J. A32006/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
DENNIS URGENT, :
:
Appellant : No. 2829 EDA 2015
Appeal from the Judgment of Sentence August 27, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0005396-2014
BEFORE: DUBOW, RANSOM AND PLATT, JJ.*
MEMORANDUM BY DUBOW, J.: FILED JANUARY 24, 2017
Appellant, Dennis Urgent, appeals from the August 27, 2015 Judgment
of Sentence entered by the Lehigh County Court of Common Pleas after a
jury trial. Appellant challenges the denial of his suppression motion and the
trial court’s refusal to give a jury instruction on missing video footage of his
traffic stop. After careful review, we affirm.
The trial court summarized the facts underlying the instant case as
follows:
[O]n June 1, 2014, at approximately 10:50 PM, Trooper Ron
Mercatili of the Pennsylvania State Police, Fogelsville Barracks,
was patrolling in a marked police cruiser and in full uniform
westbound on Interstate I-78, Allentown, Lehigh County,
Pennsylvania, when he observed a silver Honda Accord in front
*
Retired Senior Judge Assigned to the Superior Court.
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of him appearing to be traveling at a high rate of speed.
Trooper Mercatili followed behind the silver Honda Accord for a
period of one (1) mile and clocked the vehicle's speed during this
time frame. He determined that the vehicle was traveling at 70
mph in a posted 55 mph zone. Consequently, Trooper Mercatili
effectuated a traffic stop, utilizing lights and siren, in the area of
mile marker 53 in Upper Macungie Township. Trooper Mercatili
approached the Honda Accord and made contact with the driver
of the subject vehicle. The driver was identified as [Appellant].
[Appellant] appeared extremely nervous during this initial
contact, and would not make eye contact with Trooper Mercatili.
In addition, [Appellant] was nervously shaking. In addition,
Trooper Mercatili noticed the smell of air fresheners in the
vehicle. In his training and experience, Trooper Mercatili
testified that air fresheners are utilized to mask the odor of
drugs. Trooper Mercatili observed a can of Febreeze in the
vehicle, along with several air freshener sticks, thereby arousing
his suspicion.
Trooper Mercatili ran a warrant check on [Appellant] through
NCIC. It was learned that there was an active warrant for
[Appellant’s] arrest arising out of Allegheny County, Maryland for
Possession With Intent to Deliver Cocaine. Upon receiving this
information, Trooper Mercatili handcuffed [Appellant] and placed
him in investigative detention in the back seat of his police
vehicle. In addition, Trooper Mercatili contacted dispatch in
order to confirm that the warrant was outstanding and being
pursued by Allegheny County. While Trooper Mercatili was
waiting for this confirmation, he asked [Appellant] if he would
consent to a search of the vehicle. [Appellant] refused to
consent. Consequently, Trooper Mercatili contacted Upper
Macungie's K-9 Unit so that an exterior K-9 sniff of the vehicle
could be performed. While waiting for the K-9 Unit to respond,
Trooper Mercatili learned that Allegheny County did not want to
pursue extradition of [Appellant]. At this point, [Appellant] was
removed from the police cruiser, but was not free to leave, as a
K-9 Unit was en route. In addition, [Appellant’s] Pennsylvania
Driver's License had expired on November 15, 2011, and he did
not hold valid insurance on the vehicle. [Appellant] was formally
issued a written citation for speeding at 11:38 PM.
At 11:40 PM, Officer Ryan Rhoads of the Upper Macungie Police
Department arrived on scene with his drug detection canine.
After completing an exterior sniff of the vehicle, Officer Rhoads
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advised Trooper Mercatili that the canine had displayed positive
alert behavior, indicating a presence of drugs. A search of the
subject vehicle was performed and yielded the following: a large
plastic bag containing leafy green vegetable matter, that later
lab[-]tested positive for a little less than a pound of hydroponic
marijuana, was located in the trunk; a digital scale and black
vaporizer; two (2) cellular phones; and several air fresheners.
[Appellant] also possessed Eight Hundred thirty ($830.00)
Dollars in United States currency. Based on Trooper Mercatili's
training and experience, Trooper Mercatili testified that multiple
cellular phones are frequently utilized in drug transactions, and
digital scales are commonly used to weigh out the drugs for
distribution. [Appellant] was transported to the Pennsylvania
State Police Fogelsville Barracks at 12:13 AM.
Trial Court Opinion, filed 7/7/15, at 3-5 (footnotes omitted).
Appellant was arrested and charged with one count each of Possession
with Intent to Deliver (“PWID”); Intentional Possession of a Controlled
Substance; Possession of Drug Paraphernalia; and Violating Maximum Speed
Limits.1 Appellant filed an Omnibus Pre-Trial Motion challenging, inter alia,
the admissibility of evidence recovered from his vehicle. The trial court
denied the motion, and Appellant elected to proceed by way of a jury trial.
During trial, Trooper Mercatili testified that the police cruiser he was
operating the night of Appellant’s arrest was equipped with a dashboard
camera recording device. However, Trooper Mercatili also testified that the
footage no longer existed as it had not been preserved. At the close of
evidence, Appellant requested a jury instruction regarding the missing
1
35 P.S. § 780-113(a)(30); 35 P.S. § 780-113(a)(16); 35 P.S. § 780-
113(a)(32); and 75 Pa.C.S. § 3362(a)(2) respectively.
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footage, which the trial court denied. Appellant did not object, either at the
charging conference when the request was denied or following the jury
charge. See N.T. 7/27/15, at 103-04; N.T. 7/28/15, at 54.
On July 28, 2015, the jury found Appellant guilty of the three drug
related charges, and the trial court subsequently found Appellant guilty of
the speeding violation. On August 27, 2015, the trial court sentenced
Appellant to an aggregate term of 18 to 48 months of imprisonment.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
On appeal, Appellant raises two allegations of error.
1. The trial court erred in denying [Appellant’s] Pre[-T]rial
Suppression Motion. The trial court failed to properly conclude
that the traffic stop had ended upon the issuance of the warning
and that [Appellant] should have been free to leave the area
where he had previously been stopped for allegedly speeding.
2. The trial court erred in failing to provide the jury with an
instruction on the Commonwealth[’]s failure to maintain and
produce the dash camera video of this traffic stop. The Court
was requested to provide the jury with an instruction that the
Commonwealth’s failure to preserve and present that evidence
[sic] could be used to conclude that the material contained on
that video may be prejudicial to the Commonwealth’s case. The
Court refused that instruction and as a result there is no
deterrent whatever to failing to maintain these videos of such
traffic stops.
Appellant’s Brief at 4.
Suppression Motion
In his first issue, Appellant challenges the trial court’s denial of his
Motion to Suppress, averring that the police officer impermissibly prolonged
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the traffic stop in order to obtain the canine sniff of his car, thus rendering
the sniff and subsequent search illegal.2 See Appellant’s Brief at 10-14,
(citing, inter alia, Rodriguez v. United States, 135 S.Ct. 1609 (2015)).
Our well-settled standard of review in an appeal from an order denying
a Motion to Suppress is as follows:
Our 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, we are bound by these findings and
may reverse only if the court’s legal conclusions are erroneous.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citation
omitted).
Under the Fourth Amendment to the United States Constitution, “the
use of a well-trained narcotics-detection dog . . . during a lawful traffic stop,
generally does not implicate legitimate privacy interests,” and therefore does
not require reasonable suspicion or probable cause. Illinois v. Caballes,
125 S.Ct. 834, 838 (2005). The “Fourth Amendment tolerates certain
unrelated investigations that [do] not lengthen the roadside detention.”
Rodriguez, supra at 1614 (citations omitted). However, police officers
may not prolong the stop to conduct a canine search unless they have
2
Appellant has not challenged the validity of the initial traffic stop.
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reasonable suspicion or probable cause to believe criminal activity is afoot.
Id.
Under the Pennsylvania Constitution, however, a canine sniff
constitutes a search that requires that an officer possess “reasonable
suspicion for believing that narcotics [will] be found[.]” Commonwealth v.
Rogers, 849 A.2d 1185, 1190 (Pa. 2004). The reasonable suspicion that
justifies a canine sniff will, in many circumstances, also justify any alleged
prolongation of the traffic stop. Our Supreme Court has summarized the
reasonable suspicion jurisprudence as follows:
A police officer may detain an individual in order to conduct an
investigation if that officer reasonably suspects that the
individual is engaging in criminal conduct. This standard, less
stringent than probable cause, is commonly known as
reasonable suspicion. In order to determine whether the police
officer had reasonable suspicion, the totality of the
circumstances must be considered. In making this
determination, we must give due weight to the specific
reasonable inferences the police officer is entitled to draw from
the facts in light of his experience. Also, the totality of the
circumstances test does not limit our inquiry to an examination
of only those facts that clearly indicate criminal conduct. Rather,
even a combination of innocent facts, when taken together, may
warrant further investigation by the police officer.
Id. at 1189 (citation and quotation marks omitted).
As an initial matter, we disagree with Appellant’s underlying premise
that the officer impermissibly prolonged the traffic stop in order to conduct a
canine sniff. Because Appellant did not possess a valid driver’s license and
automobile insurance, at a minimum, the traffic stop remained ongoing until
Trooper Mercatili determined what to do with the vehicle. See
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Commonwealth v. Lagenella, 83 A.3d 94, 101 (Pa. 2013) (noting that “an
officer who stops a vehicle operated by a person whose driving privilege
is, inter alia, suspended, is faced with two options: immobilize the vehicle in
place or, if it poses public safety concerns, have it towed and stored at an
impound lot.”). Moreover, although Appellant was stopped for
approximately an hour, almost all of that time was spent waiting for
confirmation from Maryland on whether it wished to extradite Appellant.
Thus, contrary to Appellant’s contention, the traffic stop was not
impermissibly prolonged.
We also conclude that Appellant’s reliance on Rodriguez is misplaced.
In Rodriguez, the United States Supreme Court held that where police
officers lack reasonable suspicion of criminal activity, they may not
extend a traffic stop beyond its intended purpose in order to conduct a
canine sniff of the vehicle. Rodriguez, supra at 1616. The Supreme Court
then remanded for the District Court to determine if reasonable suspicion
justified detaining the driver beyond the purpose of the traffic stop. In the
instant case, unlike Rodriguez, our review of the suppression record shows
that Trooper Mercatili had reasonable suspicion that criminal activity was
afoot almost immediately after the traffic stop began.
When Trooper Mercatili approached Appellant’s vehicle after stopping
it, he immediately noticed that Appellant was extremely nervous, to the
point that Appellant was unwilling to make eye contact and was physically
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shaking. N.T., 6/8/15, at 23. In his 4½ years of experience as a patrol
officer with the Pennsylvania State Police, Trooper Mercatili believed
Appellant was more nervous than a typical driver who has been pulled over
for a traffic violation. Id. at 22-23. Appellant then became
“confrontational” and “angry” when interacting with Trooper Mercatili. Id. at
23. In addition, Trooper Mercatili smelled the strong odor of air fresheners
emanating from the vehicle as he stood outside the driver’s side window.
Id. at 13. He observed a can of Febreze air freshener in the car, and an
unusually large number air freshener sticks in the vehicle’s air vents. Id. at
15. Based on his experience, training, and education, Trooper Mercatili
suspected that the air fresheners were a “masking agent” used to cover up
the scent of drugs. Id. at 13, 15. Finally, upon running Appellant’s name
through NCIC, Trooper Mercatili learned that Appellant had an active warrant
for his arrest in Maryland for Possession with Intent to Deliver Cocaine. Id.
at 13. These factors taken together supported the Officer’s reasonable
suspicion that criminal activity was afoot that warranted further investigation
with the assistance of the canine unit. We, therefore, conclude that the trial
court properly denied Appellant’s Motion to Suppress.
Jury Instructions
In his second issue, Appellant avers that, because the Commonwealth
failed to preserve the footage from Trooper Mercatili’s dashboard camera, “a
remedial [jury] instruction regarding destruction of evidence . . . is
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appropriate because of the prejudice caused to [Appellant], even though
there is no evidence of bad faith by [the Commonwealth].” Appellant’s Brief
at 18.
We review a trial court’s refusal to give a requested jury instruction to
“determine whether the record supports the trial court’s decision.”
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013)
(quotation omitted). We are tasked with considering “whether the trial court
committed a clear abuse of discretion or an error of law which controlled the
outcome of the case.” Id. (quotation omitted). Before moving to the merits
of our review, however, we address the Commonwealth’s assertion that
Appellant failed to preserve this claim.
As our Supreme Court has made clear, “[i]t is a bedrock appellate
principle that issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.” Commonwealth v. Sanchez, 82 A.3d
943, 978 (Pa. 2013) (citation and internal quotation marks omitted). To
properly raise and preserve a challenge to the jury instructions at trial, “the
mere submission and subsequent denial of proposed points for charge that
are inconsistent with or omitted from the instructions actually given will not
suffice[.]” Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa. 2005).
Instead,
[t]he pertinent rules . . . require a specific objection to the
charge or an exception to the trial court's ruling on a proposed
point to preserve an issue involving a jury instruction. Although
obligating counsel to take this additional step where a specific
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point for charge has been rejected may appear counterintuitive,
as the requested instruction can be viewed as alerting the trial
court to a defendant's substantive legal position, it serves the
salutary purpose of affording the court an opportunity to avoid
or remediate potential error, thereby eliminating the need for
appellate review of an otherwise correctable issue.
Id. at 224 (citation omitted). See also Commonwealth v. Parker, 104
A.3d 17, 30 (Pa. Super. 2014) (holding that Appellant “waived his objection
to the jury instructions because he failed to object after the jury had been
charged.”); Commonwealth v. Baker, 963 A.2d 495, 505-07 (Pa. Super.
2008) (holding that defendant's mere request for jury charges, even when
"renewed" after jury was instructed, did not preserve his challenge to the
instruction for appeal).
In the instant case, Appellant merely submitted a request for a
proposed jury instruction. When the trial court denied the request, trial
counsel did not object, instead saying only “Thank you, Your Honor.” N.T.,
7/27/15, at 103-04. Appellant also failed to object or comment on the
omission after the trial court finished charging the jury. N.T., 7/28/15, at
54. We, therefore, conclude that Appellant’s second claim is waived and
decline to address the merits.3
3
Moreover, Appellant has failed to explain what relevance the footage would
have had during his jury trial, and how the court’s decision to deny an
instruction regarding the failure to preserve evidence “controlled the
outcome of the case.” Sandusky, supra at 667. Appellant argues at
length about the video’s potential to “have shown whether [Appellant] was
nervous or refused to answer questions or whether the dog actually alerted
to the vehicle [during the sniff].” Appellant’s Brief at 17. While these issues
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Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2017
may have been relevant to the suppression court’s legal determinations
regarding the search and seizure of Appellant’s vehicle, we fail to see the
relevance to a jury tasked only with determining Appellant’s factual guilt or
innocence. Accordingly, the trial court did not abuse its discretion or commit
an error of law that controlled the outcome of the case. Therefore, even if
Appellant had properly preserved the issue, he would not be entitled to
relief.
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