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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                                  :        PENNSYLVANIA
                                                  :
                v.                                :
                                                  :
                                                  :
    RICHARD E. TOKARCIK, JR.                      :
                                                  :
                        Appellant                 :   No. 741 WDA 2018

            Appeal from the Judgment of Sentence February 7, 2018
     In the Court of Common Pleas of Jefferson County Criminal Division at
                       No(s): CP-33-CR-0000132-2017

BEFORE:      MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                               FILED OCTOBER 30, 2019

        Richard E. Tokarcik, Jr. (Appellant) appeals from the judgment of

sentence imposed after a jury found him guilty of criminal attempt – statutory

sexual assault, unlawful contact with a minor (relating to sexual abuse of

children), criminal solicitation – child pornography, criminal attempt –

corruption of        minors, corruption        of minors,   and criminal use   of a

communication facility.1       On appeal, Appellant challenges the trial court’s

denial of his suppression motion. After careful consideration, we affirm.

        The trial court recounted the evidence presented at the suppression

hearing as follows:


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1  18 Pa.C.S.A. §§ 901(a)/3122.1(b), 6318(a)(5),                    902(a)/6312(d),
901(a)/6301(a)(1)(i), 6301(a)(1)(i), 7512(a).
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        Officer [(Andrew)] Turnbull learned on January 6, 2017 that an
     individual going by the name “Adam” had been sending sexually
     explicit texts to three underage girls. He believed the texter to be
     an older man based on references he made to his penis and his
     claim to be of the same generation as a “62-year-old
     grandmother.”

        After attempting unsuccessfully to call the suspect, Turnbull
     began texting him as the 16-year-old “Jamie” and her [15]-year-
     old sister, “Sam.” Two days later, after exchanging sexually
     explicit texts, among which the suspect described his genitalia,
     the “three” decided to arrange a meeting. The suspect initially
     suggested a rendezvous at “Diamond J” truck stop, which
     confirmed to Turnbull that the man [with whom] he was
     communicating was older since the truck stop had not been known
     by that name in the officer’s lifetime, but the “three” ultimately
     agreed to meet at a location on the southeast side of Brookville.
     The suspect texted “Jamie” just after midnight on January 8 to
     say he was en route.

        Once the suspect and his would-be “victims” had agreed on a
     destination, Turnbull updated Officer [(Justin)] Miller, who parked
     his patrol car on a street the suspect would have to pass on his
     way to meet “Jamie” and “Sam.” Pursuant to the plan he had
     discussed with his colleague, Miller was planning to stop the
     suspect. He knew he was looking for an older model vehicle,
     which Turnbull had surmised from the suspect’s references to the
     fact that it rattled and “did not even have a CD player.”

        Although the suspect expressed some reservations about the
     meet-up, he ultimately arrived in the borough and spoke with
     “Jamie” to advise her that he was at the carwash near Hilltop, a
     convenience market and gas station situated adjacent to the car
     wash. Though he had attempted to channel his best high-pitched
     female voice, Officer Turnbull was concerned that he had spoiled
     the ruse and immediately alerted Officer Miller.

        Looking toward state route 322, Miller saw an older pick-up
     truck turning left onto Evans Street. He knew that the only places
     from which it could be coming were the car wash parking lot and
     a nearby dirt road. He also knew that the suspect had told
     Turnbull moments earlier that he was at the carwash and that the
     truck’s direction of travel was consistent with where the unlawful
     encounter was scheduled to take place. Aware that traffic in

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        Brookville tended to be sparse at 1:18 a.m., therefore, the officer
        believed he was looking at the perpetrator’s truck. He thus turned
        around at the carwash and, engaging his siren and emergency
        lights, stopped the vehicle on Ridge Avenue, a residential street
        lined with homes and illuminated by a street light.

           Employing his employer’s designated procedures for high-risk
        and felony stops, Miller exited the patrol vehicle, drew his gun,
        and, ordered the suspect, whom he later learned was [Appellant],
        to get out of the truck and lie face-down on the ground. His back
        to the officer the entire time, [Appellant] complied. He thus did
        not see that Miller had a gun. He testified, however, that he
        assumed as much from things he had seen on television.

           Turnbull arrived a few minutes later and was quickly able to
        ascertain that [Appellant] was in fact an older man driving an older
        vehicle. He thus detained him for further investigation, which
        included checking him for weapons and placing him in handcuffs.
        Within moments of his arrival, Turnbull was helping [Appellant] to
        his feet and escorting him to the back of his own truck, where he
        took a seat on the bumper.

           [After reading Appellant his Miranda[2] rights, Officer Turnbull
        asked Appellant] whether he knew what was going on[.]
        [Appellant] said he knew “they” had the messages, at which point
        Turnbull retrieved his cell phone and dialed the phone numbers
        from which “Jamie” and “Sam” had received the subject texts and
        recent phone call. Both phones rang from inside [Appellant]’s
        truck[.] . . . He completed that transaction by putting [Appellant]
        in the back of Miller’s patrol cruiser . . . . A tow truck was then
        called to remove [Appellant]’s vehicle from the scene.

            [Appellant] related a somewhat different scenario. He agreed
        that Officer Turnbull asked whether he knew what was going on
        and conceded that his answer may have been consistent with the
        officer’s testimony. He testified, however, that he was never
        advised that he was under arrest; that neither officer spoke to him
        while he lay on the ground, during the few minutes he sat on his
        truck’s bumper, or as he was placed into the police cruiser; and
        that [Officer Turnbull]’s first words to him were, “You have the
        right to remain silent,” which he indicated were given only after
____________________________________________


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

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       he had been in the back seat for a few minutes, restrained not
       only by handcuffs, but also by the officer standing directly outside
       his closed door. He thus believed he was under arrest, he said,
       from the moment Officer Miller ordered him to exit his vehicle.

Trial Court Opinion on Omnibus Pretrial Motion, 9/28/17, at 1-3.

       Following his arrest, Appellant was charged with numerous sex crimes.

On September 22, 2017, Appellant filed a pre-trial motion to suppress

evidence from his vehicle stop and subsequent detention. Appellant averred

that Officers Miller and Turnbull placed him under arrest immediately upon

stopping his vehicle and did not have probable cause to do so. On September

28, 2017, following a hearing, the trial court denied the motion.

       On October 18, 2017, Appellant filed a motion to reconsider the denial

of his suppression motion. In his motion, Appellant contested the veracity of

Officer Turnbull’s testimony that when he called the suspect’s phone numbers

during the stop, the phones in Appellant’s vehicle rang. Appellant argued that

the call logs for the cell phones recovered from his vehicle did not contain calls

from Officer Turnbull at the time immediately preceding his arrest.

Consequently, he asserted that the officers lacked probable cause to arrest

him.     The same day, the trial court denied Appellant’s motion for

reconsideration.

       On October 19, 2016, a jury found Appellant guilty of the above-

referenced crimes. On February 7, 2018, the trial court sentenced Appellant

to an aggregate term of 10 to 20 years of incarceration. Appellant filed a




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timely post-sentence motion, which the trial court denied on March 28, 2018.

This timely appeal followed.3

        On appeal, Appellant presents the following issue for review:

        Whether the record supports the trial court’s finding that the facts
        and circumstances of Appellant’s detention and arrest
        demonstrate Officers Miller and Turnbull initiated an investigatory
        detention based on reasonable suspicion which, through further
        investigation, confirmed their suspicions and evolved into
        probable cause to arrest Appellant?

Appellant’s Brief at 5.

        Appellant challenges the denial of his suppression motion. Our standard

of review is as follows:

        [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. Mason, 130 A.3d 148, 151-52 (Pa. Super. 2015)

(quotations     and   citations    omitted),     abrogated   on   other   grounds,


____________________________________________


3   Both the trial court and Appellant have complied with Pa.R.A.P. 1925.

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Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019). Importantly, our scope

of review from a suppression ruling is limited to the evidentiary record that

was created at the suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa.

2013).

      It is well-settled that there are three categories of interactions between

police and a citizen evaluated pursuant to Article I, Section 8 of the

Pennsylvania Constitution:

      The first of these 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 to respond. The second, an
      ‘investigative detention’ must be supported by a reasonable
      suspicion; 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. Finally, an arrest or ‘custodial
      detention’ must be supported by probable cause.

Commonwealth v. Downey, 39 A.3d 401, 405 (Pa. Super. 2012) (citation

omitted).

      “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.”

Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000). In evaluating

the totality of the circumstances, our focus is whether, “by means of physical

force or show of authority, the citizen-subject’s movement has in some way

been restrained.” Id. at 889. In making this determination, no single factor

dictates “the ultimate conclusion as to whether a seizure has occurred.” Id.

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      Appellant asserts that his encounter with the police constituted a

custodial detention (i.e., an arrest) because when Officer Miller encountered

and approached him, he immediately drew his firearm, held Appellant at

gunpoint, and had him lay on the ground. Appellant further contends that his

encounter with the police was an arrest because when Officer Turnbull arrived,

he handcuffed Appellant and read him his Miranda rights before having any

kind of discussion with him.    Thus, Appellant argues that the appropriate

inquiry into whether his detention was lawful is whether the police had

probable cause to arrest him.

      “An encounter becomes an arrest when, under the totality of the

circumstances, a police detention becomes so coercive that it functions as an

arrest.”   Commonwealth v. Stevenson, 894 A.2d 759, 770 (Pa. Super.

2006), abrogated on other grounds, Hicks, 208 A.3d 916.                    In

Commonwealth v. Hannon, 837 A.2d 551 (Pa. Super. 2003), we stated that

“an arrest exists when (1) the police intended to take appellant into custody,

and (2) appellant was subjected to the actual control and will of the police.”

Id. at 554. “This test is an objective test, and all circumstances must be

viewed in the light of the reasonable impression conveyed to the person

subjected to the seizure.” Id. (quotations and citations omitted).

      Significantly, this Court has explained that “[c]ourts analyze numerous

factors to determine whether a detention has become an arrest.” Stevenson,

894 A.2d at 770. These factors include: “the cause for the detention, the


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detention’s length, the detention’s location, whether the suspect was

transported against his or her will, whether physical restraints were used,

whether the police used or threatened force, and the character of the

investigative methods used to confirm or dispel suspicions.” Id.

      In Hannon, we determined that following circumstances constituted an

arrest:

      The facts indicate that the police drew their weapons, ordered
      appellant out of the car, immediately restrained him with
      handcuffs, searched him, placed him in a police vehicle, and
      eventually transported him to the police station where Miranda
      warnings were given and an interrogation took place. A person
      subjected to this seizure would reasonably believe that he was
      under the control of the police and that the police intended to take
      him into custody when he was ordered out of the car at gunpoint
      and restrained with handcuffs.

Hannon, 837 A.2d at 554.

      Upon review, we agree that Appellant’s encounter with the police

constituted an arrest. The record reflects that when Officer Miller stopped

Appellant’s vehicle, he ordered Appellant “out [of his vehicle] at gunpoint and

had him lay on the ground” until Officer Turnbull arrived. Id. at 15. When

Officer Turnbull arrived several minutes later, he immediately handcuffed

Appellant and read him Miranda rights.        Id. at 42-43.    During this time,

neither officer attempted to further confirm or dispel their belief that Appellant

was their suspect.     See id. at 15, 42-43.      Consequently, at this point,

Appellant was subject to arrest. Officer Turnbull then asked Appellant if he

“understood what was going on or why this was happening.” Id. at 43. Officer


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Turnbull testified that in response, Appellant “stated that he knew and that

we had the messages.” Id.

     Unlike the officers in Hannon, Officers Miller and Turnbull did not put

Appellant in a police vehicle for transport to the police station prior to

Appellant making incriminating statements.      Officer Miller, however, held

Appellant at gunpoint and had him on the ground for several minutes until

Officer Turnbull arrived. Upon his arrival, Officer Turnbull immediately

handcuffed Appellant, and then read Appellant his Miranda rights. As we

stated in Hannon, based on the totality of the circumstances, a person “would

reasonably believe that he was under the control of the police and that the

police intended to take him into custody when he was ordered out of the car

at gunpoint and restrained with handcuffs.” Hannon, 837 A.2d at 554.

     Moreover, it is well-settled that “the Miranda safeguards come into play

whenever a person in custody is subjected to either express questioning or

its functional equivalent.” Commonwealth v. Gaul, 912 A.2d 252, 255 (Pa.

2006) (emphasis added, quotations and citations omitted); Commonwealth

v. Williams, 941 A.2d 14, 30 (Pa. Super. 2008). “Miranda warnings are

necessary any time a defendant is subject to a custodial interrogation.” Gaul,

912 A.2d at 255. That Miranda warnings are not necessary in a situation

where an individual is not under arrest further supports Appellant’s position

that he reasonably believed that he was under the control of the police and

that the police intended to take him into custody. Therefore, based on the


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totality of the circumstances, we conclude that the police officers’ encounter

with Appellant was a custodial detention, i.e., an arrest. Accordingly, we must

determine whether the police had probable cause to arrest Appellant. See

Downey, 39 A.3d at 405.

      Probable cause exists “where the facts and circumstances within the

officers’ knowledge are sufficient to warrant a person of reasonable caution in

the belief that an offense has been or is being committed.” Commonwealth

v. Stultz, 114 A.3d 865, 883 (Pa. Super. 2015). We have explained:

          In determining whether probable cause existed in a particular
      situation, a court will look not just at one or two individual
      factors,    but   will    consider   the   “totality    of   the
      circumstances” as they appeared to the arresting officer:

         When we examine a particular situation to determine if
         probable cause exists, we consider all the factors and their
         total effect, and do not concentrate on each individual
         element . . . . We also focus on the circumstances as seen
         through the eyes of the trained officer, and do not view the
         situation as an average citizen might . . . . Finally, we must
         remember that in dealing with questions of probable cause,
         we are not dealing with certainties. We are dealing with the
         factual and practical considerations of everyday life on which
         reasonable and prudent [persons] act.

      Commonwealth v. Simmons, 440 A.2d 1228, 1234 (Pa. Super.
      1982), quoting Commonwealth v. Kazior, 410 A.2d 822, 824
      (Pa. Super. 1979). It is only the probability, and not a prima facie
      showing, of criminal activity that is the standard of probable cause
      for a warrantless arrest. Commonwealth v. Kloch, 327 A.2d
      375 (Pa. Super. 1974). Probable cause exists when criminality is
      one reasonable inference; it need not be the only, or even the
      most likely, inference. See, e.g., Commonwealth v. Kendrick,
      490 A.2d 923, 927 (Pa. Super. 1985) (probable cause “does not
      demand any showing that . . . a belief [of criminal activity] be
      correct or more likely true than false”); Commonwealth v.
      Moss, 543 A.2d 514, 518 (Pa. 1988) (in assessing sufficiency of

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      probable cause, the fact that other inferences could be drawn from
      circumstances does not demonstrate that inference that was
      drawn by police was unreasonable).           As Courts of this
      Commonwealth           have        repeatedly        emphasized,
      determinations of probable cause “must be based on
      common-sense non-technical analysis.”

Commonwealth v. Quiles, 619 A.2d 291, 298 (Pa. Super. 1993) (en banc)

(citations modified) (emphases added).

      The trial court, concluding that Officers Miller and Turnbull had probable

cause to arrest Appellant, explained:

         In light of the [1:00 a.m.] hour at which [Appellant] was
      apprehended, his text to “Jamie” that he was at the car wash,
      Officer Miller’s contemporaneous sighting of [Appellant’s] vehicle
      exiting the car wash parking lot, and Turnbull’s ability to
      immediately identify the person lying on the pavement as an older
      man driving an older vehicle, it would have sanctioned the officer’s
      actions had he taken [Appellant] into custody immediately.

Trial Court Opinion on Motion for Reconsideration, 10/18/17, at 2.

      Our review of the record reflects that prior to Appellant’s arrest, Officer

Turnbull was attempting, while posing as an underage female, to arrange a

meeting with the suspect, who was under the impression that the meeting

would be for the purpose of engaging in sex with two underage females in

Brookville, Jefferson County, Pennsylvania. N.T., 9/26/17, at 34-36. Officer

Turnbull stated that the suspect indicated that his vehicle was rattling, making

a lot of noise, and did not “even have a CD player,” leading Officer Turnbull to

believe the suspect was driving an older, run-down vehicle. Id. at 39-40.

Officer Turnbull testified that at around 1:16 a.m., the suspect told him he




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was at Henry’s Car Wash in Brookville.         Id. at 37-38.    Officer Turnbull

immediately relayed all of this information to Officer Miller. Id. at 7, 9-10.

      Officer Miller testified that upon receiving the call from Officer Turnbull,

he proceeded to Henry’s Car Wash. Id. at 10-11. Officer Miller described the

area of Henry’s Car Wash as sparsely populated, with one or two other

businesses that were closed and vacant, given that it was approximately 1:16

a.m. on January 6th. Id. at 8. Officer Miller indicated that there was no one

else on the road, which was typical for that time of night and the frigid

temperatures the area was experiencing. Id. at 8, 12. Officer Miller reported

that roughly a minute later, as he approached Henry’s Car Wash, he saw

Appellant’s 1989 Ford truck pulling out. Id. at 9, 11. Officer Miller stated that

when he saw Appellant’s truck, which appeared old and run-down, he

“absolutely” knew he had located the suspect, and proceeded to make the

traffic stop. Id. at 12-14.

      After careful consideration, and “based on the totality of the

circumstances as they appeared to the arresting officers,” we conclude that

Officers Miller and Turnbull had reason to believe Appellant was the suspect

Officer Turnbull was investigating for sending sexually explicit texts to, and

attempting to solicit, underage females.          Quiles, 619 A.2d at 298

(“determinations of probable cause ‘must be based on common-sense non-

technical   analysis’”).      The   officers   knew   from   Officer   Turnbull’s

communications with the suspect that the suspect was driving an older, run-


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down vehicle.   The suspect further communicated that he was waiting at

Henry’s Car Wash in Brookville — a sparsely populated area that was

experiencing frigid temperatures at approximately 1:16 a.m. on Friday,

January 6, 2017, when no one else was on the road — for the purpose of

meeting with and engaging in sexual activity with two underage females.

Upon arriving at Henry’s Car Wash, Officer Miller observed Appellant, in a 1989

Ford Truck, leaving the area. In short, Officer Miller discovered Appellant in

the exact location (the car wash), at the exact time (around 1:16 a.m.),

communicated by the suspect. The encounter occurred during unfavorable

weather conditions, at a time of day when no one else was around, making it

highly unlikely that anybody but the suspect would be at that location at that

time. On this record, the facts within the officers’ knowledge were sufficient

for a person of reasonable caution to believe — in Officer Miller’s case,

“absolutely” believe — that Appellant was the suspect sending sexually explicit

texts to underage females, and driving to a car wash in the middle of a very

cold January night to meet them for a sexual encounter. See Stultz, 114

A.3d at 883. Accordingly, we discern no error in the trial court’s determination

that the officers had probable cause to arrest Appellant, and the court’s

corresponding denial of Appellant’s suppression motion.

      Judgment of sentence affirmed.

      Judge McLaughlin joins the memorandum.

      Judge Colins concurs in the result.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2019




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