Com. v. Owens, L. ( 2017 )

J-A16009-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LAWRENCE MICHAEL OWENS,
Appellant No. 575 WDA 2015
Appeal from the Judgment of Sentence March 13, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000531-2014
BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 12, 2017
Lawrence Michael Owens (“Appellant”) appeals pro se from the
judgment of sentence imposed after a jury convicted him of drug charges.
Appellant argues that the state trooper lacked reasonable suspicion to detain
his vehicle for a dog sniff. After careful review, we affirm.
The suppression court1 made the following factual findings:
On the evening of August 19, 2013, at approximately 7:15
p.m., [Appellant] was driving north on Interstate 79 near the
Kearsarge exit. Suppression Hearing Transcript, June 2, 2014
(“N.T.”), pp. 6, 7. [Appellant] was driving a Chevrolet Impala
belonging to his nephew, Thomas W. Jones. [Appellant’s] six-
year old son was sitting in the front seat. N.T. p. 15.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The Honorable William R. Cunningham sat as both the suppression judge
and the trial judge.
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Pennsylvania State Trooper Gary Knott initiated a traffic stop
because all of the Impala’s windows, except the windshield, were
tinted beyond acceptable levels and an object was dangling from
beneath the vehicle. N.T. pp. 6, 7. Trooper Knott could not see
into the vehicle due to the tinting. N.T. p. 8.
Trooper Knott did a registration check and determined the
car was registered to Thomas W. Jones from Farrell,
Pennsylvania. N.T. p. 8. Farrell, Pennsylvania is known to
Trooper [Knott] as a high-crime area for drug offenses. In
particular, Farrell is known as a distribution center for heroin and
marijuana. N.T. pp. 9, 10.
[Appellant] pulled over onto the berm near the off-ramp to
the Millcreek Mall and lowered the driver’s side window. N.T. p.
62. For officer safety, Trooper Knott approached the vehicle
along the passenger side and asked [Appellant] three times to
lower the passenger side window. N.T. pp. 10, 11. [Appellant]
did not comply the first two times but lowered the passenger
side window after the third request. N.T. p. 12.
When [Appellant] lowered the window, Trooper Knott
detected an overwhelming odor of air freshener and observed
one air freshener hanging from the gear shift. N.T. p. 13. The
odor was indicative of more than one air freshener, but no
others were in plain view in the car. N.T. pp. 13, 14.
Trooper Knott spoke with [Appellant] through the
passenger side window. Trooper Knott told [Appellant] the
encounter was being recorded on the dash camera on the police
vehicle and the microphone on his uniform. N.T. pp. 52, 53.
Trooper Knott explained to [Appellant] he was being stopped
because of the tinted windows and because an object was
dangling beneath the car. N.T. p. 17. Trooper Knott requested
to see the vehicle registration and insurance documents. Id.
[Appellant] fumbled about in the car for the documents.
His movements were rapid and jittery. N.T. p. 18. [Appellant]
said he was coming from Farrell and going to Burlington Coat
Factory to shop for school clothes for his son. N.T. pp. 18, 19.
Trooper Knott noticed [Appellant’s] hands were trembling and he
was mumbling under his breath. N.T. pp. 18, 20. [Appellant]
related he was driving his nephew’s vehicle as his car was in the
shop being repaired. N.T. p. 23. [Appellant] stated it took
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about forty minutes to drive from Farrell to Erie. The actual
driving time from Farrell to Erie is about an hour and a half.
N.T. p. 19.
Trooper Knott determined [Appellant] had a prior drug
arrest in 2007. N.T. p. 21. Trooper Knott ran a vehicle check on
the car to determine whether it had ever been stopped by
another trooper. A trooper in Meadville had run the plates on
the car in July of 2013. Id. Trooper Knott learned Thomas W.
Jones had prior criminal convictions, including a conviction for
possession of marijuana. N.T. pp. 22, 58.
Trooper Knott called for the assistance of another trooper
as back-up. N.T. p. 24; Com. Ex. 1.[2] When Trooper Rico
Coletta arrived, Trooper Knott told [Appellant] to exit his car and
stand by the police vehicles while he checked under [Appellant’s]
car to see what was hanging down and if there were any after-
market modifications made to the car. Com. Ex. 1. Trooper
Knott found a loose grommet from the engine or catalytic
converter was hanging down. N.T. p. 25.
At this point, Trooper Knott concluded there were a
number of indicators criminal activity was afoot. N.T. p. 24.
Trooper Knott printed out a written warning regarding the tinted
windows and dangling grommet and gave it to [Appellant]. N.T.
p. 25. [Appellant] was displaying nervous behavior. In order to
dissipate [Appellant’s] nervous behavior, Trooper Knott shook
hands with [Appellant] and engaged [Appellant] in conversation
to put him at ease. N.T. pp. 27, 28. Trooper Knott did not tell
[Appellant] he was free to leave. N.T. p. 28. The encounter
occurred at the back of Trooper Knott’s vehicle and in front of
Trooper Coletta’s vehicle. N.T. p. 28.
[Appellant] walked back to his car. N.T. p. 28. When
[Appellant] reached his car, Trooper Knott re-engaged
[Appellant] by asking, “Can we speak?” N.T. p. 29. Trooper
Knott informed [Appellant] he felt he had reasonable suspicion to
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2
The Commonwealth’s Exhibit 1 was a DVD of the dashboard camera
footage from Trooper Knott’s cruiser.
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search the car. Com. Ex. 1. Trooper Knott asked [Appellant] for
permission to search the vehicle. N.T. p. 30.
[Appellant] denied consent to search. N.T. p. 30. Trooper
Knott told [Appellant] he had sent for a drug-detecting canine.
N.T. p. 31.
[Appellant] got back inside his car and made no attempt to
leave. N.T. p. 31. It took forty minutes for the dog to arrive.
N.T. p. 31. While waiting for the dog to arrive, [Appellant] told
the Troopers his son needed to use a bathroom. N.T. p. 31.
[Appellant] told the Troopers he was going to drive the vehicle
away so the child could use the bathroom. N.T. p. 31. Trooper
Knott told [Appellant] he could not move the vehicle as an
investigative detention was in progress. N.T. p. 31. Trooper
Coletta offered to drive the boy to the Millcreek Mall, a short
distance away, or to take the boy into a secluded, grassy area by
the vehicles. N.T. p. 32. Ultimately, [Appellant] decided not to
leave the vehicle. N.T. p. 32.
At this point, Trooper Knott told [Appellant] he was free to
leave on foot with the child but the vehicle was being detained
for a canine search. N.T. p. 32.
[Appellant] and his son then proceeded on foot up the off-
ramp and never came back. N.T. [pp.] 31, 32. The dog arrived,
did an exterior sniff and indicated the presence of drugs in the
car. N.T. p. 33.[3]
Trooper Knott has been a state trooper for approximately
twelve years and a municipal police officer for five years. N.T.
pp. 5, 6. He has performed between 25,000 and 30,000 traffic
stops, engaged in drug interdiction training and conducted drug
investigations. N.T. 6, 50. Trooper Knott has ample experience
in narcotics investigations and interdictions during traffic stops.
Suppression Court Opinion, 7/8/14, at 1–4.
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3
Upon execution of a search warrant, the police found three pounds of
marijuana in the trunk of the Impala. N.T. Trial, 1/12/15, at 123–127.
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Several days after the traffic stop, Appellant was arrested and charged
with possession of a controlled substance and possession of a controlled
substance with intent to deliver (“PWID”). Complaint, 8/22/13. Defense
counsel filed and argued a suppression motion, which the trial court denied.
Motion to Suppress, 4/30/14; N.T. Suppression, 6/2/14; Order, 7/8/14.
Appellant proceeded pro se with appointed standby counsel. Following a
two-day trial, the jury convicted Appellant of both crimes. N.T., 1/13/15, at
196.
The trial court sentenced Appellant to incarceration for twelve to
twenty-four months followed by twelve months of state-supervised
probation. N.T., 3/13/15, at 50. Appellant filed an untimely pro se motion
for modification of sentence on March 26, 2015. The next day, Appellant
filed a timely pro se notice of appeal and a pro se Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, in which he raised thirty-one
issues. Appellant filed a pro se amended concise statement on June 1,
2015, in which he raised additional issues, numbered 32–73.4 The trial court
complied with Pa.R.A.P. 1925.
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4
Regarding Appellant’s amended Rule 1925(b) statement, the trial court
opined as follows:
Appellant raised an additional 42 issues, many of which
overlapped or restated the issues raised in his original Concise
Statement. Appellant filed his Amended Concise Statement
without requesting permission of the Court as required. See
(Footnote Continued Next Page)
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Appellant presents five questions for our consideration, which we
reproduce verbatim as follows:
(1) Did the second investigatory detension-then a custodian
detention, that was not supported by probable cause
and/or reasonable suspicion, violate Appellant’s Fourth
Amendment and Pennsylvania’s Article 1 Section 8’s
Constitution?
(2) Was the interior K-9 search in direct violation of the Fourth
Amendment and Pennsylvania’s Article 1 Section 8’s
Constitution?
(3) Did the lower court violate the Appellant’s due process,
Sixth Amendment and Equal Protection rights to
confrontation serveral times during the trial process?
(4) Was the proof presented at trial sufficient and did it rise to
the standard of “beyond a reasonable doubt?
(5) Was the traffic stop used to create a second stop, that
prolonged the initial traffic stop. That is a constitutionality
of a pretextual stop?
Appellant’s Brief at 7–8 (reformatted for ease of reading).5
_______________________
(Footnote Continued)
Pa.C.S.A. 1925(b)(2) (permitting a judge to allow an amended
or supplemental Statement to be filed upon application of the
appellant and a showing of good cause). As such, the issues
raised in Appellant’s Amended Concise Statement have been
waived in so far as they do not overlap with issues raised in the
original Concise Statement.
Trial Court Opinion, 7/9/15, at 4.
5
The trial court concluded that Appellant’s seventy-three issues raised on
appeal were waived: “Claiming such a voluminous number of redundant
errors on appeal hinders the Court’s ability to adequately address Appellant’s
claims. Consequently, because of the inordinate number of issues raised,
the improper form in which they are presented, and the nature of the issues,
(Footnote Continued Next Page)
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Appellant’s issues essentially cover three topics. In issues (1), (2),
and (5), Appellant argues the evidence should have been suppressed. In
issue (3), Appellant contends his right to confrontation was hindered by the
trial court, and in issue (4), Appellant challenges the sufficiency of the
evidence. We shall review Appellant’s arguments in these contexts.
We address Appellant’s sufficiency challenge first because he would be
entitled to discharge if the evidence was insufficient to support the verdict.
See Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa. Super. 2013)
(“Because a successful sufficiency of the evidence claim warrants discharge
on the pertinent crime, we must address this issue first.”). Appellant asserts
that his convictions were based on speculation and conjecture because
“there was no evidence that [he] ever touched the contraband, [k]new it
was there or intended to [sell] it.” Appellant’s Brief at 62 (emphasis
omitted). Appellant is incorrect.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
_______________________
(Footnote Continued)
all issues raised on appeal are waived.” Trial Court Opinion, 7/9/15, at 5.
The trial court then opined, “Assuming arguendo Appellant’s claims are not
waived, the discernable claims will be addressed seriatim, to the extent
possible.” Id. at 7. In the interest of judicial economy, we too shall address
Appellant’s issues, limiting our review to the arguments raised in his
appellate and reply briefs.
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[that of] the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011)
(citation omitted).
The trial court addressed Appellant’s sufficiency challenge, as follows:
A review of the record confirms the Commonwealth met its
burden of proof with respect to each of the crimes.
A. Possession of a Controlled Substance
A person is guilty of the offense of possession of a
controlled substance when he “knowingly or intentionally
possesses a controlled or counterfeit substance. . .unless the
substance was obtained directly from, or pursuant to, a valid
prescription order or order of a practitioner, or except as
otherwise authorized by this act.” 35 [P.S.] §780-113(a)(16).
Possession can be actual or constructive. “Constructive
possession has been defined as the ability to exercise a
conscious dominion over the illegal substance: the power to
control the contraband and the intent to exercise that control.”
Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132,
134 (1983).
Appellant was pulled over driving a car that was later
discovered to contain three pounds of marijuana. Appellant was
the only adult in the car and was in sole control of the car.
Trooper Knott testified Appellant likely knew about the marijuana
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because he seemed nervous, the car had a strong smell
emanating from it, and Appellant’s explanation as to why he was
in the area was suspect. Appellant argued at trial that because
the marijuana was found in the trunk of the car and the car
belonged to his nephew, he did not have possession of the
marijuana. However, Trooper Knott testified these factors only
supported that Appellant knew about the contraband as in his
experience, those who transport illegal drugs will often transport
the drugs in another individual’s car and take actions to have
plausible deniability should the drugs be discovered.
The jury viewed the video depicting Appellant’s interaction
with Trooper Knott numerous times over the course of the trial.
The jury obviously found Trooper Knott’s testimony to be
corroborated by the video and his testimony credible.
The Commonwealth, at closing summed up the final piece
of circumstantial evidence that pointed to Appellant’s knowledge
of the marijuana in the trunk:
* * *
[THE COMMONWEALTH]: Thank you. Trooper Knott
tells him, look, the vehicle can’t go, we’re bringing in
a canine. You can go; vehicle stays. Okay? I’m
talking about knowledge that drugs are there. He
knows the drugs are there because he leaves. He
knows that Iggy is going to have a positive
indication. If he doesn’t know, if [Appellant] doesn’t
know drugs are in there, he has no clue, according to
him shouldn’t be any drugs in that car; and he
knows that if there’s no positive indication of drugs
he gets his vehicle, his nephew’s vehicle back and he
can go about his business. If there’s no positive
indication, there’s no reason for Trooper Knott to
keep the car there. But he never comes back.
There is sufficient evidence of record to sustain Appellant’s
conviction for drug possession.
B. Possession of a Controlled Substance with Intent to
Deliver
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As discussed, the Commonwealth presented sufficient
evidence for the jury to find Appellant was in possession of the
marijuana found in the car he was driving.
“Intent to deliver can be inferred from possession of a
large quantity of controlled substances.” Commonwealth v.
Jackson, 645 A.2d 1366, 1368 (Pa.Super. 1994). Other relevant
factors include “the manner in which the controlled substance
was packaged, the behavior of the defendant, the presence of
drug paraphernalia, and large sums of cash.” Commonwealth v.
Carpenter, 955 A.2d 411, 414 (Pa. Super. 2008).
Trooper Knott testified the amount of marijuana found in
the car, about 3 pounds, is indicative of intent to deliver. The
marijuana was also found in the trunk of the car, not on
Appellant’s person. No drug paraphernalia or means to ingest
the marijuana was found. These facts support the conclusion the
marijuana was not possessed for personal use, rather for
delivery or distribution.
The Commonwealth therefore sustained its burden of proof
regarding each element of possession of a controlled substance
with intent to deliver.
Trial Court Opinion, 7/9/15, at 14–17 (some internal citations omitted).
Upon review, we conclude that the record supports the trial court’s
findings and its legal conclusion is without error. Moreover, we dispose of
Appellant’s sufficiency challenge by adopting as our own the trial court’s
well-reasoned analysis set forth above.
Next, we address Appellant’s suppression challenge.
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
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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.
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.
Moreover, appellate courts are limited to reviewing only
the evidence presented at the suppression hearing when
examining a ruling on a pre-trial motion to suppress.
Commonwealth v. Freeman, ___ A.3d ___, ___, 2016 Pa. Super. 235 at *2
(Pa. Super. 2016) (quoting Commonwealth v. Ranson, 103 A.3d 73, 76
(Pa. Super. 2014) (internal citations and quotations omitted)).
Additionally, Pennsylvania jurisprudence recognizes three categories of
interaction between citizens and police officers:
The first of these is a “mere encounter” (or request for
information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or to
respond. The second, an “investigative detention[,]” must be
supported by a reasonable suspicion; it subjects a suspect to a
stop and a period of detention, but does not involve such
coercive conditions as to constitute the functional equivalent of
an arrest. Finally, an arrest or “custodial detention” must be
supported by probable cause.
Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)
(quoting Commonwealth v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995)
(citations omitted)).
Appellant concedes the initial traffic stop was legal. Appellant’s Brief
at 19. Indeed, the evidence demonstrates that Trooper Knott had probable
cause to believe that Appellant violated the Vehicle Code by having heavily
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tinted windows. See 75 Pa.C.S. § 4524(e)(1) (“No person shall drive any
motor vehicle with any sun screening device or other material which does
not permit a person to see or view the inside of the vehicle through the
windshield, side wing or side window of the vehicle.”). However, the record
reveals that, after ending the interaction based on the traffic violation,
Trooper Knott initiated a second round of questioning with Appellant. N.T.
Suppression, 6/2/14, at 28–30. Thus, the inquiry becomes whether this
second interaction constituted an investigatory detention and, if so, whether
the investigatory detention was supported by reasonable suspicion of
criminal activity. Commonwealth v. Moyer, 954 A.2d 659, 665 (Pa.
Super. 2008) (en banc).
Trooper Knott provided the following testimony regarding his
termination of the traffic stop and his re-engagement of Appellant:
Q. Now, at some point did you tell him he was free to
go?
A. I didn’t exactly use those words. I provided him with
a copy of the written warning and explained the violations, and
at that point I don’t know if we shook hands, but there was a
clear line of separation of he was returning to his car and I was
still standing there talking to Trooper Coletta.
Q. When you shook his hand, where was he standing?
A. We were at the back of my cruiser and in front of
Trooper Coletta’s cruiser.
Q. After he got done shaking hands with you, did he go
back to his car?
A. He did.
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Q. How did he appear to walk back to his car?
A. He was walking fast. He was obviously in a hurry to
get on his way.
Q. Did he get on his way?
A. No. At that point when he reached his car I asked
him if I might speak to him for a moment. He agreed. He
remained and spoke to me and I asked him a couple of
questions at that point.
Q. Okay. At that point did you still believe that there
was criminal activity afoot, despite making it known to him that
he was going to be leaving?
A. Absolutely, yes.
Q. Was it ever your intent for him to leave?
A. No, it wasn’t.
Q. Why did you give [him] a written warning and it
seems like he can go, but then you reengage him? Why do you
do that?
A. It’s just standard practice. When you have a traffic
stop being conducted and you see indicators of criminal activity
being present, when you ask someone for consent to conduct
the search of the vehicle there are a number of tests and
challenges that need to be met, and one of those is to have the
person feel that they are free to leave, that the consent was
entered into voluntarily. And one test of that voluntariness is
whether the person was free to leave, whether they believed
that they were free to leave, whether they demonstrated that
they knew they were free to leave.
Q. Ok. And that’s what you did in this case?
A. Yes, that’s correct.
Q. Did you ask him for consent to search the vehicle?
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A. I did, yes.
Q. Did you tell him that you believe – that you thought
there might be things illegal in the car, or did you ask him if
there was anything illegal in the car?
A. I did, yes. He said no, and then I asked for a
consent to search.
Q. Did he give you that consent?
A. No, no. He said a number of different things, but he
didn’t consent to a search.
N.T., 6/2/14, at 28–30.
Given the facts surrounding the subsequent interaction, we conclude
that Appellant was subject to a second detention. As stated above,
Appellant was stopped for a lawful detention resulting from the motor
vehicle code violation. Because the trooper had accomplished the purpose
of the stop, as indicated by his issuance of a warning and acting in such a
manner as to suggest that Appellant was free to go, Appellant would have
been within his rights to drive away. Accord Commonwealth v. Freeman,
757 A.2d 903, 907 (Pa. 2000) (“Since the trooper had accomplished the
purpose of the stop, as he expressly indicated, [defendant] would have been
entirely within her rights to drive away at that point.”).
Trooper Knott’s subsequent actions, however, were inconsistent with
his conduct indicating that Appellant was free to leave. Trooper Knott
returned Appellant’s documentation while they were standing at the back of
the trooper’s cruiser. After Appellant returned to his car, the trooper
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approached Appellant and began to ask him additional questions. Moreover,
when Trooper Knott re-engaged Appellant, Appellant remained standing
outside of his vehicle. N.T. Suppression, 6/2/14, at 29. We have observed,
“[W]hen an individual has been subjected to a valid detention and the police
continue to engage that person in conversation, the citizen, having been in
official detention, is less likely to understand that he has the right to refuse
to answer questions or a search.” Moyer, 954 A.2d at 665; see also
Commonwealth v. Kemp, 961 A.2d 1247, 1254 (Pa. Super. 2008) (citing
Moyer, 954 A.2d at 665). Indeed, Trooper Knott testified that it was always
his intention to re-engage Appellant after ending the initial traffic violation
stop. N.T. Suppression, 6/2/14, at 29. Thus, we conclude that Appellant
was not involved in a mere encounter with Trooper Knott following
termination of the traffic stop; rather, he was subjected to an investigatory
detention. See Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super.
2005) (“[W]here the purpose of an initial traffic stop has ended and a
reasonable person would not have believed that he was free to leave, the
law characterizes a subsequent round of questioning by the police as an
investigative detention or arrest.”). Accordingly, for this investigative
detention to pass constitutional muster, it must be supported by reasonable
suspicion of criminal activity.
Appellant avers that the police lacked reasonable suspicion to detain
him once the traffic stop was concluded; therefore, the marijuana recovered
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from the trunk of the vehicle he was driving should have been suppressed.
Appellant’s Brief at 18. Specifically, Appellant claims that Trooper Knott
failed to “demonstrate cause for suspicion after the end of the initial stop
independent of any basis on which he conducted that stop.” Appellant’s
Brief at 25 (citing Commonwealth v. Ortiz, 786 A.2d 261 (Pa. Super.
2001)).
We reject Appellant’s position as misinformed regarding the
appropriate frame of reference for testing reasonable suspicion.6 Unlike
Appellant’s focus on independent factors giving rise to reasonable suspicion
after termination of the traffic stop, Pennsylvania case law provides a
broader perspective:
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. Commonwealth
v. Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999). “This standard,
less stringent than probable cause, is commonly known as
reasonable suspicion.” Id. In order to determine whether the
police officer had reasonable suspicion, the totality of the
circumstances must be considered. In re D.M., 566 Pa. 445,
781 A.2d 1161, 1163 (2001). 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.” Cook, 735 A.2d at 676 (quoting Terry v. Ohio,
392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). 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, “[e]ven a combination of innocent facts, when
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6
Although Ortiz stands for the proposition advanced by Appellant, we
announced in Kemp that Ortiz “was wrongly decided.” Kemp, 961 A.2d at
1255.
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taken together, may warrant further investigation by the police
officer.” Cook, 735 A.2d at 676.
Freeman, ___ A.3d at ___, 2016 Pa. Super. 235 at *4 (quoting
Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004)).
The suppression court credited Trooper Knott’s testimony and analyzed
the totality of the circumstances as follows:
In this case, Trooper Knott, in light of his experience and
training, articulated specific observations and derived reasonable
inferences from those observations which provided him with
reasonable suspicion. Trooper Knott had extensive experience in
detecting indicators of drug trafficking.
Specifically, Knott observed a vehicle with heavily-tinted
windows and an object dangling beneath the vehicle. Tinted
windows have historically been used in drug transactions to hide
the identity of the vehicle’s occupants and the activities therein.
The car was a borrowed vehicle. Borrowed vehicles are
often used so the driver may deny any knowledge of the
presence of contraband. See Com. v. Kemp, supra at 1254.
Trooper Knott detected the odor of artificial air fresheners.
Air fresheners are used as masking agents. See Com. v. Rogers,
849 A.2d 1185 (Pa. 2004).
Both [Appellant] and his nephew, Thomas Jones, have
convictions for drug offenses.
[Appellant] exhibited unnecessary nervousness considering
Trooper [Knott] was only issuing a summary warning for a traffic
offense. See Com. v. Rogers, 849 A.2d 1185 (Pa. 2004).
[Appellant] was coming from Farrell, Pennsylvania, an area
identified as a source city for drug distribution. Kemp, supra, at
1255. In Trooper Knott’s view, [Appellant’s] explanation of his
shopping destination in Erie was not sensible.
The license plates [sic] for this vehicle were run by a state
trooper in Meadville, Pennsylvania in the preceding month of
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July. Meadville is approximately halfway between Farrell and
Erie. [Appellant] did not accurately state the drive time between
Farrell and Erie.
* * *
Though each separate fact may be innocuous in the
abstract, the totality of the facts known to or observed by
Trooper Knott reasonably permitted a belief [that] criminal
activity was afoot. Trooper Knott’s observations provided him
with reasonable suspicion to detain and search the vehicle.
Suppression Court Opinion, 7/8/14, at 6–7. Upon careful consideration, we
agree with the suppression court’s decision.
When viewed in isolation, some of the facts Trooper Knott relied upon
appear innocuous. However, as we stated in a similar situation:
[w]e would hesitate to hold that a vehicle may be detained for
more than an hour and subjected to a canine search merely
because it had been rented for a one-way trip from New York to
Binghamton, a purported drug destination, or because the
driver, when stopped, appeared agitated. But we are required to
review the circumstances in their totality, and, upon doing so,
we conclude that the evidence was sufficient to support the trial
court’s determination that the trooper’s detention of [a]ppellant
was supported by reasonable suspicion.
Freeman, ___ A.3d at ___, 2016 Pa. Super. 235 at *7. Accord Rogers,
849 A.2d 1185 (applying a totality-of-the-circumstances approach to
determining whether an interaction following a valid traffic stop is an
encounter or an investigatory detention); Kemp, 961 A.2d 1247 (same);
Commonwealth v. Caban, 60 A.3d 120, 127 (Pa. Super. 2012) (same);
Commonwealth v. Valdivia, 145 A.3d 1156 (Pa. Super. 2016) (illustrating
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how individual facts that may not be suspicious when viewed alone, or by a
layperson, may coalesce to form reasonable suspicion).
Guided by the precedent above, we conclude the suppression court did
not err in determining that the totality of circumstances in this case
supported Trooper Knott’s suspicion of criminal activity as reasonable.
Therefore, we discern no basis to disturb the denial of Appellant’s
suppression motion.
Lastly, we address Appellant’s claim that the trial court violated his
right to confrontation by preventing him from questioning the canine
handler. Appellant’s Brief at 52. Appellant’s argument stems from a
strategy to challenge the reliability of the canine that searched his car. Id.
at 55–57.
“The Confrontation Clause in the Sixth Amendment to the United
States Constitution provides that in all criminal prosecutions, the accused
shall enjoy the right ... to be confronted with the witnesses against him....”
Commonwealth v. Wantz, 84 A.3d 324, 337 (Pa. Super. 2014) (internal
brackets omitted). Whether Appellant’s confrontation rights were violated is
a pure question of law; therefore, our standard of review is de novo and our
scope of review is plenary. Commonwealth v. Yohe, 79 A.3d 520, 530
(Pa. 2013).
The trial court rejected Appellant’s confrontation challenge as follows:
Appellant argues his right to confrontation was violated
when he was unable to call the canine handler as a witness at
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trial. The canine handler was not called by the Commonwealth
and the Commonwealth presented no evidence that relied on
statements made by the canine handler. Therefore, the right to
confrontation does not apply in this scenario and Appellant’s
Sixth Amendment claim is meritless.
Trial Court Opinion, 7/9/15, at 11. Upon review, we agree with the trial
court.
The Confrontation Clause does not mandate that the Commonwealth
call every potential witness in a case. Commonwealth v. Gasiorowski,
310 A.2d 343 (Pa. Super. 1973) (citations omitted). Indeed, “it is not the
obligation of the prosecutor in a criminal case to call all the material
witnesses to the case, nor even to call the victim.” Id. at 344. Appellant
cannot argue he was denied his right to confront the canine handler where
the canine handler was not called as a witness against him and the
Commonwealth did not introduce evidence derived from the handler.
Wantz, 84 A.3d at 337. Appellant’s position lacks merit.
Judgment of sentence affirmed.
Judge Olson joins the Memorandum.
Judge Strassburger files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2017
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