J-S48022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

TADESSE N. SHIFERAW

                            Appellant                  No. 1916 MDA 2016


      Appeal from the Judgment of Sentence entered November 16, 2016
               In the Court of Common Pleas of Dauphin County
                Criminal Division at No: CP-22-CR-003201-2015


BEFORE: OTT, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                           FILED OCTOBER 20, 2017

        Appellant, Tadesse N. Shiferaw, appeals from the judgment of

sentence imposed on November 16, 2016, in the Court of Common Pleas of

Dauphin County following his conviction of possession with intent to deliver a

controlled substance (“PWID”).            35 P.S. § 780-113(a)(30).   Appellant

contends the trial court erred by denying his motion to suppress. Following

review, we affirm.

        After he was arrested on April 21, 2015, Appellant filed an omnibus

pre-trial motion to suppress. A hearing on the motion began on November

13, 2015. Because of scheduling issues, the proceedings were continued to



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*   Retired Senior Judge assigned to the Superior Court.
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December 2, 2015.     The trial court summarized the testimony from the

suppression hearings as follows:

     The Commonwealth presented the testimony of Pennsylvania
     State Trooper David Long (“Trooper Long”).         Trooper Long
     testified that on [April] 21, 2015 around 2:00 p.m. in the
     afternoon he was monitoring Interstate 81 in an unmarked SUV.
     Trooper Long noticed a red minivan that drove by that was a
     rental vehicle that had one occupant in it. He began to follow
     the minivan and observed the minivan travel off the right-lane of
     the highway (the right fog line) on a couple of different
     occasions. As the minivan was coming up on an exit (near
     Linglestown, PA), there was a[n] SUV in front of it with its turn
     signal on. As the SUV was exiting the highway, the minivan
     approached the SUV without applying brakes and proceeded to a
     distance that was too close for conditions. At this point, due to
     the traveling off the roadway and following too closely, Trooper
     Long initiated a traffic stop. As the trooper approached the
     passenger side window, he noticed a black-type, garbage looking
     bag in the back. [Appellant] appeared very tired, was yawning,
     and had several energy drinks and coffee in the front console.

     Trooper Long had a conversation with [Appellant] and
     [Appellant] told him that he had rented the minivan through his
     company. Additionally, [Appellant] indicated that he was an
     airport shuttle service6 and was transporting someone from
     Columbus, Ohio to Brooklyn, New York. [Appellant] stated that
     he was paid $1500 for his services. Trooper Long testified that
     [Appellant] seemed to be off route and that a flight would have
     been cheaper than the $1500 in order to get from Ohio to New
     York. [Appellant] also stated that while in Brooklyn, N.Y., he
     was directed to wait outside of a hotel while the occupant he had
     transported went into the hotel and returned with a package that
     was put in the back of the van. [Appellant] was directed to
     transport the package back to Ohio and contact his cousin.7

     The rental agreement was provided but instead of being a
     business rental, the rental had been in [Appellant’s] actual
     name. The trooper prepared a written warning for traveling too
     closely to the rear of another vehicle. Finally, the trooper asked
     if there was anything illegal in the vehicle [to] which [Appellant]
     responded “no.” Trooper Long asked for permission and was
     provided both written and verbal consent to search the vehicle.
     A K-9 unit arrived, searched the vehicle, and twenty-two (22)

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       pounds of marijuana was discovered.      The Commonwealth
       introduced the rental agreement and consent to search as part
       of the evidence.
          6. The vehicle, however, was not marked as an airport shuttle service
          vehicle.

          7. No names were given of the occupant or the cousin.

Trial Court Rule 1925(a) Opinion, 1/25/17, at 2-4 (references to Notes of

Testimony omitted).

       By order entered on February 4, 2016, the trial court denied

Appellant’s suppression motion.            Following a June 21, 2016 jury trial,

Appellant was convicted of PWID.           On November 16, 2016, Appellant was

sentenced to 24 months of intermediate punishment, consisting of three

months of work release followed by electronic monitoring and house arrest

for the balance of his term of sentence.

       Appellant filed a timely notice of appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.1           In this appeal, Appellant asks us to

consider two related issues:



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1 In his Rule 1925(b) statement of errors complained of on appeal, Appellant
asserted three errors related to the denial of his suppression motion and two
errors related to his trial. We note that President Judge Richard A. Lewis
presided over the suppression proceedings while Senior Judge Kevin A. Hess
presided over the trial. In their Rule 1925(a) opinions, the judges addressed
the issues corresponding to the proceedings over which they presided.
Appellant has abandoned his trial issues in this appeal. Therefore, we shall
confine our discussion to the suppression proceedings and Judge Lewis’s
disposition of the suppression issues.




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       I.     Whether the [t]rial [c]ourt erred by denying the
              Appellant’s motion to suppress evidence based on an
              improper stop and seizure.

       II.    Whether the [t]rial [c]ourt erred by denying the
              Appellant’s motion to suppress evidence of every kind
              which were (sic) unlawfully obtained in violation of the
              Appellant’s Miranda and Sixth and Fourteenth
              Amendments to the United States Constitution and
              Article I, Section 9[2] of the Pennsylvania Constitution
              and in violation of Appellant’s rights against self-
              incrimination as guaranteed by the Fifth and Fourteenth
              Amendments to the United States Constitution and
              Article I, Section 9 of the Pennsylvania Constitution.

Appellant’s Brief at 6.

       Both of Appellant’s issues challenge the denial of his motion to

suppress. As our Supreme Court has explained:

             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.
       Where, as here, the appeal of the determination of the
       suppression court turns on allegations of legal error, the
       suppression court’s legal conclusions are not binding on an
       appellate court, whose duty it is to determine if the suppression
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2 We suspect, as did the trial court, that Appellant’s reference to Article I,
Section 9 (Rights of Accused in Criminal Prosecution) in conjunction with the
Sixth Amendment was made in error and should be a reference to Article I,
Section 8 (Security from Searches and Seizures). Trial Court Rule 1925(a)
Opinion, 1/25/17, at 4, n. 8.



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     court properly applied the law to the facts.           Thus, the
     conclusions of law of the courts below are subject to our plenary
     review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal

quotations and citations omitted).

     Commonwealth witness Trooper Long was the sole witness who

testified at the suppression hearing. The trial court admitted Commonwealth

exhibits consisting of the rental agreement for the minivan and the consent

to search signed by Appellant. The court also admitted Appellant’s exhibits,

including the audio and video recording captured on the camera installed in

the trooper’s SUV, the written warning for following too closely, and

photographs printed from the video.

     In his first issue, Appellant argues that the traffic stop was unlawful

because the Commonwealth did not meet its burden of proof of probable

cause for the stop.   Appellant contends that the trial court’s finding of a

lawful stop was against the weight of the evidence presented at the

suppression hearing. Appellant’s Brief at 19.

     Again, the trooper testified that he observed Appellant cross the fog

line on a couple of occasions and was following a vehicle too closely.

Appellant asserts that probable cause warranting a stop for violating the

roadways laned for traffic statute was lacking because there was no

evidence that any persons were placed in danger by Appellant’s movements.

Id. at 16-17.   He also argues that the trooper lacked probable cause for


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stopping Appellant based on traveling too closely, an argument grounded in

part on Appellant’s interpretation of a question posed by the court. Id. at

17-19. We disagree. As the Commonwealth correctly asserts, “[p]robable

cause to effectuate an arrest exists when facts and circumstances within

[the] knowledge of the arresting officer are reasonably trustworthy and

sufficient to justify a person of reasonable caution in believing that [the]

arrestee has committed an offense.”       Commonwealth Brief at 9 (quoting

Commonwealth v. Romero, 673 A.2d 374, 376 (Pa. Super. 1996)).

Further, “[i]n addressing the existence of probable cause, courts must focus

on the circumstances as seen through the eyes of [the] trained police officer,

taking into consideration that probable cause does not involve certainties,

but rather the factual and practical considerations of everyday life on which

reasonable and prudent men act.”       Id.   (internal quotations and citations

omitted).

      The trial court determined the stop was lawful, noting that “[t]he

Fourth Amendment does not prevent police from stopping and questioning

motorists when they witness or suspect a violation of traffic laws, even if it is

a minor offense.” Trial Court Rule 1925(a) Opinion, 1/25/17, at 5 (quoting

Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008) (additional

citation omitted)).    The court explained, “[h]ere, the trooper credibly

testified that he observed [Appellant] commit two traffic violations. One for

leaving the lane of traffic (the right fog line) and one for driving too closely


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to the vehicle in front of him. Accordingly, the stop was valid and did not

violate any constitutional rights.” Id.

        We find that the court’s factual findings, as summarized in the quoted

excerpt from the Rule 1925(a) opinion, are supported by the record.

Therefore, we are bound by those findings and may reverse only if the trial

court’s legal conclusions are erroneous. Jones, 988 A.2d at 654. We find

no error in the trial court’s legal conclusion that Appellant was lawfully

stopped. Appellant’s first issue fails.

        Appellant’s second issue ostensibly challenges the trial court’s denial of

his motion to suppress on constitutional grounds, based on the delay

between the traffic stop and the time a K-9 unit arrived to conduct the

search.3-4    However, we have already determined that the stop was valid

and Appellant ignores the fact he consented to the search he now

challenges.

        As the trial court recognized:

             The Fourth Amendment to the United States Constitution
        and Article I, § 8 of the Pennsylvania Constitution protect
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3 Appellant’s second issue, as framed, suggests challenges              involving
Miranda v. Arizona, 384 U.S. 436 (1966), as well as the Fifth,         Sixth and
Fourteenth Amendments to the United States Constitution and            Article 1,
Sections 8 and 9, of the Pennsylvania Constitution. However, his       argument
does not include any reference to Miranda or to any United             States or
Pennsylvania constitutional provisions.

4   Appellant admits he consented to the search. Appellant’s Brief at 10.




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        individuals   from     unreasonable     searches   and seizures.
        Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super.
        2002). As a general rule, all searches and seizures performed
        without a warrant are per se unreasonable and unconstitutional,
        unless an exception applies. Commonwealth v. Hudson, 92
        A.3d 1235, 1241 (Pa. Super. 2014). One exception is a search
        conducted after consent is voluntarily given. By, 812 A.2d at
        1254. Consent cases require a two-prong inquiry: first, to
        examine “the constitutional validity of the citizen/police
        encounter giving rise to the consent” and second, the
        voluntariness of the consent. Id. When a police encounter is
        lawful, the exclusive focus is the voluntariness. Id.

Trial Court Rule 1925(a) Opinion, 1/25/17, at 8.

        The trial court then considered factors identified by our Supreme Court

in Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000), to determine the

voluntariness of Appellant’s consent.5         The court noted that Appellant was

pulled over by a single police officer in an open location during the middle of

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5   Those factors include:

        (1) the presence or absence of police excesses; (2) whether
        physical contact occurred; (3) whether police directed the
        individual’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, including its
        degree of coerciveness; (8) whether and to what degree the
        transition between the traffic stop/investigative detention and
        the subsequent encounter can be viewed as seamless, thus
        suggesting to the individual that his movements may remain
        subject to police restrain[t]; and (9) whether the police
        expressly told the individual that he was free to leave—this latter
        factor being an objective and potent one.

Trial Court Rule 1925(a) Opinion, 1/25/17, at 6, n.9 (citing Strickler, 757
A.2d at 898-901).



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the day. Trial Court Rule 1925(a) Opinion, 1/25/17, at 8.       The detention

was not exceedingly long; the questioning was neither repetitive nor

deceptive; the officer did not touch or threaten Appellant or restrict his

movements; and the officer did not display his weapon.       Id.   The was no

suggestion that the officer used any coercive language or tone. Id.

      When the officer asked Appellant for consent to search the vehicle,

Appellant freely gave consent. Id. at 9. Appellant does not contend that he

asked to leave or withdrew his consent. “Most importantly, [Appellant] read

and signed a ‘Pennsylvania State Police Waiver of Rights and Consent to

Search.’” Id. “As such, [Appellant’s] consent was voluntary and this [c]ourt

properly denied Appellant’s motion to suppress.” Id.

      We conclude that the trial court properly applied the law to the facts of

this case. Finding no error in the trial court’s legal conclusion, Appellant’s

second issue does not provide any basis for relief.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2017




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