J-S60017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KIMANI J. LOCKHART

                            Appellant                No. 3812 EDA 2015


               Appeal from the PCRA Order November 24, 2015
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000634-2012


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                            FILED OCTOBER 25, 2016

        Kimani J. Lockhart appeals from the order entered November 24,

2015, in the Court of Monroe County, that denied, following an evidentiary

hearing, his first petition for relief filed pursuant to the Pennsylvania Post

Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546. Lockhart was found guilty

by the trial judge of possession with intent to distribute a controlled

substance (PWID) – cocaine, possession of cocaine, possession of drug

paraphernalia, speeding, and driving under suspension.1       The trial court

sentenced Lockhart to a term of 42 to 90 months’ imprisonment after this


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 See 35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), and 75 Pa.C.S. §§
3362(a)(2), and 1543(a)(2), respectively.
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Court vacated his original, mandatory minimum sentence.2         In this PCRA

appeal, Lockhart contends the PCRA court erred in rejecting his claim that

counsel was ineffective in failing to utilize the traffic stop video at the

suppression hearing. See Lockhart’s Brief, at 4. Based upon the following,

we affirm.

       The PCRA court has summarized the facts and procedural history

underlying this appeal:

       On March 14, 2012, at approximately 8:00 p.m., [Lockhart] was
       stopped on Interstate 80 West by Pennsylvania State Trooper
       Mark Conrad for traveling in excess of the posted 55 mile per
       hour speed limit. Trooper Conrad executed a traffic stop,
       approached [Lockhart’s] vehicle, and requested driver and
       vehicle registration material. [Lockhart] produced a New York
       State identification card but did not have a driver’s license; nor
       did [Lockhart] have registration or insurance information for the
       vehicle.

       [Lockhart] represented that the vehicle had been rented by his
       girlfriend and that 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 to
       [Lockhart] related that he was driving back to Wilkes-Barre after
       having visited his cousin in the Poconos. [Lockhart] was unable
       to provide his cousin’s address.

       Trooper Conrad returned to his vehicle and conducted a license
       and criminal history check. The license check revealed that
       [Lockhart] had a suspended Pennsylvania driver’s license. The
       criminal history check revealed that [Lockhart] had been
       convicted of robbery, possession of marijuana, and distribution
       of controlled substances, and was currently on parole. Trooper
____________________________________________


2
  See Commonwealth v. Lockhart, 116 A.3d 685 (Pa. Super. 2016)
(unpublished memorandum).



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     Conrad testified that based on [Lockhart’s] travel from and to a
     known drug area, 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
     [Lockhart] 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 [Lockhart], requested that he exit the vehicle, and sought his
     consent to search the vehicle. In turn, Trooper Conrad explained
     a waiver of rights and consent to search form identifying the
     vehicle as the place to be searched, which [Lockhart]
     acknowledged and signed.

     Before searching the vehicle, Trooper Conrad asked [Lockhart] if
     he had anything illegal on his person which [Lockhart] answered
     in the negative. Trooper Conrad then requested consent to
     search [Lockhart’s] person, which [Lockhart] granted. Trooper
     Conrad conducted a pat-down search of [Lockhart], discovering
     a bulge in his pants. When asked, [Lockhart] insisted that it was
     just his jeans. [Lockhart] was then placed in handcuffs and read
     his Miranda warnings before Trooper Conrad removed a plastic
     bag containing approximately 50 grams of powder cocaine 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
     discovered [Lockhart] did not have a rental agreement for the
     vehicle, he was no longer free to leave.

     On May 29, 2012, [Lockhart] was charged via criminal
     information with possession with intent to distribute (“PWID”)
     cocaine,   possession    of   cocaine,   possession    of drug
     paraphernalia, speeding, and driving under suspension.

     On August 31, 2012, [Lockhart] filed a motion to suppress and a
     hearing on said motion was held on September 25, 2012. On
     November 1, 2012, Judge Zulick issued detailed findings of fact
     and conclusions of law and denied [Lockhart’s] motion to
     suppress. At the conclusion of a bench trial on August 27, 2013,
     [Lockhart] was found guilty of all charges and sentenced to a
     mandatory minimum of five to ten years’ imprisonment.


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       [Lockhart] raised one issue on appeal. “Whether the trial court
       erred in denying [Lockhart’s] motion to suppress when the
       Commonwealth failed to establish that a search of [Lockhart’s]
       person was supported by reasonable suspicion?” [Lockhart’s]
       Brief at 4. Although the Pennsylvania Superior Court disposed of
       [Lockhart’s] lone issue on appeal, they sua sponte considered
       the legality of [Lockhart’s] mandatory minimum sentence.
       Finding [Lockhart’s] sentence illegal, the Superior Court vacated
       the sentence and remanded to this court for resentencing
       without consideration of the mandatory minimum. [Lockhart]
       was resentenced on February 23, 2015.

PCRA Court Opinion, 11/24/2015, at 1–4 (footnotes omitted).

       Lockhart filed his pro se PCRA petition on April 7, 2015, and an

amended petition was filed by appointed counsel on May 6, 2015.         In his

petition, Lockhart claimed counsel was ineffective in failing to present to the

suppression court the MVR [mobile video recording] of the traffic stop.      A

hearing was held on September 28, 2015.          On November 24, 2015, the

PCRA court denied relief, and Lockhart filed this appeal in which he

contends:

       [T]he [PCRA] court erred in finding [Lockhart’s] claim of
       ineffective assistance of counsel meritless based on its ultimate
       determination that trial counsel’s failure to utilize the video
       portraying the traffic stop did not prejudice [Lockhart]?

Lockhart’s Brief at 4.3

       At the outset, we state the principles that guide our review:



____________________________________________


3
  Lockhart timely complied with the order of the PCRA court to file a
Pa.R.A.P. 1925(b) concise statement.



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      For the claims on which a hearing was held, we consider whether
      the PCRA court’s findings are supported by the record and free of
      legal error.

                                    ****

      To prevail on [an ineffectiveness] claim, Appellant must plead
      and prove by a preponderance of the evidence that his
      conviction was the result of ineffective assistance of counsel
      that, under the circumstances, so undermined the truth-
      determining process that no reliable adjudication of guilt or
      innocence could have taken place. … Appellant must therefore
      show that: the underlying legal claim has arguable merit;
      counsel had no reasonable basis for his act or omission; and
      Appellant suffered prejudice as a result. See Commonwealth v.
      Pierce, 515 Pa. 153, 158-60, 527 A.2d 973, 975-76 (1987).
      Because all three “Pierce factors” must be demonstrated, the
      claim fails if any one of them is not proved. See
      Commonwealth v. Busanet, 618 Pa. 1, 18, 54 A.3d 35, 45
      (2012).

Commonwealth v. Baumhammers, 92 A.3d 708, 719 (Pa. 2014).

      In addressing the first prong of the ineffectiveness test, Lockhart

argues counsel’s failure to utilize the MVR at the September 25, 2012,

suppression hearing has arguable merit because the video was the best

evidence available to support the argument he made in support of his

suppression   motion.   Lockhart   asserts   his   primary   argument   to   the

suppression court “was that the controlled substance that was located on his

person was unlawfully obtained by the police since the police lacked

reasonable suspicion to detain him.” Lockhart’s Brief at 12. While Lockhart

concedes Trooper Conrad had probable cause to initiate the traffic stop, he

asserts Trooper Conrad “unlawfully prolonged the traffic stop past its natural

end point without reasonable suspicion of unlawful activity.” Id. at 12–13.

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Lockhart maintains the video “was the best evidence available since it

depicts the length of time that passed from the time the trooper ran

[Lockhart’s] criminal background until the trooper returned [Lockhart’s]

documents.” Id. at 14. Lockhart claims he was detained “past the period

of time which is required to conduct a routine traffic stop.” Id.

       Lockhart acknowledges Trooper Conrad testified at the suppression

hearing, but argues that Trooper Conrad could not recall how long the traffic

stop lasted or give an estimate.           Id. at 15.   He asserts “[h]ad counsel

entered the video as an exhibit at the hearing she would have been able to

establish the total length of the stop,” and “to clearly distinguish to the court

when [Lockhart] was claiming the traffic stop ended and when a new

interaction began.” Id.

       Lockhart contends the video would show the following timeline:4

Lockhart is pulled over within 56 seconds of the commencement of the

video; at one minute and 24 seconds the trooper approaches and interacts

with him until three minutes and 16 seconds when the trooper returns to his

vehicle; he was told to remain in his vehicle; approximately nine minutes

later, at 12 minutes and 11 seconds, Trooper Conrad contacts Trooper

Cortez; the call to Trooper Cortez terminated at 14 minutes and 23 seconds;

____________________________________________


4
 Lockhart notes the MVR was admitted at trial. Lockhart further notes the
MVR does not display times, and PCRA counsel utilized a stopwatch to
determine the timeline of the stop. Lockhart’s Brief at 15 n.2.



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approximately 22 minutes after the initial interaction, Trooper Conrad re-

approaches Lockhart’s vehicle at 25 minutes and 30 seconds.              See

Lockhart’s Brief at 15–16.

      Lockhart claims the time period from the end of the initial interaction

at three minutes and 16 seconds to the point that Trooper Conrad returned

to the vehicle at 25 minutes and 30 seconds constituted an unlawful

detainment because Trooper Conrad did not have reasonable suspicion that

he was involved in criminal activity. In this regard, Lockhart argues Trooper

Conrad admitted he did not view any controlled substances in the vehicle,

did not smell any odor of marijuana, did not observe Lockhart to be nervous

and testified Lockhart was cooperative, and while Trooper Conrad testified

he believed Lockhart did not have legal authority to operate the rental

vehicle, he did not contact anyone regarding Lockhart’s authority to operate

the vehicle. See id. at 16.

      In addressing the second prong of the ineffectiveness test, the

reasonableness of counsel’s actions, Lockhart argues that counsel did not

put forth a reasonable basis for not playing the video; that the video was

relevant because the suppression motion was denied without prejudice when

the video had not yet been provided, and counsel refiled the motion after

receiving the video; and it was unreasonable not to play the video when

Trooper Conrad could not recall any specific facts regarding the duration of

the traffic stop.


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       With regard to the prejudice prong, Lockhart maintains counsel’s

failure to utilize the MVR at the suppression hearing “not only limited

counsel’s ability to properly question the trooper and present a clear

argument to the court as to why [Lockhart] was asserting he was unlawfully

detained at the time of the search, but also limited [his] ability to challenge

the [suppression] court’s decision on direct appeal.” Id. at 18. With regard

to the latter statement, Lockhart points to this Court’s footnote in its

decision upholding the suppression court’s ruling:

       To the extent [Lockhart] 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 may not review that which an
       appellant, despite bearing the burden to so include, has failed to
       remit within the certified record.

Commonwealth           v.   Lockhart,      116   A.3d   685   (Pa.   Super.   2016)

(unpublished memorandum), at 13–14, n.11.

       Having reviewed the MVR5 and the arguments presented by Lockhart,

we find no basis upon which PCRA relief is warranted.                We find that

Lockhart’s reliance on the MVR to support his motion to suppress is

misplaced because the video would not have demonstrated any unlawful

detainment. At the suppression hearing, Trooper Conrad testified:


____________________________________________


5
 The MVR is included in the certified record transmitted to this Court and
has been reviewed in connection with the present appeal.




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     Q. As you told Mr. Lockhart about the reason you were stopping
     him, can you describe for the court how he appeared to you.

     A. He appeared normal.       He provided me with a New York
     identification card.

     Q. What happened next?

     A.    When I requested the registration and insurance, he
     informed me that the vehicle was a rental vehicle and he did not
     have a rental agreement.

     Q. Did that have any significance to you?

     A. Yes.

     Q. What significance did that have to you?

     A. Through my training, and more importantly, experience, I
     encounter that dozens and dozens of times that individuals who
     are specifically using rental vehicles do not have a rental
     agreement or the vehicle is not rented to them, use that vehicle
     to transport drugs.

     Q. Were you able to determine whether this vehicle’s rented to
     him even without documentation?

     A. At that time, no.    He informed me that he did not rent the
     vehicle. He provided   me with a New York identification card. I
     later found out he     had a suspended Pennsylvania driver’s
     license. So at that    time he did not have any valid driver’s
     license which would     have prevented him from renting the
     vehicle.

     Q. When was it that you learned he didn’t have a valid driver’s
     license?

     A. Once I returned to my vehicle and conducted those checks on
     his driving information.

     Q. Did you have any other interaction with Mr. Lockhart before
     running those checks at your vehicle?




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      A. Yes. He told me he’s visiting his cousins in the Poconos. He
      did not seem to know exactly where in the Poconos and told me
      that he was returning to Wilkes-Barre.

      Q. What did you do next?

      A. At that time I … proceeded to conduct a criminal history
      check.

      Q. Why do you do a criminal history check?

      A.    To gain as much information I can on that person’s
      background to see if they have any weapons or drug violations.
      If they are in that lifestyle, usually they have a significant arrest
      history for those offenses.

      Q. In this particular case, what did you find?

       A. Mr. Lockhart had a criminal history for a convicted drug
      distribution, I believe it was in Scranton.     He had robbery
      offenses, as well and marijuana possession offenses, I believe.

      Q. After you discovered the criminal history, what did you do
      next?

      A. I contacted backup.      I contacted backup to come to that
      location.

N.T., 9/25/2012, at 7-8. Trooper Conrad also testified that he was aware

Lockhart was “coming from a source location.” See id. at 9.

      As part of a “routine traffic stop,” an officer is entitled to conduct

certain traffic and safety-related checks, such as requesting a driver’s license

and vehicle registration, and checking driver’s information or criminal history

records. See Rodriguez v. United States, 135 S. Ct. 1609, 1615-16

(2015). Here, Trooper Conrad properly conducted “ordinary inquiries




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incident to [the traffic] stop,”6 by running computer checks of Lockhart’s

driver’s information and criminal history after his initial inquiries to Lockhart.

As a result of the information he obtained from Lockhart and the computer

checks, Trooper Conrad called for back-up.         We held in Lockhart’s direct

appeal that “Trooper Conrad had reasonable suspicion to extend the traffic

stop.” Lockhart, supra at 9.

         In this case, the routine traffic and safety related measures tied to

Lockhart’s traffic violation gave rise to Trooper Conrad’s reasonable

suspicion to believe Lockhart was engaging in drug-trafficking. Our review

confirms the PCRA court’s determination that Lockhart has failed to show by

a preponderance of the evidence that the outcome of his suppression motion

or direct appeal would have been different had the MVR been utilized by

counsel.    We agree with the PCRA court that the MVR “only corroborates

Trooper Conrad’s testimony.”            PCRA Court Opinion, 11/24/2015, at 8.

Accordingly, as Lockhart cannot establish prejudice by counsel’s failure to

use the video, his ineffective claim fails. Therefore, we affirm.

        Order affirmed.




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6
    Rodriguez, supra, 135 S. Ct. at 1615 (quotations and citation omitted).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2016




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