Com. v. Noel, K.

J. S84033/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KASHIF NOEL, : No. 2422 EDA 2017
:
Appellant :

Appeal from the Judgment of Sentence, July 31, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0007342-2016

BEFORE: BENDER, P.J.E., OTT, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 11, 2019

Kashif Noel appeals from the July 31, 2017 judgment of sentence

entered by the Court of Common Pleas of Philadelphia County following his

conviction of possession with intent to deliver (“PWID”), persons not to

possess firearms, firearm not to be carried without a license, and carrying a

firearm in public in Philadelphia.1 After careful review, we affirm.

The trial court set forth the following factual and procedural history:

On June 30, 2016 at approximately 8:55 pm,
[a]ppellant was driving a silver 2016 Chevy Malibu
westbound on Moore Street at 24th Street when
Officer Franc[i]s Rogalski[Footnote 2] observed
[a]ppellant roll through a stop sign instead of coming
to a complete stop. Rogalski and his partner
(Officer James Tumolo) stopped the vehicle half a
block up on 25th Street. The officers approached the

1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 6105(a), 6106(a), and 6108,
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vehicle with flashlights. [A]ppellant “was nervous,
his hands were shaking, and he kept looking down at
the shifter [in the center console area].”[Footnote 5]
Rogalski immediately smelled the odor of marijuana
emanating from the car. When he shined his
flashlight into the car, Rogalski noticed an opened
gold cylinder [identified as a “grinder”] located in the
center console. He also noticed little particles inside
the cylinder.[Footnote 7] Additionally, he noticed
the plastic molding surrounding the gear shifter was
misaligned at its seams and appeared to have been
tampered with. Based on the aroma coming from
the car, his observation of the particles in the
cylinder, and his training, Rogalski believed the
grinder contained marijuana. Subsequent lab
analysis confirmed that the particles were, in fact,
marijuana.[Footnote 8] The officers instructed
[a]ppellant to exit the vehicle, and they conducted a
pat-down search for their safety before placing him
in the back of their patrol vehicle. However, the
officers did not place [a]ppellant in handcuffs. The
officers then notified [a]ppellant that they intended
to search his vehicle based on probable cause that it
contained illegal contraband.

[Footnote 2] Officer Rogalski had been a
police officer for 2 years and eight
months as of the date of the incident,
June 30, 2016.

[Footnote 5] It was dusk and relatively
dark outside at the time of the traffic
stop. Officer Tumolo approached the
driver’s side of the vehicle, and
Officer Rogalski approached the front
passenger side. [A]ppellant was the only
occupant in the vehicle.

[Footnote 7] [T]he gold cylinder was
described as a “grinder,” which is often
used to break marijuana into pieces.
[S]ee Exhibit C-1.

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[Footnote 8] See Exhibit C-101: seizure
analysis of the narcotics and grinder
indicated the positive presence of
cocaine in the Ziploc packets and
marijuana in the grinder.

During his search, Rogalski lifted the plastic molding
and saw a white bag filled with individually wrapped
Ziploc bags containing a white substance. Overall,
there were 29 red Ziploc bags and 2 blue Ziploc
bags. Subsequent lab analysis confirmed that the
white substance was crack cocaine.[Footnote 14]
Rogalski then raised the plastic molding higher and
found a loaded firearm beneath the bags of
cocaine.[Footnote 15] When the police looked into
the trunk, they also found a gun holster and car
rental agreement in [a]ppellant’s
name.[Footnote 16] At this point, the officers placed
[a]ppellant under arrest. When the officers searched
[a]ppellant a second time, they recovered $662 from
him.[Footnote 17]

[Footnote 14] See Exhibit C-10: forensic
analysis indicating the presence of
cocaine as well as the positive presence
of marijuana in the grinder.

[Footnote 15] See Exhibit C-3: The
firearm was a Glock .43 to .380 caliber
loaded with four live rounds including
one in the chamber. The gun’s serial
number was ABSF841.

[Footnote 16] See Exhibit C-S: property
receipt 3257044 for the firearm holster;
see also Exhibit C-6: the Hertz rental
agreement for a silver 2016 Chevy
Malibu rented in the name of the [sic]
Kashif Noel.

[Footnote 17] [T]here was a large
number of $1 bills, which was consistent
with the type of cash buyers of crack
cocaine typically transact with, according

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to an expert witness. See Exhibit C-9:
notes of testimony from an expert
witness testimony at a preliminary
hearing regarding whether the Ziploc
bags found in [a]ppellant’s vehicle were
consistent with PWID.

Trial court opinion, 6/4/18 at 2-4 (citations to record omitted; footnotes

containing citations to record omitted; emphasis omitted).

On June 30, 2016, [a]ppellant was arrested and
charged with [PWID, persons not to possess
firearms, firearm not to be carried without a license,
and carrying a firearm in public in Philadelphia,]
possessing a controlled substance, possessing drug
paraphernalia, and possessing an instrument of
crime.

On November 11, 2016, [a]ppellant filed a motion to
suppress physical evidence relating to his arrest. On
April 18, 2017, the [trial] court held a Motion to
Suppress hearing and denied [a]ppellant’s request to
suppress the physical evidence. On May 31, 2017, a
waiver trial was conducted, and the court found
[a]ppellant guilty of PWID, [persons not to possess
firearms, firearm not to be carried without a license,
and carrying a firearm in public in Philadelphia]. On
July 31, 2017, [the trial court] sentenced [a]ppellant
to 4-8 years[’] incarceration for PWID followed by
6 months of probation for carrying a firearm without
a license. No further penalties were assessed on the
remaining charges.

Id. at 1-2.

Appellant did not file a post-sentence motion with the trial court. On

August 2, 2017, he filed a notice of appeal to this court. The trial court, on

August 11, 2017, ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Prior to the entry of

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the trial court’s Rule 1925(b) order, appellant’s trial counsel, after perfecting

appellant’s direct appeal rights, filed a motion to withdraw. On

September 6, 2017, we granted appellant’s trial counsel’s motion to

withdraw and remanded for the trial court to appoint appellate counsel to

represent appellant. The trial court did so and ultimately issued a new

Rule 1925(b) order on January 11, 2018. Appellant complied on

February 19, 2018. The trial court filed an opinion pursuant to

Pa.R.A.P. 1925(a) on June 4, 2018.

Appellant raises the following issues for our review:

A. The trial court committed error when it denied
the defense motion to suppress evidence as
the police officers lacked reasonable suspicion
or probable cause to stop [] appellant’s vehicle
and/or search the interior of the vehicle.

B. There was insufficient evidence to find []
appellant guilty by way of constructive
possession of PWID, VUFA-6105 and
VUFA-6106.

C. The [trial] court abused its discretion when it
sentenced [appellant] to a period of
incarceration of 4-8 years based on the
convictions.

Appellant’s brief at 5 (full capitalization omitted).

In his first issue on appeal, appellant argues that the trial court erred

when it denied his motion to suppress evidence. When reviewing a denial of

a motion to suppress evidence, we are governed by the following standard:

[An appellate court’s] standard of review
in addressing a challenge to the denial of

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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, [the appellate
court is] bound by [those] 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 courts
below are subject to [ ] plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-27
(Pa.Super. 2015) (citation omitted).

Additionally, the Pennsylvania Supreme Court has
ruled that when reviewing a motion to suppress
evidence, we may not look beyond the suppression
record. See In re L.J., [] 79 A.3d 1073 ([Pa.]
2013).

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. 2017).

Here, appellant contends that the traffic stop was pretextual and that

the police used a “de minimus traffic stop as an unjustified basis for

stopping appellant [] for the purpose of furthering an investigation into a

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more serious crime for which they [did] not have probable cause.”

(Appellant’s brief at 12 (brackets in original).)

“Traffic stops based on a reasonable suspicion: either
of criminal activity or a violation of the Motor Vehicle
Code under the authority of Section 6308(b)[2] must
serve a stated investigatory purpose.”
Commonwealth v. Feczko, 10 A.3d 1285, 1291
(Pa.Super. 2010) (en banc) (citation omitted). For
a stop based on the observed violation of the Vehicle
Code or otherwise non-investigable offense, an
officer must have probable cause to make a
constitutional vehicle stop. Feczko, 10 A.3d at 1291
(“Mere reasonable suspicion will not justify a vehicle
stop when the driver’s detention cannot serve an
investigatory purpose relevant to the suspected
violation.”). Pennsylvania law makes clear that a
police officer has probable cause to stop a motor
vehicle if the officer observes a traffic code violation,
even if it is a minor offense. Commonwealth v.
Chase, [] 960 A.2d 108 ([Pa.] 2008).

Commonwealth v. Harris, 176 A.3d 1009, 1020 (Pa.Super. 2017).

In order to conduct a warrantless search of a motor vehicle, the police

need only establish probable cause and need not establish any exigent

circumstances beyond the inherent mobility of the vehicle. Commonwealth

v. Gary, 91 A.3d 102, 138 (Pa. 2014) (plurality). Probable cause is

established when,

the facts and circumstances within the officer’s
knowledge are sufficient to warrant a person of
reasonable caution in the belief that an offense has
been or is being committed. The evidence required
to establish probable cause must be more than a

2 Section 6308(b) of the Motor Vehicle Code relates to a police officer’s
authority to stop a vehicle. See 75 Pa.C.S.A. § 6308(b).

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mere suspicion or a good faith belief on the part of
the police officer.

Commonwealth v. Davis, 188 A.3d 454, 459 (Pa.Super. 2018), quoting

Commonwealth v. Runyan, 160 A.3d 831, 837 (Pa.Super. 2017) (citation

omitted).

Turning first to the issue of whether the police had probable cause to

conduct a stop of appellant’s vehicle, the record reflects that the police

observed appellant fail to come to a complete stop at a stop sign, in violation

of Section 3323 the Motor Vehicle Code. (Notes of testimony, 4/18/17 at

7-8; see 75 Pa.C.S.A. § 3323(b).) Accordingly, the police had probable

cause to stop appellant’s vehicle.

We shall now address whether the police established the requisite

probable cause to conduct a search of appellant’s vehicle. As noted by the

trial court,

The facts in our case are analogous to Gary in that
Rogalski detected the odor of marijuana at the onset
of the investigatory stop. Rogalski also noticed the
opened cylinder with apparent marijuana particles in
plain view. . . . [T]here was probable cause to search
[a]ppellant’s vehicle based on the “plain smell” of
marijuana (coupled with other evidence that
[a]ppellant in fact possessed marijuana).[3] Support
for probable cause may also be inferred from the
officer’s view of the misaligned molding surrounding
the gear shifter.

3See Commonwealth v. Stoner, 710 A.2d 55, 59 (Pa.Super. 1998), citing
Commonwealth v. Stoner, 344 A.2d 633 (Pa.Super. 1975) (recognizing
odor may be sufficient to establish probable cause to search a vehicle).

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Trial court opinion, 6/4/18 at 7.

The record provides a basis of support for the trial court’s conclusions

regarding probable cause. (See notes of testimony 4/18/17 at 8, 10.)

Therefore, we find that the record supports the trial court’s factual findings,

and its legal conclusions were without error. Accordingly, appellant’s first

issue is without merit.

Appellant next avers that the Commonwealth failed to present

sufficient evidence to justify appellant’s convictions of PWID, persons not to

possess firearms, and firearm not to be carried without a license.

(Appellant’s brief at 16.)

In reviewing the sufficiency of the evidence, we view
all evidence admitted at trial in the light most
favorable to the Commonwealth, as verdict winner,
to see whether there is sufficient evidence to enable
[the fact finder] to find every element of the crime
beyond a reasonable doubt. This standard is equally
applicable to cases where the evidence is
circumstantial rather than direct so long as the
combination of the evidence links the accused to the
crime beyond a reasonable doubt. Although a
conviction must be based on “more than mere
suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty.”

Moreover, when reviewing the sufficiency of the
evidence, the Court may not substitute its judgment
for that of the fact finder; if the record contains
support for the convictions, they may not be
disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations

omitted), appeal denied, 89 A.3d 661 (Pa. 2014).

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For all three offenses, appellant contends that the Commonwealth

failed to prove beyond a reasonable doubt that appellant was in constructive

possession of the narcotics or the firearm in this case. (Appellant’s brief at

14.)

Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law
enforcement. Constructive possession is an
inference arising from a set of facts that possession
of the contraband was more likely than not. 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. Hopkins, 67 A.3d 817, 820 (Pa.Super. 2013), appeal

denied, 78 A.3d 1090 (Pa. 2013), quoting Commonwealth v. Brown, 48

A.3d 426, 430 (Pa.Super. 2012), appeal denied, 63 A.3d 1243 (Pa. 2013).

Employing a totality of the circumstances analysis, we find that the

Commonwealth presented sufficient evidence to enable the fact-finder to

conclude that appellant exercised conscious dominion and control over the

contraband at issue in this case beyond a reasonable doubt. As noted by the

trial court,

First, the police found crack cocaine, weighing
approximately 6.5 grams, in individually wrapped
Ziploc bags behind the gear shifter molding in
[a]ppellant’s car. Second, [a]ppellant was the driver
and the only person in the car at the time of the
traffic stop. The car rental agreement was also in his
name. Third, [a]ppellant possessed $662 when the

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officers searched him incident to arrest. Fourth, the
Commonwealth’s narcotics expert testified that the
individually wrapped packets and the large number
of $1 bills [a]ppellant had were consistent with
narcotics distribution. Officer Rogalski also testified
that [a]ppellant appeared nervous and his hand[s]
were shaking.

Trial court opinion, 6/4/18 at 10-11 (emphasis omitted; footnotes omitted).

Using the same analysis, we find that the Commonwealth presented

sufficient evidence to enable the fact-finder to conclude that appellant

constructively possessed the firearm at issue in this case beyond a

reasonable doubt. Accordingly, appellant’s second issue is without merit.

In his third and final issue on appeal, appellant argues that his

aggregate sentence of 8 to 16 years’ imprisonment was excessive.

Specifically, appellant’s challenge to the discretionary aspects of sentence is

on the grounds that the trial court failed to consider mitigating

circumstances, including strong family support and the “minor role that the

appellant played in his past convictions.” (Appellant’s brief at 19-20.)

Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging his sentence.

First, appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902

and 903. Appellant, however, failed to file a post-sentence motion with the

trial court, and he failed to raise any objections to his sentence at the

sentencing hearing. Accordingly, appellant has waived this issue on appeal.

See Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa.Super. 2013),

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appeal denied, 76 A.3d 538 (Pa. 2013), quoting Commonwealth v.

Lamonda, 52 A.3d 365, 371 (Pa.Super. 2012), appeal denied, 75 A.3d

1281 (Pa. 2013) (citation omitted).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/11/19

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