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Commonwealth v. Ngyuen

Superior Court of Pennsylvania

April 27, 2015

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TAM THANH NGYUEN, Appellant

Page 658

[Copyrighted Material Omitted]

Page 659

Appeal from the Judgment of Sentence entered March 14, 2014. In the Court of Common Pleas of Delaware County. Criminal Division at No(s): CP-23-CR-0003833-2012.

BEFORE: BOWES, SHOGAN, and FITZGERALD,[*] JJ.

OPINION

Page 660

SHOGAN, J.

Appellant, Tam Thanh Ngyuen, appeals from the judgment of sentence entered following his conviction for possession with intent to deliver a controlled substance (" PWID" ). For the reasons that follow, we vacate and remand.

The following findings of fact, as rendered by the trial court, are relevant to our analysis:

1. On January 4, 2012, shortly after 3:00 a.m., Trooper Jared Bromberg, an officer with the Pennsylvania State Police, was on duty and working patrol along with Trooper Thomas O'Konski when he observed a black Mercedes traveling at a high rate of speed. N.T., 6/20/13, pp. 21-23. Trooper Bromberg was working the 11 P.M. to 7 A.M. shift that evening. Id. at 20.
2. At approximately 3:15 A.M., as Trooper Bromberg was driving southbound on Interstate 95 (hereinafter " 1-95" ), the Mercedes drove past the troopers' patrol vehicle. Id. at 22. Upon observing the Mercedes, Trooper Bromberg " clocked" the speed of the vehicle by matching its speed for six tenths of a mile. Id. at 22. The Mercedes was traveling 73 MPH in a 55 MPH zone. See Commonwealth Exhibit, C-1, Affidavit of Probable Cause. Trooper Bromberg also observed the car following too closely. N.T., 6/20/13, p. 29.
3. Trooper Bromberg was in full uniform and in a marked Pennsylvania State Police vehicle. Id. at 21.
4. Trooper Bromberg activated his lights and siren in order to conduct a traffic stop of the vehicle. Id. at 22-23. The Mercedes pulled over onto the right shoulder of the road, between exits 7 and 8 on 1-95. Id. at 23.
5. Trooper Bromberg, who has been with employed with the Pennsylvania State Police for about eight and half years, has had extensive police training in the detection of controlled substances. Id. at 17-18. Over the course of his career, Trooper Bromberg has been involved in hundreds of drug investigations, and has investigated controlled substances while on patrol approximately 250-300 times. Id. at 18. He has made approximately 150 stops along the 1-95 Corridor that have involved narcotics. Id. at 29.
6. Following the stop, Trooper Bromberg approached the driver's side of the Mercedes along with Trooper O'Konski. Id. at 23. Trooper Bromberg identified himself to the driver and explained the reason for the stop. Id. at 24. After he obtained the driver's license and registration, he asked the driver to exit the vehicle. Id. at 24-25. The driver complied

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and stood at the rear of the vehicle per the trooper's request. The driver was not handcuffed. Id. at 26.
7. Trooper Bromberg observed the driver " moving around excessively, " overtalking" and noticed that the driver was " overly apologetic" during the stop. Id. at 24, 29.
8. As Trooper Bromberg approached the driver's side of the vehicle, Trooper O'Konski approached the passenger side. Trooper O'Konski stood at the right side of the vehicle without engaging the passenger. Id. at 25.
9. When the driver was asked to step to the rear of the vehicle, Trooper Bromberg then walked to the passenger side of the vehicle and asked the passenger, [Appellant] herein, for his driver's license. Id. at 26-27. [Appellant] refused to answer the trooper's questions and did not make eye contact. Id. at 27. Trooper Bromberg noted that in his experience, this type of behavior is consistent with narcotics activity discovered during traffic stops. [Appellant] eventually provided his information to Trooper Bromberg. Id.
10. Trooper Bromberg then returned to his vehicle and ran both the driver and [Appellant's] information through both NCIC and PENNDOT. Id. at 28. [Appellant] came back with " numerous prior drug arrests." Id. at 28.
11. Trooper Bromberg then returned to the Mercedes and issued a written warning for speeding and following too closely. Id. at 29. Trooper Bromberg returned the driver and [Appellant's] paperwork to them. Id. at 29-30.
12. Trooper Bromberg then told the driver that the traffic stop was complete and that he was free to go. Id. at 30. He told him " to be careful pulling away." Id.
13. The driver began walking back towards the front driver's seat of the Mercedes and the troopers walked towards their patrol vehicle. Id. at 30-31.
14. Before Trooper Bromberg entered the patrol car, he turned around and reengaged the driver. Id. at 31. He explained that he had approached his door and the driver had reached the front driver's side door to the Mercedes at this time. Id. at 31. He asked the driver if he could ask him some more questions, and the driver said yes. Id. at 31.
15. Trooper Bromberg asked the driver about his nervousness, and asked where he had been coming from. Id. at 31-32. He also asked about his relationship with [Appellant]. Id. The driver answered all of his questions. Id.
16. Trooper Bromberg then asked the driver for consent to search the vehicle and " all of its contents." Id. at 33. The driver gave consent. Id. at 34.
17. Trooper Bromberg did not use any threatening language or draw his gun during this time. The driver and [Appellant] were not handcuffed.
18. [Appellant] was asked to step out of the vehicle and was told that the driver had given consent to search the vehicle. Id. at 34.
19. [Appellant] did not make eye contact with Trooper Bromberg. Id. at 34. [Appellant] exited the vehicle after Trooper Bromberg made a second request. Id. 20.
20. When [Appellant] exited the vehicle, he stuck his hands in his pockets. Id. at 34. Trooper Bromberg asked [Appellant] to take his hands out of his pockets and keep his hands visible, and he complied. Id. at 34-35.
21. Trooper Bromberg asked [Appellant] if he had any weapons on him, and [Appellant] said no. Id. at 35.

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22. Trooper Bromberg then asked [Appellant] if he could frisk him for officer safety. Id. at 35. ...

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