Com. v. Hanton, R. ( 2014 )

J-A24043-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RODNEY HANTON,
Appellant No. 341 EDA 2014
Appeal from the Judgment of Sentence February 4, 2014
in the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0000080-2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 22, 2014
Appellant, Rodney Hanton, appeals from the judgment of sentence
imposed after his jury conviction of possession of a controlled substance.
We affirm.
The trial court aptly set forth the background of this case, as follows:
On December 9, 2012, at approximately 3:00 a.m., Trooper
Brian Richardson of the Pennsylvania State police was on patrol
in full uniform in a marked State Police unit traveling southbound
on Interstate 95 in . . . Delaware County, Pennsylvania. Trooper
Richardson began following a silver Lincoln MKT station wagon . .
. . Trooper Richardson clocked the vehicle traveling 80 miles per
hour in a properly posted 55 mile per hour zone. The vehicle
was followed for 1.0 miles and the speed was clocked for over
0.3 miles . . . . After following the vehicle for 1 mile, Trooper
Richardson pulled the vehicle over for speeding. Trooper
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*
Retired Senior Judge assigned to the Superior Court.
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Richardson approached the vehicle to request the driver provide
identification and registration information.
While approaching the vehicle Trooper Richardson smelled
a strong odor of what he recognized through his training and
experience as Phencyclidine or PCP. Trooper Richardson also
smelled an air freshener which he believed was being used as a
masking agent. [Appellant] was the driver and sole occupant of
the vehicle. He also noticed [Appellant] was very nervous and
his hands shook as he handed the Trooper his rental agreement
[for the vehicle] and license. . . . [Appellant] told Trooper
Richardson that he was on his way to Chester and that he had
rented the vehicle. . . . Trooper Richardson utilized his patrol
vehicle’s computer and conducted a CLEAN/NCIC query on
[Appellant] which revealed that he had an extensive
Pennsylvania and FBI criminal history. [Appellant’s] criminal
history contained an arrest for drug trafficking and firearms
possession charges. Trooper Richardson asked [Appellant]
about his criminal charges then told [him] he was free to leave.
[Appellant] turned and walked back to his car. As [Appellant]
got to his car, Trooper Richardson called his name and
[Appellant] stopped and walked back toward Trooper
Richardson. Trooper Richardson approached [Appellant] and
asked him for consent to search the vehicle.
[Appellant] agreed and signed the Pennsylvania State
Police Waiver of Rights and Consent to Search form. Trooper
Richardson then asked [Appellant] if he was responsible for
everything in the car and [Appellant] answered he was. Trooper
Richardson conducted a hand search of [Appellant’s] vehicle and
located a clear glass jar containing a yellow liquid suspected to
be [PCP,] which had a gross weight of approximately 2 ounces
including packaging in the center console. . . . Trooper
Richardson seized the suspected [PCP] and approached the front
of his patrol vehicle where [Appellant] was waiting. Trooper
Richardson asked [Appellant] what was in the vial and he stated
it was “wet”. “Wet” is a street name commonly used for [PCP].
[Appellant] was taken into custody. A search incident to arrest
was conducted on [Appellant] and $288 of US Currency was
seized from his person.
(Trial Court Opinion, 4/08/14, at 1-2).
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On June 10, 2013, Appellant filed a motion to suppress the evidence
seized by Trooper Richardson. On August 8, 2013, the trial court denied the
motion after a hearing. On October 22, 2013, the court held jury selection.
Appellant moved to remove juror number seventeen for cause on the basis
that he would be more likely to believe the testimony of a police officer.
After the court questioned the juror about whether he could “render a fair
and impartial decision,” (N.T. Trial, 10/22/13, at 61-62), the court denied
Appellant’s motion.
The case proceeded to trial at which the Commonwealth presented
three witnesses. During the Commonwealth’s case, it moved for an offer of
proof on Appellant’s proposed witnesses, Darrell McMurray, who had
managed an Enterprise Rent-A-Car in the past, and Jonathan King, who had,
on one occasion, rented a car and accidentally left his firearm inside it. (See
N.T. Trial, 10/23/13, at 99-100). The Commonwealth objected to the
witnesses on the basis that their testimony was speculative, irrelevant, and
more prejudicial than probative. (See id. at 101). The court sustained the
Commonwealth’s objection on the basis that the proposed testimony could
not “offer anything probative in this case,” (id. at 104), and Appellant did
not testify or present any witnesses on his behalf. (See id. at 102-104;
140).
On October 23, 2013, the jury convicted Appellant of possession of a
controlled substance. On February 4, 2014, the court sentenced Appellant
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with the benefit of a pre-sentence investigative report (PSI) to a term of
incarceration of not less than twelve nor more than twenty-four months.
The court denied Appellant’s motion for reconsideration. Appellant timely
appealed.1
Appellant raises three questions for this Court’s review:
I. Did not the trial court err in denying [Appellant’s] Motion
to Suppress Evidence, in that there was neither reasonable
suspicion, nor probable cause for the State Trooper to summon
[Appellant] back to the police cruiser after his paperwork was
returned to him and he was told that he was free to leave, and
thus was not the consent to search [Appellant] eventually gave
involuntary?
II. Did not the trial court err in denying a challenge for cause
to Juror No. 17, who repeatedly conceded that he would be more
likely to believe the testimony of a police officer than that of a
civilian and who deliberated with the Jury?
III. Did not the trial court err in excluding [Appellant’s] entire
defense, which consisted of a rental car manager, as well as a
frequent rental car customer, both of whom would have testified
that objects are frequently left in rental cars and are not
discovered by the rental company’s cleaning crew?
(Appellant’s Brief, at 4).
In Appellant’s first issue, he argues that “[a]ssuming arguendo that
there was a valid reason for the initial stop, the grounds for that stop
dissipated at the point when the trooper returned [Appellant’s] driver’s
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1
Pursuant to the court’s order, Appellant filed a timely Rule 1925(b)
statement of errors on February 14, 2014; and the trial court filed a Rule
1925(a) opinion on April 8, 2014 in which it relied in part on its August 8,
2013 opinion. See Pa.R.A.P. 1925.
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license and rental agreement and told him he was free to leave.” (Id. at
10). Therefore, Appellant claims that “the investigative detention which
ensued was also not supported by reasonable suspicion [and] [t]he motion
to suppress physical evidence should have been granted.” (Id.). We
disagree.
Our standard of review of a challenge to a court’s ruling on a
suppression motion is well-settled:
Our standard of review of a denial of
suppression is whether the record supports the trial
court’s factual findings and whether the legal
conclusions drawn therefrom are free from error.
Our scope of review is limited; we may consider only
the evidence of the prosecution 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 record supports the findings of the
suppression court, we are bound by those facts and
may reverse only if the court erred in reaching its
legal conclusions based upon the facts.
In addition, [i]t is within the suppression court’s sole
province as factfinder to pass on the credibility of witnesses and
the weight to be given their testimony. The suppression court is
also entitled to believe all, part or none of the evidence
presented. Finally, . . . the Commonwealth has the burden of
establish[ing] by a preponderance of the evidence that the
evidence was properly obtained.
Commonwealth v. Galendez, 27 A.3d 1042, 1045-46 (Pa. Super. 2011)
(en banc), appeal denied, 40 A.3d 120 (Pa. 2012) (citations and quotation
marks omitted).
Here, the trial court found that:
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Immediately upon arriving at the vehicle, Trooper
Richardson smelled the strong odor of [PCP]. [Therefore, he]
had reasonable suspicion independent of the basis for the traffic
stop to conduct the investigative detention that followed.
. . . Under the totality of the circumstances, [the c]ourt finds
[Appellant’s] consent was the product of his free and
unconstrained choice, not the result of duress or coercion,
express or implied[.]
(Trial Court Opinion, 8/08/13, at 7). We agree with the trial court.
Interactions with police are classified as mere encounters,
investigative detentions, or formal arrests.
Police may engage in a mere encounter absent
any suspicion of criminal activity, and the citizen is
not required to stop or to respond. If the police
action becomes too intrusive, a mere encounter may
escalate into an investigatory stop or a seizure. If
the interaction rises to the level of an investigative
detention, the police must possess reasonable
suspicion that criminal activity is afoot, and the
citizen is subjected to a stop and a period of
detention. Probable cause must support a custodial
interrogation or an arrest.
Commonwealth v. Thompson, 93 A.3d 478, 484-85 (Pa. Super. 2014)
(citation omitted).
In [Commonwealth v.] Strickler[, 757 A.2d 884 (Pa.
2000)], our Supreme Court set forth a number of factors to
assist in determining whether the interaction between a
defendant and a police officer following the conclusion of a valid
traffic stop is a mere encounter or an investigative detention:
(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,
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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 to police restraint, . . . 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.
Commonwealth v. Caban, 60 A.3d 120, 127 (Pa. Super. 2012), appeal
denied, 79 A.3d 1097 (Pa. 2013) (citations and some quotation marks
omitted).
In Caban, a state trooper cited the driver for speeding, returned her
license and paperwork, and told her that she was free to leave. See id. at
124. When the driver began walking back to her car, the officer asked her if
she would answer a few more questions, which she did, before then saying
she was ready to go. See id. The officer told her to “hold tight” while he
questioned the passenger. This Court found that the trooper was justified in
telling the defendant to “hold tight” because “[t]he facts adduced by Trooper
Jones by the time he told [the driver] to ‘hold tight’ provided him with
sufficient reasonable suspicion to justify the investigative detention.” Id. at
128. This Court found that:
The car was owned by a third party not present in the vehicle,
[the driver] acted nervously, the answers provided by [the
driver] and Caban to basic questions regarding their destination
were inconsistent, and various masking agents, including air
fresheners, canisters of perfume, and a bottle of Fabreze [sic],
were present in the vehicle. When considering the totality of the
circumstances, we need not limit our inquiry to only those facts
that clearly and unmistakably indicate criminal conduct.
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Instead, even a combination of innocent facts, when taken
together, may warrant further investigation by the police officer.
Id. at 129 (citations and quotation marks omitted).
Likewise, here, we conclude that, although the original purpose of the
traffic stop for speeding concluded when Trooper Richardson gave Appellant
his license back and told him he was free to leave, he had developed
reasonable suspicion to believe Appellant was engaged in illegal activity to
provide him with reasonable suspicion to support a further investigative
detention.
For example, based on his prior training and experience, Trooper
Richardson detected the smell of PCP and “a strong, overwhelming odor of
air freshener, which [he referred] to as a masking agent” emanating from
Appellant’s rental vehicle. (N.T. Suppression Hearing, 6/28/13, at 9; see id.
at 10). Upon conducting an NCIC and a criminal history check on Appellant,
the trooper learned that he had a criminal record that included a federal
conviction for possession with intent to deliver a controlled substance and a
Firearm Act Violation. (See id. at 11). The trooper advised Appellant that
he would give him a warning for the speeding violation, but “engaged him in
conversation as to his origination, destination, [and] the purpose of his trip.”
(Id. at 12). In response, Appellant told Trooper Richardson that he was
heading to an exit off of the interstate that the trooper knew does not exist,
and Appellant did not know the exact address to which he was driving. (Id.
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at 13). The trooper then advised Appellant that he was free to leave, but
asked him to consent to a search of the vehicle. (See id. at 15-16).
Appellant signed a State Police Waiver of Rights and Consent to Search
Form. (See id.).
Based on the foregoing, we conclude that the record supports the trial
court’s finding that, under the totality of the circumstances, Trooper
Richardson “possess[ed a] reasonable suspicion that criminal activity [was]
afoot” to support an investigative detention. Thompson, supra at 485;
see also Caban, supra at 127; Galendez, supra at 1045-46. Accordingly,
Appellant’s first issue does not merit relief.2
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2
Moreover, Appellant’s reliance on Commonwealth v. Moyer, 954 A.2d
659 (Pa. Super. 2008), appeal denied, 966 A.2d 571 (Pa. 2009),
Commonwealth v. Dales, 820 A.2d 807 (Pa. Super. 2003), and
Commonwealth v. Reppert, 814 A.2d 1196 (Pa. Super. 2002) is not
legally persuasive. (See Appellant’s Brief, at 11-13). Although all three
cases involved a traffic stop and a subsequent investigative detention, they
are factually distinguishable.
For example, in Moyer, the police did not acquire any additional facts
during the traffic stop to establish the reasonable suspicion required for
additional questioning and an investigative detention. See Moyer, supra at
670. Likewise, in Reppert, this Court concluded that there was no
reasonable suspicion to justify an investigative detention because the
trooper did not acquire additional information beyond that necessary for the
traffic stop. See Reppert, supra at 1204-05. Finally, in Dales, the officer
smelled the odors of bactine and air freshener during a traffic stop, and
failed to make a connection between those smells and the transportation of
illegal drugs, thus failing to establish reasonable suspicion. See Dales,
supra at 815. Therefore, these cases are factually distinguishable from the
case before us.
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In his second issue, Appellant argues that “[t]he trial court erred in
denying a challenge for cause to Juror No. 17, who repeatedly conceded that
he would be more likely to believe the testimony of a police officer than that
of a civilian. . . .” (Appellant’s Brief, at 13). Appellant’s claim lacks merit.
The test for determining whether a prospective juror
should be disqualified is whether he or she is willing and able to
eliminate the influence of any scruples and render a verdict
according to the evidence, and this is to be determined on the
basis of answers to questions and demeanors. It must be
determined whether any biases or prejudices can be put aside on
proper instruction of the court. A challenge for cause should be
granted when the prospective juror has such a close relationship,
familial, financial, or situational, with the parties, counsel,
victims, or witnesses that the court will presume a likelihood of
prejudice or demonstrates a likelihood of prejudice by his or her
conduct and answers to questions. The decision on whether to
disqualify is within the sound discretion of the trial court and will
not be reversed in the absence of a palpable abuse of discretion.
Commonwealth v. Banks, 677 A.2d 335, 341 (Pa. Super. 1996), appeal
denied, 693 A.2d 585 (Pa. 1997) (citation omitted).
Further,
Jurors should be disqualified for cause when they do not
have the ability or willingness to eliminate the influences under
which they are operating and therefore cannot render a verdict
according to the evidence. . . . Where a prospective juror
indicates that he or she cannot be an impartial juror, much
depends upon the answers and demeanor of the potential juror
as observed by the trial judge. Individuals are not expected to
be free from all prejudices in order to sit on a jury and the
burden here is on appellant to establish that the challenged
jurors possessed a fixed, unalterable opinion that prevented
[them] from rendering a verdict based solely on the evidence
and the law.
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Commonwealth v. Impellizzeri, 661 A.2d 422, 427 (Pa. Super. 1995),
appeal denied, 673 A.2d 332 (Pa. 1996) (citations and quotation marks
omitted).
Here, we conclude that the trial court did not abuse its discretion when
it denied Appellant’s motion to dismiss Juror No. 17 for cause. The record
reflects that the following occurred during voir dire:
[APPELLANT’S COUNSEL]: You indicated, sir, that you’d be more
likely to believe the testimony of a police officer.
JUROR #17: It’s my upbringing. I’m old school. It’s just my
upbringing, that’s all, but I think I could be fair overall.
[APPELLANT’S COUNSEL]: Okay. You think that would impede
you though, you might lean toward the Commonwealth if you
believe police officers more than civilians?
JUROR #17: I would listen very carefully to the case.
[APPELLANT’S COUNSEL]: I appreciate that.
JUROR #17: And I still might lean toward the officer because I
consider police officers as veterans, brothers and sisters.
[APPELLANT’S COUNSEL]: Yeah.
JUROR #17: I would lean towards the officer a little more, but I
would have an open mind.
[APPELLANT’S COUNSEL]: I appreciate it, but nevertheless
you’d lean toward the police in terms of their testimony?
JUROR #17: To be honest, just a little.
[APPELLANT’S COUNSEL]: Okay.
JUROR #17: Just a little.
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[APPELLANT’S COUNSEL]: And you’d be instructed not─you
know all this.
JUROR #17: Oh, yes.
[APPELLANT’S COUNSEL]: You’re going to be told you can’t do
that.
JUROR #17: Yes.
[APPELLANT’S COUNSEL]: But that’s the way you feel.
JUROR #17: I would be─I was here years ago for a case and I
think I was very fair. I’d use fairness first.
* * *
THE COURT: So you could put that aside, your feeling and listen
to all the testimony equally . . .
JUROR #17: Yes.
THE COURT: . . . and render a fair and impartial decision?
JUROR #17: Yes, I can, Your Honor.
THE COURT: Okay.
JUROR #17: I did that before.
* * *
THE COURT: He’s okay.
[APPELLANT’S COUNSEL]: A Motion for Cause, Your Honor[.]
THE COURT: No, he’s all right.
[APPELLANT’S COUNSEL]: He made it clear that he still would
have the bias notwithstanding . . .
THE COURT: Well, he made it clear that he would put it aside
and render a fair and impartial decision. . . .
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(N.T. Trial, 10/22/13, at 60-64).
Based on the foregoing testimony, we conclude that Appellant has not
met his burden of proving that Juror No. 17 “possessed a fixed, unalterable
opinion that prevented [him] from rendering a verdict based solely on the
evidence and the law.” Impellizzeri, supra at 427. Although Juror No. 17
admitted that he had a bias in favor of police officers, the record supports
the court’s finding that Juror No. 17 was “willing and able to eliminate the
influence of any scruples and render a verdict according to the evidence.”
Banks, supra at 341; (see also N.T. Trial, 10/22/13, at 63-64). Therefore,
the court did not palpably abuse its discretion when it denied Appellant’s
motion for cause. See Banks, supra at 341. Appellant’s second issue does
not merit relief.3
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3
Moreover, we are not legally persuaded by Appellant’s reliance on
Commonwealth v. Ingber, 531 A.2d 1101 (Pa. 1987), for the proposition
that all jurors who are predisposed to believe police officers must be
dismissed for cause when the defense has used all of its peremptory strikes.
(See Appellant’s Brief, at 14). In fact, the Court in Ingber stated that such
a juror, who was related to a police officer and predisposed to credit the
testimony of a police officer over a civilian, should be struck where she was
not “questioned as to whether she would be able to put aside her feelings
and evaluate the evidence in accordance with the court’s instructions.”
Ingber, supra at 1103-04. Because the trial court did engage in such a
line of inquiry with Juror No. 17, Ingber is not legally persuasive.
Appellant’s reliance on Commonwealth v. Futch, 366 A.2d 246 (Pa.
1976), is equally unpersuasive. In Futch, the Pennsylvania Supreme Court
found that the trial court erred when it precluded counsel from asking,
during voir dire, whether a prospective juror was more likely to believe the
testimony of prison guards and disbelieve that of inmates based solely on
(Footnote Continued Next Page)
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In Appellant’s third issue, he claims that “[t]he trial court erred in
excluding [his] entire defense, which consisted of a rental car manager, as
well as a frequent rental car customer, both of whom would have testified
that objects are frequently left in rental cars and are not discovered by the
rental company’s cleaning crew.” (Appellant’s Brief, at 16). We disagree.
Our standard of review of this issue is well-settled:
The admission of evidence is a matter vested
within the sound discretion of the trial court, and
such a decision shall be reversed only upon a
showing that the trial court abused its discretion. In
determining whether evidence should be admitted,
the trial court must weigh the relevant and probative
value of the evidence against the prejudicial impact
of the evidence. Evidence is relevant if it logically
tends to establish a material fact in the case or tends
to support a reasonable inference regarding a
material fact. Although a court may find that
evidence is relevant, the court may nevertheless
conclude that such evidence is inadmissible on
account of its prejudicial impact.
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(Footnote Continued)
their status, see Futch, supra at 431-32. Here, there is no allegation that
the trial court precluded any such questions. Therefore, this case is not
legally persuasive.
We also find the cases relied on by Appellant, Commonwealth v.
Johnson, 445 A.2d 509 (Pa. Super. 1982), and Commonwealth v. Perry,
657 A.2d 989, 990-91 (Pa. Super. 1995), to be distinguishable on their
underlying facts. (See Appellant’s Brief, at 14-15). Johnson involved a
prospective juror in a robbery and assault case whose daughter had similarly
been robbed and raped, see Johnson, supra at 512, and the prospective
juror in Perry was the best friend of the arresting officer in the case. See
Perry, supra at 990-91. Because neither of these situations applies here,
we do not find Appellant’s reliance on them to be legally persuasive.
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An abuse of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the exercise
of judgment that is manifestly unreasonable, or the result of
bias, prejudice, ill-will or partiality, as shown by the evidence of
record. An abuse of discretion may result where the trial court
improperly weighed the probative value of evidence admitted
against its potential for prejudicing the defendant.
Commonwealth v. Antidormi, 84 A.3d 736, 749-50 (Pa. Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014) (citations and quotation marks
omitted). Finally, “[a] defendant has a fundamental right to present
evidence, so long as the evidence is relevant and not subject to exclusion
under our Rules of Evidence. Evidence is relevant if it tends to prove or
disprove some material fact, or tends to make a fact at issue more or less
probable.” Commonwealth v. Patterson, 91 A.3d 55, 71 (Pa. Super.
2014) (citations omitted).
Here, Appellant made an offer of proof as to his two proposed
witnesses, Mr. McMurray and Mr. King, who were Appellant’s ex-college
roommates. (See N.T. Trial, 10/23/13, at 99-100). Mr. McMurray
previously worked at Enterprise Rent-a-Car, a different rental car company
than the one involved in this case, and would have testified that “it was not
uncommon for people to leave all kinds of things in cars[.]” (Id. at 100;
see id. at 103). Mr. King would have testified that “he left a firearm in a
rental car and that the car was actually re-rented and then the gun was
subsequently returned to him.” (Id. at 100). The Commonwealth objected
to these witnesses on the basis that their proposed testimony was
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speculative and irrelevant. (See id. at 101). The Court sustained the
objection because the witnesses could not testify about “anything probative
in [Appellant’s] case.” (Id. at 105; see id. at 103).
We agree with the decision of the court. Although Appellant’s
proposed witnesses could have testified about their own personal
experiences with a rental car and a rental car company, that testimony was
irrelevant to the consideration of what happened under the specific
circumstances of this case. See Patterson, supra at 71.
Therefore, based on our independent review of the evidence in this
matter, we conclude that the trial court properly found that the proposed
evidence was irrelevant where it did not “tend[] to prove or disprove some
material fact, or tend[] to make a fact at issue more or less probable.”
Patterson, supra at 71 (citation omitted). Applying our standard of
review, we conclude that the court neither misapplied the law nor exercised
“judgment that [was] manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality[.]” Antidormi, supra at 749-50. Appellant’s
third issue does not merit relief. See id. at 749.
Judgment of sentence affirmed.
Gantman, P.J., joins the Memorandum.
Bender, P.J.E., concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2014
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