Commonwealth v. Freeman

150 A.3d 32

COMMONWEALTH of Pennsylvania

v.Shaun Berkley FREEMAN, Appellant

No. 3740 EDA 2015

Superior Court of Pennsylvania.

Argued August 31, 2016

FILED OCTOBER 31, 2016

Brandon R. Reish, Stroudsburg, for appellant.

Mike Rakaczewski, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

BEFORE: BOWES, J., OTT, J., and SOLANO, J.

OPINION BY SOLANO, J.:

Appellant, Shaun Berkley Freeman, appeals from the judgment of sentence imposed after the trial court convicted him of possession with intent to deliver (marijuana), possession of a controlled substance (marijuana), and possession of drug paraphernalia.¹ Appellant claims the trial court erred in denying his motion to suppress evidence obtained as a result of a vehicle stop. After careful review, we affirm.

The trial court recounted the factual background as follows:

On February 25, 2014, [Appellant] was stopped by Pennsylvania State Police Trooper Jonathan Gerken ("Trooper Gerken") on Interstate Route 80 ("I80"). Trooper Gerken was in full uniform on roving patrol in an unmarked vehicle. He observed a white Chevrolet Malibu traveling westbound on I80 in the right lane following a FedEx truck. Trooper Gerken stated that the Malibu was traveling too closely ... and then the Malibu made several unsafe lane changes. He then initiated a traffic stop of [Appellant's] vehicle on Interstate Route 380 ("I380"). Upon approaching the vehicle, Trooper Gerken noticed an overwhelming odor of air fresheners coming from the vehicle. Trooper Gerken then questioned [Appellant] on his travels and he noticed that [Appellant] was acting nervous and somewhat short in his responses.

After running a CLEAN/NCIC check,² Trooper Gerken determined that [Appellant] had a valid license. However, a criminal background check indicated that [Appellant] had a 2005 arrest for a weapon out of New York. Trooper Gerken obtained a copy of the rental car agreement ("agreement") which was a one-day rental from Hertz, New Rochelle, New York. The agreement required the vehicle to be returned to the same location on February 26, 2014 at 8 a.m. Trooper Gerken questioned [Appellant] further about his travel plans and [Appellant] changed his statement. Trooper Gerken then contacted his dispatcher for backup. Trooper Lindsay was dispatched and he arrived on scene a few minutes later. After [Appellant] denied a request to search the vehicle, Trooper Gerken requested a K9 unit to perform an exterior search of the vehicle due to suspicion of criminal activity. Trooper Doblovasky and his K9, Micho, performed a perimeter search, at which time Micho indicated on the vehicle. [Appellant] was then transported back [to] the police barracks and an application for search warrant was made. After the search warrant was issued, [Appellant's] vehicle was searched and 80 pounds of marijuana was discovered along with other paraphernalia. [Appellant] was charged with [the three aforesaid drug offenses]. On April 21, 2014, [Appellant] filed [an] Omnibus Pretrial Motion [seeking suppression]. On January 12, 2015, [the trial court] held a hearing[.]

Trial Court Opinion, 4/2/15, at 1-2.

On April 1, 2015, the trial court denied Appellant's suppression motion. The case proceeded to trial on August 4, 2015, at the conclusion of which the trial court rendered its guilty verdicts. On September 28, 2015, the trial court sentenced Appellant to 12 months less a day to 24 months less a day, with three years of probation, for possession with intent to deliver. The possession charge merged with the charge for possession with intent to deliver, such that no sentence was imposed for that conviction. With respect to possession of drug paraphernalia, the court imposed a sentence of one year of probation, to run concurrently with the three years of probation imposed for possession with intent to deliver.

Appellant filed a post-sentence motion October 6, 2015, which the trial court denied on November 23, 2015. Appellant filed this timely appeal on December 7, 2015.³

On appeal, Appellant presents two issues for our review.

1. Has the Commonwealth carried its burden of proof at a suppression hearing where a defendant alleges that the vehicle stop was unlawfully made in violation of his rights under the Fourth Amendment and Article I Section 8 of the Pennsylvania Constitution, and the trooper offers conclusory testimony that a defendant's vehicle was following too closely for conditions and made unsafe lane changes?

2. Should a canine sniff of a vehicle be suppressed when a defendant and his vehicle are forced to await the arrival of the canine unit while standing alongside an Interstate for over an hour in the February cold without a jacket and without reasonable suspicion or probable cause to suspect a crime had been committed, all in violation of a defendant's rights under the Fourth Amendment and Article I Section 8 of the Pennsylvania Constitution ?

Appellant's Brief at 6.

Preliminarily, we reference our standard of review:

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. The suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

Moreover, appellate courts are limited to reviewing only the evidence presented at the suppression hearing when examining a ruling on a pre-trial motion to suppress.

Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014) (internal citations and quotations omitted).

We further note:

It is well-established that there are three categories of interaction between citizens and police officers. As our Supreme Court has clearly articulated:

The first of these is a "mere encounter" (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. The second, an "investigative detention [,]" must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or "custodial detention" must be supported by probable cause.

Ranson, 103 A.3d at 76–77.

The Vehicle Stop

In his first issue, Appellant argues that the initial stop of his vehicle was unlawful. Appellant asserts that Trooper Gerken lacked "probable cause or reasonable suspicion" to initiate the traffic stop and assails Trooper Gerken's testimony. Appellant's Brief at 15, 19-20. In doing so, Appellant claims Trooper Gerken "testified in a conclusory manner about his observations" and without "specific articulable facts." Id. at 15.

Trooper Gerken had to have probable cause to initiate the traffic stop. We have explained:

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. " [Commonwealth v. ] Gleason, 567 Pa. 111, 785 A.2d [983,] 989 [2001] (citation omitted). See also [Commonwealth v. ] Chase, 599 Pa. 80, 960 A.2d [108,] 116 [2008] (reaffirming Gleason's probable cause standard for non-investigative detentions of suspected Vehicle Code violations).

Commonwealth v. Feczko , 10 A.3d 1285, 1291 (Pa. Super. 2010) (en banc ) (emphasis in original).

Here, Trooper Gerken testified that he was on patrol on February 25, 2014, when he observed Appellant, who was driving a Chevrolet Malibu in "moderate to heavy traffic," violate the Motor Vehicle Code when he made "several unsafe lane changes, [and] cut across the lanes of traffic." N.T., 1/12/15, at 9-10. Trooper Gerken continued, "[t]he vehicle began following another vehicle entirely too close, due to the weather conditions. I believe it began to follow a tractor-trailer at a distance too close as well, made a change to pass the tractor-trailer, and then cut across the lanes to exit onto 380 northbound."

Id. at 12. Based on these observations, Trooper Gerken effectuated the traffic stop. Id. at 13.

The suppression court credited Trooper Gerken's testimony and explained:

Trooper Gerken testified that he stopped [Appellant's] vehicle for following too closely and unsafe lane changes. 75 Pa.C.S. § 3310 states that the "driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the condition of the highway." Upon observing [Appellant's] vehicle follow the FedEx truck too closely, Trooper Gerken also observed [Appellant's] vehicle make several unsafe lane changes. Based upon this testimony, we find that Trooper Gerken articulated specific probable cause to stop [Appellant's] vehicle.

Trial Court Opinion, 4/2/15, at 3 (citations to notes of testimony omitted).

We have reviewed the notes of testimony, as well as the motor vehicle recording (MVR) that was made from a video camera in Officer Gerken's vehicle and was entered into evidence by the Commonwealth as Exhibit 1. We note that Appellant claims that "on the MVR ... it...