J-S19009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
               v.                              :
                                               :
    TRE JAMAL PIPER                            :
                                               :
                      Appellant                :       No. 1189 MDA 2016

              Appeal from the Judgment of Sentence July 8, 2016
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0004732-2015


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

MEMORANDUM BY GANTMAN, P.J.:                             FILED APRIL 12, 2017

        Appellant, Tre Jamal Piper, appeals from the judgment of sentence

entered in the Dauphin County Court of Common Pleas, following his

stipulated bench trial conviction for possession of a small amount of

marijuana for personal use.1 We affirm.

        In its opinion, the trial court set forth the relevant facts of this case as

follows:

           On the night of July 7, 2015, Officer Tyler Zehring (“Officer
           Zehring”) was patrolling the 500 block of Canal Street
           when he noticed a vehicle riding the solid double yellow
           lines and [with] illegal tinted rear taillights.      Officer
           Zehring turned on his lights and attempted to pull over the
           vehicle in a safe location. The vehicle proceeded for
           another three (3) blocks and pulled over next to a
           guardrail. As Officer Zehring was pulling over the suspect
____________________________________________


1
    35 P.S. § 780-113(a)(31)(i).


_____________________________

*Former Justice specially assigned to the Superior Court.
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          vehicle, he noticed a lot of sudden movement. The driver
          of the vehicle was Appellant…and a passenger in the
          vehicle was Mr. Pough.[2] [Appellant] had no outstanding
          warrants and was asked to step outside of the vehicle to
          speak with the officer.       Officer Zehring explained to
          [Appellant] the reason why he was asked to exit the
          vehicle (due to signs of impairment). Officer Zehring
          proceeded to give [Appellant] a portable breath test and
          the results came back zero.

          At this point, Officer Zehring gives [Appellant] back his
          identification, gives him a warning, and tells him that he
          was free to leave. Officer Zehring, while standing with the
          door to his patrol vehicle open, decided to ask [Appellant]
          one more question.[3] [Appellant] responded, “[S]ure.”
          Officer Zehring asked if there was anything in the vehicle
          that he should be made aware of. [Appellant] replied that
          there was a scale left by a female [who] had been a
          passenger in his vehicle. Officer Zehring proceeded to ask
          for consent to search the vehicle and [Appellant]
          consented to [the] search. The search of the vehicle
          produced a scale, [loose] marijuana, and a marijuana
          “roach.”

          During the traffic stop, Officer Zehring’s vehicle never
          blocked [Appellant’s] vehicle in that [Appellant] was
          unable to leave the scene. Officer Zehring also testified
          that he spoke in a non-threatening tone, he never
          displayed his weapon, never made any threats, and never
          demanded anything from [Appellant]. Officer Zehring’s
          demeanor was calm and relaxed and he never restricted
          [Appellant’s] movements throughout the stop.
____________________________________________


2
 Appellant and Mr. Pough were co-defendants at trial. Mr. Pough filed an
appeal at docket No. 1191 MDA 2016.
3
  Officer Zehring asked Appellant if he could ask him one more question, to
which Appellant responded, “Sure.” At this point, a back-up patrol vehicle
arrived on the scene with two officers. The back-up patrol vehicle was
parked behind Officer Zehring’s vehicle, which was parked behind Appellant’s
vehicle. The back-up officers remained at their patrol vehicle when Officer
Zehring posed this question to Appellant.



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(Trial Court Opinion, filed September 30, 2016, at 2-3) (internal footnotes

omitted).

       Procedurally, the Commonwealth charged Appellant with possession of

a small amount of marijuana and possession of drug paraphernalia.4

Appellant filed a suppression motion on December 24, 2015. The court held

a suppression hearing on February 19, 2016. On March 28, 2016, the court

denied the motion to suppress.             The court decided the totality of the

circumstances demonstrated that Officer Zehring’s second interaction with

Appellant following the initial traffic stop (when Officer Zehring asked if he

could ask Appellant one more question) was a “mere encounter”; and

Appellant’s consent to search the vehicle was voluntary.               Appellant

proceeded to a stipulated bench trial on July 8, 2016, after which the court

convicted him of possession of a small amount of marijuana for personal

use. The court sentenced Appellant that day to 30 days’ probation plus fines

and costs. Appellant timely filed a notice of appeal on July 19, 2016. The

next day, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely

complied on August 3, 2016.

       Appellant raises one issue for our review:

____________________________________________


4
  Prior to trial, the Commonwealth withdrew the possession of drug
paraphernalia charge.



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          WHETHER THE TRIAL COURT ERRED IN FAILING TO
          SUPPRESS EVIDENCE OBTAINED AS THE RESULT OF AN
          ILLEGAL DETENTION UNSUPPORTED BY PROBABLE CAUSE,
          REASONABLE SUSPICION, OR ANY ARTICULABLE BASIS IN
          VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED
          STATES CONSTITUTION, AND ARTICLE 1, SECTION 8 OF
          THE PENNSYLVANIA CONSTITUTION?

(Appellant’s Brief at 5).5

       “Our standard of review in addressing a challenge to a trial court’s

denial of a suppression motion is limited to determining whether the factual

findings are supported by the record and whether the legal conclusions

drawn from those facts are correct.”           Commonwealth v. Williams, 941

A.2d 14, 26 (Pa.Super. 2008) (en banc) (quoting Commonwealth v.

Jones, 874 A.2d 108, 115 (Pa.Super. 2005)).

          [W]e may consider only the evidence of the prosecution
          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 record supports the findings of the
          suppression court, we are bound by those facts and may
          reverse only if the court erred in reaching its legal
          conclusions based upon the facts.

Williams, supra at 27 (quoting Jones, supra).
____________________________________________


5
  The Commonwealth claims Appellant waived his issue on appeal due to
vagueness in Appellant’s Rule 1925(b) statement. Appellant’s grounds for
challenging the search of his vehicle at the suppression hearing were clear.
The court had no doubt about what Appellant sought to challenge on appeal
and adequately addressed Appellant’s issue in its opinion. Thus, we decline
to find waiver. See Commonwealth v. Laboy, 594 Pa. 411, 936 A.2d
1058 (2007) (holding appellate court should conduct merits review of claim
on appeal notwithstanding vagueness in Rule 1925(b) statement, where
case was relatively straightforward and trial court readily understood and
addressed claim in substantial detail in its opinion).



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      Appellant argues Officer Zehring’s “second round” of questioning

constituted an investigative detention or the functional equivalent of an

arrest, because no reasonable person would have believed he was free to

leave the scene.   Appellant asserts Officer Zehring lacked any reasonable

articulable basis to conclude illegal activity had occurred or was occurring at

the time he re-engaged Appellant. Appellant maintains Officer Zehring did

not smell alcohol on Appellant or see any illegal drugs or paraphernalia in his

vehicle.   Appellant highlights that he did not give strange or incoherent

statements or act overly nervous. Appellant does not dispute the validity of

the initial traffic stop, due to violations of the Motor Vehicle Code. Appellant

suggests the officer’s suspicions that Appellant might have been impaired

were dispelled once the portable breath test confirmed Appellant’s blood

alcohol level was zero. Given these circumstances, Appellant insists Officer

Zehring lacked reasonable suspicion for a second investigative detention.

Appellant submits his consent to search the vehicle was involuntary, because

it was tainted by the second and illegal investigative detention.     Appellant

claims he consented to the search only moments after the officer had re-

initiated questioning and there were no intervening circumstances to

diminish the coercive atmosphere of situation. Appellant posits insufficient

attenuation between the illegal detention and his consent to purge the taint

of the officer’s unlawful conduct. Appellant concludes the trial court erred in

denying his motion to suppress, and this Court must reverse. We disagree.


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      “The Fourth Amendment to the United States Constitution and Article

I, Section 8 of the Pennsylvania Constitution protect individuals against

unreasonable searches and seizures.”       Commonwealth v. Hudson, 92

A.3d 1235, 1241 (Pa.Super. 2014), appeal denied, 630 Pa. 734, 106 A.3d

724 (2014). “To secure the right of citizens to be free from such intrusions,

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. By, 812

A.2d 1250, 1255 (Pa.Super. 2002), appeal denied, 576 Pa. 710, 839 A.2d

350 (2003).    Contacts between the police and citizenry fall within three

general classifications:

         The first level of interaction is a “mere encounter” (or
         request for information) which need not be supported by
         any level of suspicion, but carries no official compulsion to
         stop or respond. The second, an “investigative detention”
         must be supported by reasonable suspicion; it subjects a
         suspect to a stop and period of detention, but does not
         involve such coercive conditions as to constitute the
         functional equivalent of arrest.      Finally, an arrest or
         “custodial detention” must be supported by probable
         cause.

Commonwealth v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal

denied, 583 Pa. 668, 876 A.2d 392 (2005) (quoting Commonwealth v.

Phinn, 761 A.2d 176, 181 (Pa.Super. 2000), appeal denied, 567 Pa. 712,

785 A.2d 89 (2001)).

      Significantly:

         Where the purpose of an initial, valid traffic stop has ended

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           and a reasonable person would have believed that he was
           free to leave, the law characterizes a subsequent round of
           questioning by the officer as a mere encounter. Since the
           citizen is free to leave, he is not detained, and the police
           are free to ask questions appropriate to a mere encounter,
           including a request for permission to search the vehicle.
           However, where the purpose of an initial traffic stop has
           ended and a reasonable person would not have believed he
           was free to leave, the law characterizes a subsequent
           round of questioning by the police as an investigative
           detention or arrest. In the absence of either reasonable
           suspicion to support the investigative detention or
           probable cause to support the arrest, the citizen is
           considered unlawfully detained.        Where a consensual
           search has been preceded by an unlawful detention, the
           exclusionary rule requires suppression of the evidence
           obtained absent a demonstration by the [C]ommonwealth
           both of a sufficient break in the causal chain between the
           illegality and the seizure of evidence. This assures of the
           search’s voluntariness and that the search is not an
           exploitation of the prior unlawful detention.

By, supra      at   1255-56     (internal   citations   omitted).         Thus,   “Fourth

Amendment inquiries in consent cases entail a two-prong assessment: first,

the constitutional validity of the citizen/police encounter giving rise to the

consent and, second, the voluntariness of said consent.” Id. at 1254.

      In    determining   the    constitutional    validity   of    the    citizen/police

encounter and evaluating whether a reasonable person would have believed

he was free to leave, we perform an objective totality-of-the-circumstances

test. Commonwealth v. Strickler, 563 Pa. 47, 58-59, 757 A.2d 884, 889-

90 (2000).      Some relevant factors include, but are not limited to, the

presence or absence of police excesses, physical contact or police direction

of a citizen’s movements, “the demeanor of the police officer, the location of


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the confrontation, the manner of expression used by the officer in

addressing the citizen, and the content of the interrogatories or statements.”

Id. at 73, 757 A.2d at 898 (internal citation omitted). “Additionally, in the

context of a police/citizen interaction that follows a lawful detention, …the

existence and character of the initial investigative detention merits separate

consideration as a relevant factor.” Id. Further, although “the admonition

to a motorist that he is free to leave is not a constitutional imperative, the

presence or absence of such a clear, identified endpoint to the lawful seizure

remains a significant, salient factor in the totality assessment.” Id. at 74,

757 A.2d at 899. Importantly, “[t]he presence of an express admonition to

the effect that the citizen-subject is free to depart is a potent, objective

factor that favors such conclusion.” Id. at 75, 757 A.2d at 899.

      “Where the underlying encounter is found to be lawful, voluntariness

[of the consent] becomes the exclusive focus.” By, supra at 1254.

         In connection with such an inquiry, the Commonwealth
         bears the burden of establishing that a consent is the
         product of an essentially free and unconstrained choice—
         not the result of duress or coercion, express or implied, or
         a will overborne—under the totality of the circumstances.
         While knowledge of the right to refuse to consent to the
         search is a factor to be taken into account, the
         Commonwealth is not required to demonstrate such
         knowledge as a prerequisite to establishing a voluntary
         consent. Additionally, although the inquiry is an objective
         one, the maturity, sophistication and mental or emotional
         state of the defendant are to be taken into account. …

         Since both the tests for a seizure and voluntariness of
         consent entail an examination of the objective
         circumstances surrounding the citizen/police encounter,

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         there is a substantial, necessary overlap in the analyses.

Id. at 1258 (internal citations omitted).        See also Strickler, supra

(reversing trial court’s suppression of evidence where, following initial lawful

traffic stop, officer asked if defendant had anything illegal in his vehicle, and

defendant subsequently gave consent to search vehicle which revealed drug

paraphernalia; circumstances of initial traffic stop showed no evidence that

officer displayed weapons, unusual commands, aggressive behavior or any

use of language or tone that was not commensurate with circumstances;

second officer was present for part of encounter, but evidence suggests he

was not active participant; although officer did not expressly advise

defendant and his companion that they were free to leave following initial

stop, officer’s actions suggested as much in that he returned defendant’s

identification/documentation, thanked him for his cooperation, and turned

away prior to reinitiating interaction and ultimately requesting consent to

search; officer also told defendant he did not have to consent to search

which counterweighed officer’s failure to expressly advise defendant he was

free to leave; notably, officer did not touch defendant or direct his

movements, there was no evidence of any use of coercive language or tone

by officer; officer’s re-engaging of defendant following initial traffic stop was

mere encounter and did not constitute second or subsequent seizure;

turning to voluntariness assessment, reasons supporting conclusion that

defendant was not seized at time he gave consent to search vehicle also


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militate   strongly   in   favor   of   finding   his   consent   was   voluntary;

Commonwealth’s unrebutted evidence was sufficient to show that defendant

was not subject to seizure for purposes of Fourth Amendment when police

sought and he gave his consent; Appellant’s consent was voluntary).

      Instantly, the Commonwealth presented, inter alia, the following

evidence at the suppression hearing: (1) on the night of July 7, 2015, Officer

Zehring was patrolling the 500 block of Canal Street when he noticed a

vehicle riding the solid double yellow lines and that had illegally tinted rear

taillights; (2) Officer Zehring turned on his lights and attempted to pull over

the vehicle in a safe location; (3) the vehicle proceeded for another three

blocks and pulled over next to a guardrail; (4) as Officer Zehring was pulling

over the suspect vehicle, he noticed a lot of sudden movement; (5) Officer

Zehring asked Appellant to step outside of the vehicle to speak with the

officer due to signs of Appellant’s impairment in operating the vehicle; (6)

Officer Zehring proceeded to give Appellant a portable breath test and the

results came back zero; (7) Officer Zehring subsequently gave Appellant

back his identification and told him he was free to leave; (8) Officer

Zehring walked back to his patrol vehicle and while standing with the door to

his vehicle open, Officer Zehring asked Appellant if he could ask him one

more question, to which Appellant responded, “Sure”; (9) at this point, a

back-up patrol vehicle arrived on the scene with two officers; (10) the back-

up patrol vehicle was parked behind Officer Zehring’s vehicle, which was


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parked behind Appellant’s vehicle; (11) the back-up officers remained at

their patrol vehicle when Officer Zehring posed this question to Appellant;

(12) Officer Zehring then asked Appellant if there was anything in his vehicle

that Officer Zehring should know about; (13) Appellant admitted there was a

digital scale in his car left by a female who had been a passenger in his

vehicle; (14) Officer Zehring proceeded to ask for consent to search the

vehicle, which Appellant provided; and (15) the search of the vehicle

produced a digital scale, loose marijuana, and a marijuana “roach.”

      Additionally, the record shows that Officer Zehring’s vehicle did not

block Appellant’s vehicle during the stop or prevent Appellant from leaving

the scene. Officer Zehring also testified that he spoke to Appellant in a non-

threatening tone and maintained a relaxed and calm demeanor throughout

their interaction. Officer Zehring said he did not display his weapon or make

any demands of Appellant.      Although a back-up patrol vehicle arrived on

scene, Officer Zehring stated the back-up officers remained near their

vehicle while Officer Zehring re-engaged Appellant, suggesting they were

inactive participants at that point.   Most importantly, following the initial

stop, Officer Zehring expressly told Appellant that he was free to leave.

Under the totality of the circumstances, a reasonable person would think he

was free to leave.   Thus, when Officer Zehring re-engaged Appellant, the

interaction was a mere encounter that required no level of reasonable

suspicion or probable cause.    See Strickler, supra; Bryant, supra; By,


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supra.

      In evaluating whether Appellant’s consent to search was voluntary, the

trial court explained:

         A single police officer initially pulled over Appellant and
         asked him to exit the vehicle. At no time during the stop
         or subsequent discussion did the police officer ever touch
         Appellant. The police officer never displayed his weapon,
         never made any sort of threats, and never demanded
         anything from Appellant. The police officer had a calm and
         relaxed demeanor throughout the stop. The police officer
         also never restricted Appellant’s movements in any way.
         There is no evidence of any use of coercive language or
         tone by the officer. After the police officer gave Appellant
         a warning and handed back his ID, the police officer told
         Appellant he was free to leave. Both the police officer and
         Appellant had their doors open ready to leave when the
         police officer asked Appellant if there was anything else
         that he should know about. Here, Appellant told him that
         a friend had left a scale in the car. When asked if he
         would consent to a search of his vehicle, Appellant freely
         gave such consent. There was no indication that said
         consent was coerced or forced. … As such, Appellant’s
         consent was voluntary and this [c]ourt properly denied
         Appellant’s motion to suppress.

(Trial Court Opinion at 5-6) (internal citations and footnote omitted). The

record supports the suppression court’s decision that Appellant’s consent to

search was voluntary. See Williams, supra. See also Strickler, supra;

By, supra. Accordingly, we affirm.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2017




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