J-S77013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

ANDRE YANICK AINA

                            Appellant                 No. 417 MDA 2016


          Appeal from the Judgment of Sentence December 17, 2015
               In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0000688-2015


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                        FILED DECEMBER 09, 2016

        Appellant, Andre Yanick Aina, appeals from the judgment of sentence

entered December 17, 2015, in the Court of Common Pleas of Centre

County. Aina challenges the denial of his motion to suppress items recovered

in a vehicle search and a search incident to arrest following a traffic stop.

After careful review, we affirm.

        The relevant facts and procedural history are as follows. On April 8,

2015, following a traffic stop, Aina was charged through the filing of a

criminal complaint with persons not to possess, use, manufacture, control,

sell, or transfer firearms,1 firearms not to be carried without a license,2
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 6105(A)(1).
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possession    of   a     small    amount     of   marijuana,3   possession   of   drug

paraphernalia,4 prohibited offensive weapon,5 restrictions on use of limited

access highways,6 and exceeding maximum speed limits.7 Aina moved to

suppress evidence gained from his vehicle and his person during the traffic

stop. The court held a suppression hearing.

        At the hearing, the Commonwealth presented the testimony of

Pennsylvania State Police Trooper Luke Straniere. At approximately 1:35

p.m. on April 8, 2015, Trooper Straniere was patrolling Interstate 80 when

he observed a car westbound in the left lane at a high rate of speed. Trooper

Straniere pulled his vehicle within several hundred yards of the car, set his

speedometer to 75 miles per hour, and clocked the vehicle for approximately

half of a mile. The distance between the car and Trooper Straniere’s vehicle

neither increased nor decreased for the duration of the clock. Further,

Trooper Straniere noted that the car failed to yield to the right lane for the

duration of the clock, and for approximately two miles afterwards, despite

                       _______________________
(Footnote Continued)
2
    18 Pa.C.S.A. § 6106(A)(1).
3
    35 Pa.C.S.A. § 780-113(A)(31)(I).
4
    35 Pa.C.S.A. § 780-113(A)(32).
5
    18 Pa.C.S.A. § 908(A).
6
    75 Pa.C.S.A. § 3313(D)(1).
7
    75 Pa.C.S.A. § 3362(A)(1.1-5)



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multiple opportunities to do so. After a few miles, the car merged into the

right lane, at which point Trooper Straniere activated his lights and siren and

initiated a traffic stop.

       Once both vehicles had pulled over onto the right shoulder of the

interstate, Trooper Straniere exited his vehicle and approached the car’s

passenger     side   window.      Trooper      Straniere   knocked   on   the   window

approximately 8 to 10 times, asking the driver of the white Nissan, later

identified as Aina, to open the window. Aina did not immediately comply with

Trooper Straniere’s request. Rather, he placed his valid California driver’s

license against the window. Trooper Straniere again asked Aina to open the

window, and Aina complied by lowering the window a few inches. Once the

window was opened, Trooper Straniere noticed that the car smelled of

marijuana and that there was “marijuana shake”8 on Aina’s clothing.

       Aina informed Trooper Straniere that the car had been leased by his

stepmother, had to be returned in Columbus, Ohio, but that Aina did not

have any documentation relative to the vehicle. Trooper Straniere returned

to his vehicle, requested assistance, and ran Aina’s name through a criminal

background system. Trooper Straniere returned to the car and asked Aina to

step out of the rental vehicle. Aina complied and consented to a pat-down


____________________________________________


8
  “The cruddy end bits of a large bag of weed.” Shake, Urban Dictionary,
http://www.urbandictionary.com/define.php?term=shake     (last    visited
December 1, 2016).



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search for weapons. Trooper Hoy and Corporal Grenci arrived to assist

Trooper Straniere and conducted a search of the white Nissan. The search of

the vehicle produced a rifle, ammunition, a stun gun, $3,000 in U.S.

currency, two knives, and rolling papers. Trooper Straniere testified that he

placed Aina under arrest. A subsequent search of Aina’s person resulted in

the discovery of a small amount of marijuana.

       In addition to Trooper Straniere’s testimony, the Commonwealth also

presented the videotape from the traffic stop, and the rental agreement. The

rental agreement indicated that the car had been rented by Tisha Brady. The

contract stated that no one else was permitted to drive the vehicle without

prior written authorization, and that the car was supposed to be returned to

the rental company the day prior to Aina’s traffic stop. Aina did not testify at

the suppression hearing, or present any additional evidence.

       On September 18, 2015, the suppression court denied Aina’s motion to

suppress, stating that Aina did not have standing to challenge the search

and seizure because he did not have an “expectation of privacy” in the rental

car. The parties proceeded to a bench trial on November 2, 2015. Following

the presentation of the evidence, the trial court convicted Aina of all charges

except for maximum speed limits.9 This timely appeal followed.


____________________________________________


9
   Prior to trial, upon agreement of the parties, the trial court dismissed
Count 1- persons not to possess, use, manufacture, control, sell, or transfer
firearms.



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      On appeal, Aina raises the following questions for our review.

      I.    Whether the trial court erred in failing to suppress all evidence

            derived from the illegal traffic stop and subsequent search of the

            vehicle.

      II.   Whether the trial court erred in denying [Aina’s] motion to

            suppress evidence obtained as a result of the illegal search of

            [Aina’s] person.

Appellant’s Brief, at 4.

      “Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence that

the challenged evidence was not obtained in violation of the defendant’s

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. 2012)

(citations omitted).

      Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is whether the factual
      findings are supported by the record and whether the legal
      conclusions drawn from those facts are correct. When reviewing
      the ruling of the suppression court, we must consider only the
      evidence of the prosecution and so much of the evidence of the
      defense as remains uncontracted when read in the context of the
      record as a whole. Where the record supports the findings of the
      suppression court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citation

omitted).

      “It is within the suppression court’s sole province as factfinder to pass

on the credibility of witnesses and the weight to be given to their testimony.

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The suppression court is free to believe all, some or none of the evidence

presented at the suppression hearing.” Commonwealth v. Elmobdy, 823

A.2d 180, 183 (Pa. Super. 2003) (citation omitted).

      First, Aina argues that the trial court erred in failing to suppress the

evidence obtained from the car he was driving at the time of his traffic stop.

See Appellant’s Brief, at 4. Aina contends that the trial court erred in

determining that he did not have standing to contest the vehicle search

because he did not have a privacy interest in the vehicle at the time of his

traffic stop. See id., at 9-13. We disagree.

             Both the Fourth Amendment of the United States
      Constitution and Article 1, Section 8 of the Pennsylvania
      Constitution guarantee individuals freedom from unreasonable
      searches and seizures. The concept of standing in a criminal
      search and seizure context empowers a defendant to assert a
      constitutional violation and thus seek to exclude or suppress the
      government’s evidence pursuant to the exclusionary rules under
      the Fourth Amendment of the United States Constitution or
      Article 1, Section 8 of the Pennsylvania Constitution.

Commonwealth v. Bostick, 958 A.2d 543, 550-551 (Pa. Super. 2008)

(internal citations and quotation marks omitted). We have generally

recognized that a defendant charged with a possessory offense has

automatic standing to challenge a search. See Commonwealth v. Perea,

791 A.2d 427 (Pa. Super. 2002). However, “[a] defendant moving to

suppress evidence has the preliminary burden of establishing standing and a

legitimate expectation of privacy.” Commonwealth v. Burton, 973 A.2d

428, 435 (Pa. Super. 2009) (en banc).


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     An expectation of privacy is present when the individual, by his
     conduct, exhibits an actual (subjective) expectation of privacy
     and that the subjective expectation is one that society is
     prepared to recognize as reasonable. The constitutional
     legitimacy of an expectation of privacy is not dependent on the
     subjective intent of the individual asserting the right but on
     whether the expectation is reasonable in light of all the
     surrounding circumstances.

Commonwealth v. Jones, 874 A.2d 108, 117-118 (Pa. Super. 2005)

(internal quotations and citation marks omitted).

     We have previously examined the same issue in Commonwealth v.

Maldonado, 14 A.3d 907 (Pa. Super. 2011).

     In that case, Maldonado was pulled over while driving a car
     owned by his paramour Vasquez. Id. at 911. From a subsequent
     search of the vehicle, police recovered drugs and guns and
     charged Maldonado with crimes related to his possession of
     each. Id. at 909. At the suppression hearing, which Vasquez
     attended without testifying, the Commonwealth presented
     evidence that the vehicle was owned by Vasquez and that
     Maldonado lived with her at the address at which the vehicle was
     registered. Id. at 911. However, Maldonado offered no evidence
     that he had permission to drive the car on the day in question.
     This Court concluded that the suppression court erred in granting
     Maldonado’s suppression motion, stating as follows.

         The fact that Maldonado and Vasquez might have lived
         together and had a romantic relationship does not
         foreclose the possibility that Maldonado was driving
         Vasquez’s vehicle without her knowledge or permission.
         For that reason, we conclude that Maldonado failed to
         establish an expectation of privacy in the vehicle he was
         driving, which “he did not own, that was not registered to
         him, and for which he has not shown authority to
         operate.”

Commonwealth v. Brown, 64 A.3d 1101, 1107 (Pa. Super. 2013) (quoting

Maldonado, 14 A.3d at 911) (additional citation omitted).


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      At the suppression hearing, Aina bore the burden of establishing that

he had a reasonable expectation of privacy in the vehicle. See Burton, at

435. He did not meet this burden. While the Commonwealth presented

evidence at the suppression hearing in the form of the testimony of Trooper

Straniere, Aina did not present any witnesses.

      The evidence produced at the suppression hearing establishes that the

vehicle was a rental car leased by Tisha Brady. Trooper Straniere testified,

on cross-examination, that Aina told him that Brady was his stepmother.

However, contrary to Aina’s assertion there was no evidence presented at

the suppression hearing that Aina had permission from his stepmother to

drive the car. The fact that Brady was Aina’s stepmother does not eliminate

the possibility that Aina was driving the rental vehicle without her knowledge

or permission.

      For that reason, we find that Aina failed to meet his burden of

establishing an expectation of privacy in the vehicle he was driving, which

“he did not own, that was not registered to him, and for which he has not

shown authority to operate.” Burton, 973 A.2d at 436. Therefore, because

Aina did not have standing to challenge the search of the vehicle, Aina’s

motion to suppress the evidence was properly denied.

      Lastly, Aina contends that the trial court erred in denying his motion to

suppress the evidence removed from Aina’s person following his arrest. See

Appellant’s Brief, at 18. Aina’s sole argument for suppression here is that,


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but for the illegal stop of the rental vehicle, there would not have been

probable cause to arrest Aina, and therefore all evidence collected in the

search incident to arrest should be suppressed.10 See id. Aina’s argument

fails. The traffic stop was lawful.

       “While warrantless seizures such as a vehicle stop are generally

prohibited, they are permissible if they fall within one of a few well-

delineated exceptions.” Commonwealth v. Brown, 996 A.2d 473, 476 (Pa.

2010) (citation omitted). For purposes of this case, a pertinent exception is a

traffic stop authorized by 75 Pa.C.S.A. § 6308(b).

       Under § 6308(b),

       when considering whether reasonable suspicion or probable
       cause is required constitutionally to make a vehicle stop, the
       nature of the violation has to be considered. If it is not necessary
       to stop the vehicle to establish that a violation of the Vehicle
       Code has occurred, an officer must possess probable cause to
       stop the vehicle. Where a violation is suspected, but a stop is
       necessary to further investigate whether a violation has
       occurred, an officer need only possess reasonable suspicion to
       make the stop.

Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015).

       The Motor Vehicle Code defines the offense of maximum speed limits

as follows:

       § 3362. Maximum speed limits
____________________________________________


10
  We note that, while Aina challenges the validity of the traffic stop, he does
not challenge whether Trooper Staniere had the probable cause necessary to
lawfully arrest Aina once the stop occurred. Therefore, we will not analyze
the legality of Aina’s arrest.



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      (a) General rule. – Except when a special hazard exists that
      requires lower speed for compliance with section 3361 (relating
      to driving vehicle at safe speed), the limits specified in this
      section or established under this subchapter shall be maximum
      lawful speeds and no person shall drive a vehicle at a speed in
      excess of the following maximum limits:

                                 * * *
      (1.1) 65 miles per hour or 70 miles per hour for all vehicles on
      freeways where the department has posted a 65-miles-per-hour
      or 70 miles-per-hour speed limit.

75 Pa.C.S.A. § 3362(a)(1.1). The Motor Vehicle Code also defines the

offense of restriction on use of limited access highways as follows:

      § 3313. Restrictions on use of limited access highways


                                  *     *      *

      (d) Driving in right lane. –

            (1) Except as provided in paragraph (2) and unless
            otherwise posted, upon all limited access highways having
            two or more lanes for traffic moving in the same direction,
            all vehicles shall be driven in the right-hand lanes when
            available for traffic except when any of the following
            conditions exist:

                  (i) When overtaking and passing another vehicle
                  proceeding in the same direction.

                  (ii) When traveling at a speed greater than the traffic
                  flow.

                  (iii) When moving left to allow traffic to merge.

                  (iv) When preparing for a left turn at an intersection,
                  exit or into a private road or driveway when such left
                  turn is legally permitted.

            (2) Unless otherwise posted, no vehicle or combination
            over 10,000 pounds may be driven in the left-hand lane of


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            a limited access highway having three or more lanes for
            traffic moving in the same direction except when preparing
            for a left turn at an intersection, an exit or into a private
            road or driveway when such left turn is legally permitted.

75 Pa.C.S.A. § 3313(d).

      Trooper Straniere testified that he clocked Aina for over half of a mile

going 75 miles per hour in a 70 miles per hour zone. Further, Trooper

Straniere observed that Aina drove for over 2.5 miles in the left hand lane,

despite light traffic and having multiple opportunities to cross into the right-

hand lane. Trooper Straniere had probable cause to initiate a valid traffic

stop as the un-contradicted evidence provides that he observed Aina violate

the Vehicle code by speeding and failing to yield to the right lane. See 75

Pa.C.S.A. §§ 3362, 3313.

      As noted, Aina has not challenged the validity of his arrest. “It is well

established that a warrantless search incident to a lawful arrest is

reasonable, and no justification other than that required for the arrest itself

is necessary to conduct such a search.” In re. R.P., 918 A.2d at 1283

(citation omitted). “Consequently, any evidence seized as a result of a

search incident to a lawful arrest is admissible in later proceedings.” Id.

(citation omitted). Thus, Aina’s final argument on appeal fails.




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     Judgment of Sentence affirmed.

     Judge Platt joins the memorandum.

     Judge Olson concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/2016




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