J-S82003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANDRE LAMONT BUTLER,

                            Appellant                  No. 1591 WDA 2016


      Appeal from the Judgment of Sentence Entered September 20, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0002797-2016


BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**

MEMORANDUM BY BENDER, P.J.E.:                    FILED FEBRUARY 26, 2018

        Appellant, Andre Lamont Butler, appeals from the judgment of

sentence of three years’ probation, imposed following his conviction for

carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(2).          Appellant

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

firearm. After careful review, we affirm.

        The record in this matter is limited. Appellant’s trial consisted entirely

of his stipulation to the facts set forth in the affidavit of probable cause,

followed by the court’s verdict. N.T., 9/20/16, 2-3. The affidavit of probable

cause stated, verbatim, as follows:

____________________________________________


*   Former Justice specially assigned to the Superior Court.
**   Retired Senior Judge assigned to the Superior Court.
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      Your affiant in this case is Officer Fred Hill. I have been a Police
      Officer over 18 years and in that time, I have made countless
      arrests and convictions for firearms and narcotics related
      offenses. On Saturday, 2/20/16, at appx 1118 Hours, I was on
      routine patrol near the Dollar General Store, Clonmel @ Hoffman
      Blvd. I observed a white Buick sedan bearing PA# JVX-2074 with
      black window tint covering the side windows. I ran the
      registration and it was suspended due to insurance. I conducted
      a traffic stop for the vehicle code violations. Upon approaching
      the vehicle, I knew the driver to be DEFENDANT ANDRE BUTLER
      and the passenger was identified as James Brooks.             While
      speaking with Butler, I observed him to be very nervous. I
      asked Butler if he had a weapon on him. Butler stated that he
      had a gun. I asked Butler if he had a permit, he stated no.
      Upon arrival of Officer Ernst, we removed Butler from the vehicle
      and he was detained. We removed Brooks from the vehicle and
      he was detained. I recovered a Smith and Wesson 40 caliber
      firearm with a laser from the unlocked glove compartment.
      Serial # DTD0121. Butler stated the gun was his and he thought
      he could carry it as long as it was not on his body. Butler is a
      convicted Felon.      The firearm was registered to a Ronald
      Norman. Butler was checked and he does not have a gun
      permit.

      I BELIEVE PROBABLE CAUSE EXISTS FOR THE LISTED CHARGES.

Criminal Complaint, 2/2/16, at 6 (affidavit of probable cause).

      Following Appellant’s arrest and the filing of the criminal complaint,

the Commonwealth filed a criminal information on April 25, 2016. Therein,

the Commonwealth charged Appellant with carrying a firearm without a

license (count 1), and three Motor Vehicle Code violations (counts 2-4).

Appellant filed a written suppression motion on September 20, 2016 – the

same day as his non-jury trial.

      On the day of trial, the Commonwealth withdrew counts 2-4, the trial

court denied Appellant’s suppression motion (without hearing testimony or

argument), and the trial court entered a verdict of guilty following


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Appellant’s stipulation.    N.T., 9/20/16, 2-3.    The court then immediately

sentenced Appellant to three years’ probation. Id. at 3. Appellant filed a

timely notice of appeal, and a timely, court-ordered Pa.R.A.P. 1925(b)

statement.     The trial court issued its Rule 1925(a) opinion on January 12,

2017.

        Appellant now presents the following question for our review:

        Did the trial court err in failing to suppress the gun found in the
        vehicle because the questioning of [Appellant] was an
        investigative detention without reasonable suspicion?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

        Before we reach the merits of Appellant’s claim, we must begin by

addressing the Commonwealth’s assertion that it is subject to waiver due to

his failure to articulate it with adequate specificity in the trial court.    See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”); Commonwealth v. Strunk,

953 A.2d 577, 579 (Pa. Super. 2008) (“Even issues of constitutional

dimension cannot be raised for the first time on appeal.”).

        Here, Appellant essentially asserts that “once the purpose of the

traffic stop was achieved[,]” the police conducted what amounted to an

investigatory detention by asking Appellant if he had a gun.         Appellant’s

Brief at 8.    As the Commonwealth correctly notes, Appellant “presents an

argument based on the line of cases flowing from the decision in

Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000).” Commonwealth’s

Brief at 4.

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      In Commonwealth v. Moyer, 954 A.2d 659 (Pa. Super. 2008), this

Court summarized the facts and legal impact of the Strickler decision, as

well as its companion case, Commonwealth v. Freeman, 757 A.2d 903

(Pa. 2000), as follows:

            The following facts informed the Strickler decision. Late
      one night, a police officer observed two men standing on the
      side of a rural road next to their parked car. The officer stopped
      to ascertain whether they needed assistance. As he passed the
      vehicle, the officer noticed that it contained a cooler with
      unopened beer cans. In response to the officer's questions, the
      men stated that they were leaving a local racetrack and had
      stopped to urinate. The officer asked for a driver's license,
      which the two men supplied.

            As the first officer was checking whether the individuals
      had outstanding warrants, another officer arrived in a second car
      and parked. The first officer returned the men's licenses and
      admonished them against urinating on a stranger's property.
      The officer started to walk toward his cruiser, turned around,
      and without the existence of any suspicion of criminal activity,
      asked Strickler if his car contained anything illegal. Strickler
      responded negatively, and the officer asked if he could search
      the car. After Strickler hesitated, the officer informed Strickler
      that he did not have to give his consent to search. Strickler
      nevertheless consented, and the officer discovered drug
      paraphernalia.

            As the Commonwealth had readily conceded that there
      were no facts to support a reasonable suspicion that Strickler
      was engaged in criminal activity, the sole question presented to
      the Supreme Court was whether Strickler had been subjected to
      a seizure within the meaning of the Constitution when, after
      returning Strickler's documents, the police started to ask
      questions. The Court observed:




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        To guide the crucial inquiry as to whether or not a seizure
        has been effected, the United States Supreme Court has
        devised an objective test entailing a determination of
        whether, in view of all surrounding circumstances, a
        reasonable person would have believed that he was free to
        leave. See [United States v.] Mendenhall, 446 U.S.
        [544,] 554 … [(1980)]; [Florida v.] Royer, 460 U.S.
        [491,] 502 … [(1983)]. In evaluating the circumstances,
        the focus is directed toward whether, by means of physical
        force or show of authority, the citizen-subject's movement
        has in some way been restrained. See Mendenhall, 446
        U.S. at 553…. In making this determination, courts must
        apply the totality-of-the-circumstances approach, with no
        single factor dictating the ultimate conclusion as to
        whether a seizure has occurred.

     [Strickler, 757 A.2d at] 890–91 (footnotes omitted)…. The
     Strickler Court noted that by its nature, this test is imprecise
     since it is “designed to assess the coercive effect of police
     conduct, taken as a whole rather than focus on particular details
     of that conduct in isolation.” Id. at … 890.

           Strickler acknowledged that his initial detention was valid
     but contended that once his license was returned, there was a
     second detention that was not supported by reasonable
     suspicion, rendering his consent to search his vehicle infirm.
     The suppression court in Strickler had ruled that once a valid
     detention had been concluded, it was improper for police to
     continue an investigative interaction with a citizen. Thus, the
     suppression court essentially ruled that a detention could never
     devolve into a mere encounter. Our Supreme Court disagreed
     and noted that such an approach failed to take into consideration
     the fact that the officer had informed Strickler he did not have to
     consent to the search and that there was an absence of any
     show of authority on the part of the officer.

           The Supreme Court ruled that after an initial valid
     detention has concluded, the crucial determination of whether a
     continuing interdiction constitutes a mere encounter or a
     constitutional seizure centers upon whether an individual would
     objectively believe that he was free to end the encounter and
     refuse a request to answer questions or conduct a search. In
     making this determination, we must examine the totality of the


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     circumstances surrounding the interaction between the police
     and the citizen. A non-exclusive list of factors to be used in
     assessing whether police conducted a mere encounter after
     completion of a traffic stop includes: 1) the presence or absence
     of police excesses; 2) whether there was physical contact; 3)
     whether police directed the citizen's movements; 4) police
     demeanor and manner of expression; 5) the location of the
     interdiction; 6) the content of the questions and statements; 7)
     the existence and character of the initial investigative detention,
     including its degree of coerciveness; 8) “the degree to which the
     transition between the traffic stop/investigative detention and
     the subsequent encounter can be viewed as seamless, ... thus
     suggesting to a citizen that his movements may remain subject
     to police restraint,” id.; 9) the “presence of an express
     admonition to the effect that the citizen-subject is free to depart
     is a potent, objective factor;” and 10) whether the citizen has
     been informed that he is not required to consent to the search.
     Id. at … 898–899.

            The Court made a critical observation: when an individual
     has been subjected to a valid detention and the police continue
     to engage that person in conversation, the citizen, having been
     in official detention, is less likely to understand that he has the
     right to refuse to answer questions or a search. Furthermore,
     while acknowledging the importance of the ninth factor, the
     Court stressed that “conferral of the ‘free-to-go’ advice is, itself
     not a reason to forego a totality assessment” and therefore does
     not constitute a controlling factor in assessing whether a person
     would actually credit a police indication that he was free to
     leave. Id. at … 899 n. 24.

            The Strickler Court held that the defendant therein had
     not been subjected to a seizure after his documentation was
     returned. The Court noted that the defendant had not been
     seized initially by police since he voluntarily had stopped and
     exited his car to urinate. Further, it opined that the police were
     not coercive, did not display guns, and had told the defendant
     that he was free to refuse a search of his vehicle. Police had not
     directed the defendant to move, did not use coercive language
     or tone, and there was a clear ending to the first interaction
     when police returned the defendant's documents. Finally, the
     Court observed that the isolated location and time of night
     militated in favor of a finding that the defendant had been
     seized, but it concluded that those two factors did not outweigh
     those in favor of a finding that the interdiction was a mere

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     encounter. It held that Strickler was not seized when he granted
     his permission to search the car, and thus, his consent to search
     was voluntary.

            On the same day of the opinion in Strickler, the Supreme
     Court issued its decision in Commonwealth v. Freeman, … 757
     A.2d 903 (Pa. 2000). In that case, the state police noticed two
     vehicles on an interstate highway traveling together. The two
     automobiles closely followed one another and were switching
     lanes simultaneously. A different police cruiser stopped each
     vehicle. One officer asked Freeman, a driver who was traveling
     with two passengers, if she was lost or having a problem with
     the driver of the other car. Freeman responded that she had
     switched lanes because she was in the wrong lane to continue
     onto her proper destination and that she was not traveling with
     the other car. The trooper asked for her driver's license and
     vehicle registration, returned to his cruiser, and initiated a check
     on the documents. At that time, he was radioed by the trooper
     who had stopped the other vehicle and informed that the driver
     said he was following Freeman's car because it was experiencing
     difficulties.

           The trooper re-approached Freeman's car, gave her a
     warning for improperly changing lanes, returned her documents,
     and stated that she was free to leave. The trooper walked away,
     but Freeman's car remained stopped. The trooper then returned
     to Freeman's vehicle and asked her again whether she was
     traveling with the other car. After she repeated a negative
     response, the trooper indicated that the occupants of the other
     vehicle had contradicted that information. He ordered her from
     her car and asked to search it. Freeman gave permission, and
     contraband was discovered.

           Our Supreme Court suppressed the fruits of that search,
     concluding that police had initiated a seizure when they re-
     approached Freeman's car and ordered her to exit it. The Court
     reasoned that a seizure had occurred despite conferral of the
     “free to go” language because the “trooper's subsequent actions
     were inconsistent with his statement to Freeman that she was
     free to leave.” Id. at … 907. Police conduct supporting a
     determination that Freeman objectively and reasonably believed
     she was, in fact, not free to go included: 1) the officer returned
     to Freeman's vehicle and asked her about the second car; 2) he
     pointed out the discrepancies between her statements and those
     of the other driver; and 3) “most significantly,” the officer “asked

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      her to step out of the vehicle prior to the request for consent [to
      search].” Id. Since the consent to search was vitiated by a
      detention that was not supported by reasonable suspicion, the
      Court suppressed the fruits of that search.

Moyer, 954 A.2d at 664–66.

      In this context, it is clear that a Strickler/Freeman claim is an

argument   that   is   entirely   dependent   on   a   nuanced   set   of   factual

preconditions. To be successful, such a claim must establish that, following

the termination of an otherwise valid but temporary seizure, police reinitiate

contact in circumstances that constitute a distinct detention, one requiring

its own showing of reasonable suspicion not wholly reliant on the facts that

predicated the initial detention.      Needless to say, Strickler/Freeman

claims are not implicated in every instance of police stopping a motor

vehicle.

      Instantly, the Commonwealth argues:

      Appellant agreed that his suppression motion should be decided
      on the affidavit of probable cause and did not offer any
      testimony to support his current assertion that he did not feel
      free to leave; thus there is no factual basis for that assertion.
      He also did not assert that the stop had ended before Officer Hill
      questioned him about the gun; and the affidavit contains nothing
      to support that inference.         The Commonwealth certainly
      understands its obligation to prove that evidence was seized in a
      constitutional manner. Commonwealth v. Wallace, 42 A.3d
      1040 (Pa. 2012). But a litigant has to articulate a theory of
      suppression so that the Commonwealth knows what aspect of a
      seizure and search is being challenged. No lawyer, whether
      defense counsel or prosecutor, is a seer. Appellant, who was
      represented by the Office of Public Defender, which currently
      represents him, did not put anyone on notice that he was
      asserting that Officer Hill had completed the traffic stop and then
      asked questions about the gun.


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Commonwealth’s Brief at 6-7.

      We agree with the Commonwealth. Nothing in Appellant’s suppression

motion      could    reasonably     be    perceived   as    having    raised   a

Strickler/Freeman claim.          Beyond Appellant’s boilerplate citation of the

United States and Pennsylvania Constitutions’ search and seizure clauses, no

further clarifying citations were set forth in his suppression motion. There

was no mention of Strickler, Freeman, or any other relevant or related

case law.     The motion appears solely to challenge the initial stop of

Appellant’s vehicle. Suppression Motion, 9/20/16, at 10 (“Officers observed

no violations of the motor vehicle code prior to initiating the traffic stop on

the vehicle in question.”). With that predicate in mind, the motion goes on

to argue the inapplicability of various exceptions to the warrant requirement,

such as the plain view exception, independent source, inventory search, and

protective sweep. Id. at 11c, d, e, and g.       Despite specifically referencing

these search-and-seizure legal doctrines with some specificity, no mention

was made of Strickler and/or Freeman, nor was any vague reference to

the factual prerequisites of such a claim offered.

      In Commonwealth v. Freeman, 128 A.3d 1231 (Pa. Super. 2015),

this Court warned:

            Although the burden in suppression matters is on the
      Commonwealth to establish “that the challenged evidence was
      not obtained in violation of the defendant's rights,” Pa.R.Crim.P.
      581(D), that burden is triggered only when the defendant
      “state[s] specifically and with particularity the evidence sought
      to be suppressed, the grounds for suppression, and the facts and
      events in support thereof.” Commonwealth v. McDonald, 881

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     A.2d 858, 860 (Pa. Super. 2005). Thus, when a defendant's
     motion to suppress does not assert specifically the
     grounds for suppression, he or she cannot later complain
     that the Commonwealth failed to address a particular
     theory never expressed in that motion. McDonald, 881
     A.2d at 860; Commonwealth v. Quaid, 871 A.2d 246, 249 (Pa.
     Super. 2005) (“[W]hen a motion to suppress is not specific in
     asserting the evidence believed to have been unlawfully obtained
     and/or the basis for the unlawfulness, the defendant cannot
     complain if the Commonwealth fails to address the legality of the
     evidence the defendant wishes to contest.”).

Id. at 1241–42 (emphasis added).              On this basis, we conclude that

Appellant waived his Strickler/Freeman claim, as he failed to present such

a claim in his suppression motion.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/26/2018




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