J-S62022-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
KIMANI LOCKHART,
Appellant No. 3150 EDA 2013
Appeal from the Judgment of Sentence of October 22, 2013 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000634-2012
BEFORE: ALLEN, OLSON AND OTT, JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 12, 2014
Appellant, Kimani Lockhart, appeals from the judgment of sentence
entered on October 22, 2013. We affirm Appellant’s conviction, vacate his
judgment of sentence, and remand for resentencing.
The suppression court made the following findings of fact:1
On March 14, 2012, at approximately 8:00 p.m., [Appellant] was stopped on Interstate [] 80 West by Pennsylvania State Trooper Mark Conrad[] for traveling at 69 miles per hour[,] in excess of the posted 55 miles per hour speed limit. Trooper Conrad was assigned to radar duty using a Genesis handheld radar unit, an approved radar device that undergoes a self-test before and after use. He was dressed in full uniform, operating a marked patrol vehicle, and was carrying his firearm on his duty-belt. Trooper Conrad executed a traffic stop, approached[ Appellant’s] vehicle, and requested driver and vehicle identification material. [Appellant] produced a New York State identification card, but he
1 We note that the suppression court fully complied with the requirements of Pennsylvania Rule of Criminal Procedure 581(I). J-S62022-14
did not have a [driver’s] license nor registration or insurance information for the vehicle.
[Appellant] represented that the vehicle was a rental, but had been rented by his girlfriend. He was not in possession of the rental agreement. Trooper Conrad checked and found no report that the vehicle was stolen. When asked where he was traveling, [Appellant] relayed that he was driving back to Wilkes- Barre, Pennsylvania after having visited his cousin in the Poconos. [Appellant] was unable to provide his cousin’s address.
Trooper Conrad returned to his vehicle and conducted a license history and criminal history check. The license check revealed that [Appellant] had a suspended Pennsylvania driver’s license. The criminal history check revealed that [Appellant] had been convicted of robbery, possession of marijuana, and distribution of controlled substances, and was currently on Pennsylvania [s]tate [p]arole. Trooper Conrad testified that based on [Appellant]’s travel from and to a known source location for drugs, possession of a rental vehicle that he had not rented and did not have a contract for, lack of a valid license, and criminal history, he developed a reasonable suspicion that [Appellant] was involved in drug trafficking.
Trooper Conrad called for backup and Trooper Cortez arrived at the scene. At approximately 8:37 p.m., Trooper Conrad returned to [Appellant], requested that he exit the vehicle, and sought his consent to search the vehicle. In turn, Trooper Conrad explained a [w]aiver of [r]ights and [c]onsent to [s]earch form identifying the vehicle as the place to be searched, which [Appellant] acknowledged and signed. The . . . form signed by [Appellant] provides, in pertinent part:
I have been told that I do not have to give my consent. I understand that I have the right to refuse this request, and that the police may not be able to conduct this search without a search warrant unless I give my consent. Nonetheless, I voluntarily give my consent to the police to conduct this search.
Before searching the vehicle, Trooper Conrad asked [Appellant] if he had anything illegal on his person which [Appellant answered in the negative.] Trooper Conrad then requested consent to search [Appellant]’s person, which [Appellant]
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granted. Trooper Conrad conducted a pat-down search of [Appellant], discovering a bulge in the rear of his jeans. When asked, [Appellant] insisted that it was simply his jeans. [Appellant] was then placed in handcuffs and advised of his Miranda[2] rights before Trooper Conrad removed a plastic bag containing approximately 50 grams of powder [c]ocaine from the back of his jeans.
Trooper Conrad testified that the search was not undertaken for officer safety, and that no weapons were found during the search. Additionally, Trooper Conrad testified that once he had discovered that [Appellant] was not in lawful possession of the vehicle, he was no longer free to leave.
Findings of Fact and Conclusions of Law, 11/1/12, at 1-4 (internal paragraph
numbers, certain paragraph breaks, and citation omitted).
The relevant procedural history of this case is as follows. On May 29,
2012, Appellant was charged via criminal information with possession with
intent to distribute (“PWID”) cocaine,3 possession of cocaine,4 possession of
drug paraphernalia,5 speeding,6 and driving under suspension.7 On August
31, 2012, Appellant filed a motion to suppress. On September 25, 2012, a
suppression hearing was held. On November 1, 2012, the suppression court
2 See Miranda v. Arizona, 384 U.S. 436 (1966). 3 35 P.S. § 780-113(a)(30). 4 35 P.S. § 780-113(a)(16). 5 35 P.S. § 780-113(a)(32). 6 75 Pa.C.S.A. § 3362(a)(2). 7 75 Pa.C.S.A. § 1543(a)(2).
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issued detailed findings of fact and conclusions of law and denied Appellant’s
motion to suppress. At the conclusion of a bench trial on August 27, 2013,
Appellant was found guilty of all charges. The trial court sentenced
Appellant to a mandatory minimum of five to ten years’ imprisonment. See
18 Pa.C.S.A. § 7508(a)(3)(ii) (providing for a mandatory minimum sentence
of five years’ imprisonment for a defendant convicted of PWID of between 10
and 100 grams of cocaine when at the time of the defendant’s sentencing he
has previously been convicted of a drug trafficking offense). This timely
appeal followed.8
Appellant raises one issue for our review
Whether the trial court erred in denying the Appellant’s motion to suppress where the Commonwealth failed to establish that [a] search of [Appellant’s] person was supported by reasonable suspicion?
Appellant’s Brief at 4 (complete capitalization removed).
“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
8 On November 12, 2013, the trial court ordered Appellant to file a concise statement of errors complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). On November 26, 2013, Appellant filed his concise statement. On December 9, 2013, the suppression court issued a statement adopting its findings of facts and conclusions of law. See Pa.R.A.P. 1925(a)(1) (permitting trial court to request that the judge who ruled on the contested matter issue a Rule 1925 opinion and permitting adoption by reference of previously filed rationale). Appellant’s lone issue on appeal was included in his concise statement.
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conclusions drawn from those facts are correct.” Commonwealth v. Stem,
96 A.3d 407, 409 (Pa. Super. 2014) (citation omitted). “[O]ur scope of
review is limited to the factual findings and legal conclusions of the
suppression court.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation
omitted). “We may consider only the Commonwealth’s evidence and so
much of the evidence for the defense as remains uncontradicted when read
in the context of the record as a whole.” Commonwealth v. Gary, 91 A.3d
102, 106 (Pa. 2014) (citation omitted).
We note the procedural posture of this case and how that impacts our
scope of review in this case. The suppression hearing in this case occurred
in September 2012 and the trial occurred in August 2013. In October 2013,
our Supreme Court decided L.J. In L.J., our Supreme Court held that this
Court’s scope of review when reviewing a suppression court’s denial of a
suppression motion is limited to the evidence presented at the suppression
hearing. L.J., 79 A.3d at 1085. Evidence produced at trial cannot be
considered when reviewing the propriety of a suppression court order. Id.
However, our Supreme Court chose to apply this rule prospectively instead
of retroactively. Id. at 1088-1089. As the suppression hearing and trial in
this case occurred prior to L.J., we may review both the evidence presented
at trial and the evidence presented at the suppression hearing. See id. at
1089 (“All litigation commenced Commonwealth-wide after the filing of
[L.J.], will be considered in accord with [that] opinion.”).
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Appellant contends that the search of his person was illegal for two
reasons.9 First, he contends that Trooper Conrad lacked reasonable
suspicion to extend the investigative detention that began as a routine traffic
stop. Second, he contends that even if Trooper Conrad possessed
reasonable suspicion to extend the traffic stop, his consent to the search of
his person was not voluntary. The Commonwealth, on the other hand,
contends that the interaction between Appellant and Trooper Conrad was a
part of the original traffic stop and therefore Trooper Conrad was not
required to have reasonable suspicion to ask for consent to search
Appellant’s person. Alternatively, it argues that if the interaction were not a
natural continuation of the traffic stop, Trooper Conrad possessed
reasonable suspicion and Appellant’s consent was voluntary.
On appeal, neither party disputes that Trooper Conrad had probable
cause, based upon radar device readings, to initiate a traffic stop of
Appellant’s vehicle for a speeding violation. Instead, the parties contest
whether Appellant gave valid consent to a search of his person and whether
9 On appeal, Appellant only seeks suppression of evidence gathered from the search of his person. See Appellant’s Brief at 4. Nonetheless, Appellant devotes a significant portion of his brief to addressing whether he consented to a search of his vehicle. We will not directly address these arguments as the only issue is whether the Commonwealth established reasonable suspicion to support a search of Appellant’s person. See Appellant’s Brief at 4; Commonwealth v. Samuel, 2014 WL 5305816, *3 (Pa. Super. Oct. 17, 2014) (no question will be considered unless included in Appellant’s statement of question involved).
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Trooper Conrad possessed the requisite constitutional justification to extend
the initial traffic stop interaction to include a search of Appellant’s person.
We conclude that the issue of consent is dispositive in this case and that the
issue of whether Trooper Conrad justifiably extended the traffic stop is
interrelated to that dispositive determination under Pennsylvania law.
Hence, we address each of the parties’ contentions as they arise in relation
to our discussion of the issues presented in this appeal.
On a motion to suppress, the burden is on the Commonwealth to
prove, by a preponderance of the evidence, that the evidence seized from
Appellant was legally obtained. See Commonwealth v. Howard, 64 A.3d
1082, 1087 (Pa. Super. 2013), appeal denied, 74 A.3d 118 (Pa. 2013)
(citation omitted). “As [this Court has] explained, the Fourth Amendment to
the United States Constitution and Article I, Section 8 of the Pennsylvania
Constitution protect citizens from unreasonable searches and seizures.”
Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013) (internal
alteration and quotation marks omitted).
If an individual gives valid consent, then the ensuing search is not
unreasonable and the individual’s constitutional rights are not violated by
the police’s conduct. See Florida v. Jimeno, 500 U.S. 248, 250–251
(1991). “To establish a valid consensual search, the prosecution must first
prove that the consent was given during a legal police interaction, or if the
consent was given during an illegal seizure, that it was not a result of the
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illegal seizure; and second, that the consent was given voluntarily.”
Commonwealth v. Newton, 943 A.2d 278, 283–284 (Pa. Super. 2007)
(internal quotation marks and citations omitted).
The first requirement for finding valid consent is that the consent be
given during a legal encounter between the police and a citizen. 10 As this
Court has explained:
When conducting a routine traffic stop, an officer may request a driver’s license and vehicle registration, run a computer check and issue a citation. Upon producing a valid driver’s license and registration, the driver must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. In order to justify detaining the driver for further questioning, the officer must have reasonable suspicion of illegal transactions in drugs or of any other serious crime.
Commonwealth v. Grosso, 672 A.2d 792, 794 (Pa. Super. 1996) (internal
alteration, citations, and quotation marks omitted). Even when an individual
does not produce a valid driver’s license, police still must have reasonable
suspicion in order to transition the traffic stop to an investigation of other
criminal activity. See Commonwealth v. Parker, 619 A.2d 735, 738 (Pa.
Super. 1993).
10 To the extent that Appellant argues that he never gave affirmative consent to search his person, we reject that argument. The suppression court found that Appellant gave verbal consent to be searched. See Findings of Fact and Conclusions of Law, 11/1/12, at 16. This finding of fact is supported by the record. See N.T., 9/25/12, at 12 (Trooper Conrad explaining that he verbally asked Appellant for consent to search his person).
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We reject the Commonwealth’s argument that Trooper Conrad’s
requests to search were a natural continuation of the original traffic stop. As
the suppression court noted, the requests to search were unrelated to the
original reason for the traffic stop (i.e. speeding) or the subsequent offense
of driving on a suspended license. As such, we agree with the suppression
court that the Commonwealth was required to prove that Trooper Conrad
had reasonable suspicion to transition from a traffic stop to an investigative
detention seeking evidence of other criminal activity.
As this Court has explained:
Reasonable suspicion is a less stringent standard than probable cause necessary to effectuate a warrantless arrest, and depends on the information possessed by police and its degree of reliability in the totality of the circumstances. . . . In assessing the totality of the circumstances, courts must also afford due weight to the specific, reasonable inferences drawn from the facts in light of the officer’s experience and acknowledge that innocent facts, when considered collectively, may permit the investigative detention.
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.
Clemens, 66 A.3d at 379 (ellipsis and citation omitted).
In this case, Trooper Conrad had reasonable suspicion to extend
Appellant’s traffic stop for further investigation. In particular, Appellant told
Trooper Conrad that he was returning from visiting his cousin in the
Poconos. Appellant, however, could not provide Trooper Conrad with his
cousin’s address. Trooper Conrad also knew that Appellant was heading to
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and from known source cities for narcotics, was using a rental car that was
not in his name, lacked the appropriate paperwork for that vehicle, and was
driving despite a suspended Pennsylvania driver’s license. Furthermore,
Trooper Conrad was aware that Appellant had past convictions for dealing
drugs, was on state parole, and was traveling on a route frequented by drug
dealers. When taken as a whole, the evidence provided Trooper Conrad the
necessary reasonable suspicion to believe that criminal activity was afoot.
Specifically, Trooper Conrad possessed reasonable suspicion to believe that
Appellant was engaged in drug trafficking. Accordingly, the first requirement
for valid consent to search, i.e., the requirement that the consent was given
during a legal police/citizen interaction, is satisfied as the interaction
between Appellant and Trooper Conrad was a lawfully justified investigative
detention.
We next examine whether Appellant’s consent to search his person
was voluntary. This Court has set forth numerous factors to be considered
when determining if consent was voluntary. Specifically, we consider
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 of the interdiction; 6) the content of the questions and statements; 7) the existence and character of the initial investigative detention, including its degree of coerciveness; 8) whether the person has been told that he is free to leave; and 9) whether the citizen has been informed that he is not required to consent to the search.
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Commonwealth v. Kemp, 961 A.2d 1247, 1261 (Pa. Super. 2008) (en
banc) (citation omitted). We consider those factors seriatim.
As to the first factor, the suppression court found that there were
some police excesses. We agree that there were some excesses in that
there were two uniformed troopers present for the routine traffic stop. We
conclude, however, that the suppression court correctly determined that this
factor only weighed minimally against voluntariness. Appellant was not
surrounded by a swat team or several officers. Instead, in addition to
Trooper Conrad there was only one other trooper present.
As to the second factor, there was no physical contact between
Appellant and Trooper Conrad prior to Appellant consenting to his person
being searched. As such, the second factor weighs in favor of a finding of
voluntariness. As to the third factor, the suppression court correctly
determined that this factor weighed against voluntariness. Trooper Conrad
directed Appellant’s movement, including telling him to stay in his vehicle
and then telling him to exit the vehicle. As the suppression court noted,
however, the weight to be afforded this factor was low. The direction of
Appellant’s movement was not extensive. Furthermore, the locations to
which Appellant was directed were not intimidating.
As to the fourth factor, Trooper Conrad’s demeanor and manner of
expression weigh in favor of voluntariness. The suppression court found that
there “was nothing to suggest that Trooper Conrad behaved in an
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intimidating manner or addressed [Appellant] in an aggressive way.”
Findings of Fact and Conclusions of Law, 11/1/12, at 16. This finding of fact
is supported by the record and Appellant does not contend on appeal that
Trooper Conrad’s demeanor and/or manner of expression were
unprofessional. Accordingly, we conclude that the fourth factor weighs in
favor of voluntariness.
As to the fifth factor, the location of the encounter, the suppression
court found that this factor weighed against voluntariness. The suppression
court’s conclusion is legally correct; however, like the suppression court, we
conclude that this factor only weighs slightly against a finding of
voluntariness. Specifically, although the encounter occurred during a traffic
stop at night, it occurred on public streets. The encounter did not occur in
the back of a police cruiser or at a police station. Thus, this factor weighs
minimally against voluntariness.
As to the sixth factor, we conclude that this factor weights in favor of
voluntariness. Trooper Conrad asked a basic question, whether Appellant
would consent to the search. The answer was equally straightforward.
There was no confusion with the question and or answer. There was nothing
else present in the question or answer that could have led to confusion.
Thus, the sixth factor weighs in favor of voluntariness.
As to the seventh factor, the suppression court found that this factor
weighed slightly against voluntariness. We agree. The existence of the
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traffic stop, an investigative detention, and the length thereof weighs
against a finding of voluntariness. The other aspects of the investigative
detention, however, do not weigh against voluntariness. Thus, we conclude
that the suppression court correctly determined that this factor weighed
slightly against voluntariness.
The eighth factor weighs against voluntariness. There was no
indication that Appellant was free to leave. Most of the dispute in this
case focuses on the ninth factor, which asks whether the citizen was
informed that consent was not compulsory. As our Supreme Court has
noted, this factor is especially important. See Commonwealth v.
Strickler, 757 A.2d 884, 901 (Pa. 2000), citing United States v.
Mendenhall, 446 U.S. 544, 558-559 (1980); Florida v. Bostick, 501 U.S.
429, 432 (1991). The suppression court found, and the Commonwealth
argues on appeal, that Appellant was told he did not have to consent to the
search. On the other hand, Appellant contends that he was never told that
he could decline the officer’s request to search his person.
We conclude that the suppression court’s factual finding that Appellant
was notified that he could decline Trooper Conrad’s request to search his
person is supported by the record.11 As the suppression court noted,
11 To the extent that Appellant relies upon a videotape of the encounter between himself and Trooper Conrad, that argument is waived. No recording was included in the certified record forwarded to this Court. “We (Footnote Continued Next Page)
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immediately prior to Trooper Conrad requesting permission to search
Appellant’s person, Trooper Conrad verbally explained to Appellant that he
had the option of not consenting to a search of his vehicle. See N.T.,
9/25/12, at 10-11. Furthermore, Trooper Conrad presented Appellant with a
waiver of rights form that also outlined his right of refusal. Appellant
contends that the location of his signature, along with the fact that it was
dark outside, evidences that he did not read the form. Appellant, however,
did not testify that he failed to read the form. The only evidence of record is
the testimony of Trooper Conrad, who testified that Appellant had a chance
to read and review the form. The location of Appellant’s signature
immediately after the bold statement that he is giving consent for the police
to search his vehicle evidences the fact that he read and reviewed the form
insofar as the critical element of consent is concerned. It may even be more
indicative that Appellant read and reviewed the form since Appellant chose
to sign the form immediately below the relevant statement that he
voluntarily consented to a search of his vehicle.
We recognize that there is no evidence that Trooper Conrad explicitly
told Appellant that he could decline a search of his person (as opposed to a
search of his vehicle). The suppression court found, however, that Appellant _______________________ (Footnote Continued)
may not review that which an appellant, despite bearing the burden to so include, has failed to remit within the certified record.” Commonwealth v. Spotti, 94 A.3d 367, 381 (Pa. Super. 2014) (en banc) (citation omitted).
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was aware of his right to decline Trooper Conrad’s request to conduct a
search of his person because the Trooper’s request immediately followed the
moment at which Trooper Conrad informed Appellant of his right to refuse a
vehicle search. We discern no clear error in this factual finding. Cf.
Strickler, 757 A.2d at 900 (although officer did not explicitly tell motorist
that he was free to leave, his actions “at least suggested as such”).
In addition to the nine factors outlined in Kemp, the suppression court
considered “the maturity, sophistication and mental or emotional state of
[Appellant] (including age, intelligence and capacity to exercise free will).”
Commonwealth v. LaMonte, 859 A.2d 495, 500 (Pa. Super. 2004). The
suppression court found that this factor weighed in favor of voluntariness. It
concluded that Appellant produced no evidence that he lacked the
sophistication, mental state, or emotional state to voluntarily consent to the
search. See Findings of Fact and Conclusions of Law, 11/1/12, at 16. We
conclude that this finding is supported by the record. Our review of the
record uncovers nothing that indicates Appellant was unable to understand
Trooper Conrad’s request.
In sum, we agree with the suppression court’s analysis of each of the
ten factors set forth in Kemp and LaMonte. Several of the factors weigh in
favor of voluntariness and other factors weigh against voluntariness. The
suppression court weighed these factors and concluded that the factors in
favor of voluntariness outweighed the factors against voluntariness.
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Specifically, it concluded that the factors that weighed against voluntariness
should not be afforded significant weight. On the other hand, it concluded
that the ninth Kemp factor weighed heavily in favor of voluntariness. That,
combined with the other factors that weighed in favor of voluntariness, led
the suppression court to conclude that under the totality of the
circumstances Appellant voluntarily consented to the search of his person.
We conclude that the suppression court’s analysis is supported by the
record and free of legal error. Our Supreme Court has repeatedly
emphasized the importance of the fact that a defendant was informed that
he could refuse a search. E.g., Commonwealth v. Mack, 796 A.2d 967,
971–972 (Pa. 2002), citing Strickler, 757 A.2d at 901. In this case, the
totality of the circumstances suggest that Appellant was aware that he had
the right to refuse a search of his person and, yet, he still elected to consent
to the search. That, in combination with the several other factors that
weighed in favor of a finding of voluntariness, outweighed the less significant
factors that weighed against voluntariness. Our conclusion is supported by
previous decisions of this Court.
In Commonwealth v. By, the defendant was pulled over because the
vehicle’s windows had excess tint. 812 A.2d 1250, 1253 (Pa. Super. 2002),
appeal denied, 839 A.2d 350 (Pa. 2003). During the traffic stop, the police
officer asked By to exit the vehicle. Id. At that time, the police officer gave
By a warning and informed him that he was free to leave. Id. The police
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officer, however, asked By if he would be willing to answer a few questions.
By, 812 A.2d at 1253. The police officer proceeded to ask By if there were
any narcotics or firearms in the vehicle. Id. By hesitated, but eventually
consented to the search of the vehicle. Id.
This Court found that the following factors weighed in favor of
voluntariness: the policer officer’s conduct was restrained and he did not
use force; he spoke in a casual manner; he did not order By to stand at a
particular location; and he informed By that he was free to leave. Id. at
1256. This Court found that the following factors weighed against
voluntariness: the interaction took place after a traffic stop at night; three
officers were present; and the officer failed to inform By that he could refuse
the search. Id. at 1256-1258. This Court concluded in By that, under the
totality of the circumstances, there was sufficient evidence to conclude that
By had voluntarily consented to a search of his vehicle. Id. at 1258.
The circumstances in By were more conducive to a finding of
involuntariness than the circumstances in the case at bar. Many of the
factors in the two cases were similar and militated toward the same
conclusion. The only two facts that differ significantly are that the defendant
in By was notified that he could leave but was not notified that he could
refuse the search. In the case sub judice, by contrast, Appellant was not
notified that he could leave but was aware that he could refuse the search.
As we have noted above, the fact that a defendant is aware that he can
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refuse a search is generally considered a critical factor in determining
whether consent was voluntary. Furthermore, in this case there was a
legitimate reason that Appellant was not told that he could leave the scene,
i.e., he did not have a valid driver’s license to operate a motor vehicle. In
the absence of a lawful right to operate a vehicle, telling an individual they
are free to leave at night on the side of the road would obviously be a futile
act. Thus, the consent approved in By lacked several of the factors
supporting consent in the present case.
Likewise, in Commonwealth v. Rosas, the defendant was pulled over
for speeding and was unable to produce a valid driver’s license. 875 A.2d
341, 344 (Pa. Super. 2005), appeal denied, 897 A.2d 455 (Pa. 2006). Rosas
was subsequently handcuffed because a criminal records search revealed
that he was possibly a deported felon. Id. at 345. Police then asked Rosas
if he would consent to a search of his vehicle for a license plate that
appeared to be in the back seat. Id. When an officer went to retrieve the
license plate, he noticed cocaine on the backseat. Id.
Rosas, along with a passenger in the vehicle, moved to suppress the
cocaine. They argued that the search was unlawful as Rosas’ consent was
involuntary. The suppression court granted the motions to suppress the
cocaine and the Commonwealth appealed to this Court. This Court first
concluded that Rosas was not under arrest when he was placed in handcuffs;
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rather he was handcuffed in the process of an investigative detention.
Rosas, 875 A.2d at 347.
This Court then went on to conclude that the following factors weighed
in favor of voluntariness: the police officer made the request to search in a
non-coercive way and, despite the fact that Rosas was in handcuffs, there
was no implied or express coercion. Id. at 349-350. Although this Court
did not discuss the other factors, we note that the circumstances in Rosas
included: the presence of multiple police officers, nothing in the record to
indicate that the police told Rosas he could refuse the request to enter his
vehicle, and Rosas was not free to leave as he was in handcuffs.
Nonetheless, this Court found that Rosas’ consent was voluntary and
therefore reversed the trial court’s suppression order.
The circumstances in Rosas were much more coercive than the
situation in the case at bar. In this case, Appellant was not in handcuffs
when Trooper Conrad asked him if he could search his person. Furthermore,
Appellant was made aware that he was permitted to decline the request to
search. If the circumstances in Rosas were not sufficiently coercive to
warrant a finding of involuntariness by this Court, then the circumstances in
this case dictate that we conclude that Appellant’s consent was voluntary.
Appellant relies upon several cases in support of his argument that the
search was illegal; however, all of those cases are inapposite. Appellant
cites Commonwealth v. Freeman, 293 A.2d 84 (Pa. Super. 1972), for the
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proposition that evidence seized in a search incident to a pretextual arrest is
inadmissible. Appellant’s Brief at 10. In this case, however, the cocaine
was not found in a search incident to any type of arrest. Instead, the
cocaine was found during a consensual search prior to arrest. Appellant
likewise cites Commonwealth v. Lopez, 609 A.2d 177 (Pa. Super. 1992),
appeal denied, 617 A.2d 1273 (Pa. 1992). See Appellant’s Brief at 11. In
Lopez, however, this Court concluded that police lacked reasonable
suspicion to prolong the traffic stop. Lopez, 609 A.2d at 182. As noted
above, we have concluded that Trooper Conrad possessed reasonable
suspicion to extend the traffic stop that preceded the request for permission
to search Appellant’s person.
Appellant also relies upon this Court’s decision in Commonwealth v.
Acosta, 815 A.2d 1078 (Pa. Super. 2003) (en banc), appeal denied, 839
A.2d 350 (Pa. 2003). Acosta is distinguishable for two reasons. First, in
Acosta the suppression court found that the actions of the officers were
intimidating. Id. at 1085. Specifically, the suppression court noted that
three officers (instead of two like in the instant case) were in close proximity
to the defendant when consent to search was sought. Id. More
importantly, however, was the fact that, when the suppression court
weighed all of the relevant factors, it determined that they weighed against
a finding of voluntariness. The majority in Acosta concluded that the
weighing of the factors by the suppression court was not an abuse of
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discretion and lamented the fact that the dissent reweighed the factors in
order to conclude that the defendant’s consent was voluntary. See Acosta,
815 A.2d at 1086 n.5. In the case at bar, the suppression court weighed all
of the relevant factors and determined that Appellant’s consent to search his
person was voluntary. Like in Acosta, we decline to reweigh the evidence.
For all of these reasons we conclude that Appellant’s consent was voluntary,
that Trooper Conrad’s search of Appellant’s person was lawful, and that the
suppression court correctly denied Appellant’s motion to suppress.
Accordingly, Appellant’s only issue raised on appeal is without merit.
Although we have disposed of Appellant’s lone issue on appeal, we sua
sponte consider the legality of Appellant’s mandatory minimum sentence
under 18 Pa.C.S.A. § 7508(a)(3)(ii). We note that “[l]egality of sentence
questions are not waivable and may be raised sua sponte [on direct review]
by this Court.” Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super.
2013) (en banc). Moreover, this Court recently held that “a challenge to a
sentence premised upon [Alleyne v. United States, 133 S.Ct. 2151
(2013)] . . . implicates the legality of the sentence and cannot be waived on
appeal.” Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014)
(en banc).
In Newman, this Court held that a mandatory minimum statute which
sets forth the triggering facts in subsection (a) and the sentencing procedure
in subsection (c) is unconstitutional and that the sentencing procedure
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subsection is not severable from the remainder of the statute. Newman, 99
A.3d at 101. Newman was followed by a three-judge panel’s opinion in
Commonwealth v. Valentine, 2014 WL 4942256 (Pa. Super. Oct. 3.
2014). In Valentine, this Court held that because the whole statute was
unconstitutional, it was immaterial that the Commonwealth charged the
requisite facts for imposition of the mandatory minimum in the criminal
information and the jury found those facts beyond a reasonable doubt. Id.
at *8-9. This Court has subsequently applied the logic of Newman and
Valentine to hold section 7508, the section Appellant was sentenced under,
unconstitutional. E.g., Commonwealth v. Fennell, 2014 WL 6505791, *1-
8 (Pa. Super. Nov. 21, 2014). Therefore, pursuant to Newman, Valentine,
and Fennell, we must conclude that Appellant’s sentence is illegal. We
remand to the trial court for the sole purposes of resentencing without
consideration of the mandatory minimum.
Judgment of sentence vacated. Case remanded solely for
resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/12/2014
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