Com. v. Whitney, K. ( 2014 )

J-A20033-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KASEIM WHITNEY, :
:
Appellant : No. 2941 EDA 2013
Appeal from the Judgment of Sentence entered on November 17, 2011
in the Court of Common Pleas of Chester County,
Criminal Division, No. CP-15-CR-0001355-2010
BEFORE: FORD ELLIOTT, P.J.E., MUNDY and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 05, 2014
imposed after he was convicted of possession with intent to deliver a
1
as well as
the summary offense of turning movements and required signals.2 We
affirm.
The trial court extensively set forth the facts and procedural history
1
See 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 6106(a)(1), 6110.2.
2
See 75 Pa.C.S.A. § 3334(a).
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underlying this appeal in its Opinion, which we adopt herein by reference.
See Trial Court Opinion, 8/31/10, at 1-24.3
Following a hearing, the suppression court entered an Order denying
-jury
trial, at the close of which the trial court found Whitney guilty of the above-
mentioned charges.
Subsequently, on November 17, 2011, the trial court sentenced
Whitney, on his PWID conviction, to a statutory term of five years in prison,
and ordered him to pay the mandatory fine of $50,000. The court imposed
a consecutive sentence of nine months to three years in prison for the
and a concurrent sentence of eighteen months to three years for the
firearms not to be carried without a license conviction. The court imposed
no further penalty for W
Following a procedural history that is not relevant to this appeal, on
August 6, 2013, Whitney filed a pro se Petition under the Post Conviction
4
seeking reinstatement of his direct appeal rights, nunc
pro tunc. The PCRA court granted relief, permitting Whitney to file an
appeal nunc pro tunc, and appointing him counsel. Whitney timely filed a
3
car was approximately 64 pounds.
4
See 42 Pa.C.S.A. §§ 9541-9546.
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Notice of Appeal. In response, the trial court ordered Whitney to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and
Whitney timely filed a Concise Statement.
On appeal, Whitney presents for our review the following issues
challenging the denial of his Motion to Suppress:
I. Does [] Whitney, an unauthorized driver of a rental
vehicle, have standing to challenge the search of the rental
vehicle and his belongings contained therein?
II.
did the trial court err in failing to suppress physical
III. Did the trial court err in failing to suppress physical
told he was free to leave?
IV. If this was an investigatory detention, did [the] trial court
err in finding that there was reasonable and articulable
suspicion to support such detention?
V.
voluntary or was it a product of an unjustified investigatory
detention unsupported by reasonable suspicion that
criminal activity was afoot?
Brief for Appellant at 4.
In reviewing
Suppress, we are mindful that
our role is to determine whether the record supports the
inferences and legal conclusions drawn from those findings. In
making this determination, we may consider only the evidence of
the pros
read in the context of the record as a whole, remains
uncontradicted. When the evidence supports the factual findings
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of the suppression court, we may reverse only if there is an error
in the legal conclusions drawn from those factual findings. As a
reviewing court, we are therefore not bound by the legal
conclusions of the suppression court and must reverse that
misapplied.
Commonwealth v. Page, 59 A.3d 1118, 1131 (Pa. Super. 2013) (brackets
and citation omitted).
The Fourth Amendment to the United States Constitution and Article 1,
Section 8 of the Pennsylvania Constitution protect individuals from
unreasonable searches and seizures. U.S. Const. amend. IV; Pa. Const. art.
1, § 8. Generally, law enforcement must obtain a warrant prior to
conducting a search; however, there are certain exceptions to the warrant
requirement. Commonwealth v. Lagenella, 83 A.3d 94, 102 (Pa. 2013).
One such exception, implicated in the instant case, is a consensual search.
Commonwealth v. Caban, 60 A.3d 120, 127 (Pa. Super. 2012).
[T]he central inquiries in consensual search cases entail
assessment of the constitutional validity of the citizen/police
encounter giving rise to the consent, and the voluntariness of
the consent given. To establish a valid consensual search, the
Commonwealth must first prove that the individual consented
during a legal police interaction. Where the underlying
encounter is lawful, the voluntariness of the consent becomes
the exclusive focus.
Id. (citations omitted).
Regarding
has standing to challenge the legality of the traffic stop and search of the
rental v
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In his second issue, Whitney argues that the stop of his vehicle was
unlawful, and all of the evidence produced as a result of the stop must be
suppressed because the stop was pretextual in nature, as Trooper Justin
vehicle in order to conduct a warrantless search of its contents. See Brief
for Appellant at 24-29. Whitney points out that Trooper Hope conceded at
the suppression hearing that (1) the sole reason he had decided to pursue
followed Whitney for approximately thirteen miles to see if he would commit
which would provide
Trooper Hope grounds to stop the vehicle and investigate whether Whitney
was involved in criminal activity. See id. at 24-25 (citing N.T., 6/22/10, at
because t
merely a pretext for some other investigation does not automatically require
the suppression of evidence found after the traffic stop. Whren v. U.S.,
517 U.S. 806, 812-13 (1996). In Whren, the United States Supreme Court
established a bright-line rule that any technical violation of a traffic code
legitimizes a stop, even if the stop is merely a pretext for an investigation of
some other crime. Id.; see also Arkansas v. Sullivan, 532 U.S. 769, 772
(2001) (holding that a traffic violation arrest will not be rendered invalid by
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the fact that it was a mere pretext for a narcotics search); U.S. v.
Robinson, 414 U.S. 218, 221 n.1 (1973). This is true even if, as in the
instant case, the Vehicle Code violation witnessed is a minor offense.
Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008) (stating that
questioning motorists when they witness or suspect a violation of traffic
Whren Court explained
probable- Whren, 517 U.S. at 813; see
also Chase
reasonable suspicion of a Vehicle Code violation, a constitutional inquiry into
Here, although Whitney strenuously challenges the pretextual nature
of the stop, he does not dispute that he violated section 3334(a) of the
signal. See Brief for Appellant at 25, 31. Moreover, Whitney concedes that
the case that he relies upon in support of his argument, U.S. v. Hernandez,
55 F.3d 443 (9th Cir. 1995), was effectively overruled by Whren, see Brief
for Appellant at 27. In any event, Hernandez is not binding precedent for
this Court. See Commonwealth v. Dunnavant, 63 A.3d 1252, 1255 n.2
(Pa. Super. 2013) hile decisions of the lower federal
courts have a persuasive authority, they are not binding on Pennsylvania
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the applicability of the holding in Whren by pointing to factual distinctions.
Accordingly, although we withhold comment regarding our opinion as
vehicle for thirteen miles to observe a Vehicle Code violation, we must
conclude that the stop was legal.
Next, we will simultan
and fifth issues. Whitney argues that even if the stop of his vehicle was
legal, the physical evidence and his statements that were elicited as a result
of his detention were inadmissible and should have been suppressed as
being the product of an unreasonable search and seizure. See Brief for
Appellant at 14, 29-50. According to Whitney, the police interaction that
occurred after Trooper Hope had informed him that he was free to leave was
an unjustified inv
that was not supported by reasonable suspicion that Whitney was engaged
in criminal activity. Id. Whitney summarizes his allegations in support of
this challenge as follows:
Having stopped [] Whitne
license and determined that it was valid and there were no
outstanding warrants for [] Whitney. Upon learning that []
Whitney was not an authorized driver of the car, the trooper
d him he was free to leave
but he could not drive the car or walk on the turnpike. []
Whitney was given the choice of calling his girlfriend to pick him
up there or allowing the trooper to drive him to the closest
interchange[,] where she could meet him. Essentially, []
Whitney was not free to leave. Within seconds of informing him
that he could leave, Trooper Hope, having been joined by two
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more armed state troopers, began asking [] Whitney whether he
had anything illegal in the car. Given all of these circumstances,
[] Whitney did not believe he was free to leave and was the
subject of an investigative detention without reasonable
suspicion that he was involved in criminal activity.
Id. at 14; see also id. that he
and unrelenting[,] with [] Whitney responding to each question in the
y contends that his consent to the search was
invalid, as it was not voluntarily given and flowed from the illegal
investigative detention. Id. at 51.
In its Opinion, the trial court set forth the applicable law and
that (1) the police interaction, which
occurred after Whitney was told he was free to leave, constituted a mere
encounter, not an investigative detention; (2) even if the interaction did not
s position
constituted an investigative detention supported by reasonable and
articulable suspicion of criminal activity; and (3) the search of the vehicle
onsent to the search was voluntarily given. See
Trial Court Opinion, 8/31/10, at 35-57. Our review reveals that the trial
aining issues.
See id.
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Motion to Suppress.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/5/2014
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