J-S19010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
               v.                              :
                                               :
    JERNELL L. POUGH                           :
                                               :
                      Appellant                :       No. 1191 MDA 2016

              Appeal from the Judgment of Sentence July 8, 2016
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0004718-2015


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY GANTMAN, P.J.:                             FILED APRIL 19, 2017

        Appellant, Jernell L. Pough, appeals from the judgment of sentence

entered in the Dauphin County Court of Common Pleas, following his

stipulated bench trial convictions for possession of a small amount of

marijuana for personal use and possession of drug paraphernalia.1               We

affirm.

        In its opinion, the trial court set forth the relevant facts of this case as

follows:

           On the night of July 7, 2015, Officer Tyler Zehring (“Officer
           Zehring”) was patrolling the 500 block of Canal Street
           when he noticed a vehicle riding the solid double yellow
           lines and [with] illegal tinted rear taillights.      Officer
           Zehring turned on his lights and attempted to pull over the
           vehicle in a safe location. The vehicle proceeded for
____________________________________________


1
    35 P.S. § 780-113(a)(31)(i), (32).


_____________________________

*Former Justice specially assigned to the Superior Court.
J-S19010-17


          another three (3) blocks and pulled over next to a
          guardrail. As Officer Zehring was pulling over the suspect
          vehicle, he noticed a lot of sudden movement. The driver
          of the vehicle was, Tre Piper, and a passenger in the
          vehicle was Appellant….[2] [Appellant] was sitting in the
          back seat. Mr. Piper had no outstanding warrants and was
          asked to step outside of the vehicle to speak with the
          officer. Officer Zehring explained to Mr. Piper the reason
          why he was asked to exit the vehicle (due to signs of
          impairment). Officer Zehring proceeded to give Mr. Piper a
          portable breath test and the results came back zero.

          At this point, Officer Zehring gives Mr. Piper back his
          identification, gives him a warning, and tells him that he
          was free to leave. Officer Zehring, while standing with the
          door to his patrol vehicle open, decided to ask Mr. Piper
          one more question. Mr. Piper responded, “[S]ure.” Officer
          Zehring asked if there was anything in the vehicle that he
          should be made aware of. Mr. Piper replied that there was
          a scale left by a female [who] had been a passenger in his
          vehicle. Officer Zehring proceeded to ask for consent to
          search the vehicle and Mr. Piper consented to [the] search.
          The search of the vehicle produced a scale, [loose]
          marijuana, and a marijuana “roach.” The scale was found
          underneath the front seat. A marijuana blunt was found
          inside of Appellant’s shoe.[3]

(Trial Court Opinion, filed September 30, 2016, at 2-3) (internal footnotes

omitted).

       Procedurally, the Commonwealth charged Appellant with possession of

a small amount of marijuana and possession of drug paraphernalia.

____________________________________________


2
  Appellant and Mr. Piper were co-defendants at trial.     Mr. Piper filed an
appeal at docket No. 1189 MDA 2016.
3
  Police found the marijuana blunt in Appellant’s shoe after conducting a
search incident to arrest based on Appellant’s constructive possession of the
drugs and drug paraphernalia discovered in Mr. Piper’s vehicle.



                                           -2-
J-S19010-17


Appellant filed a suppression motion on December 24, 2015. The court held

a suppression hearing on February 19, 2016. On March 28, 2016, the court

denied the motion to suppress. Appellant proceeded to a stipulated bench

trial on July 8, 2016, after which the court convicted him of possession of a

small amount of marijuana for personal use and possession of drug

paraphernalia. The court sentenced Appellant that day to concurrent terms

of 30 days’ probation for each offense, plus fines and costs. Appellant timely

filed a notice of appeal on July 19, 2016. The next day, the court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b); Appellant timely complied on August 3,

2016.

        Appellant raises one issue for our review:

           WHETHER THE TRIAL COURT ERRED IN FAILING TO
           SUPPRESS EVIDENCE OBTAINED AS THE RESULT OF AN
           ILLEGAL DETENTION UNSUPPORTED BY PROBABLE CAUSE,
           REASONABLE SUSPICION, OR ANY ARTICULABLE BASIS IN
           VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED
           STATES CONSTITUTION, AND ARTICLE 1, SECTION 8 OF
           THE PENNSYLVANIA CONSTITUTION?

(Appellant’s Brief at 5).4

____________________________________________


4
  The Commonwealth claims Appellant waived his issue on appeal due to
vagueness in Appellant’s Rule 1925(b) statement. The court had no doubt
about what Appellant sought to challenge on appeal and adequately
addressed Appellant’s issue in its opinion. Thus, we decline to find waiver.
See Commonwealth v. Laboy, 594 Pa. 411, 936 A.2d 1058 (2007)
(holding appellate court should conduct merits review of claim on appeal
notwithstanding vagueness in Rule 1925(b) statement, where case was
(Footnote Continued Next Page)


                                           -3-
J-S19010-17


      “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.”             Commonwealth v. Williams, 941

A.2d 14, 26 (Pa.Super. 2008) (en banc) (quoting Commonwealth v.

Jones, 874 A.2d 108, 115 (Pa.Super. 2005)).

          [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.

Williams, supra at 27 (quoting Jones, supra).

      Appellant argues Officer Zehring’s “second round” of questioning Mr.

Piper constituted an investigative detention or the functional equivalent of an

arrest, because no reasonable person would have believed he was free to

leave the scene.       Appellant asserts Officer Zehring lacked any reasonable

articulable basis to conclude illegal activity had occurred or was occurring at

the time he re-engaged Mr. Piper. Appellant maintains Officer Zehring did

not smell alcohol emanating from Mr. Piper’s vehicle or see any illegal drugs

or paraphernalia in Mr. Piper’s vehicle. Appellant highlights that neither he

nor Mr. Piper acted overly nervous. Appellant does not dispute the validity
                       _______________________
(Footnote Continued)

relatively straightforward and trial court readily understood and addressed
claim in substantial detail in its opinion).



                                            -4-
J-S19010-17


of the initial traffic stop, due to Mr. Piper’s violations of the Motor Vehicle

Code. Appellant suggests the officer’s suspicions that Mr. Piper might have

been impaired were dispelled once the portable breath test confirmed Mr.

Piper’s blood alcohol level was zero. Given these circumstances, Appellant

insists Officer Zehring lacked reasonable suspicion for a second investigative

detention of Mr. Piper. Appellant submits Mr. Piper’s consent to search the

vehicle was involuntary, because it was tainted by the second and illegal

investigative detention. Appellant claims Mr. Piper consented to the search

only moments after the officer had re-initiated questioning and there were

no intervening circumstances to diminish the coercive atmosphere of the

situation.    Appellant posits insufficient attenuation between the illegal

detention and Mr. Piper’s consent to purge the taint of the officer’s unlawful

conduct.     Appellant concludes all evidence discovered was fruit of the

unlawful illegal detention of Mr. Piper, the trial court erred in denying

Appellant’s motion to suppress, and this Court must reverse. We disagree.

      Preliminarily:

           Generally, to have standing to pursue a suppression
           motion under Pa.R.Crim.P. 581, the defendant’s own
           constitutional rights must have been infringed. However,
           it is well settled that a defendant charged with a
           possessory offense in this Commonwealth has “automatic
           standing” because the charge itself alleges an interest
           sufficient to support a claim under Article I, § 8. This rule
           entitles a defendant to a review of the merits of his
           suppression motion without a preliminary showing of
           ownership or possession in the premises or items seized….
           In addition to standing, though, a defendant must show
           that he had a privacy interest in the place invaded or thing

                                       -5-
J-S19010-17


           seized that society is prepared to recognize as reasonable.

           While cursorily similar, standing and privacy interest are
           different concepts serving different functions. Standing is
           a legal interest that empowers a defendant to assert a
           constitutional violation and thus seek to exclude or
           suppress the government’s evidence pursuant to the
           exclusionary rules under the Fourth Amendment of the
           United States Constitution or Article 1, Section 8 of the
           Pennsylvania Constitution.      It ensures a defendant is
           asserting a constitutional right of his own. The expectation
           of privacy is an inquiry into the validity of the search or
           seizure itself; if the defendant has no protected privacy
           interest, neither the Fourth Amendment nor Article I, § 8 is
           implicated.    In essence, while a defendant’s standing
           dictates when a claim under Article I, § 8 may be brought,
           his privacy interest controls whether the claim will
           succeed—once a defendant has shown standing, he must,
           in short, having brought his claim, demonstrate its merits
           by a showing of his reasonable and legitimate expectation
           of privacy in the premises.

Commonwealth v. Enimpah, 630 Pa. 357, 363-64, 106 A.3d 695, 698-99

(2014) (internal citations and quotation marks omitted).             See also

Commonwealth v. Hawkins, 553 Pa. 76, 718 A.2d 265 (1998) (explaining

defendants charged with possessory offenses have “automatic standing” to

bring suppression motion before court; to prevail on suppression motion,

however, defendant must also have personal privacy interest in area

searched or effects seized; Pennsylvania courts have repeatedly refused to

recognize vicarious assertions of constitutional rights).

      In    suppression    cases,   “the   Commonwealth     must    prove   the

constitutional rights of the accused were not violated by the search.”

Enimpah, supra at 368, 106 A.3d at 701.          Nevertheless, if the evidence


                                      -6-
J-S19010-17


shows the defendant lacked a reasonable expectation of privacy in the area

searched, then the prosecution has met its burden and need not go further.

Id. In that scenario, “[t]he lawfulness of the detention becomes irrelevant,

as constitutional error cannot inure to the benefit of the expectation-less

accused. To overcome that result, the accused has the burden of showing

such an expectation did exist. If the accused does so, the search is again at

issue, and the prosecution must prove its constitutionality.” Id. Therefore:

           [I]n analyzing the merits of a suppression motion, the trial
           court may, indeed, treat the defendant’s privacy interest
           as a “threshold” or “preliminary” matter. That is to say, if
           the evidence shows there was no privacy interest, the
           Commonwealth need prove no more; in terms of the
           court’s review, it need go no further if it finds the
           defendant has not proven a reasonable expectation of
           privacy. However, as it relates to the parties’ presentation
           of evidence, our cases and the Rules of Criminal Procedure
           make clear that the Commonwealth has the burden of
           production, to give the court evidence allowing that
           conclusion. Once it places the issue before the court, as a
           basis for denying suppression, the defendant may prove
           the contrary. If that proof is found to meet defendant’s
           burden, then the search itself may be examined with the
           burden on the prosecution to show it was not
           unconstitutional.

Id. at 369, 106 A.3d at 701-02 (internal footnote omitted).

      “An expectation of privacy will be found to exist when the individual

exhibits an actual or subjective expectation of privacy and that expectation

is   one    that   society   is   prepared   to   recognize   as   reasonable.”

Commonwealth v. Viall, 890 A.2d 419, 422 (Pa.Super. 2005).                  “In

determining whether a person’s expectation of privacy is legitimate or


                                      -7-
J-S19010-17


reasonable, the totality of the circumstances must be considered and the

determination will ultimately rest upon a balancing of the societal interests

involved.” Id. (holding appellant, who was backseat passenger in another’s

vehicle at time of stop, lacked reasonable expectation of privacy in backseat

area of car to enable him to challenge validity of driver’s consent to search

that area; it would be unreasonable for appellant to have expected to

maintain privacy interest in objects which were placed inside car and not

shielded from view of others occupying same small space; appellant, as co-

occupant of vehicle, assumed risk that driver would permit common areas of

car to be searched; where joint access or control exists, there can be no

reasonable or legitimate expectation of privacy).

      Instantly, the Commonwealth charged Appellant with the possessory

offenses of possession of a small amount of marijuana and possession of

drug paraphernalia.   Thus, Appellant had “automatic standing” to bring a

suppression motion before the court. Enimpah, supra; Hawkins, supra.

Nevertheless, the Commonwealth presented evidence at the suppression

hearing that Appellant was a backseat passenger in Mr. Piper’s vehicle at the

time of the events at issue.   After Mr. Piper consented to a search of the

vehicle, police found a digital scale under the front seat, loose marijuana,

leaves and seeds on the back floor mat, and a “roach” on the center console.

Appellant offered no testimony or evidence at the suppression hearing to

demonstrate that he had a reasonable expectation of privacy in these


                                    -8-
J-S19010-17


common areas. See Enimpah, supra; Viall, supra. In the absence of a

reasonable expectation of privacy, Appellant’s suppression claims fail. See

Enimpah, supra.          Significantly, Appellant cannot vicariously assert Mr.

Piper’s constitutional rights to obtain relief.5   See Hawkins, supra.     The

record supports the court’s decision to deny Appellant’s motion to suppress.

See Williams, supra. Accordingly, we affirm.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2017




____________________________________________


5
  Appellant makes no argument that the search incident to arrest, which
revealed a marijuana blunt in Appellant’s shoe, was independently unlawful.
Rather, Appellant attempts to challenge the validity of Mr. Piper’s consent to
search the vehicle, claiming all evidence subsequently obtained was fruit of
the poisonous tree. Because Appellant cannot challenge Mr. Piper’s consent
to search the vehicle, any attack on the drugs subsequently found in
Appellant’s shoe incident to his arrest necessarily fails.



                                           -9-
