J-S11015-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

VALBERT GEORGE REID

Appellant No. 1391 MDA 2014

Appeal from the Judgment of Sentence July 16, 2014

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0003038-2013

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J. FILED APRIL 08, 2015

Appellant, Valbert George Reid, appeals from the judgment of 

sentence entered July 16, 2014, by the Honorable David L. Ashworth, Court 

of Common Pleas of Lancaster County. We affirm Reid’s conviction, but 

vacate his judgment of sentence and remand for resentencing. 

We take the underlying facts in this matter from the trial court’s 

September 23, 2014 opinion. 

On April 10, 2013, State Police Trooper Justin Hope, who 

has been a Trooper for 12 years and has received specialized 

training in the area of highway drug interdiction, was patrolling 

the Pennsylvania Turnpike in Lancaster County. (Notes of 

Testimony (N.T.), Suppression, 4/9/14 at 5-8.) At about 1:39 

p.m., he initiated a traffic stop of [Reid’s] vehicle for traveling at 

a speed of 68 mph in a posted 40 mph construction zone on 

Interstate 76 in Brecknock Township, Lancaster County. ([Id]. 

at 9, 20.) 

During the stop of [Reid’s] 2001 Dodge Caravan, Trooper 

Hope smelled a strong odor of raw marijuana coming from within 
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the vehicle. ([Id.] at 8, 16, 18.) He further observed that 

[Reid] possessed two cellular phones, and an air freshener 

hanging in the back seat area of the vehicle, and had a Bible on 

the dashboard. ([Id.] at 16.) A criminal history check revealed 

a prior possession with intent to deliver charge in 2005. ([Id.] 

at 19). Trooper Hope, therefore, requested to search [Reid’s] 

vehicle. ([Id.] at 22). [Reid] refused the request. ([Id.])

In response to an earlier request for backup assistance and 

for the K-9 unit (N.T., Suppression, 4/9/14 at 20), Trooper Jason 

Laudermilch and his dog, Eva, arrived at the scene shortly after 

[Reid] refused to consent to a search of his vehicle. ([Id.] at 

22-23, 63.) The dog quickly alerted to the odor of narcotics 

while searching the area of the rear hatch of the vehicle. ([Id.] 

at 66). ... The K-9 also alerted at the passenger side front 

window and, unprompted, jumped into the vehicle through the 

open window and immediately went to the area of the third row 

seat inside the vehicle. ([Id.] at 67.)

[Reid’s] vehicle was then seized and Trooper Hope applied 

for a warrant to search the vehicle. ([Id.] at 24-25.) The 

search pursuant to that warrant yielded approximately six 

pounds of marijuana, located in the rear of the vehicle in a white 

plastic bag. ([Id.] at 25....) [Reid] was arrested by Trooper 

Hope and subsequently charged with the crime of possession 

with intent to deliver a controlled substance. 

Following the search of the vehicle and his arrest, [Reid] 

was read his [Miranda] rights at the State Police Barracks by 

Corporal Keye Wysocki, at which time he waived those rights, 

after consulting with his attorney, and gave incriminating 

statements regarding the seized marijuana. (N.T., Suppression, 

4/16/14 at 7-12....) Specifically, [Reid] related that he was 

transporting the marijuana from Philadelphia to a subject in 

York, Pennsylvania. ([Id.] at 16.) 

Trial Court Opinion, 9/23/14 at 3-5 (footnotes omitted). 

Prior to trial, Reid filed a suppression motion, which the trial court 

denied following a hearing. See Order, 4/16/14. The trial court also denied 

Reid’s motion for reconsideration. Following a bench trial, the trial court 

convicted Reid of possession with intent to deliver marijuana. The trial court 
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sentenced Reid to the mandatory minimum sentence of one to three years’ 

incarceration pursuant to 18 Pa.C.S.A. § 7508. This timely appeal followed. 

Reid raises the following issues for our review.

1. Did the trial court err in denying the Motion to Suppress the 

evidence obtained during a search of Mr. Reid’s vehicle, 

where Trooper Hope did not have probable cause to stop Mr. 

Reid’s vehicle for exceeding the speed limit in an active work 

zone?

2. Was the application of 18 Pa.C.S. §7508 in the instant case 

unconstitutional, pursuant to Alleyne v. United States, 133 

S.Ct. 2151 (2013) and Commonwealth v. Newman, 99 A.3d 

86 (Pa. Super. 2014) (en banc)?

Appellant’s Brief at 5. 

Our standard when reviewing a trial court’s denial of a motion to 

suppress evidence is well-settled.

[W]e are limited to determining whether the factual findings are 

supported by the record and whether the legal conclusions 

drawn from those facts are correct. We may consider the

evidence of the witnesses offered by the prosecution, as verdict 

winner, and only so much of the defense evidence that remains 

uncontradicted when read in the context of the record as a 

whole. 

Commonwealth v. McAliley, 919 A.2d 272, 275-276 (Pa. Super. 2007) 

(citation omitted). “Moreover, if the evidence supports the factual findings 

of the suppression court, this Court will reverse only if there is an error in 

the legal conclusions drawn from those findings.” Commonwealth v. 

Powell, 994 A.2d 1096, 1101 (Pa. Super. 2010).
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The quantum of proof necessary to effectuate a vehicle stop on 

suspicion of a violation of the motor vehicle code is governed by 75 

Pa.C.S.A. § 6308(b), which states:

(b) Authority of police officer.—Whenever a police officer is 

engaged in a systematic program of checking vehicles or drivers 

or has reasonable suspicion that a violation of this title is 

occurring or has occurred, he may stop a vehicle, upon request 

or signal, for the purpose of checking the vehicle's registration, 

proof of financial responsibility, vehicle identification number or 

engine number or the driver's license, or to secure such other 

information as the officer may reasonably believe to be 

necessary to enforce the provisions of this title.

75 Pa.C.S.A. § 6308(b). Traffic stops based upon suspicion of a violation of 

the motor vehicle code under section 6308(b) “must serve a stated 

investigatory purpose.” Commonwealth v. Feczko, 10 A.2d 1285, 1291 

(2010). “Mere reasonable suspicion will not justify a vehicle stop when the 

driver’s detention cannot serve an investigatory purpose relevant to the 

suspected violation. In such an instance, ‘it is encumbent [sic] upon the 

officer to articulate specific facts possessed by him, at the time of the 

questioned stop, which would provide probable cause to believe that the 

vehicle or the driver was in violation of some provision of the Code.’” Id. 

(emphasis omitted) (citation omitted). 

Reid argues that Trooper Hope lacked probable cause to believe that 

he exceeded the speed limit in an active work zone in violation of 75 Pa.C.S. 

§ 3365, Special speed limitations. Section 3365(c.1), Active work 

zones, states that:
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When passing through an active work zone, no person shall drive 

a vehicle at a speed greater than the posted limit. An official 

traffic-control device shall indicate the beginning and end of each 

active work zone to traffic approaching in each direction.

75 Pa.C.S. § 3365(c.1). “Active work zone” is defined by 75 Pa.C.S.A. § 102 

as “[t]he portion of a work zone where construction, maintenance or utility 

workers are located on the roadway, berm or shoulder.” 

Reid is correct that a vehicular stop based solely upon suspicion of 

violating section 3365 requires probable cause: 

[A] vehicle stop based solely on offenses not ‘investigatable’ 

cannot be justified by a mere reasonable suspicion, because the 

purposes of a Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 

L.Ed.2d 889 (1968)] 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 such offenses.

Commonwealth v. Busser, 56 A.3d 419, 423 (Pa. Super. 2012) (footnote 

and citation omitted). 

It is undisputed that Trooper Hope clocked Reid driving 68 mph in a 40 

mph work zone prior to the vehicular stop. Reid argues that the work zone 

was not “active” at the time of the stop because there were not any workers 

in the posted 40 mph construction zone through which he was speeding. We 

find this interpretation to be too narrow. Trooper Hope testified that the 

speed limit reduction towards the active work zone gradually decreased from 

65 mph, to 55 mph, and finally to 40 mph once a driver entered the active 

work zone. See N.T., Suppression Hearing, 4/9/15 at 10. He also testified 

that although there were no workers between the mileposts were he stopped 
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Reid’s vehicle, there were workers on the road further west of that location. 

See id. at 38. 

Based upon the posted 40 mph speed limit, and the proximity to active 

workers in the construction zone, we agree that Reid was driving in an active 

work zone as that term is defined under 75 Pa.C.S.A. § 102. Officer Hope 

thus had probable cause to believe that Reid was driving in excess of the 

posted speed limit in violation of section 3365(c.1). As such, Reid’s 

challenge to the court’s denial of his suppression motion is without merit. 

Lastly, Reid argues that the trial court impermissibly sentenced him to 

the mandatory minimum sentence pursuant to 18 Pa.C.S.A. § 7508. As the 

parties and trial court now recognize, this Court has recently held that 

section 7508 is facially invalid pursuant to the Supreme Court of the United 

States’ decision in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 

186 L.Ed.2d 314 (2013). See Commonwealth v. Fennell, 105 A.3d 13 

(Pa. Super. 2014). Furthermore, this issue cannot be waived. See 

Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc) 

(holding that violations of Alleyne could not be waived). We therefore 

vacate Reid’s judgment of sentence and remand for re-sentencing without 

application of the mandatory minimum. 

Conviction affirmed. Judgment of sentence vacated. Case remanded 

for re-sentencing consistent with this memorandum. Jurisdiction 

relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/8/2015