J-S06024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

KALEN DAVID BELL

                        Appellant                   No. 290 MDA 2015


         Appeal from the Judgment of Sentence January 16, 2015
            In the Court of Common Pleas of Luzerne County
           Criminal Division at No(s): CP-40-CR-0000352-2014


COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

KALEN DAVID BELL

                        Appellant                   No. 291 MDA 2015


         Appeal from the Judgment of Sentence January 16, 2015
            In the Court of Common Pleas of Luzerne County
           Criminal Division at No(s): CP-40-CR-0000360-2014


BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.:                       FILED FEBRUARY 09, 2016

     Appellant, Kalen David Bell, appeals from the January 16, 2015

aggregate judgment of sentence of 54 to 108 months’ imprisonment,

imposed after Appellant was found guilty of two counts of possession with

intent to deliver (PWID), and one count each of intentional possession of a


*Former Justice specially assigned to the Superior Court.
J-S06024-16


controlled substance, possession of drug paraphernalia, possession of a

small amount of marijuana, and resisting arrest.1 After careful review, we

affirm.

       The trial court made the following findings of fact concerning the issue

involved in this case.

              1.    Trooper Joseph Pericci, a ten[-]year veteran
              with the Pennsylvania State Police, was performing a
              saturation patrol[2] in Wilkes-Barre, Luzerne County,
              Pennsylvania on December 12, 2013 along with
              members of the Wilkes-Barre Police Department,
              Luzerne County District Attorney’s Office, FBI, United
              States Marshalls, and the Luzerne County Sheriff’s
              Department.

              2.    Trooper Pericci was partnered with Detective
              Charles Balogh of the Luzerne County District
              Attorney’s Office during the saturation patrol.

              3.   The saturation patrol was scheduled to be
              conducted between the hours of 10:00 p.m. and
              2:00 a.m.

              4.   Trooper Pericci was in full uniform, and Det.
              Balogh and he were driving in a fully marked
              Pennsylvania State Police vehicle.

              5.   Trooper Pericci noticed a green sedan with
              dark tinted windows abruptly cross two lanes of


____________________________________________
1
  35 P.S. § 780-113(a)(30), (a)(16), (a)(32), (a)(31), and 18 Pa.C.S.A.
§ 5104, respectively.
2
   Trooper Pericci described a saturation patrol as “a group of law
enforcement agencies … that collectively [get] together [and drive] through
Wilkes-Barre, [and] patrol[] the streets of Wilkes-Barre, looking for traffic
violations and criminal activity.” N.T., 7/1/14, at 6.



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          traffic without using a turn signal and come to a stop
          on South Franklin Street in Wilkes-Barre.

          6.     Trooper Pericci pulled alongside the vehicle and
          initiated a traffic stop for [a] violation of the Motor
          Vehicle Code.

          7.    The driver, [Appellant], exited the vehicle and
          began walking at a very fast pace on South Franklin
          Street.

          8.    When [Appellant] exited the vehicle, he left the
          front driver’s side door open.

          9.    Trooper Pericci detected a very strong odor of
          marijuana coming from the vehicle.

          10. Trooper Pericci called out to [Appellant] and
          directed him to stop.

          11. [Appellant] did not immediately stop but
          continued to walk in a direction away from the
          vehicle.

          12. Ultimately, [Appellant] stopped and returned
          to the vehicle when Trooper Pericci detected an order
          [sic] of marijuana emanating from [Appellant].

          13. [Appellant] was wearing a puffy white jacket,
          and Trooper Pericci observed a clear bag hanging out
          of the right front pocket of the jacket.
          Approximately one third (1/3) of the bag was
          hanging out of the pocket.

          14. Trooper Pericci observed what he believed to
          be bags of heroin inside the aforementioned clear
          bag.

          15. [Appellant]    was    arrested   and   taken   into
          custody.

          16. A search of [Appellant] incident to arrest
          revealed the presence of:
                 43 bags of heroin

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                     a clear plastic bag containing marijuana
                     a larger plastic bag containing marijuana
                     crack cocaine
                     3 cell phones
                     $1,108.00 in cash

            17.   [Appellant] had a suspended driver’s license.

            18. The testimony of the Commonwealth’s witness
            was credible.

Trial Court Opinion, 5/7/15, at 4-6.

      On March 19, 2014, the Commonwealth filed an information at docket

number CP-40-CR-352-2014, charging Appellant with one count each of

PWID, intentional possession of a controlled substance, possession of drug

paraphernalia, possession of a small amount of marijuana, and resisting

arrest. The Commonwealth filed a second information at docket number CP-

40-CR-360-2014 on March 17, 2014, charging Appellant with one count each

of PWID and possession of a small amount of marijuana. Appellant filed a

motion to suppress at docket number CP-40-CR-352-2014 on May 27, 2014,

and a motion to suppress at docket number CP-40-CR-360-2014 on June 16,

2014. The trial court held one suppression hearing for both motions on July

1, 2014. On September 10, 2014, the trial court denied both motions. On

October 30, 2014, the trial court held a consolidated bench trial, and

thereafter found Appellant guilty of all charges. The trial court imposed an

aggregate sentence of 54 to 108 months’ imprisonment on January 16,




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2015.3    Appellant did not file any post-sentence motions.     On February 4,

2015, Appellant filed timely notices of appeal.4

       On appeal, Appellant raises the following issue for our review.5

              I.     Whether the honorable trial court erred when it
                     concluded that [Trooper Pericci and Detective
                     Balogh] possessed the requisite reasonable
                     suspicion to conduct an investigative detention
                     of [Appellant?]

Appellant’s Brief at 4.

       Appellant’s sole argument on appeal is that the police lacked

reasonable suspicion to seize Appellant after he had stopped his car, exited

the vehicle, and began walking away.             Appellant’s Brief at 9.   The

Commonwealth counters that Appellant was constitutionally seized based in

part of Appellant’s violation of the Motor Vehicle Code.      Commonwealth’s

Brief at 6.


____________________________________________
3
   Specifically, at docket number CP-40-CR-352-2014, the trial court
sentenced Appellant to 30 to 60 months’ for PWID, 9 to 24 months’ for
resisting arrest, and no further penalty for the intentional possession and
drug paraphernalia charges. At docket number CP-40-CR-360-2014, the
trial court sentenced Appellant to 24 to 48 months for PWID and 15 to 30
days for possession of a small amount of marijuana. All sentences within
each docket number were to run concurrently, but the aggregate sentences
at each docket number were to run consecutively.
4
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
5
  Appellant has preserved a challenge to the sufficiency of the
Commonwealth’s evidence, but in his brief, Appellant withdraws this issue.
Appellant’s Brief at 4, 10.



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      We begin by noting our well-settled standard of review.

            We may consider only the Commonwealth’s evidence
            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 factual findings of the trial court, we are bound
            by those facts and may reverse only if the legal
            conclusions drawn therefrom are in error.          An
            appellate court, of course, is not bound by the
            suppression court’s conclusions of law.

Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted) .

                        The Fourth Amendment of the Federal
                  Constitution provides, “[t]he right of the
                  people to be secure in their persons, houses,
                  papers, and effects, against unreasonable
                  searches and seizures, shall not be violated ….”
                  U.S. Const. amend. IV. Likewise, Article I,
                  Section 8 of the Pennsylvania Constitution
                  states, “[t]he people shall be secure in their
                  persons, houses, papers and possessions from
                  unreasonable searches and seizures ….” Pa.
                  Const. Art. I, § 8.

            Commonwealth v. Carter, 105 A.3d 765, 768 (Pa.
            Super. 2014) (en banc), appeal denied, 117 A.3d
            295 (Pa. 2015).

Commonwealth v. Williams, 125 A.3d 425, 432 (Pa. Super. 2015). Our

cases have recognized three levels of police-citizen interactions.

            The first is a mere encounter, which requires no level
            of suspicion at all. Commonwealth v. Daniel, 999
            A.2d 590, 596 (Pa. Super. 2010). The second level
            is an investigative detention, which must be
            supported by reasonable suspicion. Id. at 596-597.
            Finally, the third level is an arrest or custodial
            detention, which must be supported by probable
            cause. Id. at 597.

Commonwealth v. Walls, 53 A.3d 889, 892-893 (Pa. Super. 2012).

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     In general, a traffic stop is constitutional where “[a] police officer …

has reasonable suspicion that a violation of the vehicle code has taken

place, for the purpose of obtaining necessary information to enforce the

provisions of the code.” Commonwealth v. Brown, 64 A.3d 1101, 1105

(Pa. Super. 2013) (emphasis in original); accord 75 Pa.C.S.A. § 6308(b).

However, our Supreme Court has held that where the Motor Vehicle Code

violation is not investigable, Section 6308(b) does not apply and probable

cause is required in order for the stop to be constitutional. Commonwealth

v. Chase, 960 A.2d 108, 115-116 (Pa. 2008). The parties appear to agree

that probable cause is the appropriate standard in this case.         Appellant’s

Brief at 8; Commonwealth’s Brief at 6.

           In order for a non-investigable traffic stop to be
           constitutional, [t]he officer must be able 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 some
           violation of some provision of the Vehicle Code.
           Probable cause does not require certainty, but rather
           exists when criminality is one reasonable inference,
           not necessarily even the most likely inference.

Commonwealth v. Enick, 70 A.3d 843, 846 n.3 (Pa. Super. 2013) (internal

quotation marks and citations omitted).       Section 3334(a) of the Motor

Vehicle Code provides that “no person shall … move from one traffic lane to

another … unless and until the movement can be made with reasonable

safety nor without giving an appropriate signal in the manner provided in

this section.” 75 Pa.C.S.A. § 3334(a).


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      In this case, Trooper Pericci testified that he was patrolling with

Detective Balogh on the night of December 12, 2013. N.T., 7/1/14, at 6.

Trooper Pericci was driving northbound on South Franklin Street in the

driving lane, and he observed another vehicle in the passing lane. Id. at 8.

This vehicle abruptly traveled across two lanes of traffic and parked on the

side of the street, without using a turn signal. Id. at 9. Appellant exited the

vehicle and “started walking north at a pretty fast pace on South Franklin

Street.” Id. at 9. Trooper Pericci backed up and parked his police car next

to the vehicle, and observed that the driver’s side door was left open. Id. at

10. Trooper Pericci then called to Appellant to stop. Id. at 11.

      After careful review of the certified record, we conclude Appellant is

not entitled to relief. As noted above, Trooper Pericci personally observed

Appellant’s vehicle drive across two lanes of traffic without signaling, in

violation of Section 3334(a) of the Motor Vehicle Code.     Id. at 9.   In our

view, this was sufficient evidence for Trooper Pericci to have probable cause

that he just witnessed a violation of the Motor Vehicle Code.       See, e.g.,

Commonwealth v. Feczko, 10 A.3d 1285, 1291-1292 (Pa. Super. 2010)

(en banc) (concluding probable cause existed where police officer’s vehicle

cam showed the defendant’s vehicle cross over the white fog line, in

violation of Section 3309(1) of the Motor Vehicle Code), appeal denied, 25

A.3d 327 (Pa. 2011).       Therefore, Trooper Pericci was constitutionally

permitted to stop Appellant, and as a part of the stop, summon Appellant


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back to his vehicle. As a result, Appellant’s Fourth Amendment rights were

not violated, and the trial court correctly denied Appellant’s motion to

suppress.6 See Gary, supra.

       Based on the foregoing, we conclude Appellant’s sole issue on appeal

is devoid of merit. Accordingly, the trial court’s January 16, 2015 judgment

of sentence is affirmed.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2016




____________________________________________
6
 To the extent our legal reasoning differs from the trial court’s, we note that
as an appellate court, we may affirm on any legal basis supported by the
certified record. Commonwealth v. Clemens, 66 A.3d 373, 381 n.6 (Pa.
Super. 2013) (citation omitted).



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