J-S05013-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ORLANDO PORTFOLIO RODRIGUEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1422 MDA 2019

Appeal from the Judgment of Sentence Entered June 20, 2019

In the Court of Common Pleas of Berks County Criminal Division at 

No(s): CP-06-CR-0000153-2019

BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 23, 2020

Appellant, Orlando Portfolio Rodriguez, appeals from the judgment of 

sentence entered June 20, 2019, in the Court of Common Pleas of Berks 

County. We affirm.

The trial court summarized the factual and procedural history of this 

case as follows:

On December 31, 2018, at approximately 1:28 in the 

morning, Trooper Dominick Marino (“Trooper Marino”), along with 

Trooper Robert Markowski, were on patrol and located at the

intersection of Cabela Drive and State Route 61 north when 

Trooper Marino observed a vehicle in the left turn lane that was 

stopped over the stop line and into the crosswalk at a red light. 

After the light turned green and the vehicle turned, Trooper 

Marino initiated a traffic stop based on the failure of the vehicle to 

stop. 

Once the traffic stop was made, Trooper Marino approached 

the passenger side of the vehicle and detected a strong odor of 

marijuana along with a heavy odor of a masking agent. Trooper 

Marino also observed that the driver, identified as Appellant, was 
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not wearing his seatbelt. When asked whether there were any 

narcotics, money or firearms in the vehicle, Appellant responded 

that there were no firearms, but indicated that a backpack in the 

vehicle contained marijuana. Trooper Marino performed a search 

of Appellant’s vehicle and found two vacuum-sealed packages1

containing 967 grams (2.13 pounds) of marijuana in an olivegreen backpack and a blue backpack containing bundles of bulk 

U.S. currency. Appellant was detained and searched, upon which 

U.S. currency was found in the inside pocket of Appellant’s jacket. 

The total amount of U.S. currency seized both from Appellant’s 

person and from the blue backpack was $18,000.00. Appellant 

was also unable to produce a validly signed registration card or 

proof of financial responsibility. 

1 The Stipulation of Facts presented Corporal Anthony 

C. Garipoli of the Pennsylvania State Police who, if 

called to testify as an expert in the field of narcotics, 

would testify that the amount of marijuana, and the 

manner in which the marijuana was packaged, is 

consistent with an intent of delivery.

* * *

Appellant was arrested and charged at count one with 

Possession with Intent to Deliver a Controlled Substance2, at

count two with Possession of a Controlled Substance3 and at count 

three with Possession of Drug Paraphernalia4. Appellant was also 

charged with summary offenses for Registration Card to be Signed 

and Exhibited on Demand5, Required Financial Responsibility

6

,

Obedience to Traffic Signals7 and Restraint Systems8. On 

February 4, 2019, Appellant, through counsel, filed an Omnibus 

Pretrial Motion seeking suppression of physical evidence through 

a challenge to the legality of the initial traffic stop. A hearing was 

held April 18, 2019[,] on Appellant’s pretrial motion, which was 

subsequently denied by this court on May 20, 2019.

2 35 P.S. § 780-113(a)(30)

3 35 P.S. § 780-113(a)(16)

4 35 P.S. § 780-113(a)(32)

5 75 Pa.C.S.A. § 1311(a)

6 75 Pa.C.S.A. § 1786(f)

7 75 Pa.C.S.A. § 3111(a)

8 75 Pa.C.S.A. § 4581(a)(2)(ii)
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A bench trial was held on June 19, 2019, at which the parties 

agreed to a stipulated bench trial and submitted a stipulation of 

facts and the Commonwealth entered its evidence into the record. 

The next day, June 20, 2019, after reviewing the record, the 

evidence therein and the stipulation of facts, we found Appellant 

guilty as to counts one, two and three, and as to the summary 

offense of Obedience to Traffic Signals. Thereafter, this court 

sentenced Appellant to an aggregate sentence of a minimum of 

one year and a maximum of five years of incarceration in a State 

Correctional Facility. Appellant was RRRI eligible and his 

minimum was accordingly reduced to nine months.

After sentencing, and in accordance with Appellant’s 

expressed wishes, we granted trial counsel’s motion to withdraw 

as counsel. On July 1, 2019, Appellant, through new counsel, filed

Post Sentence Motions.9 An Amended Motion for Post Sentence 

Relief was filed on July 22, 2019, which we subsequently denied 

by order dated July 29, 2019. 

9 Appellant also filed pro se Post Sentence Motions 

that this court denied.

On August 26, 2019, Appellant filed a timely Notice of 

Appeal. We issued an order on August 28, 2019 directing 

Appellant to file a Concise Statement of Matters Complained of on

Appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed his Concise 

Statement on September 17, 2019. 

Trial Court Opinion, 10/18/19, at 1-3.

On appeal, Appellant presents the following issues in his statement of 

questions involved:

Whether the trial court erred in denying Appellant’s Motion to 

Suppress regarding the traffic stop of Appellant, where all 

evidence obtained was found as a result of the traffic stop.

Whether the sentencing court gave sufficient weight to mitigating 

factors in imposing a sentence on Appellant.

Whether the Commonwealth presented sufficient evidence during 

a stipulated bench trial to be establish the elements of Possession 

with Intent to Deliver.
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Appellant’s Brief at 9. Despite outlining the above issues, however, Appellant 

explains in two footnotes that he is not pursuing issues two and three on 

appeal. Specifically, he states: “After further review of the record, there is 

no meritorious argument that can be made regarding the discretionary aspects 

of sentencing, and so Appellant concedes on this issue.” He further states: 

“Even though sufficiency of the evidence was raised in the Concise Statement, 

after further reviewing the record, Appellant will concede sufficiency of the 

evidence.” Appellant’s Brief at 9, n.1, n.2. Thus, we address Appellant’s sole 

issue concerning the denial of his suppression motion.

Appellant argues that the trial court erred in denying Appellant’s motion 

to suppress where the traffic stop was improper and all evidence against 

Appellant was found because of the stop. Appellant’s Brief at 17. Appellant 

maintains that he was pulled over because he was “illegally stopped over the 

stop line.” Id. at 19. Appellant asserts that because this was a traffic stop, 

probable cause to initiate the traffic stop was required, as the stop would not 

likely yield further evidence of the offense. Id. Appellant argues that the 

evidence presented at trial was insufficient to establish that Trooper Marino 

had probable cause to believe Appellant violated the motor vehicle code and 

therefore did not lawfully stop Appellant. Id. Appellant maintains that

Trooper Marino did not see Appellant drive over the indicated line 

or any conduct prior to being over the stop line. Further, because 

the inductive loop sensor or automatic timer controlling the traffic 

signal may not have been working properly when Appellant 

approached the light, the Motor Vehicle Code permits him to stop 
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at the line and pull forward until he can see oncoming traffic, as if 

he were at a stop sign.1 

Id. 19-20. Accordingly, Appellant argues that because Appellant was 

unlawfully stopped, all evidence discovered in the vehicle should have been 

suppressed as fruit of the poisonous tree. Id. at 20.

With respect to an appeal from the denial of a motion to suppress, our 

Supreme Court has stated the following:

Our standard of review in addressing a challenge to a trial 

court’s denial of a suppression motion is whether the factual 

findings are supported by the record and whether the legal 

conclusions drawn from those facts are correct. When reviewing 

the ruling of a suppression court, we must consider only the 

evidence of the prosecution and so much of the evidence of the 

defense as remains uncontradicted when read in the context of 

the record. . . . Where the record supports the findings of the 

suppression court, we are bound by those facts and may reverse 

only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations 

omitted). “It is within the suppression court’s sole province as factfinder to 

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

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1 Appellant asserts that 

Under 75 Pa.C.S. § 3112(c), if an inductive loop sensor or other 

automatic timer controlling a traffic signal is inoperable, then it is 

permissible to treat the faulty signal as a stop sign as provided in 

75 Pa.C.S.A. § 3323. Under 75 Pa.C.S.A. § 3323(b), a driver must 

stop at the indicated stop line, but is permitted to ‘pull forward 

from the stopped position to a point where the driver has a clear 

view of approaching traffic’. 

Appellant’s Brief at 18. 
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testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super. 

2006). Moreover, our scope of review from a suppression ruling is limited to 

the evidentiary record that was created at the suppression hearing. In re 

L.J., 79 A.3d 1073, 1087 (Pa. 2013). 

In determining what level of legal justification is necessary to support a 

vehicle stop, this Court has explained: 

[W]hen considering whether reasonable suspicion or probable 

cause is required constitutionally to make a vehicle stop, the 

nature of the violation has to be considered. If it is not necessary 

to stop the vehicle to establish that a violation of the Vehicle Code 

has occurred, an officer must possess probable cause to stop the 

vehicle. Where a violation is suspected, but a stop is necessary 

to further investigate whether a violation has occurred, an officer 

need only possess reasonable suspicion to make the stop. 

Illustrative of these two standards are stops for speeding and DUI. 

If a vehicle is stopped for speeding, the officer must possess 

probable cause to stop the vehicle. This is so because when a 

vehicle is stopped, nothing more can be determined as to the 

speed of the vehicle when it was observed while traveling upon a 

highway. On the other hand, if an officer possesses sufficient 

knowledge based upon behavior suggestive of DUI, the officer 

may stop the vehicle upon reasonable suspicion of a Vehicle Code 

violation, since a stop would provide the officer the needed 

opportunity to investigate further if the driver was operating under 

the influence of alcohol or a controlled substance.

Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015).

The Motor Vehicle Code provides the following, in relevant part, 

regarding traffic-control signals:

§ 3111. Obedience to traffic-control devices

(a) General rule.--Unless otherwise directed by a uniformed 

police officer or any appropriately attired person authorized to 

direct, control or regulate traffic, the driver of any vehicle shall 

obey the instructions of any applicable official traffic-control 
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device placed or held in accordance with the provisions of this title, 

subject to the privileges granted the driver of an emergency 

vehicle in this title.

75 Pa.C.S. § 3111(a).

§ 3112. Traffic-control signals

(a) General rule.--Whenever traffic is controlled by trafficcontrol signals exhibiting different colored lights, or colored 

lighted arrows, successively one at a time or in combination, only 

the colors green, red and yellow shall be used, except for special 

pedestrian signals carrying a word legend, and the lights shall 

indicate and apply to drivers of vehicles and pedestrians as 

follows:

* * *

(3) Steady red indication.—

(i) Vehicular traffic facing a steady red 

signal alone shall stop at a clearly marked 

stop line, or if none, before entering the 

crosswalk on the near side of the 

intersection, or if none, then before 

entering the intersection and shall remain 

standing until an indication to proceed is 

shown except as provided in 

subparagraph (ii).

(ii) Unless signing is in place prohibiting a 

turn, vehicular traffic facing a steady red 

signal may enter the intersection to turn 

right, or to turn left from a one-way 

highway onto a one-way highway after 

stopping as required by subparagraph (i). 

Such vehicular traffic shall yield the rightof-way to pedestrians lawfully within an 

adjacent crosswalk and to other traffic 

lawfully using the intersection.

75 Pa.C.S. § 3112(3)(i) and (ii). Moreover, the statute carves out an 

exception for inoperable or malfunctioning signals as follows:
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(c) Inoperable or malfunctioning signal.--If a traffic-control 

signal is out of operation or is not functioning properly, including, 

but not limited to, a signal that uses inductive loop sensors or 

other automated technology to detect the presence of vehicles 

that fails to detect a vehicle, vehicular traffic facing a:

(1) Green or yellow signal may proceed with caution 

as indicated in subsection (a)(1) and (2).

(2) Red or completely unlighted signal shall stop in the 

same manner as at a stop sign, and the right to 

proceed shall be subject to the rules applicable after 

making a stop at a stop sign as provided in section 

3323 (relating to stop signs and yield signs).2

75 Pa.C.S. § 3112(c).

At the suppression hearing, Trooper Dominick Marino testified that he 

stopped Appellant on the night at issue because Appellant’s vehicle was 

____________________________________________

2 Section 3323(b) of the Motor Vehicle Code states the following for duties at 

stop sign: 

every driver of a vehicle approaching a stop sign shall stop at a 

clearly marked stop line or, if no stop line is present, before 

entering a crosswalk on the near side of the intersection or, if no 

crosswalk is present, then at the point nearest the intersecting 

roadway where the driver has a clear view of approaching traffic 

on the intersecting roadway before entering. If, after stopping at 

a crosswalk or clearly marked stop line, a driver does not have a 

clear view of approaching traffic, the driver shall after yielding the 

right-of-way to any pedestrian in the crosswalk slowly pull forward 

from the stopped position to a point where the driver has a clear 

view of approaching traffic. The driver shall yield the right-of-way 

to any vehicle in the intersection or approaching on another 

roadway so closely as to constitute a hazard during the time when 

the driver is moving across or within the intersection or junction 

of roadways and enter the intersection when it is safe to do so. 

75 Pa.C.S. § 3323(b).
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“illegally stopped.” N.T. (Suppression), 4/18/19, at 4. In explaining how it 

was illegally stopped, Trooper Marino stated that the vehicle was at the 

intersection in the turning lane, the traffic control device was red, and 

Appellant’s vehicle was over the white “stop bar” and “into the crosswalk.”

Id. at 4-5. Trooper Marino also testified that the light subsequently turned 

green, and Appellant proceeded through the intersection, prior to the Trooper 

stopping Appellant’s vehicle. Id. at 7. Trooper Marino testified that Appellant 

was charged with violation of Section 3111 for failing to stop behind the white 

bar. Id. 

Furthermore, the trial court summarized the video recording played at 

the hearing as follows:

The [c]ourt: Before I ask the trooper to step down, I want 

to–since I watched a video, the record doesn’t say a thing about 

what’s going on here. So I want to state for the record what my 

observations were of the video.

The video, it seemed to be, clearly showed that [Appellant’s] 

vehicle straddled that white stop bar, that his front wheels were 

in front of it and his back wheels were behind it, and while he was 

stopped there – and he stopped, he did not go through any red 

light. While he was stopped there, shortly before the light 

changed, a large tractor trailer made a left-hand turn out of the 

area that is the industrial and commercial complex on the east 

side of Route 61 and made a left-hand turn then, which would 

have passed in front of [Appellant’s] vehicle. 

That is what the [c]ourt observed. Is there any dispute 

about–that that’s what this thing shows?

[Appellant’s Counsel]: No, Your Honor.

[Commonwealth Attorney]: No, Your Honor.
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The [c]ourt: Very well.

N.T., Suppression, 4/18/19, at 10-11. 

In addressing this issue, the trial court provided the following analysis:

Section 3112(3)(i) of the Vehicle Code provides that 

“[v]ehicular traffic facing a steady red signal alone shall stop at a 

clearly marked stop line, or if none, before entering the crosswalk

on the near side of the intersection.” Furthermore, the statute 

carves out an exception that allowing that “[i]f a traffic-control 

signal is out of operation or is not functioning properly, including, 

but not limited to, a signal that uses inductive loop sensors or 

other automated technology to detect the presence of vehicles 

that fails to detect a vehicle, vehicular traffic facing a . . . [r]ed or

completely unlighted signal shall stop in the same manner as at a

stop sign, and the right to proceed shall be subject to the rules 

applicable after making a stop at a stop sign as provided in section

3323 (relating to stop signs and yield signs).” 75 Pa.C.S.A. 

§ 3112(c).

Appellant attempts to find safe-harbor in the inoperable or 

malfunctioning signal exception under Section 3112. However, 

Appellant can provide no evidence from the record indicating that

the signal at the intersection was inoperable or malfunctioning. 

While Appellant’s trial counsel cross-examined Trooper Marino at 

the suppression hearing as to the Trooper’s knowledge of the

inductive loop sensor at the particular intersection of 61 north and 

Cabela Drive, Trooper Marino was unable to speak to the issue.

The evidence presented by the Commonwealth at the 

suppression hearing, both visually and through testimony, 

indicated that Trooper Marino observed Appellant’s vehicle 

straddling the white stop bar line at an intersection with a traffic 

control device. Upon the traffic signal turning from red to green, 

Appellant made the left turn from the appropriate lane. The traffic 

signal appeared to be operating properly. Likewise, there was no 

indication that any inductive loop sensor was inoperable either.

Despite Appellant’s arguments otherwise, Trooper Marino 

observed Appellant’s vehicle straddling the line and therefore in 

violation of Section 3112 of the Vehicle Code. Appellant’s

attempts to justify his violation of the code by alleging an 

inoperable inductive loop sensor are not supported by the 
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evidence of record. As such, we find that Appellant’s alleged error 

lacks merit and that this court’s denial of his suppression motion 

is supported by the record.

Trial Court Opinion, 10/18/19, at 4-5 (internal footnote omitted).

We agree that the trial court’s denial of Appellant’s suppression motion 

was supported by the record.3 The evidence of record supports the conclusion 

that Trooper Marion had probable cause to stop Appellant for violation of

Section 3111(a) of the Motor Vehicle Code. As outlined above, Appellant’s 

vehicle was over the white stop bar and into the crosswalk at an intersection 

with a red signal. As the trial court described from the video, the car had 

significantly exceeded the stop bar, having its front wheels in front of it and 

its back wheels behind it. Moreover, there is no evidence of record that the 

signal was inoperable or malfunctioning as to invoke the exception provided 

for in 75 Pa.C.S. § 3112(c). In fact, the signal turned green after Trooper 

Marino observed Appellant’s vehicle illegally parked and before Trooper Marino 

____________________________________________

3 Although we agree with the trial court’s conclusion that Appellant violated 

the Motor Vehicle Code and was lawfully stopped, we note that the trial court 

applied the incorrect standard necessary to the stop. Herein, because it was 

not necessary to stop the vehicle to establish that a violation of the Vehicle 

Code had occurred, the officer was required to possess probable cause to stop 

the vehicle. Salter, 121 A.3d at 993. The trial court incorrectly stated that 

“police have the authority to stop a vehicle whenever he or she ‘has 

reasonable suspicion that a violation of the Vehicle Code is occurring or has 

occurred.’” Trial Court Opinion, 10/18/19, at 4. This error is not prejudicial, 

and the ruling is otherwise consistent with law. Commonwealth v. Walsh, 

125 A.3d 1248, 1253 (Pa. Super. 2015). (“We can affirm the court’s decision 

if there is any basis to support it, even if we rely on different grounds to 

affirm.”).
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was able to pull Appellant over for the motor vehicle code violation. See 

Salter, 121 A.3d at 994 (“Probable cause does not require certainty, but 

rather exists when criminality is one reasonable inference, not necessarily 

even the most likely inference.”). Thus, because Trooper Marino had probable 

cause to stop Appellant for the Motor Vehicle Code violation, the stop was 

lawful. Accordingly, the contraband subsequently discovered in Appellant’s 

vehicle was lawfully obtained, and not “fruit of the poisonous tree” as asserted 

by Appellant. As this Court has explained: “The ‘fruit of the poisonous tree’

doctrine excludes evidence obtained from, or acquired as a consequence of,

lawless official acts. A fruit of the poisonous tree argument requires an 

antecedent illegality.” Commonwealth v. Johnson, 68 A.3d 930, 946 (Pa. 

Super. 2013) (internal citations and quotation marks omitted). Here, no such 

antecedent illegality occurred. Thus, the trial court did not err in denying 

Appellant’s suppression motion. Appellant is entitled to no relief on this claim.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/23/2020