J-S05013-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 ORLANDO PORTFOLIO RODRIGUEZ               :
                                           :
                     Appellant             :    No. 1422 MDA 2019

       Appeal from the Judgment of Sentence Entered June 20, 2019
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0000153-2019


BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                              FILED APRIL 23, 2020

      Appellant, Orlando Portfolio Rodriguez, appeals from the judgment of

sentence entered June 20, 2019, in the Court of Common Pleas of Berks

County. We affirm.

      The trial court summarized the factual and procedural history of this

case as follows:

            On December 31, 2018, at approximately 1:28 in the
      morning, Trooper Dominick Marino (“Trooper Marino”), along with
      Trooper Robert Markowski, were on patrol and located at the
      intersection of Cabela Drive and State Route 61 north when
      Trooper Marino observed a vehicle in the left turn lane that was
      stopped over the stop line and into the crosswalk at a red light.
      After the light turned green and the vehicle turned, Trooper
      Marino initiated a traffic stop based on the failure of the vehicle to
      stop.

            Once the traffic stop was made, Trooper Marino approached
      the passenger side of the vehicle and detected a strong odor of
      marijuana along with a heavy odor of a masking agent. Trooper
      Marino also observed that the driver, identified as Appellant, was
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     not wearing his seatbelt. When asked whether there were any
     narcotics, money or firearms in the vehicle, Appellant responded
     that there were no firearms, but indicated that a backpack in the
     vehicle contained marijuana. Trooper Marino performed a search
     of Appellant’s vehicle and found two vacuum-sealed packages1
     containing 967 grams (2.13 pounds) of marijuana in an olive-
     green backpack and a blue backpack containing bundles of bulk
     U.S. currency. Appellant was detained and searched, upon which
     U.S. currency was found in the inside pocket of Appellant’s jacket.
     The total amount of U.S. currency seized both from Appellant’s
     person and from the blue backpack was $18,000.00. Appellant
     was also unable to produce a validly signed registration card or
     proof of financial responsibility.

           1The Stipulation of Facts presented Corporal Anthony
           C. Garipoli of the Pennsylvania State Police who, if
           called to testify as an expert in the field of narcotics,
           would testify that the amount of marijuana, and the
           manner in which the marijuana was packaged, is
           consistent with an intent of delivery.

                                        ***

           Appellant was arrested and charged at count one with
     Possession with Intent to Deliver a Controlled Substance2, at
     count two with Possession of a Controlled Substance3 and at count
     three with Possession of Drug Paraphernalia4. Appellant was also
     charged with summary offenses for Registration Card to be Signed
     and Exhibited on Demand5, Required Financial Responsibility6,
     Obedience to Traffic Signals7 and Restraint Systems8.               On
     February 4, 2019, Appellant, through counsel, filed an Omnibus
     Pretrial Motion seeking suppression of physical evidence through
     a challenge to the legality of the initial traffic stop. A hearing was
     held April 18, 2019[,] on Appellant’s pretrial motion, which was
     subsequently denied by this court on May 20, 2019.

           2 35 P.S. § 780-113(a)(30)
           3 35 P.S. § 780-113(a)(16)
           4 35 P.S. § 780-113(a)(32)
           5 75 Pa.C.S.A. § 1311(a)
           6 75 Pa.C.S.A. § 1786(f)
           7 75 Pa.C.S.A. § 3111(a)
           8 75 Pa.C.S.A. § 4581(a)(2)(ii)




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            A bench trial was held on June 19, 2019, at which the parties
     agreed to a stipulated bench trial and submitted a stipulation of
     facts and the Commonwealth entered its evidence into the record.
     The next day, June 20, 2019, after reviewing the record, the
     evidence therein and the stipulation of facts, we found Appellant
     guilty as to counts one, two and three, and as to the summary
     offense of Obedience to Traffic Signals. Thereafter, this court
     sentenced Appellant to an aggregate sentence of a minimum of
     one year and a maximum of five years of incarceration in a State
     Correctional Facility.    Appellant was RRRI eligible and his
     minimum was accordingly reduced to nine months.

            After sentencing, and in accordance with Appellant’s
     expressed wishes, we granted trial counsel’s motion to withdraw
     as counsel. On July 1, 2019, Appellant, through new counsel, filed
     Post Sentence Motions.9 An Amended Motion for Post Sentence
     Relief was filed on July 22, 2019, which we subsequently denied
     by order dated July 29, 2019.

           9 Appellant also filed pro se Post Sentence Motions
           that this court denied.

           On August 26, 2019, Appellant filed a timely Notice of
     Appeal. We issued an order on August 28, 2019 directing
     Appellant to file a Concise Statement of Matters Complained of on
     Appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed his Concise
     Statement on September 17, 2019.

Trial Court Opinion, 10/18/19, at 1-3.

     On appeal, Appellant presents the following issues in his statement of

questions involved:

     Whether the trial court erred in denying Appellant’s Motion to
     Suppress regarding the traffic stop of Appellant, where all
     evidence obtained was found as a result of the traffic stop.

     Whether the sentencing court gave sufficient weight to mitigating
     factors in imposing a sentence on Appellant.

     Whether the Commonwealth presented sufficient evidence during
     a stipulated bench trial to be establish the elements of Possession
     with Intent to Deliver.

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Appellant’s Brief at 9. Despite outlining the above issues, however, Appellant

explains in two footnotes that he is not pursuing issues two and three on

appeal. Specifically, he states: “After further review of the record, there is

no meritorious argument that can be made regarding the discretionary aspects

of sentencing, and so Appellant concedes on this issue.” He further states:

“Even though sufficiency of the evidence was raised in the Concise Statement,

after further reviewing the record, Appellant will concede sufficiency of the

evidence.” Appellant’s Brief at 9, n.1, n.2. Thus, we address Appellant’s sole

issue concerning the denial of his suppression motion.

      Appellant argues that the trial court erred in denying Appellant’s motion

to suppress where the traffic stop was improper and all evidence against

Appellant was found because of the stop. Appellant’s Brief at 17. Appellant

maintains that he was pulled over because he was “illegally stopped over the

stop line.” Id. at 19. Appellant asserts that because this was a traffic stop,

probable cause to initiate the traffic stop was required, as the stop would not

likely yield further evidence of the offense. Id. Appellant argues that the

evidence presented at trial was insufficient to establish that Trooper Marino

had probable cause to believe Appellant violated the motor vehicle code and

therefore did not lawfully stop Appellant. Id. Appellant maintains that

      Trooper Marino did not see Appellant drive over the indicated line
      or any conduct prior to being over the stop line. Further, because
      the inductive loop sensor or automatic timer controlling the traffic
      signal may not have been working properly when Appellant
      approached the light, the Motor Vehicle Code permits him to stop

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        at the line and pull forward until he can see oncoming traffic, as if
        he were at a stop sign.1

Id. 19-20.       Accordingly, Appellant argues that because Appellant was

unlawfully stopped, all evidence discovered in the vehicle should have been

suppressed as fruit of the poisonous tree. Id. at 20.

        With respect to an appeal from the denial of a motion to suppress, our

Supreme Court has stated the following:

               Our standard of review in addressing a challenge to a trial
        court’s denial of a suppression motion is whether the factual
        findings are supported by the record and whether the legal
        conclusions drawn from those facts are correct. When reviewing
        the ruling of a suppression court, we must consider only the
        evidence of the prosecution and so much of the evidence of the
        defense as remains uncontradicted when read in the context of
        the record. . . . Where the record supports the findings of the
        suppression court, we are bound by those facts and may reverse
        only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted). “It is within the suppression court’s sole province as factfinder to

pass on the credibility of witnesses and the weight to be given their



____________________________________________


1   Appellant asserts that

        Under 75 Pa.C.S. § 3112(c), if an inductive loop sensor or other
        automatic timer controlling a traffic signal is inoperable, then it is
        permissible to treat the faulty signal as a stop sign as provided in
        75 Pa.C.S.A. § 3323. Under 75 Pa.C.S.A. § 3323(b), a driver must
        stop at the indicated stop line, but is permitted to ‘pull forward
        from the stopped position to a point where the driver has a clear
        view of approaching traffic’.

Appellant’s Brief at 18.

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testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.

2006). Moreover, our scope of review from a suppression ruling is limited to

the evidentiary record that was created at the suppression hearing. In re

L.J., 79 A.3d 1073, 1087 (Pa. 2013).

      In determining what level of legal justification is necessary to support a

vehicle stop, this Court has explained:

      [W]hen considering whether reasonable suspicion or probable
      cause is required constitutionally to make a vehicle stop, the
      nature of the violation has to be considered. If it is not necessary
      to stop the vehicle to establish that a violation of the Vehicle Code
      has occurred, an officer must possess probable cause to stop the
      vehicle. Where a violation is suspected, but a stop is necessary
      to further investigate whether a violation has occurred, an officer
      need only possess reasonable suspicion to make the stop.
      Illustrative of these two standards are stops for speeding and DUI.
      If a vehicle is stopped for speeding, the officer must possess
      probable cause to stop the vehicle. This is so because when a
      vehicle is stopped, nothing more can be determined as to the
      speed of the vehicle when it was observed while traveling upon a
      highway. On the other hand, if an officer possesses sufficient
      knowledge based upon behavior suggestive of DUI, the officer
      may stop the vehicle upon reasonable suspicion of a Vehicle Code
      violation, since a stop would provide the officer the needed
      opportunity to investigate further if the driver was operating under
      the influence of alcohol or a controlled substance.

Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015).

      The Motor Vehicle Code provides the following, in relevant part,

regarding traffic-control signals:

      § 3111. Obedience to traffic-control devices

      (a) General rule.--Unless otherwise directed by a uniformed
      police officer or any appropriately attired person authorized to
      direct, control or regulate traffic, the driver of any vehicle shall
      obey the instructions of any applicable official traffic-control

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      device placed or held in accordance with the provisions of this title,
      subject to the privileges granted the driver of an emergency
      vehicle in this title.

75 Pa.C.S. § 3111(a).

      § 3112. Traffic-control signals

      (a) General rule.--Whenever traffic is controlled by traffic-
      control signals exhibiting different colored lights, or colored
      lighted arrows, successively one at a time or in combination, only
      the colors green, red and yellow shall be used, except for special
      pedestrian signals carrying a word legend, and the lights shall
      indicate and apply to drivers of vehicles and pedestrians as
      follows:

                                      ***

            (3) Steady red indication.—

                  (i) Vehicular traffic facing a steady red
                  signal alone shall stop at a clearly marked
                  stop line, or if none, before entering the
                  crosswalk on the near side of the
                  intersection, or if none, then before
                  entering the intersection and shall remain
                  standing until an indication to proceed is
                  shown      except     as     provided     in
                  subparagraph (ii).

                  (ii) Unless signing is in place prohibiting a
                  turn, vehicular traffic facing a steady red
                  signal may enter the intersection to turn
                  right, or to turn left from a one-way
                  highway onto a one-way highway after
                  stopping as required by subparagraph (i).
                  Such vehicular traffic shall yield the right-
                  of-way to pedestrians lawfully within an
                  adjacent crosswalk and to other traffic
                  lawfully using the intersection.

75 Pa.C.S. § 3112(3)(i) and (ii).       Moreover, the statute carves out an

exception for inoperable or malfunctioning signals as follows:

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       (c) Inoperable or malfunctioning signal.--If a traffic-control
       signal is out of operation or is not functioning properly, including,
       but not limited to, a signal that uses inductive loop sensors or
       other automated technology to detect the presence of vehicles
       that fails to detect a vehicle, vehicular traffic facing a:

              (1) Green or yellow signal may proceed with caution
              as indicated in subsection (a)(1) and (2).

              (2) Red or completely unlighted signal shall stop in the
              same manner as at a stop sign, and the right to
              proceed shall be subject to the rules applicable after
              making a stop at a stop sign as provided in section
              3323 (relating to stop signs and yield signs).2

75 Pa.C.S. § 3112(c).

       At the suppression hearing, Trooper Dominick Marino testified that he

stopped Appellant on the night at issue because Appellant’s vehicle was



____________________________________________


2 Section 3323(b) of the Motor Vehicle Code states the following for duties at
stop sign:

       every driver of a vehicle approaching a stop sign shall stop at a
       clearly marked stop line or, if no stop line is present, before
       entering a crosswalk on the near side of the intersection or, if no
       crosswalk is present, then at the point nearest the intersecting
       roadway where the driver has a clear view of approaching traffic
       on the intersecting roadway before entering. If, after stopping at
       a crosswalk or clearly marked stop line, a driver does not have a
       clear view of approaching traffic, the driver shall after yielding the
       right-of-way to any pedestrian in the crosswalk slowly pull forward
       from the stopped position to a point where the driver has a clear
       view of approaching traffic. The driver shall yield the right-of-way
       to any vehicle in the intersection or approaching on another
       roadway so closely as to constitute a hazard during the time when
       the driver is moving across or within the intersection or junction
       of roadways and enter the intersection when it is safe to do so.

75 Pa.C.S. § 3323(b).

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“illegally stopped.” N.T. (Suppression), 4/18/19, at 4. In explaining how it

was illegally stopped, Trooper Marino stated that the vehicle was at the

intersection in the turning lane, the traffic control device was red, and

Appellant’s vehicle was over the white “stop bar” and “into the crosswalk.”

Id. at 4-5. Trooper Marino also testified that the light subsequently turned

green, and Appellant proceeded through the intersection, prior to the Trooper

stopping Appellant’s vehicle. Id. at 7. Trooper Marino testified that Appellant

was charged with violation of Section 3111 for failing to stop behind the white

bar. Id.

      Furthermore, the trial court summarized the video recording played at

the hearing as follows:

            The [c]ourt: Before I ask the trooper to step down, I want
      to–since I watched a video, the record doesn’t say a thing about
      what’s going on here. So I want to state for the record what my
      observations were of the video.

             The video, it seemed to be, clearly showed that [Appellant’s]
      vehicle straddled that white stop bar, that his front wheels were
      in front of it and his back wheels were behind it, and while he was
      stopped there – and he stopped, he did not go through any red
      light. While he was stopped there, shortly before the light
      changed, a large tractor trailer made a left-hand turn out of the
      area that is the industrial and commercial complex on the east
      side of Route 61 and made a left-hand turn then, which would
      have passed in front of [Appellant’s] vehicle.

           That is what the [c]ourt observed.      Is there any dispute
      about–that that’s what this thing shows?

      [Appellant’s Counsel]: No, Your Honor.

      [Commonwealth Attorney]: No, Your Honor.


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     The [c]ourt: Very well.

N.T., Suppression, 4/18/19, at 10-11.

     In addressing this issue, the trial court provided the following analysis:

            Section 3112(3)(i) of the Vehicle Code provides that
     “[v]ehicular traffic facing a steady red signal alone shall stop at a
     clearly marked stop line, or if none, before entering the crosswalk
     on the near side of the intersection.” Furthermore, the statute
     carves out an exception that allowing that “[i]f a traffic-control
     signal is out of operation or is not functioning properly, including,
     but not limited to, a signal that uses inductive loop sensors or
     other automated technology to detect the presence of vehicles
     that fails to detect a vehicle, vehicular traffic facing a . . . [r]ed or
     completely unlighted signal shall stop in the same manner as at a
     stop sign, and the right to proceed shall be subject to the rules
     applicable after making a stop at a stop sign as provided in section
     3323 (relating to stop signs and yield signs).” 75 Pa.C.S.A.
     § 3112(c).

           Appellant attempts to find safe-harbor in the inoperable or
     malfunctioning signal exception under Section 3112. However,
     Appellant can provide no evidence from the record indicating that
     the signal at the intersection was inoperable or malfunctioning.
     While Appellant’s trial counsel cross-examined Trooper Marino at
     the suppression hearing as to the Trooper’s knowledge of the
     inductive loop sensor at the particular intersection of 61 north and
     Cabela Drive, Trooper Marino was unable to speak to the issue.

           The evidence presented by the Commonwealth at the
     suppression hearing, both visually and through testimony,
     indicated that Trooper Marino observed Appellant’s vehicle
     straddling the white stop bar line at an intersection with a traffic
     control device. Upon the traffic signal turning from red to green,
     Appellant made the left turn from the appropriate lane. The traffic
     signal appeared to be operating properly. Likewise, there was no
     indication that any inductive loop sensor was inoperable either.

            Despite Appellant’s arguments otherwise, Trooper Marino
     observed Appellant’s vehicle straddling the line and therefore in
     violation of Section 3112 of the Vehicle Code.        Appellant’s
     attempts to justify his violation of the code by alleging an
     inoperable inductive loop sensor are not supported by the

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       evidence of record. As such, we find that Appellant’s alleged error
       lacks merit and that this court’s denial of his suppression motion
       is supported by the record.

Trial Court Opinion, 10/18/19, at 4-5 (internal footnote omitted).

       We agree that the trial court’s denial of Appellant’s suppression motion

was supported by the record.3 The evidence of record supports the conclusion

that Trooper Marion had probable cause to stop Appellant for violation of

Section 3111(a) of the Motor Vehicle Code. As outlined above, Appellant’s

vehicle was over the white stop bar and into the crosswalk at an intersection

with a red signal. As the trial court described from the video, the car had

significantly exceeded the stop bar, having its front wheels in front of it and

its back wheels behind it. Moreover, there is no evidence of record that the

signal was inoperable or malfunctioning as to invoke the exception provided

for in 75 Pa.C.S. § 3112(c). In fact, the signal turned green after Trooper

Marino observed Appellant’s vehicle illegally parked and before Trooper Marino



____________________________________________


3 Although we agree with the trial court’s conclusion that Appellant violated
the Motor Vehicle Code and was lawfully stopped, we note that the trial court
applied the incorrect standard necessary to the stop. Herein, because it was
not necessary to stop the vehicle to establish that a violation of the Vehicle
Code had occurred, the officer was required to possess probable cause to stop
the vehicle. Salter, 121 A.3d at 993. The trial court incorrectly stated that
“police have the authority to stop a vehicle whenever he or she ‘has
reasonable suspicion that a violation of the Vehicle Code is occurring or has
occurred.’” Trial Court Opinion, 10/18/19, at 4. This error is not prejudicial,
and the ruling is otherwise consistent with law. Commonwealth v. Walsh,
125 A.3d 1248, 1253 (Pa. Super. 2015). (“We can affirm the court’s decision
if there is any basis to support it, even if we rely on different grounds to
affirm.”).

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was able to pull Appellant over for the motor vehicle code violation.       See

Salter, 121 A.3d at 994 (“Probable cause does not require certainty, but

rather exists when criminality is one reasonable inference, not necessarily

even the most likely inference.”). Thus, because Trooper Marino had probable

cause to stop Appellant for the Motor Vehicle Code violation, the stop was

lawful. Accordingly, the contraband subsequently discovered in Appellant’s

vehicle was lawfully obtained, and not “fruit of the poisonous tree” as asserted

by Appellant. As this Court has explained: “The ‘fruit of the poisonous tree’

doctrine excludes evidence obtained from, or acquired as a consequence of,

lawless official acts.   A fruit of the poisonous tree argument requires an

antecedent illegality.” Commonwealth v. Johnson, 68 A.3d 930, 946 (Pa.

Super. 2013) (internal citations and quotation marks omitted). Here, no such

antecedent illegality occurred.   Thus, the trial court did not err in denying

Appellant’s suppression motion. Appellant is entitled to no relief on this claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/23/2020




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