Com. v. Moses, T.

Superior Court of Pennsylvania·Decided February 11, 2020·No. 453 EDA 2019·Unpublished

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

TYNIKA LATAYA MOSES :

:

Appellant : No. 453 EDA 2019

Appeal from the Judgment of Sentence Entered January 8, 2019 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0000447-2018

BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY BOWES, J.: FILED FEBRUARY 11, 2020 Tynika Lataya Moses appeals from the January 8, 2019 judgment of sentence imposed upon her convictions for possession with intent to deliver a controlled substance (“PWID”), possession of heroin, possession of drug paraphernalia, criminal conspiracy to commit PWID, and prohibited sunscreening. Appellant asserts that the trial court erred in not suppressing evidence related to the aforementioned convictions that police discovered while conducting a consent search of Appellant’s vehicle. We affirm.

On October 3, 2017, Trooper John Stepanski of the Pennsylvania State Police (“PSP”) initiated a traffic stop of Appellant while she was driving her Dodge Charger on Interstate 78 in Northampton County, Pennsylvania. See

N.T. Omnibus Pretrial Hearing, 6/20/18, at 7-9. Trooper Stepanski testified1 that he initially pulled over Appellant’s vehicle based upon his observations that: (1) Appellant was traveling in the passing lane without any other vehicles present in the right lane; (2) the side windows of Appellant’s vehicle were tinted such that Trooper Stepanski could not see inside the vehicle; and (3) Appellant’s vehicle had a “police insignia sticker” above the state inspection sticker on the front windshield.2 Id. at 7-9, 33-34. Upon approaching the vehicle, Trooper Stepanski observed Appellant occupying the driver’s seat and an individual named Winston Johnson King3 (“co-defendant”) in the passenger

1 As will be discussed further, infra, all of the issues presented in this appeal relate to our review of the results of a suppression hearing. In this context, “[a]ppellate courts are limited to reviewing only the evidence the evidence presented at the suppression hearing when examining a ruling on a pre-trial motion to suppress.” Commonwealth v. Stilo, 138 A.3d 33, 35-36 (Pa.Super. 2016). Accordingly, the factual recitation set forth herein is drawn exclusively from testimony presented at the suppression hearing.

2 With respect to these observations, the trial court adjudged Appellant guilty of the summary offense of improper sunscreening after the jury trial concluded. See N.T. Trial, 10/31/18, at 516; see also 75 Pa.C.S. § 4524(e)(1). The Commonwealth’s charge that Appellant was illegally driving in the passing lane was dismissed after the suppression hearing. See 75 Pa.C.S. § 3313(d)(1). Based on our review of the certified record, it appears that the Commonwealth never charged Appellant with having an illegal sticker on her front windshield. But see 75 Pa.C.S. § 4524(a) (“Obstruction on front windshield.”). However, Appellant conceded the sticker was present on her vehicle on the day that Trooper Stepanski pulled her over. See N.T. Omnibus Pretrial Hearing, 6/20/18, at 106 (discussing post-arrest removal of sticker).

3 Co-defendant was jointly tried with Appellant. He was similarly convicted of PWID, possession of a controlled substance, possession of drug paraphernalia, and criminal conspiracy to commit PWID. Co-defendant

seat. Id. at 10. Trooper Stepanski collected documentation and identification from Appellant and co-defendant, and informed Appellant of the reasons for the traffic stop. Id. at 10-11. He also learned that Appellant was traveling from Newark, New Jersey to West Virginia to visit her mother, who was at an undisclosed emergency room. Id. at 11, 18-19.

During his preliminary interactions with Appellant and co-defendant, Trooper Stepanski became suspicious based upon: (1) Appellant’s representation that they were planning to drive back to Newark, New Jersey later that same day, an approximately eight-hour round trip; (2) his observation of several cell phones in the front seat area of the vehicle; (3) evasive and nervous behavior from co-defendant, including avoiding eye contact; and (4) his prior knowledge that Interstate 78 is a common corridor utilized for drug distribution. Id. at 12-13, 24, 68. After checking the identifications provided by Appellant and co-defendant and before continuing his investigation, Trooper Stepanski also learned that co-defendant had “an

extensive history for narcotics.”4 Id. at 13.

appealed to this Court, and we reversed his judgment of sentence on the basis that there was insufficient evidence. See Commonwealth v. King, 2019 WL 5704883, at 17 (Pa.Super. 2019) (“[T]he evidence presented by the Commonwealth did not demonstrate that [co-defendant] constructively possessed the drugs found in [Appellant’s] vehicle. . . . [T]here was insufficient evidence to prove that he had ‘a shared criminal intent’ . . . .”). Appellant has not challenged the sufficiency of the evidence in this appeal.

4 Based upon his testimony, the information available via Trooper Stepanski’s in-vehicle computer made him aware of co-defendant’s prior 2013 conviction

Based upon the aforementioned information, Trooper Stepanski requested backup and waited for it to arrive. He then returned to the vehicle without Appellant’s documentation and asked her to step out of the vehicle. Id. at 13-14. Appellant complied with his request, and continued to speak with Trooper Stepanski at the rear of her car. Upon further questioning, Appellant stated that she was traveling to Wellsburg, West Virginia and that her mother’s hospitalization related to arthritis. Id. at 17-19. Trooper Stepanski asked Appellant if there were any narcotics in her vehicle, and she laughingly responded in the negative. Id. at 20. While questioning her about potential contraband, Trooper Stepanski noticed Appellant nervously “fidgeting” as she tried to unwrap a cough drop. She was ultimately unable to do so, and put the cough drop in her mouth still fully wrapped. Id.

During this second round of questioning, Trooper Stepanski asked Appellant about her relationship with co-defendant. She stated co-defendant was her friend and an employee at her transmission shop. Id. at 19. Appellant also stated that co-defendant had brought a “white bag” with him on the trip, and that it was allegedly located “at his feet” on the passenger side of the vehicle. Id. at 19-20. Trooper Stepanski asked Appellant for consent to search her vehicle, and she asked why. Trooper Stepanski replied with “three specific reasons”: (1) the short, turnaround nature of her trip; (2)

for PWID in Roanoke, Virginia, and a guilty plea to felony possession of a firearm in Salem, Virginia, on the day of the traffic stop. See N.T. Omnibus Pretrial Hearing, 6/20/18, at 66-67.

Appellant’s “overly nervous behavior;” and (3) the “extensive criminal history” of co-defendant. Id. at 21. Immediately thereafter, Appellant verbally consented to the search. Id. at 21-22. Trooper Stepanski then read an official PSP consent-to-search form to Appellant, which she signed and dated to confirm her consent. Id. at 22-23.

Co-defendant exited the vehicle prior to the search, and Trooper Stepanski noticed that the white bag referenced by Appellant was neither in the passenger compartment, nor on co-defendant’s person. Id. at 24. Upon searching the vehicle, Trooper Stepanski discovered three complete sets of New Jersey license plates. Id. at 24-26. During his search of the trunk, he observed that the series of bolts securing the carpet to the sidewall of the trunk showed heavy signs of wear. Id. at 26-27. Trooper Stepanski was able to remove the bolts and discovered “a white plastic bag containing a thousand bags of heroin” packaged for individual sale. Id. at 27-28.

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