J-S23026-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DARNELL HAROLD KELLAM 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 42 MDA 2022

Appeal from the PCRA Order Entered December 8, 2021

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

No(s): CP-41-CR-0000386-2017

BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: NOVEMBER 17, 2022

Darnell Harold Kellam appeals from the order denying his Post 

Conviction Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. 

Kellam argues his trial counsel was ineffective for failing to successfully argue 

his motion to suppress, and that he is entitled to relief pursuant to 

Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020). We affirm.

In early 2017, the police stopped Kellam’s automobile for a violation of 

the motor vehicle code and searched it without a warrant. They thereafter

charged Kellam with persons not to possess firearms, firearms not to be 

carried without a license, and possession with intent to deliver (heroin).1

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 6105 and 6106, and 35 P.S. § 780-113(a)(30), respectively.
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Before trial, Kellam filed a motion to suppress the evidence. The court 

held a hearing in June 2017. It later summarized the evidence presented at 

the hearing as follows:

At the time of [Kellam’s] arrest [on February 10, 2017], [Officer 

Joshua] Bell had over five years of experience as a law 

enforcement officer with the Williamsport Bureau of Police, having 

joined the Bureau in August of 2011. Bell had additional law 

enforcement experience prior to his tenure with the Williamsport 

police, including narcotic agent training through the Attorney 

General’s office and significant experience with narcotic 

interdiction policing.

On February 10, 2017, Bell was operating a marked patrol car and 

was patrolling the area of Campbell Street and High Street when 

he observed a black Nissan Altima travelling south on Campbell 

Street. Bell observed that the vehicle was equipped with heavy 

window tint which prevented him from observing the interior of 

the vehicle. Bell recognized that the color, make, and model of the 

car, along with the heavy window tint, matched the description of 

a vehicle that a confidential informant had previously indicated 

was involved in trafficking heroin from Philadelphia to 

Williamsport. The confidential informant who shared this 

information with Bell had made a number of controlled purchases 

for Bell in the past during his narcotic interdiction efforts. Bell’s 

prior interdiction efforts had a strong record of corroborating the 

information obtained from this informant.

Bell effected a vehicle stop due to the heavy window tint on the 

vehicle in the area of Market Street and Little League Boulevard. 

Upon talking with [Kellam] and collecting [Kellam’s] license, 

vehicle registration, and insurance, [Bell] verified that [Kellam]

was the owner of the vehicle, and that the area of registration was 

Philadelphia.

While Bell was speaking to [Kellam] from outside of the driver’s 

side window, Bell’s attention was drawn to several rubber bands 

hanging from the windshield wiper control arm. Bell recognized 

from his experience in narcotics trafficking investigations that 

these rubber bands were often used to bundle large amounts of 

money, and that in his experience, a vehicle control arm is a 

common location for drug traffickers to keep such rubber bands. 
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Bell later testified that he had encountered rubber bands 

fashioned this way in vehicle stops that have led to arrests 

between eight and ten times prior to his encounter with [Kellam] 

in the present case.

When Bell asked [Kellam] what the rubber bands were for, he 

responded that he just “had them,” and that Bell was the first 

officer who ever asked him about the rubber bands. Bell asked 

[Kellam] where he was coming from, to which [Kellam] responded 

that he had been visiting family. Bell asked [Kellam] where his 

family lived, and [Kellam] responded “Louisa.” Motor Vehicle 

Recording (MVR) at 4:09. Bell asked [Kellam] what block of Louisa 

his family lived on, and [Kellam] responded, “Right there where 

everything be happening.” Id. at 4:18. Bell recognized the area 

[Kellam] was referring to as the area colloquially known as the 

“400 block,” an area known for its high criminal drug activity. Bell 

asked [Kellam] for confirmation, whether he was talking about the 

400 block, and [Kellam] confirmed it. Id. at 4:21.

Bell returned to his patrol car with [Kellam’s] license and vehicle 

documentation, and proceeded to contact county control to 

conduct a criminal history inquiry of [Kellam]. At this time, 

another officer with the Williamsport Bureau of Police arrived at 

the scene. Dispatch advised Bell that [Kellam] had been arrested 

multiple times in the past several years for firearms violations and 

narcotics violations. Bell returned to [Kellam’s] vehicle and asked 

[Kellam] to step out of the vehicle. [Kellam], Officer Bell, and the 

second officer relocated to a space in between the two marked 

patrol cars.

Bell proceeded to advise [Kellam] that . . . he was aware of 

[Kellam’s] criminal history, and made [Kellam] aware of his 

concern that [Kellam] had either firearms or narcotics on his 

person or in his vehicle. Bell asked [Kellam] if he was in possession 

of any narcotics or firearms either on his person or in his vehicle, 

and [Kellam] responded that he was not. Bell then asked [Kellam], 

“Alright, is there any issue with me looking?” while pointing at 

[Kellam’s] vehicle, and [Kellam] replied, “Nope.” MVR at 18:35.

Taking [Kellam’s] response as consent to perform a vehicle 

search, Bell began walking towards the passenger compartment 

of [Kellam’s] vehicle. When [Kellam] asked Bell if he could return 

to his vehicle, Bell directed [Kellam] to stand next to the second 

officer on the scene while he performed the search. As Bell 

continued to approach the driver door of [Kellam’s] vehicle, 
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[Kellam] said, “Oh, you're gonna check the car?” to which Bell 

responded, “Yeah.” MVR at 18:40.

During the search, Bell observed that [Kellam] was in possession 

of three cellular phones, which he recognized as an additional 

indicia of drug sale activity. Bell also observed that the headliner 

of the vehicle appeared as though it had previously been pulled 

away from its corresponding connection point with the roof of the 

vehicle. Bell knew from previous narcotics investigations that the 

inside of a vehicle's headliner is a common location to conceal 

contraband.

Finally, Bell exited the driver’s side door of the vehicle, walked 

around the vehicle, and began searching via the passenger’s side 

door. Bell observed that part of the panel of the center console 

was loose and appeared to have been previously removed. Bell 

pulled on the panel slightly, causing it to fall off. Concealed under 

the air vent, Bell located a firearm and identified its serial number. 

Dispatch advised Bell that the firearm, a .40 caliber Ruger pistol, 

had been reported stolen out of Milton, Pennsylvania. In the same 

area where he located the pistol, Bell also found a green bag 

containing a clear sandwich bag, which Bell recognized as being 

commonly used as a distribution bag for controlled substances. 

Bell proceeded to take [Kellam] into custody.

Once in custody, a search of [Kellam] incident to arrest yielded 

three blue wax bags of heroin in [Kellam’s] left sock, $1,100 

concealed in [Kellam’s] underwear, an additional $125 in 

[Kellam’s] pockets, and packages of black rubber bands often 

used to bundle heroin for sale in [Kellam’s] shoe.

Commonwealth v. Kellam, No. 1149 MDA 2018, 2019 WL 3021156, at *2–

4 (Pa.Super. 2019) (unpublished memorandum) (quoting Trial Court Opinion 

and Order, 7/18/17, at 1-5). 

The court denied the suppression motion, and, following a bench trial, 

convicted Kellam of the above charges.2 The court sentenced him to five to 10 

years’ incarceration. 

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2 The court found Kellam not guilty on a charge of receiving stolen property.
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Kellam filed a direct appeal, arguing the court erred in denying his 

suppression motion because Officer Bell had lacked probable cause to search 

his vehicle. Kellam argued the vehicle stop was based only on the color, make, 

and window tint of his vehicle, and its Philadelphia registration, “a city of 

millions within three hours of Williamsport.” Kellam’s Direct Appeal Brief at 

12. Kellam also argued that Officer Bell had failed to testify regarding the 

details of the confidential informant’s controlled drug buys, and that Kellam

had never told Officer Bell which block of Louisa Street he was coming from. 

Kellam further argued that common rubber bands are not indicative of criminal 

activity, and that Officer Bell had not testified as to whether any of Kellam’s 

previous arrests had resulted in convictions. 

We affirmed in July 2019. We applied the standard announced in 

Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (opinion announcing 

judgment of the Court) – that the police needed only probable cause to search 

a vehicle without a warrant, because the inherent mobility of an automobile 

creates exigent circumstances. Kellam, 2019 WL 3021156, at *2. We 

affirmed the court’s conclusion that probable cause had existed, based on the

following:

Specifically, a credible informant alerted Officer Bell to illegal 

narcotics activity being conducted by a vehicle fitting the 

description of the one being operated by [Kellam]. In addition, 

Officer Bell observed indications of narcotics trafficking, such as 

rubber bands hanging on the steering column, heavily tinted 

windows, and the presence of multiple cell phones in the vehicle. 

Also, [Kellam] told Officer Bell that he was coming from Louisa 

Street, an area which is known as a narcotics trafficking area, as 

well as for “officer safety issues.” Finally, Officer Bell requested a 
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criminal history check on [Kellam], which returned information 

regarding [Kellam’s] prior involvement with narcotics trafficking 

and firearms violations.

Id. at *4 (citations to N.T. of suppression hearing omitted).

Kellam filed a petition for allowance of appeal to the Supreme Court of 

Pennsylvania. The Court denied the petition on December 9, 2019.

The following month, in January 2020, Kellam filed a pro se PCRA 

petition. The PCRA court appointed counsel, who filed an amended petition 

and supplemental amended petition arguing that trial counsel had been

ineffective when arguing that the police had lacked probable cause to 

effectuate a warrantless vehicle search. The court issued notice of its intent 

to dismiss the petition without a hearing, and on January 5, 2021, dismissed 

the petition. 

Kellam filed a motion for reconsideration on January 11, 2021. He 

argued that he should be granted relief under Alexander, which had been

decided shortly beforehand, on December 22, 2020. The court granted the 

motion on February 1, 2021, and allowed Kellam leave to further supplement 

his petition, which he did in April and July 2021. After considering Kellam’s 

supplemental petition, the court again issued notice of its intent to deny the 

petition without a hearing, and, in December 2021, dismissed it.

Kellam appealed. He raises the following:

1. Whether Counsel provided ineffective assistance during the 

suppression hearing in this matter, in that he was apparently 

unprepared to argue that the search was not supported by 

probable cause?
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2. Whether Counsel was ineffective in failing to raise the issue of 

the warrant or exigency requirement to search Appellant’s 

vehicle before the suppression court?

3. Whether the grant of allocator in Commonwealth v. 

Alexander, which imposed a warrant or exigency requirement 

for the search of vehicles in Pennsylvania, entitles Appellant to 

relief?

Kellam’s Brief at 7 (unpaginated).

We review the denial of post-conviction relief to ensure “the PCRA 

court’s determination is supported be evidence of record and . . . free of legal 

error.” Commonwealth v. Ligon, 206 A.3d 515, 518 (Pa.Super. 2019). We 

employ a de novo standard of review to the PCRA court’s legal conclusions.

Commonwealth v. Hart, 199 A.3d 475, 481 (Pa.Super. 2018).

Kellam’s first two issues are claims of ineffective assistance of counsel. 

Counsel is presumed to be effective. Ligon, 206 A.3d at 519. To prove 

otherwise, a petitioner must plead and prove each of the following: “(1) the 

underlying legal claim is of arguable merit; (2) counsel’s action or inaction 

lacked any objectively reasonable basis designed to effectuate his client’s 

interest; and (3) prejudice, to the effect that there was a reasonable 

probability of a different outcome if not for counsel’s error.” Id. (citation 

omitted).

Kellam first argues that trial counsel was ineffective because he did not 

successfully argue the search of Kellam’s vehicle was not supported by 

probable cause. Kellam contends that trial counsel should have raised the 

following when arguing the motion to suppress:
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a. Officer Bell did not believe he had probable cause to search, as

it was clear he was seeking additional information to attain 

probable cause to search. This explains why he was seeking 

consent for the search in lieu of proceeding on probable cause.

b. Officer Bell relied on a “tip” from an informant three to four

months prior to this stop. Suppression counsel did not argue 

the staleness of the “tip.”

c. Officer Bell mistook [Kellam] for another individual who was 

involved in a crime involving firearms. He also generalized 

information about [Kellam] based upon his surname: “The 

Kellams are all gun people” (MVR at 6:00)

d. Officer Bell inquired with dispatch about [Kellam’s] prior 

record. When a specific conviction could not be identified, 

Officer Bell can be heard on the video stating, “If I had a gun 

or drug thing, I would get a dog.” (MVR 15:58)

e. Officer Bell inquired whether there were any drug dogs 

available, presumably to determine whether a less intrusive 

type of search could be undertaken. (MVR 15:45)

f. Just prior to attempting to seek consent for the search, Officer 

Bell can be heard stating on the recording, “I'm not quite sold 

that this cat’s not holding” (MVR 15:58). This statement is in 

reference to Mr. Kellam possessing drugs.

Kellam’s Br. at 13-14.

Kellam stresses that while the totality of the circumstances must make 

the probable cause determination an objectively reasonable one, the officer’s 

subjective belief must be part of the analysis, as the court must view the 

circumstances “as they appeared to the arresting officer.” Id. at 16 (citing 

Commonwealth v. Dennis, 612 A.2d 1014, 1016 (Pa.Super. 1992)). And 

here, Kellam argues, Officer Bell did not believe he had probable cause to 

search.
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The PCRA court found no merit to this claim, as the totality of the 

circumstances established probable cause under an objective standard:

While Kellam’s argument may have a surface appeal, Kellam 

neglects the law as it relates to Fourth Amendment jurisprudence. 

Contrary to Kellam’s belief and argument, Officer Bell’s subjective 

belief was not at all relevant to the probable cause analysis. The 

proper analysis for Fourth Amendment jurisprudence is objective. 

An action is reasonable, regardless of the officer’s state of mind, 

as long as the evidence viewed objectively justifies the action. 

. . .

Moreover and as the Superior Court noted in its opinion in this 

case, probable cause exists where the facts and circumstances 

within the officer’s knowledge are sufficient to warrant a person 

of reasonable caution to believe that a defendant has committed 

or is committing an offense. . . . The well-established standard for 

evaluating if probable cause exists is consideration of the “totality

of the circumstances.”

PCRA Court Opinion and Order, 11/12/20, at 4-5.

We agree. Nothing Kellam has offered alters our previous determination 

that Officer Bell had probable cause, based on the totality of the 

circumstances. We reiterate that we apply an objective standard to motions 

to suppress, not a subjective one. See Commonwealth v. Coughlin, 199 

A.3d 401, 410 (Pa.Super. 2018) (en banc) (stating “the officer’s subjective 

motivation is irrelevant” to whether officer’s actions were reasonable under 

the Fourth Amendment). Kellam’s trial counsel was therefore not ineffective 

for failing to argue these points before the suppression court or on Kellam’s 

direct appeal. See Ligon, 206 A.3d at 519 (stating “counsel is not ineffective 

for failing to raise a claim that is devoid of merit”).
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Kellam next argues his trial counsel was ineffective for failing to argue 

that Officer Bell was required to obtain a warrant prior to searching his vehicle,

i.e., that the court should not have followed Gary. He claims that as a plurality 

decision, Gary was not binding precedent. He also argues trial counsel should 

have distinguished his case from Gary because he was pulled over for a traffic 

violation during daylight hours, whereas Gary had admitted to possessing 

contraband and had started to flee when the police performed a canine search 

of his vehicle at night.

In denying relief, the PCRA court observed that Gary was the prevailing 

law at the time Kellam’s case was before the trial court and on direct appeal:

Alexander overruled the prior ruling in Commonwealth v. 

Gary, 91 A.3d 102 (Pa. 2014)[(OAJC)], which had held that the 

search and seizure provision of Article I, Section 8 of the 

Pennsylvania Constitution provides no greater protection than 

does the Fourth Amendment of the United States Constitution with 

regard to warrantless searches of automobiles. The court in Gary

concluded that, in line with United States Supreme Court decisions 

interpreting the Fourth Amendment, the only prerequisite for a 

warrantless search of a motor vehicle is probable cause to search, 

with no exigency required beyond the inherent mobility of a motor 

vehicle. 

In Alexander, however, the Supreme Court concluded that the 

Pennsylvania Constitution affords greater protection than the 

Fourth Amendment and reinstated the pre-Gary line of cases that 

required police to have both probable cause and exigent 

circumstances before conducting a warrantless search of an 

automobile. . . . 

The Alexander decision . . . did not establish a new principle of 

law until after the disposition of this case concluded on direct 

review.
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PCRA Court Opinion and Order, 10/22/21, at 3 (citation omitted). The court 

therefore concluded that Kellam’s counsel was not ineffective for failing to 

argue that Gary did not control his case:

[T]he quality of counsel’s stewardship is based on the state of law 

as it existed at the time of trial; counsel is not ineffective if he fails 

to predict future developments or changes in the law. 

Commonwealth v. Gibble, 863 A.2d 455, 464 (Pa. 2004)

(“Counsel cannot be deemed ineffective for failing to predict 

developments or changes in the law”); see also Commonwealth 

v. Hill, 104 A.3d 1220, 1240 (Pa. 2014) (“review of counsel’s 

conduct cannot indulge ‘the distorting effects of hindsight,’ but 

instead, counsel’s performance must be judged in the light of the 

circumstances as they would have appeared to counsel at the 

time”); Commonwealth v. Spots, 896 A.2d 1191, 1238 (Pa. 

2006) ([it] is well established that the effectiveness of counsel is 

examined under the standards existing at the time of 

performance).

Id. at 4-5.

We agree. Gary constituted a binding holding, albeit narrowed to the 

rationale of the sole concurrence—that certainty and consistency will flow from 

the application of a bright-line rule consistent with the federal automobile 

exception to the warrant requirement. Alexander, 243 A.3d at 197-98. This 

Court therefore applied Gary to the instant case on direct appeal, just as we 

had done in other cases prior to Kellam’s suppression hearing. See, e.g.,

Commonwealth v. Runyan, 160 A.3d 831, 838 (Pa.Super. 2017) (“Based 

on the totality of the circumstances, we conclude the officers had probable 

cause to believe the vehicle contained contraband, which was all that was 

necessary to justify the warrantless search of the vehicle”); In re I.M.S., 124 

A.3d 311 (Pa.Super. 2015). We will not, in hindsight, fault counsel for failing 
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to anticipate that Gary would be overruled or to craft the same argument that 

convinced the Supreme Court to overrule it. Hill, 104 A.3d at 1240. Counsel 

cannot be found ineffective for failing to predict future changes in the law. 

See Commonwealth v. Colon, 230 A.3d 368, 377 (Pa.Super. 2020). 

Finally, Kellam argues that Alexander should retrospectively apply to 

his case. That is, he argues that because there were no exigent circumstances 

to excuse the police from obtaining a warrant to search his vehicle, the 

evidence should be suppressed. 

As discussed above, Gary was controlling law at the time Kellam argued 

his suppression motion and during his direct appeal. The Pennsylvania 

Supreme Court decided Alexander in December 2020, approximately a year 

after it had denied Kellam’s petition for allowance of appeal and Kellam’s 

judgment of sentence had become final.

A new constitutional rule may only be applied retroactively to finalized 

convictions if it is a substantive rule or a watershed rule of criminal procedure. 

Commonwealth v. Olson, 218 A.3d 863, 867 (Pa. 2019). Whether it applies 

retroactively is a question of law, “as to which our standard of review is de 

novo and our scope of review is plenary.” Id. at 868.

Kellam does not argue that Alexander announced a substantive rule or 

a watershed rule of criminal procedure. Nor does he argue any other basis for 

retroactive application of Alexander. Moreover, this Court has previously 

found that a rule related to whether the actions of police officers comport with 

the Fourth Amendment does not qualify as a substantive rule. See Olson, 
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218 A.3d at 875 (finding Birchfield v. North Dakota, 579 U.S. 438 (2016), 

did not apply retroactively). Moreover, we have determined that Alexander

does not apply even to cases that were pending on direct appeal at the time 

it was announced, unless the defendant properly preserved the issue.

Commonwealth v. Heidelberg, 267 A.3d 492, 503 (Pa.Super. 2021) (en 

banc), appeal denied, 279 A.3d 38 (Pa. 2022); Commonwealth v. Moore, 

263 A.3d 1193, 1199 (Pa.Super. 2021), appeal denied, 278 A.3d 857 (Pa. 

2022). Kellam has failed to establish that we should apply Alexander

retrospectively to his case on collateral review.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2022