J-S78039-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KAREEM LEE MIDDLEBROOK, :
:
Appellant : No. 1075 WDA 2017
Appeal from the Judgment of Sentence July 7, 2017
in the Court of Common Pleas of Indiana County
Criminal Division, at No(s): CP-32-CR-0001016-2016
BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 17, 2018
Kareem Lee Middlebrook (Appellant) appeals from the judgment of
sentence of 2½ to 5 years of imprisonment following his jury convictions for
possession with intent to deliver, possession of a controlled substance, and
possession of drug paraphernalia. Specifically, Appellant challenges the
denial of his pre-trial suppression motion and the sufficiency of the evidence
to sustain his convictions. We affirm.
The trial court summarized the underlying facts of this case as follows.
On August 17, 2016, while on routine patrol duty, Trooper
Donald Watters of the Pennsylvania State Police conducted a
traffic stop of a 2008 Chevrolet Cobalt on State Route 422, in
White Township, Indiana County, Pennsylvania. Trooper Watters
observed the vehicle traveling at a high rate of speed, and then
paced the vehicle for approximately four-tenths of a mile using
the certified calibrated speedometer in his patrol vehicle; he
determined that the vehicle was traveling at 80 miles per hour in
a 65 mile per hour zone. Trooper Watters then initiated a traffic
*Retired Senior Judge assigned to the Superior Court.
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stop by activating his emergency lights, and the Chevy Cobalt
pulled to the highway berm approximately two-tenths of a mile
from the State Route 286 exit.
Trooper Watters approached the vehicle on the driver’s
side; as he approached, he observed four (4) occupants,
including the driver, in the vehicle. He also noticed that there
was excessive movement inside the vehicle. Trooper Watters
made contact with the operator and identified her as Amber
Leigh Marchlewski of Indiana, Pennsylvania. The passengers
were identified as Ryan Stepp (front seat passenger), Henry King
(rear seat, passenger side), and [Appellant] (rear seat, driver’s
side).
After identifying the occupants, Trooper Watters went back
to his patrol vehicle and called for backup. Trooper Shari
Campbell arrived at the scene, and assisted Trooper Watters in
taking the front seat passenger, Ryan Stepp, into custody
because he was wanted for an alleged state parole violation.
Trooper Watters then spoke to Ms. Marchlewski outside of her
vehicle; he asked her questions about where she was coming
from and where she was going, and he asked her questions
about the occupants of her vehicle. Trooper Watters ultimately
asked Ms. Marchlewski for permission to search her vehicle,1 and
she consented to the search.
______
1
The car was owned by Ms. Marchlewski’s mother, but it
was Trooper Watters’ understanding that Ms. Marchlewski
was an authorized driver of the vehicle.
Trooper Watters then ordered that the rear seat
passengers, [Appellant] and King, exit the vehicle. [Appellant]
stepped out of the vehicle first. Trooper Campbell was standing
between the open door and the body of the vehicle, and
observed a white bag of suspected heroin on the seat where
[Appellant] was sitting. Trooper Campbell took possession of the
bag of suspected heroin and placed [Appellant] under arrest.
Trial Court Opinion, 8/16/2017, at 2-4 (citations omitted).
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Appellant was arrested and charged with the aforementioned crimes.
Appellant filed a motion to suppress, in which he alleged that both the initial
traffic stop and the subsequent search of the vehicle were illegal. After a
hearing, his motion to suppress evidence was denied. Thereafter, Appellant
was convicted following a jury trial. Appellant timely filed a notice of
appeal.1 Appellant presents the following issues for this Court’s
consideration: (1) whether the trial court erred in denying his suppression
motion; and (2) whether the evidence was sufficient to establish
constructive possession of the heroin found in the vehicle. Appellant’s Brief
at 5, 22.
We consider Appellant’s suppression claims mindful of the following.
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 ... 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 court properly applied
the law to the facts. Thus, the conclusions of law of the court[]
below are subject to our plenary review.
1
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).
Appellant concedes that the initial traffic stop was lawful. Appellant’s
Brief at 12, 14. His challenge to the denial of his suppression motion can be
separated into two parts: (1) the detention after the stop; and (2) Ms.
Marchlewski’s consent to search the vehicle.
We first address the detention. As discussed above, Trooper Watters
completed the initial traffic stop, but continued to engage with the occupants
of the vehicle until he asked Ms. Marchlewski for consent to search the
vehicle. Accordingly, the following principles govern our analysis.
The Supreme Court in [Commonwealth v. Strickler, 757 A.2d
884 (Pa. 2000)] ruled that after police finish processing a traffic
infraction, the determination of whether a continuing interdiction
constitutes a mere encounter or a constitutional seizure centers
upon whether an individual would objectively believe that he was
free to end the encounter and refuse a request to answer
questions.
Our Supreme Court adopted a totality-of-the-
circumstances approach. It delineated a non-exclusive list of
factors to be used in making this assessment. Those factors
include 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
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to police restraint,” id. at 898; 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.” Id. at 899. Our
Supreme Court also observed that when an individual has been
subjected to a valid detention but police continue to engage the
person in conversation, the person is less likely to reasonably
believe that he is actually free to leave the scene.
Commonwealth v. Kemp, 961 A.2d 1247, 1253 (Pa. Super. 2008).
Here, after processing the traffic infraction and ascertaining the
identities of the individuals in the vehicle, Trooper Watters did not inform the
occupants that they were free to leave. Rather, Trooper Watters called for
backup, took the front seat passenger into custody on an active warrant,
asked Ms. Marchlewski to step out of the vehicle, and inquired about her
travels that day and the occupants of the vehicle. Based on the totality of
the circumstances, we conclude that the occupants of the vehicle, including
Appellant, were subject to an investigatory detention following the
completion of the initial traffic stop. See id. at 1254 (finding that encounter
was an investigatory detention where the appellant was not told that he was
free to leave after his documents were returned, and the trooper inquired
about his travels).
We next consider whether the detention was proper.
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
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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 1255 (citations and quotation marks omitted).
Appellant argues that “[f]urtive movements and nervousness, standing
alone, do not support the existence of reasonable suspicion.” Appellant’s
Brief at 19 (quoting Commonwealth v. Moyer, 954 A.2d 659, 670 (Pa.
Super. 2008)). However, the evidence presented at the suppression hearing
established more than mere furtive movements and nervousness. Rather,
the evidence established that: (1) Trooper Watters initiated a traffic stop for
speeding; (2) the occupants of the vehicle exhibited excessive shoulder
movement, fidgeting, nervousness, and hand shaking; (3) the backseat
passengers avoided eye contact with Trooper Watters; (4) the front seat
passenger had an active arrest warrant; and (5) the backseat passengers
had multiple prior drug charges. N.T., 2/1/2017, at 10-11, 14-15. This
evidence was sufficient to establish reasonable suspicion that the occupants
of the vehicle were engaged in criminal activity. Thus, the detention was
proper.
We next address Appellant’s challenge to Ms. Marchlewski’s consent to
search the vehicle. “Establishment of the expectation of privacy in
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a searched vehicle applies not only to drivers, but also to its passengers.”
Commonwealth v. Powell, 994 A.2d 1096, 1104 (Pa. Super. 2010).
[I]n order for a defendant accused of a possessory crime to
prevail in a challenge to the search and seizure which provided
the evidence used against him, he must, as a threshold matter,
establish that he has a legally cognizable expectation of privacy
in the premises which were searched.
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. In determining whether a person’s expectation of
privacy is legitimate or reasonable, the totality of the
circumstances must be considered and the determination will
ultimately rest upon a balancing of the societal interests
involved. The constitutional legitimacy of an expectation of
privacy is not dependent on the subjective intent of the
individual asserting the right but on whether the expectation is
reasonable in light of all the surrounding circumstances.
Commonwealth v. Viall, 890 A.2d 419, 422 (Pa. Super. 2005) (citations
and quotation marks omitted). In that case,
the drugs and drug paraphernalia were recovered from a
common area in the backseat of the vehicle near where [Viall]
sat. Also traveling with [Viall] were the driver, a front seat
passenger and two other backseat passengers. We conclude that
it would be unreasonable for [Viall] to have expected to maintain
a privacy interest in objects which were placed inside the car and
not shielded from the view of the many others occupying the
same small space. Much like a co-inhabitant of a home assumes
the risk that one of the residents may permit the common area
to be searched, [Viall], as a co-occupant of the automobile,
assumed the risk that the driver would permit the common areas
of the car to be searched. Where joint access or control exists,
there can be no reasonable or legitimate expectation of
privacy. Thus, as we conclude [Viall] did not have a reasonable
expectation of privacy in the area where the contraband was
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recovered, the trial court rightly found he is unable to challenge
the validity of the consent given to search that area.
890 A.2d at 423 (citations omitted).
Based upon Viall we conclude that Appellant has not established that
he had a legally cognizable expectation of privacy in the backseat of Ms.
Marchlewski’s vehicle. Based on the foregoing, Appellant’s detention was
supported by reasonable suspicion, and the search of the vehicle was not
illegal. Thus, the trial court did not err in denying Appellant’s motion to
suppress the search of the vehicle.
Lastly, we address Appellant’s sufficiency-of-the-evidence claim.
Appellant argues that the evidence was insufficient to prove constructive
possession of the heroin found where Appellant was sitting. 2 Appellant’s
Brief at 28.
The standard we apply in reviewing the sufficiency of the evidence is
whether
viewing all the evidence admitted at trial in the light most
favorable to the [Commonwealth as the] verdict winner, there is
sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying
[the above] test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we note that the
facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. Any doubts regarding
a defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
2
The trial court failed to address this claim in its 1925(a) opinion.
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circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence.
Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015)
(citation omitted).
Because the heroin was not found on Appellant’s person, the
Commonwealth was required to prove constructive possession.
Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law enforcement.
… We have defined constructive possession as conscious
dominion. We subsequently defined conscious dominion as the
power to control the contraband and the intent to exercise that
control. To aid application, we have held that constructive
possession may be established by the totality of the
circumstances.
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (quotation
marks and citation omitted). “The Commonwealth may sustain its burden
by means of wholly circumstantial evidence, and we must evaluate the
entire trial record and consider all evidence received against the defendant.”
Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (citation
omitted).
Appellant contends that “[t]he only circumstance connecting
[Appellant] to the bag of heroin was the fact that it was located on the seat
on which he was sitting and may have been under him, unless placed there
by [Mr.] King after [Appellant] exited the vehicle.” Appellant’s Brief at 28.
Appellant sets forth several possibilities of how the bag of heroin could have
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been placed there without Appellant’s knowledge, and argues that all
passengers had equal access to the heroin. Id. at 28-29. Appellant
concludes that “while the circumstances of where the bag of heroin was
found in this case may be suspicious, conjecture and suspicion [are]
insufficient to support a conviction.” Id. at 29 (citing Commonwealth v.
Spencer, 621 A.2d 153 (Pa. Super. 1993) (holding that evidence was
insufficient to establish that defendant, who was a passenger in a vehicle,
was in constructive possession of drugs found in armrest of door); and
Commonwealth v. Juliano, 490 A.2d 891 (Pa. Super. 1985) (holding that
circumstantial evidence was insufficient to find defendant, who was a
passenger in a vehicle, was in constructive possession of items found within
an unopened satchel by his feet)).
Our review of the record shows that it was reasonable for the jury to
conclude from the evidence presented, giving credit to the officers’
testimony and that of the vehicle’s other occupants,3 that Appellant
constructively possessed the bag of heroin. The evidence demonstrated that
as Appellant exited the vehicle, Trooper Campbell observed a clear plastic
baggie with a white powdery substance lying on the seat exactly where
3
See, e.g., Commonwealth v. Love, 896 A.2d 1276, 1283 (Pa. Super.
2006) (“We may not weigh the evidence or substitute our judgment for that
of the fact-finder. … When evaluating the credibility and weight of the
evidence, the fact-finder is free to believe all, part, or none of the
evidence.”).
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Appellant had been sitting. N.T. 4/17/2017, at 18-21. It was obvious to
Trooper Campbell that Appellant “was sitting directly on it” before he exited
the vehicle. Id. at 29. The substance in the bag was tested and found to be
5.98 grams of heroin. Id. at 80. Ms. Marchlewski and the front seat
passenger, Mr. Stepp, testified that they were under the impression that
Appellant and Mr. King were involved in the heroin drug trade and they were
being paid to drive Appellant and Mr. King from Pittsburgh to Indiana in
order to sell heroin. Ms. Marchlewski and Mr. Stepp testified that the heroin
found where Appellant was sitting was not theirs. Id. at 102-104, 107, 111.
It is well established that “the evidence at trial need not preclude
every possibility of innocence, and the fact-finder is free to resolve any
doubts regarding a defendant’s guilt unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be drawn
from the combined circumstances.” Commonwealth v. Hughes, 908 A.2d
924, 928 (Pa. Super. 2006).
Here, Appellant was sitting directly on a bag of heroin, and
specifically was being driven from Pittsburgh to Indiana in order to sell that
heroin. The evidence was sufficient to permit the jury to conclude that
Appellant constructively possessed the heroin in question. Accordingly,
Appellant’s claim fails.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/17/2018
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