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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
JERNELL L. POUGH :
:
Appellant : No. 1191 MDA 2016
Appeal from the Judgment of Sentence July 8, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004718-2015
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 19, 2017
Appellant, Jernell L. Pough, appeals from the judgment of sentence
entered in the Dauphin County Court of Common Pleas, following his
stipulated bench trial convictions for possession of a small amount of
marijuana for personal use and possession of drug paraphernalia.1 We
affirm.
In its opinion, the trial court set forth the relevant facts of this case as
follows:
On the night of July 7, 2015, Officer Tyler Zehring (“Officer
Zehring”) was patrolling the 500 block of Canal Street
when he noticed a vehicle riding the solid double yellow
lines and [with] illegal tinted rear taillights. Officer
Zehring turned on his lights and attempted to pull over the
vehicle in a safe location. The vehicle proceeded for
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1
35 P.S. § 780-113(a)(31)(i), (32).
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*Former Justice specially assigned to the Superior Court.
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another three (3) blocks and pulled over next to a
guardrail. As Officer Zehring was pulling over the suspect
vehicle, he noticed a lot of sudden movement. The driver
of the vehicle was, Tre Piper, and a passenger in the
vehicle was Appellant….[2] [Appellant] was sitting in the
back seat. Mr. Piper had no outstanding warrants and was
asked to step outside of the vehicle to speak with the
officer. Officer Zehring explained to Mr. Piper the reason
why he was asked to exit the vehicle (due to signs of
impairment). Officer Zehring proceeded to give Mr. Piper a
portable breath test and the results came back zero.
At this point, Officer Zehring gives Mr. Piper back his
identification, gives him a warning, and tells him that he
was free to leave. Officer Zehring, while standing with the
door to his patrol vehicle open, decided to ask Mr. Piper
one more question. Mr. Piper responded, “[S]ure.” Officer
Zehring asked if there was anything in the vehicle that he
should be made aware of. Mr. Piper replied that there was
a scale left by a female [who] had been a passenger in his
vehicle. Officer Zehring proceeded to ask for consent to
search the vehicle and Mr. Piper consented to [the] search.
The search of the vehicle produced a scale, [loose]
marijuana, and a marijuana “roach.” The scale was found
underneath the front seat. A marijuana blunt was found
inside of Appellant’s shoe.[3]
(Trial Court Opinion, filed September 30, 2016, at 2-3) (internal footnotes
omitted).
Procedurally, the Commonwealth charged Appellant with possession of
a small amount of marijuana and possession of drug paraphernalia.
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2
Appellant and Mr. Piper were co-defendants at trial. Mr. Piper filed an
appeal at docket No. 1189 MDA 2016.
3
Police found the marijuana blunt in Appellant’s shoe after conducting a
search incident to arrest based on Appellant’s constructive possession of the
drugs and drug paraphernalia discovered in Mr. Piper’s vehicle.
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Appellant filed a suppression motion on December 24, 2015. The court held
a suppression hearing on February 19, 2016. On March 28, 2016, the court
denied the motion to suppress. Appellant proceeded to a stipulated bench
trial on July 8, 2016, after which the court convicted him of possession of a
small amount of marijuana for personal use and possession of drug
paraphernalia. The court sentenced Appellant that day to concurrent terms
of 30 days’ probation for each offense, plus fines and costs. Appellant timely
filed a notice of appeal on July 19, 2016. The next day, the court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b); Appellant timely complied on August 3,
2016.
Appellant raises one issue for our review:
WHETHER THE TRIAL COURT ERRED IN FAILING TO
SUPPRESS EVIDENCE OBTAINED AS THE RESULT OF AN
ILLEGAL DETENTION UNSUPPORTED BY PROBABLE CAUSE,
REASONABLE SUSPICION, OR ANY ARTICULABLE BASIS IN
VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED
STATES CONSTITUTION, AND ARTICLE 1, SECTION 8 OF
THE PENNSYLVANIA CONSTITUTION?
(Appellant’s Brief at 5).4
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4
The Commonwealth claims Appellant waived his issue on appeal due to
vagueness in Appellant’s Rule 1925(b) statement. The court had no doubt
about what Appellant sought to challenge on appeal and adequately
addressed Appellant’s issue in its opinion. Thus, we decline to find waiver.
See Commonwealth v. Laboy, 594 Pa. 411, 936 A.2d 1058 (2007)
(holding appellate court should conduct merits review of claim on appeal
notwithstanding vagueness in Rule 1925(b) statement, where case was
(Footnote Continued Next Page)
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“Our standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is limited to determining whether the factual
findings are supported by the record and whether the legal conclusions
drawn from those facts are correct.” Commonwealth v. Williams, 941
A.2d 14, 26 (Pa.Super. 2008) (en banc) (quoting Commonwealth v.
Jones, 874 A.2d 108, 115 (Pa.Super. 2005)).
[W]e may consider only the evidence of the prosecution
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 findings of the
suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal
conclusions based upon the facts.
Williams, supra at 27 (quoting Jones, supra).
Appellant argues Officer Zehring’s “second round” of questioning Mr.
Piper constituted an investigative detention or the functional equivalent of an
arrest, because no reasonable person would have believed he was free to
leave the scene. Appellant asserts Officer Zehring lacked any reasonable
articulable basis to conclude illegal activity had occurred or was occurring at
the time he re-engaged Mr. Piper. Appellant maintains Officer Zehring did
not smell alcohol emanating from Mr. Piper’s vehicle or see any illegal drugs
or paraphernalia in Mr. Piper’s vehicle. Appellant highlights that neither he
nor Mr. Piper acted overly nervous. Appellant does not dispute the validity
_______________________
(Footnote Continued)
relatively straightforward and trial court readily understood and addressed
claim in substantial detail in its opinion).
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of the initial traffic stop, due to Mr. Piper’s violations of the Motor Vehicle
Code. Appellant suggests the officer’s suspicions that Mr. Piper might have
been impaired were dispelled once the portable breath test confirmed Mr.
Piper’s blood alcohol level was zero. Given these circumstances, Appellant
insists Officer Zehring lacked reasonable suspicion for a second investigative
detention of Mr. Piper. Appellant submits Mr. Piper’s consent to search the
vehicle was involuntary, because it was tainted by the second and illegal
investigative detention. Appellant claims Mr. Piper consented to the search
only moments after the officer had re-initiated questioning and there were
no intervening circumstances to diminish the coercive atmosphere of the
situation. Appellant posits insufficient attenuation between the illegal
detention and Mr. Piper’s consent to purge the taint of the officer’s unlawful
conduct. Appellant concludes all evidence discovered was fruit of the
unlawful illegal detention of Mr. Piper, the trial court erred in denying
Appellant’s motion to suppress, and this Court must reverse. We disagree.
Preliminarily:
Generally, to have standing to pursue a suppression
motion under Pa.R.Crim.P. 581, the defendant’s own
constitutional rights must have been infringed. However,
it is well settled that a defendant charged with a
possessory offense in this Commonwealth has “automatic
standing” because the charge itself alleges an interest
sufficient to support a claim under Article I, § 8. This rule
entitles a defendant to a review of the merits of his
suppression motion without a preliminary showing of
ownership or possession in the premises or items seized….
In addition to standing, though, a defendant must show
that he had a privacy interest in the place invaded or thing
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seized that society is prepared to recognize as reasonable.
While cursorily similar, standing and privacy interest are
different concepts serving different functions. Standing is
a legal interest that empowers a defendant to assert a
constitutional violation and thus seek to exclude or
suppress the government’s evidence pursuant to the
exclusionary rules under the Fourth Amendment of the
United States Constitution or Article 1, Section 8 of the
Pennsylvania Constitution. It ensures a defendant is
asserting a constitutional right of his own. The expectation
of privacy is an inquiry into the validity of the search or
seizure itself; if the defendant has no protected privacy
interest, neither the Fourth Amendment nor Article I, § 8 is
implicated. In essence, while a defendant’s standing
dictates when a claim under Article I, § 8 may be brought,
his privacy interest controls whether the claim will
succeed—once a defendant has shown standing, he must,
in short, having brought his claim, demonstrate its merits
by a showing of his reasonable and legitimate expectation
of privacy in the premises.
Commonwealth v. Enimpah, 630 Pa. 357, 363-64, 106 A.3d 695, 698-99
(2014) (internal citations and quotation marks omitted). See also
Commonwealth v. Hawkins, 553 Pa. 76, 718 A.2d 265 (1998) (explaining
defendants charged with possessory offenses have “automatic standing” to
bring suppression motion before court; to prevail on suppression motion,
however, defendant must also have personal privacy interest in area
searched or effects seized; Pennsylvania courts have repeatedly refused to
recognize vicarious assertions of constitutional rights).
In suppression cases, “the Commonwealth must prove the
constitutional rights of the accused were not violated by the search.”
Enimpah, supra at 368, 106 A.3d at 701. Nevertheless, if the evidence
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shows the defendant lacked a reasonable expectation of privacy in the area
searched, then the prosecution has met its burden and need not go further.
Id. In that scenario, “[t]he lawfulness of the detention becomes irrelevant,
as constitutional error cannot inure to the benefit of the expectation-less
accused. To overcome that result, the accused has the burden of showing
such an expectation did exist. If the accused does so, the search is again at
issue, and the prosecution must prove its constitutionality.” Id. Therefore:
[I]n analyzing the merits of a suppression motion, the trial
court may, indeed, treat the defendant’s privacy interest
as a “threshold” or “preliminary” matter. That is to say, if
the evidence shows there was no privacy interest, the
Commonwealth need prove no more; in terms of the
court’s review, it need go no further if it finds the
defendant has not proven a reasonable expectation of
privacy. However, as it relates to the parties’ presentation
of evidence, our cases and the Rules of Criminal Procedure
make clear that the Commonwealth has the burden of
production, to give the court evidence allowing that
conclusion. Once it places the issue before the court, as a
basis for denying suppression, the defendant may prove
the contrary. If that proof is found to meet defendant’s
burden, then the search itself may be examined with the
burden on the prosecution to show it was not
unconstitutional.
Id. at 369, 106 A.3d at 701-02 (internal footnote omitted).
“An expectation of privacy will be found to exist when the individual
exhibits an actual or subjective expectation of privacy and that expectation
is one that society is prepared to recognize as reasonable.”
Commonwealth v. Viall, 890 A.2d 419, 422 (Pa.Super. 2005). “In
determining whether a person’s expectation of privacy is legitimate or
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reasonable, the totality of the circumstances must be considered and the
determination will ultimately rest upon a balancing of the societal interests
involved.” Id. (holding appellant, who was backseat passenger in another’s
vehicle at time of stop, lacked reasonable expectation of privacy in backseat
area of car to enable him to challenge validity of driver’s consent to search
that area; it would be unreasonable for appellant to have expected to
maintain privacy interest in objects which were placed inside car and not
shielded from view of others occupying same small space; appellant, as co-
occupant of vehicle, assumed risk that driver would permit common areas of
car to be searched; where joint access or control exists, there can be no
reasonable or legitimate expectation of privacy).
Instantly, the Commonwealth charged Appellant with the possessory
offenses of possession of a small amount of marijuana and possession of
drug paraphernalia. Thus, Appellant had “automatic standing” to bring a
suppression motion before the court. Enimpah, supra; Hawkins, supra.
Nevertheless, the Commonwealth presented evidence at the suppression
hearing that Appellant was a backseat passenger in Mr. Piper’s vehicle at the
time of the events at issue. After Mr. Piper consented to a search of the
vehicle, police found a digital scale under the front seat, loose marijuana,
leaves and seeds on the back floor mat, and a “roach” on the center console.
Appellant offered no testimony or evidence at the suppression hearing to
demonstrate that he had a reasonable expectation of privacy in these
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common areas. See Enimpah, supra; Viall, supra. In the absence of a
reasonable expectation of privacy, Appellant’s suppression claims fail. See
Enimpah, supra. Significantly, Appellant cannot vicariously assert Mr.
Piper’s constitutional rights to obtain relief.5 See Hawkins, supra. The
record supports the court’s decision to deny Appellant’s motion to suppress.
See Williams, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2017
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5
Appellant makes no argument that the search incident to arrest, which
revealed a marijuana blunt in Appellant’s shoe, was independently unlawful.
Rather, Appellant attempts to challenge the validity of Mr. Piper’s consent to
search the vehicle, claiming all evidence subsequently obtained was fruit of
the poisonous tree. Because Appellant cannot challenge Mr. Piper’s consent
to search the vehicle, any attack on the drugs subsequently found in
Appellant’s shoe incident to his arrest necessarily fails.
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