J-A21025-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SANTOS CASTRO-MOTA : : Appellant : No. 221 EDA 2021 Appeal from the PCRA Order Entered December 31, 2020 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0002216-2017 BEFORE: KUNSELMAN, J., NICHOLS, J., and STEVENS, P.J.E.* MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 2, 2021 Appellant Santos Castro-Mota appeals from the order denying his first Post-Conviction Relief Act (PCRA)1 petition following an evidentiary hearing.

Appellant contends that trial counsel was ineffective by failing to file a motion to suppress. We affirm based on the PCRA court’s opinion.

We state the facts as presented by the PCRA court: On January 7, 2017, Officer Brian Bilecki and Corporal Joseph Gansky of the Bensalem Township Police Department were monitoring traffic entering Bensalem Township from the Pennsylvania Turnpike as part of their drug interdiction duties.

Both officers have extensive training and experience in investigating the use and distribution of illicit drugs which includes interdiction training. As part of that training, the officers were trained to look for specific indicators of drug activity. ____________________________________________

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

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At approximately 9:14 p.m., the officers observed a light blue Ford van drive through a cash-only tollbooth. After determining that the registration for the vehicle had expired at the end of September the previous year, the officers began to follow the van.

As they turned southbound onto Route 1, the officers observed the van driving in reverse on the shoulder of Route 1. The officers stopped their vehicle on the shoulder of the road in front of the van and activated their overhead lights. The van then drove out from behind them, stopped alongside the officers’ vehicle in the middle of a lane of traffic and [Appellant] asked for directions.

There were two occupants in the vehicle[: Appellant, who was driving, and his co-defendant, Nelson Saldana (Saldana), who was in the front passenger seat]. Officer Bilecki directed them to pull over to the shoulder of the road. The interaction between [Appellant] and the officers was recorded by a mobile video recorder in the officers’ patrol car. A redacted version of the audio and visual recording was viewed by the jury.

When Officer Bilecki approached the van, he noted that there was a single key in the ignition. An “overwhelming” odor of air freshener, commonly used to mask the odor of controlled substances, emanated from the van. Air fresheners and laundry detergent were ultimately retrieved from the floor of the van.

There was no laundry in the van.

The van was occupied by [Appellant] and Saldana. [Appellant], the driver of the vehicle, is a resident of Brooklyn, New York.

Saldana, a resident of Englewood, New Jersey, was seated in the front passenger seat. The van was registered to Beseliane Diaz, at 2957 North 8th Street in North Philadelphia. [Appellant] was asked about the owner of the vehicle and how he had come into possession of it. He was unable to provide any information regarding the owner. He told police that he had the van for approximately a week and that he got it from his friend “Julio.”

He was unable to provide Julio’s last name.

While interacting with [Appellant] and Saldana, the officers walked to the back of the van to consult with each other. After one of those occasions, Officer Bilecki returned to the driver’s door and observed [Appellant] talking to someone on a cellular “flip” phone while holding a cellular “smart” phone in his other hand.

While speaking to police, [Appellant] gave inconsistent accounts of his previous whereabouts. [Appellant] first asserted that he -2- J-A21025-21

and Saldana were returning from spending two or three days in Amboy, New Jersey with [Appellant’s] mother. When he was asked for her address, he told the officers that he did not know her address. [Appellant] next told police that he had just returned from Harrisburg where he was looking at a motorcycle he was considering buying from a friend. He stated that he then received a call to pick up Saldana at the King of Prussia Mall. When he was asked what his passenger’s name was and how he knew him, [Appellant] struggled to answer. [Appellant] ultimately stated that he met Saldana in Philadelphia two days prior but could not explain how that “connection occurred.” [Appellant] told police that Saldana lived off the Boulevard in the area of Wyoming Avenue in Philadelphia which contradicted the information Saldana had provided police.

Officer Bilecki testified that, after the van was stopped, he had several discreet interactions with [Appellant] during which he questioned [Appellant]. He testified that during his first and second interactions, [Appellant] had no difficulty responding to his questions and answering in English. When he questioned him a third time, [Appellant] began to indicate for the first time that he did not fully understand what he was being asked.

Based on a number of indicators of drug activity, the officers called for a K-9 officer to respond to the scene. [See, e.g., N.T. Trial, 6/27/18, at 34 (noting Route 1 is a drug trafficking corridor), 116, 135-36 (police testifying as to indicators of reasonable suspicion of drug trafficking at time of stop, including the aforementioned testimony).] After the K-9 officer arrived, but before the K-9 search was conducted, backup Officer Kevin Howard found a black plastic bag on the ground outside the passenger side of the van.

Inside the black bag was a clear plastic bag containing a suspected controlled substance[, specifically 78.02 grams of a mixture of heroin, fentanyl and/or furanylfentanyl. At trial, the Commonwealth presented testimony that the 78.02 grams “would be repackaged for sale, resulting in 2,496 individual bags or 178 bundles with a minimum street value of approximately $13,350.”]

A K-9 search of the outside of the van was then conducted. The dog, trained to alert when an odor of controlled substance is detected, alerted on both the driver and front passenger’s door.

A K-9 search was conducted of the interior of the van after the vehicle was towed to the Bensalem Township Police Department.

During that search, the dog alerted on the floor in between the -3- J-A21025-21

two front captain’s chairs, on the floor boards between and behind the front, passenger captain’s chair, on the seat of the front, passenger captain’s chair and on the third row of seats at the rear of the van.

The following items were on [Appellant’s] person: the two cellular telephones he was using during the vehicle stop, two SIM cards found in his wallet, and $500 in U.S. currency. The following items were on Saldana’s person: $2,800 in U.S. currency secured with what was described as a rubber band commonly used to secure bundles of heroin and a set of car keys which did not belong to the van. [Appellant] and Saldana were taken into custody at the scene of the vehicle stop. They were transported to the Bensalem Township Police Department where they were interviewed by Officer Felix Adorno, a Spanish-speaking officer. [Appellant] made one statement. He told Officer Adorno, “You got nothing on me.” Neither the previous registered owner of the van nor “Julio” ever made any attempt to retrieve the van.

PCRA Ct. Op., 5/4/21, at 3-6 (citations omitted and formatting altered).

On July 29, 2018, a jury found Appellant guilty of “possession with intent to deliver a controlled substance, criminal conspiracy, and use and/or possession with intent to use drug paraphernalia.” Id. at 1. On July 5, 2018, the trial court sentenced Appellant to five to ten years’ imprisonment.

Appellant appealed to this Court, which affirmed on July 1, 2019.

Commonwealth v. Castro-Mota, 2019 WL 2745554 (Pa. Super. filed July 1, 2019) (unpublished mem.).

On July 9, 2019, the PCRA court docketed Appellant’s timely pro se PCRA petition. The PCRA court appointed PCRA counsel, who filed an amended PCRA petition on December 17, 2019, which claimed that trial counsel was

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ineffective by not challenging the extended nature of the stop and by not moving to suppress the evidence. Am. PCRA Pet., 12/17/19.

On August 18, 2020, the PCRA court held an evidentiary hearing at which Appellant and Appellant’s trial counsel, Patrick McMenamin, Esq., both testified. In relevant part, trial counsel testified that he did not file a motion to suppress because, in his view, there was not a substantial delay between the time of the stop and the K-9 search at the traffic stop.2 N.T. PCRA Hr’g, 8/18/20, at 31-32. The PCRA court denied Appellant’s petition on December 31, 2020. Order, 12/31/20. Appellant timely appealed, and the PCRA court did not order Appellant to comply with Pa.R.A.P. 1925(b), but filed a responsive opinion.

Appellant raises a single issue: “Whether the PCRA court erred by denying [Appellant’s] petition for post-conviction relief?” Appellant’s Brief at 5.

Initially, Appellant “does not challenge the [police officer’s] initial decision to effectuate” the stop for the expired registration. Id. at 12.

Appellant, however, argues that the record did not establish the police had

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2 Trial counsel testified that twenty-one minutes elapsed from the time of the stop to the time of the K-9 search. N.T. PCRA Hr’g at 31. The PCRA court states that the video recording of the stop established that thirty-six minutes elapsed between the time of the stop and the time of the search. PCRA Ct. Op. at 13. The video recording, which the trial court admitted at Appellant’s trial, was transmitted to this Court as part of the certified record.

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reasonable suspicion to extend the traffic stop and question Appellant and his codefendant on matters unrelated to the stop. Id. at 13, 16 (citing, inter alia, Commonwealth v. Dales, 820 A.2d 807 (Pa. Super. 2003)). Appellant asserts that regardless of whether he established a reasonable expectation of privacy in the van, the drugs were abandoned as a direct result of an unconstitutional extended stop. Id. at 18-19. Appellant reasons that because the extended stop was unconstitutional, the results of the K-9 search should be suppressed. Id. at 20-21. Appellant concludes that because he was convicted only because of the seized drugs, he would have been acquitted if trial counsel had filed a motion to suppress. Id. at 22.

We state the following as guidance: Our standard of review from the denial of a PCRA petition is limited to examining whether the PCRA court’s determination is supported by the evidence of record and whether it is free of legal error. The PCRA court’s credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court’s legal conclusions.

We presume that the petitioner’s counsel was effective. To establish a claim of ineffective assistance of counsel, a defendant must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

The burden is on the defendant to prove all three of the following prongs: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Moreover, a failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness.

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The prejudice standard for an ineffectiveness claim is a higher standard than the harmless error analysis typically applied when assessing allegations of trial court error. Instead, a petitioner must prove actual prejudice, which our Supreme Court has defined as follows: A reasonable probability that, but for counsel’s lapse, the result of the proceeding would have been different. In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.

Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Ultimately, a reviewing court must question the reliability of the proceedings and ask whether the result of the particular proceeding was unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.

Commonwealth v. Campbell, --- A.3d ---, ---, 2021 WL 3889960, *3 (Pa. Super. 2021) (citations omitted and formatting altered).

In Commonwealth v. Shabezz, 166 A.3d 278 (Pa. 2017), our Supreme Court explained standing in the context of a suppression motion as follows: Generally, to have standing to pursue a suppression motion under Pa.R.Crim.P. 581, the defendant’s own constitutional rights must have been infringed. However, it is well settled that a defendant charged with a possessory offense in this Commonwealth has automatic standing because the charge itself alleges an interest sufficient to support a claim under Article I, § 8. This rule entitles a defendant to a review of the merits of his suppression motion without a preliminary showing of ownership or possession in the premises or items seized. In addition to standing, though, a defendant must show that he had a privacy interest in the place invaded or thing seized that society is prepared to recognize as reasonable.

While cursorily similar, standing and privacy interests are different concepts serving different functions. Standing is a legal interest -7- J-A21025-21

that empowers a defendant to assert a constitutional violation and thus seek to exclude or suppress the government’s evidence pursuant to the exclusionary rules under the Fourth Amendment to the United States Constitution or Article 1, Section 8 of the Pennsylvania Constitution. It ensures that a defendant is asserting a constitutional right of his own. The expectation of privacy is an inquiry into the validity of the search or seizure itself; if the defendant has no protected privacy interest, neither the Fourth Amendment nor Article I, § 8 is implicated. In essence, while a defendant’s standing dictates when a claim under Article I, § 8 may be brought, his privacy interest controls whether the claim will succeed—once a defendant has shown standing, he must, in short, having brought his claim, demonstrate its merits by a showing of his reasonable and legitimate expectation of privacy in the premises.

Shabezz, 166 A.3d at 286-87 (citations omitted and formatting altered).

Ordinarily, a defendant has no reasonable and legitimate privacy interest in voluntarily abandoned evidence. Commonwealth v. Ibrahim, 127 A.3d 819, 825 (Pa. Super. 2015). However, if the causative factor in the abandonment of the evidence at issue “was the unlawful and coercive” seizure of the defendant, then the evidence should be suppressed. Commonwealth v. Matos, 672 A.2d 769, 774 (Pa. 1996); Commonwealth v. Pollard, 299 A.2d 233, 236 (Pa. 1973) (holding that “[a]lthough abandoned property may normally be obtained and used for evidentiary purposes by the police, such property may not be utilized where the abandonment is coerced by unlawful police action” (footnote omitted)).

In In Interest of A.A., 195 A.3d 896 (Pa. 2018), our Supreme Court addressed whether the traffic stop at issue was unlawful and coercive, specifically, “whether information obtained by a police officer during a lawful

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initial traffic stop may be used to justify re-engagement with the driver after the police officer indicates the driver is free to go, such that [the defendant’s] consent to search given during that re-engagement is valid.” A.A., 195 A.3d at 898.

In resolving that issue, the A.A. Court summarized Rodriguez v. United States, 575 U.S. 348 (2015), in which the police stopped the defendant for a traffic violation, but “[a]fter conducting ‘all the business’ of the stop, including running a records check, asking [the defendant] several questions, and issuing [the defendant] a warning, the officer conducted a canine sniff of [the defendant’s] vehicle,” which resulted in a drug seizure.

Id. at 905. The A.A. Court summed up the Rodriguez Court’s reasoning in vacating the lower court’s decision: A seizure justified only by a police-observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation. The High Court also stated an officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual. As such, the [High] Court remanded the case to the Eighth Circuit to consider whether reasonable suspicion of criminal activity justified detaining [the defendant] beyond completion of the traffic infraction investigation.

Id. (citations omitted and formatting altered).

The A.A. Court also discussed Commonwealth v. Freeman, 757 A.2d 903 (Pa. 2000):

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The Freeman Court recognized that, in order to be a valid investigative detention during which consent to search might be properly obtained, the seizure must be justified by an articulable, reasonable suspicion that [the defendant] may have been engaged in criminal activity independent of that supporting her initial detention (the reason she was pulled over in the first place) and this question must be answered by examining the totality of the circumstances. It is clear the Court considered [the defendant’s] concealment of the fact she was traveling with the other vehicle to be inadequate to provide reasonable suspicion for a second detention and there were no other facts to support any such suspicion, beyond the initial observations which led to the traffic stop in the first place. The [Freeman] Court explained [that] in particular, there was no testimony that the actions of [the defendant] and her companions were consistent with those of drug dealers or criminals of any other type; that their route was heavily traveled by drug dealers; or, indeed, that the trooper suspected [the defendant] of drug dealing or any other specific crime. Such information would have contributed to reasonable suspicion clearly based on the totality of the circumstances, including any information gleaned during the initial traffic stop. . ..

Most importantly . . . Freeman does not stand for the proposition that information lawfully obtained during an initial traffic stop cannot be used to support the requisite suspicion for a second detention after a break in contact, simply because such information was not present in that case. Furthermore, our reading of Freeman comports with, and is supported by, the Rodriguez decision. See Rodriguez, [575 U.S. at 355] (officer may prolong traffic stop so long as “reasonable suspicion ordinarily demanded to justify detaining an individual” is present).

Accordingly, we confirm that all relevant facts and the whole picture necessarily includes any information learned by a police officer during an initial lawful traffic stop, irrespective of whether or not the officer suggests at some point during that stop that the subject of the stop is free to leave or tells him or her to have a good night. Unlike in Freeman, here it is clear based on the totality of circumstances derived from the initial stop — which included the odor of marijuana noted by [the police] along with his observations of [the defendant’s] sluggish and confused appearance and [the passenger’s] furtive movements — that he

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had reasonable suspicion to conduct a second detention of [the defendant].

Id. at 910 (emphases in original, some citations omitted, and formatting altered).

In Dales, the police conducted a traffic stop of the defendant’s vehicle for excessive tinted windows and wrote the defendant a warning slip. Dales, 820 A.2d at 810. At the time of the stop, the police noticed “(1) there was a smell of bactine[, an antiseptic spray,] emanating from [the d]efendant’s vehicle; (2) there were several air fresheners in the vehicle; and (3) [the d]efendant appeared nervous.” Id. at 815. The defendant produced the appropriate license, registration, and insurance documents to the police. Id. at 810. After the police returned the documents, the police questioned the defendant further, who gave inconsistent responses. Id. at 811. As a result, the defendant consented to a search of the vehicle, and the police recovered illegal narcotics. Id. In short, the trial court granted the defendant’s suppression motion, and the Commonwealth appealed. Id. at 811-12. The Dales Court affirmed because the police did not articulate “a reasonable suspicion to support the continued detention of [the defendant] once the purpose of the initial traffic stop had ended.” Id. at 814-15. Having summarized the applicable law, we address Appellant’s issue.

Instantly, Appellant questions whether the police had reasonable suspicion of criminal activity to extend the traffic stop but does not challenge the initial stop that was based on Appellant’s expired vehicle registration. See - 11 - J-A21025-21

Appellant’s Brief at 12-13. Firstly, Appellant has standing because he was charged with a possessory offense. See Shabezz, 166 A.3d at 286-87.

Generally, on these facts, Appellant would not have an expectation of privacy if he abandoned the drugs, but because suppression would be warranted if unlawful police action resulted in the abandonment of the contraband, we will examine the legality of the traffic stop. See Matos, 672 A.2d at 774; Pollard, 299 A.2d at 236.

Here, after careful review of the record, the parties’ briefs, and the PCRA court’s decision, we agree with the PCRA court’s reasoning that under the totality of the circumstances, the police had “reasonable suspicion that Appellant may have been engaged in criminal activity independent of that supporting his initial detention (the reason he was pulled over in the first place).” See A.A., 195 A.3d at 910 (emphasis in original and formatting altered); see also PCRA Ct. Op. at 3-6, 11-18. Specifically, when Officer Bilecki approached Appellant’s van to resolve the reason Appellant “was pulled over in the first place,” i.e., the expired registration, Officer Bilecki testified about numerous indicators of drug trafficking, including a single key in the ignition, overwhelming odor of air freshener, inability to produce the vehicle registration, third-party ownership of the vehicle, and inconsistent answers by Appellant and his passenger. See PCRA Ct. Op. at 3-6, 11-18; accord, e.g., N.T. Trial, 6/27/18, at 34, 116, 135-36; see also A.A., 195 A.3d at 910.

Unlike the police in Freeman, Officer Bilecki testified that the actions of

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Appellant and his passenger were consistent with those of drug traffickers, their route was a drug trafficking corridor, and he suspected Appellant of transporting drugs. Compare, e.g., N.T. Trial, 6/27/18, at 34, 116, 135-36, with Freeman, 757 A.2d at 908.

For those reasons, we also disagree with Appellant’s reliance on Dales because unlike the police in Dales, Officer Bilecki testified to more than just the odor and sight of several air fresheners, and that the defendant appeared nervous. Cf. Dales, 820 A.2d at 815. We agree with the PCRA court that because Appellant failed to establish an improper traffic stop, he has no basis to challenge the seizure of the abandoned drugs. See PCRA Ct. Op. at 18; Matos, 672 A.2d at 774; Ibrahim, 127 A.3d at 825. In sum, because we agree with the PCRA court that Appellant failed to establish that this claim had arguable merit, no relief is due. See Campbell, 2021 WL 3889960 at *3.

Order affirmed.

President Judge Emeritus Stevens joins the memorandum.

Judge Kunselman concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/02/2021

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