -
J-S54023-14
was reasonable whatever the subjective intent
motivating the relevant officials. This
approach recognizes that the Fourth
Amendment regulates conduct rather than
thoughts….
Ashcroft v. al-Kidd, --- U.S. ----, ----, 131 S. Ct.
2074, 2080 (2011) (citations and quotation mark
omitted).
Commonwealth v. Martin, --- A.3d ---, 2014 WL 4745782, *10-11 (Pa.
2014).
Accordingly, we reject Appellant’s position that the decision by the
police not to charge him with DUI, due to their subjective belief that
probable cause did not exist, eliminated all legitimacy for his continued
detention. Here, applying the foregoing standard and viewing the totality of
the circumstances known to the officers at the time they observed the
firearm, we conclude that probable cause did objectively exist to arrest
Appellant for DUI. These factors include the open container found in the
vehicle, Appellant’s admission that he had been drinking, the odor of
alcoholic beverage on his breath, Appellant’s demeanor as “giggling and
laughing,” and the PBT’s BAC results of .158.
Although not always admissible at trial, “a portable breathalyzer test
(PBT) [is] frequently used to establish probable cause to arrest.”
Commonwealth v. Teems, 74 A.3d 142, 147 (Pa. Super. 2013), appeal
denied, 79 A.3d 1098 (Pa. 2013). “[I]t is well established that probable
cause to arrest can be supported by the existence of evidence that is
- 15 -
J-S54023-14
inadmissible at trial.” Commonwealth v. Weaver, 76 A.3d 562, 567 (Pa.
Super. 2013), appeal granted, 86 A.3d 862 (Pa. 2014). The Hanover Police
Department’s policy to employ discretion in not arresting based on PBT
results does not preclude an objective determination of probable cause from
the “vantage point of a prudent, reasonable, cautious police officer.”
Martin, supra, quoting Clark, supra. In light of the existence of probable
cause, there is no Fourth Amendment violation in Appellant’s continued
detention by the police for the purpose of driving him home in lieu of a more
restrictive arrest. Since during that detention the gun and dollar bill were
readily observed and supported reasonable suspicion of further criminal
activity, we conclude the trial court did not err or abuse its discretion in
declining to grant Appellant’s suppression motion.9 See Anderson, supra.
In light of the foregoing, we conclude Appellant’s sole issue on appeal
is without merit. Accordingly, we affirm the October 28, 2013 judgment of
sentence.
Judgment of sentence affirmed.
Judge Stabile joins the memorandum.
Judge Lazarus concurs in the result.
____________________________________________
9
Because of our disposition of this issue, we need not address the
Commonwealth’s contention that the continued detention of Appellant was
justified based on probable cause for public drunkenness, 18 Pa.C.S.A.
§ 5505. Commonwealth’s Brief at 6.
- 16 -
J-S54023-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2014
- 17 -