March 10, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
KHALID-IBN ABDULLAH KAREEM Appellant
Appeal from the Judgment of Sentence of December 5, 2012 In the Court of Common Pleas of Somerset County Criminal Division at No(s): CP-56-CR-0000778-2008
BEFORE: PANELLA, OLSON and MUSMANNO, JJ.
Appellant, Khalid-Ibn Abdullah Kareem, appeals from the judgment of sentence entered on December 5, 2012. We affirm.
On appeal, Appellant claims that the lower court erred when it denied his pre-trial motion to suppress. In reviewing such a challenge, this Court "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 as a whole." Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (internal citations omitted). Based on the suppression hearing testimony of Pennsylvania State Police Trooper Anthony F. DeLuca (hereinafter "Trooper DeLuca"), the relevant facts are as follows.
On November 13, 2008, Trooper DeLuca was working the interdiction shift on the Pennsylvania Turnpike. N.T. Suppression Hearing, 5/ 31/ 11, at 31. At approximately 11: 30 p.m. that night, Trooper DeLuca was in full uniform and was operating a stationary, unmarked police vehicle that was positioned "on the east side of the Allegheny Tunnel[, allowing the Trooper to] observ[ e] westbound traffic." Id. According to Trooper DeLuca, it was at this time that he observed a silver Chevrolet Tahoe with "pitch black" tinted windows pass his position. Id. at 33. Trooper DeLuca testified that the windows had such dark tinting that "you could not see into the vehicle at all. I mean, it was like pitch black. Nothing, couldn't see into it." Id. I n Pennsylvania, it is a violation of the Vehicle Code for any person to "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." 75 Pa.C.S.A. § 4524(e)(1).
Because of the apparent Vehicle Code violation, Trooper DeLuca pursued the vehicle, activated his lights and siren, pulled the vehicle over to the side of the road, and parked his police car behind the vehicle. N.T. Suppression Hearing, 5/ 31/ 11, at 33-34. At the time Trooper DeLuca pulled the vehicle over, Trooper DeLuca was alone and had not yet called for backup officers to assist him . Id. at 34.
Trooper DeLuca approached the passenger side of the vehicle and, when the front-seat passenger rolled down the window, the Trooper noticed "an overwhelm ing citrus smell . . . that [ ] permeated the whole car as though an orange had been just broken open." Id. at 60. The odor originated from the 12 air fresheners and the three air sanitizers that were within the vehicle. Id. at 90-91. Moreover, Trooper DeLuca testified that – even as he stood next to the vehicle – the windows were so heavily tinted that he " could not see at all in[ side] th[ e] vehicle." Id. at 38.
Trooper DeLuca looked through the open, passenger-side window and initially believed that there were only two people in the car: the driver, who was later identified as Dorian McKinley, and the front-seat passenger, who was later identified as Jarrell Saunders. Id. at 35. Trooper DeLuca thus informed the individuals that "the reason why they were stopped[ was because of] the tinted windows." Id. at 37. Trooper DeLuca then requested Mr. McKinley's driver's license and registration, as well as some type of identification from Mr. Saunders. Id. at 35. Trooper DeLuca testified that, at this point, the individuals began to act suspiciously:
I believe . . . Mr. Saunders opened up the glove compartment that was directly in front of him, looked, and then shut it. Mr. McKinley then opened up the center console; and as soon as he opened it up, there was a – I observed a yellow plastic bag. He immediately put his arm down on the console.
Id. at 35- 36.
Trooper DeLuca testified that, after Mr. McKinley shut the center console, Mr. McKinley strangely "would not move his hand off that center console. . . . Not even to reach to grab anything. He maintained his arm on top of that center console, like pushing it down." Id. at 85.
Mr. McKinley handed Trooper DeLuca a Pennsylvania identification card and an expired Pennsylvania driver's license – but no vehicle ownership information. Id. at 36 and 72. Mr. Saunders supplied Trooper DeLuca with either his driver's license or his personal identification card. Id. at 37-38.
Trooper DeLuca testified that he then heard "some conversations going back." Id. at 36. Since he could not see into the vehicle, Trooper DeLuca opened the rear vehicle door and discovered that there were two other people in the vehicle. Id. These individuals – who were later identified as Appellant and Charles Coleman – were discovered lying down on the back two rows of seats. Id. Trooper DeLuca requested identification from Appellant and Mr. Coleman and they provided him with their "driver's license and any I .D. cards if they had photo I .D." Id. at 37.
Trooper DeLuca returned to his police car and ran a records check on the vehicle, the driver, and the three passengers. The search revealed that the vehicle was owned by an Ohioan named Jamie Louk. Id. at 39 and 42. With respect to the criminal records check, the Trooper testified:
Everyone came back with everything from Act 64 possession with the intent to deliver charges to, I believe[, ] there was Mr. Coleman had some shootings on his involving guns. Mr. Saunders also. The only one that really didn't have any type of criminal history was I believe Mr. McKinley. I believe he had [ a] minor possession charge. The rest had a large amount of criminal histories.
Id. at 38- 39.
Trooper DeLuca testified that, because of the gun charges, he called on-duty Pennsylvania State Trooper RoyceCapehart for backup; moreover, Trooper DeLuca also called Pennsylvania State Trooper Westley Berkebile, at Trooper Berkebile's personal residence, and asked him to come to the scene with his drug-sniffing canine partner, Bosko. Id. at 39. Trooper DeLuca then stayed in his vehicle for the " three to five minutes" that it took Trooper Capehart to arrive on scene. Id.
After Trooper Capehart arrived, Trooper DeLuca exited his police car, approached the Tahoe, and asked the driver (Mr. McKinley) to step out of the vehicle. Id. Trooper DeLuca testified:
I handed [ Mr. McKinley] all of his [ and the occupants'] cards back and . . . explained that his license was suspended. And he said he had a dispute over his license because he said he had – he got them back a few weeks ago. I told him looks like he doesn't have a fine paid. From 2008 didn't have a fine paid, and might not have paid his restitution.
Trooper DeLuca testified that he gave Mr. McKinley a written warning for the suspended license and the illegal window tinting and asked Mr. McKinley to explain their travel plans. Mr. McKinley told the Trooper that they were driving from Harrisburg to Pittsburgh. Id. at 41.
Trooper DeLuca then shook Mr. McKinley's hand, told Mr. McKinley to "have a nice day, " and watched as Mr. McKinley turned and walked back to the Tahoe to drive away. Id. at 39 and 42. However, Trooper DeLuca testified that – subjectively – he knew that he was not going to allow Mr. McKinley to simply drive away, as Mr. McKinley did not have a valid driver's license. Id. at 76- 77.
As Trooper DeLuca testified, while Mr. McKinley was walking away, the Trooper attempted to re-engage Mr. McKinley, and said "Mr. McKinley, can I ask you a question?" Id. at 42. Mr. McKinley walked back towards the Trooper and they began to speak. According to Trooper DeLuca:
I told him that we had a big problem with individuals trafficking things on the Pennsylvania Turnpike, such as drugs, guns, and money; and asked if there was anything in the vehicle that night. Mr. McKinley never lost eye contact. I asked Mr. McKinley if he would give consent to search that evening. Immediately he broke eye contact and looked at the rear of the vehicle. And then . . . Mr. McKinley said: [ i] t's fine with m e. . . . Then Mr. McKinley said: [ w] ell, it's not my car, not my vehicle.
Id. at 42.
As Trooper DeLuca testified, he told Mr. McKinley that he was aware the vehicle belonged to a person named Jamie Louk and asked whether Jamie Louk supplied the vehicle. I n response, Mr. McKinley stated: "I just got in the vehicle. I don't know who . . . he gave the vehicle to." Id.
Trooper DeLuca then "patted down Mr. McKinley for [ officer] safety and . . . walked up to the [ front seat passenger, Mr. Saunders, ] and asked [ Mr. Saunders] to step out" of the vehicle. Id. at 43. Trooper DeLuca asked Mr. Saunders whether the owner of the vehicle had given Mr. Saunders permission to drive the vehicle. Id. After Mr. Saunders responded in the affirmative, the Trooper asked Mr. Saunders whether he "had anything on him." Id. The Trooper then conducted a pat-down search of Mr. Saunders. Id.
Trooper DeLuca asked whether Mr. Saunders would consent to a search of the vehicle. Id. The Trooper testified:
Mr. Saunders says: [ i] t's not my vehicle. I then told Saunders that I understood that. Saunders then asked: [ s] o who's supposed to give you consent[ ?] I asked Saunders: [ s] o who had permission to have the vehicle? Do you have permission to have the vehicle? Saunders replied: [ a] ll of us did. I then asked him again: [ s] o who will give me consent to search the vehicle[ ?] Mr. Saunders stated I should speak to [ Mr. McKinley] about that. I told Saunders, I talked to McKinley and he told me to speak to him about that, about the consent. And Saunders stated he was not operating the vehicle. Saunders stated he is not a licensed driver, and that he wanted me to ask McKinley again.
Id. at 44- 45.
Trooper DeLuca again asked Mr. McKinley for permission to search the vehicle, and Mr. McKinley consented. Mr. McKinley also signed a written waiver of rights and consent to search form . Id. at 45.
When Mr. McKinley signed the waiver of rights and consent to search form, the only officers on scene were Trooper DeLuca and Trooper Capehart – Trooper Berkebile and his canine partner, Bosko, had not yet reached the location. Therefore, everyone waited in their respective vehicles for Trooper Berkebile and the canine to arrive. Id. at 45-46.
When Trooper Berkebile and the canine arrived on scene, the Troopers removed the occupants from the Tahoe and patted all of the occupants down for officer safety. Id. at 46. Following the pat-down searches, Trooper Berkebile deployed the canine on the vehicle, the canine indicated that drugs were present in the vehicle, and – after a search of the vehicle – the Troopers discovered a yellow plastic bag, containing 40 bricks of heroin, in the vehicle's spare tire compartment. Id. at 48-50. The heroin weighed 78 and 6/ 10th grams and was divided into 2, 000 glassine packets, with each packet labeled " Ed Hardy." Id. at 51. Appellant's fingerprints were later discovered on the yellow plastic bag. Id. at 53.
The four individuals were arrested and taken to the police station, where they were strip-searched. As Trooper DeLuca testified, during his strip search of Appellant, a baggie of marijuana dropped from Appellant's anal crack. Id. at 50. When the baggie of marijuana fell from Appellant's anus, Appellant stated that he "didn't know where that came from." Id. at 54. The marijuana weighed 4 and 8/ 10th grams. Id. at 51.
Prior to trial, Appellant filed a motion to suppress and claim ed (among other things) that the trial court should suppress all of the Commonwealth's evidence because: 1) Trooper DeLuca did not have reasonable suspicion or probable cause to initially stop the vehicle; 2) Pennsylvania's "excessive window-tinting" statute violates the Commerce Clause of the United States Constitution and the Due Process clauses of the United States and Pennsylvania Constitutions – and, therefore, Trooper DeLuca did not have probable cause to initially stop the vehicle; and, 3) " [ t] he continued detention of [ Appellant], following the return of [ Appellant's] docum entation, was a second investigative detention, for which the Troopers lacked . . . reasonable suspicion." Appellant's Omnibus Pre-Trial Motion, 8/ 31/ 09, at 1-5; Appellant's Supplemental Pre-Trial Motion, 3/ 19/ 12, at 1-2; see also N.T. Suppression Hearing, 5/ 31/ 11, 26-29.
The above-summarized evidence was presented during the suppression hearing and, on April 30, 2012, the trial court entered an order denying Appellant's motion to suppress. Trial Court Order, 4/30/ 12, at 1. I n denying Appellant's suppression motion, the trial court concluded that Trooper DeLuca had probable cause to make the initial stop of the vehicle, as Trooper DeLuca personally observed that the window-tinting violated Section 4524(e)(1) of the Vehicle Code. Trial Court Opinion, 4/ 30/ 12, at 5. Further, the trial court determined that Trooper DeLuca's "re-engagement" of Mr. McKinley – after the Trooper gave Mr. McKinley a written warning and told Mr. McKinley to "have a nice day" – constituted a "mere encounter, " which did not need to be supported by any level of suspicion on the Trooper's part. Thus, the trial court concluded that, during the re-engagement conversation, a reasonable person in Appellant's position would have believed that he was free to leave. Trial Court Opinion, 5/ 6/ 13, at 10. I n the alternative, the trial court concluded that – if the re-encounter constituted an investigative detention – the detention was supported by reasonable suspicion. Id. at 10-11.
Appellant proceeded to a jury trial and was found guilty of possession of a controlled substance with the intent to deliver, possession of a controlled substance, use or possession of drug paraphernalia, and criminal conspiracy of all three crimes. On December 5, 2012, the trial court sentenced Appellant to an aggregate term of four to ten years in prison for the convictions.
Appellant filed a timely notice of appeal and now raises the following claim s: 
1. Did the trial court err when it did not suppress [ the] evidence based upon a stop, search[, ] and seizure which was initially lacking reasonable suspicion and was further lacking probable cause?
2. Did the trial court err[ ] in not suppressing the evidence wherein Pennsylvania State Trooper DeLuca stopped the vehicle, gave the driver a warning for driving with excessive tint on the windows, told the driver that he was free to leave and then [ re-engaged] him for the purpose of attempting to get permission to search the car when there was no legal justification to [ re-engage] the driver and [ Trooper] DeLuca had no intent of [ allowing] the driver [ to] leave the area, either driving or on foot?
3. Did the trial court err when it did not suppress evidence based upon a stop, search[, ] and seizure which was violative of both the United States and Pennsylvania Constitutions wherein the stop, search[, ] and seizure was based upon window tint of an Ohio vehicle traveling on an interstate, toll highway in Pennsylvania without any notice/ posting of which the legal limitations of tinted windows in Pennsylvania which created an undue burden on interstate commerce and was violative of due process of law?
4. Did the trial court err in permitting Trooper DeLuca to testify at the sentencing hearing where he offered highly prejudicial testimony unrelated to the charges, regarding opinionated testimony that [ Appellant] was a major heroin dealer in Pittsburgh and other highly prejudicial testimony improper for sentencing considerations of the court[, ] entitling him to be resentenced by another judge who was not a party to these proceedings and who did not hear this inadmissible, prejudicial testimony of DeLuca?
Appellant's Brief at 3.
Appellant first claim s that the trial court erred when it denied his motion to suppress, as Trooper DeLuca did not have reasonable suspicion or probable cause to initially stop the vehicle. This claim fails.
"Once a motion to suppress evidence has been filed, it is the Commonwealth's burden to prove, by a preponderance of the evidence, that the challenged evidence was not obtained in violation of the defendant's rights." Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H). With respect to an appeal from the denial of a motion to suppress, our Supreme Court has declared:
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 as a whole. 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.
Eichinger, 915 A.2d at 1134 (internal citations 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. Gallagher, 896 A.2d 583, 585 (Pa. Super. 2006).
"The Fourth Amendment to the [ United States] Constitution and Article I, Section 8 of [ the Pennsylvania] Constitution protect citizens from unreasonable searches and seizures." Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012). "A search conducted without a warrant is deemed to be unreasonable and therefore constitutionally impermissible, unless an established exception applies." Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000). "One such exception is consent, voluntarily given." Id. As our Supreme Court has explained:
The central Fourth Amendment inquiries in consent cases entail assessment of the constitutional validity of the citizen/ police encounter giving rise to the consent; and, ultimately, the voluntariness of [ the] consent. Where the underlying encounter is found to be lawful, voluntariness becomes the exclusive focus. Where, however, a consensual search has been preceded by an unlawful seizure, the exclusionary rule [ generally] requires suppression of the evidence obtained.
Id. (internal citations omitted).
To safeguard our right to be free from unreasonable searches and seizures, " courts require police to articulate the basis for their interaction with citizens in [ three] increasingly intrusive situations." McAdoo, 46 A.3d at 784. Our Supreme Court has categorized these three situations as follows:
The first category, a m ere encounter or request for information, does not need to be supported by any level of suspicion, and does not carry any official compulsion to stop or respond. The second category, an investigative detention, derives from Terry v. Ohio and its progeny: such a detention is lawful if supported by reasonable suspicion because, although it subjects a suspect to a stop and a period of detention, it does not involve such coercive conditions as to constitute the functional equivalent of an arrest. The final category, t he arrest or custodial detention, must be supported by probable cause.
Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003).
Concerning vehicle stops, our Supreme Court has held:
a vehicle stop based solely on offenses not 'investigatable' cannot be justified by a mere reasonable suspicion, because the purposes of a Terry stop do not exist – maintaining the status quo while investigating is inapplicable where there is nothing further to investigate. An officer must have probable cause to make a constitutional vehicle stop for [ 'non-investigatory' Vehicle Code] offenses.
Commonwealth v. Chase, 960 A.2d 108, 115-116 (Pa. 2008); see also Commonwealth v. Feczko, 10 A.3d 1285, 1290-1291 (Pa. Super. 2010) (en banc).
In this case, Trooper DeLuca specifically testified that, while he was monitoring traffic on the Pennsylvania Turnpike, he observed the subject vehicle pass his position and immediately saw that the vehicle had such dark tinting that "you could not see into the vehicle at all. I mean, it was like pitch black. Nothing, couldn't see into it." N.T. Suppression Hearing, 5/ 31/ 11, at 33. Section 4524(e)(1) of our Vehicle Code provides:
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.
75 Pa.C.S.A. § 4524(e)(1).
The trial court credited Trooper DeLuca's testimony and, thus, the trial court concluded that the Trooper possessed probable cause to believe that the subject vehicle was being operated in violation of Section 4524(e)(1) of the Vehicle Code. Trial Court Opinion, 5/ 1/ 12, at 5.
From what we can discern, on appeal, Appellant simply challenges the trial court 's credibility determinations. Appellant claims:
According to his own testimony, [ Trooper] DeLuca's sole reason for initiating a traffic stop was the alleged window tinting violation. [ Trooper] DeLuca's observation of the "illegally tinted" windows occurred at night, specifically 11: 30 p.m ., in an area with minimal artificial lighting from a distance of approximately [ 20] feet . [ Trooper] DeLuca stated that he was unable to see inside of the rear driver's side window of the Tahoe [ ] as it passed his location. However, curiously this observation was made when it was dark, the vehicle was traveling past the stationary police vehicle at a high rate of speed and there was minimal artificial light ing.
Appellant's Brief at 10.
To the extent that the above declaration can be read to assert any claim of trial court error, the claim fails. As stated above, our standard of review requires that we "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 as a whole." Eichinger, 915 A.2d at 1134. Further, as an appellate court, " we will not substitute our credibility determination for that of the suppression court." Commonwealth v. Johonoson, 844 A.2d 556, 560 (Pa. Super. 2004).
I n this case, the trial court credited Trooper DeLuca's testimony that – before the Trooper pulled the subject vehicle over to the side of the road – the Trooper observed that the vehicle was being driven with window tinting so dark that he " could not see into the vehicle at all." Trial Court Opinion, 5/ 1/ 12, at 5. We will not disturb the trial court's credibility determination. Moreover, we conclude that Trooper DeLuca's testimony establishes that, prior to the vehicle stop, Trooper DeLuca observed a clear and manifest violation of Section 4524(e)(1) of the Vehicle Code. Therefore, Trooper DeLuca had probable cause to make the initial vehicle stop. Appellant's claim to the contrary fails.
For Appellant's second claim on appeal, Appellant contends that the trial court erred when it refused to suppress the Commonwealth's evidence because (even if the initial traffic stop were lawful) the traffic stop ended when Trooper DeLuca returned the identification cards to Mr. McKinley, gave Mr. McKinley a written warning, shook Mr. McKinley's hand, and told Mr. McKinley to "have a nice day." Appellant claims that, when Trooper DeLuca re-engaged Mr. McKinley by saying "Mr. McKinley, can I ask you a question?, " the Trooper subjected Appellant to a second seizure – and the Trooper did so without possessing the necessary reasonable suspicion that criminal activity was afoot. Appellant's Brief at 7-15.
As explained above, the trial court rejected Appellant's claim because, it reasoned, Trooper DeLuca's "re-engagement" of Mr. McKinley constituted a mere encounter. In the alternative, the trial court held that, if the re-engagement constituted an investigatory detention, the detention was supported by reasonable suspicion. Trial Court Opinion, 5/ 6/ 13, at 10-11.
Pursuant to our binding precedent, we conclude that Trooper DeLuca's re-engagement of Mr. McKinley constituted an investigatory detention. However, we conclude that the detention was lawful, as it was supported by reasonable suspicion. Therefore, Appellant's claim on appeal fails.
At the outset, we note that Appellant has conceded that the initial traffic stop ended when Trooper DeLuca returned the identification cards to Mr. McKinley, gave Mr. McKinley a written warning, shook Mr. McKinley's hand, and told Mr. McKinley to "have a nice day." Appellant's Brief at 13-14; see also Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000) (officer's initial investigatory detention of defendant – for suspicion that the defendant was urinating on the side of the road – ended when the officer returned the defendant's driver's license, " advised [ the defendant] that it was not appropriate to stop along the road and urinate on someone else's property[, ] thanked [ the defendant] for his cooperation[, ] and began walking away"). The issues now before this Court are whether – when Trooper DeLuca re-engaged Mr. McKinley by saying "Mr. McKinley, can I ask you a question?" – Trooper DeLuca subjected Appellant to an investigatory detention and, if so, whether the detention was supported by reasonable suspicion.
The difference between a "mere encounter" and an "investigative detention" turns upon whether the individual has been subjected to a seizure. Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa. Super. 2010). Our Supreme Court has explained:
To guide the crucial inquiry as to whether or not a seizure has been effected, the United States Supreme Court has devised an objective test entailing a determination of whether, in view of all surrounding circumstances, a reasonable person would have believed that he was free to leave. I n evaluating the circumstances, the focus is directed toward whether, by means of physical force or show of authority, the citizen-subject's movement has in some way been restrained. I n making this determination, courts must apply the totality-of-the-circumstances approach, with no single factor dictating the ultimate conclusion as to whether a seizure has occurred.
Strickler, 757 A.2d at 889-890 (internal citations and footnotes omitted). I n other words, "[ t] o determine if an interaction rises to the level of an investigative detention . . . the court must examine all the circumstances and determine whether police action would have made a reasonable person believe he was not free to go and was subject to the officer's orders." Commonwealth v. Stevenson, 832 A.2d 1123, 1127 (Pa. Super. 2003). Further, since this test focuses upon what a "reasonable person" would feel, the "uncommunicated intent of [ the] police is irrelevant [ in] determin[ ing] whether [ a] seizure occurred" in the context of the Fourth Amendment. Michigan v. Chesternut , 486 U.S. 567, 575 n.7 (1988). " [ T] he subjective intent of the officer[ ] is relevant to an assessment of the Fourth Amendment implications of police conduct only to the extent that [ the] intent has been conveyed to the person confronted." Id. (internal emphasis omitted).
As we stated above, binding precedent requires us to conclude that – when Trooper DeLuca re-engaged Mr. McKinley – Trooper DeLuca subjected Mr. McKinley to an investigative detention. Indeed, with respect to this particular issue, our en banc opinion in Commonwealth v. Kemp is a factual, procedural, and legal mirror of the case at bar. 961 A.2d 1247 (Pa. Super. 2008) (en banc).
Kemp involved the same Pennsylvania State Trooper, who was monitoring the same stretch of road, and who pulled the subject vehicle over for violating the same "illegal window-tinting" Vehicle Code statute. Id. at 1250-1251. As we explained in Kemp, after Trooper DeLuca made the initial traffic stop, the Trooper became suspicious that the vehicle was being used to transport drugs. Specifically, in Kemp, Trooper DeLuca testified that his suspicions were aroused because of: the "extremely strong odor of . . . air fresheners, " the apparent nervousness of the driver, the fact that the driver was using a vehicle owned by a third-party, the fact that the driver did not know the third-party who supplied the vehicle, the fact that the driver and the defendant-passenger (Mr. Kemp) were traveling from a noted drug " source city, " and the fact that the Trooper " could detect the faint odor of [ raw] marijuana . . . from the inside of the vehicle." Id. at 1251-1252.
In Kemp, Trooper DeLuca learned that the driver of the vehicle did not have a valid driver's license, but that Mr. Kemp did. Trooper DeLuca thus "issued [ the driver] a warning for the improperly-tinted windows and the license violation, " told the driver to " have a nice day, " and – when the driver walked back to the vehicle – "Trooper DeLuca re-initiated contact by asking [ the driver] if he 'could speak to her a minute.'" Id. I n Kemp, after Trooper DeLuca questioned the driver, the Trooper "told [ the driver] t hat she was free to go and instructed her to tell [ Mr. Kemp], who was standing outside the vehicle, that he would have to drive." Id. at 1252. As we explained:
When [ Mr. Kemp] returned to the vehicle, Trooper DeLuca gave [ Mr. Kemp] his driver's license, shook his hand, and told him "to have a nice day." As [ Mr. Kemp] reached the driver's side door, Trooper DeLuca re-initiated contact with him by asking "if [ he] could speak to him for a minute." [ Mr. Kemp] walked back toward Trooper DeLuca. Trooper DeLuca questioned [ Mr. Kemp] about details of his travel and then asked [ Mr. Kemp] if there were any "guns, drugs, or money" inside the vehicle. [ Mr. Kemp] immediately broke eye contact with the officer and responded negatively. Then, Trooper DeLuca asked [ Mr. Kemp] if he [ ]could look inside the vehicle, and [Mr. Kemp] stated: Sure. . . .
Id. The Trooper searched the vehicle, discovered marijuana in the vehicle, and arrested Mr. Kemp. Id.
Prior to trial, Mr. Kemp filed a motion to suppress and claim ed that, "even though the initial traffic stop in this case may have been proper, the prolonged seizure after [ Trooper DeLuca] had achieved the purpose of the vehicle stop required reasonable suspicion to support the continuation of the stop and questioning of [ Mr. Kemp] ." Id. The trial court denied Mr. Kemp's suppression motion because, it concluded, when Trooper DeLuca re-engaged Mr. Kemp, the Trooper did so in a way that constituted a "mere encounter." Id. at 1253.
Mr. Kemp proceeded to trial, was convicted of the drug charges, and appealed to this Court – where, eventually, the appeal was considered by an en banc panel of this Court. The issue before the Kemp Court was whether the trial court erred when it refused to suppress the evidence against Mr. Kemp. Id. at 1252.
We concluded that the trial court erred when it held that Trooper DeLuca's "re-engagement" of Mr. Kemp constituted a mere encounter. We explained:
Herein, both [ Mr. Kemp] and his companion were stopped at 1: 30 a.m. Two police vehicles were present at the scene. [ Mr. Kemp] and [ the driver] were directed to stand outside their vehicle. Immediately before he approached [ Mr. Kemp], Trooper DeLuca told [ the driver] that she was free to leave. [ The driver], however, was physically incapable of leaving the scene because she was not permitted to drive and had also been directed to tell [ Mr. Kemp] to report to the Trooper. Immediately after telling [ the driver] that she could leave, Trooper DeLuca re-initiated contact with her and subjected [ the driver] to extensive interrogation about the details of her travel, including who she was visiting in Allentown and why.
After returning [ Mr. Kemp's] documents, Trooper DeLuca never expressly informed [ Mr. Kemp] that he was free to leave the scene and instead, Trooper DeLuca then immediately re-initiated contact with [ Mr. Kemp] in a seamless interdiction. [ Mr. Kemp] was still standing outside his vehicle. As we noted in Commonwealth v. Moyer, 954 A.2d 659 (Pa. Super. 2008), when a person is standing outside rather than inside his vehicle, he is less likely to believe that he can actually leave the area by entering the car and driving away.
Also significant to our determination is the fact that Trooper DeLuca had observed major indicia of drug-related activity during the course of the traffic stop. I t is unlikely that after returning the documents and telling [ Mr. Kemp] to have a nice day, Trooper DeLuca would have permitted [ Mr. Kemp] to enter the car and drive away. Thus, given the totality of the circumstances at issue, we conclude that [ Mr. Kemp] was, in fact, not free to leave after Trooper DeLuca returned his driver's license. Rather, [ Mr. Kemp] was subjected to an investigatory detention.
Id. at 1253-1254.
Kemp is substantively identical to the case at bar. I n particular, in both cases: 1) Trooper DeLuca made the initial traffic stop late at night, on the Pennsylvania Turnpike, and grounded the stop upon a violation of Section 4524(e)(1) of the Vehicle Code; 2) when Trooper DeLuca approached the vehicle, the Trooper "observed major indicia of drug-related activity, " including the "extremely strong odor of . . . air fresheners, " the apparent nervous/ suspicious behavior of the driver, the fact that the driver was using a vehicle owned by a third-party, the fact that the driver did not know the third-party who supplied the vehicle, and the fact that the vehicle was traveling from a noted drug "source city; " 3) Trooper DeLuca terminated the initial vehicle stop by returning the identification cards to the driver, giving the driver a written warning, shaking the driver's hand, telling the driver to "have a nice day, " and watching as the driver walked back to his vehicle to drive away; 4) when Trooper DeLuca terminated the initial vehicle stop, Trooper DeLuca did not "expressly inform [ the driver] that he was free to leave the scene; " 5) while the driver was still outside his vehicle, Trooper DeLuca re-engaged the driver by stating either "can I ask you a question?" or "[ could] I speak to [ you] ?; " 6) in response to Trooper DeLuca's question, the driver walked back to Trooper DeLuca; 7) after re-engaging the driver, Trooper DeLuca asked whether the vehicle contained any "drugs, guns, and money" and, after receiving a negative response, Trooper DeLuca asked whether the driver would consent to a search of the vehicle; 8) the driver gave the Trooper consent to search the vehicle; and, 9) controlled substances were found during the search of the vehicle.
Given that the case at bar is essentially identical to Kemp, we are bound by Kemp's holding. Thus, we conclude that, when Trooper DeLuca re-engaged Mr. McKinley by saying "Mr. McKinley, can I ask you a question?, " Trooper DeLuca subjected Appellant to an investigatory detention.
However, Appellant is not entitled to relief in this case, as Trooper DeLuca possessed reasonable suspicion to believe that the subject vehicle was transporting controlled substances. Our Supreme Court has held:
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.
Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004) (internal citations, quotations, and corrections omitted).
In this case, the trial court thoroughly explained the basis for Trooper DeLuca's reasonable suspicion. As the trial court explained:
the evidence established that upon the windows being lowered in the vehicle for the first time, [ Trooper] DeLuca was overwhelmed by the scent of multiple citrus air fresheners, which are common masking agents [ for transporting controlled substances. The odor originated from the 12 air fresheners and the three air sanitizers that were within the vehicle] . Additionally, the passengers acted suspiciously upon being asked for registration and identification, especially when they opened the center [ vehicle] console, saw what was in it, and shut it immediately. Once [ Trooper] DeLuca received identifications, he not only determined that the operator was not a licensed driver, but also that the occupants had prior drug and gun related criminal records. The passengers were unable to provide ownership documents [ for the vehicle] . Upon running the [ license] plate[ ], [ Trooper] DeLuca discovered that the vehicle was registered to a fem ale in Ohio. Therefore, during the initial stop, [ Trooper] DeLuca discovered that the car was owned by a third party who was not present. Additionally, when asked where they were coming from, the driver told [ Trooper] DeLuca that they were traveling from Harrisburg, which is a noted source city. . . . [ These observations] were more than sufficient to establish reasonable suspicion [ to] support [ the] investigative detention.
Trial Court Opinion, 3/ 6/ 13, at 11-12 (internal citations omitted).
We agree with the trial court that Trooper DeLuca's observations were "more than sufficient" to create, in Trooper DeLuca, reasonable suspicion that the vehicle was transporting controlled substances. Id. at 12; see also Commonwealth v. Caban, 60 A.3d 120, 129 (Pa. Super. 2012) (holding that reasonable suspicion existed where: "[ t] he car was owned by a third party not present in the vehicle, [ the driver] acted nervously, the answers provided by [ the driver and the passenger] to basic questions regarding their destination were inconsistent, and various m asking agents, including air fresheners, canisters of perfume, and a bottle of Fabreze, were present in the vehicle"); Kemp, 961 A.2d at 1254 (reasonable suspicion existed where the trooper "was overpowered by the scent of air fresheners" in the vehicle; noticed that the driver was nervous; ascertained that the individuals were traveling from a noted drug "source city" in a third-party owned vehicle; and, detected the faint odor of raw marijuana emanating from the vehicle).
As Trooper DeLuca possessed the necessary reasonable suspicion to subject Appellant to the investigatory detention, Appellant's claim on appeal fails.
Next, Appellant claim s that the trial court erred in refusing to suppress the Commonwealth's evidence because Pennsylvania's "excessive window-tinting" statute violates the Commerce and Due Process Clauses of the United States Constitution. According to Appellant, since the initial traffic stop was grounded upon the violation of an unconstitutional statute, the initial seizure was unreasonable and, therefore, the fruits of the unconstitutional seizure must be suppressed. Appellant's Brief at 16. This claim fails, as Appellant does not have standing to challenge the constitutionality of Section 4524(e)(1). Further, even if Appellant does have standing to challenge Section 4524(e)(1), Appellant failed to satisfy his burden of demonstrating that the statute is unconstitutional.
While a defendant "generally has standing to assert in his defense any claim, including the constitutionality of a statute, that challenges the authority of the state to impose its force upon him, he does not have standing to object to the constitutionality of a statute unless he is affected by the particular feature alleged to be in conflict with the constitution." Commonwealth v. Dodge, 429 A.2d 1143, 1146 (Pa. Super. 1981). Here, Appellant claim s that Section 4524(e)(1) of the Vehicle Code is unconstitutional. Again, Section 4524(e)(1) declares:
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.
75 Pa.C.S.A. § 4524(e)(1).
Simply stated, Appellant was neither the driver nor the owner of the subject vehicle. Appellant was merely the passenger in a vehicle that was being driven in violation of Section 4524(e)(1) – and Trooper DeLuca did not issue Appellant any type of citation or warning for being the passenger in a vehicle that was being driven in violation of Section 4524(e)(1). As such, Appellant was not affected by the Section 4524(e)(1) violation and Appellant does not have standing to claim that Section 4524(e)(1) is unconstitutional. Dodge, 429 A.2d at 1146.
Moreover, even if Appellant does have standing to contest the constitutionality of Section 4524(e)(1), Appellant's claim fails.
Our Supreme Court has held:
Any party challenging the constitutionality of a statute must meet a heavy burden, for we presume legislation to be constitutional absent a demonstration that the statute clearly, palpably, and plainly violates the Constitution. The presumption that legislative enactments are constitutional is strong. All doubts are to be resolved in favor of finding that the legislative enactment passes constitutional muster. Moreover, statutes are to be construed whenever possible to uphold their constitutionality.
DePaul v. Commonwealth, 969 A.2d 536, 545-546 (Pa. 2009) (internal quotations, citations, and corrections omitted); see also Commonwealth v. Robinson, 438 A.2d 964 (Pa. 1981); Commonwealth v. Murray, 749 A.2d 513, 516 (Pa. Super. 2000) (en banc).
Appellant first claims that Section 4524(e)(1) of the Vehicle Code violates the dormant Commerce Clause of the United States Constitution.
In the words of the Pennsylvania Supreme Court:
The United States Constitution provides that "Congress shall have Power . . . to regulate Commerce . . . among the several States." U.S. Const. art. I, § 8. While the Commerce Clause expressly speaks only to the ability of Congress to regulate interstate commerce, it has been interpreted to contain "an implied limitation on the power of the States to interfere with or impose burdens on interstate commerce." W . & S. Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648, 652 (1981). This limitation has been sometimes coined the "negative" or "dormant" Commerce Clause. . . . The dormant Commerce Clause " prohibits economic protectionism – that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors."
ODC v. Marcone, 855 A.2d 654, 666 (Pa. 2004).
Section 4524(e)(1) of the Vehicle Code does not "facially discriminate[ ] against interstate com m erce by creating local economic protectionism ." Empire Sanitary Landfill, Inc. v. Com ., Dep't of Envtl. Res., 684 A.2d 1047, 1055 (Pa. 1996). Rather, the statute generally prohibits any person from driving any motor vehicle "with any sun screening . . . which does not perm it a person to see . . . the inside of the vehicle." 75 Pa.C.S.A. § 4524(e)(1). Therefore, since the statute does not facially discriminate against interstate commerce, the statute "will be upheld unless the burden imposed on interstate commerce is 'clearly excessive in relation to the putative local benefits.'" Empire Sanitary Landfill, Inc., 684 A.2d at 1056, citing Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
I n this case, Appellant simply did not introduce any evidence that Section 4524(e)(1) imposes any burden on interstate commerce. As such, Appellant's claim necessarily fails.
Second, Appellant claim s that Section 4524(e)(1) is unconstitutional because Pennsylvania does not post the level of permissible window-tinting on signs along the Pennsylvania Turnpike. Appellant's Brief at 17. According to Appellant, this violates his constitutional right to procedural due process. This claim fails.
We have explained:
While it is vitally important for citizens to understand what conduct is prohibited, we also must be mindful that "ignorance of the law is no defense." [ United States v. Caseer, 399 F.3d 828, 835 (6th Cir. 2005)] . Nonetheless, "the general rule that citizens are presumed to know requirements of the law . . . is not absolute, and may be abrogated when a law is so technical or obscure that it threatens to ensnare individuals engaged in apparently innocent conduct." Id. at 837.
Commonwealth v. Mahamud, 15 A.3d 80, 85 (Pa. Super. 2010).
Appellant has never claim ed that Section 4524(e)(1) is "so technical or obscure that it threatens to ensnare individuals engaged in apparently innocent conduct." See Appellant's Brief at 16-20. Moreover, Section 4524(e)(1) simply prohibits an individual from driving a 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." 75 Pa.C.S.A. § 4524(e)(1). We conclude that the behavior this statute seeks to regulate is obviously, apparently, and common-sensically illegal. One should know that windows could be so darkly tinted that driving becomes dangerous and that, if one cannot see inside of the vehicle, the driver very well might not be able to see out of the vehicle. Therefore, Section 4524(e)(1) is not " so technical or obscure that it threatens to ensnare individuals engaged in apparently innocent conduct." Mahamud, 15 A.3d at 85. Appellant's due process claim fails.
For Appellant's final claim on appeal, Appellant claim s that the trial court erred when it failed to sua sponte recuse itself from Appellant's sentencing hearing, after the trial court heard Trooper DeLuca rem ark that Appellant is "a m ajor heroin distributor in the City of Pittsburgh." N.T. Sentencing, 12/5/ 12, at 7-8. This claim is meritless.
During Appellant's sentencing hearing, Trooper DeLuca spontaneously declared that Appellant is " a major heroin distributor in the City of Pittsburgh." N.T. Sentencing, 12/ 5/ 12, at 7-8. Appellant immediately objected to Trooper DeLuca's statement. The trial court then sustained Appellant's objection, excused Trooper DeLuca as a witness, and continued on with the sentencing hearing. Id. Appellant did not request that the trial court either recuse itself or declare the sentencing proceedings a nullity. See id.
Under our case law, when a trial court sustains a litigant's objection, the objection will not preserve an unrequested remedy – such as a mistrial or the recusal of a judge. Indeed, as this Court has explained, "where the trial court has sustained [ an] objection, even where a defendant objects to specific conduct, the failure to request a rem edy such as a mistrial . . . is sufficient to constitute waiver." Commonwealth v. Manley, 985 A.2d 256, 267 n.8 (Pa. Super. 2009); see also Commonwealth v. Strunk, 953 A.2d 577 (Pa. Super. 2008) (claim that appellant was entitled to a new trial, as a result of juror misconduct, waived where appellant only "noted" the misconduct and failed to request mistrial); Commonwealth v. Jones, 460 A.2d 739, 741 (Pa. 1983) (claim that appellant was entitled to a new trial, as a result of prosecutorial misconduct, was waived where appellant's timely objection was sustained, but appellant "made no request for mistrial or curative instructions"); Commonwealth v. Brow n, 359 A.2d 393, 396 (Pa. 1976) (claim of prosecutorial misconduct was waived where the trial court sustained appellant's objection and appellant's counsel "requested neither a mistrial nor curative instructions").
Here, after Appellant objected to Trooper DeLuca's statement, the trial court sustained Appellant's objection and struck the Trooper's answer. The court thus granted Appellant all of the relief he requested. Appellant simply did not request the trial court judge to either recuse himself or declare the sentencing proceedings a nullity. Thus, Appellant has failed to preserve his current claim that, as a result of the alleged improper statement, he is entitled to a new sentencing hearing. See also Pa.R.A.P. 302(a) ("[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal"); Reilly by Reilly v. S.E. Pa. Transp. Auth., 489 A.2d 1291, 1300 (Pa. 1985) ("[o]nce the trial is completed with the entry of a verdict, a party is deemed to have waived his right to have a judge disqualified, and if he has waived that issue, he cannot be heard to complain following an unfavorable result").
Judgment of sentence affirmed. Judgment Entered.