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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TADESSE N. SHIFERAW
Appellant No. 1916 MDA 2016
Appeal from the Judgment of Sentence entered November 16, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-003201-2015
BEFORE: OTT, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 20, 2017
Appellant, Tadesse N. Shiferaw, appeals from the judgment of
sentence imposed on November 16, 2016, in the Court of Common Pleas of
Dauphin County following his conviction of possession with intent to deliver a
controlled substance (“PWID”). 35 P.S. § 780-113(a)(30). Appellant
contends the trial court erred by denying his motion to suppress. Following
review, we affirm.
After he was arrested on April 21, 2015, Appellant filed an omnibus
pre-trial motion to suppress. A hearing on the motion began on November
13, 2015. Because of scheduling issues, the proceedings were continued to
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* Retired Senior Judge assigned to the Superior Court.
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December 2, 2015. The trial court summarized the testimony from the
suppression hearings as follows:
The Commonwealth presented the testimony of Pennsylvania
State Trooper David Long (“Trooper Long”). Trooper Long
testified that on [April] 21, 2015 around 2:00 p.m. in the
afternoon he was monitoring Interstate 81 in an unmarked SUV.
Trooper Long noticed a red minivan that drove by that was a
rental vehicle that had one occupant in it. He began to follow
the minivan and observed the minivan travel off the right-lane of
the highway (the right fog line) on a couple of different
occasions. As the minivan was coming up on an exit (near
Linglestown, PA), there was a[n] SUV in front of it with its turn
signal on. As the SUV was exiting the highway, the minivan
approached the SUV without applying brakes and proceeded to a
distance that was too close for conditions. At this point, due to
the traveling off the roadway and following too closely, Trooper
Long initiated a traffic stop. As the trooper approached the
passenger side window, he noticed a black-type, garbage looking
bag in the back. [Appellant] appeared very tired, was yawning,
and had several energy drinks and coffee in the front console.
Trooper Long had a conversation with [Appellant] and
[Appellant] told him that he had rented the minivan through his
company. Additionally, [Appellant] indicated that he was an
airport shuttle service6 and was transporting someone from
Columbus, Ohio to Brooklyn, New York. [Appellant] stated that
he was paid $1500 for his services. Trooper Long testified that
[Appellant] seemed to be off route and that a flight would have
been cheaper than the $1500 in order to get from Ohio to New
York. [Appellant] also stated that while in Brooklyn, N.Y., he
was directed to wait outside of a hotel while the occupant he had
transported went into the hotel and returned with a package that
was put in the back of the van. [Appellant] was directed to
transport the package back to Ohio and contact his cousin.7
The rental agreement was provided but instead of being a
business rental, the rental had been in [Appellant’s] actual
name. The trooper prepared a written warning for traveling too
closely to the rear of another vehicle. Finally, the trooper asked
if there was anything illegal in the vehicle [to] which [Appellant]
responded “no.” Trooper Long asked for permission and was
provided both written and verbal consent to search the vehicle.
A K-9 unit arrived, searched the vehicle, and twenty-two (22)
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pounds of marijuana was discovered. The Commonwealth
introduced the rental agreement and consent to search as part
of the evidence.
6. The vehicle, however, was not marked as an airport shuttle service
vehicle.
7. No names were given of the occupant or the cousin.
Trial Court Rule 1925(a) Opinion, 1/25/17, at 2-4 (references to Notes of
Testimony omitted).
By order entered on February 4, 2016, the trial court denied
Appellant’s suppression motion. Following a June 21, 2016 jury trial,
Appellant was convicted of PWID. On November 16, 2016, Appellant was
sentenced to 24 months of intermediate punishment, consisting of three
months of work release followed by electronic monitoring and house arrest
for the balance of his term of sentence.
Appellant filed a timely notice of appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.1 In this appeal, Appellant asks us to
consider two related issues:
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1 In his Rule 1925(b) statement of errors complained of on appeal, Appellant
asserted three errors related to the denial of his suppression motion and two
errors related to his trial. We note that President Judge Richard A. Lewis
presided over the suppression proceedings while Senior Judge Kevin A. Hess
presided over the trial. In their Rule 1925(a) opinions, the judges addressed
the issues corresponding to the proceedings over which they presided.
Appellant has abandoned his trial issues in this appeal. Therefore, we shall
confine our discussion to the suppression proceedings and Judge Lewis’s
disposition of the suppression issues.
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I. Whether the [t]rial [c]ourt erred by denying the
Appellant’s motion to suppress evidence based on an
improper stop and seizure.
II. Whether the [t]rial [c]ourt erred by denying the
Appellant’s motion to suppress evidence of every kind
which were (sic) unlawfully obtained in violation of the
Appellant’s Miranda and Sixth and Fourteenth
Amendments to the United States Constitution and
Article I, Section 9[2] of the Pennsylvania Constitution
and in violation of Appellant’s rights against self-
incrimination as guaranteed by the Fifth and Fourteenth
Amendments to the United States Constitution and
Article I, Section 9 of the Pennsylvania Constitution.
Appellant’s Brief at 6.
Both of Appellant’s issues challenge the denial of his motion to
suppress. As our Supreme Court has explained:
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.
Where, as here, the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
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2 We suspect, as did the trial court, that Appellant’s reference to Article I,
Section 9 (Rights of Accused in Criminal Prosecution) in conjunction with the
Sixth Amendment was made in error and should be a reference to Article I,
Section 8 (Security from Searches and Seizures). Trial Court Rule 1925(a)
Opinion, 1/25/17, at 4, n. 8.
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court properly applied the law to the facts. Thus, the
conclusions of law of the courts below are subject to our plenary
review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal
quotations and citations omitted).
Commonwealth witness Trooper Long was the sole witness who
testified at the suppression hearing. The trial court admitted Commonwealth
exhibits consisting of the rental agreement for the minivan and the consent
to search signed by Appellant. The court also admitted Appellant’s exhibits,
including the audio and video recording captured on the camera installed in
the trooper’s SUV, the written warning for following too closely, and
photographs printed from the video.
In his first issue, Appellant argues that the traffic stop was unlawful
because the Commonwealth did not meet its burden of proof of probable
cause for the stop. Appellant contends that the trial court’s finding of a
lawful stop was against the weight of the evidence presented at the
suppression hearing. Appellant’s Brief at 19.
Again, the trooper testified that he observed Appellant cross the fog
line on a couple of occasions and was following a vehicle too closely.
Appellant asserts that probable cause warranting a stop for violating the
roadways laned for traffic statute was lacking because there was no
evidence that any persons were placed in danger by Appellant’s movements.
Id. at 16-17. He also argues that the trooper lacked probable cause for
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stopping Appellant based on traveling too closely, an argument grounded in
part on Appellant’s interpretation of a question posed by the court. Id. at
17-19. We disagree. As the Commonwealth correctly asserts, “[p]robable
cause to effectuate an arrest exists when facts and circumstances within
[the] knowledge of the arresting officer are reasonably trustworthy and
sufficient to justify a person of reasonable caution in believing that [the]
arrestee has committed an offense.” Commonwealth Brief at 9 (quoting
Commonwealth v. Romero, 673 A.2d 374, 376 (Pa. Super. 1996)).
Further, “[i]n addressing the existence of probable cause, courts must focus
on the circumstances as seen through the eyes of [the] trained police officer,
taking into consideration that probable cause does not involve certainties,
but rather the factual and practical considerations of everyday life on which
reasonable and prudent men act.” Id. (internal quotations and citations
omitted).
The trial court determined the stop was lawful, noting that “[t]he
Fourth Amendment does not prevent police from stopping and questioning
motorists when they witness or suspect a violation of traffic laws, even if it is
a minor offense.” Trial Court Rule 1925(a) Opinion, 1/25/17, at 5 (quoting
Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008) (additional
citation omitted)). The court explained, “[h]ere, the trooper credibly
testified that he observed [Appellant] commit two traffic violations. One for
leaving the lane of traffic (the right fog line) and one for driving too closely
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to the vehicle in front of him. Accordingly, the stop was valid and did not
violate any constitutional rights.” Id.
We find that the court’s factual findings, as summarized in the quoted
excerpt from the Rule 1925(a) opinion, are supported by the record.
Therefore, we are bound by those findings and may reverse only if the trial
court’s legal conclusions are erroneous. Jones, 988 A.2d at 654. We find
no error in the trial court’s legal conclusion that Appellant was lawfully
stopped. Appellant’s first issue fails.
Appellant’s second issue ostensibly challenges the trial court’s denial of
his motion to suppress on constitutional grounds, based on the delay
between the traffic stop and the time a K-9 unit arrived to conduct the
search.3-4 However, we have already determined that the stop was valid
and Appellant ignores the fact he consented to the search he now
challenges.
As the trial court recognized:
The Fourth Amendment to the United States Constitution
and Article I, § 8 of the Pennsylvania Constitution protect
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3 Appellant’s second issue, as framed, suggests challenges involving
Miranda v. Arizona, 384 U.S. 436 (1966), as well as the Fifth, Sixth and
Fourteenth Amendments to the United States Constitution and Article 1,
Sections 8 and 9, of the Pennsylvania Constitution. However, his argument
does not include any reference to Miranda or to any United States or
Pennsylvania constitutional provisions.
4 Appellant admits he consented to the search. Appellant’s Brief at 10.
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individuals from unreasonable searches and seizures.
Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super.
2002). As a general rule, all searches and seizures performed
without a warrant are per se unreasonable and unconstitutional,
unless an exception applies. Commonwealth v. Hudson, 92
A.3d 1235, 1241 (Pa. Super. 2014). One exception is a search
conducted after consent is voluntarily given. By, 812 A.2d at
1254. Consent cases require a two-prong inquiry: first, to
examine “the constitutional validity of the citizen/police
encounter giving rise to the consent” and second, the
voluntariness of the consent. Id. When a police encounter is
lawful, the exclusive focus is the voluntariness. Id.
Trial Court Rule 1925(a) Opinion, 1/25/17, at 8.
The trial court then considered factors identified by our Supreme Court
in Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000), to determine the
voluntariness of Appellant’s consent.5 The court noted that Appellant was
pulled over by a single police officer in an open location during the middle of
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5 Those factors include:
(1) the presence or absence of police excesses; (2) whether
physical contact occurred; (3) whether police directed the
individual’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) whether and to what degree the
transition between the traffic stop/investigative detention and
the subsequent encounter can be viewed as seamless, thus
suggesting to the individual that his movements may remain
subject to police restrain[t]; and (9) whether the police
expressly told the individual that he was free to leave—this latter
factor being an objective and potent one.
Trial Court Rule 1925(a) Opinion, 1/25/17, at 6, n.9 (citing Strickler, 757
A.2d at 898-901).
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the day. Trial Court Rule 1925(a) Opinion, 1/25/17, at 8. The detention
was not exceedingly long; the questioning was neither repetitive nor
deceptive; the officer did not touch or threaten Appellant or restrict his
movements; and the officer did not display his weapon. Id. The was no
suggestion that the officer used any coercive language or tone. Id.
When the officer asked Appellant for consent to search the vehicle,
Appellant freely gave consent. Id. at 9. Appellant does not contend that he
asked to leave or withdrew his consent. “Most importantly, [Appellant] read
and signed a ‘Pennsylvania State Police Waiver of Rights and Consent to
Search.’” Id. “As such, [Appellant’s] consent was voluntary and this [c]ourt
properly denied Appellant’s motion to suppress.” Id.
We conclude that the trial court properly applied the law to the facts of
this case. Finding no error in the trial court’s legal conclusion, Appellant’s
second issue does not provide any basis for relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2017
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