J-S06024-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KALEN DAVID BELL
Appellant No. 290 MDA 2015
Appeal from the Judgment of Sentence January 16, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000352-2014
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KALEN DAVID BELL
Appellant No. 291 MDA 2015
Appeal from the Judgment of Sentence January 16, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000360-2014
BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 09, 2016
Appellant, Kalen David Bell, appeals from the January 16, 2015
aggregate judgment of sentence of 54 to 108 months’ imprisonment,
imposed after Appellant was found guilty of two counts of possession with
intent to deliver (PWID), and one count each of intentional possession of a
*Former Justice specially assigned to the Superior Court.
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controlled substance, possession of drug paraphernalia, possession of a
small amount of marijuana, and resisting arrest.1 After careful review, we
affirm.
The trial court made the following findings of fact concerning the issue
involved in this case.
1. Trooper Joseph Pericci, a ten[-]year veteran
with the Pennsylvania State Police, was performing a
saturation patrol[2] in Wilkes-Barre, Luzerne County,
Pennsylvania on December 12, 2013 along with
members of the Wilkes-Barre Police Department,
Luzerne County District Attorney’s Office, FBI, United
States Marshalls, and the Luzerne County Sheriff’s
Department.
2. Trooper Pericci was partnered with Detective
Charles Balogh of the Luzerne County District
Attorney’s Office during the saturation patrol.
3. The saturation patrol was scheduled to be
conducted between the hours of 10:00 p.m. and
2:00 a.m.
4. Trooper Pericci was in full uniform, and Det.
Balogh and he were driving in a fully marked
Pennsylvania State Police vehicle.
5. Trooper Pericci noticed a green sedan with
dark tinted windows abruptly cross two lanes of
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1
35 P.S. § 780-113(a)(30), (a)(16), (a)(32), (a)(31), and 18 Pa.C.S.A.
§ 5104, respectively.
2
Trooper Pericci described a saturation patrol as “a group of law
enforcement agencies … that collectively [get] together [and drive] through
Wilkes-Barre, [and] patrol[] the streets of Wilkes-Barre, looking for traffic
violations and criminal activity.” N.T., 7/1/14, at 6.
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traffic without using a turn signal and come to a stop
on South Franklin Street in Wilkes-Barre.
6. Trooper Pericci pulled alongside the vehicle and
initiated a traffic stop for [a] violation of the Motor
Vehicle Code.
7. The driver, [Appellant], exited the vehicle and
began walking at a very fast pace on South Franklin
Street.
8. When [Appellant] exited the vehicle, he left the
front driver’s side door open.
9. Trooper Pericci detected a very strong odor of
marijuana coming from the vehicle.
10. Trooper Pericci called out to [Appellant] and
directed him to stop.
11. [Appellant] did not immediately stop but
continued to walk in a direction away from the
vehicle.
12. Ultimately, [Appellant] stopped and returned
to the vehicle when Trooper Pericci detected an order
[sic] of marijuana emanating from [Appellant].
13. [Appellant] was wearing a puffy white jacket,
and Trooper Pericci observed a clear bag hanging out
of the right front pocket of the jacket.
Approximately one third (1/3) of the bag was
hanging out of the pocket.
14. Trooper Pericci observed what he believed to
be bags of heroin inside the aforementioned clear
bag.
15. [Appellant] was arrested and taken into
custody.
16. A search of [Appellant] incident to arrest
revealed the presence of:
43 bags of heroin
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a clear plastic bag containing marijuana
a larger plastic bag containing marijuana
crack cocaine
3 cell phones
$1,108.00 in cash
17. [Appellant] had a suspended driver’s license.
18. The testimony of the Commonwealth’s witness
was credible.
Trial Court Opinion, 5/7/15, at 4-6.
On March 19, 2014, the Commonwealth filed an information at docket
number CP-40-CR-352-2014, charging Appellant with one count each of
PWID, intentional possession of a controlled substance, possession of drug
paraphernalia, possession of a small amount of marijuana, and resisting
arrest. The Commonwealth filed a second information at docket number CP-
40-CR-360-2014 on March 17, 2014, charging Appellant with one count each
of PWID and possession of a small amount of marijuana. Appellant filed a
motion to suppress at docket number CP-40-CR-352-2014 on May 27, 2014,
and a motion to suppress at docket number CP-40-CR-360-2014 on June 16,
2014. The trial court held one suppression hearing for both motions on July
1, 2014. On September 10, 2014, the trial court denied both motions. On
October 30, 2014, the trial court held a consolidated bench trial, and
thereafter found Appellant guilty of all charges. The trial court imposed an
aggregate sentence of 54 to 108 months’ imprisonment on January 16,
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2015.3 Appellant did not file any post-sentence motions. On February 4,
2015, Appellant filed timely notices of appeal.4
On appeal, Appellant raises the following issue for our review.5
I. Whether the honorable trial court erred when it
concluded that [Trooper Pericci and Detective
Balogh] possessed the requisite reasonable
suspicion to conduct an investigative detention
of [Appellant?]
Appellant’s Brief at 4.
Appellant’s sole argument on appeal is that the police lacked
reasonable suspicion to seize Appellant after he had stopped his car, exited
the vehicle, and began walking away. Appellant’s Brief at 9. The
Commonwealth counters that Appellant was constitutionally seized based in
part of Appellant’s violation of the Motor Vehicle Code. Commonwealth’s
Brief at 6.
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3
Specifically, at docket number CP-40-CR-352-2014, the trial court
sentenced Appellant to 30 to 60 months’ for PWID, 9 to 24 months’ for
resisting arrest, and no further penalty for the intentional possession and
drug paraphernalia charges. At docket number CP-40-CR-360-2014, the
trial court sentenced Appellant to 24 to 48 months for PWID and 15 to 30
days for possession of a small amount of marijuana. All sentences within
each docket number were to run concurrently, but the aggregate sentences
at each docket number were to run consecutively.
4
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
5
Appellant has preserved a challenge to the sufficiency of the
Commonwealth’s evidence, but in his brief, Appellant withdraws this issue.
Appellant’s Brief at 4, 10.
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We begin by noting our well-settled standard of review.
We 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, we are bound
by those facts and may reverse only if the legal
conclusions drawn therefrom are in error. An
appellate court, of course, is not bound by the
suppression court’s conclusions of law.
Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted) .
The Fourth Amendment of the Federal
Constitution provides, “[t]he right of the
people to be secure in their persons, houses,
papers, and effects, against unreasonable
searches and seizures, shall not be violated ….”
U.S. Const. amend. IV. Likewise, Article I,
Section 8 of the Pennsylvania Constitution
states, “[t]he people shall be secure in their
persons, houses, papers and possessions from
unreasonable searches and seizures ….” Pa.
Const. Art. I, § 8.
Commonwealth v. Carter, 105 A.3d 765, 768 (Pa.
Super. 2014) (en banc), appeal denied, 117 A.3d
295 (Pa. 2015).
Commonwealth v. Williams, 125 A.3d 425, 432 (Pa. Super. 2015). Our
cases have recognized three levels of police-citizen interactions.
The first is a mere encounter, which requires no level
of suspicion at all. Commonwealth v. Daniel, 999
A.2d 590, 596 (Pa. Super. 2010). The second level
is an investigative detention, which must be
supported by reasonable suspicion. Id. at 596-597.
Finally, the third level is an arrest or custodial
detention, which must be supported by probable
cause. Id. at 597.
Commonwealth v. Walls, 53 A.3d 889, 892-893 (Pa. Super. 2012).
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In general, a traffic stop is constitutional where “[a] police officer …
has reasonable suspicion that a violation of the vehicle code has taken
place, for the purpose of obtaining necessary information to enforce the
provisions of the code.” Commonwealth v. Brown, 64 A.3d 1101, 1105
(Pa. Super. 2013) (emphasis in original); accord 75 Pa.C.S.A. § 6308(b).
However, our Supreme Court has held that where the Motor Vehicle Code
violation is not investigable, Section 6308(b) does not apply and probable
cause is required in order for the stop to be constitutional. Commonwealth
v. Chase, 960 A.2d 108, 115-116 (Pa. 2008). The parties appear to agree
that probable cause is the appropriate standard in this case. Appellant’s
Brief at 8; Commonwealth’s Brief at 6.
In order for a non-investigable traffic stop to be
constitutional, [t]he officer must be able to articulate
specific facts possessed by him at the time of the
questioned stop, which would provide probable cause
to believe that the vehicle or the driver was in some
violation of some provision of the Vehicle Code.
Probable cause does not require certainty, but rather
exists when criminality is one reasonable inference,
not necessarily even the most likely inference.
Commonwealth v. Enick, 70 A.3d 843, 846 n.3 (Pa. Super. 2013) (internal
quotation marks and citations omitted). Section 3334(a) of the Motor
Vehicle Code provides that “no person shall … move from one traffic lane to
another … unless and until the movement can be made with reasonable
safety nor without giving an appropriate signal in the manner provided in
this section.” 75 Pa.C.S.A. § 3334(a).
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In this case, Trooper Pericci testified that he was patrolling with
Detective Balogh on the night of December 12, 2013. N.T., 7/1/14, at 6.
Trooper Pericci was driving northbound on South Franklin Street in the
driving lane, and he observed another vehicle in the passing lane. Id. at 8.
This vehicle abruptly traveled across two lanes of traffic and parked on the
side of the street, without using a turn signal. Id. at 9. Appellant exited the
vehicle and “started walking north at a pretty fast pace on South Franklin
Street.” Id. at 9. Trooper Pericci backed up and parked his police car next
to the vehicle, and observed that the driver’s side door was left open. Id. at
10. Trooper Pericci then called to Appellant to stop. Id. at 11.
After careful review of the certified record, we conclude Appellant is
not entitled to relief. As noted above, Trooper Pericci personally observed
Appellant’s vehicle drive across two lanes of traffic without signaling, in
violation of Section 3334(a) of the Motor Vehicle Code. Id. at 9. In our
view, this was sufficient evidence for Trooper Pericci to have probable cause
that he just witnessed a violation of the Motor Vehicle Code. See, e.g.,
Commonwealth v. Feczko, 10 A.3d 1285, 1291-1292 (Pa. Super. 2010)
(en banc) (concluding probable cause existed where police officer’s vehicle
cam showed the defendant’s vehicle cross over the white fog line, in
violation of Section 3309(1) of the Motor Vehicle Code), appeal denied, 25
A.3d 327 (Pa. 2011). Therefore, Trooper Pericci was constitutionally
permitted to stop Appellant, and as a part of the stop, summon Appellant
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back to his vehicle. As a result, Appellant’s Fourth Amendment rights were
not violated, and the trial court correctly denied Appellant’s motion to
suppress.6 See Gary, supra.
Based on the foregoing, we conclude Appellant’s sole issue on appeal
is devoid of merit. Accordingly, the trial court’s January 16, 2015 judgment
of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2016
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6
To the extent our legal reasoning differs from the trial court’s, we note that
as an appellate court, we may affirm on any legal basis supported by the
certified record. Commonwealth v. Clemens, 66 A.3d 373, 381 n.6 (Pa.
Super. 2013) (citation omitted).
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