J-S68045-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                  Appellee                  :
                                            :
                     v.                     :
                                            :
KEITH DAVID PETERKIN,                       :
                                            :
                  Appellant                 :     No. 485 MDA 2017

            Appeal from the Judgment of Sentence March 6, 2017
               in the Court of Common Pleas of Centre County
            Criminal Division, at No(s): CP-14-CR-0001358-2015

BEFORE:     LAZARUS, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED NOVEMBER 21, 2017

      Keith David Peterkin (Appellant) appeals from the judgment of sentence

of four and one-half to nine years of imprisonment following his nonjury

convictions for possession with intent to deliver a controlled substance,

possession of a small amount of marijuana, possession of a controlled

substance, and possession of drug paraphernalia.        Specifically, Appellant

challenges the denial of his pre-trial suppression motion. We affirm.

      On July 31, 2015, Troopers Aaron Tiracorda and Christopher Pifer were

on a midnight traffic detail with a police dog, K9 Officer Tom. At approximately

2:30 a.m., the troopers observed suspected illegal window tint on Appellant’s

vehicle, in violation of 75 Pa.C.S. § 4524. Trooper Tiracorda activated his

emergency lights and spotlight to conduct a traffic stop. Appellant did not




*Retired Senior Judge assigned to the Superior Court.
J-S68045-17


immediately stop; he continued to drive for over one minute before pulling

over.

         The troopers approached Appellant’s vehicle and questioned him about

his travels that early morning.     Appellant was sweating profusely, became

increasingly nervous throughout the interaction, and employed “stall tactics”

when answering the troopers’ questions: he was evasive, would not

immediately answer, and provided vague, uncertain answers. N.T., 1/8/2016,

at 19.

         Trooper Pifer conducted a check of the National Crime Information

Center (NCIC) database from the patrol vehicle while Trooper Tiracorda

remained with Appellant. At this time, Trooper Tiracorda detected the odor of

raw marijuana emanating from the interior of Appellant’s vehicle. Trooper

Tiracorda returned to the patrol vehicle and notified Trooper Pifer of the smell.

The troopers returned to Appellant’s vehicle, and Trooper Pifer also detected

the odor of marijuana.

         Trooper Pifer asked Appellant to exit the vehicle so that Trooper Pifer

could explain the warning for the window tint violation. Appellant hesitated

before reluctantly exiting the vehicle.      The troopers questioned Appellant

about the smell of marijuana coming from his vehicle.         Appellant initially

denied the presence of marijuana in the vehicle, but after several more

questions from the troopers, he acknowledged that there was a small amount




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of marijuana in the vehicle.      Appellant was patted down and placed in

handcuffs for officer safety.

      Trooper Tiracorda conducted a “pre-search” of the vehicle to ensure the

vehicle was safe for K9 Officer Tom.      Id. at 23.   During this pre-search,

Trooper Tiracorda recovered approximately $12,000 and a small amount of

marijuana from within the center console.        K9 Officer Tom searched the

vehicle; he alerted the troopers and “indicated on” the center console where

the marijuana was found and a birthday present bag located in the backseat.

Id. At 26. The bag was opened and found to contain approximately one pound

of cocaine. The window tint was tested with a tint meter, and the reading

indicated that only 22% of light could pass through the window.

      Appellant was arrested and charged with possessory offenses for the

drugs. Appellant filed a motion to suppress, in which he alleged that the initial

traffic stop was illegal, the search of the vehicle was illegal, and any

statements made during the stop were not rendered voluntarily, knowingly,

and intelligently, in violation of Miranda v. Arizona, 384 U.S. 436 (1966).

      After a hearing, his motion to suppress evidence was denied. The trial

court held that the troopers had reasonable suspicion to conduct the traffic

stop due to the window tint violation, and that the odor of marijuana and

Appellant’s admission to the presence of marijuana in the vehicle created




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probable cause for the troopers to search the vehicle. Trial Court Opinion,

2/19/2016, at 3-5.

      Appellant’s motion to suppress statements was granted in part and

denied in part. In addressing Appellant’s motion to suppress statements, the

trial court separated the interaction between Appellant and the troopers into

four periods:

      (1) the period from the start of the traffic stop until the initiation
      of the repetitive questioning of [Appellant] regarding marijuana in
      the vehicle (“How much do you have in the car? Did you smoke
      before you left?”); (2) the period from the start of the repetitive
      questioning until the officers notify [Appellant] that he is under
      arrest and give [Appellant] an incomplete Miranda warning; (3)
      the period between the arrest and incomplete Miranda warning
      and the second complete Miranda warning and; (4) the period
      after the complete Miranda warning.

Id. at 8. The trial court held that Appellant’s statements in segments (1) and

(4) were admissible, but those in segments (2) and (3) were not. Notably,

the admission to the presence of a small amount of marijuana occurred during

segment (2), and was deemed inadmissible.

      Thereafter, Appellant was convicted following a stipulated nonjury trial

and sentenced as indicated above. Appellant timely filed a notice of appeal.1

Appellant presents one question for this Court’s consideration: “Did the lower



1 Appellant complied with the trial court’s order to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court
responded with a brief statement indicating that it was relying upon its
February 19, 2016 opinion, wherein it addressed its reasons for denying
Appellant’s motion to suppress.


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court err in failing to suppress the results of the illegal search of [Appellant’s]

vehicle?” Appellant’s Brief at 5.

      We consider Appellant’s question mindful of the following.

      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
      ... 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 court[] below are
      subject to our plenary review.

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).

      On appeal, Appellant does not challenge the validity of the initial traffic

stop. Rather, he claims that the troopers lacked probable cause to search the

vehicle. Appellant’s Brief at 16-17. Specifically, Appellant argues that the

trial court could not use his admission of possessing marijuana to establish

probable cause because it found that admission to be the product of a

custodial interrogation without the procedural safeguards required by




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Miranda.    Appellant goes on to argue that without that admission, the

troopers lacked probable cause to search the vehicle.

      Because Appellant does not challenge the validity of the initial traffic

stop, we begin by addressing the search of Appellant’s vehicle. Our Supreme

Court has held the following with respect to warrantless searches of vehicles.

      [I]n this Commonwealth, the law governing warrantless searches
      of motor vehicles is coextensive with federal law under the Fourth
      Amendment. The prerequisite for a warrantless search of a motor
      vehicle is probable cause to search; no exigency beyond the
      inherent mobility of a motor vehicle is required. The consistent
      and firm requirement for probable cause is a strong and sufficient
      safeguard against illegal searches of motor vehicles, whose
      inherent mobility and the endless factual circumstances that such
      mobility engenders constitute a per se exigency allowing police
      officers to make the determination of probable cause in the first
      instance in the field.

Commonwealth v. Gary, 91 A.3d 102, 138 (Pa. 2014) (Opinion Announcing

the Judgment of the Court).

      The level of probable cause necessary for warrantless searches of
      automobiles is the same as that required to obtain a search
      warrant. The well-established standard for evaluating whether
      probable cause exists is the “totality of the circumstances” test.
      This test allows for a flexible, common-sense approach to all
      circumstances presented. Probable cause typically exists where
      the facts and circumstances within the officer’s knowledge are
      sufficient to warrant a person of reasonable caution in the belief
      that an offense has been or is being committed. The evidence
      required to establish probable cause for a warrantless search must
      be more than a mere suspicion or a good faith belief on the part
      of the police officer.




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Commonwealth v. Runyan, 160 A.3d 831, 837 (Pa. Super. 2017) (quoting

Commonwealth v. Lechner, 685 A.2d 1014, 1016 (Pa. Super. 1996)

(internal citations omitted)).

      Following Appellant’s suppression hearing, the trial court denied

Appellant’s motion to suppress evidence, holding that “[t]he odor of marijuana

and [Appellant’s] admission created probable cause such that the [t]roopers

could execute the search of the vehicle and the K9 search of the ‘birthday

bag[.’]” Trial Court Opinion, 2/19/2016, at 5.

      We agree with Appellant that because the admission was inadmissible,

the trial court could not utilize it as part of its analysis for determining whether

the troopers had probable cause to search the vehicle, and erred insofar as it

did. Nonetheless, we discern no abuse of discretion or error of law in the trial

court’s ultimate determination that the evidence seized from the vehicle

should not be suppressed.2

      Even without Appellant’s admission, the totality of the circumstances

demonstrates that the troopers still had probable cause to believe that an

offense had been committed, namely: (1) the illegally tinted windows; (2)

Appellant’s delayed response to the troopers initiating a traffic stop; (3)

Appellant’s evasiveness and stalling tactics when answering the troopers’




2 This Court may affirm the trial court’s decision on any valid basis.
Commonwealth v. Janda, 14 A.3d 147, 161 n.8 (Pa. Super. 2011).


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basic questions; (4) Appellant’s increased nervousness; (5) Appellant’s

profuse sweating; (6) the smell of marijuana emanating from Appellant’s

vehicle; and (7) Appellant’s hesitation to exit the vehicle to receive a warning.

These circumstances, viewed in the aggregate, would cause a reasonable

officer to believe that Appellant possessed contraband in the vehicle. See

Commonwealth v. Gelineau, 696 A.2d 188, 192-94 (Pa. Super. 1997)

(holding sufficient probable cause to search vehicle without a warrant where

officer smelled raw marijuana, but ultimately held search unreasonable in pre-

Gary     case   because    failed   to   establish   exigent    circumstances);

Commonwealth v. Stainbrook, 471 A.2d 1223, 1225 (Pa. Super. 1984)

(holding sufficient probable cause to search vehicle without a warrant where

defendant exhibited furtive behavior and the officer detected the odor of

burning marijuana).

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/21/2017




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