J-A17025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

GREGORY MAXWELL

                            Appellant             No. 2657 EDA 2013


            Appeal from the Judgment of Sentence August 23, 2013
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0000560-2013


BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.

MEMORANDUM BY PANELLA, J.                      FILED DECEMBER 15, 2014

       Appellant, Gregory Maxwell, appeals from the judgment of sentence

entered August 23, 2013, by the Honorable Jacqueline C. Cody, Court of

Common Pleas of Chester County. We affirm.

       The trial court summarized the facts adduced at the suppression

hearing as follows.

             On January 30, 2013[,] at approximately noon, Trooper
       Andrew Helms was on duty in a marked police car traveling
       northbound on SR 202 in West Goshen, Chester County. SR 202
       is a four-lane, limited access highway[1] with a grassy median
       between north and southbound lanes. Trooper Helms observed
       a white Cadillac Escalade proceeding south on SR 202 and make
____________________________________________


1
  In his brief, Maxwell contests the suppression court’s description of the
roadway as a “limited access highway.” Appellant’s Brief at 19. As this
issue of fact has no bearing upon our disposition of this case, we need not
address the alleged discrepancy further.
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     a u-turn, crossing the center median at a gravel ramp marked
     “No U-Turn.” Trooper Helms identified [Maxwell] as the driver of
     the white Escalade.

            After observing [Maxwell] make the illegal u-turn, Trooper
     Helms followed the vehicle, activated his sirens and lights and
     pulled the vehicle over. Trooper Helms approached the vehicle,
     identified himself as a police officer and asked [Maxwell] for his
     license, registration and insurance. [Maxwell] handed Trooper
     Helms a New York state driver’s license and a Pennsylvania
     identification card. Trooper Helms ran this information through
     NCIC and determined that [Maxwell’s] driver’s license was
     suspended and the Florida registration was expired. Trooper
     Helms also determined there was an active warrant for
     [Maxwell’s] arrest relating to traffic violations in Magisterial
     District Justice Darlington’s court.

           Upon approaching the vehicle, Trooper Helms smelled an
     odor of marijuana. Trooper Helms looked into the driver’s side
     window of the vehicle and observed small bits of a green leaf-
     like substance in and around the center console and the glove
     compartment, which he suspected to be marijuana.

            Trooper Helms then took [Maxwell] into custody for the
     traffic warrants. [Maxwell] asked for his jacket, briefcase and
     cell phones from his vehicle when he was taken into custody.
     Trooper Helms searched [Maxwell’s] jacket and briefcase
     incident to [Maxwell’s] being taken into custody. Trooper Helms
     found cash in [Maxwell’s] pocket, cash in his briefcase and three
     cell phones.

           Trooper Helms then conducted an inventory search of
     [Maxwell’s] automobile pursuant to state police procedure and
     policy, for his own protection and to search for and secure any
     valuables that may be in the vehicle. Trooper Helms observed
     and collected cash, a small black electronic scale containing
     suspected marijuana residue, and large plastic Ziplock [sic]
     baggies from the center console.        Trooper Helms further
     observed what he suspected to be marijuana residue around the
     glove compartment.

           After completing the inventory search of [Maxwell’s]
     vehicle, Trooper Helms asked for [Maxwell’s] consent to search
     the remainder of the vehicle. Trooper Helms believed that there
     may be additional drugs and cash in the back seat and rear of
     the vehicle based upon what was found during the inventory

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     search. [Maxwell] declined to give his consent for a further
     search of the vehicle. [Maxwell’s] vehicle was then towed to the
     Pennsylvania State Police Barracks at Embreeville and [Maxwell]
     was transported to [MDJ] Darlington in order to dispose of the
     outstanding traffic warrants.

Trial Court Opinion, 1/28/14 at 9-11.     A subsequent search of Maxwell’s

vehicle pursuant to the issuance of a search warrant yielded additional

marijuana, large amounts of United States currency, several cell phones and

a black machete. See id. at 15.

     Maxwell was subsequently charged         with numerous     drug-related

offenses. Initially, Maxwell retained private counsel. Private counsel moved

to withdraw her representation, which the trial court granted. Maxwell then

filed a pro se Writ of Habeas Corpus Motion to Suppress/Dismiss. The trial

court appointed Stephen F. Delano, Esquire, of the Chester County Public

Defender’s Office as counsel. Maxwell filed a pro se Motion for Change of

Counsel.   On July 18, 2013, a negotiated guilty plea hearing was held, at

which time Maxwell indicated that he did not wish to enter a guilty plea. The

trial court granted a brief continuance to afford Maxwell time to discuss the

matter with his attorney. Maxwell filed a pro se Motion for Court-Appointed

Counsel. The trial court denied Maxwell’s motions on August 8, 2013.

     At the commencement of trial, on August 20, 2012, Maxwell indicated

to the court that he wished to proceed pro se. Following a thorough waiver

of counsel colloquy, the trial court permitted Maxwell to proceed pro se and




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appointed Attorney Delano as standby counsel.2 See N.T., Trial, 8/20/13 at

7-15.

        A suppression hearing was conducted and the trial court denied

Maxwell’s suppression motion. Following a jury trial, Maxwell was convicted

of possession with intent to deliver a controlled substance (marijuana),

possession of a controlled substance (marijuana) and possession of drug

paraphernalia.3      Immediately thereafter, Maxwell was sentenced to time

served to 23 months’ incarceration, plus three years’ probation, and was

immediately paroled. This timely counseled appeal followed.

        On appeal, Maxwell raises the following issues for our review.

        1. Whether the [c]ourt erred in denying appellant’s Motion to be
           Appointed Legal Counsel.

        2. Whether the [c]ourt erred in appointing Stephen F. Delano
           Esq. as stand-by counsel.

        3. Whether the [c]ourt erred in denying appellant’s Motion to
           Suppress.

Appellant’s Brief at 4.

        Preliminarily, we note that Maxwell’s argument that the trial court

denied his pro se motion to appoint new counsel is a red herring.          At the

time Maxwell filed his motion to appoint counsel, the trial court had already

appointed Stephen F. Delano, Esquire, to represent him.                  Maxwell’s

____________________________________________


2
    A written waiver of counsel colloquy was filed August 21, 2013.
3
    35 P.S. §§ 780-113(a)(30), (16) and (32).



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J-A17025-14



argument is more properly characterized as an objection to the trial court’s

refusal to appoint new counsel. In this regard, we note that,

     the right to appointed counsel does not include the right to
     counsel of the defendant’s choice.            Commonwealth v.
     Albrecht, 554 Pa. 31, 720 A.2d 693, 709 (1998). Rather, the
     decision to appoint different counsel to a requesting defendant
     lies within the discretion of the trial court. Commonwealth v.
     Grazier, 391 Pa.Super. 202, 570 A.2d 1054, 1055 (1990).
     Before new counsel is appointed, “a defendant must show
     irreconcilable differences between himself and his court-
     appointed counsel before a trial court will be reversed for abuse
     of discretion in refusing to appoint new counsel.” Id.; see also
     Pa.R.Crim.P. 122(C) (“A motion for change of counsel by a
     defendant for whom counsel has been appointed shall not be
     granted except for substantial reasons.”). Again, our ability to
     review whether the trial court abused its discretion has been
     foreclosed by the trial court’s unwillingness to afford Appellant
     the opportunity to offer whatever reasons he may have had to
     seek the appointment of new counsel.

Commonwealth v. Smith, 69 A.3d 259, 266-267 (Pa. Super. 2013) (some

internal quotation marks omitted), appeal denied, 83 A.3d 168 (Pa. 2013).

     In its Rule 1925(a) opinion, the trial court explained its reasons for

denying Maxwell’s motion as follows.

           [Maxwell’s] first Motion for Change of Counsel was filed
     July 15, 2013, two days before [Maxwell] met Mr. Delano. In
     the July 15, 2013 Motion for Change of Counsel, [Maxwell]
     complains about Assistant Public Defender Loreen Kemps, with
     whom he met on March 29, 2013. Because a new Assistant
     Public Defender had already been assigned to [Maxwell’s] case,
     [the court] did not issue an Order regarding [the] Motion for
     Change of Counsel dated July 15, 2013.

           [Maxwell] filed a second Motion for Change of Court
     Appointed Counsel on July 30, 2013. In this Motion, [Maxwell]
     argued that Mr. Delano did not represent his best interests
     because he ignored various pro se motions filed by [Maxwell]
     and insisted [Maxwell] entered a guilty plea.

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J-A17025-14


            [Maxwell’s] complaints about his attorney are inconsistent
      with Mr. Delano’s words and actions on the record [at the guilty
      plea hearing conducted] on July 18, 2013. At that time, Mr.
      Delano explained the nature of work and hours of time spent
      with [Maxwell].     Upon [Maxwell’s] decision not to enter a
      negotiated plea agreement, Mr. Delano requested time to review
      [Maxwell’s] pro se filings and to file appropriate pretrial motions.
      There is no indication of any insistence by counsel that [Maxwell]
      enter a plea or that counsel was unwilling to pursue [Maxwell’s]
      pro se filings and proceed to trial.        [The trial court] also
      considered the fact that this was the third attorney to represent
      [Maxwell] in this matter, and that [Maxwell] had lodged similar
      complaints about all three attorneys. Accordingly, [the court]
      found no substantial basis for appointment of new court-
      appointed counsel.

Trial Court Opinion, 1/28/14 at 4-5.

      We find the trial court’s reasoning to be sound. Maxwell’s claim that

“irreconcilable   differences”   “resulted    in   a   complete   and   irreversible

breakdown in the relationship between Appellant and counsel” is simply

unsupported by the record. While it is obvious that Maxwell at some point

became disenchanted with appointed counsel, he fails to substantiate his

allegations that irreconcilable differences existed of such a magnitude that

would warrant the appointment of new counsel. To the contrary, the record

suggests that trial counsel was willing and able to proceed to trial and

address Maxwell’s pro se motions.            As Maxwell has failed to establish

“substantial reasons” for the appointment of new counsel, we find no abuse

of discretion in the trial court’s denial of Maxwell’s motion.

      To the extent that Maxwell contends that the trial court erred when it

appointed Attorney Delano as standby counsel, he advances no new

argument in support of his claim. We note that “[w]hen a defendant elects


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to proceed at trial pro se, the defendant—and not standby counsel—is in fact

counsel of record and is responsible for trying the case.” Commonwealth

v. Spotz, 47 A.3d 63, 83 (Pa. 2012). Although Maxwell claims that he was

“loathe to consult with [Attorney Delano] and take advice from him as to the

merits of his case[,]” we are satisfied that Attorney Delano was familiar with

the facts and legal issues of Maxwell’s case and was able and willing to offer

assistance if requested. Maxwell notably does not allege that he was in any

way prejudiced by the trial court’s appointment of Attorney Delano as

standby counsel. Accordingly, we do not find the court’s decision to be an

abuse of discretion.

      Lastly, Maxwell argues that the trial court erred when it denied his

motion to suppress evidence. We review the denial of a motion to suppress

physical evidence as follows.

         Our standard of review in addressing a challenge to a trial
         court’s denial of a suppression motion is limited to
         determining whether the factual findings are supported by
         the record and whether the legal conclusions drawn from
         those facts are correct.

         [W]e may consider only the evidence of the prosecution
         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 record supports the findings of the
         suppression court, we are bound by those facts and may
         reverse only if the court erred in reaching its legal
         conclusions based upon the facts.

         Further, [i]t is within the suppression court’s sole province
         as factfinder to pass on the credibility of witnesses and the
         weight to be given their testimony.



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Commonwealth v. Houck, ___ A.3d ___, ___, 2014 WL 4783552 at *10

(Pa. Super., filed Sept. 26, 2014) (internal citations and quotation marks

omitted).

        Maxwell argues that Trooper Helm’s inventory search of his vehicle

was improper, as the vehicle did not need to be towed for public safety

pursuant to 75 Pa.C.S. § 6309.2, Immobilization, towing and storage of

vehicle for driving without operating privileges or registration.4

Maxwell additionally contends that because the inventory search was

allegedly improper, so too was the search warrant issued upon the items

discovered during the illegal inventory search. See Appellant’s Brief at 17-

20.     In light of the Pennsylvania Supreme Court’s recent decision in

Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), we find that Trooper


____________________________________________



4
    Section 6309.2 states, in pertinent part, that

        [i]f a person operates a motor vehicle or combination on a
        highway or trafficway of this Commonwealth while the person's
        operating privilege is suspended, revoked, canceled, recalled or
        disqualified or where the person is unlicensed, as verified by an
        appropriate law enforcement officer in cooperation with the
        department, the law enforcement officer shall immobilize the
        vehicle or combination or, in the interest of public safety, direct
        that the vehicle be towed and stored by the appropriate towing
        and storage agent pursuant to subsection (c), and the
        appropriate judicial authority shall be so notified.

75 Pa.C.S. § 6309.2(a)(1).




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Helm had probable cause to conduct a warrantless search of Maxwell’s

vehicle, irrespective of the allegedly improper inventory search.

      In Gary, our Supreme Court held that “with regard to the warrantless

search of a motor vehicle that is supported by probable cause, Article I,

Section 8 of the Pennsylvania Constitution affords no greater protection than

the Fourth Amendment to the United States Constitution.” 91 A.3d at 124.

Thus, our Supreme Court “[a]ccordingly adopted the federal automobile

exception to the warrant requirement, which allows police officers to search

a motor vehicle when there is probable cause to do so and does not require

any exigency beyond the inherent mobility of a motor vehicle.” Id. at 104.

      Trooper Helms undoubtedly had probable cause to search Maxwell’s

vehicle.    Trooper Helms smelled an odor of marijuana emanating from

Maxwell’s vehicle. He also observed, in plain view, small bits of a green leaf-

like substance around the console and glove box, which he believed to be

marijuana. This observation was sufficient to establish probable cause. See

Commonwealth         v.   Liddie,   21   A.3d   229,   236   (Pa.   Super.   2011)

(observation of marijuana in appellant’s vehicle created probable cause to

believe that a crime had been committed and that evidence pertaining to the

crime was present in appellant’s vehicle). Under the principle announced in

Gary, this alone was sufficient to establish probable cause to search

Maxwell’s vehicle.

      Accordingly, we affirm the order denying Maxwell’s motion to suppress

evidence.

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J-A17025-14



     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2014




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