J-S06024-16

*Former Justice specially 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

Appellee

v.

KALEN DAVID BELL

Appellant No. 290 MDA 2015

Appeal from the Judgment of Sentence January 16, 2015

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0000352-2014

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KALEN DAVID BELL

Appellant No. 291 MDA 2015

Appeal from the Judgment of Sentence January 16, 2015

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0000360-2014

BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 09, 2016

Appellant, Kalen David Bell, appeals from the January 16, 2015 

aggregate judgment of sentence of 54 to 108 months’ imprisonment, 

imposed after Appellant was found guilty of two counts of possession with 

intent to deliver (PWID), and one count each of intentional possession of a 
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controlled substance, possession of drug paraphernalia, possession of a 

small amount of marijuana, and resisting arrest.1 After careful review, we 

affirm.

The trial court made the following findings of fact concerning the issue 

involved in this case.

1. Trooper Joseph Pericci, a ten[-]year veteran 

with the Pennsylvania State Police, was performing a 

saturation patrol[2]in Wilkes-Barre, Luzerne County, 

Pennsylvania on December 12, 2013 along with 

members of the Wilkes-Barre Police Department, 

Luzerne County District Attorney’s Office, FBI, United 

States Marshalls, and the Luzerne County Sheriff’s 

Department.

2. Trooper Pericci was partnered with Detective 

Charles Balogh of the Luzerne County District 

Attorney’s Office during the saturation patrol.

3. The saturation patrol was scheduled to be 

conducted between the hours of 10:00 p.m. and 

2:00 a.m.

4. Trooper Pericci was in full uniform, and Det. 

Balogh and he were driving in a fully marked 

Pennsylvania State Police vehicle.

5. Trooper Pericci noticed a green sedan with 

dark tinted windows abruptly cross two lanes of 

____________________________________________

1 35 P.S. § 780-113(a)(30), (a)(16), (a)(32), (a)(31), and 18 Pa.C.S.A. 

§ 5104, respectively.

2 Trooper Pericci described a saturation patrol as “a group of law 

enforcement agencies ... that collectively [get] together [and drive] through 

Wilkes-Barre, [and] patrol[] the streets of Wilkes-Barre, looking for traffic 

violations and criminal activity.” N.T., 7/1/14, at 6.
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traffic without using a turn signal and come to a stop 

on South Franklin Street in Wilkes-Barre.

6. Trooper Pericci pulled alongside the vehicle and 

initiated a traffic stop for [a] violation of the Motor 

Vehicle Code.

7. The driver, [Appellant], exited the vehicle and 

began walking at a very fast pace on South Franklin 

Street.

8. When [Appellant] exited the vehicle, he left the 

front driver’s side door open.

9. Trooper Pericci detected a very strong odor of 

marijuana coming from the vehicle.

10. Trooper Pericci called out to [Appellant] and 

directed him to stop.

11. [Appellant] did not immediately stop but 

continued to walk in a direction away from the 

vehicle.

12. Ultimately, [Appellant] stopped and returned 

to the vehicle when Trooper Pericci detected an order 

[sic] of marijuana emanating from [Appellant].

13. [Appellant] was wearing a puffy white jacket, 

and Trooper Pericci observed a clear bag hanging out 

of the right front pocket of the jacket. 

Approximately one third (1/3) of the bag was 

hanging out of the pocket.

14. Trooper Pericci observed what he believed to 

be bags of heroin inside the aforementioned clear 

bag.

15. [Appellant] was arrested and taken into 

custody.

16. A search of [Appellant] incident to arrest 

revealed the presence of:

 43 bags of heroin
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 a clear plastic bag containing marijuana

 a larger plastic bag containing marijuana

 crack cocaine

 3 cell phones

 $1,108.00 in cash

17. [Appellant] had a suspended driver’s license.

18. The testimony of the Commonwealth’s witness 

was credible.

Trial Court Opinion, 5/7/15, at 4-6.

On March 19, 2014, the Commonwealth filed an information at docket 

number CP-40-CR-352-2014, charging Appellant with one count each of 

PWID, intentional possession of a controlled substance, possession of drug 

paraphernalia, possession of a small amount of marijuana, and resisting 

arrest. The Commonwealth filed a second information at docket number CP40-CR-360-2014 on March 17, 2014, charging Appellant with one count each 

of PWID and possession of a small amount of marijuana. Appellant filed a 

motion to suppress at docket number CP-40-CR-352-2014 on May 27, 2014, 

and a motion to suppress at docket number CP-40-CR-360-2014 on June 16, 

2014. The trial court held one suppression hearing for both motions on July 

1, 2014. On September 10, 2014, the trial court denied both motions. On 

October 30, 2014, the trial court held a consolidated bench trial, and 

thereafter found Appellant guilty of all charges. The trial court imposed an 

aggregate sentence of 54 to 108 months’ imprisonment on January 16, 
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2015.3 Appellant did not file any post-sentence motions. On February 4, 

2015, Appellant filed timely notices of appeal.4

On appeal, Appellant raises the following issue for our review.5

I. Whether the honorable trial court erred when it 

concluded that [Trooper Pericci and Detective 

Balogh] possessed the requisite reasonable 

suspicion to conduct an investigative detention 

of [Appellant?]

Appellant’s Brief at 4.

Appellant’s sole argument on appeal is that the police lacked 

reasonable suspicion to seize Appellant after he had stopped his car, exited 

the vehicle, and began walking away. Appellant’s Brief at 9. The 

Commonwealth counters that Appellant was constitutionally seized based in 

part of Appellant’s violation of the Motor Vehicle Code. Commonwealth’s 

Brief at 6.

____________________________________________

3 Specifically, at docket number CP-40-CR-352-2014, the trial court 

sentenced Appellant to 30 to 60 months’ for PWID, 9 to 24 months’ for 

resisting arrest, and no further penalty for the intentional possession and 

drug paraphernalia charges. At docket number CP-40-CR-360-2014, the 

trial court sentenced Appellant to 24 to 48 months for PWID and 15 to 30 

days for possession of a small amount of marijuana. All sentences within 

each docket number were to run concurrently, but the aggregate sentences 

at each docket number were to run consecutively.

4 Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925.

5 Appellant has preserved a challenge to the sufficiency of the 

Commonwealth’s evidence, but in his brief, Appellant withdraws this issue. 

Appellant’s Brief at 4, 10.
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We begin by noting our well-settled standard of review. 

We may consider only the Commonwealth’s evidence 

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 record supports 

the factual findings of the trial court, we are bound 

by those facts and may reverse only if the legal 

conclusions drawn therefrom are in error. An 

appellate court, of course, is not bound by the 

suppression court’s conclusions of law.

Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted) .

The Fourth Amendment of the Federal 

Constitution provides, “[t]he right of the 

people to be secure in their persons, houses, 

papers, and effects, against unreasonable 

searches and seizures, shall not be violated ....” 

U.S. Const. amend. IV. Likewise, Article I, 

Section 8 of the Pennsylvania Constitution 

states, “[t]he people shall be secure in their 

persons, houses, papers and possessions from 

unreasonable searches and seizures ....” Pa. 

Const. Art. I, § 8. 

Commonwealth v. Carter, 105 A.3d 765, 768 (Pa. 

Super. 2014) (en banc), appeal denied, 117 A.3d 

295 (Pa. 2015).

Commonwealth v. Williams, 125 A.3d 425, 432 (Pa. Super. 2015). Our 

cases have recognized three levels of police-citizen interactions.

The first is a mere encounter, which requires no level 

of suspicion at all. Commonwealth v. Daniel, 999 

A.2d 590, 596 (Pa. Super. 2010). The second level 

is an investigative detention, which must be 

supported by reasonable suspicion. Id. at 596-597. 

Finally, the third level is an arrest or custodial 

detention, which must be supported by probable 

cause. Id. at 597.

Commonwealth v. Walls, 53 A.3d 889, 892-893 (Pa. Super. 2012).
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In general, a traffic stop is constitutional where “[a] police officer ... 

has reasonable suspicion that a violation of the vehicle code has taken 

place, for the purpose of obtaining necessary information to enforce the 

provisions of the code.” Commonwealth v. Brown, 64 A.3d 1101, 1105 

(Pa. Super. 2013) (emphasis in original); accord 75 Pa.C.S.A. § 6308(b). 

However, our Supreme Court has held that where the Motor Vehicle Code 

violation is not investigable, Section 6308(b) does not apply and probable 

cause is required in order for the stop to be constitutional. Commonwealth 

v. Chase, 960 A.2d 108, 115-116 (Pa. 2008). The parties appear to agree 

that probable cause is the appropriate standard in this case. Appellant’s 

Brief at 8; Commonwealth’s Brief at 6. 

In order for a non-investigable traffic stop to be 

constitutional, [t]he officer must be able to articulate 

specific facts possessed by him at the time of the 

questioned stop, which would provide probable cause 

to believe that the vehicle or the driver was in some 

violation of some provision of the Vehicle Code. 

Probable cause does not require certainty, but rather 

exists when criminality is one reasonable inference, 

not necessarily even the most likely inference.

Commonwealth v. Enick, 70 A.3d 843, 846 n.3 (Pa. Super. 2013) (internal 

quotation marks and citations omitted). Section 3334(a) of the Motor 

Vehicle Code provides that “no person shall ... move from one traffic lane to 

another ... unless and until the movement can be made with reasonable 

safety nor without giving an appropriate signal in the manner provided in 

this section.” 75 Pa.C.S.A. § 3334(a). 
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In this case, Trooper Pericci testified that he was patrolling with 

Detective Balogh on the night of December 12, 2013. N.T., 7/1/14, at 6. 

Trooper Pericci was driving northbound on South Franklin Street in the 

driving lane, and he observed another vehicle in the passing lane. Id. at 8. 

This vehicle abruptly traveled across two lanes of traffic and parked on the 

side of the street, without using a turn signal. Id. at 9. Appellant exited the 

vehicle and “started walking north at a pretty fast pace on South Franklin 

Street.” Id. at 9. Trooper Pericci backed up and parked his police car next 

to the vehicle, and observed that the driver’s side door was left open. Id. at 

10. Trooper Pericci then called to Appellant to stop. Id. at 11.

After careful review of the certified record, we conclude Appellant is 

not entitled to relief. As noted above, Trooper Pericci personally observed 

Appellant’s vehicle drive across two lanes of traffic without signaling, in 

violation of Section 3334(a) of the Motor Vehicle Code. Id. at 9. In our 

view, this was sufficient evidence for Trooper Pericci to have probable cause 

that he just witnessed a violation of the Motor Vehicle Code. See, e.g., 

Commonwealth v. Feczko, 10 A.3d 1285, 1291-1292 (Pa. Super. 2010) 

(en banc) (concluding probable cause existed where police officer’s vehicle 

cam showed the defendant’s vehicle cross over the white fog line, in 

violation of Section 3309(1) of the Motor Vehicle Code), appeal denied, 25 

A.3d 327 (Pa. 2011). Therefore, Trooper Pericci was constitutionally 

permitted to stop Appellant, and as a part of the stop, summon Appellant 
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back to his vehicle. As a result, Appellant’s Fourth Amendment rights were 

not violated, and the trial court correctly denied Appellant’s motion to 

suppress.6 See Gary, supra.

Based on the foregoing, we conclude Appellant’s sole issue on appeal 

is devoid of merit. Accordingly, the trial court’s January 16, 2015 judgment 

of sentence is affirmed.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/9/2016

____________________________________________

6 To the extent our legal reasoning differs from the trial court’s, we note that 

as an appellate court, we may affirm on any legal basis supported by the 

certified record. Commonwealth v. Clemens, 66 A.3d 373, 381 n.6 (Pa. 

Super. 2013) (citation omitted).