J. A32039/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                    v.                      :
                                            :
                                            :
JAMES ANTON ARTIS-BRYAN,                    :
                                            :
                          Appellant         :     No. 209 EDA 2014


           Appeal from the Judgment of Sentence December 17, 2013
                In the Court of Common Pleas of Monroe County
               Criminal Division No(s).: CP-45-CR-0001225-2012

BEFORE: PANELLA, OLSON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 24, 2015

        Appellant, James Anton Artis-Bryan, appeals from the judgment of

sentence1 entered in the Monroe County Court of Common Pleas following a

jury trial and convictions for criminal accomplice to possess heroin,2 criminal




*
    Former Justice specially assigned to the Superior Court.
1
  Appellant purports to appeal from the orders entered on August 13, 2013,
September 20, 2013, and January 6, 2013. The August 13th order granted
in part and denied in part Appellant’s Omnibus Pretrial Motion to Suppress.
See Order, 8/13/13. On September 20, 2013, the jury returned its verdict.
On January 6, 2014, the court, following consideration of Appellant’s Motion
for Reconsideration of Sentence, entered an order modifying his judgment of
sentence.
2
    18 Pa.C.S. § 306(b)(1).
J. A32039/14


accomplice to possess cocaine,3 possession of heroin,4 possession of

cocaine,5 possession of drug paraphernalia,6 false identification to law

enforcement officer,7 and exceeding posted speed limit.8 Appellant contends

the trial court erred in (1) finding police had reasonable suspicion to stop

either of two vehicles for speeding, (2) sending out with the jury certain

letters written by Appellant, and (3) sentencing Appellant to a state

correctional facility. We affirm.

        We adopt the facts as set forth in the trial court’s opinion denying

Appellant’s omnibus pre-trial motion seeking suppression of evidence and

the dismissal of charges against him.     See Trial Ct. Op., 8/13/13, at 1-4.

The trial court summarized the procedural posture of this case as follows:

           [Appellant] was sentenced on December 17, 2014 to 44 to
           96 months in a state correctional institution. His RRRI
           minimum sentence was calculated to be 36 months and 20
           days.

              [Appellant] filed a post-sentence motion seeking
           reconsideration of sentence. On January 6, 2014, his
           sentence was reconsidered and modified.           His new
           sentence was for a total of not less than 38 months nor for

3
    18 Pa.C.S. § 306(b)(1).
4
    35 P.S. § 780-113(a)(16).
5
    35 P.S. § 780-113(a)(16).
6
    35 P.S. § 780-113(a)(32).
7
    18 Pa.C.S. § 4914(a).
8
    75 Pa.C.S. § 3362(a)(2).



                                      -2-
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         more than 84 months. His RRRI alternative minimum
         sentence was calculated to be 31 months and 20 days.

Trial Ct. Op., 3/19/14, at 1. This timely appeal followed. Appellant filed a

court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal9 and the trial court filed a responsive opinion.

      Appellant raises the following issues for our review:

         A. Did the Pennsylvania state police have appropriate
         reasonable suspicion to make a traffic stop on either of two
         vehicles for speeding where the trooper used one radar
         device to clock both vehicles at the same time in violation
         of the laws of science?[10]


9
   The trial court entered an order on January 27, 2014, directing Appellant to
file and serve his Pa.R.A.P. 1925(b) statement “no later than February 18,
2014.” Order, 1/27/14. Appellant filed his Rule 1925(b) statement on
February 21, 2014. We need not find the late filing results in waiver. In
Commonwealth v. Veon, 109 A.3d 754 (Pa. Super. 2015), this Court held:

         First, the trial court maintains that [the appellant] has
         waived all of his issues on appeal by failing to file a timely
         statement of matters complained of on appeal pursuant to
         Rule 1925(b) of our Rules of Appellate Procedure. Waiver
         is no longer the remedy under such situations.
         Where the trial court does not address the issues raised in
         an untimely 1925(b) statement, we remand to allow the
         trial court an opportunity to do so. On the other hand,
         where, as here, the trial court has addressed the issues
         raised in an untimely Rule 1925(b) statement, we need not
         remand and may address the issues on their merits.

Id. at 762 (citations omitted and emphasis added).
10
  We note that in his Pa.R.A.P. 1925(b) statement of errors complained of
on appeal, Appellant raised the issue as follows: “That the trial court erred
and abused its discretion by not suppressing the traffic stop of the
Appellant’s vehicle, as well as another vehicle, for speeding where the
Trooper used one radar device to clock both vehicle [sic] at the same time in



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         B. Did the trial court err and abuse its discretion by
         sending out with the jury letters which were allegedly
         written to a co-defendant by the Appellant where such
         could be seen as a [sic] being a confession of the crimes
         alleged against him?

         C. Did the trial court err and abuse its discretion by
         sentencing the Appellant to a state correctional facility
         where the highest graded offense for which he was
         convicted was a misdemeanor of the third degree and no
         appropriate approval had been received from the secretary
         of the department of corrections for such sentence?

Appellant’s Brief at 7.

      First, Appellant argues the trial court erred in not suppressing the

traffic stop of his vehicle because the radar device used by Trooper Nicholas

Cortes was not capable of determining the speeds of two motor vehicles at

the same time. Trooper Cortes stopped Appellant based upon the radar gun

reading and the fact that he was tailgating a vehicle driven by Zarinah

Muhammad. Appellant avers that the testimony of his expert witness, Neil

Shirk, established

         that it was impossible for Trooper Cortes to have clocked
         the two vehicles at one time in the fashion he suggested
         that he had. Effectively, if the cars were as close together
         as Cortes suggests they were, and were traveling one
         behind the other, as he also indicated, it would be
         impossible to differentiate which vehicle the signal
         returned from, or if it was a confused reflection from both.
         In other words, the radar signal could bounce back from
         the first vehicle only or be confused between bounces off
         the two, but there would be no way for the device to

violation of the laws of science.” Appellant’s Concise Statement of Matters
Complained of on Appeal, 2/21/14, at 1.



                                    -4-
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           differentiate between the two and provide an accurate
           speed for each.

Id. at 14.

        Appellant argues that because “Cortes cannot reasonably say which

vehicle was speeding or offer any scientifically valid indication that both

were” there was no basis for a traffic stop pursuant to 75 Pa.C.S. § 6308.11

Id. at 12, 14.12 We hold Appellant is due no relief.


11
     Section 6308 provides:

           (b) Authority of police officer.─Whenever a police
           officer is engaged in a systematic program of checking
           vehicles or drivers or has reasonable suspicion that a
           violation of this title is occurring or has occurred, he may
           stop a vehicle, upon request or signal, for the purpose of
           checking the vehicle’s registration, proof of financial
           responsibility, vehicle identification number or engine
           number or the driver’s license, or to secure such other
           information as the officer may reasonably believe to be
           necessary to enforce the provisions of this title.

75 Pa.C.S. § 6308(b). We note that the reference to 75 Pa.C.S. § 6308(a)-
(b) is the only citation to legal authority offered in support of this issue.
12
     We note Appellant summarily avers as follows:

           In that the alleged illegal substances were found in the
           vehicle Muhammad was driving, the lack of legal cause to
           pull over her vehicle is fatal to her being stopped and
           therefore any evidence found in her vehicle must be
           suppressed as the fruit of an illegal search. Without the
           evidence from her car, there are no illegal substances in
           this case and the charges against Appellant should have
           been dismissed for lack of evidence.

              Anticipating an argument that Appellant lacks standing
           to challenge the stop of the Muhammad vehicle, Appellant



                                      -5-
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             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. Where the prosecution prevailed in
         the suppression court, 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. Where the record
         supports the factual findings of the trial court, we are
         bound by those facts and may reverse only if the legal
         conclusions drawn therefrom are in error.

In re J.E., 937 A.2d 421, 425 (Pa. 2007) (citations omitted).

      In evaluating the legal conclusion drawn by the suppression court, this

Court may also consider uncontradicted testimony from the suppression




         contends that he was given such standing by the actions of
         the Commonwealth in this matter. The Commonwealth
         pulled over two vehicles travelling close together using one
         radar gun. . . .

Appellant’s Brief at 14-15.

         . . . Rule 2119(a) of the Rules of Appellate Procedure
         requires a properly developed argument for each question
         presented. This requires, among other things, a discussion
         of and citation to authorities in the appellate brief and “the
         principle for which they are cited.” See Pa.R.A.P. 2119(a),
         (b). Failure to conform to the Rules of Appellate Procedure
         results in waiver of the underlying issue.                See
         Commonwealth v. Buterbaugh, 91 A.3d 1247, 1262
         (Pa. Super. 2014) (en banc).

Veon, 109 A.3d at 774. Instantly, Appellant’s argument is devoid of any
discussion of and citation to legal authority. Therefore, this issue is waived.
See id.




                                     -6-
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hearing     not   included   in   the       suppression   court’s   findings   of   fact.13

Commonwealth v. Mendenhall, 715 A.2d 1117, 1119 n.1 (Pa. 1998). “It

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.”

Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013) (citation

omitted).

     Instantly, the trial court opined:

          I made findings of fact following the suppression hearing
          that:

              1[214] The Dodge Caravan driven by Zarinah
              Muhammad and the Impala driven by [Appellant]
              came through the radar and were determined by the
              trooper to be speeding. The Dodge Caravan came
              through the radar zone at 70 and the Chevy Impala
              was also clocked at 70 miles per hour in a 55 mile
              per hour zone.

                                        *      *   *

             [Appellant] was convicted of speeding, based upon the
          testimony of the arresting troopers and their use of radar.
          [Appellant] called an expert, Neil Shirk, during the
          suppression hearing who gave testimony about the
          unreliability of the use of radar where two vehicles pass

13
    We acknowledge the holding of In re L.J., 79 A.3d 1073 (Pa. 2013), that
after October 30, 2013, the scope of review for a suppression issue is limited
to the record available to the suppression court. Id. at 1085, 1089 (stating
holding applies to “all litigation commenced Commonwealth-wide after the
filing of this decision”). Because the instant omnibus pre-trial motion was
filed prior to October 30, 2013, In re L.J. does not apply.
14
   We note the trial court denominates this as finding of fact number 17,
however, it was finding of fact number 12. See Trial Ct. Op., 8/13/13, at 2-
3.



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         the radar operator at approximately the same time. Mr.
         Shirk testified that the radar signal would reflect from the
         first car, but would not show both cars where they were
         traveling in the same lane, close to one another. However,
         Trooper Cortes testified on rebuttal that Mr. Shirk was
         describing a different kind of radar unit. Cortes’ unit gave
         a separate visual and an audible signal for each car as they
         passed through the radar, both registering 70 miles per
         hour. I found Trooper Cortes’ testimony to be more
         credible than the defense expert testimony.

Trial Ct. Op., 3/19/14, at 2 (citations omitted and emphasis added).

       At the suppression hearing, Trooper Cortes testified he was operating

a Genesis handheld radar unit. N.T., 4/15/13, at 6. He was shown a radar

unit certificate of accuracy which indicated when it was calibrated. Id. at 6-

7.    “It was calibrated January 9th, 2012 by Decatur, manufactured by

Decatur Electronics, certified by Simco Electronics, testing station R9.” Id.

at 7. The Commonwealth asked the court to take judicial notice of the fact

that the “speed timing device and testing station was approved by the

Pennsylvania Bulletin, Volume 41 dated Saturday, December 31st, 2011.”

Id.    The certification document was admitted into evidence without

objection. Id. at 16.

       Appellant’s expert, Mr. Shirk, testified that he had experience with “a

lot of military type radar systems, ground radar systems as well as

shipboard and also aircraft and missile type radars, devices and systems to

be built, tested and delivered.” Id. at 38. He had seen a Genesis handheld

radar unit operated at a demonstration. Id. at 40. He did not operate it.

Id.    He never attended a Pennsylvania State Police academy training


                                     -8-
J. A32039/14


regarding Genesis handheld radars.     Id. at 40-41.   The radar system is

“reliable. It’s used pretty extensively throughout many police departments.”

Id. at 42. He opined that there was “no way you can clock both cars.” Id.

at 45. He was asked how a trooper operates the radar. Id.

        Well, he has a few different buttons on the radar, and it
        depends on which one it is. I know there’s a fast─there’s a
        button, a fast button. I’m not sure if his had it, but there
        was one─one of these models has a fast button, which,
        what it does is you can switch to a faster mode. So if you
        have a Mustang passing a trailer truck, you can hit the
        faster mode, but you’re only going to see the trailer truck,
        which is the biggest signal, but if you want the fastest
        object of the second strongest signal, you hit the fastest
        mode, and that will switch you over to get the Mustang
        passing the trailer truck. I’m not sure he had that on the
        handheld device, but that is in the same product line of
        these folks.

Id. at 45-46.

     Trooper Cortes testified on rebuttal that his radar gun was not

equipped with a fast button. Id. at 68. He testified as follows regarding the

operation of the Genesis handheld radar unit that he used:

        [The Commonwealth]: How do you operate the type of
        device that you have?

        A: Squeeze the trigger. You squeeze the trigger and point
        it at a vehicle.

        Q: What is the indication for you when a vehicle is coming
        through your zone of influence at a high rate of speed?

        A: You get a reading on the screen and a high-pitched
        tone. For every vehicle that comes in, it will squeal in
        other words. You have the visual, and you get an audible
        signal.



                                    -9-
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           Q: In this instance, how many audible signals did you get?

           A: The Dodge Caravan came through at 70. It beeped.
           Immediately behind it was the Chevy Impala. The reading
           was 70, and it beeped again. So it was two separate high-
           pitched tones.

Id.     Trooper Cortes testified he was a trooper for eleven years and had

pulled over thousands and thousands of vehicles using radar in similar

situations as in the case at bar. Id. at 70-71.

        Appellant is asking this Court to reweigh the evidence. This we cannot

do.     See Clemens, 66 A.3d at 378.           Instantly, the record supports the

factual findings of the suppression court. See In re J.E., 937 A.2d at 425.

We discern no abuse of discretion. See id.

        Next, Appellant contends the trial court erred and abused its discretion

by sending out with the jury letters alleged to have been written by

Appellant to Muhammad, his co-defendant, which could be interpreted as

being a confession of the crimes charged. Appellant’s Brief at 17.

        As a prefatory matter, we consider whether Appellant has waived this

issue on appeal. Instantly, the notes of testimony from the jury trial held on

September 19, 2013, and September 20, 2013 are not in the certified record

on appeal. The trial court noted:

           The Notice of Appeal, filed on January 22, 2014, contained
           no request for a transcript. See Pa.R.A.P. 904(c)[15] and


15
     Pennsylvania Rules of Appellate Procedure 904 provides:




                                      - 10 -
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           1911;[16] Pa.R.J.A. 5000.5.[17] The court issued an order
           sua sponte on February 18, 2014 directing the court
           reporter to transcribe the notes of testimony at issue
           based upon [Appellant’s] statement in the Notice of
           Appeal[18] itself. [Appellant] was directed to deposit $240

           (c) Request for transcript.─The request for transcript
           contemplated by Rule 1911 ( request for transcript) or a
           statement signed by counsel that there is either no
           verbatim record of the proceedings or the complete
           transcript has been lodged of record, shall accompany the
           notice of appeal, but the absence of or defect in the
           request for transcript shall not affect the validity of the
           appeal.

Pa.R.A.P. 904(c).
16
     Pennsylvania Rule of Appellate Procedure 1911 provides:

           (a) General rule. The appellant shall request any
           transcript required under this chapter in the manner and
           make any necessary payment or deposit therefor in the
           amount and within the time prescribed by Rules 5000.1 et
           seq. of the Pennsylvania Rules of Judicial Administration
           (court reporters).

Pa.R.A.P. 1911(a).
17
  Pennsylvania Rule of Judicial Administration 5000.5 provides: “(b) For an
appeal, the transcript request shall be made part of the notice of appeal.”
Pa.R.J.A. 5000.5(b).
18
     The notice of appeal stated as follows:

           Notice is hereby given that [Appellant] hereby appeals to
           the Superior Court of Pennsylvania from the Sentencing
           Orders dated the 6th day of January, 2014 and the 17th
           December, 2013, the trial Order of the 20th day
           September, 2013 and the pretrial Order of the 13th day of
           August, 2013, together with the trial and pretrial motions
           relating to the same. These Orders have been entered in
           the docket as evidenced by the attached copy of the
           docket entries.



                                      - 11 -
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         within ten days as a condition precedent to the court
         reporter’ commencement of transcription.     The court
         reporter advises that no deposit was made. She therefore
         did not transcribe the notes of testimony.

Trial Ct. Op., 3/19/14, at 3 n.1.

      This Court has stated:

         [W]ell-settled Pennsylvania law makes clear “an appellate
         court is limited to considering only the materials in the
         certified    record     when    resolving   an     issue.”
         Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super.
         2006) (en banc), [ ]. Where the appellant has not made
         the transcript of the proceedings at issue a part of the
         certified record, we have said:

            With regard to missing transcripts, the Rules of
            Appellate Procedure require an appellant to order
            and pay for any transcript necessary to permit
            resolution of the issues raised on appeal. Pa.R.A.P.
            1911(a). . . . When the appellant . . . fails to
            conform to the requirements of Rule 1911, any
            claims that cannot be resolved in the absence of the
            necessary transcript or transcripts must be deemed
            waived for the purpose of appellate review.

         Id. at 7.

Commonwealth v. Houck, 102 A.3d 443, 456 (Pa. Super. 2014).

      Instantly, the trial court opined:

         The second issue raised by [Appellant] on appeal is that
         the court erred in sending letters out with the jury which
         were “allegedly written to a co-defendant by the Appellant
         where such could be considered as a confession of
         wrongdoing.”       [Appellant] has not ordered the trial
         transcript so it is impossible to determine the merits of the
         claimed error and whether an appropriate defense
         objection was made at the time.

Notice of Appeal, 1/22/14.



                                     - 12 -
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Trial Ct. Op., 3/19/14, at 2-3. Appellant’s claim cannot be resolved in the

absence of the trial transcript, therefore it is waived.19    See Houck, 102

A.3d at 456.

        Lastly, Appellant contends the trial court erred in sentencing him to a

state correctional facility where the highest graded offense for which he was

convicted was a misdemeanor of the third degree and no appropriate

approval had been received from the secretary of the department of

corrections for the sentence. Appellant’s Brief at 17. Appellant avers such

approval is required pursuant to 42 Pa.C.S. § 9762(i).20 Id. at 18.


19
   We remind counsel, “Our law is unequivocal that the responsibility rests
upon the appellant to ensure that the record certified on appeal is complete
in the sense that it contains all of the materials necessary for the reviewing
court to perform its duty.” Commonwealth v. B.D.G., 959 A.2d 362, 372
(Pa. Super. 2008) (citations omitted).
20
     The statute provides in pertinent part:

           (i) Prohibition.─Notwithstanding any other provision of
           law, no person sentenced to total or partial confinement
           after the effective date of this subsection [August 6, 2012]
           shall be committed to the Department of Corrections
           unless:

              (1) the aggregate sentence consists of a conviction for
              an offense graded as a misdemeanor of the second
              degree or higher; or

              (2) the Secretary of Corrections or the secretary’s
              designee has consented to the commitment.

42 Pa.C.S. § 9762(i). The effective date of this subsection was August 6,
2012.



                                      - 13 -
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      The notes of testimony from the reconsideration of sentence hearing

are not in the certified record on appeal.21 In the absence of the transcript,

this issue is waived. See Houck, 102 A.3d at 456.

      Judgment of sentence affirmed.

      Judge Panella joins the memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/24/2015




21
   We note that the trial court stated the following in its January 6, 2014
order imposing sentence: “The District Attorney’s office has checked with the
Department of Corrections and has obtained correspondence that the
Department of Corrections has consented to [Appellant] serving this
sentence in a state correctional institution pursuant to 42 Pa.C.S. § 9762(i).”
Order, 1/6/14, at 2-3.



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                                                                 Circulated 04/14/2015 04:02 PM




                 COURT OF COMMON PLEAS OF MONROE COUNTY
                        FORTY-THIRD JUDICIAL DISTRICT
                      COMMONWEALTH OF PENNSYLVANIA


COMMONWEAL TH OF PENNSYLVANIA                    No.    1225 CR 2012

              vs.

JAMES ANTON ARTIS-BRYAN,

              Defendant

                                         OPINION

        Defendant James Artis-Bryan flied an omnibus pre-trial motion on December 18,

2012, seeking suppression of evidence and dismissal        of the charges against him. A

hearing was scheduled for January 25, 2013. The hearing was rescheduled to February

25, 2013 on the Commonwealth's         motion. Testimony was taken that day, but the

defendant requested a continuance and the matter was again rescheduled to March 25,

2013.   The defendant failed to appear for the March 25, 2013          hearing and it was

rescheduled to April 15, 2013. Testimony was concluded on that date and the parties

requested the notes of testimony and the opportunity to file briefs.

                                   FINDINGS OF FACT

        1. Zarinah Muhammad      became romantically     involved with Defendant       James

Artis-Bryan in April, 2012.

        2. On May 12, 2012. she and Mr. Artis-Bryan left Wilkes-Barre, Pennsylvanla in a

Chevrolet Impala driven by Mr. Artis-Bryan.    She was going to New Jersey for Mother's

Day. and she believed that Mr. Artis-Bryan was going there because he had business to

attend to.
                                                                      Circulated 04/14/2015 04:02 PM




           3. They went shopping when they arrived and stayed in a hotel in Belleville, New


     Jersey.
           4. That night, Mr. Artis-Bryan went out at approximately 10:00 p.m., leaving Ms.

     Muhammad alone in the hotel room. He returned sometime during the night while she

     was sleeping. NT 9.

           5. When Ms. Muhammad woke in the morning, Mr. Artis-Bryan had parked a

     Dodge Caravan outside the hotel. The Chevrolet Impala in which they had travelled to

     New Jersey was also there. NT 10. Ms. Muhammad had seen the Dodge Caravan

     before when the defendant was driving it in Wilkes-Barre on a couple of occasions. NT

     19.
           6. Ms. Muhammad saw the defendant put shopping bags inside the van when

     they were leaving the hotel. NT 20.
           7. That same morning, on May 13, 2012, Ms. Muhammad visited her mother,

     using the van.
               8. Mr. Artis-Bryan used the Chevrolet Impala to attend to business he had

     elsewhere.
               9. Ms. Muhammad and Mr. Artis-Bryan agreed to meet later for their return trip to

     Wilkes-Barre at a gas station in New Jersey.

               10. Ms. Muhammad drove the van back to Pennsylvania; Mr. Artis-Bryan drove

     the Impala.
               11. Trooper Cortes was operating radar on Route 80 on May 13, 2012.

               12. The Dodge Caravan driven by Zarinah Muhammad and the Impala driven by

     the defendant came through the radar and were determined by the trooper to be



                                                   2


Ir
                                                                Circulated 04/14/2015 04:02 PM




speeding. The Dodge Caravan came through the radar zone at 70 and the Chevy

Impala was also clocked at 70 miles per hour in a 55 mile per hour zone.

       13. Trooper Cortes then followed and stopped the Chevrolet Impala and Trooper

Conrad followed and stopped the Dodge Caravan.

       14. During the stop, Ms. Muhammad received phone messages from Mr. Artis-

Bryan telling her not to allow a search of the van.

       15. When Trooper Cortes made contact with the defendant, the defendant stated

that he did not have a driver's license or any identification with him.     The defendant

identified himself with a false name and date of birth. NT 9.

       16. The defendant denied that he was traveling with Zarinah Muhammad and he

denied knowing her. NT 26.

       17. The Dodge Caravan was rented by a third party. NT 24, April 15, 2013.

       18. The Chevy Impala was a rental car rented in the name of Tishawna Dixon,

the only authorized   driver. An examination of the rental does not make clear when the

agreement was to expire.

       19. Trooper Cortes asked for permission to search the defendant's      person which

was granted. NT Preliminary hearing, p. 8. He found a Pennsylvania identification card

in the waistband of the defendant's pants.

       20. When the trooper checked the name the defendant gave him. he determined

that it was an alias,   and that the defendant had a significant criminal history         that

included involvement with illegal drugs.




                                              3
                                                                    Circulated 04/14/2015 04:02 PM




         21. When Ms. Muhammad was pulled over by Trooper Conrad, the trooper asked

  her for the rental agreement for the vehicle. She told him that "Church" had it. NT 30.

  "Church" was the defendant.

         22. The state police had the vehicles searched by a dog, which reacted to what

  the police believed to be the presence of illegal drugs in both vehicles.

         23. The troopers searched the vehicles. The defendant did not consent to the

 search of the Chevrolet Impala rental vehicle. NT 25.

         24. The police found an open brown paper shopping bag on the floor of the

 Dodge Caravan behind the driver's seat and the front passenger's seat that contained

 2,500 packets of heroin and a quarter kilo of crack cocaine. Defendant's clothing, mail,

 New Jersey criminal charges and mail to him from the Pennsylvania Board of Probation

 and Parole were found in the Dodge Caravan. Preliminar; hearing, NT 13. April 15,

 2010 hearing, NT 10.

        25. No illegal substances were found in the Impala being driven by the

defendant.

        26. A plastic bag was found in the Impala that had hundreds of small black

rubber bands, commonly used to wrap bundles of heroin. Preliminary hearing, NT 13.

The same type of rubber band was found in the Dodge Caravan along with the packets

of heroin. Id.

                                      DISCUSSION

       The Defendant has filed an omnibus pretrial motion in which he includes a

Motion to Suppress the rubber bands that were seized during the traffic stop of the

vehicle he was driving and the contraband seized after the stop of the vehicle Zarinah



                                             4
                                                                 Circulated 04/14/2015 04:02 PM




  Muhammad was driving. He also seeks a dismissal of the charges against him due to

 an alleged lack of a prima facie case.

        The Defendant has challenged the warrantless police search of the rental cars

 that he and Zarinah Muhammad were driving. "Warrantless searches and seizures

 are ... unreasonable per se, unless conducted pursuant to a specifically established and

 well-delineated exception to the warrant requirement." Commonwealth v. Burgos, 64

 A.3d 641, 648 (Pa. Super. 2013) (citations omitted). Under Pennsylvania law, a

 defendant charged with a possessory offense has automatic standing to challenge a

 search. Commonwealth v. Perea, 791 A.2d 427 (Pa.Super.2002), appeal denied, 568

 Pa. 736, 798 A.2d 1288 (2002); Commonwealth            v.   Strickland,   707 A.2d 531

 (Pa.Super.1998), appeal denied, 556 Pa. 675, 727 A.2d 130 (1998). "However, in order

 to prevail, the defendant, as a preliminary matter, must show that he had a privacy

interest in the area searched." Perea, supra at 429 (citing Commonwealth v. Sell, 470

A.2d 457 (Pa. 1983)).

      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. Brundidge, 620 A.2d 1115, 1118 (Pa. 1993) (internal citations and

quotation marks omitted).

      Defendant Artis-Bryan thus had the preliminary burden of establishing by a

preponderance of the evidence that he had a reasonable expectation of privacy in the

vehicles. Com v. Burton, 973 A.2d 428, 435 (Pa. Super. 2009). The evidence presented




                                          5
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       established that the vehicle Artis-Bryan was driving was rented in the name of

       Tishawna Dixon. NT 16, April 15, 2013, Rental agreement, Commonwealth's Exhibit 7.

       She was the only authorized driver. Id. At the time of the stop, Defendant told Trooper

       Cortes that the car was rented by his girlfriend, for him. NT 53, April 15, 2013. He also

       told the trooper that he was "coming back from Newark, New Jersey, going to see the

       girl who rented the car." NT 7, Preliminary Hearing Transcript, Commonwealth Exhibit 1,

       February 25, 2013. Further, while Trooper Cortez asserted that the rental agreement

       was expired when he examined it at the scene of the stop. NT 14, 4/15/2013, an

       examination of the rental agreement is inconclusive as to the date the vehicle was to be

       returned. The only clear date on the rental agreement is May 11, 2012 which was the

      "Car Out" date in the upper left hand corner and the date the rental agreement was

      signed. The total charge for the rental appeared to be $923.99, which was more than

      the monthly rental amount of $799.99 per month. Rental agreement.

             The Commonwealth contends that Defendant had no expectation of privacy in

      the Chevrolet     Impala. In    making that     assertion,   Commonwealth relies          on

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

      Jones, 874 A.2d 108 (Pa. Super. 2005). In Jones, the Superior Court found that the

      defendant did not have a reasonable expectation of privacy in the rental car that he was

      driving, based on the surrounding circumstances. The Jones court stated: "(a)ppellant's

      subjective expectation of privacy was not reasonable where he was the operator of a

      rental car but not the named lessee, was not an authorized driver, the named lessee

      was not present in the vehicle, Appellant offered no explanation of his connection to the

      named lessee, and the return date for the rental car had passed." Jones, 874 A.2d at



                                                 6

II.
                                                                 Circulated 04/14/2015 04:02 PM




 120. Based on those facts, the Superior Court determined that the evidence found in the

 car Jones was driving was properly admitted.

        The Superior Court reached a similar result in Maldonado. There, defendant was

 held to lack a reasonable expectation of privacy in the vehicle being searched. The

 circumstances in Maldonado were similar to those in Jones. The Court stated: "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." Maldonado, 14 A.3d at 911 (quoting Commonwealth v.

Burian, 973 A.2d 428, 436 (Pa. Super. 2009)).

       This case can be distinguished from the Jones and Maldonado decisions. Here

Artis-Bryan has provided uncontradicted evidence that he was operating the vehicle

with the consent of the vehicle lessee, Tishawna Dixon. Although the trooper believed

that the rental agreement was expired, that is not obvious from an examination of the

contract. The trooper did not contact Enterprise, the vehicle owner, to determine the

status of the agreement, or for permission to search the vehicle. Rather Trooper Cortes

testified that he did not need permission to search:

             Q: (Mr. Saurman) So what was your basis to say you had cause to search
      his car?

             A: Well, neither vehicle was rented by either operator, so it's a third party
      rental vehicle.

             Q: Trooper, you'll agree with me that if there's a valid rental agreement in
      place, you have no right to search that car without the permission of either the
      renter or the car company?

             A: No. They have - the rental companies permit us. They actually want us
      to search the vehicles. They don't want - they want the vehicle impounded, and
      they don't want it returned to them where there could be potential contraband.



                                            7
                                                                             Circulated 04/14/2015 04:02 PM




                  Q: Do you have a standing order from Enterprise to search anyone's car
         when someone else's name who is driving it is not the one on the rental
         agreement?

                 A: That's what - every time we had contacted them in the past, that's what
         they expressed 4s to do.

                 Q: So in the past, they have said to do this. So your assumption is that
         every time you pull over a car, you should just search it if it's Enterprise and the
         driver is not the same?

               A: If it's a rental vehicle and the driver, the occupants of the vehicle,
         nobody is on the rental agreement, it's a third party rental vehicle where it's not
         rented by someone else that it says no other driver is permitted, then yes, we
         search the vehicle. There's no expectation of privacy. NT 24, 25, April 15, 2013.

         The defendant established a reasonable subjective expectation of privacy in the

 rental vehicle. Unlike the Maldonado and Jones situations, there was an explanation of

 how Artis-Bryan came to be in possession of the vehicle. The rental agreement was not

clearly expired. Although Artis-Bryan was not a named driver, the vehicle was not

reported stolen and the police did not have a reasonable suspicion of theft. Our courts

have never approved a non-consensual vehicle search only because a rental contract

does not list the driver as an authorized driver.

        "[W]here a motion to suppress has been filed, the burden is on the

Commonwealth to establish by a preponderance of the evidence that the challenged

evidence is admissible." The Commonwealth has not met its burden here. Defendant

explained his authority to drive the rental vehicle. This, coupled with the unclear status

of the rental vehicle agreement, should have led the Trooper to take further steps.'


 I In Jones, the Superior Court relied on the reasoning of the Supreme Court of Montana in State v. Hill, 94

P 3d 752 (2004). While the Court in Hill ultimately upheld the search, under very similar factual
circumstances, the officer there requested and received permission from the rental car company, Avis, to
impound the car and conduct a search. Such a step is notably absent here.


                                                    8
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 When confronted with a driver of a rental car who claims to have authority to drive the

 vehicle, an Officer must obtain the consent of a party with authority to give the same (be

 it the rental car company on an expired contract, the driver or the named lessee) absent

 evidence that the car is stolen or abandoned. Defendant had a reasonable expectation

 of privacy in the car. Trooper Cortes did not have a search warrant and did not receive

consent to conduct the search. Therefore, the evidence recovered from the Chevrolet

Impala will be suppressed.

       The evidence seized during the search of the Dodge Caravan, which was driven

by Ms. Muhammad, will not be suppressed. Artis-Bryan            clearly had no reasonable

expectation of privacy in the Caravan. He was not operating the vehicle at the time of

the search. He was not the owner or lessee of the same. He did not even contend that

he knew the Caravan was on the road near him. NT 4, Transcript of Preliminary

Hearing, NT 62-64.

      Artis-Bryan is attempting to suppress the evidence obtained from the Caravan by

asserting the Constitutional rights of Ms. Muhammad, the driver of the Caravan at the

time of the search. However:

      Article 1, Section 8, of our state constitution, as well as the Fourth Amendment of
      the United States Constitution, does not permit a defendant to vicariously assert
      the privacy rights of others:

      The polestar of the expanded protection afforded by Article 1, Section 8, which
      distinguishes it from its federal counterpart, is its emphasis upon personal privacy
      interests. In keeping with the historical intention of Article 1, Section 8, this Court
      has repeatedly refused to recognize the vicarious assertion of constitutional
      rights.

      [l]n consistently declining to recognize derivative standing, this Court has spoken
      directly to the policy considerations underlying Article 1, Section 8:




                                            9
                                                                 Circulated 04/14/2015 04:02 PM




        The fourth amendment to the Constitution of the United States guarantees that
        [t]he right of the people to be secure in their persons. houses, papers, and
        effects, against unreasonable searches and seizures, shall not be violated. To
        the same effect is Pa. Const. art. [1]. § 8, P.S. These rights are personal in
        nature. There is no necessity to exclude evidence against one person in order to
        protect the rights of another. No rights of the victim of an illegal search are at
        stake when the evidence is offered against some other party. In order to obtain
        standing to challenge the legality of the search, a defendant must establish that
        he, rather than another, was the victim of an invasion of privacy.

 Commonwealth v. Powell, 994 A.2d 1096, 1107-08 (Pa. Super. 2010) (internal citations

and quotations omitted). In other words, '[sjuppression of product of a Fourth

Amendment violation can be successfully urged only by those whose rights were

violated by the search itself, not by those who are aggrieved solely by the introduction of

damaging evidence. Coconspirators and codefendants [are accorded] no special

standing." Alderman v. U.S., 394 U.S. 165, 171-72 (1969). Artis-Bryan has not shown

that the search of the car driven by Ms. Muhammad violated his own personal privacy

interests in any way. Therefore, the evidence gathered from that search will not be

suppressed.

       As the Court has suppressed the evidence found in the car driven by Artis-Bryan,

and determined that Artis-Bryan has no standing to challenge the actions of the police

regarding Ms. Muhammad, his contention that the police lacked valid legal cause to

initiate the traffic stop is moot.

       Finally, Defendant asserts that the Commonwealth has failed to make out a

prima facie case against him. This contention is essentially summarized as follows:

       It is undisputed that the alleged contraband in this case was found in the vehicle
       driven by Muhammad and that nothing illegal was found in the Artis-Bryan
       vehicle. Therefore, in order to establish a prima facie case against Artis-Bryan,
       the Commonwealth must establish a connection between him and the drugs. In
       this case the Commonwealth has failed to make such a connection.



                                           10
                                                                  Circulated 04/14/2015 04:02 PM




  Defendant's Brief in Support of His Omnibus Pretrial Motions, Section C Part 4.

        "At the pre-trial stage of a criminal prosecution, it is not necessary for the

 Commonwealth to prove the defendant's guilt beyond a reasonable doubt, but rather, its

 burden is merely to put forth a prima facie case of the defendant's guilt." Commonwealth

 v. Huggins, 836 A:2d 862, 866 (Pa. 2003). "To sustain that burden it is well settled that

 the Commonwealth must produce evidence, such as to present sufficient probable

 cause to believe that the person charged has committed the offense stated."

 Commonwealth v. Wodjak, 466 A.2d 991, 995-6 (Pa. 1983) (internal citations and

 quotations omitted). "[l]n other words, it should make out a prima facie case of guilt. It

 should be such that if presented at the trial in court, and accepted as true, the judge

 would be warranted in allowing the case to go to the jury." Id. (citing Commonwealth ex

rel Scolio v. Hess, 27 A.2d 705, 707 (Pa. Super. 1942) (emphasis in original)).

       Further, "[i]nferences reasonably drawn from the evidence of record which would

support a verdict of guilty are to be given effect, and the evidence must be read in the

light most favorable to the Commonwealth's case." Huggins, 836 A.2d at 866.

Additionally, "[t]he weight and credibility of the evidence are not factors at this stage,

and the Commonwealth need only demonstrate sufficient probable cause to believe the

person charged has committed the offense." Commonwealth v. Marti, 779 A.2d 1177,

1180 (Pa. Super. 2001).

      Defendant has been charged with "Possession with Intent to Deliver" and

Criminal Conspiracy to do the same. Defendant correctly asserts that no contraband




                                           IJ
                                                                  Circulated 04/14/2015 04:02 PM




 was found in the Chevrolet Impala, and instead all the contraband was found in the

 Caravan driven by Ms. Muhammad.

        "When contraband is not found on the defendant's person, the Commonwealth

 must establish constructive possession.... " Commonwealth v. Haskins, 677 A.2d 328,

 330 (Pa. Super. 1996), appeal denied, 692 A.2d 563 (Pa. 1997). "Constructive

 possession is the ability to exercise conscious control or dominion over the illegal

 substance and the intent to exercise that control." Commonwealth v. Kirkland, 831 A.2d

 607, 610 (Pa.Super.2003), appeal denied, 847 A.2d 1280 (Pa. 2004) (citing

 Commonwealth v. Maco/ino, 469 A.2d 132 (Pa. 1983)). "[T]wo actors may have joint

control and equal access and thus both may constructively possess the contraband."

Haskins, 677 A.2d at 330. 'The intent to exercise conscious dominion can be inferred

from the totality of the circumstances." Kirkland, 831 A.2d at 610.

       Here, the Commonwealth has presented evidence in the form of testimony from

Ms. Muhammad. She stated that she saw Defendant put shopping bags into the

Caravan. NT 20. It was in a similar shopping bag that the police found the contraband

when searching the car. Additionally, Artis-Bryan's mail, clothes, New Jersey criminal

charges and mail to him from the Pennsylvania Board of Probation and Parole were

found in the Dodge Caravan. Preliminary hearing, NT 13, April 15, 2010 hearing, NT 10.

Taken in the light most favorable to the Commonwealth, this evidence shows that

Defendant placed the contraband in the Caravan and intended to exercise dominion

and control over the same, as it was placed with his personal effects which he

presumably intended to recover at a later time. This evidence, if taken as true, would be




                                           12
                                                                          Circulated 04/14/2015 04:02 PM




  sufficient to send the case to the jury. Therefore the Commonwealth has made a prima

  facie case as to Artis-Bryan's constructive possession of the narcotics.

         To establish the offense of possession of a controlled substance with intent to

 deliver, the Commonwealth must prove beyond a reasonable doubt that the defendant

 possessed a controlled substance with the intent to deliver it." Kirkland, supra at 611

 (citing Commonwealth v. Conaway, 791 A.2d 359 (Pa. Super. 2002); Commonwealth v.

 Aguado, 760 A.2d 1181 (Pa. Super. 2000)).

         The trier of fact may infer that the defendant intended to deliver a controlled

 substance from an examination of the facts and circumstances surrounding the case.

 Factors to consider in determining whether the drugs were possessed with the intent to

 deliver include the particular method of packaging, the form of the drug, and the

behavior of the defendant. Kirkland, supra at 611. 'Thus, possession with intent to

deliver can be inferred from the quantity of the drugs possessed and other surrounding

circumstances,       such as lack of paraphernalia       for consumption."       Commonwealth v.

Torres, 617 A.2d 812, 814 (Pa. Super. 1992), appeal denied, 629 A.2d 1379 (Pa. 1993).

        Given the amount of narcotics seized from the Dodge Caravan (2,500 heroin

packets and % kilo of crack cocaine) a reasonable                  inference can be drawn that

Defendant     possessed     the narcotics   with   the    intent    to deliver    the   same.    The

Commonwealth         has made a prima facie case against Defendant for possession with

intent to deliver.




                                              13
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                  COURT OF COMMON PLEAS OF MONROE COUNTY
                         FORTY-THIRD JUDICIAL DISTRICT
                       COMMONWEAL TH OF PENNSYLVANIA


COMMONWEAL TH OF PENNSYLVANIA                       No.       1225 CR 2012

               vs.

JAMES ANTON ARTIS-BRYAN,

                Defendant

                                         ORDER

               AND    NOW, this 13th day of August,             2013,    upon consideration                             of

Defendant Artis-Bryan's     Omnibus Pretrial Motion, and the arguments and briefs of the

Defendant and the Commonwealth,       IT IS ORDERED as follows:

      1. The request to suppress the evidence seized from the car driven by Mr. Artis-

         Bryan, the Chevrolet Impala, is granted.

      2. The request to suppress the evidence seized from the Dodge Caravan is denied.

      3. The defendant's request for habeas corpus relief is denied.                    ~--:.
                                                                                        . ·-·

                                              BY THE COURT:
                                                                            ~·..
                                                                            ... •
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                                                                                         _,...j

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                                                                                                            ·,



                                             ~·i,
                                             ~-/
                                                          ~     -:&- .             ..
                                              ARTHUR L. ZULIC~{ J.
                                                                          \"                  : . __}\
cc:      Mark S. Matthews, Esq.                                                               C•           C) .. _.:,
                                                                                                           ~--·
         Robert Saurman, Esq.
ALZ2013-035




                                             14
