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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
ALONZO KEMP,                            :          No. 775 WDA 2012
                                        :
                        Appellant       :


          Appeal from the Judgment of Sentence, March 12, 2012,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0000453-2010


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED DECEMBER 03, 2014

      Appellant appeals from the judgment of sentence entered March 12,

2012. Finding no error, we affirm.

      The trial court accurately related the factual background:

                    On October 23, 2009, the Defendant was
            pulled over in the Garfield section of the City of
            Pittsburgh for traffic violations, including having
            tinted windows and brake lights that were not
            working. (T.R. 11/29/11, pp. 70, 73, 74). When
            officers asked the Defendant to step out of his
            vehicle, he did so, telling officers that he just had
            “a little bag of weed” on his person. (T.R. 11/29/11,
            p. 80). However, when he was searched by police,
            they discovered cocaine, marijuana and heroin, with
            a total estimated value of $1000, along with $334 in
            cash and two (2) cell phones. (T.R. 11/29/11, pp.
            81-82, 86-87, 93).

Trial court opinion, 7/3/14 at 1-2.




* Retired Senior Judge assigned to the Superior Court.
J. S61001/14


      While the factual background is straightforward, the procedural history

is somewhat complex due to the involvement of multiple counsel on behalf

of appellant and appellant’s additional pro se filings.      We will simplify the

history noting only those matters germane to the issue on appeal.

      On June 23, 2010, counsel for appellant filed a motion to suppress. At

the ensuing hearing on August 16, 2010, testimony was taken from the

arresting officers.      It was appellant’s theory that the traffic stop was

pretextual   and   the    subsequent   pat-down   illegal.     At   the    hearing,

Officer Michael Saldutte testified that as appellant was exiting his vehicle, he

stated, “ah, man, all I have is a little bag of weed on me.”              (Notes of

testimony, 8/16/10 at 11.) On August 19, 2010, the trial court denied the

motion to suppress.       On December 28, 2010, appellant filed a notice of

appeal pro se.

      On September 27, 2011, appellant filed a pro se “Pretrial Writ of

Habeas Corpus,” in which he asserted that the police falsified the “allegation

of probable cause” when they stated in the criminal complaint that as

appellant was exiting his vehicle, he stated, “ah, man, all I have is a little

bag of weed on me.” Appellant concluded by requesting that all charges be

dismissed. On October 17, 2011, appellant filed his second notice of appeal

pro se. On November 22, 2011, the trial court denied appellant’s Pretrial

Writ of Habeas Corpus.




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        On November 30, 2011, a jury convicted appellant of two counts of

possession of a controlled substance with intent to deliver and three counts

of simple possession.1 On March 12, 2012, the court sentenced appellant to

an aggregate term of three to six years’ imprisonment followed by

seven years’ probation.       Numerous parties filed post-sentence motions

including pro se motions by appellant, the Public Defender, and private

counsel, Mark Rubenstein, Esq. On March 30, 2012, appellant filed a third

notice of appeal pro se, purportedly from the November 22, 2011 order

denying his Pretrial Writ of Habeas Corpus, as made final by the March 12,

2012 judgment of sentence. On April 25, 2012, the parties appeared for a

hearing on post-trial motions. Appellant stated that he wanted to proceed

pro se on post-trial and on appeal.        Thereafter, a Grazier colloquy was

conducted, and appellant was permitted to proceed pro se.2

        On appeal, appellant raises a single issue, asserting that the trial court

erred in failing to grant his Pretrial Writ of Habeas Corpus petition. Appellant

claims that the police lied when he supposedly admitted having “a little bag

of weed on me.”        Although he does not extend his argument further,

presumably appellant is also arguing that the drug evidence should have




1
    35 P.S. § 780-113(a)(30) and (16), respectively.
2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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been suppressed because without this admission, the police were without

probable cause to search him. We find no merit in appellant’s argument.3

      As a procedural matter, we note that appellant was represented by

counsel when he filed the Pretrial Writ of Habeas Corpus petition pro se.

We agree with the trial court that appellant was not entitled to hybrid

representation. Our supreme court has set a Commonwealth policy that no

defendant has a right to hybrid representation, either at trial or on appeal.

Commonwealth v. Padilla, 80 A.3d 1238, 1259 (Pa. 2013), cert. denied,

Padilla v. Pennsylvania, 134 S.Ct. 2725 (2014). Therefore, the trial court

properly could not grant relief on his Pretrial Writ of Habeas Corpus petition.




3
   We also disagree with the Commonwealth’s argument.                      The
Commonwealth asserts that appellant’s Pretrial Writ of Habeas Corpus
petition must be treated as a petition under the Post Conviction Relief Act
(“PCRA”). As such, the Commonwealth argues, appellant’s claim is not
cognizable under the PCRA. We acknowledge that there is abundant case
law directing that petitions for writ of habeas corpus be treated as petitions
under the PCRA. See Commonwealth v. Turner, 80 A.3d 754, 770 (Pa.
2013), cert. denied, Turner v. Pennsylvania, 134 S.Ct. 1771 (2014).
However, these cases pertain to instances where the petition for writ of
habeas corpus was filed post conviction (and usually following a direct
appeal) and was functioning as a vehicle for collateral review. As these
cases note, the PCRA subsumes the remedy of habeas corpus on collateral
review. 42 Pa.C.S.A. § 9541. Instantly, however, appellant’s Pretrial Writ of
Habeas Corpus petition was not attempting to seek collateral review but
rather pre-trial dismissal of charges. Thus, it should not be treated as a
PCRA petition. Moreover, our case law holds that the PCRA subsumes the
remedy of habeas corpus where the claims asserted are cognizable under
the PCRA. Turner, 80 A.3d at 770. If appellant’s argument on appeal is not
cognizable under the PCRA, as the Commonwealth contends, then
appellant’s Pretrial Writ of Habeas Corpus petition would not be subsumed
by the PCRA.


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      Moreover, we find that appellant’s issue, raised as per his Pretrial Writ

of Habeas Corpus petition, actually goes to the decision of the court below to

deny the motion to suppress.      In this regard, we note our standard of

review:

            Our standard of review in addressing a challenge to
            the denial of a suppression motion is limited to
            determining whether the suppression court’s factual
            findings are supported by the record and whether
            the legal conclusions drawn from those facts are
            correct.     Because the Commonwealth prevailed
            before the suppression court, we may consider only
            the evidence of the Commonwealth 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 suppression court’s
            factual findings are supported by the record, we are
            bound by these findings and may reverse only if the
            court’s legal conclusions are erroneous. Where, as
            here, the appeal of the determination of the
            suppression court turns on allegations of legal error,
            the suppression court’s legal conclusions are not
            binding on an appellate court, whose duty it is to
            determine if the suppression court properly applied
            the law to the facts. Thus, the conclusions of law of
            the courts below are subject to our plenary review.

Commonwealth v. Thompson, 93 A.3d 478, 484 (Pa.Super. 2014),

quoting Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super.

2012), appeal denied, 65 A.3d 413 (Pa. 2013).

      We are bound by the credibility determinations of the trial court where

they are supported by the record.      Commonwealth v. Floyd, 937 A.2d

494, 500 (Pa.Super. 2007).        Here, the court below made a specific

determination that Officer Saldutte was credible when he testified that



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appellant stated as he was getting out of his car, “ah, man, all I have is a

little bag of weed on me.” (Trial court opinion, 7/3/14 at 4.) Thus, we are

bound by this determination and therefore find that the court did not abuse

its discretion in denying suppression.

      Accordingly, having found no merit in the issue on appeal, we will

affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/3/2014




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