J-S40027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    CARLOS VALLES                              :
                                               :
                       Appellant               :      No. 326 EDA 2017


           Appeal from the Judgment of Sentence November 4, 2016
             in the Court of Common Pleas of Philadelphia County
              Criminal Division at No.: CP-51-CR-0002605-2016


BEFORE:      LAZARUS, J., DUBOW, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                               FILED AUGUST 24, 2018

        Appellant, Carlos Valles, appeals from the judgment of sentence

imposed following his bench conviction of possession of a controlled substance

and possession with intent to deliver (PWID).1 We affirm.

        We take the following pertinent facts and procedural history from our

independent review of the certified record.           On February 3, 2016, at

approximately 9:35 p.m., Philadelphia Police Officers Nicholas Carrelli and

Larry Grawe were patrolling in a marked police vehicle in the area of 343 East

Albanus Street in Philadelphia, a known drug area, based on complaints of

drug sales and burglary. (See N.T. Suppression Hearing, 6/01/16, at 8-12,

41). They entered an alleyway shared by residents of East Sheldon and East

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1   35 P.S. § 780-113(a)(16), (30), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Allegheny Streets, which contained a lane of travel for each side of the block.

(See id. at 12). They observed an idling black Nissan sedan in the alley. (See

id. at 12-13). An individual was leaning into the passenger side window and

conversing with Appellant, who was in the driver’s seat. (See id. at 12, 15,

41-42). The Nissan was obstructing the roadway, a violation of the Vehicle

Code.2 (See id. at 15, 41). Because he could not get through due to the

obstruction, and had observed the two individuals, Officer Carrelli ran the

license plate, which came back to a 1998 Ford vehicle, not to a Nissan, also a

violation of the Vehicle Code.3 (See id. at 15-16, 19).

        The officers exited their vehicle. Officer Carrelli approached Appellant

and Officer Grawe approached the other individual that was leaning into the

Nissan. (See id. at 21). When asked for identification and paperwork for the

vehicle, Appellant stated that he did not have any. Moments later, Officer


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2   Section 3351 of the Pennsylvania Vehicle Code provides, in pertinent part:

        Outside a [] residence district, no person shall stop, park or stand
        any vehicle, whether attended or unattended, upon the roadway
        when it is practicable to stop, park or stand the vehicle off the
        roadway. In the event it is necessary to stop, park or stand the
        vehicle on the roadway or any part of the roadway, an
        unobstructed width of the highway opposite the vehicle shall be
        left for the free passage of other vehicles[.] . . .

75 Pa.C.S.A. § 3351(a).

3 Section 1372 of the Pennsylvania Vehicle Code provides, in pertinent part
that “[n]o person shall . . . display a registration card or plate in, on or in
connection with any vehicle other than the vehicle for which it was issued.”
75 Pa.C.S.A. § 1372(3).

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Carrelli observed a silver object that appeared to be the barrel of a firearm

under the driver’s seat. (See id. at 21, 28).

      To control the scene, Officer Carrelli immediately instructed Officer

Grawe to handcuff the other individual and put him in the patrol car. (See id.

at 22). When he returned to the Nissan to help Officer Carrelli with detaining

Appellant, Officer Grawe also observed what appeared to be the barrel of a

handgun under the driver’s seat. (See id. at 43, 45). For their safety, the

officers removed Appellant from the car to separate him from the firearm.

(See id. at 22-23, 43). Officer Grawe immediately performed an “open hand

pat down” of Appellant to ensure that he did not have any other weapons.

(See id. at 44).    He “felt a [four or five inch] block-shaped object in

[Appellant’s] right front breast pocket . . . [that] felt like it could be the

magazine to the firearm[.]” (Id.). The officer asked Appellant what was in

his pocket, and he admitted it was narcotics. (See id.). Officer Grawe then

removed the item, which consisted of a block of sixty-six baggies of heroin

wrapped in newspaper, from his right breast pocket. (See id. at 44, 46).

After recovering the heroin, the officers arrested Appellant.      They then

retrieved a BB gun from under the driver’s seat of the vehicle. (See id. at

23-25).

      On March 22, 2016, the Commonwealth filed an information against

Appellant charging him with PWID, possession of a controlled substance, and

possession of an instrument of crime (PIC).      Appellant filed a motion to


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suppress that the trial court denied on June 3, 2016, after a hearing. On

August 8, 2016, the court conducted a waiver trial.              At the proceeding’s

conclusion, it held the matter under advisement and convicted Appellant of

PWID and possession of a controlled substance on August 10, 2016.4

       On November 4, 2016, the court sentenced Appellant to a term of

incarceration of not less than two nor more than four years, plus three years’

reporting probation. The possession charge merged for sentencing purposes.5

The   trial   court   denied     Appellant’s     timely   post-sentence   motion   for

reconsideration of sentence on December 20, 2016.                   Appellant timely

appealed.6

       Appellant raises two questions for this Court’s review:

       1.    [Whether] the [trial] court err[ed] by denying suppression
       of [Appellant’s] statement and drugs which were seized from [his]
       person and from his vehicle where [Appellant] was under arrest
       in the absence of probable cause after he was removed from his
       car and handcuffed?

       2.   [Whether] the [trial] court err[ed] by denying the
       suppression of [Appellant’s] statement that the item in his pocket
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4The court granted Appellant’s unopposed motion for judgment of acquittal
on the PIC charge.

5The sentence also included a violation of probation sentence of not less than
one nor more than three years’ incarceration, to run concurrently, for a
previous escape conviction. (See N.T. Sentencing, 11/04/16, at 13, 15).

6Appellant filed a timely court-ordered statement of errors complained of on
appeal on May 10, 2017. The court filed an opinion on August 29, 2017. See
Pa.R.A.P. 1925.




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        consisted of drugs as that statement was obtained in the absence
        of Miranda[7] warnings and in response to questioning by the
        police while [he] was in the custody of the police?

(Appellant’s Brief, at 3).

        Appellant’s issues challenge the court’s denial of his motion to suppress.

              Our standard of review on appeal of the denial of a motion
        to suppress is to determine whether the certified record supports
        the suppression court’s factual findings and the legitimacy of the
        inferences and legal conclusions drawn from those findings. We
        consider only the evidence of the prosecution’s witnesses and so
        much of the defense as, fairly read in the context of the record as
        a whole, remains uncontradicted. If the record supports the
        factual findings of the suppression court, we reverse only if there
        is an error in the legal conclusions drawn from those factual
        findings.

Commonwealth v. Gould, 2018 WL 2126856, at *4 (Pa. Super. filed May 9,

2018) (citations and quotation marks omitted).

        In his first issue, Appellant argues that, because he “was under arrest

in the absence of probable cause at the moment he was extracted from his

car, handcuffed and frisked[,] . . . the narcotics [and Appellant’s] statement

[were] fruit of the poisonous tree and should have been suppressed.”

(Appellant’s Brief, at 17). We disagree.

        “The law recognizes three distinct levels of interaction between police

officers and citizens: (1) a mere encounter; (2) an investigative detention;

often described as a Terry stop, see Terry v. Ohio, 392 U.S. 1 (1968); and

(3) a custodial detention.” Commonwealth v. Smith, 172 A.3d 26, 31-32


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7   Miranda v. Arizona, 384 U.S. 436 (1966).

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(Pa. Super. 2017) (one citation omitted; citation formatting provided).

Additionally:

            In determining whether a detention is investigative or
      custodial, we consider

                  the basis for the detention (the crime suspected
            and the grounds for suspicion); the duration of the
            detention, the location of the detention (public or
            private); whether the suspect was transported against
            his will (how far, why); the method of detention; the
            show, threat or use of force; and, the investigative
            methods used to confirm or dispel suspicions.

            The handcuffing of a suspect, by itself, does not convert an
      investigative detention into an arrest. . . .

Id. at 32 (citations omitted).

      Further:

          . . . Pennsylvania law makes clear that a police officer has
      probable cause to stop a motor vehicle if the officer observes a
      traffic code violation, even if it is a minor offense.

                                   *    *     *

                  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.

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

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Commonwealth v. Harris, 176 A.3d 1009, 1019-21 (Pa. Super. 2017)

(citations, footnote, and quotation marks omitted).

      Here, the trial court found that Appellant was subject to an investigatory

detention. (See Trial Court Opinion, 8/29/17, at 4-6). We agree. The record

confirms that the officers properly initiated the stop on a public roadway

because they had probable cause to believe that Appellant was violating the

Vehicle Code by blocking the flow of traffic. Upon further investigation, before

approaching Appellant, they discovered that he was driving a vehicle with

another car’s license plate, thus giving them probable cause to support a

second violation. Upon approaching Appellant to investigate, Officer Carrelli

observed the barrel of a gun under Appellant’s seat.      For their safety, the

officers removed Appellant from the vehicle, handcuffed him, and performed

a pat-down search.       The officers did not transport him anywhere for

questioning or threaten the use of force.

      Based on the foregoing we conclude that the trial court properly found

that Appellant was subject to an investigative detention, not an arrest or

custodial interrogation. See Harris, supra at 1019-21; Smith, supra at 31-

32. Appellant’s first issue does not merit relief.

      In his second claim, Appellant contends that the trial court erred in

denying his motion to suppress his statement that he had drugs in his pocket

because the officers did not provide him with Miranda warnings.           (See

Appellant’s Brief, at 18-20). This issue lacks merit.

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      “It is well-established that the dictates of Miranda do not attach during

an investigatory detention.” Commonwealth v. Murray, 936 A.2d 76, 81

(Pa. Super. 2007) (citation and internal quotation marks omitted); see also

Commonwealth v. Witmayer, 144 A.3d 939, 948 (Pa. Super. 2016), appeal

denied, 169 A.3d 27 (Pa. 2017) (“Our law is well settled that an individual is

entitled to Miranda warnings only when he is subject to a custodial

interrogation.”) (citation omitted).

      Here, Appellant was subject to an investigatory, not a custodial,

detention, and therefore he was not entitled to Miranda warnings.         See

Witmayer, supra at 948; Murray, supra at 81.            Therefore, Appellant’s

second issue fails. The record supports the trial court’s denial of his motion

to suppress. See Gould, supra at *4.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/18




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