Full Opinion

J-A18028-26 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARCEL HAWKINS : : Appellant : No. 508 WDA 2025 Appeal from the Judgment of Sentence Entered November 20, 2024 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0002213-2021 BEFORE: PANELLA, P.J.E., KING, J., and LANE, J. MEMORANDUM BY KING, J.: FILED: October 21, 2026 Appellant, Marcel Hawkins, appeals from the judgment of sentence entered in the Westmoreland County Court of Common Pleas, following his jury trial convictions for three counts of driving under the influence of alcohol or a controlled substance (“DUI”), and one count each of possession of a controlled substance, possession of a small amount of marijuana, and possession of drug paraphernalia, and his bench trial conviction for driving while operating privilege is suspended or revoked.1 We affirm. The trial court set forth the relevant facts and procedural history of this case as follows: [Appellant] was charged by criminal information on August 9, 2021 with [the aforementioned offenses]. The charges ____________________________________________ 1 See 75 Pa.C.S.A. § 3802; 35 P.S. § 780-113 (a)(16), (31), (32); and 75 Pa.C.S.A. § 1543(b), respectively. J-A18028-26 arose from a traffic stop that occurred on May 9, 2021, in New Kensington, Westmoreland County. * * * [A] jury trial began on August 5, 2024. Prior to jury selection, the parties stipulated that the charge of driving with a DUI-suspended license … would be removed from jury consideration and decided by the [trial court]. The parties agreed that after the verdict, they would admit [Appellant’s] certified driving record, and the court would render a verdict based on a review of that and the other testimony and evidence from the jury trial. The purpose of the stipulation was to avoid the prejudicial effect [Appellant’s] prior DUI conviction might have on the jury. The jury was subsequently selected and sworn. On the second day of trial, prior to any testimony, [Appellant] asked the court to [permit him to litigate a motion to suppress evidence, claiming that the evidence collected in his case was the fruit of an illegal vehicle stop.] Based on the fact that the Commonwealth had submitted new evidence — namely a police incident report — to [Appellant] only three (3) or four (4) days prior to the start of the trial, the court agreed to consider [Appellant’s] challenge to the traffic stop. The court excused the jury and held an in camera hearing on the constitutional justification for the traffic stop. During the in camera hearing, the Commonwealth called New Kensington Patrol Sergeant Kevin Hess to testify regarding the suppression issue. On May 9, 2021, he was working the 3 p.m. to 11 p.m. shift when he became aware of an Attorney General investigation. Agents [Wesley Biricocchi and Richard Castagna] of the Attorney General[’s Office] advised [Sergeant] Hess to be on the lookout for a silver Ford Fusion, operated by [Appellant], whom they suspected was involved in drug activity. He was told to try to pull the vehicle over if he saw it. [Sergeant Hess] noticed [Appellant’s] vehicle on Fifth Street, and he observed that the operator did not use a turn signal when he made a turn onto Fourth Avenue. He followed the vehicle for about a city block, and [for] a length of approximately 20 seconds before [observing the violation]. When [the vehicle] came to a stop -2- J-A18028-26 sign, [Sergeant] Hess also noticed that the brake light did not work, and there were wires coming out of the compartment where the light was supposed to be located. [Thereafter, Sergeant Hess activated his lights and pulled over Appellant’s vehicle. Appellant] was never formally cited for the turn signal or the [brake light] violations. Questioning the credibility of Sergeant Hess, defense counsel argued that the stop was violative of [Appellant’s] rights in that there was no evidence of the traffic violations except for [Sergeant] Hess’ testimony. [Defense counsel argued] that the real reason for the stop was the information received from the Attorney General’s Office, which did not constitute probable cause or reasonable suspicion. The court, finding [Sergeant] Hess believable, denied the motion…. [Thereafter, the jury trial continued.] Sergeant Hess was the Commonwealth’s first witness before the jury. During direct examination the following exchange took place: [Prosecutor]: And as you approached the vehicle and you encountered [Appellant], did you notice anything out of the ordinary? [Sergeant Hess]: Correct. I did. When I approached the vehicle I did encounter a large aroma of marijuana emitting from the vehicle. It appeared to be freshly smoked. It was very pungent. I made contact with the driver who was identified as [Appellant]. He was learned to be a suspended DUI related driver. [Defense Counsel]: Objection, Your Honor. The Court: Sustained. Ladies and Gentlemen, disregard that information. That has no relevance whatsoever. [(N.T. Trial, 8/6/24, at 47-48).] The parties then went to sidebar, and defense counsel requested a mistrial as a result of [Sergeant Hess’] reference to the DUI-related suspension. The prosecutor argued that while the parties agreed to waive [Appellant’s] -3- J-A18028-26 right to a jury trial [for] the driving under DUI-suspension charge, they never agreed to a prohibition on testimony regarding the suspended license. The [c]ourt determined that the DUI suspension was not relevant and, immediately after the sidebar, gave the following instruction to the jury: The Court: So, as you heard during the testimony of [Sergeant] Hess, he referred to there being a reason why [Appellant’s] — he referred to the fact that … [Appellant’s] license was suspended, and he provided the reason why the driver’s license was suspended, and neither of those facts should enter into your decision making at all in this case. It is completely irrelevant. Number one, the fact that — the allegation that he had a suspended license is irrelevant. That issue is not before you. Any issue for any reason for a prior license suspension is completely irrelevant, so you are to completely disregard that when you deliberate in this case... (Id. at 53). After having researched this issue, the [court] ultimately denied the motion for mistrial. In addition to Sergeant Hess, the Commonwealth also called Officer Jerry Hobeck, who was at the scene of the vehicle stop; Alyshia Meyers, a drug identification expert with the Pennsylvania State Police; and Kari Midthun, a forensic toxicologist from NMS Labs. [Appellant] elected not to testify. [The jury found Appellant] guilty … of the three (3) DUI counts as well as the three (3) drug charges. The court found him guilty of the driving under suspension charge. He was sentenced on November 20, 2024 to an aggregate of twenty one (21) months to seven (7) years of incarceration… (Trial Court Opinion, filed 3/26/25, at 1-6) (footnotes and some citations omitted). On Monday, December 2, 2024, Appellant filed a timely post- sentence motion, asserting that the court erred by denying Appellant’s motion -4- J-A18028-26 to suppress and failing to grant a mistrial. The court denied Appellant’s post sentence motion on March 26, 2025.2 On April 25, 2025, Appellant filed a notice of appeal. On April 29, 2025, Appellant filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant raises the following issues for our review: Was the pretextual traffic stop of [Appellant’s] vehicle tainted by information from a discredited agent of the Attorney General’s Office and illegal? Did the trial court abuse his discretion in failing to grant Appellant’s timely motion for mistrial, when the affiant police officer inexplicably informed the jury that the defendant on trial for DUI had a prior record of DUI, despite pretrial stipulations to preclude the same? (Appellant’s Brief at 3) (reordered for purpose of disposition). In his first issue, Appellant argues that although Sergeant Hess testified that he observed Appellant commit traffic violations prior to pulling Appellant over, Sergeant Hess’ testimony made it clear that this reasoning for the stop was pretextual. Appellant claims that this is further evidenced by the fact that Sergeant Hess did not cite Appellant for the alleged traffic violations. Rather, Appellant claims that Sergeant Hess pulled Appellant over based on information supplied by Agent Biricocchi from the Attorney General’s Office. Appellant asserts that Agent Biricocchi has since been discredited and fired from his position, which effectively “taints his traffic stop and renders it ____________________________________________ 2 Before the court ruled on the post-sentence motion, Appellant filed several pro se filings, including a pro se notice of appeal to this Court. On July 2, 2025, this Court dismissed the prematurely filed appeal as duplicative of the instant appeal. -5- J-A18028-26 illegal.” (Id. at 9). Appellant claims that the fruits of this tainted stop should have been suppressed. Appellant concludes that the court erred in denying his motion to suppress, and this Court should vacate his judgment of sentence. We disagree. The following principles govern our review of an order denying a motion to suppress: An appellate court’s 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 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, the appellate court is bound by those findings and may reverse only if the court’s legal conclusions are erroneous. Where the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court’s legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to plenary review. Commonwealth v. Ford, 175 A.3d 985, 989 (Pa.Super. 2017), appeal denied, 647 Pa. 522, 190 A.3d 580 (2018). “Moreover, appellate courts are limited to reviewing only the evidence presented at the suppression hearing when examining a ruling on a pre-trial motion to suppress.” Commonwealth v. Harlan, 208 A.3d 497, 499 (Pa.Super. 2019). “With respect to a suppression court’s factual findings, it is the sole province of the suppression court to weigh the credibility of the -6- J-A18028-26 witnesses. Further, the suppression court judge is entitled to believe all, part or none of the evidence presented [.]” Commonwealth v. Easter, 331 A.3d 675, 679 (Pa.Super. 2025), appeal denied, ___ Pa. ___, 345 A.3d 1199 (2025) (citation omitted). Additionally, A police officer has the authority to stop a vehicle when he or she 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. 75 Pa.C.S. § 6308(b). However, if the violation is such that it requires no additional investigation, the officer must have probable cause to initiate the stop. Put another way, if the officer has a legitimate expectation of investigatory results, the existence of reasonable suspicion will allow the stop—if the officer has no such expectations of learning additional relevant information concerning the suspected criminal activity, the stop cannot be constitutionally permitted on the basis of mere suspicion. Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa.Super. 2013) (internal citations and quotations omitted) (emphasis in original). See also Commonwealth v. Gurung, 239 A.3d 187, 191 (Pa.Super. 2020) (noting that where stop is based on observed violation of Vehicle Code or otherwise non-investigable offense, officer must have probable cause to make constitutional traffic stop). A “police officer has probable cause to stop a motor vehicle if the officer observes a traffic code violation, even if it is a minor offense.” Id. Further, [The] United States Supreme Court has held that any -7- J-A18028-26 violation of the Motor Vehicle Code legitimizes a stop, even if the stop is merely a pretext for an investigation of some other crime. See Whren v. U.S., 517 U.S. 806, 812–13, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (establishing a bright-line rule that any technical violation of a traffic code legitimizes a stop, even if the stop is merely a pretext for an investigation of some other crime); [Commonwealth v. Chase, 599 Pa. 80, 960 A.2d 108 (2008)] (indicating that if the police can articulate the necessary quantum of cause a constitutional inquiry into the officer’s motive for stopping the vehicle is unnecessary). This is true even if … the Vehicle Code violation witnessed by the officer is a minor offense. Commonwealth v. Harris, 176 A.3d 1009, 1020 (Pa.Super. 2017). Instantly, we initially observe that Agent Biricocchi did not testify at the suppression hearing and Appellant did not present any evidence or argument at the suppression hearing regarding any alleged wrongdoing by Agent Biricocchi. As such, we may not consider Appellant’s allegations regarding Agent Biricocchi in our review as it is not part of the suppression hearing record. See Harlan, supra. Even if Appellant had presented evidence of Agent Biricocchi’s wrongdoing, Appellant fails to explain or cite to relevant authority to demonstrate why such evidence would render the stop of his vehicle illegal. Here, Sergeant Hess testified that he witnessed a turn signal violation and a brake light violation when he followed Appellant’s vehicle, and the court credited his testimony. Therefore, Sergeant Hess had probable cause to stop Appellant’s vehicle based on his observations of violations of the Vehicle Code. See Gurung, supra. As such, it is irrelevant whether the information that Sergeant Hess received from the Attorney General’s Office was the true -8- J-A18028-26 motivation for the stop. See Harris, supra. It is also irrelevant whether the information from the Attorney General’s Office is rendered unreliable due to Agent Biricocchi’s wrongdoing because Sergeant Hess had probable cause to stop Appellant’s vehicle based on his independent observations. On this record, we discern no error in the court’s denial of Appellant’s motion to suppress. See Ford, supra. In his second issue, Appellant contends that he was irreparably prejudiced when Sergeant Hess testified that Appellant’s driving privileges were suspended due to a prior DUI. Appellant claims that the court’s curative instruction was insufficient to cure the taint to the jury from being told that Appellant had a prior DUI where Appellant was on trial for a DUI charge. Appellant argues that the testimony eroded Appellant’s presumption of innocence and a mistrial was warranted. Appellant concludes that the court erred by denying Appellant’s motion for mistrial, and this Court should vacate his judgment of sentence. We disagree. Our standard of review of a court’s denial of a motion for mistrial is as follows: In criminal trials, declaration of a mistrial serves to eliminate the negative effect wrought upon a defendant when prejudicial elements are injected into the case or otherwise discovered at trial. By nullifying the tainted process of the former trial and allowing a new trial to convene, declaration of a mistrial serves not only the defendant’s interest but, equally important, the public’s interest in fair trials designed to end in just judgments. Accordingly, the trial court is vested with discretion to grant a mistrial whenever the alleged prejudicial event may reasonably be said to deprive -9- J-A18028-26 the defendant of a fair and impartial trial. In making its determination, the court must discern whether misconduct or prejudicial error actually occurred, and if so, … assess the degree of any resulting prejudice. Our review of the resulting order is constrained to determining whether the court abused its discretion. Judicial discretion requires action in conformity with the law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason. Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016), appeal denied, 641 Pa. 63, 165 A.3d 895 (2017) (quoting Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa.Super. 2016)). “[T]he nature of the reference and whether the remark was intentionally elicited by the Commonwealth are considerations relevant to the determination of whether a mistrial is required.” Commonwealth v. Kerrigan, 920 A.2d 190, 199 (Pa.Super. 2007), appeal denied, 594 Pa. 676, 932 A.2d 1286 (2007). Generally, “reference to prior criminal activity by the accused, either expressly or by reasonable implication, is impermissible.” Commonwealth v. Smith, 552 A.2d 1053, 1060 (Pa.Super. 1988), appeal denied, 525 Pa. 581, 575 A.2d 112 (1990). Nevertheless, “[a] singular, passing reference to prior criminal activity is usually not sufficient to show that the trial court abused its discretion in denying the defendant’s motion for a mistrial.” Commonwealth v. Parker, 957 A.2d 311, 319 (Pa.Super. 2008), appeal denied, 600 Pa. 755, 966 A.2d 571 (2009). “If evidence of prior criminal activity is inadvertently presented to the jury, the trial court may cure the - 10 - J-A18028-26 improper prejudice with an appropriate cautionary instruction to the jury.” Commonwealth v. Thompson, 106 A.3d 742, 753 (Pa.Super. 2014), appeal denied, 635 Pa. 743, 134 A.3d 56 (2016) (citation omitted). “It is imperative for the trial court’s instruction to be clear and specific, and must instruct the jury to disregard the improper evidence.” Id. Here, Sergeant Hess made a singular remark referencing a prior DUI- related license suspension, and the court immediately sustained Appellant’s objection. The court also immediately told the jury to disregard Sergeant Hess’ remark and emphasized that it had no relevance to their determination. Subsequently, the court gave a more detailed curative instruction, reaffirming that the testimony in question was to be disregarded because it was irrelevant. The court clearly and specifically instructed the jury that both the allegation that Appellant had a suspended license and any alleged reasoning for a suspended license was “completely irrelevant, so you are to completely disregard that when you deliberate in this case.” (See N.T. Trial, 8/6/24, at 47-48). Additionally, Sergeant Hess’ remark was in response to a general question about his observations upon approaching Appellant’s vehicle. When Appellant objected, the prosecutor explained that his understanding of the pre-trial agreement with Appellant was that the Commonwealth would refrain from presenting Appellant’s certified driving record to the jury, not that all testimony regarding Appellant’s prior DUI would be prohibited. After the court - 11 - J-A18028-26 ruled that the prior DUI was irrelevant, the Commonwealth ensured that there would be no further testimony regarding Appellant’s prior DUI. As such, there is also no indication in the record that the Commonwealth intentionally sought to elicit improper testimony regarding Appellant’s prior DUI. See Kerrigan, supra. Further, the Commonwealth presented significant independent evidence to support Appellant’s DUI convictions. Specifically, Sergeant Hess testified that he smelled the odor of alcohol and freshly smoked marijuana emanating from Appellant’s vehicle and person. A half-smoked blunt containing marijuana was recovered from the center console of the vehicle. A bag of marijuana and a bag of cocaine was recovered from Appellant’s person. Appellant failed to successfully complete four field sobriety tests. Further, Dr. Midthun, the forensic toxicology expert, testified that Appellant’s blood tested positive for a metabolite of cocaine and had a blood alcohol concentration of 0.138. On this record, we discern no error with the court’s decision that a mistrial was not required in this case. See Tucker, supra. The court’s immediate action following Sergeant Hess’ testimony and its detailed and clear curative instructions were sufficient to cure any resulting prejudice to Appellant, particularly in light of the overwhelming independent evidence presented by the Commonwealth of Appellant’s guilt. See Thompson, supra; Parker, supra. See also Commonwealth v. Van Dang, No. 1660 - 12 - J-A18028-26 MDA 2022 (Pa.Super. filed Sep. 18, 2023) (unpublished memorandum) (affirming denial of motion for mistrial in trial for DUI charge where court clearly instructed jury to disregard single statement that appellant’s license was suspended because of DUI and where Commonwealth presented independent evidence to support conviction).3 Accordingly, we affirm Appellant’s judgment of sentence. Judgment of sentence affirmed. DATE: 10/21/2026 ____________________________________________ 3 See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this Court filed after May 1, 2019 for persuasive value). - 13 -