J-S11015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

VALBERT GEORGE REID

                        Appellant                     No. 1391 MDA 2014


           Appeal from the Judgment of Sentence July 16, 2014
            In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0003038-2013


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                             FILED APRIL 08, 2015

     Appellant, Valbert George Reid, appeals from the judgment of

sentence entered July 16, 2014, by the Honorable David L. Ashworth, Court

of Common Pleas of Lancaster County.         We affirm Reid’s conviction, but

vacate his judgment of sentence and remand for resentencing.

     We take the underlying facts in this matter from the trial court’s

September 23, 2014 opinion.

            On April 10, 2013, State Police Trooper Justin Hope, who
     has been a Trooper for 12 years and has received specialized
     training in the area of highway drug interdiction, was patrolling
     the Pennsylvania Turnpike in Lancaster County. (Notes of
     Testimony (N.T.), Suppression, 4/9/14 at 5-8.) At about 1:39
     p.m., he initiated a traffic stop of [Reid’s] vehicle for traveling at
     a speed of 68 mph in a posted 40 mph construction zone on
     Interstate 76 in Brecknock Township, Lancaster County. ([Id].
     at 9, 20.)

          During the stop of [Reid’s] 2001 Dodge Caravan, Trooper
     Hope smelled a strong odor of raw marijuana coming from within
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      the vehicle. ([Id.] at 8, 16, 18.) He further observed that
      [Reid] possessed two cellular phones, and an air freshener
      hanging in the back seat area of the vehicle, and had a Bible on
      the dashboard. ([Id.] at 16.) A criminal history check revealed
      a prior possession with intent to deliver charge in 2005. ([Id.]
      at 19). Trooper Hope, therefore, requested to search [Reid’s]
      vehicle. ([Id.] at 22). [Reid] refused the request. ([Id.])

            In response to an earlier request for backup assistance and
      for the K-9 unit (N.T., Suppression, 4/9/14 at 20), Trooper Jason
      Laudermilch and his dog, Eva, arrived at the scene shortly after
      [Reid] refused to consent to a search of his vehicle. ([Id.] at
      22-23, 63.) The dog quickly alerted to the odor of narcotics
      while searching the area of the rear hatch of the vehicle. ([Id.]
      at 66). … The K-9 also alerted at the passenger side front
      window and, unprompted, jumped into the vehicle through the
      open window and immediately went to the area of the third row
      seat inside the vehicle. ([Id.] at 67.)

             [Reid’s] vehicle was then seized and Trooper Hope applied
      for a warrant to search the vehicle. ([Id.] at 24-25.) The
      search pursuant to that warrant yielded approximately six
      pounds of marijuana, located in the rear of the vehicle in a white
      plastic bag. ([Id.] at 25….) [Reid] was arrested by Trooper
      Hope and subsequently charged with the crime of possession
      with intent to deliver a controlled substance.

            Following the search of the vehicle and his arrest, [Reid]
      was read his [Miranda] rights at the State Police Barracks by
      Corporal Keye Wysocki, at which time he waived those rights,
      after consulting with his attorney, and gave incriminating
      statements regarding the seized marijuana. (N.T., Suppression,
      4/16/14 at 7-12….) Specifically, [Reid] related that he was
      transporting the marijuana from Philadelphia to a subject in
      York, Pennsylvania. ([Id.] at 16.)

Trial Court Opinion, 9/23/14 at 3-5 (footnotes omitted).

      Prior to trial, Reid filed a suppression motion, which the trial court

denied following a hearing. See Order, 4/16/14. The trial court also denied

Reid’s motion for reconsideration.   Following a bench trial, the trial court

convicted Reid of possession with intent to deliver marijuana. The trial court


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sentenced Reid to the mandatory minimum sentence of one to three years’

incarceration pursuant to 18 Pa.C.S.A. § 7508. This timely appeal followed.

      Reid raises the following issues for our review.

      1. Did the trial court err in denying the Motion to Suppress the
         evidence obtained during a search of Mr. Reid’s vehicle,
         where Trooper Hope did not have probable cause to stop Mr.
         Reid’s vehicle for exceeding the speed limit in an active work
         zone?

      2. Was the application of 18 Pa.C.S. §7508 in the instant case
         unconstitutional, pursuant to Alleyne v. United States, 133
         S.Ct. 2151 (2013) and Commonwealth v. Newman, 99 A.3d
         86 (Pa. Super. 2014) (en banc)?

Appellant’s Brief at 5.

      Our standard when reviewing a trial court’s denial of a motion to

suppress evidence is well-settled.

      [W]e are limited to determining whether the factual findings are
      supported by the record and whether the legal conclusions
      drawn from those facts are correct. We may consider the
      evidence of the witnesses offered by the prosecution, as verdict
      winner, and only so much of the defense evidence that remains
      uncontradicted when read in the context of the record as a
      whole.

Commonwealth v. McAliley, 919 A.2d 272, 275-276 (Pa. Super. 2007)

(citation omitted). “Moreover, if the evidence supports the factual findings

of the suppression court, this Court will reverse only if there is an error in

the legal conclusions drawn from those findings.” Commonwealth v.

Powell, 994 A.2d 1096, 1101 (Pa. Super. 2010).




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     The quantum of proof necessary to effectuate a vehicle stop on

suspicion of a violation of the motor vehicle code is governed by 75

Pa.C.S.A. § 6308(b), which states:

     (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.A. § 6308(b). Traffic stops based upon suspicion of a violation of

the motor vehicle code under section 6308(b) “must serve a stated

investigatory purpose.”   Commonwealth v. Feczko, 10 A.2d 1285, 1291

(2010). “Mere reasonable suspicion will not justify a vehicle stop when the

driver’s detention cannot serve an investigatory purpose relevant to the

suspected violation. In such an instance, ‘it is encumbent [sic] upon the

officer to articulate specific facts possessed by him, at the time of the

questioned stop, which would provide probable cause to believe that the

vehicle or the driver was in violation of some provision of the Code.’” Id.

(emphasis omitted) (citation omitted).

     Reid argues that Trooper Hope lacked probable cause to believe that

he exceeded the speed limit in an active work zone in violation of 75 Pa.C.S.

§ 3365, Special speed limitations.         Section 3365(c.1), Active work

zones, states that:



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      When passing through an active work zone, no person shall drive
      a vehicle at a speed greater than the posted limit. An official
      traffic-control device shall indicate the beginning and end of each
      active work zone to traffic approaching in each direction.

75 Pa.C.S. § 3365(c.1). “Active work zone” is defined by 75 Pa.C.S.A. § 102

as “[t]he portion of a work zone where construction, maintenance or utility

workers are located on the roadway, berm or shoulder.”

      Reid is correct that a vehicular stop based solely upon suspicion of

violating section 3365 requires probable cause:

      [A] vehicle stop based solely on offenses not ‘investigatable’
      cannot be justified by a mere reasonable suspicion, because the
      purposes of a Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
      L.Ed.2d 889 (1968)] stop do not exist—maintaining the status
      quo while investigating is inapplicable where there is nothing
      further to investigate. An officer must have probable cause to
      make a constitutional vehicle stop for such offenses.

Commonwealth v. Busser, 56 A.3d 419, 423 (Pa. Super. 2012) (footnote

and citation omitted).

      It is undisputed that Trooper Hope clocked Reid driving 68 mph in a 40

mph work zone prior to the vehicular stop. Reid argues that the work zone

was not “active” at the time of the stop because there were not any workers

in the posted 40 mph construction zone through which he was speeding. We

find this interpretation to be too narrow.   Trooper Hope testified that the

speed limit reduction towards the active work zone gradually decreased from

65 mph, to 55 mph, and finally to 40 mph once a driver entered the active

work zone. See N.T., Suppression Hearing, 4/9/15 at 10. He also testified

that although there were no workers between the mileposts were he stopped



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Reid’s vehicle, there were workers on the road further west of that location.

See id. at 38.

      Based upon the posted 40 mph speed limit, and the proximity to active

workers in the construction zone, we agree that Reid was driving in an active

work zone as that term is defined under 75 Pa.C.S.A. § 102. Officer Hope

thus had probable cause to believe that Reid was driving in excess of the

posted speed limit in violation of section 3365(c.1).        As such, Reid’s

challenge to the court’s denial of his suppression motion is without merit.

      Lastly, Reid argues that the trial court impermissibly sentenced him to

the mandatory minimum sentence pursuant to 18 Pa.C.S.A. § 7508. As the

parties and trial court now recognize, this Court has recently held that

section 7508 is facially invalid pursuant to the Supreme Court of the United

States’ decision in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151,

186 L.Ed.2d 314 (2013).      See Commonwealth v. Fennell, 105 A.3d 13

(Pa. Super. 2014).      Furthermore, this issue cannot be waived.         See

Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc)

(holding that violations of Alleyne could not be waived).        We therefore

vacate Reid’s judgment of sentence and remand for re-sentencing without

application of the mandatory minimum.

      Conviction affirmed.   Judgment of sentence vacated. Case remanded

for   re-sentencing   consistent   with   this   memorandum.       Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2015




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