Com. v. Kull, R. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT NICHOLAS KULL :
:
Appellant : No. 1057 MDA 2022
Appeal from the Judgment of Sentence Entered July 14, 2022
In the Court of Common Pleas of Schuylkill County
Criminal Division at No.: CP-54-CR-0000357-2021
BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED: June 16, 2023
Appellant Robert Nicholas Kull appeals from the July 14, 2022 judgment
of sentence entered in the Court of Common Pleas of Schuylkill County (“trial
court”), following his bench conviction for possession of a controlled
substance, possession of drug paraphernalia, and driving on a suspended
license.1 Upon review, we affirm.
The facts and procedural history of this case are undisputed. Briefly,
following a traffic stop on December 12, 2020, Appellant was arrested and
charged with, inter alia, the foregoing crimes. On July 23, 2021, Appellant
filed a pretrial suppression motion, which sought to exclude all contraband
confiscated from his vehicle during the stop. On August 18, 2021, the trial
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* Former Justice specially assigned to the Superior Court.
1 35 P.S. § 780-113(a)(16), (32) and 75 Pa.C.S.A. § 1543(b)(1)(i),
respectively.
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court held a hearing on the motion at which only the Commonwealth
presented witness testimony. The Commonwealth called to the stand Officer
Isaac Souchak, Minersville Police Department, whose testimony the trial court
summarized as follows:
Officer Souchak testified that he has been a police officer for
approximately 10 years in Minersville Borough, St. Clair Borough,
and previously New York City. He was also a federal law
enforcement officer with the Unites States Coast Guard. He
testified that he has received narcotics and addiction training
through the Department of Homeland Security as well as the Coast
Guard. He also received specialized training with the New York
City Police Department in street narcotics enforcement and
worked in street narcotics enforcement for two years. As part of
his training, he learned to identify controlled substances and drug
paraphernalia. Officer Souchak conducted approximately 200 plus
narcotics investigations in New York City and approximately 75 to
100 narcotics investigations in the St. Clair and Minersville police
departments. He currently is part of the Drug Investigation Unit
for the City of Pottsville police department.
During the hearing, Officer Souchak testified that he remembered
the traffic stop. He testified that he pulled [Appellant] over
because [Appellant] failed to signal while merging into a traffic
lane from a parked position. [Appellant] pulled into a parking lot
with artificial lighting. Officer Souchak observed [Appellant] reach
down toward the passenger side, lean forward, and then
immediately exit the vehicle with U.S. currency in one of his
hands. Officer Souchak discovered that [Appellant] had an active
arrest warrant as well as a suspended license. With [Appellant]
still outside of the vehicle, Officer Souchak placed him into custody
due to the active arrest warrant.
Officer Souchak testified: “Well, we had to remove his dog that
was in the vehicle. He did have a dog that was in there jumping
around. And once that was secure, we were going to tow it
because it was in a private lot.” Later he testified: “. . . there was
a pretty angry dog inside. So I was walking around the outside of
the vehicle while determining how we were safely going to remove
the dog.” He testified the dog was barking and growling.
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During the course of Officer Souchak’s interaction with the vehicle
itself, he observed a “folded dollar bill, containing a substance
which later testified positive for methamphetamine in plain view
in the center console. And then also on the rear passenger side
window, I was able to observe a glass pipe used in smoking illicit
narcotics.” Officer Souchak indicated he was able to observe
through the passenger window approximately two inches of the
section of the glass pipe, that one would apply their mouth,
protruding from underneath the passenger seat. He added that
there was residue on the portion of the pipe he observed. He
testified it was readily apparent to him that the glass pipe was
used for narcotics. Officer Souchak agreed that the dollar bill was
folded lengthwise from the bottom to the top. He recalled the
dollar bill contained a white substance that he believed to be
methamphetamine. He stated the incriminating nature was
readily apparent when he “saw” it. However, in accordance with
Minersville Police Department policy he conducted a presumptive
field NIK test, which ultimately confirmed the substance was
methamphetamine. Officer Souchak further testified that he
noticed the glass pipe while he was using the flashlight. He
indicated that he always uses a flashlight even during the daytime.
He stated that during his recovery of the glass pipe, he recovered
a Ziploc bag containing what was later identified as
methamphetamine. When questioned by counsel, Officer Souchak
consistently agreed the pipe and Ziploc bag were visible through
the passenger window. He stated that the Ziploc bag was right
next to the pipe, slightly behind it. He affirmed he was able to
view the Ziploc bag when he was in a position to recover the pipe.
Based on his experience and training, Officer Souchak felt that the
dollar bill on the console was being utilized for drug activity due
to it being an “open-ended, folded dollar bill.” He also felt it was
utilized for drug activity due to the dollar bill containing the white
crystal-like substance, a substance Officer Souchak had numerous
times previously identified, seized, and confirmed to be
methamphetamine. Officer Souchak testified that there was
enough white powdery substance on the dollar bill for him to be
able to view the substance and recognize that it was an illicit
narcotic. In terms of the location of the bags of
methamphetamine, Officer Souchak testified that they were right
next to the pipe which was in plain view. He testified that he was
able to view the bags of methamphetamine when he was in the
position to recover the glass pipe. Officer Souchak conceded that
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the syringes found in the bags of methamphetamine were not in
plain view.[2]
Officer Souchak testified that [Appellant]’s car was towed by
Hammers Garage to a private car lot due to it obstructing ingress
and egress from the parking lot. He also testified that he had
[Appellant] remove the dog because the dog was acting “in a
vicious manner,” and it would be better for [Appellant], as the
owner, to remove his dog. During the dog’s removal, Officer
Souchak remained directly next to [Appellant] to prevent any type
of prisoner escape since he took [Appellant] from being rear-
handcuffed to being front-handcuffed to effectuate the dog’s
removal from the car. Officer Souchak believes [Appellant]
removed the dog from the passenger side door. Upon the door
opening, the interior lights of the vehicle illuminated. Officer
Souchak testified that if he had not previously observed the dollar
bill and pipe in plain view when [Appellant] opened the car door
to remove the dog those items still would have been where he
found them.
Trial Court Opinion, 10/13/21, at 3-6 (record citations omitted; emphasis in
original). On October 13, 2021, the trial court denied Appellant’s suppression
motion. On May 23, 2022, Appellant proceeded to a stipulated non-jury trial,
following which the trial court found him guilty of possession of a controlled
substance, possession of drug paraphernalia, and driving on a suspended
license.3 On July 14, 2022, the trial court sentenced Appellant to an aggregate
of 6 to 23 months’ imprisonment, among other things. Although he did not
file any post-sentence motion, Appellant timely appealed. The trial court
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2 The Commonwealth conceded that the syringes found in the black bag were
not in plain view and advised the court that it was not pursuing paraphernalia
charges relative to the syringes. N.T., Suppression, 8/18/21, at 3. Thus, the
possession of drug paraphernalia charge was premised on the discovery of the
glass pipe. Id.
3The trial court found Appellant not guilty of possession with intent to deliver
a controlled substance (methamphetamine). N.T., Trial, 5/23/22, at 2.
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directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained
of on appeal. Appellant complied, challenging only the denial of his
suppression motion. In response, the trial court issued a statement in lieu of
a Pa.R.A.P. 1925(a) opinion, adopting its October 13, 2021 order and opinion
denying Appellant’s suppression motion.
On appeal, Appellant argues that the trial court “abused its discretion
and/or committed an error of law by denying [his suppression motion] and
finding that the Minersville Police Department had probable cause and/or
exigent circumstances to conduct a warrantless search of [his] motor vehicle
on December 12, 2020.” Appellant’s Brief at 4. In essence, Appellant claims
that under Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020),4 the
Minersville Police Department needed probable cause and exigent
circumstances to conduct a warrantless search of his vehicle, even if the police
relied upon the plain view doctrine. Appellant’s Brief at 15. We disagree.
We repeatedly have determined that Alexander “does not address the
plain view exception or any alterations to its requirements.” Commonwealth
v. Smith, 285 A.3d 328, 332 (Pa. Super. 2022); see also Commonwealth
v. McMahon, 280 A.3d 1069, 1073 (Pa. Super. 2022) (noting that Alexander
pertains only to the automobile exception to the warrant requirement);
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4 In Alexander, the Court concluded that Article I, Section 8 of the
Pennsylvania Constitution “affords greater protection to our citizens than the
Fourth Amendment,” reaffirming pre-Commonwealth v. Gary, 91 A.3d 102(Pa. 2014) (plurality) decisions that required police to have both probable
cause and exigent circumstances before conducting a warrantless search of
an automobile. Alexander, 243 A.3d at 181.
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accord Commonwealth v. Lutz, 270 A.3d 571, 576 (Pa. Super. 2022).
Thus, consistent with the foregoing cases, where the circumstances permit an
application of the plain view doctrine, we need not apply Alexander.
Having determined that Alexander is inapplicable sub judice, we now
turn to Appellant’s claim, raised particularly in the argument section of his
brief, that the incriminating nature of the items seized from his vehicle was
not readily apparent to Officer Souchak. See Appellant’s Brief at 18. In other
words, he suggests that the trial court erred in denying his suppression motion
under the plain view doctrine. As we have explained:
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. Where,
as here, the appeal of the determination of the suppression court
turns on allegations of legal error, the suppression court’s legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to our plenary review.
Commonwealth v. Mbewe, 203 A.3d 983, 986 (Pa. Super. 2019)
(quotations and citations omitted). Our scope of review of suppression rulings
includes only the suppression hearing record and excludes evidence elicited at
trial. In the Interest of L.J., 79 A.3d 1073, 1085 (Pa. 2013).
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Both the Fourth Amendment to the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution protect
individuals from unreasonable searches and seizures by police in
areas where individuals have a reasonable expectation of privacy.
An expectation of privacy exists if a person has a subjective
expectation of privacy that society is willing to recognize as
legitimate and reasonable. Where there exists a reasonable
expectation of privacy, Article I, Section 8 and the Fourth
Amendment generally require police to obtain a warrant, issued
by a neutral and detached magistrate and founded upon probable
cause, prior to conducting a search or seizure of a person and/or
a person’s property, unless one of the few well delineated
exceptions apply.
Commonwealth v. Loughnane, 173 A.3d 733, 741 (Pa. 2017) (citations
omitted). One such exception is the plain view doctrine first recognized by
the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S.
443, 464-69 (1971). Subsequently, in Horton v. California, 496 U.S. 128(1990), the United States Supreme Court adopted a three-pronged test for
the application of the plain view doctrine: (1) the police must observe the
object from a lawful vantage-point; (2) the incriminating character of the
object must be immediately apparent; and (3) the police must have a lawful
right of access to the object. Id. at 136-37; accord Commonwealth v.
Collins, 950 A.2d 1041, 1045 (Pa. Super 2008) (en banc).
Moreover, we recently explained in Smith:
There can be no reasonable expectation of privacy in an object
that is in plain view. The question of whether property in plain
view of the police may be seized must turn on the legality of the
intrusion that enables them to perceive and physically seize the
property in question. As we have long observed, there is no
legitimate expectation of privacy shielding the portion of the
interior of an automobile that may be viewed from outside the
vehicle by either an inquisitive passerby or diligent police officers.
Furthermore, we are mindful that the Motor Vehicle Code provides
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the statutory authorization for a police officer to stop a motor
vehicle whenever a police officer has reasonable suspicion that a
violation of this title is occurring or has occurred so that he may
secure such other information as the officer may reasonably
believe to be necessary to enforce the provisions of this title.
In determining whether the incriminating nature of an object is
immediately apparent to the police officer, we look to the totality
of the circumstances. An officer can never be one hundred
percent certain that a substance in plain view is incriminating, but
his belief must be supported by probable cause. When reviewing
whether an object’s criminal nature is immediately apparent, we
note that probable cause merely requires that the facts available
to the officer would warrant a man of reasonable caution in the
belief, that certain items may be contraband or stolen property or
useful as evidence of a crime; it does not demand any showing
that such a belief be correct or more likely true than false. A
practical, non-technical probability that incriminating evidence is
involved is all that is required. Where police officers observe
incriminating-looking contraband in plain view in a vehicle from a
lawful vantage-point, the lack of advance notice and opportunity
to obtain a warrant provides the officers with a lawful right of
access to seize the object in question.
Smith, 285 A.3d at 332-33 (quotation marks, brackets, ellipses, and citations
omitted).
Here, as noted earlier, Appellant assails only the second prong of the
plain view doctrine—i.e., the incriminating character of the object must be
immediately apparent. Based upon our review of the record, as detailed
above, and given the totality of the circumstances, we discern no basis upon
which to overrule the trial court’s application of the plain view doctrine. The
court aptly reasoned:
Officer Souchak credibly and specifically testified that the dollar
bill was in plain view, folded in such a way that he could see the
white crystal-like, controlled substance contained within the
folded portion. Likewise, he testified that approximately two
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inches of the white-residue coated, mouth portion of the pipe was
in plain view, and the bags of methamphetamine came into plain
view when lie was in a position to remove the pipe. . . .
[T]he facts available to Officer Souchak as well as his extensive
experience in narcotics investigations enable[ed] him to identify
the immediately apparent incriminating nature of the items. He
testified that he had previously seized white crystal-like
substances, during narcotics investigations on multiple occasions,
resulting in the confirmation of the presence of
methamphetamine. This experience rendered the items’
incriminating nature readily apparent to Officer Souchak providing
the requisite probable cause to believe the items were
incriminating. He did not need to conduct any additional
inspection to recognize their incriminating nature. Pursuant to the
credible testimony, the methamphetamine and paraphernalia
itself was visible in plain view.
Trial Court Opinion, 10/13/21, at 7-8 (record citations omitted). We agree
with the trial court’s analysis. Accordingly, under the totality of the
circumstances, Officer Souchak plainly viewed the methamphetamine-coated
dollar bill, glass pipe and methamphetamine-filled Ziploc bag in Appellant’s
vehicle when the officer explored humane ways to remove Appellant’s dog
from the vehicle during the traffic stop. Accordingly, the trial court did not err
in denying Appellant’s suppression motion.
To the extent Appellant invites us to accept his proffered version of the
events, claiming that Officer Souchak’s testimony, contrary to the trial court’s
determination, was patently incredible and inconsistent, we decline the
invitation. It is settled that we may not substitute our judgment for that of
the factfinder—whether a jury or the trial court—because it is the province of
the factfinder to assess the credibility of the witnesses and evidence. See
Commonwealth v. Luczki, 212 A.3d 530, 542 (Pa. Super. 2019) (citation
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omitted) (“[I]t is within the suppression court’s sole province as factfinder to
pass on the credibility of witnesses and the weight to be given their
testimony.”); Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995)
(“an appellate court is barred from substituting its judgment for that of the
finder of fact.”); Commonwealth v. Forbes, 867 A.2d 1268, 1273 (Pa.
Super. 2005) (stating that “[t]he weight of the evidence is exclusively for the
finder of fact[,] who is free to believe all, part, or none of the evidence and to
determine the credibility of witnesses. An appellate court cannot substitute
its judgment for that for the finder of fact.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/16/2023
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