J. A32006/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
DENNIS URGENT,                             :
                                           :
                         Appellant         :     No. 2829 EDA 2015

            Appeal from the Judgment of Sentence August 27, 2015
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0005396-2014


BEFORE: DUBOW, RANSOM AND PLATT, JJ.*

MEMORANDUM BY DUBOW, J.:                          FILED JANUARY 24, 2017

        Appellant, Dennis Urgent, appeals from the August 27, 2015 Judgment

of Sentence entered by the Lehigh County Court of Common Pleas after a

jury trial. Appellant challenges the denial of his suppression motion and the

trial court’s refusal to give a jury instruction on missing video footage of his

traffic stop. After careful review, we affirm.

        The trial court summarized the facts underlying the instant case as

follows:

        [O]n June 1, 2014, at approximately 10:50 PM, Trooper Ron
        Mercatili of the Pennsylvania State Police, Fogelsville Barracks,
        was patrolling in a marked police cruiser and in full uniform
        westbound on Interstate I-78, Allentown, Lehigh County,
        Pennsylvania, when he observed a silver Honda Accord in front


*
    Retired Senior Judge Assigned to the Superior Court.
J. A32006/16


     of him appearing to be traveling at a high rate of speed.
     Trooper Mercatili followed behind the silver Honda Accord for a
     period of one (1) mile and clocked the vehicle's speed during this
     time frame. He determined that the vehicle was traveling at 70
     mph in a posted 55 mph zone. Consequently, Trooper Mercatili
     effectuated a traffic stop, utilizing lights and siren, in the area of
     mile marker 53 in Upper Macungie Township. Trooper Mercatili
     approached the Honda Accord and made contact with the driver
     of the subject vehicle. The driver was identified as [Appellant].
     [Appellant] appeared extremely nervous during this initial
     contact, and would not make eye contact with Trooper Mercatili.
     In addition, [Appellant] was nervously shaking. In addition,
     Trooper Mercatili noticed the smell of air fresheners in the
     vehicle.    In his training and experience, Trooper Mercatili
     testified that air fresheners are utilized to mask the odor of
     drugs. Trooper Mercatili observed a can of Febreeze in the
     vehicle, along with several air freshener sticks, thereby arousing
     his suspicion.

     Trooper Mercatili ran a warrant check on [Appellant] through
     NCIC. It was learned that there was an active warrant for
     [Appellant’s] arrest arising out of Allegheny County, Maryland for
     Possession With Intent to Deliver Cocaine. Upon receiving this
     information, Trooper Mercatili handcuffed [Appellant] and placed
     him in investigative detention in the back seat of his police
     vehicle. In addition, Trooper Mercatili contacted dispatch in
     order to confirm that the warrant was outstanding and being
     pursued by Allegheny County.         While Trooper Mercatili was
     waiting for this confirmation, he asked [Appellant] if he would
     consent to a search of the vehicle. [Appellant] refused to
     consent.     Consequently, Trooper Mercatili contacted Upper
     Macungie's K-9 Unit so that an exterior K-9 sniff of the vehicle
     could be performed. While waiting for the K-9 Unit to respond,
     Trooper Mercatili learned that Allegheny County did not want to
     pursue extradition of [Appellant]. At this point, [Appellant] was
     removed from the police cruiser, but was not free to leave, as a
     K-9 Unit was en route. In addition, [Appellant’s] Pennsylvania
     Driver's License had expired on November 15, 2011, and he did
     not hold valid insurance on the vehicle. [Appellant] was formally
     issued a written citation for speeding at 11:38 PM.

     At 11:40 PM, Officer Ryan Rhoads of the Upper Macungie Police
     Department arrived on scene with his drug detection canine.
     After completing an exterior sniff of the vehicle, Officer Rhoads


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      advised Trooper Mercatili that the canine had displayed positive
      alert behavior, indicating a presence of drugs. A search of the
      subject vehicle was performed and yielded the following: a large
      plastic bag containing leafy green vegetable matter, that later
      lab[-]tested positive for a little less than a pound of hydroponic
      marijuana, was located in the trunk; a digital scale and black
      vaporizer; two (2) cellular phones; and several air fresheners.
      [Appellant] also possessed Eight Hundred thirty ($830.00)
      Dollars in United States currency. Based on Trooper Mercatili's
      training and experience, Trooper Mercatili testified that multiple
      cellular phones are frequently utilized in drug transactions, and
      digital scales are commonly used to weigh out the drugs for
      distribution. [Appellant] was transported to the Pennsylvania
      State Police Fogelsville Barracks at 12:13 AM.

Trial Court Opinion, filed 7/7/15, at 3-5 (footnotes omitted).

      Appellant was arrested and charged with one count each of Possession

with Intent to Deliver (“PWID”); Intentional Possession of a Controlled

Substance; Possession of Drug Paraphernalia; and Violating Maximum Speed

Limits.1 Appellant filed an Omnibus Pre-Trial Motion challenging, inter alia,

the admissibility of evidence recovered from his vehicle.        The trial court

denied the motion, and Appellant elected to proceed by way of a jury trial.

      During trial, Trooper Mercatili testified that the police cruiser he was

operating the night of Appellant’s arrest was equipped with a dashboard

camera recording device. However, Trooper Mercatili also testified that the

footage no longer existed as it had not been preserved.          At the close of

evidence, Appellant requested a jury instruction regarding the missing


1
  35 P.S. § 780-113(a)(30); 35 P.S. § 780-113(a)(16); 35 P.S. § 780-
113(a)(32); and 75 Pa.C.S. § 3362(a)(2) respectively.




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footage, which the trial court denied. Appellant did not object, either at the

charging conference when the request was denied or following the jury

charge. See N.T. 7/27/15, at 103-04; N.T. 7/28/15, at 54.

      On July 28, 2015, the jury found Appellant guilty of the three drug

related charges, and the trial court subsequently found Appellant guilty of

the speeding violation.    On August 27, 2015, the trial court sentenced

Appellant to an aggregate term of 18 to 48 months of imprisonment.

      Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      On appeal, Appellant raises two allegations of error.

      1. The trial court erred in denying [Appellant’s] Pre[-T]rial
      Suppression Motion. The trial court failed to properly conclude
      that the traffic stop had ended upon the issuance of the warning
      and that [Appellant] should have been free to leave the area
      where he had previously been stopped for allegedly speeding.

      2. The trial court erred in failing to provide the jury with an
      instruction on the Commonwealth[’]s failure to maintain and
      produce the dash camera video of this traffic stop. The Court
      was requested to provide the jury with an instruction that the
      Commonwealth’s failure to preserve and present that evidence
      [sic] could be used to conclude that the material contained on
      that video may be prejudicial to the Commonwealth’s case. The
      Court refused that instruction and as a result there is no
      deterrent whatever to failing to maintain these videos of such
      traffic stops.

Appellant’s Brief at 4.

                            Suppression Motion

      In his first issue, Appellant challenges the trial court’s denial of his

Motion to Suppress, averring that the police officer impermissibly prolonged


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the traffic stop in order to obtain the canine sniff of his car, thus rendering

the sniff and subsequent search illegal.2         See Appellant’s Brief at 10-14,

(citing, inter alia, Rodriguez v. United States, 135 S.Ct. 1609 (2015)).

        Our well-settled standard of review in an appeal from an order denying

a Motion to Suppress is as follows:

        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.

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

omitted).

        Under the Fourth Amendment to the United States Constitution, “the

use of a well-trained narcotics-detection dog . . . during a lawful traffic stop,

generally does not implicate legitimate privacy interests,” and therefore does

not require reasonable suspicion or probable cause.          Illinois v. Caballes,

125 S.Ct. 834, 838 (2005).           The “Fourth Amendment tolerates certain

unrelated investigations that [do] not lengthen the roadside detention.”

Rodriguez, supra at 1614 (citations omitted).             However, police officers

may not prolong the stop to conduct a canine search unless they have

2
    Appellant has not challenged the validity of the initial traffic stop.



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reasonable suspicion or probable cause to believe criminal activity is afoot.

Id.

      Under    the    Pennsylvania   Constitution,     however,     a   canine   sniff

constitutes a search that requires that an officer possess “reasonable

suspicion for believing that narcotics [will] be found[.]” Commonwealth v.

Rogers, 849 A.2d 1185, 1190 (Pa. 2004).            The reasonable suspicion that

justifies a canine sniff will, in many circumstances, also justify any alleged

prolongation of the traffic stop.    Our Supreme Court has summarized the

reasonable suspicion jurisprudence as follows:

      A police officer may detain an individual in order to conduct an
      investigation if that officer reasonably suspects that the
      individual is engaging in criminal conduct. This standard, less
      stringent than probable cause, is commonly known as
      reasonable suspicion. In order to determine whether the police
      officer had reasonable suspicion, the totality of the
      circumstances     must     be    considered.    In    making   this
      determination, we must give due weight to the specific
      reasonable inferences the police officer is entitled to draw from
      the facts in light of his experience. Also, the totality of the
      circumstances test does not limit our inquiry to an examination
      of only those facts that clearly indicate criminal conduct. Rather,
      even a combination of innocent facts, when taken together, may
      warrant further investigation by the police officer.

Id. at 1189 (citation and quotation marks omitted).

      As an initial matter, we disagree with Appellant’s underlying premise

that the officer impermissibly prolonged the traffic stop in order to conduct a

canine sniff. Because Appellant did not possess a valid driver’s license and

automobile insurance, at a minimum, the traffic stop remained ongoing until

Trooper   Mercatili   determined     what    to   do   with   the   vehicle.     See


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Commonwealth v. Lagenella, 83 A.3d 94, 101 (Pa. 2013) (noting that “an

officer who stops a vehicle operated by a person whose driving privilege

is, inter alia, suspended, is faced with two options: immobilize the vehicle in

place or, if it poses public safety concerns, have it towed and stored at an

impound      lot.”).        Moreover,     although   Appellant    was     stopped    for

approximately an hour, almost all of that time was spent waiting for

confirmation from Maryland on whether it wished to extradite Appellant.

Thus,    contrary      to   Appellant’s   contention,   the   traffic   stop   was   not

impermissibly prolonged.

        We also conclude that Appellant’s reliance on Rodriguez is misplaced.

In Rodriguez, the United States Supreme Court held that where police

officers lack reasonable suspicion of criminal activity, they may not

extend a traffic stop beyond its intended purpose in order to conduct a

canine sniff of the vehicle. Rodriguez, supra at 1616. The Supreme Court

then remanded for the District Court to determine if reasonable suspicion

justified detaining the driver beyond the purpose of the traffic stop. In the

instant case, unlike Rodriguez, our review of the suppression record shows

that Trooper Mercatili had reasonable suspicion that criminal activity was

afoot almost immediately after the traffic stop began.

        When Trooper Mercatili approached Appellant’s vehicle after stopping

it, he immediately noticed that Appellant was extremely nervous, to the

point that Appellant was unwilling to make eye contact and was physically



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shaking.     N.T., 6/8/15, at 23.    In his 4½ years of experience as a patrol

officer with the Pennsylvania State Police, Trooper Mercatili believed

Appellant was more nervous than a typical driver who has been pulled over

for   a    traffic   violation.    Id.   at   22-23.   Appellant   then   became

“confrontational” and “angry” when interacting with Trooper Mercatili. Id. at

23. In addition, Trooper Mercatili smelled the strong odor of air fresheners

emanating from the vehicle as he stood outside the driver’s side window.

Id. at 13. He observed a can of Febreze air freshener in the car, and an

unusually large number air freshener sticks in the vehicle’s air vents. Id. at

15.   Based on his experience, training, and education, Trooper Mercatili

suspected that the air fresheners were a “masking agent” used to cover up

the scent of drugs. Id. at 13, 15. Finally, upon running Appellant’s name

through NCIC, Trooper Mercatili learned that Appellant had an active warrant

for his arrest in Maryland for Possession with Intent to Deliver Cocaine. Id.

at 13.     These factors taken together supported the Officer’s reasonable

suspicion that criminal activity was afoot that warranted further investigation

with the assistance of the canine unit. We, therefore, conclude that the trial

court properly denied Appellant’s Motion to Suppress.

                                  Jury Instructions

      In his second issue, Appellant avers that, because the Commonwealth

failed to preserve the footage from Trooper Mercatili’s dashboard camera, “a

remedial [jury] instruction regarding destruction of evidence . . . is



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appropriate because of the prejudice caused to [Appellant], even though

there is no evidence of bad faith by [the Commonwealth].” Appellant’s Brief

at 18.

         We review a trial court’s refusal to give a requested jury instruction to

“determine      whether   the   record   supports   the   trial   court’s   decision.”

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013)

(quotation omitted). We are tasked with considering “whether the trial court

committed a clear abuse of discretion or an error of law which controlled the

outcome of the case.” Id. (quotation omitted). Before moving to the merits

of our review, however, we address the Commonwealth’s assertion that

Appellant failed to preserve this claim.

         As our Supreme Court has made clear, “[i]t is a bedrock appellate

principle that issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.” Commonwealth v. Sanchez, 82 A.3d

943, 978 (Pa. 2013) (citation and internal quotation marks omitted).               To

properly raise and preserve a challenge to the jury instructions at trial, “the

mere submission and subsequent denial of proposed points for charge that

are inconsistent with or omitted from the instructions actually given will not

suffice[.]”    Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa. 2005).

Instead,

         [t]he pertinent rules . . . require a specific objection to the
         charge or an exception to the trial court's ruling on a proposed
         point to preserve an issue involving a jury instruction. Although
         obligating counsel to take this additional step where a specific


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      point for charge has been rejected may appear counterintuitive,
      as the requested instruction can be viewed as alerting the trial
      court to a defendant's substantive legal position, it serves the
      salutary purpose of affording the court an opportunity to avoid
      or remediate potential error, thereby eliminating the need for
      appellate review of an otherwise correctable issue.

Id. at 224 (citation omitted).     See also Commonwealth v. Parker, 104

A.3d 17, 30 (Pa. Super. 2014) (holding that Appellant “waived his objection

to the jury instructions because he failed to object after the jury had been

charged.”); Commonwealth v. Baker, 963 A.2d 495, 505-07 (Pa. Super.

2008) (holding that defendant's mere request for jury charges, even when

"renewed" after jury was instructed, did not preserve his challenge to the

instruction for appeal).

      In the instant case, Appellant merely submitted a request for a

proposed jury instruction.     When the trial court denied the request, trial

counsel did not object, instead saying only “Thank you, Your Honor.” N.T.,

7/27/15, at 103-04.        Appellant also failed to object or comment on the

omission after the trial court finished charging the jury. N.T., 7/28/15, at

54.   We, therefore, conclude that Appellant’s second claim is waived and

decline to address the merits.3


3
  Moreover, Appellant has failed to explain what relevance the footage would
have had during his jury trial, and how the court’s decision to deny an
instruction regarding the failure to preserve evidence “controlled the
outcome of the case.” Sandusky, supra at 667. Appellant argues at
length about the video’s potential to “have shown whether [Appellant] was
nervous or refused to answer questions or whether the dog actually alerted
to the vehicle [during the sniff].” Appellant’s Brief at 17. While these issues



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     Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/24/2017




may have been relevant to the suppression court’s legal determinations
regarding the search and seizure of Appellant’s vehicle, we fail to see the
relevance to a jury tasked only with determining Appellant’s factual guilt or
innocence. Accordingly, the trial court did not abuse its discretion or commit
an error of law that controlled the outcome of the case. Therefore, even if
Appellant had properly preserved the issue, he would not be entitled to
relief.



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