J-S44005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT KELLEY, JR.                         :
                                               :
                       Appellant               :   No. 830 WDA 2018

              Appeal from the Judgment of Sentence May 9, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0011637-2017


BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                           FILED DECEMBER 10, 2019

       Appellant, Robert Kelley, Jr., appeals from the judgment of sentence

entered following his convictions of one count of carrying a firearm without a

license and two counts of possession of a controlled substance.1 We affirm.

       The trial court summarized the factual history of this case as follows:

              On May 11, 2017, at approximately 6:30 p.m., police
       officers with the City of Pittsburgh Bureau of Police initiated a
       traffic stop on a vehicle on the Bloomfield Bridge, at or near the
       intersection of Liberty Avenue. Officers stopped the subject
       vehicle after observing the vehicle change lanes abruptly without
       signaling, causing the operator of another vehicle to come to an
       abrupt stop in order to avoid striking the subject vehicle.

             Upon initiating the traffic stop, officers approached the
       vehicle and spoke with the female operator and the male front
       seat passenger, who was later identified as [Appellant]. While
       speaking with the occupants of the vehicle, officers detected an
       odor of marijuana emanating from the vehicle and observed that
____________________________________________


1   18 Pa.C.S. § 6106 and 35 P.S. § 780-113(a)(16), respectively.
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      [Appellant] appeared to be very nervous. Based upon these
      observations, officers directed [Appellant] to exit the vehicle, at
      which time they conducted a pat down of [Appellant’s] person.
      During the pat down, officers discovered a firearm in [Appellant’s]
      right front pocket. [Appellant] was subsequently taken into
      custody for possession of the firearm. During a subsequent search
      of the vehicle, police recovered two folded pieces of paper
      containing an unknown powdered substance. Concerned that the
      substance might pose a danger to police and the public, officers
      asked [Appellant] if he could identify the substance inside of the
      folded pieces of paper. [Appellant] advised officers that the
      substance was heroin, and was thereafter charged with one count
      of possessing a firearm without a license and two counts of
      possession of a controlled substance.

Trial Court Opinion, 2/14/19, at 2-3.

      On December 15, 2017, Appellant filed an omnibus pretrial motion

seeking to suppress physical evidence and Appellant’s oral statements to

police.   The trial court held a suppression hearing on March 20, 2018.

Thereafter, the parties filed briefs with the trial court. On May 9, 2019, prior

to the commencement of a nonjury trial, the trial court denied Appellant’s

motion to suppress.    At the conclusion of the nonjury trial, the trial court

convicted Appellant of the crimes stated above. Immediately following the

announcement of the verdict, the trial court sentenced Appellant to serve a

term of probation of three years for the firearms conviction. The trial court

imposed no further penalty on the possession of controlled substance

convictions. This timely appeal followed. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.




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       Appellant presents the following issues for our review, which we have

reordered for purposes of disposition:2

       [1.] Were the Appellant’s convictions for illegal possession of a
       firearm and illegal possession of heroin based on insufficient
       evidence?

       [2.] Did the trial court err in denying Appellant’s Motion to
       Suppress physical evidence seized from the car in which he was a
       passenger, and incriminating statements he made to police during
       the traffic stop, given that the traffic stop was illegal from its
       inception, the seizure of Appellant was unlawful, the search of the
       car was not justified by a search warrant nor any exception to the
       search warrant requirement, and his statements were not
       preceded by Miranda[3] warnings but were preceded by an illegal
       arrest?

       [3.] Were the Appellant’s convictions for illegal possession of a
       firearm and illegal possession of heroin against the weight of the
       evidence given that the Commonwealth failed to show that
       Appellant had actual or constructive possession of the contraband,
       where the heroin was found in a car in which the Appellant was
       but a passenger?

Appellant’s Brief at 10.

       Appellant first argues that there was insufficient evidence to support his

convictions.      Appellant’s Brief at 42-43.          Appellant claims that the

Commonwealth failed to prove that the gun in his possession was carried in a

concealed manner.         Id. at 43.       In addition, Appellant alleges that the


____________________________________________


2 We address Appellant’s challenge to the sufficiency of the evidence first
because he would be entitled to discharge if the evidence was insufficient to
support the verdict. See Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa.
Super. 2013) (stating “Because a successful sufficiency of the evidence claim
warrants discharge on the pertinent crime, we must address this issue first”).
3   Miranda v. Arizona, 384 U.S. 436 (1966).

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Commonwealth failed to establish that he was in constructive possession of

the narcotics discovered in the automobile. Id.

      We observe that “to preserve their claims for appellate review,

appellants must comply whenever the trial court orders them to file a

Statement of [Errors] Complained of on Appeal pursuant to [Rule] 1925. [As

a general rule, a]ny issues not raised in a [Rule] 1925(b) statement will be

deemed waived.” Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005)

(quoting Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)). “If [an

appellant] wants to preserve a claim that the evidence was insufficient, then

the [Rule] 1925(b) statement needs to specify the element or elements upon

which the evidence was insufficient.” Commonwealth v. Manley, 985 A.2d

256, 262 (Pa. Super. 2009). See also Commonwealth v. Williams, 959

A.2d 1252, 1257-1258 (Pa. Super. 2008) (finding waiver of sufficiency of

evidence claim where the appellant failed to specify in Rule 1925(b) Statement

the elements of particular crime not proven by the Commonwealth).

      Appellant’s Rule 1925(b) statement at paragraph nine asserts:

“Further, there was insufficient evidence to sustain [Appellant’s] convictions.”

Appellant’s Rule 1925(b) Statement, 7/16/18, at 3. Appellant’s non-specific

claim challenging the sufficiency of the evidence fails to specify what elements

of which crimes were allegedly not proven by the Commonwealth.

Consequently, Appellant waived this claim on appeal.          Castillo; Lord;

Manley.


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      Appellant next argues that the trial court erred in denying his motion to

suppress evidence. Appellant’s Brief at 14-37. Appellant contends that both

the physical evidence seized during the traffic stop as well as his statements

made to police during the stop should have been suppressed.          Appellant

presents four sub-issues as support for this issue. Appellant asserts that the

traffic stop was improper. Id. at 14-20. He further alleges that the police

lacked probable cause to place him under arrest. Id. at 20-28. In addition,

Appellant claims that the search of the vehicle was illegal.    Id. at 28-33.

Finally, he contends that his statements to police should have been

suppressed because they were involuntary and inadmissible. Id. at 33-37.

      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

testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.

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

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

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

      Further, we are aware that Pa.R.Crim.P. 581, which addresses the

suppression of evidence, provides in relevant part as follows:

      (H) The Commonwealth shall have the burden . . . of
      establishing that the challenged evidence was not obtained in
      violation of the defendant’s rights.

Pa.R.Crim.P. 581(H). At a suppression hearing, the Commonwealth has the

burden of “establish[ing] by a preponderance of the evidence that the

evidence was properly obtained.”      Commonwealth v. Galendez, 27 A.3d

1042, 1046 (Pa. Super. 2011) (quoting Commonwealth v. Culp, 548 A.2d

578, 581 (Pa. Super. 1988)).

      We first consider Appellant’s claim that the evidence should have been

suppressed because the police improperly conducted a traffic stop of the

vehicle in which he was an occupant. Appellant’s Brief at 14-20. Appellant

baldly asserts that the stop of the vehicle was illegal because it was not based

upon a motor vehicle violation, but was the result of racial profiling. Id. at

14-19.

      To secure the right of citizens to be free from intrusions by police, courts

in Pennsylvania require law enforcement officers to demonstrate ascending

levels of suspicion to justify their interactions with citizens as those

interactions become more intrusive. Commonwealth v. Beasley, 761 A.2d

621, 624 (Pa. Super. 2000).



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      It is undisputed that:

      [s]tate case law recognizes three categories of interaction
      between police officers and citizens, which include: (1) a mere
      encounter, or request for information, which need not be
      supported by any level of suspicion, but which carries no official
      compulsion to stop or to respond; (2) an investigative detention,
      which must be supported by reasonable suspicion as it subjects a
      suspect to a stop and a period of detention, but does not involve
      such coercive conditions as to constitute the functional equivalent
      of an arrest; and (3) arrest or custodial detention, which must be
      supported by probable cause.

Commonwealth v. Acosta, 815 A.2d 1078, 1082 (Pa. Super. 2003) (en

banc).

      “The issue of what quantum of cause a police officer must possess in

order to conduct a vehicle stop based on a possible violation of the Motor

Vehicle Code [(“MVC”)] is a question of law, over which our scope of review is

plenary and our standard of review is de novo.” Commonwealth v. Holmes,

14 A.3d 89, 94 (Pa. 2011).        The MVC provides the following statutory

authorization for a police officer to stop a motor vehicle:

      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.

75 Pa.C.S. § 6308(b).

      However, this Court has explained the following:

      [Section 6308(b)] requires only reasonable suspicion in support
      of a stop for the purpose of gathering information necessary to
      enforce the [MVC] violation. However, in Commonwealth v.

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     Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en banc), appeal
     denied, 611 Pa. 650, 25 A.3d 327 (Pa. 2011), this Court held that
     a police officer must have probable cause to support a vehicle stop
     where the officer’s investigation subsequent to the stop serves no
     “investigatory purpose relevant to the suspected [MVC] violation.”
     In Feczko, the police officer observed the defendant’s vehicle
     cross over the double yellow median line and the fog line. Id. at
     1286. During the ensuing vehicle stop, the officer noticed the
     scent of alcohol on the defendant’s breath. Id. Importantly, the
     officer did not testify that the stop was based on suspicion of DUI.
     Id. The defendant was convicted of DUI and a [MVC] violation,
     and argued on appeal that the vehicle stop was illegal. Id. at
     1287.

            This Court noted the distinction between “the investigative
     potential of a vehicle stop based on a reasonable suspicion of DUI
     as compared to other suspected violations of the [MVC].” Id. at
     1289 (citing Commonwealth v. Sands, 887 A.2d 261, 270 (Pa.
     Super. 2005)). Whereas a vehicle stop for suspected DUI may
     lead to further incriminating evidence such as an odor of alcohol
     or slurred speech, a stop for suspected speeding is unlikely to lead
     to further evidence relevant to that offense. Id. Therefore:

           a vehicle stop based solely on offenses not
           “investigable” cannot be justified by a mere
           reasonable suspicion, because the purposes of a
           Terry1 stop do not exist - maintaining the status quo
           while investigating is inapplicable where there is
           nothing further to investigate. An officer must have
           probable cause to make a constitutional vehicle stop
           for such offenses.

           1 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
           L.Ed.2d 889 (1968).

     [Feczko, 10 A.3d] at 1290 (quoting Commonwealth v. Chase,
     960 A.2d 108, 116 (Pa. 2008)).

Commonwealth v. Busser, 56 A.3d 419, 423 (Pa. Super. 2012) (footnote in

original). Probable cause does not require certainty, but rather exists when

criminality is one reasonable inference, not necessarily even the most likely


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inference.   Commonwealth v. Lindblom, 854 A.2d 604, 607 (Pa. Super.

2004).

      The MVC addresses use of signals for turning and movement on the

roadway as follows:

      § 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.

75 Pa.C.S. § 3334(a).     We have held that a police officer must possess

probable cause in order to effect a stop for a violation of Section 3334. See

Commonwealth v. Spieler, 887 A.2d 1271, 1275-1276 (Pa. Super. 2005)

(holding police officer had probable cause to stop a defendant for violation of

Section 3334 where a defendant moved to and from right-hand to left-hand

lane without using appropriate signals).

      Our review of the record reflects that the police possessed probable

cause to stop the vehicle in which Appellant was a passenger for a violation of

the MVC.     At the suppression hearing, Officer Michael Nowe, a City of

Pittsburgh police officer, offered testimony.       N.T., 3/20/18, at 4-22.

Officer Nowe stated that at 6:00 p.m. on May 11, 2017, he was driving on the

Bloomfield Bridge in Pittsburgh when he observed the subject vehicle cross

lanes on the bridge without employing its turn signals.            Id. at 5-7.

Officer Nowe explained his reasons for stopping the vehicle:


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      Q. Okay. As you are merging onto the Bloomfield Bridge in the
      left-hand lane, that’s when this vehicle did what?

      A. It entered into the right lane without using a turn signal.

      Q. Okay. Was there anything that drew this particular incident to
      your attention?

      A. They did it so abruptly. And so the vehicle behind them
      almost hit the rear end of their vehicle, then slammed on
      the brakes.

      Q. So you observed the vehicle that was ahead of you, this
      Mercury, swerving to the right lane without using a signal; is that
      accurate?

      A. Correct.

      Q. So the vehicle that was behind them in the right-hand lane had
      to brake suddenly to avoid a collision?

      A. Correct.

      Q. All right.   So you then initiated a traffic stop; is that
      correct?

      A. Yes, sir.

Id. at 7-8 (emphases added).

      This testimony is sufficient to establish the probable cause necessary to

stop the vehicle for a violation of Section 3334(a) of the MVC. Thus, because

Officer Nowe articulated facts at the suppression hearing that amounted to

probable cause, we conclude that the stop of the vehicle was lawful.

Accordingly, the trial court did not err in denying Appellant’s motion to

suppress evidence obtained following the legal stop of the vehicle.




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       Furthermore, we observe that Appellant claims that the pretextual

nature of the stop is supported by the fact that the police never ticketed the

driver for the MVC offense. Appellant’s Brief at 19-20. Despite Appellant’s

suggestion to the contrary, the fact that the police did not subsequently charge

the driver of the vehicle with an MVC violation does not support his argument

that the violation was a pretext for the stop. “The issuance of a citation by an

officer for a violation of the [MVC] is a matter within the sole discretion of that

officer.”   Spieler, 887 A.2d at 1275.             The decision not to prosecute a

defendant for a MVC violation for which police originally stopped the vehicle

does not vitiate the legality of a stop originally supported by either probable

cause or reasonable suspicion. See id. at 1275-1276 (defendant charged with

DUI but not the MVC violations for which he was originally stopped). Here,

Officer Nowe testified that he did not give the driver a ticket for failing to use

a turn signal, but indicated that he gave her a verbal warning. N.T., 3/20/18,

at 15. Therefore, we conclude that Appellant’s argument in this regard does

not support his claim that the stop of the vehicle was based upon pretext.4

____________________________________________


4  We note that Appellant also asserts that “video was made of the encounter
from the cameras mounted in the officers’ vehicle. The targeted vehicle did
not engage in any improper lane change as the officers claimed.” Appellant’s
Brief at 20. Our law is unequivocal that the responsibility rests upon the
appellant to ensure that the record certified on appeal is complete in the sense
that it contains all of the materials necessary for the reviewing court to
perform its duty. Commonwealth v. Kleinicke, 895 A.2d 562, 575 (Pa.
Super. 2006) (en banc). The ultimate responsibility of ensuring that the
transmitted record is complete rests squarely upon the appellant and not upon



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       In conclusion, the record establishes that the police possessed probable

cause to stop the vehicle for a violation of the MVC. Therefore, the stop of

the vehicle was proper and Appellant’s contrary claim lacks merit.

       Appellant next asserts that the police lacked probable cause to arrest

him. Appellant’s Brief at 20-28. Appellant claims that he was “immediately

handcuffed” and did not believe he was free to leave. Id. at 22. Appellant

further contends that the odor of marijuana, which the officers noticed, does

not establish probable cause to justify his arrest.    Id. at 23.   In addition,

Appellant posits that the firearm discovered on his person did not justify his

seizure because the gun was discovered after he was seized. Id. at 27-28.

       We will first consider whether Appellant, when he was asked to exit the

vehicle and handcuffed, was under arrest or subjected to an investigative

detention. In reviewing this portion of Appellant’s claim, we are mindful of

the following precepts:


____________________________________________


the appellate courts. Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super.
2006) (en banc).

   Upon review of the certified record before us, it is obvious that the video in
question was not transmitted to this Court. In an effort to address this issue,
we have taken the lenient approach and directed the Superior Court
Prothonotary to contact the clerk of courts of the Allegheny County Court of
Common Pleas to ascertain whether the video inadvertently remained with the
lower court. The Allegheny Court of Common Pleas Clerk of Courts informed
our Prothonotary that the video in this matter was not made a part of the
certified record. Therefore, Appellant failed to ensure that the complete record
is before this Court. Accordingly, because we cannot examine the claim
concerning what appears on the video, our review is hampered, and we are
constrained to deem this issue waived on appeal.

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            “An arrest is defined as any act that indicates an intention
      to take the person into custody and subjects him to the actual
      control and will of the person making the arrest. . . . The test is
      an objective one, i.e., viewed in the light of the reasonable
      impression conveyed to the person subjected to the seizure rather
      than the strictly subjective view of the officers or the persons
      being seized.”

Commonwealth v. Butler, 729 A.2d 1134, 1137 (Pa. Super. 1999) (quoting

Commonwealth v. Rodriquez, 614 A.2d 1378, 1384 (Pa. 1992)).

      We have further explained:

                  During a traffic stop, the officer “may ask the
            detainee a moderate number of questions to
            determine his identity and to try to obtain information
            confirming or dispelling the officer’s suspicions.” “[I]f
            there is a legitimate stop for a traffic violation ...
            additional suspicion may arise before the initial stop’s
            purpose has been fulfilled; then, detention may be
            permissible to investigate the new suspicions.”

             Moreover, it is well-established that “when an officer detains
      a vehicle for violation of a traffic law, it is inherently reasonable
      that he or she be concerned with safety and, as a result, may
      order the occupants of the vehicle to alight from the car.” See
      Commonwealth v. Pratt, 930 A.2d 561, 564 (Pa. Super. 2007)
      (noting that “following a lawful traffic stop, an officer may order
      [] the driver ... of a vehicle to exit the vehicle until the traffic stop
      is completed, even absent a reasonable suspicion that criminal
      activity is afoot.”).

             Furthermore, for their safety, police officers may handcuff
      individuals during an investigative detention.

Commonwealth v. Harris, 176 A.3d 1009, 1020-1021 (Pa. Super. 2017)

(certain citations omitted).    “Because the level of intrusion into a person’s

liberty may change during the course of the encounter, we must carefully

scrutinize the record for any evidence of such changes.” Commonwealth v.


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Blair, 860 A.2d 567, 572 (Pa. Super. 2004) (citing Commonwealth v.

Strickler, 757 A.2d 884 (Pa. 2000)).

      Our review of the record reflects that, contrary to Appellant’s assertion

that he was immediately arrested when the vehicle was stopped, he was not

asked to exit the vehicle until approximately ten minutes after the automobile

was stopped. Specifically, at his suppression hearing, Appellant offered the

following testimony:

      Q. Okay. Now, both of the plainclothes officers, did they approach
      the car also?

      A. Yes.

      Q. How soon afterwards was [the driver] taken out of the car?

      A. I would say about five minutes.

      Q. And how long was she out of the car before you were taken out
      of the car?

      A. I would say approximately about five minutes.

      Q. Okay. Now, is the car window down and are you being
      questioned by the undercover officer that is on your side of the
      car?

      A. Yes, ma’am.

      Q. And can you tell the Court what he is asking you[?]

      A. He was asking me where I was from, where I lived where I
      worked, where we were going, where we were coming from.

N.T., 3/20/18, at 51.     This testimony from Appellant belies his current

allegation that he was immediately arrested upon the stop of the vehicle.




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      Moreover, the following testimony offered by Officer Devin McGee of the

Pittsburgh Police establishes that Appellant was not immediately asked to exit

the vehicle.    Rather, police asked the passengers to exit after Appellant

admitted that there was marijuana in the automobile.

      Q. Let me phrase it this way. Did either of you, either the
      officers, make a statement to [Appellant] about the odor
      that you detected?

      A. Yes.

      Q. What was [Appellant’s] response?

      A. That there was some in here somewhere.

      Q. What did you understand that to mean?

      A. That there was marijuana in the vehicle somewhere.

      Q. And you heard him say that?

      A. Yes.

      Q. Okay. What did you do at that point?

      A. I believe we waited for Officer Nowe to come back and
      had the passengers exit the vehicle.

      Q. And why did you take that step?

      A. The odor of marijuana in the vehicle.

      Q. So was it your intention to search the vehicle for
      marijuana at that point?

      A. Yes.

      Q. Did you or Officer Weight perform a pat down of any of the
      vehicle’s occupants?




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      A. I believe I did on the driver and Officer Weight did on the
      passenger, [Appellant].

N.T., 3/20/18, at 25-26 (emphases added). Upon review of this testimony,

we are satisfied that Appellant was not placed under arrest as he claims, but

was subjected to an investigative detention precipitated by the detection of

the odor of marijuana in the vehicle.

      To effectuate an investigative detention, an officer is required to have

reasonable suspicion that unlawful activity was in progress. As we explained

in Commonwealth v. Walls, 53 A.3d 889 (Pa. Super. 2012),

      The determination of whether an officer had reasonable suspicion
      that criminality was afoot so as to justify an investigatory
      detention is an objective one, which must be considered in light
      of the totality of the circumstances. It is the duty of the
      suppression court to independently evaluate whether, under the
      particular facts of a case, an objectively reasonable police officer
      would have reasonably suspected criminal activity was afoot.

Id. at 893 (quoting Commonwealth v. Gutierrez, 36 A.3d 1104, 1107-1108

(Pa. Super. 2012)).    Therefore, we will next consider whether the police

possessed the requisite reasonable suspicion to conduct an investigative

detention.

      Our review of the record reflects that the police possessed reasonable

suspicion that unlawful activity was in progress. Specifically, Officer McGee

indicated that there was an odor of marijuana emanating from the vehicle.

N.T., 3/20/18, at 25. As previously stated, Officer McGee testified that when

he asked Appellant about the odor of marijuana that was detected, Appellant

replied that “there was some in here somewhere.” Id. at 25-26. In addition,

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Appellant offered the following pertinent testimony at the suppression

hearing:

      Q. Now did [the officer] ever ask you about marijuana in the car
      or do you tell him that there’s marijuana in the car?

      A. He did ask me if there was anything in the car, marijuana. I
      said I do not know, there might be. I wasn’t sure.

Id. at 53 (emphasis added).

      The totality of these facts, in the knowledge of the officers at the time,

was sufficient to establish reasonable suspicion of criminal activity necessary

to detain Appellant. Thus, because the police officer articulated facts at the

suppression hearing that would give rise to a reasonable suspicion of criminal

activity, which were supported by Appellant’s testimony, we conclude that the

investigative detention was lawful.

      Appellant next contends that the police search of the vehicle was illegal

because it was conducted without a search warrant. Appellant’s Brief at 28-

33.   Appellant further asserts that none of the exceptions to the search

warrant requirement applies. Id.

      Concerning a warrantless search of a vehicle, Pennsylvania law is

“coextensive” with federal law under the Fourth Amendment of the United

States Constitution. Commonwealth v. Gary, 91 A.3d 102, 120 (Pa. 2014)

(plurality).   In Gary, a plurality of our Supreme Court held that “[t]he

prerequisite for a warrantless search of a motor vehicle is probable cause to

search; no exigency beyond the inherent mobility of a motor vehicle is


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required.”    Id. at 138.   Thus, we must determine whether the officer had

probable cause to search Appellant’s vehicle.

        Probable cause exists where the facts and circumstances within an

officer’s knowledge are sufficient to warrant a person of reasonable caution to

believe that a defendant has committed or is committing an offense.

Commonwealth v. Runyan, 160 A.3d 831, 837 (Pa. Super. 2017) (citation

omitted). “The evidence required to establish probable cause for a warrantless

search must be more than a mere suspicion or a good faith belief on the part

of the police officer.”     Id.   The well-established standard for evaluating

whether probable cause exists is consideration of the “totality of the

circumstances.” Id.

        Our review of the certified record reflects that, under the totality of the

circumstances, the police possessed probable cause to search the vehicle in

which    Appellant   was    a   passenger    without   a   warrant.   Specifically,

Officer McGee testified that he detected that the vehicle had an odor of

marijuana.     N.T., 3/20/19, at 25.        When questioned about the odor of

marijuana, Appellant indicated that “there was some in here somewhere.” Id.

at 25-26.     Appellant was then detained and subjected to a search of his

person, which revealed that he was carrying a concealed firearm in his front

right pants pocket. Id. at 28. Under the totality of these circumstances, we

conclude that the suppression court had a sufficient basis to find that the

police possessed probable cause to believe that Appellant had committed or


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was committing an offense.       Hence, pursuant to Gary and Runyan, the

warrantless search of the vehicle was proper.

      Appellant last challenges the trial court’s denial of his motion to suppress

by arguing that his statements made to police were involuntary and

inadmissible.   Appellant’s Brief at 33-37.     Appellant claims that he was

improperly questioned and made incriminating statements without having

received his Miranda warnings. Id.

      It is well settled that Miranda is not implicated unless an individual is

in custody and subject to interrogation. Commonwealth v. Umstead, 916

A.2d 1146, 1149-1152 (Pa. Super. 2007). In Umstead, this Court expressly

rejected the appellant’s assertion that Miranda warnings are necessary in

every instance where an individual who is in police custody is questioned by a

law enforcement officer “regarding a crime.” Id. at 1152.

      It is a fundamental precept enshrined in the United States
      Constitution that a suspect subject to a custodial interrogation by
      police must be warned that he has the right to remain silent, that
      anything he says may be used against him in court, and that he
      is entitled to the presence of an attorney.

Commonwealth v. Cruz, 71 A.3d 998, 1003 (Pa. Super. 2013) (citation

omitted).   A custodial interrogation occurs when there is a “questioning

initiated by the police after a person has been taken into custody or otherwise

deprived of his or her freedom of action in any significant way.”

Commonwealth v. Clinton, 905 A.2d 1026, 1032 (Pa. Super. 2006)

(citations and emphasis omitted). In determining whether police conduct is


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the functional equivalent of custodial interrogation, our Supreme Court has

noted that:

      the court must focus on a suspect’s perceptions and give
      relevance to the officer’s constructive knowledge.           Such
      considerations were required by the [Supreme Court’s] direction
      [in Rhode Island v. Innis, 446 U.S. 291, 301 (1980)] that the
      inquiry must look at the suspect’s perceptions rather than the
      intent of the police. Moreover, a practice that the police should
      know is reasonably likely to evoke an incriminating response from
      a suspect . . . amounts to an interrogation.

Commonwealth v. Gaul, 912 A.2d 252, 255 (Pa. 2006) (internal quotation

marks omitted). See also Commonwealth v. Garvin, 50 A.3d 694, 698

(Pa. Super. 2012) (“Interrogation is police conduct calculated to, expected to,

or likely to evoke admission.”). In conducting this inquiry, we are mindful of

the fact that “not every statement made by an individual during a police

encounter constitutes an interrogation.” Commonwealth v. Page, 59 A.3d

1118, 1131 (Pa. Super. 2013) (citation omitted). See also Garvin, 50 A.3d

at 698 (not every statement made by an individual during a police encounter

constitutes an interrogation). Moreover, this Court has long recognized that

“[v]olunteered or spontaneous utterances by an individual are admissible even

without Miranda warnings.” Commonwealth v. Williams, 941 A.2d 14, 30

(Pa. Super. 2008) (citation omitted).

      Our review of the record establishes that, during the search of the

vehicle, police discovered small folded pieces of paper in the pocket of the

passenger door. N.T., 3/20/18, at 29-30. Officer McGee testified that drugs




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J-S44005-19


are often packaged in that manner. Id. at 30-31. The officer then offered

the following testimony:

     Q. So do you recall if it was you who asked [Appellant] what was
     in these [paper packets]?

     A. I can’t remember.

     Q. Okay. Do you recall the reason for asking [Appellant] what
     was in these [paper packets]?

     A. Well, usually heroin and fentanyl is [sic] packaged like that and
     fentanyl is what’s killing people, so we don’t really want to touch
     it.

     Q Right.

     A. If someone knows what it is, I would rather know what it is.
     Regardless, it’s going to go to the lab, but I don’t want to touch
     it.

                                     * * *

     Q. Is it accurate to say it was a safety concern as to why you
     wanted to know what was in these packages?

     A. Correct.

N.T., 3/20/18, at 30-31.

     Appellant offered the following testimony regarding the discussion with

police about the items discovered:

     Q. When the drugs are found during the search of the car, are you
     shown the drugs? Or were you told that there was drugs found?

     A. Yes, I was shown.

     Q. And who showed you the drugs?

     A. Officer McGee.


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J-S44005-19


      Q. Did Officer McGee or anybody else Mirandize you at that point?

      A. No.

      Q. And what did Officer McGee say to you?

      A. He asked me if it was fentanyl.

      Q. Did he ask you if it was heroin?

      A. Yes.

      Q. And did you tell him you didn’t know?

      A. I told him I wasn’t sure.

      Q. And did he continue to question you about the drugs?

      A. He pretty much just said okay.

      Q. At some point, based on your exchange with the police, did you
      then tell the police that the drugs were yours?

      A. Yes, I did.

      Q. Did you say everything in the car is mine?

      A. Yes, I did.

      Q. And you weren’t Mirandized?

      A. Yes, ma’am.

      Q. Okay.

N.T., 3/20/18, at 55-56.      Subsequently, on cross-examination, Appellant

provided the following clarification:

      Q. Did anyone ask you if the stuff in the car was yours?

      A. No, sir.

      Q. You just said that everything in the car is mine?

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J-S44005-19


      A. Yes, sir.

Id. at 56.

      Upon review of this evidence, we are compelled to conclude that

Appellant’s comments to police regarding ownership of the contraband

discovered in the vehicle were spontaneous comments and not the product of

an interrogation. As set forth above, Appellant avowed that he was not asked

whether the items discovered were his. Id. He further indicated that the

acknowledgement of ownership was a voluntary statement. Id. Hence, the

record supports our determination that the comment regarding ownership of

the contraband was a spontaneous statement made by Appellant and not the

product of an interrogation.

      In summary, we conclude that each of Appellant’s challenges to the

admission of evidence lacks merit. Hence, the trial court did not err in refusing

to grant Appellant’s motion to suppress evidence.

      Appellant last argues that the verdict of guilt was against the weight of

the evidence. Appellant’s Brief at 37-41. Appellant limits his argument to a

claim that the weight of the evidence failed to establish that Appellant had

constructive possession of the contraband discovered in the automobile. Id.

at 40-41.




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       The threshold question for this Court is whether Appellant’s weight issue

has been preserved for our review.             Pa.R.Crim.P. 6075 and its comment

instruct that in order to preserve for appellate review a claim that a verdict is

against the weight of the evidence, the issue must be raised with the trial

judge in a motion for a new trial either orally or in writing prior to sentencing,

or in a post-sentence motion.              Pa.R.Crim.P. 607.   We reiterated in

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004), “The

purpose of this rule is to make it clear that a challenge to the weight of the

evidence must be raised with the trial judge or it will be waived.” Id. at 1277

(citing Pa.R.Crim.P. 607, cmt). The Gillard Court concluded, “Rule 607 clearly

requires that such a claim be raised initially by a motion to the trial court, and

the failure to do so compels this Court to find the issue waived, even if it was

ultimately addressed by the trial court in its Rule 1925(a) opinion.” Gillard,



____________________________________________


5 Pennsylvania Rule of Criminal Procedure 607 governs challenges to the
weight of the evidence and provides, in relevant part, as follows:

       (A) A claim that the verdict was against the weight of the evidence
       shall be raised with the trial judge in a motion for a new trial:

              (1) Orally, on the record, at any time before
              sentencing;

              (2) By written motion at any time before sentencing;
              or

              (3) In a post-sentence motion.

Pa.R.Crim.P. 607(A).

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850 A.2d at 1277 (citing Commonwealth v. Washington, 825 A.2d 1264

(Pa. Super. 2003)). See also Commonwealth v. Butler, 729 A.2d 1134,

1140 (Pa. Super. 1999) (holding that a challenge to the weight of the evidence

is waived for failure to present the issue first to the trial court).

      Here, Appellant never filed with the trial court an oral or written motion

for a new trial prior to sentencing or a post-sentence motion challenging the

weight of the evidence. Rather, Appellant raised his claim that the verdicts

were against the weight of the evidence in his Pa.R.A.P. 1925(b) statement.

Hence, we conclude that the issue challenging the weight of the evidence is

waived. Pa.R.Crim.P. 607; Gillard, 850 A.2d at 1277.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/2019




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