J. S82024/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

BRADLEY ERCIL JAE BURGESS, :

:

Appellant : No. 366 MDA 2016

Appeal from the Judgment of Sentence January 22, 2016

In the Court of Common Pleas of Luzerne County 

Criminal Division at No(s): CP-40-CR-0003452-2014

BEFORE: OTT, DUBOW AND PLATT, JJ.*

MEMORANDUM BY DUBOW, J.: FILED JANUARY 25, 2017

Appellant, Bradley Ercil Jae Burgess, appeals from the January 22, 

2016 Judgment of Sentence entered in the Luzerne County Court of 

Common Pleas. After careful review, we affirm, in part on the basis of the 

trial court’s Opinion.

The trial court summarized the factual and procedural history as 

follows:

On November 19, 2014, the Luzerne County District Attorney 

filed a Criminal Information charging [Appellant] with possession 

of heroin with intent to deliver and DUI stemming from an 

August 20, 2014 traffic stop of a vehicle driven by [Appellant]. 

[Appellant] pleaded not guilty and a jury trial was scheduled. On 

January 9, 2015, represented by the Public Defender's Office, 

[Appellant] filed a counseled pre-trial motion to suppress 

statements made by [Appellant] and physical evidence seized.

 

* Retired Senior Judge Assigned to the Superior Court.
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A suppression hearing was held on July 28, 2015. The 

Commonwealth presented the testimony of Wilkes-Barre Police 

Officer David Balchun, and introduced [Appellant’s] driving 

record and two lab reports into evidence. Officer Balchun 

testified that on August 20, 2014, he observed a vehicle make a 

right hand turn from North Empire Court Street onto Coal Street 

without using its turn signal. Additionally, Officer Balchun 

testified that he smelled a strong odor of marijuana smoke 

coming from the vehicle. Officer Balchun initiated a traffic stop 

of the vehicle, and when he approached the driver's side door 

the odor of marijuana got stronger. Officer Balchun observed 

[Appellant] in the driver's seat, and asked him for his license and 

registration information, which [Appellant] provided. Officer 

Balchun then asked [Appellant] if he had any marijuana in the 

vehicle because he could smell a strong order of marijuana 

coming from it. Officer Balchun testified that [Appellant] 

responded that he had a little marijuana in his vehicle and then 

handed the officer a cigar wrapper with a small baggie of 

marijuana inside it. After being handed the marijuana, Officer 

Balchun advised [Appellant] that he was going to search 

[Appellant’s] vehicle for any other narcotics. Before the search 

could be conducted, however, [Appellant] fled in the vehicle. 

Officer Balchun pursued [Appellant] with his lights and siren 

activated, but [Appellant] refused to stop and instead ran 

several stop signs at a high rate of speed, travelled the wrong 

way down a one way street, and nearly hit a pedestrian. While 

pursuing [Appellant], Officer Balchun observed him throw 

several objects out the vehicle's window. [Appellant] was 

eventually apprehended and placed into custody after he pulled 

his vehicle into a driveway and jumped out while the vehicle was 

still rolling. When Officer Balchun returned to the area where he 

had observed [Appellant] throw the items out of the vehicle the 

officer found bundles of packaged heroin, totaling 250 packets. 

Based on [Appellant’s] careless and reckless driving, and a 

statement he made after being taken into custody that he had 

smoked marijuana prior to being pulled over by Officer Balchun, 

[Appellant] was taken for blood work. He tested positive for 

marijuana. Officer Balchun also testified that as the result of his 

check on [Appellant’s] driver's license, he learned that the 

license was suspended. At the conclusion of the suppression 

hearing, the Court denied [Appellant’s] suppression motion. 

An Amended Information was subsequently filed setting forth 

twenty-nine (29) counts against [Appellant] relating to the 
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events of August 20, 2014. Following a September 16, 2015 

jury trial [Appellant] was found guilty of twenty-seven (27) of 

the twenty-nine (29) counts. A Pre-Sentence Investigation (PSI) 

was ordered to be completed by the Luzerne County Adult 

Probation and Parole Department, and sentencing was scheduled 

for November 23, 2015. [Appellant] failed to appear on that 

date, however, and sentencing was continued until January 22, 

2016.

Following review and consideration of the recommendations of 

counsel and review of the PSI, [the trial court] sentenced 

[Appellant] to an aggregate term of incarceration of seven and 

one half (71⁄2) to fifteen (15) years in a state correctional

institution. 

Trial Court Opinion, filed 6/30/16, at 1-3.

Appellant, still represented by the Public Defender’s Office, filed a 

Motion for Modification of Sentence on January 28, 2016. Before the trial 

court ruled on the Motion, Appellant retained private counsel, who filed a 

Notice of Appeal with this Court on February 22, 2016. On March 1, 2016, 

the trial court denied Appellant’s Post-Sentence Motion.1

 

1 As a general rule, this Court has jurisdiction only over final orders. 

Commonwealth v. Rojas, 874 A.2d 638, 642 (Pa. Super. 2005). “A direct 

appeal in a criminal proceeding lies from the judgment of sentence.” 

Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super. 2007) 

(quotation marks and citation omitted). If a defendant in a criminal case 

files a timely post-sentence motion, the judgment of sentence does not 

become final for the purposes of an appeal until the trial court disposes of 

the motions or the motions are denied by operation of law. 

Commonwealth v. Borrero, 692 A.2d 158, 160 (Pa. Super. 1997). The 

denial of a timely post-sentence motion becomes the triggering event for 

filing a notice of appeal. Pa.R.Crim.P. 720(A)(2). When an appellant files a 

notice of appeal before the court has ruled on his post-sentence motions, the 

judgment of sentence has not become “final,” and any purported appeal will 

be interlocutory and unreviewable. Borrero, supra. In those 

circumstances, the proper remedy is to quash the appeal, relinquish 

Footnote continued on the following page.
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Appellant raises five issues on appeal.

1. Whether the trial court erred in ruling that there was probable 

cause to initiate a lawful traffic stop of the vehicle that was being 

driven by the Appellant? 

2. Whether the trial court erred in ruling that the statements 

made by the Appellant during the traffic stop were admissible at 

trial, given that they were the result of a custodial interrogation 

in which the Appellant was not read his Miranda rights?

3. Whether the trial court erred in ruling that the items of 

purported marijuana and heroin that were seized from the 

Appellant and taken into evidence were admissible at trial, given 

that they were fruits of inadmissible statements given by the 

Appellant to Officer Balchun?

4. Whether the Appellant was provided with effective assistance 

of counsel throughout the duration of his case?

5. Whether the sentence imposed by the Honorable Judge David 

W. Lupas of the Luzerne County Court of Common Pleas on 

January 22, 2016, was too excessive, given that a lesser 

sentence would not depreciate the seriousness of the offenses 

and it would still adequately punish the Appellant.

Appellant’s Brief at 3 (re-ordered for ease of disposition).

 

jurisdiction, and remand for the trial court to consider the post-sentence 

motions nunc pro tunc. Id. at 161. Nevertheless, if the court subsequently 

denies an appellant’s post-sentence motions, “[this Court] will treat [an] 

appellant’s premature notice of appeal as having been filed after entry of 

[an] order denying post-sentence motions.” See Commonwealth v. 

Ratushny, 17 A.3d 1269, 1271 n. 4 (Pa. Super. 2011). Instantly, because 

the trial court subsequently denied Appellant’s post-sentence motion on 

March 1, 2016, we will relate Appellant’s premature notice of appeal forward 

to March 1, 2016, to resolve any jurisdictional impediments. See id.
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Motion to Suppress

Appellant’s first three issues challenge the trial court’s denial of his 

Motion to Suppress. Our well-settled standard of review in an appeal from 

an order denying a Motion to Suppress is as follows: 

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.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citation 

omitted).

With our standard of review in mind, we address each of Appellant’s 

sub-arguments in turn.

The Traffic Stop

At the hearing on Appellant’s Motion to Supress, Officer Balchun 

testified that prior to effectuating the traffic stop, he personally observed 

Appellant turn without properly signaling, and smelled a strong odor of 

marijuana emanating from Appellant’s vehicle. The trial court found Officer 

Balchun’s testimony credible, and found that Officer Balchun had probable 

cause to stop Appellant. On appeal, Appellant avers that the trial court 

erred in finding that Officer Balchun had probable cause to stop Appellant’s 
J.S82024/16

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vehicle because there was “no smoke or any visible signs of smoke billowing 

from the windows of [Appellant’s] vehicle.” Appellant’s Brief at 8.

The Honorable David W. Lupas has authored a comprehensive, 

thorough, and well-reasoned Opinion, citing to the record and relevant case 

law in addressing Appellant’s claim. After careful review of the parties’ 

arguments, and the record, we affirm on the basis of the trial court’s well 

written Opinion, which found that (i) Officer Balchun’s credible testimony 

that he personally witnessed Appellant turn without properly signaling was a 

violation of 75 Pa.C.S. § 3334; and (ii) Appellant’s violation of Section 3334 

provided sufficient probable cause to justify the traffic stop. Trial Court 

Opinion, at 6-7.

Appellant’s Traffic Stop Statements 

Appellant next avers that his initial traffic stop and the single question 

posed therein constituted a custodial interrogation. He argues that, because 

he was not given his Miranda2 warnings, the statements he made during his 

traffic stop should have been suppressed. 

Judge Lupas has again authored a comprehensive, thorough, and wellreasoned Opinion, citing to the record and relevant case law in addressing 

Appellant’s claim. After careful review of the parties’ arguments, and the 

record, we affirm on the basis of the trial court’s well written Opinion, which 

found that (i) under our jurisprudence, Appellant was subject to an 

 

2 Miranda v. Arizona, 384 U.S. 436 (1966).
J.S82024/16

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investigatory detention, not under arrest, and “the dictates of Miranda do 

not attach during an investigatory detention[;]” and (ii) Officer Balchun’s 

single question, whether Appellant had marijuana, was a permissible 

question designed to “confirm[] or dispel[] the officer’s suspicions” that 

criminal activity was afoot. See Trial Court Opinion at 9 (citing 

Commonwealth v. Chase, 960 A.2d 108, [120] (Pa. 2008), and 

Commonwealth v. Murray, 936 A.2d 76, 81 (Pa. Super. 2007)).

The Seizure of Marijuana and Heroin

Appellant avers, in a single paragraph, that the trial court erred in 

denying his Motion to Suppress because the drugs that were seized “were 

fruits of the inadmissible statements made by [Appellant].” Appellant’s Brief 

at 11. 

As discussed supra, Appellant’s statement that there was marijuana in 

the car was not inadmissible or obtained in violation of Miranda. Because 

Appellant’s scant argument is premised on his averment that the statement 

should have been suppressed, we conclude that this argument is without 

merit. 

Effective Assistance of Counsel

In his fourth issue, Appellant raises an ineffective assistance of counsel 

claim, averring that trial counsel failed to adequately cross-examine Officer 

Balchun at trial. Appellant’s Brief at 12.
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Litigation of ineffectiveness claims is not generally a proper component 

of a defendant’s direct appeal, and is presumptively deferred for collateral 

attack under the PCRA. See Commonwealth v. Holmes, 79 A.3d 562, 576 

(Pa. 2013) (establishing a deferral rule for ineffectiveness claims litigated 

after its decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002)). 

However, the Pennsylvania Supreme Court has recognized two exceptions to 

the rule that ineffectiveness claims should be deferred until collateral review, 

both falling within the discretion of the trial court: 

First, we held that trial courts retain discretion, in extraordinary 

circumstances, to entertain a discrete claim of trial counsel 

ineffectiveness if the claim is both apparent from the record and 

meritorious, such that immediate consideration best serves the 

interest of justice. Second, we held that trial courts also have 

discretion to entertain prolix claims of ineffectiveness if there is a 

good cause shown and the unitary review thus permitted is 

accompanied by a knowing and express waiver by the defendant 

of the right to pursue a first PCRA petition. 

Commonwealth v. Arrington, 86 A.3d 831, 856-57 (Pa. 2014).

Here, the trial court chose not the exercise its discretion to entertain 

Appellant’s ineffectiveness claim. We agree with the trial court’s denial of 

relief because neither of the specified exceptions to the rule are present in 

this matter. It is not clear from the record whether Appellant’s claim is 

meritorious or whether trial counsel may have had a reasonable trial 

strategy for cross-examining Officer Balchun as he did. Nor was good cause 

or “a knowing and express waiver” of Appellant’s right to his first PCRA 
J.S82024/16

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Petition shown. Id. Accordingly, we decline to address Appellant’s 

ineffective assistance of counsel claims in this direct appeal. 

Discretionary Aspects of Sentence

Finally, Appellant challenges the discretionary aspects of his sentence. 

A challenge to the discretionary aspects of sentencing is not automatically 

reviewable as a matter of right. Commonwealth v. Hunter, 768 A.2d 

1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a 

discretionary sentencing issue:

We conduct a four part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 

902 and 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and 

modify sentence, see [Pa.R.Crim.P. 720]; (3) whether 

appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and 

(4) whether there is a substantial question that the 

sentence appealed from is not appropriate under the 

Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations 

omitted). 

In the instant case, Appellant filed a timely Post-Sentence Motion and 

Notice of Appeal. Although Appellant did not include in his brief a separate 

Rule 2119(f) Statement, the Commonwealth has not objected to this defect 

and, thus, we decline to find that the defect is fatal.3 As to whether 

Appellant has presented a substantial question, we note:

 

3 This Court may overlook an appellant’s failure to comply with Rule 2119(f) 

where the Commonwealth fails to object to the omission and a substantial 

Footnote continued on the following page.
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The determination of what constitutes a substantial 

question must be evaluated on a case-by-case basis. A 

substantial question exists only when the appellant 

advances a colorable argument that the sentencing judge’s 

actions were either: (1) inconsistent with a specific 

provision of the Sentencing Code; or (2) contrary to the 

fundamental norms which underlie the sentencing process.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations 

and quotation omitted).

Here, Appellant complains that “the sentences imposed [were] on the 

higher end of [Appellant’s] applicable sentencing guidelines[,]” and that “the 

trial court failed to properly take into consideration [Appellant’s] history and 

characteristics when imposing [Appellant’s] sentences for his offenses.” 

Appellant’s Brief at 14-15. In particular, Appellant avers that the trial court 

“failed to take into consideration” that Appellant’s prior record score of five 

was due in large part to “a manslaughter charge brought against [Appellant] 

when he was sixteen years old[.]” Id. at 14. 

An argument that the sentencing court failed to consider mitigating 

factors in favor of a lesser sentence does not present a substantial question 

appropriate for our review. Commonwealth v. Hanson, 856 A.2d 1254, 

1257-58 (Pa. Super. 2004). See also Commonwealth v. Griffin, 804 

A.2d 1, 9 (Pa. Super. 2002) (citing Commonwealth v. Williams, 562 A.2d 

1385, 1388 (Pa. Super. 1989) (en banc) (an allegation that the sentencing 

 

question is obvious from the appellant’s brief. Commonwealth v. Kneller, 

999 A.2d 608, 614 (Pa. Super. 2010).
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court did not adequately consider various factors is, in effect, a request that 

this court substitute its judgment for that of the lower court in fashioning a 

defendant’s sentence)).

Moreover, we note that Appellant does not allege that his 71⁄2 to 15 

year sentence is in the aggravated range of the sentencing guidelines or 

outside of the statutory maximum sentence. Nor does Appellant point to 

any specific provision of the Sentencing Code that the sentencing court 

ostensibly violated. Appellant’s bald assertion that his sentence is excessive 

does not raise a substantial question. See Commonwealth v. Trippett, 

932 A.2d 188, 201-03 (Pa. Super. 2007) (bald allegations of excessiveness 

insufficient to permit discretionary review). 

Because we conclude that Appellant has failed to raise a substantial 

question as to the appropriateness of his sentence, we will not address the 

merits of Appellant’s sentencing claim.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/25/2017
1 35 P.S. § 780-113(a)(30). 

2 75 Pa.C.S.A. § 3802(d)(1). 

3 The Defendant presented no testimony or evidence. 

I 

testified that on August 20, 2014, he observed a vehicle make a right hand turn from 

the Defendant's driving record and two lab reports into evidence.3 Officer Balchun 

presented the testimony of Wilkes-Barre Police Officer David Balchun, and introduced 

A suppression hearing was held · on July 28, 2015. The Commonwealth 

evidence seized. 

counseled pre-trial motion to suppress statements made by the Defendant and physical 

January 9, 2015, represented by the Public Defender's Office, the Defendant filed a 

by the Defendant. The Defendant pleaded not guilty and a jury trial was scheduled. On 

to deliver1 and DUl2 stemming from an August 20, 2014 traffic stop of a vehicle driven 

Information charging the above named Defendant with possession of heroin with intent 

On November 1°9, 2014, the Luzerne County District Attorney filed a Criminal 

I. FACTS AND PROCEDURAL HISTORY: 

BY: THE HONORABLE DAVID W. LUPAS 

OPINION 

N0.3452 OF 2014 

BRADLEY ERCIL BURGESS 

Defendant I Appellant 

CRIMINAL DIVISION 

v. 

IN THE COURT OF COMMON PLEAS 

OF LUZERNE COUNTY 

COMMONWEALTH OF PENNSYLVANIA 

11T!-I JUDICIAL DISTRICT OF PENNSYLVANIA 

Circulated 12/28/2016 11:31 AM
2 

North Empire Court Street onto Coal Street without using its turn signal. N.T. 7/28/15 at 

5. Additionally, Officer Balchun testified that he smelled a strong odor of marijuana 

smoke coming from the vehicle. Id. at 6, 15. Officer Balchun initiated a traffic stop of 

the vehicle, and when he approached the driver's side door the odor of marijuana got 

stronger. Id. at 16. Officer Balchun observed the Defendant in the driver's seat, and 

asked him for his license and registration information, which the Defendant provided. 

!Q. at 6, 16. Officer Balchun then asked the Defendant if he had any marijuana in the 

vehicle because he could smell a strong order of marijuana coming from it. Id. at 6-7, 

17. Officer Balchun testified that Defendant responded that he had a little marijuana in 

his vehicle and then handed the officer a cigar wrapper with a small baggie of marijuana 

inside it. Id. at 7. After being handed the marijuana, Officer Balchun advised the 

Defendant that he was going to search the Defendant's vehicle for any other narcotics. 

Id. Before the search could be conducted, however, the Defendant fled in the vehicle. 

Id. at 8. Officer Balchun pursued the Defendant with his lights and siren activated, but 

the Defendant refused to stop and instead ran several stop signs at a high rate of 

speed, travelled the wrong way down a one way street, and nearly hit a pedestrian. Id. 

at 9, 19. While pursuing the Defendant, Officer Balchun observed him throw several 

objects out the vehicle's window. Id. at 9-10. The Defendant was eventually 

apprehended and placed into custody after he pulled his vehicle into a driveway and 

jumped out while the vehicle was still rolling. Id. at 10-11. When Officer Balchun 

returned to the area where he had observed the Defendant throw the items out of the 

vehicle the officer found bundles of packaged heroin, totaling 250 packets. Id. at 11-12. 

Based on the Defendant's careless and reckless driving, and a statement he made after 
3 

4 Although the Defendant was present during the trial, after the jury concluded its 

deliberations and the parties were reassembled for the reading of the verdict the 

Defendant did not return to the courtroom and could not be located. The verdict was 

thus read in his absence. N.T. 9/16/15 at 186. 

5 Each of the individual sentences imposed upon the Defendant fell within the standard 

sentencing guideline ranges. The specific charges and sentences were as follows: 

Count 1 - Possession with intent to deliver controlled substance (heroin), 35 P.S. 

§ 780-113(a)(30): thirty-three (33) to sixty-six (66) months incarceration in a state 

correctional institution; 

sentence rights before the hearing concluded. Id. at 12-13. 

institution.5 N.T. 1/22/16 at 8-11. The Defendant was advised by this Court of his postincarceration of seven and one half (7 Yi) to fifteen (15) years in a state correctional 

review of the PSI, this Court sentenced the Defendant to an aggregate term of 

Following review and consideration of the recommendations of counsel and 

that date, however, and sentencing was continued until January 22, 2016. 

sentencing was scheduled for November 23, 2015. The Defendant failed to appear on 

twenty-nine (29) counts.4 A Pre-Sentence Investigation (PSI) was ordered to be 

completed by the Luzerne County Adult Probation and Parole Department, and 

September 16, 2015 jury trial the Defendant was found guilty of twenty-seven (27) of the 

counts against the Defendant relating to the events of August 20, 2014. Following a 

An Amended Information was subsequently filed setting forth twenty-nine (29) 

suppression motion. Id. at 33. 

the conclusion of the suppression hearing, the Court denied the Defendant's 

Defendant's driver's license, he learned that the license was suspended. ld. at 8. At 

for marijuana. Id. Officer Balchun also testified that as the result of his check on the 

Officer Balchun, the Defendant was taken for blood work. Id. at 12. He tested positive 

being taken into custody that he had smoked marijuana prior to being pulled over by 
Count 2 - Possession of a Controlled Substance (heroin), 35 P.S. § 780-113(a)(16): 

merged with Count 1 for sentencing purposes; 

Count 3 - Possession of a Small Amount of Marijuana, 35 P.S. § 780-113(31)(i): 

fifteen (15) to thirty (30) days incarceration, to run concurrently to the previously 

imposed sentence; 

Count 4 - Fleeing or Attempting to Elude an Officer, 75 Pa.C.S.A. § 3733(a): 

eighteen (18) to thirty-six (36) months incarceration, to run consecutively to the 

previously imposed sentences; 

Count 6 - Recklessly Endangering Another Person, 18 Pa.C.S.A. § 2705: twelve 

(12) to twenty-four (24) months incarceration, to run consecutively to the previously 

imposed sentence; 

Count 8 - DUI (1st Offense), 75 Pa.C.S.A. § 3802(d)(1 ): seventy-two (72) hours to six 

(6) months incarceration; to run concurrently to the previously imposed sentences; 

Count 9 - Flight to Avoid Apprehension, 18 Pa.C.S.A. 5126(a): eighteen (18) to 

thirty-six (36) months incarceration, to run consecutively to the previously imposed 

sentences; 

Count 10 - Defiant Trespass, 18 Pa.C.S.A. 3503(b)(1)(ii): $25.00 fine plus costs; 

Count 11 - Resisting Arrest, 18 Pa.C.S.A. § 5104: nine (9) to eighteen (18) months 

incarceration to run consecutively to the previously imposed sentences; 

Count 12 - Driving Without a License, 75 Pa.C.S.A. § 1501(a): $25.00 fine plus costs; 

Count 13 - Driving While Operating Privileges are Suspended, 75 Pa.C.S.A. § 

1543(a): $200.00 fine plus costs; 

Counts 14, 23-29 - Duties at a Stop Sign, 75 Pa.C.S.A. § 3323(b): $25.00 fine plus 

costs on each count; 

Count 15, 16 - Driving the Wrong Way, 75 Pa.C.S.A. § 3308(b): $25.00 fine plus 

costs on each count; 

Count 17 - Limitations on overtaking on the left, 75 Pa.C.S.A. § 3305: $25.00 fine 

plus costs; 

Count 18 - Turning Movements and Required Turning Signals, 75 Pa.C.S.A. § 

3334(a): $25.00 fine plus costs 

.count 19 - Driving at Safe Speed: $25.00 fine plus costs 

Count 20 - Exceeding 35 mph in Urban District, 75 Pa.C.S.A. § 3362(A 1-25): $25.00 

fine plus costs; 

Count 21 - Careless Driving, 75 Pa.C.S.A. § 3714(a): $25.00 fine plus costs; 

Count 22 - Reckless Driving, 75 Pa.C.S.A. § 3736: $200.00 fine plus costs. 

4 

however, the Defendant (by that time represented by private counsel) filed a Notice of 

and would still adequately punish the Defendant. Before the Court decided the motion, 

harsh, and that a lesser sentence would not depreciate the seriousness of the offenses 

counseled motion to modify his sentence on January 28, 2016, asserting that it was too 

Still represented by the Public Defender's Office, the Defendant filed a timely 
5 

e. In imposing a sentence upon the Defendant that was too excessive 

. ' given that a lesser sentence would not depreciate the seriousness of the 

offenses and it would still adequately punish the Defendant. 

d. That the Defendant was provided with effective assistance of counsel 

throughout the duration of the case; 

c. In finding that the statements made by the Defendant during the traffic 

stop were admissible during trial, given that they were the result of a 

custodial interrogation in which the Defendant was not read his Miranda 

rights; 

b. In finding that the items of purported marijuana and heroin that were 

seized from the Defendant and .taken into evidence were admissible at 

trial, given that they were fruits of inadmissible statements made by the 

Appellant to Officer Balchune [sic]; 

a. In finding that there was probable cause to initiate a lawful traffic stop of 

the vehicle that was being driven by the Defendant, which eventually led 

to his arrest; 

that this Court abused its discretion and committed errors of law as follows: 

The Defendant's Concise Statement of Errors Complained of on Appeal asserts 

II. LAW AND DISCUSSION: 

sentence should be affirmed. 

Defendant. For the reasons set forth below, we believe the verdict and judgment of 

This matter is now ripe for an Opinion addressing the alleged errors raised by the 

on April 29, 2016. 

Statement was submitted on March 16, 2016, and the Commonwealth filed its response 

Commonwealth was requested to respond thereto. The Defendant's Rule 1925(b) 

of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) and the 

rights. Also on March 1, 2016, the Defendant was directed to file a Concise Statement 

Defendant's motion to modify his sentence and again advised him of his appellate 

Appeal of his January 22, 2016 sentence. On March 1, 2016, we denied the 
6 

64 A.3d 1101, 1105 (Pa. Super. 2013) (citing Commonwealth v. Hernandez, 594 Pa. 

the belief that an offense has been or is being committed." Commonwealth v. Brown, 

within the officer's knowledge are sufficient to warrant a person of reasonable caution in 

recognized that "[t]he police have probable cause where the facts and circumstances 

With regard to probable cause, the courts of this Commonwealth have 

(Pa. 2011). 

Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en bane), appeal denied, 25 A.3d 397 

driver was in violation of some provision of the Code." Id. (citing Commonwealth v. 

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

detaining officer must "articulate specific facts possessed by him, at the time of the 

detention cannot serve an investigatory purpose relevant to the suspected violation, the 

Commonwealth v. Ibrahim, 127 A.3d 819, 823 (Pa. Super. 2015). When the driver's 

investigation to determine whether a motorist has committed that offense." 

does not apply in all instances because ... not all vehicle offenses require further 

75 Pa.C.S.A. § 6308(b). "Although subsection 6308(b) delineates the general rule, it 

Whenever a police officer ... 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. 

the Motor Vehicle Code provides that: 

Officer Balchun had probable cause to stop the Defendant's vehicle. Section 6308(b) of 

We first address the Defendant's assertion that this Court erred in finding that 

Pa. RA.P. 1925(b) Statement of Errors Complained of on Appeal filed 3/16/16. 
7 

been suppressed because it was given during a custodial interrogation and without 

The Defendant next asserts that his statement to Officer Balchun should have 

offense. 

which provided probable cause to believe that the Defendant was committing an 

Balchun articulated specific facts possessed by him, at the time of the questioned stop, 

finds Officer Balchun's testimony of his observations to be credible, and that Officer 

Court Street onto Coal Street without using a turn signal. N.T. 7/28/15 at 5. This Court 

personally observed the Defendant's vehicle make a right-hand turn from North Empire 

conduct violated 75 Pa.C.S.A. § 3334. Specifically, Officer Balchun testified that he 

supported a finding that the officer had probable cause to believe that the Defendant's 

75 Pa.C.S.A. § 3334(a)-(b). This Court found that the testimony of Officer Balchun 

§ 3334. Turning movements and required signals 

(a) General rule.-Upon a roadway no person shall turn a vehicle or 

move from one traffic lane to another or enter the traffic stream from a 

parked position unless and until the movement can be made with 

reasonable safety nor without giving an appropriate signal in the manner 

provided in this section. 

(b) Signals on turning and starting.-At speeds of less than 35 miles 

per hour, an appropriate signal of intention to turn right or left shall be 

given continuously during not less than the last 100 feet traveled by the 

vehicle before turning. The signal shall be given during not less than the 

last 300 feet at speeds in excess of 35 miles per hour. The signal shall 

also be given prior to entry of the vehicle into the traffic stream from a 

parked position. 

violation of 75 Pa.C.S.A. § 3334, which provides in pertinent part as follows. 

Here, the Defendant's vehicle was stopped for failing to use a turn signal, in 

Brown, supra. 

evaluated by considering all relevant facts under a totality of circumstances analysis. 

319, 935 A.2d 1275, 1284 (2007) (quotation and citations omitted)). Probable cause is 
8 

Miranda warnings, and further, that the marijuana surrendered by him and the heroin 

recovered after he threw it from the vehicle should have been suppressed because they 

were fruits of the inadmissible statement. An examination of the circumstances, 

however, as testified to by Officer Balchun and uncontradicted by the Defendant, 

supports the conclusion that both the statement and the evidence were properly ruled 

admissible. As explained, Officer Balchun had probable cause to lawfully stop the 

Defendant's vehicle for the motor vehicle code violation. When the officer performed 

the traffic stop and approached the Defendant's vehicle, however, he smelled a strong 

odor of marijuana coming from it. At this point, Officer Balchun was well within his 

authority to conduct an investigation detention and to search the vehicle. 

To maintain constitutional validity, an investigative detention must be supported 

by a reasonable and articulable suspicion that the person seized is engaged in criminal 

activity and may continue only so long as is necessary to confirm or dispel such 

suspicion." Commonwealth v. Strickler, 563 Pa. 47, 58, 757 A.2d 884, 889 (2000). See 

also Commonwealth v. Parker, 619 A.2d 735, 738 (Pa. Super.1993). The determination 

· of whether an officer had reasonable suspicion is an objective one which must be 

considered in light of the totality of the circumstances. Commonwealth v. Kemp, 961 

A.2d 1247, 1258 (Pa. Super. 2008). A stop focusing upon one violation may, in 

appropriate circumstances, be extended for purposes of pursuit of a separate suspected 

violation. Commonwealth v. Freeman, 563 Pa. 82, 89-90, 757 A.2d 903, 907-08 (2000). 

The smell of marijuana emanating from a person's vehicle is a specific and articulable 

fact reasonably warranting a belief that criminal activity is afoot. Commonwealth v. 

Trenge, 451 A.2d 701, 708 (Pa. Super. 1982). Here, the evidence supports a finding 
9 

6 Indeed, as we will discuss, the smell of marijuana coming from the vehicle provided 

probable cause to search the Defendant's vehicle regardless of further investigation or 

questioning. See Commonwealth v. Gary, 625 Pa. 183, 91 A.3d 102 (2014) (plurality) 

(not.ing that the smell of marijuana emanating from inside the vehicle provided 

undisputed probable cause to search); Commonwealth v. Stoner, 344 A.2d 633, 635 

(Pa. Super. 1975) (holding that the smell of marijuana provides probable cause to 

search). 

to confirm or dispel the officer's suspicions that the Defendant was engaged in criminal 

Because Officer Balchun asked the Defendant a single question, designed specifically 

officer asked him why he had a gun in his car, thus Miranda warning were not required). 

defendant was the subject of an investigatory detention. not under arrest. when an 

detention."' Commonwealth v. Murray, 936 A.2d 76, 81 (Pa. Super. 2007) (citing 

Commonwealth v. Kondash, 808 A.2d 94.3, 948 (Pa. Super. 2002) (finding that the 

established that 'the dictates of Miranda do not attach during an investigatory 

questions, but that does not obviate the officer's right to ask them. Further, "[i]t is wellPa. 80, 960 A.2d 108, 115-16 (2008). The Defendant could have refused to answer 

or dispelling the officer's suspicions of criminal activity. Commonwealth v. Chase, 599 

ask a detainee a moderate number of questions to try to obtain information confirming 

statement. Regarding the propriety of Officer Balchun's inquiry, we note that police may 

threatened the Defendant in any way or used force against him in order to obtain a 

marijuana in it. The record does not suggest that in asking this question Officer Balchun 

from the Defendant's vehicle, Officer Balchun asked the Defendant if there was 

During the investigative detention prompted by the smell of marijuana coming 

investigative detention to pursue that suspected activity.6 

reasonable suspicion to believe that additional criminal activity was afoot, justifying an 

that during the lawful traffic stop for the motor vehicle violation, Officer Balchun had 
7 The factual circumstances of~ are very similar to the instant case. Therein, police 

stopped a car for a suspected Motor Vehicle Code violation, then noticed the smell of 

marijuana coming from it When they approached. Commonwealth v. Gary, 29 A.3d 804, 

806 (Pa. Super. 2011). An officer asked the defendant if "there was anything in the 

vehicle that the officers 'needjedj'to be worried about"' and the defendant replied that 

"there was some 'weed' in the car." Id. The defendant was removed from the car and 

placed in a police cruiser, and a canine sniff of his car began. Id. During the canine 

sniff, the defendant got out of the police cruiser and fled. Id. He was apprehended and 

returned to the cruiser. Id. Marijuana was discovered in the car. Id. 

10 

See Gary, supra;7 Commonwealth v. Caban, 60 A.3d 120, 132 (Pa. Super. 2012) 

coming from the Defendant's vehicle, alone, would have provided grounds to search it. 

625 Pa. 183, 242. 91 A.3d 102. 138 (2014) (plurality). Thus, the smell of marijuana 

beyond the inherent mobility of a motor vehicle is required." Commonwealth v. Gary, 

for a warrantless search of a motor vehicle is probable cause to search; no exigency 

vehicles is coextensive with federal law under the Fourth Amendment. The prerequisite 

"In this Commonwealth, the law governing warrantless searches of motor 

and that search would have revealed the marijuana and heroin. 

probable cause to search the vehicle, based on the smell of marijuana coming from it, 

to suppress it was properly denied. Further, regardless of the propriety of his question 

to the Defendant and the Defendant's response thereto, Officer Balchun already had 

detention at the time the Defendant handed him the marijuana, the Defendant's request 

In response to the question asked by Officer Balchun, the Defendant indicated 

that he had marijuana in the vehicle, and then immediately handed a baggie of it to the 

officer. N.T. 7/28/15 at 7. Since Officer Balchun was conducting a lawful investigative 

statement was properly denied. 

activity, we f!nd that the question was properly posed pursuant to, and in furtherance of, 

a legal investigatory detention. As such, the Defendant's motion to suppress his 
11 

The trial court refused to suppress the marijuana, but the Superior Court 

reversed, finding that the defendant was in police custody prior to the search and there 

was no imperative need for prompt police action, thus, exigent circumstances were not 

present to justify the warrantless search and the evidence obtained from that search 

should have been suppressed. Id., 29 A.3d at 808. 

Granting the Commonwealth's Petition for Allowance of Appeal, the 

Pennsylvania Supreme Court agreed to address the following two issues: 

a. Were the police permitted to conduct a warrantless search of 

defendant's SUV for marijuana where, during a traffic stop, they could 

smell marijuana emanating from the vehicle, defendant informed police 

that he had marijuana in the SUV, and the officers had not had the 

opportunity to obtain a warrant prior to stopping the vehicle? 

b. Should this Court adopt the federal automobile exception to the warrant 

requirement? 

Commonwealth v. Gary, 615 Pa. 610, 44 A.3d 1146 (2012). The Supreme Court 

subsequently vacated the order of the Superior Court and reinstated the defendant's 

judgment of sentence, finding that "there is no dispute that probable cause existed to 

search Appellee's motor vehicle. Nothing more is required." Q_fily, 625 Pa. at 242, 91 

A.3d at 138. 

discovered during the lawful search of the vehicle had the Defendant not fled, and can 

request to suppress the heroin was properly denied, as that evidence would have been 

fleeing, the Defendant threw the heroin out the window of the vehicle. The Defendant's 

vehicle because the Defendant handed him the marijuana, then drove away. While 

As the record reflects, Officer Balchun did not have the opportunity to search the 

probable cause to search)). 

in being where he is, his detection of the odor of marijuana is sufficient to establish 

"plain smell" concept with that of plain view, and holding that where an officer is justified 

( citing Commonwealth v. Stoner, 344 A.2q 633, 635 (Pa. Super.1975) (analogizing a 

believe that marijuana was inside the vehicle and to support a search of that vehicle) 

401, 402-403 (Pa. Super. 2008) (the odor of marijuana provided probable cause to 

(probable cause existed where troopers clearly smelled the odor of raw marijuana 

emanating from the trunk of the vehicle); Commonwealth v. Copeland, 955 A.2d 396, 
12 

action. 

subsequent flight and abandonment of the heroin was not coerced by unlawful police 

handed it to police) they had probable cause to search the vehicle and the Defendant's 

the odor of marijuana, during which the Defendant admitted having marijuana and 

Motor Vehicle Code violation (which escalated into an investigative detention based on 

citations omitted). Here, because the police lawfully conducted a traffic stop for the 

Commonwealth v .. Shoatz, 366 A.2d 1216, 1219-1220 (Pa. 1976) (emphasis added, 

The theory of abandonment is predicated upon the clear intent of 

an individual to relinquish control of the property he possesses. 

Abandonment is primarily a question of intent, and intent 

may be inferred from words spoken, acts done, and other 

objective tacts. All relevant circumstances existing at the 

time of the · alleged abandonment should be considered. 

Police pursuit or the existence of a police investigation 

does not of itself render abandonment involuntary. The 

issue is not abandonment in the strict property-right sense, 

but whether the person prejudiced by the search had 

voluntarily discarded, left behind, or otherwise relinquished 

his interest in the property in question so that he could no 

longer retain a reasonable expectation of privacy with regard 

to it at the time of the search. 

Moreover, it is well settled that no one has standing to complain of a 

search or seizure of property that he has voluntarily abandoned. This 

Commonwealth has adopted the theory of abandonment of property only 

when it is shown that the seized evidence was not discarded as a result of 

unlawful police coercion. 

Although 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. 

abandoned property: 

additionally be viewed as being abandoned by the Defendant. The Pennsylvania 

Supreme Court set forth the following test for ascertaining whether a defendant 
13 

"'(\then imposing a sentence, a court is required to consider the particular 

circumstances of the offense and the character of the defendant." 

and quotation marks omitted). 

Commonwealth v. Perry, 883 A.2d 599, 602-03 (Pa. Super. 2005) (citing 

Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003). (internal citations 

Sentencing is a matter vested in the sound discretion of the sentencing 

judge, and a sentence will not be disturbed on appeal absent a manifest 

abuse of discretion. To constitute an abuse of discretion, the sentence 

imposed must either exceed the statutory limits or be manifestly 

excessive. In this context, an abuse of discretion is not shown merely by 

an error in judgment. Rather, the appellant must establish, by reference to 

the record, that the sentencing court ignored or misapplied the law, 

exercised its judgment for reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision. 

convictions. 

Finally, the Defendant challenges the sentences impose following his 

available on direct appeal). 

counsel in Pennsylvania generally are deferred to PCRA review and generally are not 

621 Pa. 595, 631, 79 A.3d 562, 583 (2013) (claims of ineffective assistance of trial 

counsel should be dismissed without prejudice. See also Commonwealth v. Holmes, 

accordance with this rule, the Defendant's claims regarding ineffective assistance of 

assistance of counsel on direct appeal, but should defer them for collateral review. In 

v. Grant, 813 A.2d 726 (Pa. 2002), defendants should not raise claims of ineffective 

assistance of counsel throughout the duration of the case. Pursuant to Commonwealth 

The Defendant additionally alleges that he was provided with ineffective 

that evidence was properly denied. 

used for evidentiary purposes by the police, and the Defendant's request to suppress 

For the foregoing reasons, the marijuana and heroin were lawfully obtained and 
14 

sentences imposed were not excessive, and were imposed so as to not diminish the 

serious nature of the offenses. Id. at 7. 

the Defendant posed to the public while committing the offenses. Id. at 7, 12. Thus the 

to reform his ways, as well as the serious nature of his current offenses, and the danger 

recognized the Defendant's failure to take advantage of the opportunities provided him 

juvenile, weapons offenses, and drug trafficking offenses. N.T. 1/22/16 at 7. We further 

lengthy criminal history, Which included manslaughter while the Defendant was a 

pre-sentence investigation, and this Court specifically recognized the Defendant's 

,r e. As noted above, the Defendant's sentences were imposed with the benefit of a 

offenses and it would still adequately punish the Defendant." Rule 1925(b) Statement at 

excessive because "a lesser sentence would not depreciate the seriousness of the 

Here, the Defendant specifically asserts that his standard ranges sentences were 

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010). 

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002), appeal 

denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert. denied, 545 U.S. 1148, 

125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). "In particular, the court should 

refer to the defendant's prior criminal record, his age, personal 

characteristics and his potential for rehabilitation." Id. Where the 

sentencing court had the benefit of a presentence investigation report 

("PSI"), we can assume the sentencing court "was aware of relevant 

information regarding the defendant's character and weighed those 

considerations along with mitigatfng statutory factors." Commonwealth v. 

Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also 

Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super. 2005) (stating if 

sentencing court has benefit of PSI, law expects court was aware of 

relevant information regarding defendant's character and weighed those 

considerations alonq with any mitigating factors). Further, where a 

sentence is within the standard range of the guidelines, Pennsylvania law 

views the sentence as appropriate under the Sentencing Code. See 

Commonwealth v. · Cruz-Centeno, 447 Pa. Super. 98, 668 A.2d 536 

(1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating 

combination of PSI and standard range sentence, absent more, cannot be 

considered excessive or unreasonable). 
15 

END OF OPINION 

For the foregoing reasons, the Defendant's appeal should be denied in its 

entirety, and the verdict and judgment of sentence affirmed.