J-A20033-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

Appellee : 

: 

v. : 

: 

KASEIM WHITNEY, : 

: 

Appellant : No. 2941 EDA 2013 

Appeal from the Judgment of Sentence entered on November 17, 2011 

in the Court of Common Pleas of Chester County, 

Criminal Division, No. CP-15-CR-0001355-2010 

BEFORE: FORD ELLIOTT, P.J.E., MUNDY and MUSMANNO, JJ. 

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 05, 2014 

Kaseim Whitney (“Whitney”) appeals from the judgment of sentence 

imposed after he was convicted of possession with intent to deliver a 

controlled substance (“PWID”), firearms not to be carried without a license, 

possession of a firearm with an altered manufacturer’s number,1

 as well as 

the summary offense of turning movements and required signals.2 We 

affirm. 

The trial court extensively set forth the facts and procedural history 

 

 

1 See 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 6106(a)(1), 6110.2. 

2 See 75 Pa.C.S.A. § 3334(a). 
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underlying this appeal in its Opinion, which we adopt herein by reference. 

See Trial Court Opinion, 8/31/10, at 1-24.3

 Following a hearing, the suppression court entered an Order denying 

Whitney’s Motion to Suppress. The matter then proceeded to a non-jury 

trial, at the close of which the trial court found Whitney guilty of the abovementioned charges. 

Subsequently, on November 17, 2011, the trial court sentenced 

Whitney, on his PWID conviction, to a statutory term of five years in prison, 

and ordered him to pay the mandatory fine of $50,000. The court imposed 

a consecutive sentence of nine months to three years in prison for the 

conviction of possession of a firearm with an altered manufacturer’s number, 

and a concurrent sentence of eighteen months to three years for the 

firearms not to be carried without a license conviction. The court imposed 

no further penalty for Whitney’s summary conviction of turning movements 

and required signals. Whitney’s counsel did not timely file a direct appeal.

Following a procedural history that is not relevant to this appeal, on 

August 6, 2013, Whitney filed a pro se Petition under the Post Conviction 

Relief Act (“PCRA”),4 seeking reinstatement of his direct appeal rights, nunc 

pro tunc. The PCRA court granted relief, permitting Whitney to file an 

appeal nunc pro tunc, and appointing him counsel. Whitney timely filed a

 

3 We note that the quantity of marijuana that the police found in Whitney’s 

car was approximately 64 pounds. 

4 See 42 Pa.C.S.A. §§ 9541-9546. 
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Notice of Appeal. In response, the trial court ordered Whitney to file a 

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and 

Whitney timely filed a Concise Statement. 

On appeal, Whitney presents for our review the following issues 

challenging the denial of his Motion to Suppress: 

I. Does [] Whitney, an unauthorized driver of a rental 

vehicle, have standing to challenge the search of the rental 

vehicle and his belongings contained therein? 

II. Was the stop of [] Whitney’s vehicle pretextual and, if so, 

did the trial court err in failing to suppress physical 

evidence and [] Whitney’s statements?

III. Did the trial court err in failing to suppress physical 

evidence and [] Whitney’s statements after [] Whitney was 

told he was free to leave? 

IV. If this was an investigatory detention, did [the] trial court 

err in finding that there was reasonable and articulable 

suspicion to support such detention? 

V. Was [] Whitney’s consent to search his belongings 

voluntary or was it a product of an unjustified investigatory 

detention unsupported by reasonable suspicion that 

criminal activity was afoot? 

Brief for Appellant at 4. 

In reviewing the suppression court’s denial of Whitney’s Motion to 

Suppress, we are mindful that 

our role is to determine whether the record supports the 

suppression court’s factual findings and the legitimacy of the 

inferences and legal conclusions drawn from those findings. In 

making this determination, we may consider only the evidence of 

the prosecution’s witnesses and so much of the defense as, fairly 

read in the context of the record as a whole, remains

uncontradicted. When the evidence supports the factual findings 
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of the suppression court, we may reverse only if there is an error 

in the legal conclusions drawn from those factual findings. As a 

reviewing court, we are therefore not bound by the legal 

conclusions of the suppression court and must reverse that 

court’s determination if the conclusions are in error or the law is 

misapplied. 

Commonwealth v. Page, 59 A.3d 1118, 1131 (Pa. Super. 2013) (brackets 

and citation omitted). 

The Fourth Amendment to the United States Constitution and Article 1, 

Section 8 of the Pennsylvania Constitution protect individuals from 

unreasonable searches and seizures. U.S. Const. amend. IV; Pa. Const. art. 

1, § 8. Generally, law enforcement must obtain a warrant prior to 

conducting a search; however, there are certain exceptions to the warrant 

requirement. Commonwealth v. Lagenella, 83 A.3d 94, 102 (Pa. 2013). 

One such exception, implicated in the instant case, is a consensual search. 

Commonwealth v. Caban, 60 A.3d 120, 127 (Pa. Super. 2012). 

[T]he central inquiries in consensual search cases entail 

assessment of the constitutional validity of the citizen/police 

encounter giving rise to the consent, and the voluntariness of 

the consent given. To establish a valid consensual search, the 

Commonwealth must first prove that the individual consented 

during a legal police interaction. Where the underlying 

encounter is lawful, the voluntariness of the consent becomes 

the exclusive focus. 

Id. (citations omitted). 

 Regarding Whitney’s first issue, the Commonwealth concedes that he

has standing to challenge the legality of the traffic stop and search of the 

rental vehicle, and we agree with the Commonwealth’s assessment.
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 In his second issue, Whitney argues that the stop of his vehicle was 

unlawful, and all of the evidence produced as a result of the stop must be 

suppressed because the stop was pretextual in nature, as Trooper Justin 

Hope (“Trooper Hope”) inappropriately followed and stopped Whitney’s 

vehicle in order to conduct a warrantless search of its contents. See Brief 

for Appellant at 24-29. Whitney points out that Trooper Hope conceded at 

the suppression hearing that (1) the sole reason he had decided to pursue 

Whitney’s vehicle was because it was a rental vehicle; and (2) Trooper Hope 

followed Whitney for approximately thirteen miles to see if he would commit 

a Motor Vehicle Code (“Vehicle Code”) violation, which would provide 

Trooper Hope grounds to stop the vehicle and investigate whether Whitney 

was involved in criminal activity. See id. at 24-25 (citing N.T., 6/22/10, at 

76 (wherein Trooper Hope testified that “I needed to observe a violation, 

because that was my goal, to try to find a violation to stop that vehicle[.]”)).

The undisputed evidence establishes that Trooper Hope’s stop of 

Whitney’s vehicle was clearly pretextual. However, a traffic stop that is 

merely a pretext for some other investigation does not automatically require 

the suppression of evidence found after the traffic stop. Whren v. U.S., 

517 U.S. 806, 812-13 (1996). In Whren, the United States Supreme Court 

established a bright-line rule that any technical violation of a traffic code 

legitimizes a stop, even if the stop is merely a pretext for an investigation of 

some other crime. Id.; see also Arkansas v. Sullivan, 532 U.S. 769, 772 

(2001) (holding that a traffic violation arrest will not be rendered invalid by 
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the fact that it was a mere pretext for a narcotics search); U.S. v. 

Robinson, 414 U.S. 218, 221 n.1 (1973). This is true even if, as in the 

instant case, the Vehicle Code violation witnessed is a minor offense. 

Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008) (stating that 

“[t]he Fourth Amendment does not prevent police from stopping and 

questioning motorists when they witness or suspect a violation of traffic 

laws, even if it is a minor offense.”). Moreover, the Whren Court explained 

that the “[s]ubjective intentions [of the officer] play no role in ordinary, 

probable-cause Fourth Amendment analysis.” Whren, 517 U.S. at 813; see 

also Chase, 960 A.2d at 120 (stating that, “[i]f police can articulate a 

reasonable suspicion of a Vehicle Code violation, a constitutional inquiry into 

the officer’s motive for stopping the vehicle is unnecessary.”).

 Here, although Whitney strenuously challenges the pretextual nature 

of the stop, he does not dispute that he violated section 3334(a) of the 

Vehicle Code by changing lanes of travel without using his vehicle’s turn 

signal. See Brief for Appellant at 25, 31. Moreover, Whitney concedes that 

the case that he relies upon in support of his argument, U.S. v. Hernandez, 

55 F.3d 443 (9th Cir. 1995), was effectively overruled by Whren, see Brief 

for Appellant at 27. In any event, Hernandez is not binding precedent for 

this Court. See Commonwealth v. Dunnavant, 63 A.3d 1252, 1255 n.2 

(Pa. Super. 2013) (emphasizing that “[w]hile decisions of the lower federal 

courts have a persuasive authority, they are not binding on Pennsylvania 
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courts[.]”). Moreover, we are unpersuaded by Whitney’s attempts to avoid 

the applicability of the holding in Whren by pointing to factual distinctions. 

 Accordingly, although we withhold comment regarding our opinion as 

to the pretextual nature of the stop and Trooper Hope’s pursuit of Whitney’s 

vehicle for thirteen miles to observe a Vehicle Code violation, we must 

conclude that the stop was legal. 

 Next, we will simultaneously address Whitney’s related third, fourth, 

and fifth issues. Whitney argues that even if the stop of his vehicle was 

legal, the physical evidence and his statements that were elicited as a result 

of his detention were inadmissible and should have been suppressed as 

being the product of an unreasonable search and seizure. See Brief for 

Appellant at 14, 29-50. According to Whitney, the police interaction that 

occurred after Trooper Hope had informed him that he was free to leave was 

an unjustified investigative detention (as opposed to a “mere encounter”)

that was not supported by reasonable suspicion that Whitney was engaged 

in criminal activity. Id. Whitney summarizes his allegations in support of 

this challenge as follows: 

Having stopped [] Whitney, Trooper Hope requested his driver’s 

license and determined that it was valid and there were no 

outstanding warrants for [] Whitney. Upon learning that [] 

Whitney was not an authorized driver of the car, the trooper 

returned [Whitney’s] license and told him he was free to leave 

but he could not drive the car or walk on the turnpike. [] 

Whitney was given the choice of calling his girlfriend to pick him 

up there or allowing the trooper to drive him to the closest 

interchange[,] where she could meet him. Essentially, [] 

Whitney was not free to leave. Within seconds of informing him 

that he could leave, Trooper Hope, having been joined by two 
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more armed state troopers, began asking [] Whitney whether he 

had anything illegal in the car. Given all of these circumstances, 

[] Whitney did not believe he was free to leave and was the 

subject of an investigative detention without reasonable 

suspicion that he was involved in criminal activity. 

Id. at 14; see also id. at 37 (asserting that “Whitney [was] not told that he 

[did] not have to respond to Trooper Hope’s probing questions regarding 

illegal substances in the rental vehicle. ... The questioning [was] pointed 

and unrelenting[,] with [] Whitney responding to each question in the 

negative.”). Finally, Whitney contends that his consent to the search was 

invalid, as it was not voluntarily given and flowed from the illegal 

investigative detention. Id. at 51. 

 In its Opinion, the trial court set forth the applicable law and 

addressed Whitney’s claims, concluding that (1) the police interaction, which 

occurred after Whitney was told he was free to leave, constituted a mere 

encounter, not an investigative detention; (2) even if the interaction did not 

constitute a mere encounter (and a reasonable person in Whitney’s position 

would not have felt free to leave), Trooper Hope’s questioning of Whitney 

constituted an investigative detention supported by reasonable and 

articulable suspicion of criminal activity; and (3) the search of the vehicle 

was lawful and Whitney’s consent to the search was voluntarily given. See

Trial Court Opinion, 8/31/10, at 35-57. Our review reveals that the trial 

court’s thorough analysis is supported by the record and the law, and we 

therefore affirm on this basis with regard to Whitney’s remaining issues. 

See id.
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Accordingly, we conclude that the stop and search of Whitney’s vehicle 

was lawful, and, therefore, the suppression court properly denied Whitney’s 

Motion to Suppress. 

Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/5/2014 
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