J. S82024/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
BRADLEY ERCIL JAE BURGESS, :
:
Appellant : No. 366 MDA 2016
Appeal from the Judgment of Sentence January 22, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003452-2014
BEFORE: OTT, DUBOW AND PLATT, JJ.*
MEMORANDUM BY DUBOW, J.: FILED JANUARY 25, 2017
Appellant, Bradley Ercil Jae Burgess, appeals from the January 22,
2016 Judgment of Sentence entered in the Luzerne County Court of
Common Pleas. After careful review, we affirm, in part on the basis of the
trial court’s Opinion.
The trial court summarized the factual and procedural history as
follows:
On November 19, 2014, the Luzerne County District Attorney
filed a Criminal Information charging [Appellant] with possession
of heroin with intent to deliver and DUI stemming from an
August 20, 2014 traffic stop of a vehicle driven by [Appellant].
[Appellant] pleaded not guilty and a jury trial was scheduled. On
January 9, 2015, represented by the Public Defender's Office,
[Appellant] filed a counseled pre-trial motion to suppress
statements made by [Appellant] and physical evidence seized.
*
Retired Senior Judge Assigned to the Superior Court.
J.S82024/16
A suppression hearing was held on July 28, 2015. The
Commonwealth presented the testimony of Wilkes-Barre Police
Officer David Balchun, and introduced [Appellant’s] driving
record and two lab reports into evidence. Officer Balchun
testified that on August 20, 2014, he observed a vehicle make a
right hand turn from North Empire Court Street onto Coal Street
without using its turn signal. Additionally, Officer Balchun
testified that he smelled a strong odor of marijuana smoke
coming from the vehicle. Officer Balchun initiated a traffic stop
of the vehicle, and when he approached the driver's side door
the odor of marijuana got stronger. Officer Balchun observed
[Appellant] in the driver's seat, and asked him for his license and
registration information, which [Appellant] provided. Officer
Balchun then asked [Appellant] if he had any marijuana in the
vehicle because he could smell a strong order of marijuana
coming from it. Officer Balchun testified that [Appellant]
responded that he had a little marijuana in his vehicle and then
handed the officer a cigar wrapper with a small baggie of
marijuana inside it. After being handed the marijuana, Officer
Balchun advised [Appellant] that he was going to search
[Appellant’s] vehicle for any other narcotics. Before the search
could be conducted, however, [Appellant] fled in the vehicle.
Officer Balchun pursued [Appellant] with his lights and siren
activated, but [Appellant] refused to stop and instead ran
several stop signs at a high rate of speed, travelled the wrong
way down a one way street, and nearly hit a pedestrian. While
pursuing [Appellant], Officer Balchun observed him throw
several objects out the vehicle's window. [Appellant] was
eventually apprehended and placed into custody after he pulled
his vehicle into a driveway and jumped out while the vehicle was
still rolling. When Officer Balchun returned to the area where he
had observed [Appellant] throw the items out of the vehicle the
officer found bundles of packaged heroin, totaling 250 packets.
Based on [Appellant’s] careless and reckless driving, and a
statement he made after being taken into custody that he had
smoked marijuana prior to being pulled over by Officer Balchun,
[Appellant] was taken for blood work. He tested positive for
marijuana. Officer Balchun also testified that as the result of his
check on [Appellant’s] driver's license, he learned that the
license was suspended. At the conclusion of the suppression
hearing, the Court denied [Appellant’s] suppression motion.
An Amended Information was subsequently filed setting forth
twenty-nine (29) counts against [Appellant] relating to the
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events of August 20, 2014. Following a September 16, 2015
jury trial [Appellant] was found guilty of twenty-seven (27) of
the twenty-nine (29) counts. A Pre-Sentence Investigation (PSI)
was ordered to be completed by the Luzerne County Adult
Probation and Parole Department, and sentencing was scheduled
for November 23, 2015. [Appellant] failed to appear on that
date, however, and sentencing was continued until January 22,
2016.
Following review and consideration of the recommendations of
counsel and review of the PSI, [the trial court] sentenced
[Appellant] to an aggregate term of incarceration of seven and
one half (7½) to fifteen (15) years in a state correctional
institution.
Trial Court Opinion, filed 6/30/16, at 1-3.
Appellant, still represented by the Public Defender’s Office, filed a
Motion for Modification of Sentence on January 28, 2016. Before the trial
court ruled on the Motion, Appellant retained private counsel, who filed a
Notice of Appeal with this Court on February 22, 2016. On March 1, 2016,
the trial court denied Appellant’s Post-Sentence Motion.1
1
As a general rule, this Court has jurisdiction only over final orders.
Commonwealth v. Rojas, 874 A.2d 638, 642 (Pa. Super. 2005). “A direct
appeal in a criminal proceeding lies from the judgment of sentence.”
Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super. 2007)
(quotation marks and citation omitted). If a defendant in a criminal case
files a timely post-sentence motion, the judgment of sentence does not
become final for the purposes of an appeal until the trial court disposes of
the motions or the motions are denied by operation of law.
Commonwealth v. Borrero, 692 A.2d 158, 160 (Pa. Super. 1997). The
denial of a timely post-sentence motion becomes the triggering event for
filing a notice of appeal. Pa.R.Crim.P. 720(A)(2). When an appellant files a
notice of appeal before the court has ruled on his post-sentence motions, the
judgment of sentence has not become “final,” and any purported appeal will
be interlocutory and unreviewable. Borrero, supra. In those
circumstances, the proper remedy is to quash the appeal, relinquish
Footnote continued on the following page.
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J.S82024/16
Appellant raises five issues on appeal.
1. Whether the trial court erred in ruling that there was probable
cause to initiate a lawful traffic stop of the vehicle that was being
driven by the Appellant?
2. Whether the trial court erred in ruling that the statements
made by the Appellant during the traffic stop were admissible at
trial, given that they were the result of a custodial interrogation
in which the Appellant was not read his Miranda rights?
3. Whether the trial court erred in ruling that the items of
purported marijuana and heroin that were seized from the
Appellant and taken into evidence were admissible at trial, given
that they were fruits of inadmissible statements given by the
Appellant to Officer Balchun?
4. Whether the Appellant was provided with effective assistance
of counsel throughout the duration of his case?
5. Whether the sentence imposed by the Honorable Judge David
W. Lupas of the Luzerne County Court of Common Pleas on
January 22, 2016, was too excessive, given that a lesser
sentence would not depreciate the seriousness of the offenses
and it would still adequately punish the Appellant.
Appellant’s Brief at 3 (re-ordered for ease of disposition).
jurisdiction, and remand for the trial court to consider the post-sentence
motions nunc pro tunc. Id. at 161. Nevertheless, if the court subsequently
denies an appellant’s post-sentence motions, “[this Court] will treat [an]
appellant’s premature notice of appeal as having been filed after entry of
[an] order denying post-sentence motions.” See Commonwealth v.
Ratushny, 17 A.3d 1269, 1271 n. 4 (Pa. Super. 2011). Instantly, because
the trial court subsequently denied Appellant’s post-sentence motion on
March 1, 2016, we will relate Appellant’s premature notice of appeal forward
to March 1, 2016, to resolve any jurisdictional impediments. See id.
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J.S82024/16
Motion to Suppress
Appellant’s first three issues challenge the trial court’s denial of his
Motion to Suppress. 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).
With our standard of review in mind, we address each of Appellant’s
sub-arguments in turn.
The Traffic Stop
At the hearing on Appellant’s Motion to Supress, Officer Balchun
testified that prior to effectuating the traffic stop, he personally observed
Appellant turn without properly signaling, and smelled a strong odor of
marijuana emanating from Appellant’s vehicle. The trial court found Officer
Balchun’s testimony credible, and found that Officer Balchun had probable
cause to stop Appellant. On appeal, Appellant avers that the trial court
erred in finding that Officer Balchun had probable cause to stop Appellant’s
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J.S82024/16
vehicle because there was “no smoke or any visible signs of smoke billowing
from the windows of [Appellant’s] vehicle.” Appellant’s Brief at 8.
The Honorable David W. Lupas has authored a comprehensive,
thorough, and well-reasoned Opinion, citing to the record and relevant case
law in addressing Appellant’s claim. After careful review of the parties’
arguments, and the record, we affirm on the basis of the trial court’s well
written Opinion, which found that (i) Officer Balchun’s credible testimony
that he personally witnessed Appellant turn without properly signaling was a
violation of 75 Pa.C.S. § 3334; and (ii) Appellant’s violation of Section 3334
provided sufficient probable cause to justify the traffic stop. Trial Court
Opinion, at 6-7.
Appellant’s Traffic Stop Statements
Appellant next avers that his initial traffic stop and the single question
posed therein constituted a custodial interrogation. He argues that, because
he was not given his Miranda2 warnings, the statements he made during his
traffic stop should have been suppressed.
Judge Lupas has again authored a comprehensive, thorough, and well-
reasoned Opinion, citing to the record and relevant case law in addressing
Appellant’s claim. After careful review of the parties’ arguments, and the
record, we affirm on the basis of the trial court’s well written Opinion, which
found that (i) under our jurisprudence, Appellant was subject to an
2
Miranda v. Arizona, 384 U.S. 436 (1966).
-6-
J.S82024/16
investigatory detention, not under arrest, and “the dictates of Miranda do
not attach during an investigatory detention[;]” and (ii) Officer Balchun’s
single question, whether Appellant had marijuana, was a permissible
question designed to “confirm[] or dispel[] the officer’s suspicions” that
criminal activity was afoot. See Trial Court Opinion at 9 (citing
Commonwealth v. Chase, 960 A.2d 108, [120] (Pa. 2008), and
Commonwealth v. Murray, 936 A.2d 76, 81 (Pa. Super. 2007)).
The Seizure of Marijuana and Heroin
Appellant avers, in a single paragraph, that the trial court erred in
denying his Motion to Suppress because the drugs that were seized “were
fruits of the inadmissible statements made by [Appellant].” Appellant’s Brief
at 11.
As discussed supra, Appellant’s statement that there was marijuana in
the car was not inadmissible or obtained in violation of Miranda. Because
Appellant’s scant argument is premised on his averment that the statement
should have been suppressed, we conclude that this argument is without
merit.
Effective Assistance of Counsel
In his fourth issue, Appellant raises an ineffective assistance of counsel
claim, averring that trial counsel failed to adequately cross-examine Officer
Balchun at trial. Appellant’s Brief at 12.
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J.S82024/16
Litigation of ineffectiveness claims is not generally a proper component
of a defendant’s direct appeal, and is presumptively deferred for collateral
attack under the PCRA. See Commonwealth v. Holmes, 79 A.3d 562, 576
(Pa. 2013) (establishing a deferral rule for ineffectiveness claims litigated
after its decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002)).
However, the Pennsylvania Supreme Court has recognized two exceptions to
the rule that ineffectiveness claims should be deferred until collateral review,
both falling within the discretion of the trial court:
First, we held that trial courts retain discretion, in extraordinary
circumstances, to entertain a discrete claim of trial counsel
ineffectiveness if the claim is both apparent from the record and
meritorious, such that immediate consideration best serves the
interest of justice. Second, we held that trial courts also have
discretion to entertain prolix claims of ineffectiveness if there is a
good cause shown and the unitary review thus permitted is
accompanied by a knowing and express waiver by the defendant
of the right to pursue a first PCRA petition.
Commonwealth v. Arrington, 86 A.3d 831, 856-57 (Pa. 2014).
Here, the trial court chose not the exercise its discretion to entertain
Appellant’s ineffectiveness claim. We agree with the trial court’s denial of
relief because neither of the specified exceptions to the rule are present in
this matter. It is not clear from the record whether Appellant’s claim is
meritorious or whether trial counsel may have had a reasonable trial
strategy for cross-examining Officer Balchun as he did. Nor was good cause
or “a knowing and express waiver” of Appellant’s right to his first PCRA
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J.S82024/16
Petition shown. Id. Accordingly, we decline to address Appellant’s
ineffective assistance of counsel claims in this direct appeal.
Discretionary Aspects of Sentence
Finally, Appellant challenges the discretionary aspects of his sentence.
A challenge to the discretionary aspects of sentencing is not automatically
reviewable as a matter of right. Commonwealth v. Hunter, 768 A.2d
1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a
discretionary sentencing issue:
We conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see [Pa.R.Crim.P. 720]; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations
omitted).
In the instant case, Appellant filed a timely Post-Sentence Motion and
Notice of Appeal. Although Appellant did not include in his brief a separate
Rule 2119(f) Statement, the Commonwealth has not objected to this defect
and, thus, we decline to find that the defect is fatal.3 As to whether
Appellant has presented a substantial question, we note:
3
This Court may overlook an appellant’s failure to comply with Rule 2119(f)
where the Commonwealth fails to object to the omission and a substantial
Footnote continued on the following page.
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J.S82024/16
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
substantial question exists only when the appellant
advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
and quotation omitted).
Here, Appellant complains that “the sentences imposed [were] on the
higher end of [Appellant’s] applicable sentencing guidelines[,]” and that “the
trial court failed to properly take into consideration [Appellant’s] history and
characteristics when imposing [Appellant’s] sentences for his offenses.”
Appellant’s Brief at 14-15. In particular, Appellant avers that the trial court
“failed to take into consideration” that Appellant’s prior record score of five
was due in large part to “a manslaughter charge brought against [Appellant]
when he was sixteen years old[.]” Id. at 14.
An argument that the sentencing court failed to consider mitigating
factors in favor of a lesser sentence does not present a substantial question
appropriate for our review. Commonwealth v. Hanson, 856 A.2d 1254,
1257-58 (Pa. Super. 2004). See also Commonwealth v. Griffin, 804
A.2d 1, 9 (Pa. Super. 2002) (citing Commonwealth v. Williams, 562 A.2d
1385, 1388 (Pa. Super. 1989) (en banc) (an allegation that the sentencing
question is obvious from the appellant’s brief. Commonwealth v. Kneller,
999 A.2d 608, 614 (Pa. Super. 2010).
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J.S82024/16
court did not adequately consider various factors is, in effect, a request that
this court substitute its judgment for that of the lower court in fashioning a
defendant’s sentence)).
Moreover, we note that Appellant does not allege that his 7½ to 15
year sentence is in the aggravated range of the sentencing guidelines or
outside of the statutory maximum sentence. Nor does Appellant point to
any specific provision of the Sentencing Code that the sentencing court
ostensibly violated. Appellant’s bald assertion that his sentence is excessive
does not raise a substantial question. See Commonwealth v. Trippett,
932 A.2d 188, 201-03 (Pa. Super. 2007) (bald allegations of excessiveness
insufficient to permit discretionary review).
Because we conclude that Appellant has failed to raise a substantial
question as to the appropriateness of his sentence, we will not address the
merits of Appellant’s sentencing claim.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2017
- 11 -
Circulated 12/28/2016 11:31 AM
11T!-I JUDICIAL DISTRICT OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
v.
CRIMINAL DIVISION
BRADLEY ERCIL BURGESS
Defendant I Appellant N0.3452 OF 2014
OPINION
BY: THE HONORABLE DAVID W. LUPAS
I. FACTS AND PROCEDURAL HISTORY:
On November 1°9, 2014, the Luzerne County District Attorney filed a Criminal
Information charging the above named Defendant with possession of heroin with intent
to deliver1 and DUl2 stemming from an August 20, 2014 traffic stop of a vehicle driven
by the Defendant. The Defendant pleaded not guilty and a jury trial was scheduled. On
January 9, 2015, represented by the Public Defender's Office, the Defendant filed a
counseled pre-trial motion to suppress statements made by the Defendant and physical
evidence seized.
A suppression hearing was held · on July 28, 2015. The Commonwealth
presented the testimony of Wilkes-Barre Police Officer David Balchun, and introduced
the Defendant's driving record and two lab reports into evidence.3 Officer Balchun
testified that on August 20, 2014, he observed a vehicle make a right hand turn from
1
35 P.S. § 780-113(a)(30).
2 75 Pa.C.S.A. § 3802(d)(1).
3
The Defendant presented no testimony or evidence.
I
North Empire Court Street onto Coal Street without using its turn signal. N.T. 7/28/15 at
5. Additionally, Officer Balchun testified that he smelled a strong odor of marijuana
smoke coming from the vehicle. Id. at 6, 15. Officer Balchun initiated a traffic stop of
the vehicle, and when he approached the driver's side door the odor of marijuana got
stronger. Id. at 16. Officer Balchun observed the Defendant in the driver's seat, and
asked him for his license and registration information, which the Defendant provided.
!Q. at 6, 16. Officer Balchun then asked the Defendant if he had any marijuana in the
vehicle because he could smell a strong order of marijuana coming from it. Id. at 6-7,
17. Officer Balchun testified that Defendant responded that he had a little marijuana in
his vehicle and then handed the officer a cigar wrapper with a small baggie of marijuana
inside it. Id. at 7. After being handed the marijuana, Officer Balchun advised the
Defendant that he was going to search the Defendant's vehicle for any other narcotics.
Id. Before the search could be conducted, however, the Defendant fled in the vehicle.
Id. at 8. Officer Balchun pursued the Defendant with his lights and siren activated, but
the Defendant refused to stop and instead ran several stop signs at a high rate of
speed, travelled the wrong way down a one way street, and nearly hit a pedestrian. Id.
at 9, 19. While pursuing the Defendant, Officer Balchun observed him throw several
objects out the vehicle's window. Id. at 9-10. The Defendant was eventually
apprehended and placed into custody after he pulled his vehicle into a driveway and
jumped out while the vehicle was still rolling. Id. at 10-11. When Officer Balchun
returned to the area where he had observed the Defendant throw the items out of the
vehicle the officer found bundles of packaged heroin, totaling 250 packets. Id. at 11-12.
Based on the Defendant's careless and reckless driving, and a statement he made after
2
being taken into custody that he had smoked marijuana prior to being pulled over by
Officer Balchun, the Defendant was taken for blood work. Id. at 12. He tested positive
for marijuana. Id. Officer Balchun also testified that as the result of his check on the
Defendant's driver's license, he learned that the license was suspended. ld. at 8. At
the conclusion of the suppression hearing, the Court denied the Defendant's
suppression motion. Id. at 33.
An Amended Information was subsequently filed setting forth twenty-nine (29)
counts against the Defendant relating to the events of August 20, 2014. Following a
September 16, 2015 jury trial the Defendant was found guilty of twenty-seven (27) of the
twenty-nine (29) counts.4 A Pre-Sentence Investigation (PSI) was ordered to be
completed by the Luzerne County Adult Probation and Parole Department, and
sentencing was scheduled for November 23, 2015. The Defendant failed to appear on
that date, however, and sentencing was continued until January 22, 2016.
Following review and consideration of the recommendations of counsel and
review of the PSI, this Court sentenced the Defendant to an aggregate term of
incarceration of seven and one half (7 Yi) to fifteen (15) years in a state correctional
institution.5 N.T. 1/22/16 at 8-11. The Defendant was advised by this Court of his post-
sentence rights before the hearing concluded. Id. at 12-13.
4
Although the Defendant was present during the trial, after the jury concluded its
deliberations and the parties were reassembled for the reading of the verdict the
Defendant did not return to the courtroom and could not be located. The verdict was
thus read in his absence. N.T. 9/16/15 at 186.
5
Each of the individual sentences imposed upon the Defendant fell within the standard
sentencing guideline ranges. The specific charges and sentences were as follows:
Count 1 - Possession with intent to deliver controlledsubstance (heroin), 35 P.S.
§ 780-113(a)(30): thirty-three (33) to sixty-six (66) months incarceration in a state
correctional institution;
3
Still represented by the Public Defender's Office, the Defendant filed a timely
counseled motion to modify his sentence on January 28, 2016, asserting that it was too
harsh, and that a lesser sentence would not depreciate the seriousness of the offenses
and would still adequately punish the Defendant. Before the Court decided the motion,
however, the Defendant (by that time represented by private counsel) filed a Notice of
Count 2 - Possession of a Controlled Substance (heroin), 35 P.S. § 780-113(a)(16):
merged with Count 1 for sentencing purposes;
Count 3 - Possession of a Small Amount of Marijuana, 35 P.S. § 780-113(31)(i):
fifteen (15) to thirty (30) days incarceration, to run concurrently to the previously
imposed sentence;
Count 4 - Fleeing or Attempting to Elude an Officer, 75 Pa.C.S.A. § 3733(a):
eighteen (18) to thirty-six (36) months incarceration, to run consecutively to the
previously imposed sentences;
Count 6 - Recklessly Endangering Another Person, 18 Pa.C.S.A. § 2705: twelve
(12) to twenty-four (24) months incarceration, to run consecutively to the previously
imposed sentence;
Count 8 - DUI (1st Offense), 75 Pa.C.S.A. § 3802(d)(1 ): seventy-two (72) hours to six
(6) months incarceration; to run concurrently to the previously imposed sentences;
Count 9 - Flight to Avoid Apprehension, 18 Pa.C.S.A. 5126(a): eighteen (18) to
thirty-six (36) months incarceration, to run consecutively to the previously imposed
sentences;
Count 10 - Defiant Trespass, 18 Pa.C.S.A. 3503(b)(1)(ii): $25.00 fine plus costs;
Count 11 - Resisting Arrest, 18 Pa.C.S.A. § 5104: nine (9) to eighteen (18) months
incarceration to run consecutively to the previously imposed sentences;
Count 12 - Driving Without a License, 75 Pa.C.S.A. § 1501(a): $25.00 fine plus costs;
Count 13 - Driving While Operating Privileges are Suspended, 75 Pa.C.S.A. §
1543(a): $200.00 fine plus costs;
Counts 14, 23-29 - Duties at a Stop Sign, 75 Pa.C.S.A. § 3323(b): $25.00 fine plus
costs on each count;
Count 15, 16 - Driving the Wrong Way, 75 Pa.C.S.A. § 3308(b): $25.00 fine plus
costs on each count;
Count 17 - Limitations on overtaking on the left, 75 Pa.C.S.A. § 3305: $25.00 fine
plus costs;
Count 18 - Turning Movements and Required Turning Signals, 75 Pa.C.S.A. §
3334(a): $25.00 fine plus costs
.count 19 - Driving at Safe Speed: $25.00 fine plus costs
Count 20 - Exceeding 35 mph in Urban District, 75 Pa.C.S.A. § 3362(A 1-25): $25.00
fine plus costs;
Count 21 - Careless Driving, 75 Pa.C.S.A. § 3714(a): $25.00 fine plus costs;
Count 22 - Reckless Driving, 75 Pa.C.S.A. § 3736: $200.00 fine plus costs.
4
Appeal of his January 22, 2016 sentence. On March 1, 2016, we denied the
Defendant's motion to modify his sentence and again advised him of his appellate
rights. Also on March 1, 2016, the Defendant was directed to file a Concise Statement
of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) and the
Commonwealth was requested to respond thereto. The Defendant's Rule 1925(b)
Statement was submitted on March 16, 2016, and the Commonwealth filed its response
on April 29, 2016.
This matter is now ripe for an Opinion addressing the alleged errors raised by the
Defendant. For the reasons set forth below, we believe the verdict and judgment of
sentence should be affirmed.
II. LAW AND DISCUSSION:
The Defendant's Concise Statement of Errors Complained of on Appeal asserts
that this Court abused its discretion and committed errors of law as follows:
a. In finding that there was probable cause to initiate a lawful traffic stop of
the vehicle that was being driven by the Defendant, which eventually led
to his arrest;
b. In finding that the items of purported marijuana and heroin that were
seized from the Defendant and .taken into evidence were admissible at
trial, given that they were fruits of inadmissible statements made by the
Appellant to Officer Balchune [sic];
c. In finding that the statements made by the Defendant during the traffic
stop were admissible during trial, given that they were the result of a
custodial interrogation in which the Defendant was not read his Miranda
rights;
d. That the Defendant was provided with effective assistance of counsel
throughout the duration of the case;
e. In imposing a sentence upon the Defendant that was too excessive
.
given that a lesser sentence would not depreciate the seriousness of the
'
offenses and it would still adequately punish the Defendant.
5
Pa. RA.P. 1925(b) Statement of Errors Complained of on Appeal filed 3/16/16.
We first address the Defendant's assertion that this Court erred in finding that
Officer Balchun had probable cause to stop the Defendant's vehicle. Section 6308(b) of
the Motor Vehicle Code provides that:
Whenever a police officer ... has reasonable suspicion that a violation of
this title is occurring or has occurred, he may stop a vehicle, upon request
or signal, for the purpose of checking the vehicle's registration, proof of
financial responsibility, vehicle identification number or engine number or
the driver's license, or to secure such other information as the officer may
reasonably believe to be necessary to enforce the provisions of this title.
75 Pa.C.S.A. § 6308(b). "Although subsection 6308(b) delineates the general rule, it
does not apply in all instances because ... not all vehicle offenses require further
investigation to determine whether a motorist has committed that offense."
Commonwealth v. Ibrahim, 127 A.3d 819, 823 (Pa. Super. 2015). When the driver's
detention cannot serve an investigatory purpose relevant to the suspected violation, the
detaining officer must "articulate specific facts possessed by him, at the time of the
questioned stop, which would provide probable cause to believe that the vehicle or the
driver was in violation of some provision of the Code." Id. (citing Commonwealth v.
Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en bane), appeal denied, 25 A.3d 397
(Pa. 2011).
With regard to probable cause, the courts of this Commonwealth have
recognized that "[t]he police have probable cause where 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." Commonwealth v. Brown,
64 A.3d 1101, 1105 (Pa. Super. 2013) (citing Commonwealth v. Hernandez, 594 Pa.
6
319, 935 A.2d 1275, 1284 (2007) (quotation and citations omitted)). Probable cause is
evaluated by considering all relevant facts under a totality of circumstances analysis.
Brown, supra.
Here, the Defendant's vehicle was stopped for failing to use a turn signal, in
violation of 75 Pa.C.S.A. § 3334, which provides in pertinent part as follows.
§ 3334. Turning movements and required signals
(a) General rule.-Upon a roadway no person shall turn a vehicle or
move from one traffic lane to another or enter the traffic stream from a
parked position unless and until the movement can be made with
reasonable safety nor without giving an appropriate signal in the manner
provided in this section.
(b) Signals on turning and starting.-At speeds of less than 35 miles
per hour, an appropriate signal of intention to turn right or left shall be
given continuously during not less than the last 100 feet traveled by the
vehicle before turning. The signal shall be given during not less than the
last 300 feet at speeds in excess of 35 miles per hour. The signal shall
also be given prior to entry of the vehicle into the traffic stream from a
parked position.
75 Pa.C.S.A. § 3334(a)-(b). This Court found that the testimony of Officer Balchun
supported a finding that the officer had probable cause to believe that the Defendant's
conduct violated 75 Pa.C.S.A. § 3334. Specifically, Officer Balchun testified that he
personally observed the Defendant's vehicle make a right-hand turn from North Empire
Court Street onto Coal Street without using a turn signal. N.T. 7/28/15 at 5. This Court
finds Officer Balchun's testimony of his observations to be credible, and that Officer
Balchun articulated specific facts possessed by him, at the time of the questioned stop,
which provided probable cause to believe that the Defendant was committing an
offense.
The Defendant next asserts that his statement to Officer Balchun should have
been suppressed because it was given during a custodial interrogation and without
7
Miranda warnings, and further, that the marijuana surrendered by him and the heroin
recovered after he threw it from the vehicle should have been suppressed because they
were fruits of the inadmissible statement. An examination of the circumstances,
however, as testified to by Officer Balchun and uncontradicted by the Defendant,
supports the conclusion that both the statement and the evidence were properly ruled
admissible. As explained, Officer Balchun had probable cause to lawfully stop the
Defendant's vehicle for the motor vehicle code violation. When the officer performed
the traffic stop and approached the Defendant's vehicle, however, he smelled a strong
odor of marijuana coming from it. At this point, Officer Balchun was well within his
authority to conduct an investigation detention and to search the vehicle.
To maintain constitutional validity, an investigative detention must be supported
by a reasonable and articulable suspicion that the person seized is engaged in criminal
activity and may continue only so long as is necessary to confirm or dispel such
suspicion." Commonwealth v. Strickler, 563 Pa. 47, 58, 757 A.2d 884, 889 (2000). See
also Commonwealth v. Parker, 619 A.2d 735, 738 (Pa. Super.1993). The determination
· of whether an officer had reasonable suspicion is an objective one which must be
considered in light of the totality of the circumstances. Commonwealth v. Kemp, 961
A.2d 1247, 1258 (Pa. Super. 2008). A stop focusing upon one violation may, in
appropriate circumstances, be extended for purposes of pursuit of a separate suspected
violation. Commonwealth v. Freeman, 563 Pa. 82, 89-90, 757 A.2d 903, 907-08 (2000).
The smell of marijuana emanating from a person's vehicle is a specific and articulable
fact reasonably warranting a belief that criminal activity is afoot. Commonwealth v.
Trenge, 451 A.2d 701, 708 (Pa. Super. 1982). Here, the evidence supports a finding
8
that during the lawful traffic stop for the motor vehicle violation, Officer Balchun had
reasonable suspicion to believe that additional criminal activity was afoot, justifying an
investigative detention to pursue that suspected activity.6
During the investigative detention prompted by the smell of marijuana coming
from the Defendant's vehicle, Officer Balchun asked the Defendant if there was
marijuana in it. The record does not suggest that in asking this question Officer Balchun
threatened the Defendant in any way or used force against him in order to obtain a
statement. Regarding the propriety of Officer Balchun's inquiry, we note that police may
ask a detainee a moderate number of questions to try to obtain information confirming
or dispelling the officer's suspicions of criminal activity. Commonwealth v. Chase, 599
Pa. 80, 960 A.2d 108, 115-16 (2008). The Defendant could have refused to answer
questions, but that does not obviate the officer's right to ask them. Further, "[i]t is well-
established that 'the dictates of Miranda do not attach during an investigatory
detention."' Commonwealth v. Murray, 936 A.2d 76, 81 (Pa. Super. 2007) (citing
Commonwealth v. Kondash, 808 A.2d 94.3, 948 (Pa. Super. 2002) (finding that the
defendant was the subject of an investigatory detention. not under arrest. when an
officer asked him why he had a gun in his car, thus Miranda warning were not required).
Because Officer Balchun asked the Defendant a single question, designed specifically
to confirm or dispel the officer's suspicions that the Defendant was engaged in criminal
6
Indeed, as we will discuss, the smell of marijuana coming from the vehicle provided
probable cause to search the Defendant's vehicle regardless of further investigation or
questioning. See Commonwealth v. Gary, 625 Pa. 183, 91 A.3d 102 (2014) (plurality)
(not.ing that the smell of marijuana emanating from inside the vehicle provided
undisputed probable cause to search); Commonwealth v. Stoner, 344 A.2d 633, 635
(Pa. Super. 1975) (holding that the smell of marijuana provides probable cause to
search).
9
activity, we f!nd that the question was properly posed pursuant to, and in furtherance of,
a legal investigatory detention. As such, the Defendant's motion to suppress his
statement was properly denied.
In response to the question asked by Officer Balchun, the Defendant indicated
that he had marijuana in the vehicle, and then immediately handed a baggie of it to the
officer. N.T. 7/28/15 at 7. Since Officer Balchun was conducting a lawful investigative
detention at the time the Defendant handed him the marijuana, the Defendant's request
to suppress it was properly denied. Further, regardless of the propriety of his question
to the Defendant and the Defendant's response thereto, Officer Balchun already had
probable cause to search the vehicle, based on the smell of marijuana coming from it,
and that search would have revealed the marijuana and heroin.
"In this Commonwealth, the law governing warrantless searches of motor
vehicles is coextensive with federal law under the Fourth Amendment. The prerequisite
for a warrantless search of a motor vehicle is probable cause to search; no exigency
beyond the inherent mobility of a motor vehicle is required." Commonwealth v. Gary,
625 Pa. 183, 242. 91 A.3d 102. 138 (2014) (plurality). Thus, the smell of marijuana
coming from the Defendant's vehicle, alone, would have provided grounds to search it.
See Gary, supra;7 Commonwealth v. Caban, 60 A.3d 120, 132 (Pa. Super. 2012)
7
The factual circumstances of~ are very similar to the instant case. Therein, police
stopped a car for a suspected Motor Vehicle Code violation, then noticed the smell of
marijuana coming from it When they approached. Commonwealth v. Gary, 29 A.3d 804,
806 (Pa. Super. 2011). An officer asked the defendant if "there was anything in the
vehicle that the officers 'needjedj'to be worried about"' and the defendant replied that
"there was some 'weed' in the car." Id. The defendant was removed from the car and
placed in a police cruiser, and a canine sniff of his car began. Id. During the canine
sniff, the defendant got out of the police cruiser and fled. Id. He was apprehended and
returned to the cruiser. Id. Marijuana was discovered in the car. Id.
10
(probable cause existed where troopers clearly smelled the odor of raw marijuana
emanating from the trunk of the vehicle); Commonwealth v. Copeland, 955 A.2d 396,
401, 402-403 (Pa. Super. 2008) (the odor of marijuana provided probable cause to
believe that marijuana was inside the vehicle and to support a search of that vehicle)
( citing Commonwealth v. Stoner, 344 A.2q 633, 635 (Pa. Super.1975) (analogizing a
"plain smell" concept with that of plain view, and holding that where an officer is justified
in being where he is, his detection of the odor of marijuana is sufficient to establish
probable cause to search)).
As the record reflects, Officer Balchun did not have the opportunity to search the
vehicle because the Defendant handed him the marijuana, then drove away. While
fleeing, the Defendant threw the heroin out the window of the vehicle. The Defendant's
request to suppress the heroin was properly denied, as that evidence would have been
discovered during the lawful search of the vehicle had the Defendant not fled, and can
The trial court refused to suppress the marijuana, but the Superior Court
reversed, finding that the defendant was in police custody prior to the search and there
was no imperative need for prompt police action, thus, exigent circumstances were not
present to justify the warrantless search and the evidence obtained from that search
should have been suppressed. Id., 29 A.3d at 808.
Granting the Commonwealth's Petition for Allowance of Appeal, the
Pennsylvania Supreme Court agreed to address the following two issues:
a. Were the police permitted to conduct a warrantless search of
defendant's SUV for marijuana where, during a traffic stop, they could
smell marijuana emanating from the vehicle, defendant informed police
that he had marijuana in the SUV, and the officers had not had the
opportunity to obtain a warrant prior to stopping the vehicle?
b. Should this Court adopt the federal automobile exception to the warrant
requirement?
Commonwealth v. Gary, 615 Pa. 610, 44 A.3d 1146 (2012). The Supreme Court
subsequently vacated the order of the Superior Court and reinstated the defendant's
judgment of sentence, finding that "there is no dispute that probable cause existed to
search Appellee's motor vehicle. Nothing more is required." Q_fily, 625 Pa. at 242, 91
A.3d at 138.
11
additionally be viewed as being abandoned by the Defendant. The Pennsylvania
Supreme Court set forth the following test for ascertaining whether a defendant
abandoned property:
The theory of abandonment is predicated upon the clear intent of
an individual to relinquish control of the property he possesses.
Abandonment is primarily a question of intent, and intent
may be inferred from words spoken, acts done, and other
objective tacts. All relevant circumstances existing at the
time of the · alleged abandonment should be considered.
Police pursuitor the existence of a police investigation
does not of itself render abandonment involuntary . The
issue is not abandonment in the strict property-right sense,
but whether the person prejudiced by the search had
voluntarily discarded, left behind, or otherwise relinquished
his interest in the property in question so that he could no
longer retain a reasonable expectation of privacy with regard
to it at the time of the search.
Moreover, it is well settled that no one has standing to complain of a
search or seizure of property that he has voluntarily abandoned. This
Commonwealth has adopted the theory of abandonment of property only
when it is shown that the seized evidence was not discarded as a result of
unlawful police coercion.
Although abandoned property may normally be obtained and used
for evidentiary purposes by the police, such property may not be utilized
where the abandonment is coerced by unlawful police action.
Commonwealth v.. Shoatz, 366 A.2d 1216, 1219-1220 (Pa. 1976) (emphasis added,
citations omitted). Here, because the police lawfully conducted a traffic stop for the
Motor Vehicle Code violation (which escalated into an investigative detention based on
the odor of marijuana, during which the Defendant admitted having marijuana and
handed it to police) they had probable cause to search the vehicle and the Defendant's
subsequent flight and abandonment of the heroin was not coerced by unlawful police
action.
12
For the foregoing reasons, the marijuana and heroin were lawfully obtained and
used for evidentiary purposes by the police, and the Defendant's request to suppress
that evidence was properly denied.
The Defendant additionally alleges that he was provided with ineffective
assistance of counsel throughout the duration of the case. Pursuant to Commonwealth
v. Grant, 813 A.2d 726 (Pa. 2002), defendants should not raise claims of ineffective
assistance of counsel on direct appeal, but should defer them for collateral review. In
accordance with this rule, the Defendant's claims regarding ineffective assistance of
counsel should be dismissed without prejudice. See also Commonwealth v. Holmes,
621 Pa. 595, 631, 79 A.3d 562, 583 (2013) (claims of ineffective assistance of trial
counsel in Pennsylvania generally are deferred to PCRA review and generally are not
available on direct appeal).
Finally, the Defendant challenges the sentences impose following his
convictions.
Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest
abuse of discretion. To constitute an abuse of discretion, the sentence
imposed must either exceed the statutory limits or be manifestly
excessive. In this context, an abuse of discretion is not shown merely by
an error in judgment. Rather, the appellant must establish, by reference to
the record, that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Perry, 883 A.2d 599, 602-03 (Pa. Super. 2005) (citing
Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003). (internal citations
and quotation marks omitted).
"'(\then imposing a sentence, a court is required to consider the particular
circumstances of the offense and the character of the defendant."
13
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002), appeal
denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert. denied, 545 U.S. 1148,
125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). "In particular, the court should
refer to the defendant's prior criminal record, his age, personal
characteristics and his potential for rehabilitation." Id. Where the
sentencing court had the benefit of a presentence investigation report
("PSI"), we can assume the sentencing court "was aware of relevant
information regarding the defendant's character and weighed those
considerations along with mitigatfng statutory factors." Commonwealth v.
Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also
Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super. 2005) (stating if
sentencing court has benefit of PSI, law expects court was aware of
relevant information regarding defendant's character and weighed those
considerations alonq with any mitigating factors). Further, where a
sentence is within the standard range of the guidelines, Pennsylvania law
views the sentence as appropriate under the Sentencing Code. See
Commonwealth v. · Cruz-Centeno, 447 Pa. Super. 98, 668 A.2d 536
(1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating
combination of PSI and standard range sentence, absent more, cannot be
considered excessive or unreasonable).
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
Here, the Defendant specifically asserts that his standard ranges sentences were
excessive because "a lesser sentence would not depreciate the seriousness of the
offenses and it would still adequately punish the Defendant." Rule 1925(b) Statement at
,r e. As noted above, the Defendant's sentences were imposed with the benefit of a
pre-sentence investigation, and this Court specifically recognized the Defendant's
lengthy criminal history, Which included manslaughter while the Defendant was a
juvenile, weapons offenses, and drug trafficking offenses. N.T. 1/22/16 at 7. We further
recognized the Defendant's failure to take advantage of the opportunities provided him
to reform his ways, as well as the serious nature of his current offenses, and the danger
the Defendant posed to the public while committing the offenses. Id. at 7, 12. Thus the
sentences imposed were not excessive, and were imposed so as to not diminish the
serious nature of the offenses. Id. at 7.
14
For the foregoing reasons, the Defendant's appeal should be denied in its
entirety, and the verdict and judgment of sentence affirmed.
END OF OPINION
15