J-S06006-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT NICHOLAS KULL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1057 MDA 2022

Appeal from the Judgment of Sentence Entered July 14, 2022

In the Court of Common Pleas of Schuylkill County 

Criminal Division at No.: CP-54-CR-0000357-2021

BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED: June 16, 2023

Appellant Robert Nicholas Kull appeals from the July 14, 2022 judgment 

of sentence entered in the Court of Common Pleas of Schuylkill County (“trial 

court”), following his bench conviction for possession of a controlled 

substance, possession of drug paraphernalia, and driving on a suspended 

license.

1

 Upon review, we affirm.

The facts and procedural history of this case are undisputed. Briefly, 

following a traffic stop on December 12, 2020, Appellant was arrested and 

charged with, inter alia, the foregoing crimes. On July 23, 2021, Appellant 

filed a pretrial suppression motion, which sought to exclude all contraband 

confiscated from his vehicle during the stop. On August 18, 2021, the trial 

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* Former Justice specially assigned to the Superior Court.

1 35 P.S. § 780-113(a)(16), (32) and 75 Pa.C.S.A. § 1543(b)(1)(i), 

respectively.
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court held a hearing on the motion at which only the Commonwealth 

presented witness testimony. The Commonwealth called to the stand Officer 

Isaac Souchak, Minersville Police Department, whose testimony the trial court 

summarized as follows:

Officer Souchak testified that he has been a police officer for 

approximately 10 years in Minersville Borough, St. Clair Borough, 

and previously New York City. He was also a federal law 

enforcement officer with the Unites States Coast Guard. He 

testified that he has received narcotics and addiction training 

through the Department of Homeland Security as well as the Coast 

Guard. He also received specialized training with the New York 

City Police Department in street narcotics enforcement and 

worked in street narcotics enforcement for two years. As part of 

his training, he learned to identify controlled substances and drug 

paraphernalia. Officer Souchak conducted approximately 200 plus 

narcotics investigations in New York City and approximately 75 to 

100 narcotics investigations in the St. Clair and Minersville police 

departments. He currently is part of the Drug Investigation Unit 

for the City of Pottsville police department.

During the hearing, Officer Souchak testified that he remembered 

the traffic stop. He testified that he pulled [Appellant] over 

because [Appellant] failed to signal while merging into a traffic 

lane from a parked position. [Appellant] pulled into a parking lot 

with artificial lighting. Officer Souchak observed [Appellant] reach 

down toward the passenger side, lean forward, and then 

immediately exit the vehicle with U.S. currency in one of his 

hands. Officer Souchak discovered that [Appellant] had an active 

arrest warrant as well as a suspended license. With [Appellant]

still outside of the vehicle, Officer Souchak placed him into custody 

due to the active arrest warrant.

Officer Souchak testified: “Well, we had to remove his dog that 

was in the vehicle. He did have a dog that was in there jumping 

around. And once that was secure, we were going to tow it 

because it was in a private lot.” Later he testified: “. . . there was 

a pretty angry dog inside. So I was walking around the outside of 

the vehicle while determining how we were safely going to remove 

the dog.” He testified the dog was barking and growling.
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During the course of Officer Souchak’s interaction with the vehicle 

itself, he observed a “folded dollar bill, containing a substance 

which later testified positive for methamphetamine in plain view 

in the center console. And then also on the rear passenger side 

window, I was able to observe a glass pipe used in smoking illicit 

narcotics.” Officer Souchak indicated he was able to observe 

through the passenger window approximately two inches of the 

section of the glass pipe, that one would apply their mouth, 

protruding from underneath the passenger seat. He added that 

there was residue on the portion of the pipe he observed. He 

testified it was readily apparent to him that the glass pipe was 

used for narcotics. Officer Souchak agreed that the dollar bill was 

folded lengthwise from the bottom to the top. He recalled the 

dollar bill contained a white substance that he believed to be 

methamphetamine. He stated the incriminating nature was 

readily apparent when he “saw” it. However, in accordance with 

Minersville Police Department policy he conducted a presumptive 

field NIK test, which ultimately confirmed the substance was 

methamphetamine. Officer Souchak further testified that he

noticed the glass pipe while he was using the flashlight. He 

indicated that he always uses a flashlight even during the daytime. 

He stated that during his recovery of the glass pipe, he recovered 

a Ziploc bag containing what was later identified as

methamphetamine. When questioned by counsel, Officer Souchak 

consistently agreed the pipe and Ziploc bag were visible through 

the passenger window. He stated that the Ziploc bag was right 

next to the pipe, slightly behind it. He affirmed he was able to 

view the Ziploc bag when he was in a position to recover the pipe. 

Based on his experience and training, Officer Souchak felt that the 

dollar bill on the console was being utilized for drug activity due 

to it being an “open-ended, folded dollar bill.” He also felt it was 

utilized for drug activity due to the dollar bill containing the white 

crystal-like substance, a substance Officer Souchak had numerous 

times previously identified, seized, and confirmed to be 

methamphetamine. Officer Souchak testified that there was 

enough white powdery substance on the dollar bill for him to be 

able to view the substance and recognize that it was an illicit 

narcotic. In terms of the location of the bags of 

methamphetamine, Officer Souchak testified that they were right 

next to the pipe which was in plain view. He testified that he was 

able to view the bags of methamphetamine when he was in the 

position to recover the glass pipe. Officer Souchak conceded that 
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the syringes found in the bags of methamphetamine were not in 

plain view.[2]

Officer Souchak testified that [Appellant]’s car was towed by 

Hammers Garage to a private car lot due to it obstructing ingress 

and egress from the parking lot. He also testified that he had 

[Appellant] remove the dog because the dog was acting “in a 

vicious manner,” and it would be better for [Appellant], as the 

owner, to remove his dog. During the dog’s removal, Officer 

Souchak remained directly next to [Appellant] to prevent any type 

of prisoner escape since he took [Appellant] from being rearhandcuffed to being front-handcuffed to effectuate the dog’s 

removal from the car. Officer Souchak believes [Appellant]

removed the dog from the passenger side door. Upon the door 

opening, the interior lights of the vehicle illuminated. Officer 

Souchak testified that if he had not previously observed the dollar 

bill and pipe in plain view when [Appellant] opened the car door 

to remove the dog those items still would have been where he 

found them.

Trial Court Opinion, 10/13/21, at 3-6 (record citations omitted; emphasis in 

original). On October 13, 2021, the trial court denied Appellant’s suppression 

motion. On May 23, 2022, Appellant proceeded to a stipulated non-jury trial, 

following which the trial court found him guilty of possession of a controlled 

substance, possession of drug paraphernalia, and driving on a suspended 

license.

3

 On July 14, 2022, the trial court sentenced Appellant to an aggregate 

of 6 to 23 months’ imprisonment, among other things. Although he did not 

file any post-sentence motion, Appellant timely appealed. The trial court 

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2 The Commonwealth conceded that the syringes found in the black bag were 

not in plain view and advised the court that it was not pursuing paraphernalia 

charges relative to the syringes. N.T., Suppression, 8/18/21, at 3. Thus, the 

possession of drug paraphernalia charge was premised on the discovery of the 

glass pipe. Id. 

3 The trial court found Appellant not guilty of possession with intent to deliver 

a controlled substance (methamphetamine). N.T., Trial, 5/23/22, at 2. 
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directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained 

of on appeal. Appellant complied, challenging only the denial of his 

suppression motion. In response, the trial court issued a statement in lieu of 

a Pa.R.A.P. 1925(a) opinion, adopting its October 13, 2021 order and opinion

denying Appellant’s suppression motion. 

On appeal, Appellant argues that the trial court “abused its discretion 

and/or committed an error of law by denying [his suppression motion] and 

finding that the Minersville Police Department had probable cause and/or 

exigent circumstances to conduct a warrantless search of [his] motor vehicle 

on December 12, 2020.” Appellant’s Brief at 4. In essence, Appellant claims 

that under Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020),4the 

Minersville Police Department needed probable cause and exigent 

circumstances to conduct a warrantless search of his vehicle, even if the police 

relied upon the plain view doctrine. Appellant’s Brief at 15. We disagree.

We repeatedly have determined that Alexander “does not address the 

plain view exception or any alterations to its requirements.” Commonwealth 

v. Smith, 285 A.3d 328, 332 (Pa. Super. 2022); see also Commonwealth 

v. McMahon, 280 A.3d 1069, 1073 (Pa. Super. 2022) (noting that Alexander

pertains only to the automobile exception to the warrant requirement); 

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4

In Alexander, the Court concluded that Article I, Section 8 of the 

Pennsylvania Constitution “affords greater protection to our citizens than the 

Fourth Amendment,” reaffirming pre-Commonwealth v. Gary, 91 A.3d 102 

(Pa. 2014) (plurality) decisions that required police to have both probable 

cause and exigent circumstances before conducting a warrantless search of 

an automobile. Alexander, 243 A.3d at 181. 
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accord Commonwealth v. Lutz, 270 A.3d 571, 576 (Pa. Super. 2022). 

Thus, consistent with the foregoing cases, where the circumstances permit an 

application of the plain view doctrine, we need not apply Alexander.

Having determined that Alexander is inapplicable sub judice, we now 

turn to Appellant’s claim, raised particularly in the argument section of his 

brief, that the incriminating nature of the items seized from his vehicle was 

not readily apparent to Officer Souchak. See Appellant’s Brief at 18. In other 

words, he suggests that the trial court erred in denying his suppression motion 

under the plain view doctrine. As we have explained:

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. Mbewe, 203 A.3d 983, 986 (Pa. Super. 2019) 

(quotations and citations omitted). Our scope of review of suppression rulings 

includes only the suppression hearing record and excludes evidence elicited at 

trial. In the Interest of L.J., 79 A.3d 1073, 1085 (Pa. 2013). 
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Both the Fourth Amendment to the United States Constitution and 

Article I, Section 8 of the Pennsylvania Constitution protect 

individuals from unreasonable searches and seizures by police in 

areas where individuals have a reasonable expectation of privacy. 

An expectation of privacy exists if a person has a subjective 

expectation of privacy that society is willing to recognize as 

legitimate and reasonable. Where there exists a reasonable 

expectation of privacy, Article I, Section 8 and the Fourth 

Amendment generally require police to obtain a warrant, issued 

by a neutral and detached magistrate and founded upon probable 

cause, prior to conducting a search or seizure of a person and/or 

a person’s property, unless one of the few well delineated 

exceptions apply.

Commonwealth v. Loughnane, 173 A.3d 733, 741 (Pa. 2017) (citations 

omitted). One such exception is the plain view doctrine first recognized by 

the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 

443, 464-69 (1971). Subsequently, in Horton v. California, 496 U.S. 128 

(1990), the United States Supreme Court adopted a three-pronged test for 

the application of the plain view doctrine: (1) the police must observe the 

object from a lawful vantage-point; (2) the incriminating character of the 

object must be immediately apparent; and (3) the police must have a lawful 

right of access to the object. Id. at 136-37; accord Commonwealth v. 

Collins, 950 A.2d 1041, 1045 (Pa. Super 2008) (en banc). 

Moreover, we recently explained in Smith:

There can be no reasonable expectation of privacy in an object 

that is in plain view. The question of whether property in plain 

view of the police may be seized must turn on the legality of the 

intrusion that enables them to perceive and physically seize the 

property in question. As we have long observed, there is no 

legitimate expectation of privacy shielding the portion of the 

interior of an automobile that may be viewed from outside the 

vehicle by either an inquisitive passerby or diligent police officers.

Furthermore, we are mindful that the Motor Vehicle Code provides 
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the statutory authorization for a police officer to stop a motor 

vehicle whenever a police officer has reasonable suspicion that a 

violation of this title is occurring or has occurred so that he may 

secure such other information as the officer may reasonably 

believe to be necessary to enforce the provisions of this title.

In determining whether the incriminating nature of an object is 

immediately apparent to the police officer, we look to the totality 

of the circumstances. An officer can never be one hundred 

percent certain that a substance in plain view is incriminating, but 

his belief must be supported by probable cause. When reviewing 

whether an object’s criminal nature is immediately apparent, we 

note that probable cause merely requires that the facts available 

to the officer would warrant a man of reasonable caution in the 

belief, that certain items may be contraband or stolen property or 

useful as evidence of a crime; it does not demand any showing 

that such a belief be correct or more likely true than false. A 

practical, non-technical probability that incriminating evidence is 

involved is all that is required. Where police officers observe 

incriminating-looking contraband in plain view in a vehicle from a

lawful vantage-point, the lack of advance notice and opportunity 

to obtain a warrant provides the officers with a lawful right of 

access to seize the object in question. 

Smith, 285 A.3d at 332-33 (quotation marks, brackets, ellipses, and citations 

omitted). 

Here, as noted earlier, Appellant assails only the second prong of the 

plain view doctrine—i.e., the incriminating character of the object must be 

immediately apparent. Based upon our review of the record, as detailed 

above, and given the totality of the circumstances, we discern no basis upon 

which to overrule the trial court’s application of the plain view doctrine. The 

court aptly reasoned:

Officer Souchak credibly and specifically testified that the dollar 

bill was in plain view, folded in such a way that he could see the 

white crystal-like, controlled substance contained within the 

folded portion. Likewise, he testified that approximately two 
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inches of the white-residue coated, mouth portion of the pipe was 

in plain view, and the bags of methamphetamine came into plain 

view when lie was in a position to remove the pipe. . . .

[T]he facts available to Officer Souchak as well as his extensive

experience in narcotics investigations enable[ed] him to identify 

the immediately apparent incriminating nature of the items. He 

testified that he had previously seized white crystal-like

substances, during narcotics investigations on multiple occasions, 

resulting in the confirmation of the presence of 

methamphetamine. This experience rendered the items’

incriminating nature readily apparent to Officer Souchak providing 

the requisite probable cause to believe the items were 

incriminating. He did not need to conduct any additional 

inspection to recognize their incriminating nature. Pursuant to the 

credible testimony, the methamphetamine and paraphernalia 

itself was visible in plain view.

Trial Court Opinion, 10/13/21, at 7-8 (record citations omitted). We agree 

with the trial court’s analysis. Accordingly, under the totality of the 

circumstances, Officer Souchak plainly viewed the methamphetamine-coated 

dollar bill, glass pipe and methamphetamine-filled Ziploc bag in Appellant’s 

vehicle when the officer explored humane ways to remove Appellant’s dog 

from the vehicle during the traffic stop. Accordingly, the trial court did not err 

in denying Appellant’s suppression motion. 

To the extent Appellant invites us to accept his proffered version of the 

events, claiming that Officer Souchak’s testimony, contrary to the trial court’s 

determination, was patently incredible and inconsistent, we decline the 

invitation. It is settled that we may not substitute our judgment for that of 

the factfinder—whether a jury or the trial court—because it is the province of 

the factfinder to assess the credibility of the witnesses and evidence. See 

Commonwealth v. Luczki, 212 A.3d 530, 542 (Pa. Super. 2019) (citation 
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omitted) (“[I]t is within the suppression court’s sole province as factfinder to 

pass on the credibility of witnesses and the weight to be given their 

testimony.”); Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995) 

(“an appellate court is barred from substituting its judgment for that of the 

finder of fact.”); Commonwealth v. Forbes, 867 A.2d 1268, 1273 (Pa. 

Super. 2005) (stating that “[t]he weight of the evidence is exclusively for the 

finder of fact[,] who is free to believe all, part, or none of the evidence and to 

determine the credibility of witnesses. An appellate court cannot substitute 

its judgment for that for the finder of fact.”).

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/16/2023