J-S77027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DANG HAI LE,

                            Appellant                No. 677 MDA 2016


           Appeal from the Judgment of Sentence of March 29, 2016
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0004628-2014


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED FEBRUARY 16, 2017

       Appellant, Dang Hai Le, appeals from the judgment of sentence

entered on March 29, 2016, following his jury trial convictions for possession

with intent to deliver a controlled substance (PWID), two counts of

possession of a controlled substance, two counts of manufacturing a

controlled substance, conspiracy to manufacture a controlled substance, and

theft of services.1 We affirm.

       We briefly summarize the facts and procedural history of this case as

follows. On September 10, 2014, police were conducting speed enforcement

in Berks County, Pennsylvania when Steven Stinsky, the Chief of Police for

the Fleetwood Police Department, registered Appellant driving 45 miles per
____________________________________________


1
 35 P.S. §§ 780-113(a)(30), 780-113(a)(16), 780-113(a)(30); 18 Pa.C.S.A.
§§ 903 and 3926, respectively.



*Retired Senior Judge assigned to the Superior Court.
J-S77027-16



hour in a 25 mile per hour zone. Chief Stinsky activated his overhead lights

and siren. Appellant pulled up to the pump at a gas station approximately

one-half mile later. When Chief Stinsky approached the vehicle, he smelled

the strong odor of cologne. Chief Stinsky asked Appellant several times for

identification, registration, and proof of insurance.     Appellant avoided eye

contact and rummaged through the center console of the vehicle. He told

Chief Stinsky that another officer had recently stopped him and he was

looking for his license.    Appellant gave Chief Stinsky identification and a

written warning previously issued to Appellant from the state police.

      Chief    Stinsky   issued   Appellant   written   motor   vehicle   citations.

Appellant asked if he could refuel his car. Chief Stinsky told Appellant they

were finished and that Appellant could do whatever he wanted. Appellant,

however, did not refuel his vehicle. After approximately 20 seconds, Chief

Stinsky walked back to Appellant’s vehicle wherein he told Appellant he was

concerned about guns and drugs.          Appellant disavowed possessing any

weapons.      Chief Stinsky asked Appellant if he would consent to a search.

Appellant began opening suitcases that were located in the back seat. Chief

Stinsky told Appellant it would be safer for him to exit the vehicle and stated

that if Appellant alighted from the vehicle, it indicated his permission for

police to conduct the search. Appellant got out of his car. Upon executing a

search, police uncovered 500 marijuana plant cuttings in a box.              Police

arrested Appellant and secured search warrants to search his cellular phone,




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GPS unit, and two residences.                Thereafter, the Commonwealth charged

Appellant as set forth above.

       Following    a   two-day     trial,     a   jury   convicted   Appellant   on   the

aforementioned crimes. The trial court sentenced Appellant to an aggregate

term of seven to 22 years of incarceration. This timely appeal resulted.2

       On appeal, Appellant raises the following issues for our review:

         A. Whether the lower court erred in denying [A]ppellant’s
            motion for suppression of evidence where the
            Commonwealth did not meet its burden of establishing
            that alleged consent of [A]ppellant to search his vehicle
            was voluntary?

         B. Whether the lower court erred in sentencing [A]ppellant
            to    the    sentencing     guidelines   for   particular
            amounts/weights of a controlled substance where there
            was no finding of such facts by the jury and where
            Appellant ought to have been sentenced pursuant to the
            default grading and sentencing guidelines rather than
            pursuant to statutorily enhanced guidelines[?]

Appellant’s Brief at 8 (superfluous capitalization omitted).

       In his first issue presented, Appellant concedes that he initially

challenged the validity of the vehicular stop in his suppression motion, but

has abandoned that claim on appeal. Id. at 14. Instead, he argues that the
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2
    Appellant filed a timely post sentence motion that the trial court denied
on April 1, 2016. On April 27, 2016, Appellant filed a notice of appeal. On
April 28, 2016, the trial court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On May 9,
2016, Appellant complied. The trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a) on June 7, 2016. That opinion relied, in part, on a prior
opinion filed on August 5, 2015 following the denial of Appellant’s pretrial
motion to suppress evidence.



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trial court erred by concluding “the detention of Appellant was not

continuous.”3     Id.   Appellant avers “the record demonstrates that Appellant

was plainly confused about whether his detention had ended, because he

kept asking if he could refuel his car while he was being detained.” Id.      He

suggests “[t]hroughout the entire encounter, multiple police vehicles

exhibited flashing lights, a strong signal that a driver is not free to terminate

the encounter.” Id. As such, he argues that, “the encounter was equivocal”

making it “unclear if Appellant made a knowing consent and if there was an

apparent break in the detention.” Id. However, Appellant concedes that his



____________________________________________


3
   The issue presented to this Court varies slightly from the issue presented
in Appellant’s Rule 1925(b) concise statement of errors complained of on
appeal. Upon review of his Rule 1925(b) statement, Appellant contended
that the trial court erred in denying his suppression motion because “the
Commonwealth did not meet its burden of establishing that any alleged
consent of [A]ppellant to search his vehicle was voluntary.” Rule 1925(b)
Statement, 5/9/2016, at 1. Currently, Appellant is challenging the non-
continuous nature of his detention by police as a reason to suppress
evidence later recovered. Pennsylvania law makes clear that “when a
consensual search is preceded by an illegal detention, the government must
prove not only the voluntariness of the consent under the totality of the
circumstances but must also establish a break in the causal connection
between       the   illegality  and    the   evidence     thereby    obtained.”
Commonwealth v. McClease, 750 A.2d 320, 327 (Pa. Super. 2000)
(internal citation, quotations, brackets, and ellipsis omitted). By challenging
the continuity of the vehicular stop, Appellant is also challenging the validity
of his consent. We conclude that this issue is fairly subsumed within the
first issue raised in Appellant's Pa.R.A.P. 1925(b). Moreover, the trial court
addressed all of Appellant’s contentions regarding the validity of the initial
traffic stop, the break in detention, and Appellant’s subsequent consent in its
opinion denying suppression filed on August 5, 2015.



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“testimony at the pretrial hearing that he understood that he was free to go

is powerful evidence for the Commonwealth.” Id.

      This Court's well-settled standard of review of a denial of a motion to

suppress evidence is as follows:

        An appellate court's 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, the appellate court is bound by
        those findings and may reverse only if the court's legal
        conclusions are erroneous. Where 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 court properly applied the law
        to the facts. Thus, the conclusions of law of the courts
        below are subject to plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526–527 (Pa. Super. 2015)

(internal citation and brackets omitted).

      Our Supreme Court has determined that “after police finish processing

a traffic infraction, the determination of whether a continuing interdiction

constitutes a mere encounter or a constitutional seizure centers upon

whether an individual would objectively believe that he was free to end the

encounter and refuse a request to answer questions.” Commonwealth v.

Kemp, 961 A.2d 1247, 1253 (Pa. Super. 2008), citing Commonwealth v.



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Strickler, 757 A.2d 884 (Pa. 2000). Appellant concedes that “at the pretrial

hearing [he testified] that he understood that he was free to go” after the

issuance of the traffic citation. Appellant’s Brief at 14. Upon review of the

record, we confirm that Appellant testified that he felt free to leave and

knew he could refuse his consent to search the vehicle. N.T., 7/1/2015, at

41-43.   As such, we discern no abuse of discretion or error of law when the

trial court determined that “[f]rom this record, it is obvious that [Appellant]

felt free to leave and to refuse to answer [Chief] Stinsky’s questions.” Trial

Court Opinion, 8/5/2015, at 5. Accordingly, the trial court properly denied

suppression and Appellant’s first claim fails.

      In his second issue presented, Appellant argues that the trial court

sentenced Appellant using improper offense gravity scores based upon the

number of marijuana plants and/or the particular weight of the marijuana

seized. Id. at 15-17. Appellant claims error because the trial court denied

his special interrogatory request that the jurors make factual findings

regarding the weight and/or number of marijuana plants during deliberation.

Id. at 15. He avers that “where different quantities of marijuana are found

in different places with multiple persons allegedly possessing some or all of

it, the particular facts become very important because of the large

differences in the sentencing guidelines that can occur due to the weights or

amounts involved.”     Id. at 17.   Thus, he claims “a statutorily mandated

increase in the guidelines where a particular fact is alleged creates a

significant risk that a defendant will receive a higher sentence and therefore

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implicates the consideration of Alleyne v. U.S., 133 S.Ct. 2151 (2013).”

Id. at 16.

      “A challenge to an alleged excessive sentence is a challenge to the

discretionary aspects of a sentence.” Commonwealth v. Ahmad, 961 A.2d

884, 886 (Pa. Super. 2008) (citation omitted).                     Challenges to the

discretionary aspects of sentencing do not entitle an appellant to review as

of right.    Commonwealth v. Tukhi, 149 A.3d 881, 888 (Pa. Super. 2016).

An appellant challenging the discretionary aspects of his sentence must

invoke this Court's jurisdiction by satisfying a four-part test:

            We conduct a four-part analysis to determine: (1) whether
            appellant has filed a timely notice of appeal, see Pa.R.A.P.
            902 and 903; (2) whether the issue was properly preserved
            at sentencing or in a motion to reconsider and modify
            sentence, see Pa.R.Crim.P. 720; (3) whether appellant's
            brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
            there is a substantial question that the sentence appealed
            from is not appropriate under the Sentencing Code, 42
            Pa.C.S.A. § 9781(b).

Id.

      Here,      Appellant   has   complied   with   the   first    three   procedural

requirements. Appellant filed a post-sentence motion for reconsideration of

his sentence, filed a timely notice of appeal, and set forth a statement

pursuant to Pa.R.A.P. 2119(f) in his appellate brief. “An improper calculation

of the offense gravity score affects the outcome of the sentencing

recommendations, resulting in an improper recommendation, thereby

compromising the fundamental norms which underlie the sentencing



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process.” Commonwealth v. Archer, 722 A.2d 203, 210–211 (Pa. Super.

1998) (citation omitted). Thus, Appellant has presented a substantial issue

for our review.

      However, we conclude that Appellant is not entitled to relief.       In

Commonwealth v. Wolfe, our Supreme Court stated that “[t]he effect of

Alleyne's new rule was to invalidate a range of Pennsylvania sentencing

statutes predicating mandatory minimum penalties upon non-elemental

facts and requiring such facts to be determined by a preponderance of the

evidence at sentencing.” 140 A.3d 651, 653 (Pa. 2016) (emphasis added).

Here, mandatory minimum sentences were not at issue.             Instead, the

offense gravity score is an enhancement to the sentencing guidelines.     As

this Court has also determined, “[i]f [a sentencing] enhancement applies,

the sentencing court is required to raise the standard guideline range;

however, the court retains the discretion to sentence outside the guideline

range.    Therefore, [] the situation[] addressed in Alleyne [is not]

implicated.”   Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10

(Pa. Super. 2014).     Hence, there is no legal authority for Appellant’s

suggestion that the jury was required to determine the weight of the

marijuana plants recovered in order for the trial court then to assign an

offense gravity score prior to sentencing. We discern no abuse of discretion

in denying Appellant relief on his discretionary sentencing claim.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/16/2017




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