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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

ALONZO KEMP, : No. 775 WDA 2012

:

 Appellant :

Appeal from the Judgment of Sentence, March 12, 2012,

in the Court of Common Pleas of Allegheny County

Criminal Division at No. CP-02-CR-0000453-2010

BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 03, 2014

Appellant appeals from the judgment of sentence entered March 12, 

2012. Finding no error, we affirm.

The trial court accurately related the factual background:

On October 23, 2009, the Defendant was 

pulled over in the Garfield section of the City of 

Pittsburgh for traffic violations, including having 

tinted windows and brake lights that were not 

working. (T.R. 11/29/11, pp. 70, 73, 74). When 

officers asked the Defendant to step out of his 

vehicle, he did so, telling officers that he just had 

“a little bag of weed” on his person. (T.R. 11/29/11, 

p. 80). However, when he was searched by police, 

they discovered cocaine, marijuana and heroin, with 

a total estimated value of $1000, along with $334 in 

cash and two (2) cell phones. (T.R. 11/29/11, pp. 

81-82, 86-87, 93).

Trial court opinion, 7/3/14 at 1-2.
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While the factual background is straightforward, the procedural history 

is somewhat complex due to the involvement of multiple counsel on behalf 

of appellant and appellant’s additional pro se filings. We will simplify the 

history noting only those matters germane to the issue on appeal.

On June 23, 2010, counsel for appellant filed a motion to suppress. At 

the ensuing hearing on August 16, 2010, testimony was taken from the 

arresting officers. It was appellant’s theory that the traffic stop was 

pretextual and the subsequent pat-down illegal. At the hearing, 

Officer Michael Saldutte testified that as appellant was exiting his vehicle, he 

stated, “ah, man, all I have is a little bag of weed on me.” (Notes of 

testimony, 8/16/10 at 11.) On August 19, 2010, the trial court denied the 

motion to suppress. On December 28, 2010, appellant filed a notice of 

appeal pro se.

On September 27, 2011, appellant filed a pro se “Pretrial Writ of 

Habeas Corpus,” in which he asserted that the police falsified the “allegation 

of probable cause” when they stated in the criminal complaint that as 

appellant was exiting his vehicle, he stated, “ah, man, all I have is a little 

bag of weed on me.” Appellant concluded by requesting that all charges be 

dismissed. On October 17, 2011, appellant filed his second notice of appeal 

pro se. On November 22, 2011, the trial court denied appellant’s Pretrial 

Writ of Habeas Corpus.
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On November 30, 2011, a jury convicted appellant of two counts of 

possession of a controlled substance with intent to deliver and three counts 

of simple possession.1 On March 12, 2012, the court sentenced appellant to 

an aggregate term of three to six years’ imprisonment followed by 

seven years’ probation. Numerous parties filed post-sentence motions 

including pro se motions by appellant, the Public Defender, and private 

counsel, Mark Rubenstein, Esq. On March 30, 2012, appellant filed a third 

notice of appeal pro se, purportedly from the November 22, 2011 order 

denying his Pretrial Writ of Habeas Corpus, as made final by the March 12, 

2012 judgment of sentence. On April 25, 2012, the parties appeared for a 

hearing on post-trial motions. Appellant stated that he wanted to proceed 

pro se on post-trial and on appeal. Thereafter, a Grazier colloquy was 

conducted, and appellant was permitted to proceed pro se.

2

On appeal, appellant raises a single issue, asserting that the trial court 

erred in failing to grant his Pretrial Writ of Habeas Corpus petition. Appellant 

claims that the police lied when he supposedly admitted having “a little bag 

of weed on me.” Although he does not extend his argument further, 

presumably appellant is also arguing that the drug evidence should have 

 

1 35 P.S. § 780-113(a)(30) and (16), respectively.

2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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been suppressed because without this admission, the police were without 

probable cause to search him. We find no merit in appellant’s argument.3

As a procedural matter, we note that appellant was represented by 

counsel when he filed the Pretrial Writ of Habeas Corpus petition pro se. 

We agree with the trial court that appellant was not entitled to hybrid 

representation. Our supreme court has set a Commonwealth policy that no 

defendant has a right to hybrid representation, either at trial or on appeal. 

Commonwealth v. Padilla, 80 A.3d 1238, 1259 (Pa. 2013), cert. denied, 

Padilla v. Pennsylvania, 134 S.Ct. 2725 (2014). Therefore, the trial court 

properly could not grant relief on his Pretrial Writ of Habeas Corpus petition.

 

3 We also disagree with the Commonwealth’s argument. The 

Commonwealth asserts that appellant’s Pretrial Writ of Habeas Corpus 

petition must be treated as a petition under the Post Conviction Relief Act 

(“PCRA”). As such, the Commonwealth argues, appellant’s claim is not 

cognizable under the PCRA. We acknowledge that there is abundant case 

law directing that petitions for writ of habeas corpus be treated as petitions 

under the PCRA. See Commonwealth v. Turner, 80 A.3d 754, 770 (Pa. 

2013), cert. denied, Turner v. Pennsylvania, 134 S.Ct. 1771 (2014). 

However, these cases pertain to instances where the petition for writ of 

habeas corpus was filed post conviction (and usually following a direct 

appeal) and was functioning as a vehicle for collateral review. As these 

cases note, the PCRA subsumes the remedy of habeas corpus on collateral 

review. 42 Pa.C.S.A. § 9541. Instantly, however, appellant’s Pretrial Writ of 

Habeas Corpus petition was not attempting to seek collateral review but 

rather pre-trial dismissal of charges. Thus, it should not be treated as a 

PCRA petition. Moreover, our case law holds that the PCRA subsumes the 

remedy of habeas corpus where the claims asserted are cognizable under 

the PCRA. Turner, 80 A.3d at 770. If appellant’s argument on appeal is not 

cognizable under the PCRA, as the Commonwealth contends, then 

appellant’s Pretrial Writ of Habeas Corpus petition would not be subsumed 

by the PCRA.
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Moreover, we find that appellant’s issue, raised as per his Pretrial Writ 

of Habeas Corpus petition, actually goes to the decision of the court below to 

deny the motion to suppress. In this regard, we note our standard of 

review:

Our standard of review in addressing a challenge to 

the denial of a suppression motion is limited to 

determining whether the suppression court’s factual 

findings are supported by the record and whether 

the legal conclusions drawn from those facts are 

correct. Because the Commonwealth prevailed 

before the suppression court, we may consider only 

the evidence of the Commonwealth and so much of 

the evidence for the defense as remains 

uncontradicted when read in the context of the 

record as a whole. Where the suppression court’s 

factual findings are supported by the record, we are 

bound by these findings and may reverse only if the 

court’s legal conclusions are erroneous. Where, as 

here, the appeal of the determination of the 

suppression court turns on allegations of legal error, 

the suppression court’s legal conclusions are not 

binding on an appellate court, whose duty it is to 

determine if the suppression court properly applied 

the law to the facts. Thus, the conclusions of law of 

the courts below are subject to our plenary review.

Commonwealth v. Thompson, 93 A.3d 478, 484 (Pa.Super. 2014), 

quoting Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 

2012), appeal denied, 65 A.3d 413 (Pa. 2013).

We are bound by the credibility determinations of the trial court where 

they are supported by the record. Commonwealth v. Floyd, 937 A.2d 

494, 500 (Pa.Super. 2007). Here, the court below made a specific 

determination that Officer Saldutte was credible when he testified that 
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appellant stated as he was getting out of his car, “ah, man, all I have is a 

little bag of weed on me.” (Trial court opinion, 7/3/14 at 4.) Thus, we are 

bound by this determination and therefore find that the court did not abuse 

its discretion in denying suppression.

Accordingly, having found no merit in the issue on appeal, we will 

affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/3/2014