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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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J-S62022-14


        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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J-S62022-14


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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J-S62022-14


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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