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[U] Commonwealth v. Herens

Superior Court of Pennsylvania

March 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
IAN PATRICK HERENS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence March 19, 2013 in the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0003529-2012

BEFORE: FORD ELLIOTT, P.J.E., OTT, and STRASSBURGER, [*] JJ.

MEMORANDUM

STRASSBURGER, J.

Ian Patrick Herens (Appellant) appeals from the judgment of sentence entered March 19, 2013, after he was found guilty of possession of a controlled substance, possession with intent to deliver a controlled substance (PWID), and possession of drug paraphernalia.[1] We affirm.

On March 22, 2012, Pennsylvania State Trooper Sergio Colon conducted a traffic stop of Appellant's vehicle. Trooper Colon stopped Appellant's vehicle because he observed Appellant make a "sudden abrupt move" while driving, and because Appellant was speeding. N.T., 8/8/2012, at 20-21. Once Appellant was stopped, Trooper Colon informed Appellant that he would just be giving him a warning.

As Trooper Colon interacted with Appellant, he became concerned that "[m]aybe criminal activity may have been afoot." Id. at 57. The trooper observed that Appellant appeared nervous while interacting with him and, after returning to his police vehicle, noticed Appellant looking back at him in his rearview mirror and making "subtle furtive movements" with his hands. Id. at 25-31. Trooper Colon looked up Appellant's criminal history and discovered that Appellant had "a rap sheet which included an extensive criminal history [related] to distribution of marijuana. Also, the possession of an illegal firearm." Id. at 33-34.

Trooper Colon requested that Appellant step out of his vehicle, and Appellant complied. Trooper Colon asked Appellant if he could perform a pat down, and Appellant stated that he could. During the pat down of Appellant's waistband, an orange pill bottle fell out of Appellant's pants. Upon seeing that the label on the bottle had been ripped off, Trooper Colon arrested Appellant and placed him in the rear of the police vehicle. The trooper then performed an inventory search of Appellant's vehicle. Trooper Colon located a "manila folder full of … 107 empty glassine wax bags commonly used and known for heroin packaging." Id. at 42-43. The trooper also discovered "three bundles of heroin, … 34 total bags" and approximately "26 … small baggies of marijuana." Id. at 43. The pill bottle that prompted Trooper Colon's search was later found to contain "Percocet 30's." Id. at 44.

On June 21, 2012, Appellant filed a motion to suppress the drugs and drug paraphernalia recovered from his person and his vehicle. A suppression hearing was held on August 8, 2012. Appellant's motion to suppress was denied, and Appellant proceeded to a bench trial on March 19, 2013. Appellant was found guilty of the aforementioned offenses and sentenced to 27 to 120 months of incarceration followed by four years of probation. Appellant timely filed a notice of appeal. The trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925, and Appellant timely complied.

Appellant now raises the following issues on appeal.

[1.] Whether the trial court erred in denying [Appellant's] Motion to Suppress when subsequent to a lawful stop by law enforcement for a motor vehicle violation and subsequent issuance and delivery of a warning by law enforcement to the [A]ppellant, [A]ppellant was unlawfully seized[, ] detained[, ] and searched by law enforcement in violation of his constitutional rights?
[2.] Did [the] trial court err in denying [Appellant's] Motion to Suppress when upon completion of a motor vehicle stop, [A]ppellant was unlawfully directed out of his motor vehicle which was unlawful and [an] illegal seizure and detention of [A]ppellant and therefore any subsequent action of the law enforcement including a search, consensual or otherwise, would be a violation of [Appellant's] constitutional rights?
[3.] Did [the] trial court err in denying [Appellant's] Motion to Suppress when after an illegal and unlawful seizure and detention of ...

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