J-A20033-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
KASEIM WHITNEY,                            :
                                           :
                   Appellant               :          No. 2941 EDA 2013

     Appeal from the Judgment of Sentence entered on November 17, 2011
               in the Court of Common Pleas of Chester County,
                Criminal Division, No. CP-15-CR-0001355-2010

BEFORE: FORD ELLIOTT, P.J.E., MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED SEPTEMBER 05, 2014



imposed after he was convicted of possession with intent to deliver a



                                                                  1
                                                                      as well as

the summary offense of turning movements and required signals.2             We

affirm.

        The trial court extensively set forth the facts and procedural history




1
    See 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 6106(a)(1), 6110.2.
2
    See 75 Pa.C.S.A. § 3334(a).
J-A20033-14

underlying this appeal in its Opinion, which we adopt herein by reference.

See Trial Court Opinion, 8/31/10, at 1-24.3

        Following a hearing, the suppression court entered an Order denying

                                                                           -jury

trial, at the close of which the trial court found Whitney guilty of the above-

mentioned charges.

        Subsequently, on November 17, 2011, the trial court sentenced

Whitney, on his PWID conviction, to a statutory term of five years in prison,

and ordered him to pay the mandatory fine of $50,000. The court imposed

a consecutive sentence of nine months to three years in prison for the



and a concurrent sentence of eighteen months to three years for the

firearms not to be carried without a license conviction. The court imposed

no further penalty for W



        Following a procedural history that is not relevant to this appeal, on

August 6, 2013, Whitney filed a pro se Petition under the Post Conviction
                     4
                         seeking reinstatement of his direct appeal rights, nunc

pro tunc.     The PCRA court granted relief, permitting Whitney to file an

appeal nunc pro tunc, and appointing him counsel. Whitney timely filed a


3

car was approximately 64 pounds.
4
    See 42 Pa.C.S.A. §§ 9541-9546.

                                    -2-
J-A20033-14

Notice of Appeal.     In response, the trial court ordered Whitney to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and

Whitney timely filed a Concise Statement.

      On appeal, Whitney presents for our review the following issues

challenging the denial of his Motion to Suppress:

      I. Does [] Whitney, an unauthorized driver of a rental
         vehicle, have standing to challenge the search of the rental
         vehicle and his belongings contained therein?

     II.
           did the trial court err in failing to suppress physical


    III. Did the trial court err in failing to suppress physical

           told he was free to leave?

    IV. If this was an investigatory detention, did [the] trial court
        err in finding that there was reasonable and articulable
        suspicion to support such detention?

     V.
           voluntary or was it a product of an unjustified investigatory
           detention unsupported by reasonable suspicion that
           criminal activity was afoot?

Brief for Appellant at 4.

      In reviewing

Suppress, we are mindful that

      our role is to determine whether the record supports the

      inferences and legal conclusions drawn from those findings. In
      making this determination, we may consider only the evidence of
      the pros
      read in the context of the record as a whole, remains
      uncontradicted. When the evidence supports the factual findings


                                    -3-
J-A20033-14

      of the suppression court, we may reverse only if there is an error
      in the legal conclusions drawn from those factual findings. As a
      reviewing court, we are therefore not bound by the legal
      conclusions of the suppression court and must reverse that

      misapplied.

Commonwealth v. Page, 59 A.3d 1118, 1131 (Pa. Super. 2013) (brackets

and citation omitted).

      The Fourth Amendment to the United States Constitution and Article 1,

Section    8   of   the   Pennsylvania   Constitution   protect   individuals   from

unreasonable searches and seizures. U.S. Const. amend. IV; Pa. Const. art.

1, § 8.        Generally, law enforcement must obtain a warrant prior to

conducting a search; however, there are certain exceptions to the warrant

requirement. Commonwealth v. Lagenella, 83 A.3d 94, 102 (Pa. 2013).

One such exception, implicated in the instant case, is a consensual search.

Commonwealth v. Caban, 60 A.3d 120, 127 (Pa. Super. 2012).

      [T]he central inquiries in consensual search cases entail
      assessment of the constitutional validity of the citizen/police
      encounter giving rise to the consent, and the voluntariness of
      the consent given. To establish a valid consensual search, the
      Commonwealth must first prove that the individual consented
      during a legal police interaction.      Where the underlying
      encounter is lawful, the voluntariness of the consent becomes
      the exclusive focus.

Id. (citations omitted).

      Regarding

has standing to challenge the legality of the traffic stop and search of the

rental v




                                    -4-
J-A20033-14

      In his second issue, Whitney argues that the stop of his vehicle was

unlawful, and all of the evidence produced as a result of the stop must be

suppressed because the stop was pretextual in nature, as Trooper Justin



vehicle in order to conduct a warrantless search of its contents. See Brief

for Appellant at 24-29. Whitney points out that Trooper Hope conceded at

the suppression hearing that (1) the sole reason he had decided to pursue



followed Whitney for approximately thirteen miles to see if he would commit

                                                         which would provide

Trooper Hope grounds to stop the vehicle and investigate whether Whitney

was involved in criminal activity. See id. at 24-25 (citing N.T., 6/22/10, at



because t




merely a pretext for some other investigation does not automatically require

the suppression of evidence found after the traffic stop.     Whren v. U.S.,

517 U.S. 806, 812-13 (1996). In Whren, the United States Supreme Court

established a bright-line rule that any technical violation of a traffic code

legitimizes a stop, even if the stop is merely a pretext for an investigation of

some other crime. Id.; see also Arkansas v. Sullivan, 532 U.S. 769, 772

(2001) (holding that a traffic violation arrest will not be rendered invalid by

                                  -5-
J-A20033-14

the fact that it was a mere pretext for a narcotics search); U.S. v.

Robinson, 414 U.S. 218, 221 n.1 (1973).        This is true even if, as in the

instant case, the Vehicle Code violation witnessed is a minor offense.

Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008) (stating that



questioning motorists when they witness or suspect a violation of traffic

                                                      Whren Court explained



probable-                                       Whren, 517 U.S. at 813; see

also Chase

reasonable suspicion of a Vehicle Code violation, a constitutional inquiry into



      Here, although Whitney strenuously challenges the pretextual nature

of the stop, he does not dispute that he violated section 3334(a) of the



signal. See Brief for Appellant at 25, 31. Moreover, Whitney concedes that

the case that he relies upon in support of his argument, U.S. v. Hernandez,

55 F.3d 443 (9th Cir. 1995), was effectively overruled by Whren, see Brief

for Appellant at 27. In any event, Hernandez is not binding precedent for

this Court. See Commonwealth v. Dunnavant, 63 A.3d 1252, 1255 n.2

(Pa. Super. 2013)                          hile decisions of the lower federal

courts have a persuasive authority, they are not binding on Pennsylvania




                                  -6-
J-A20033-14



the applicability of the holding in Whren by pointing to factual distinctions.

      Accordingly, although we withhold comment regarding our opinion as



vehicle for thirteen miles to observe a Vehicle Code violation, we must

conclude that the stop was legal.

      Next, we will simultan

and fifth issues.    Whitney argues that even if the stop of his vehicle was

legal, the physical evidence and his statements that were elicited as a result

of his detention were inadmissible and should have been suppressed as

being the product of an unreasonable search and seizure.         See Brief for

Appellant at 14, 29-50.      According to Whitney, the police interaction that

occurred after Trooper Hope had informed him that he was free to leave was

an unjustified inv

that was not supported by reasonable suspicion that Whitney was engaged

in criminal activity. Id. Whitney summarizes his allegations in support of

this challenge as follows:

      Having stopped [] Whitne
      license and determined that it was valid and there were no
      outstanding warrants for [] Whitney.      Upon learning that []
      Whitney was not an authorized driver of the car, the trooper
                                          d him he was free to leave
      but he could not drive the car or walk on the turnpike. []
      Whitney was given the choice of calling his girlfriend to pick him
      up there or allowing the trooper to drive him to the closest
      interchange[,] where she could meet him.            Essentially, []
      Whitney was not free to leave. Within seconds of informing him
      that he could leave, Trooper Hope, having been joined by two

                                    -7-
J-A20033-14

      more armed state troopers, began asking [] Whitney whether he
      had anything illegal in the car. Given all of these circumstances,
      [] Whitney did not believe he was free to leave and was the
      subject of an investigative detention without reasonable
      suspicion that he was involved in criminal activity.

Id. at 14; see also id.                                                  that he




and unrelenting[,] with [] Whitney responding to each question in the

                              y contends that his consent to the search was

invalid, as it was not voluntarily given and flowed from the illegal

investigative detention. Id. at 51.

      In its Opinion, the trial court set forth the applicable law and

                                          that (1) the police interaction, which

occurred after Whitney was told he was free to leave, constituted a mere

encounter, not an investigative detention; (2) even if the interaction did not

                                                                      s position



constituted   an   investigative   detention   supported   by   reasonable   and

articulable suspicion of criminal activity; and (3) the search of the vehicle

                             onsent to the search was voluntarily given. See

Trial Court Opinion, 8/31/10, at 35-57.        Our review reveals that the trial



                                                                  aining issues.

See id.

                                   -8-
J-A20033-14




Motion to Suppress.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/5/2014




                          -9-
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
Circulated 08/05/2014 10:19 AM
