J. A25040/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
ERIC R. WILLIAMS,                           :
                                            :
                          Appellant         :     No. 3495 EDA 2014

           Appeal from the Judgment of Sentence November 25, 2014
               In the Court of Common Pleas of Delaware County
               Criminal Division No(s).: CP-23-CR-0001773-2014

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED DECEMBER 22, 2015

        Appellant appeals from the judgment of sentence entered in the

Delaware County Court of Common Pleas.             Following a non-jury trial,

Appellant was found guilty of possession of firearms prohibited 1 and firearms

not to be carried without a license.2 Appellant contends the trial court erred

in denying his motion to suppress the physical evidence seized as a result of

his illegal detention. We affirm.




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6105(a)(1).
2
    18 Pa.C.S. § 6106(a)(1).
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      We adopt the facts as set forth by the trial court’s opinion. 3 See Trial

Ct. Op., 10/15/14, at 1-5.4      At the suppression hearing, Trooper Colon

testified as follows regarding Appellant’s criminal history:

         [The Commonwealth]: . . . So, Trooper, you’re back in the
         car. You’re reviewing [Appellant’s] criminal history?

         A: Yes, sir.

         Q: Is that standard practice?

         A: Yes.

                                  *      *   *

         Q: Possession with Intent in ’95, . . . Resisting in ’96, is
         that right, Robbery RSP, acquitted in Robbery in ’98?

         A: Yes, sir.

         Q: Acquitted in ’01?

         A: Yes.

         Q: Acquitted in ’02?

         A: Correct.

         Q: Gun charge, ’03?

         A: Yes.

3
  Appellant does not contest the legality of the motor vehicle stop.      See
Appellant’s Brief at 5.
4
  We note that there is no reference to the notes of testimony in the trial
court’s recitation of certain findings of fact. Our review of the record
indicates that the court had the benefit of a video of the traffic stop. N.T.,
7/25/14, at 7. The court viewed the video, which was not part of the
certified record. See id. at 21, 24, 25, 33, 63.




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       Q: Two acquits in ’04?

       A: Yes.

       Q: Gun charge in ’05?

       A: Yes.

       Q: Tampering with Evidence and Possession with Intent to
       Distribute in 2010?

       A: Yes.

       Q: Driving while suspended, 2012?

       A: Yes.

       Q: And a possessing (inaudible) charge?

       A: Yes, sir. Those are all the things that were revealed.

                                *    *    *

       Q: . . . [D]id you check [Appellant’s] licensing status?

       A: Yes, and it was found to be suspended.

       Q: So he’s a suspended driver at this point with an
       unregistered vehicle?

       A: That is correct.

                                *    *    *

       Q: . . . You asked [Appellant] if he’d ever been arrested
       before, right?

       A: Yes, sir, I did.

       A: And how did he respond?

       A: He contradicted what was revealed to me on the earlier
       query of his RAP sheet by relating that he had only


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        been─his most recent arrest was in 2008, which as we saw
        earlier was not true. . . . Furthermore, he related that
        arrest specifically in 2008 was for a domestic charge,
        to─which again contradicted what was revealed in that
        query.

        Q: And he gave you a story about being shot five times?

        A: Yes, for . . .

        Q: As part of that domestic situation?

        A: Yes.

        Q: Did you ask him about that or did he just offer that
        information?

        A: He had just offered that information stating that he was
        a victim, yet he was arrested in ’08, which I didn’t
        understand.

N.T. at 25-28, 40.

     Appellant filed an omnibus pre-trial motion to suppress the firearms

seized as a result of the search of his vehicle. On July 25, 2015, the trial

court held a hearing and denied the motion. Following a stipulated non-jury

trial, Appellant was sentenced to five to ten years’ imprisonment for

possession of firearms prohibited and a consecutive term of seven years’

probation for firearms not to be carried without a license.5      This timely

appeal followed.      Appellant filed a court ordered Pa.R.A.P. 1925(b)


5
  Appellant misstates the court’s sentence for firearms not to be carried
without a license. See Appellant’s Brief at 3. At sentencing, the court
stated: “On Count 2, Firearms Carried Witihout a License, the Court
sentences [Appellant] to seven years’ State Probation consecutive to Count
1 and payment of Court costs.” N.T., 11/25/14, at 14.



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statement of errors complained of on appeal and the trial court filed a

responsive opinion.

      Appellant raises the following issues for our review.

            Whether the trial court erred in denying [Appellant’s]
         Motion to Suppress when subsequent to a lawful stop by
         law enforcement for a motor vehicle violation and
         subsequent issuance and delivery of a warning by law
         enforcement to [Appellant], [Appellant] was unlawfully re-
         engaged and detained by law enforcement in violation of
         his constitutional rights?

            Did [sic] trial court err in denying [Appellant’s] Motion
         to Suppress when upon completion of a motor vehicle
         stop, [Appellant] was unlawfully directed out of his motor
         vehicle which was an unlawful and illegal seizure and
         detention of [Appellant] and therefore any subsequent
         action of the [sic] law enforcement including a search,
         consensual or otherwise, would be a violation of
         [Appellant’s] constitutional rights?

            Did [sic] trial court err in denying [Appellant’s] Motion
         to Suppress when after an illegal and unlawful seizure and
         detention of [A]ppellant, [A]ppellant was searched?6

Appellant’s Brief at 4.7

6
  Appellant does not address issue three in his brief. Therefore, it is
abandoned on appeal. See Commonwealth v. Dunphy, 20 A.3d 1215,
1218 (Pa. Super. 2011).
7
  Our Rules of Appellate Procedure set forth the required contents of
appellate briefs. The argument section of Appellant’s brief does not comply
with Rule 2119(a) which provides that “[t]he argument shall be divided into
as many parts as there are questions to be argued; and shall have at the
head of each part--in distinctive type or in type distinctively displayed--the
particular point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). Following a two
page recitation of facts, Appellant states: “Therefore the pivotal question
before the suppression court was whether there was [sic] any actions of
[A]ppellant subsequent to his being told he was free to go which would



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      Appellant contends that the investigative detention that followed his

lawful traffic stop was unlawful and therefore the court erred in denying his

motion to suppress the evidence seized as a result of the search of his

vehicle. Appellant argues that

         [i]n the instant case the trial court incorrectly establishes
         reasonable suspicion for the second illegal detention on
         facts that were known to the officer at the time he
         released [Appellant], advised him he was free to leave and
         concluded that he was not going to search the vehicle
         based on those facts. The trial court cites no facts that
         occurred subsequent to that release that would warrant
         [sic] justify a second re-engagement and unlawful
         detention.

         This is directly contrary to the holding in [Commonwealth
         v.] Ortiz[, 786 A.2d 261 (Pa. Super. 2011).8]



lawfully justify the second investigative detention. This is whether the
officer had new or additional information for a basis for reasonable suspicion
to establish a subsequent investigation detention of [A]ppellant.”
Appellant’s Brief at 10.
8
   As will be discussed infra, Appellant’s reliance on Ortiz is unavailing as it
has been overruled for the proposition cited by Appellant in
Commonwealth v Kemp, 961 A.2d 1247, 1260 (Pa. Super. 2008) (en
banc). We note that Appellant baldly asserts “that consent to search that
followed the unlawful investigative detention was clearly a product of the
illegal detention and therefore not a valid consent to search.” Appellant’s
Brief at 13. Appellant cites to Ortiz, supra, at 266-267. See id. In
passing, we note that Appellant concedes he “consented to the search of the
vehicle at the second re-engagement.” Id. at 6. Furthermore, there is no
indication in the record, and does Appellant does not claim, that the consent
was “the result of duress or coercion, express or implied, or a will
overborne—under the totality of the circumstances.” Commonwealth v.
Strickler, 757 A.2d 884, 901 (Pa. 2000). At the suppression hearing,
Trooper Sergio Colon testified, inter alia, as follows:




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Appellant’s Brief at 12.

      Our review of the suppression court’s denial of a motion to suppress is

governed by the following principles:



         Q: Did you ask [Appellant] if he would consent to search of
         the vehicle?

         A: Yes, I did.

         Q: And he gave you verbal consent?

         A: Yes, he did.

         Q: And is it your policy or the State─is it the State Police
         policy or is it your policy to get written consent as well?

         A: It’s─yes, this is a department form that is required to
         be filled out by us.

         Q: Okay. When you . . .

         A: When searching a vehicle.

         Q: When you verbally asked [Appellant] if he [sic] could
         search the vehicle, did he hesitate?

         A: He blighted (ph) [sic] away from me and, no, he said,
         go ahead, sir, you can do whatever you like and kind of
         backed up.

         Q: And when you put the form in front of him to sign,
         similarly did he hesitate to sign the form?

         A: No, he slightly─he read it over, didn’t have any
         questions . . . .

N.T., 7/25/15, at 41-42.




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         [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 of the Commonwealth
         and so much of the evidence for the defense as remains
         uncontradicted when read in the context of the record as a
         whole. Where the 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. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015)

(citation omitted).

      This Court enunciated the test for determining the nature of the

encounter when the police continue to question an individual following a

traffic stop as follows:

             In Commonwealth v. Strickler, [ ] 757 A.2d 884
         ([Pa.] 2000), our Supreme Court analyzed under what
         circumstances a police interdiction can devolve into a mere
         encounter following a traffic stop when police continue to
         question the person after the reason for the traffic stop
         has concluded. The Supreme Court in Strickler ruled that
         after police finish processing a traffic infraction, the
         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.




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            Our Supreme Court adopted a totality-of-the-
        circumstances approach. It delineated a non-exclusive list
        of factors to be used in making this assessment. Those
        factors include 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 and
        time 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,” and 9) whether there
        was an express admonition to the effect that the citizen-
        subject is free to depart, which “is a potent, objective
        factor.” Our Supreme Court also observed that when an
        individual has been subjected to a valid detention but
        police continue to engage the person in conversation, the
        person is less likely to reasonably believe that he is
        actually free to leave the scene.

Kemp, 961 A.2d at 1253 (citations omitted). Furthermore,

        [w]e are required to apply a “totality of the circumstances”
        test in assessing whether police had reasonable suspicion
        to conduct an investigatory detention.         Therefore, we
        overrule Ortiz and [Commonwealth v.] Johnson[, 833
        A.2d 755 (Pa. Super. 2003)] to the extent that they hold
        that facts gathered during a valid traffic stop cannot be
        utilized to justify an investigatory detention occurring after
        a police officer has indicated that a defendant is free to
        leave. Commonwealth v. Jacobs, 900 A.2d 368, 377 n.
        9 (Pa. Super. 2006) (Superior Court, sitting en banc, can
        overrule panel decision by three judges).

Id. at 1260.

     In Commonwealth. v. Caban, 60 A.3d 120 (Pa. Super. 2012), this

Court found there was reasonable suspicion to justify an investigatory

detention and opined:


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            In the present case, Trooper Jones gave [Yashera
        Renee] Veras a citation for speeding, returned her license
        and insurance card, and told her that she was free to
        leave. As Veras returned to her car, Trooper Jones asked
        if she would answer a few more questions. At the start,
        she answered the Trooper’s questions, but then indicated
        that she “was ready to go.” As she returned to her car,
        Trooper Jones told her to “hold tight” while he questioned
        [Waldemar] Caban. Based upon this factual scenario, we
        conclude that Caban and Veras were subjected to an
        investigatory detention. . . .

           We also conclude, however, that the facts adduced by
        Trooper Jones by the time he told Veras to “hold tight”
        provided him with sufficient reasonable suspicion to justify
        the investigatory detention.       To establish reasonable
        suspicion, the officer must “articulate specific observations
        which, in conjunction with reasonable inferences derived
        from those observations, led him to reasonably conclude,
        in light of his experience, that criminal activity was afoot
        and that the person he stopped was involved in that
        activity.” To determine whether the officer had reasonable
        suspicion, the totality of the circumstances must be
        considered. In this regard, we must give “due weight ...
        to the specific reasonable inferences [the police officer] is
        entitled to draw from the facts in light of his experience.”

                                 *     *      *

        When considering the totality of the circumstances, we
        need not limit our inquiry to only those facts that clearly
        and unmistakably indicate criminal conduct.       Instead,
        “even a combination of innocent facts, when taken
        together, may warrant further investigation by the
        police officer.”

Id. at 128-29 (citations omitted and emphases added).

     In the case sub judice, the trial court opined:

        An interaction amounts to an investigatory detention
        where the officer, following a valid traffic stop, instructs
        the individual to exit the vehicle, issues a warning, tells the
        individual “to have a nice day,” allows the individual to


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        proceed back towards vehicle, and then subsequently re-
        engages the individual with further questioning.

        Therefore, based upon Kemp, in the case sub judice, the
        interaction amounted to an investigatory detention [9]
        where the Trooper, following a valid traffic stop, instructed
        the individual to exit the vehicle, issued a citation and
        warning, tells the driver that he is free to leave, allowed
        the individual to proceed back towards his vehicle, and
        then subsequently re-engaged the individual with further
        questioning.

                                *     *      *

        The Trooper testified to reasonable suspicion beyond the
        original reasonable suspicion which led to the traffic stop.
        The Trooper provided the [c]ourt with unrebutted, credible
        testimony. The facts adduced by the Trooper during the
        valid traffic stop provided him with sufficient reasonable
        suspicion that criminal activity was afoot justifying the
        investigatory detention. The facts included:

           Initially, the Trooper noted that [Appellant] appeared
           extremely nervous; [his] hands were physically shaking
           when he handed over his documents to Trooper Colon.
           He barely made eye contact with the Trooper.

           [Appellant] provided Trooper Colon with a myriad of
           unsolicited information . . . .

           Trooper Colon found that there was a discrepancy
           between the address listed on the vehicle’s registration,
           the address on [Appellant’s] license, and the
           information [Appellant] provided him about where he
           lived. Further, [Appellant] also stated that he was
           unaware that the registration for the vehicle was
           expired.

9
  We note Appellant makes the following statement: “In the present case,
the suppression court properly denied the second re-engagement with
[A]ppellant as an investigative detention.    (Trial Ct. Opinion P. [)]”
Appellant’s Brief at 10.




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            During their exchange, [Appellant] asked Trooper Colon
            if he could light a cigarette, to which Trooper Colon
            replied yes.

            During the initial traffic stop, the Trooper learned that
            [Appellant] had an extensive criminal history . . . .
            When the Trooper asked [Appellant] if he had ever been
            arrested before, he replied that his most recent arrest
            was in 2008 for a domestic charge.           The Trooper
            testified that [Appellant’s] RAP sheet established that
            [Appellant] was not being truthful. His most recent
            charge was from 2012 and did not involve a domestic
            charge. After re-engagement, [Appellant] continued to
            offer unsolicited information i.e., that he was the victim
            in the domestic charge and also that he was involved in
            a shooting and had to have a colostomy bag.

            While he was writing out the citation and the warning in
            his patrol vehicle, Trooper Colon noticed that
            [Appellant] was staring back at him the entire time. . . .

            [Appellant] asked Trooper Colon several questions
            regarding how to remedy the expired registration and
            where to take the citation, and how to take care of
            paying for it. [Appellant] also told Trooper Colon that
            he was on a payment plan, and that was why his license
            was suspended, which conflicted with what [Appellant]
            had said earlier in the encounter, about not knowing
            that his license was suspended.

Trial Ct. Op. at 6-8. The trial court concluded that, based upon the totality

of the circumstances, “Trooper Colon had reasonable suspicion that criminal

activity was afoot, justifying the investigatory detention.” Id. at 8.

      We discern no abuse of discretion or error of law by the trial court in

denying the motion to suppress. See Jones, 121 A.3d at 526-27. Based

upon the totality of the circumstances, the Trooper had reasonable suspicion




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to justify the search of Appellant’s vehicle. See Caban, 60 A.3d at 128-29;

Kemp, 961 A.2d at 1260. Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2015




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