Com. v. Reid, V.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VALBERT GEORGE REID
Appellant No. 1391 MDA 2014
Appeal from the Judgment of Sentence July 16, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003038-2013
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 08, 2015
Appellant, Valbert George Reid, appeals from the judgment of
sentence entered July 16, 2014, by the Honorable David L. Ashworth, Court
of Common Pleas of Lancaster County. We affirm Reid’s conviction, but
vacate his judgment of sentence and remand for resentencing.
We take the underlying facts in this matter from the trial court’s
September 23, 2014 opinion.
On April 10, 2013, State Police Trooper Justin Hope, who
has been a Trooper for 12 years and has received specialized
training in the area of highway drug interdiction, was patrolling
the Pennsylvania Turnpike in Lancaster County. (Notes of
Testimony (N.T.), Suppression, 4/9/14 at 5-8.) At about 1:39
p.m., he initiated a traffic stop of [Reid’s] vehicle for traveling at
a speed of 68 mph in a posted 40 mph construction zone on
Interstate 76 in Brecknock Township, Lancaster County. ([Id].
at 9, 20.)
During the stop of [Reid’s] 2001 Dodge Caravan, Trooper
Hope smelled a strong odor of raw marijuana coming from within
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the vehicle. ([Id.] at 8, 16, 18.) He further observed that
[Reid] possessed two cellular phones, and an air freshener
hanging in the back seat area of the vehicle, and had a Bible on
the dashboard. ([Id.] at 16.) A criminal history check revealed
a prior possession with intent to deliver charge in 2005. ([Id.]
at 19). Trooper Hope, therefore, requested to search [Reid’s]
vehicle. ([Id.] at 22). [Reid] refused the request. ([Id.])
In response to an earlier request for backup assistance and
for the K-9 unit (N.T., Suppression, 4/9/14 at 20), Trooper Jason
Laudermilch and his dog, Eva, arrived at the scene shortly after
[Reid] refused to consent to a search of his vehicle. ([Id.] at
22-23, 63.) The dog quickly alerted to the odor of narcotics
while searching the area of the rear hatch of the vehicle. ([Id.]
at 66). … The K-9 also alerted at the passenger side front
window and, unprompted, jumped into the vehicle through the
open window and immediately went to the area of the third row
seat inside the vehicle. ([Id.] at 67.)
[Reid’s] vehicle was then seized and Trooper Hope applied
for a warrant to search the vehicle. ([Id.] at 24-25.) The
search pursuant to that warrant yielded approximately six
pounds of marijuana, located in the rear of the vehicle in a white
plastic bag. ([Id.] at 25….) [Reid] was arrested by Trooper
Hope and subsequently charged with the crime of possession
with intent to deliver a controlled substance.
Following the search of the vehicle and his arrest, [Reid]
was read his [Miranda] rights at the State Police Barracks by
Corporal Keye Wysocki, at which time he waived those rights,
after consulting with his attorney, and gave incriminating
statements regarding the seized marijuana. (N.T., Suppression,
4/16/14 at 7-12….) Specifically, [Reid] related that he was
transporting the marijuana from Philadelphia to a subject in
York, Pennsylvania. ([Id.] at 16.)
Trial Court Opinion, 9/23/14 at 3-5 (footnotes omitted).
Prior to trial, Reid filed a suppression motion, which the trial court
denied following a hearing. See Order, 4/16/14. The trial court also denied
Reid’s motion for reconsideration. Following a bench trial, the trial court
convicted Reid of possession with intent to deliver marijuana. The trial court
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sentenced Reid to the mandatory minimum sentence of one to three years’
incarceration pursuant to 18 Pa.C.S.A. § 7508. This timely appeal followed.
Reid raises the following issues for our review.
1. Did the trial court err in denying the Motion to Suppress the
evidence obtained during a search of Mr. Reid’s vehicle,
where Trooper Hope did not have probable cause to stop Mr.
Reid’s vehicle for exceeding the speed limit in an active work
zone?
2. Was the application of 18 Pa.C.S. §7508 in the instant case
unconstitutional, pursuant to Alleyne v. United States, 133
S.Ct. 2151 (2013) and Commonwealth v. Newman, 99 A.3d
86 (Pa. Super. 2014) (en banc)?
Appellant’s Brief at 5.
Our standard when reviewing a trial court’s denial of a motion to
suppress evidence is well-settled.
[W]e are limited to determining whether the factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. We may consider the
evidence of the witnesses offered by the prosecution, as verdict
winner, and only so much of the defense evidence that remains
uncontradicted when read in the context of the record as a
whole.
Commonwealth v. McAliley, 919 A.2d 272, 275-276 (Pa. Super. 2007)
(citation omitted). “Moreover, if the evidence supports the factual findings
of the suppression court, this Court will reverse only if there is an error in
the legal conclusions drawn from those findings.” Commonwealth v.
Powell, 994 A.2d 1096, 1101 (Pa. Super. 2010).
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The quantum of proof necessary to effectuate a vehicle stop on
suspicion of a violation of the motor vehicle code is governed by 75
Pa.C.S.A. § 6308(b), which states:
(b) Authority of police officer.—Whenever a police officer is
engaged in a systematic program of checking vehicles or drivers
or 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). Traffic stops based upon suspicion of a violation of
the motor vehicle code under section 6308(b) “must serve a stated
investigatory purpose.” Commonwealth v. Feczko, 10 A.2d 1285, 1291
(2010). “Mere reasonable suspicion will not justify a vehicle stop when the
driver’s detention cannot serve an investigatory purpose relevant to the
suspected violation. In such an instance, ‘it is encumbent [sic] upon the
officer to 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.(emphasis omitted) (citation omitted).
Reid argues that Trooper Hope lacked probable cause to believe that
he exceeded the speed limit in an active work zone in violation of 75 Pa.C.S.
§ 3365, Special speed limitations. Section 3365(c.1), Active work
zones, states that:
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When passing through an active work zone, no person shall drive
a vehicle at a speed greater than the posted limit. An official
traffic-control device shall indicate the beginning and end of each
active work zone to traffic approaching in each direction.
75 Pa.C.S. § 3365(c.1). “Active work zone” is defined by 75 Pa.C.S.A. § 102
as “[t]he portion of a work zone where construction, maintenance or utility
workers are located on the roadway, berm or shoulder.”
Reid is correct that a vehicular stop based solely upon suspicion of
violating section 3365 requires probable cause:
[A] vehicle stop based solely on offenses not ‘investigatable’
cannot be justified by a mere reasonable suspicion, because the
purposes of a Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968)] stop do not exist—maintaining the status
quo while investigating is inapplicable where there is nothing
further to investigate. An officer must have probable cause to
make a constitutional vehicle stop for such offenses.
Commonwealth v. Busser, 56 A.3d 419, 423 (Pa. Super. 2012) (footnote
and citation omitted).
It is undisputed that Trooper Hope clocked Reid driving 68 mph in a 40
mph work zone prior to the vehicular stop. Reid argues that the work zone
was not “active” at the time of the stop because there were not any workers
in the posted 40 mph construction zone through which he was speeding. We
find this interpretation to be too narrow. Trooper Hope testified that the
speed limit reduction towards the active work zone gradually decreased from
65 mph, to 55 mph, and finally to 40 mph once a driver entered the active
work zone. See N.T., Suppression Hearing, 4/9/15 at 10. He also testified
that although there were no workers between the mileposts were he stopped
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Reid’s vehicle, there were workers on the road further west of that location.
See id. at 38.
Based upon the posted 40 mph speed limit, and the proximity to active
workers in the construction zone, we agree that Reid was driving in an active
work zone as that term is defined under 75 Pa.C.S.A. § 102. Officer Hope
thus had probable cause to believe that Reid was driving in excess of the
posted speed limit in violation of section 3365(c.1). As such, Reid’s
challenge to the court’s denial of his suppression motion is without merit.
Lastly, Reid argues that the trial court impermissibly sentenced him to
the mandatory minimum sentence pursuant to 18 Pa.C.S.A. § 7508. As the
parties and trial court now recognize, this Court has recently held that
section 7508 is facially invalid pursuant to the Supreme Court of the United
States’ decision in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151,
186 L.Ed.2d 314 (2013). See Commonwealth v. Fennell, 105 A.3d 13(Pa. Super. 2014). Furthermore, this issue cannot be waived. See
Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc)
(holding that violations of Alleyne could not be waived). We therefore
vacate Reid’s judgment of sentence and remand for re-sentencing without
application of the mandatory minimum.
Conviction affirmed. Judgment of sentence vacated. Case remanded
for re-sentencing consistent with this memorandum. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/2015
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