J-S18046-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MARVIN LYNDELL HARPER, JR.

                            Appellant               No. 2583 EDA 2014


              Appeal from the Judgment of Sentence July 31, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006039-2013


BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                               FILED MAY 4, 2015

        Appellant, Marvin Lyndell Harper, Jr., appeals from the July 31, 2014

judgment of sentence of one year’s probation, imposed after he was found

guilty of one count of firearms not to be carried without a license. 1   After

careful review, we affirm.

        We summarize the relevant factual and procedural history of this case

as follows.    On June 3, 2013, at 8:33 p.m., Trooper Sergio Colon of the

Pennsylvania State Police was patrolling on Interstate 95 northbound

towards Philadelphia in Delaware County. N.T., 4/2/14, at 6. Trooper Colon

observed a burgundy Ford vehicle traveling in front of his marked patrol car.

Id. at 7. Trooper Colon followed the vehicle for approximately three tenths

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1
    18 Pa.C.S.A. § 6106(a)(2).
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of a mile and determined the vehicle was travelling at 70 miles per hour in a

55 miles per hour zone, based on the speed at which Trooper Colon was

following the car.   Id. at 7-8.   Based on his observation, Trooper Colon

initiated a traffic stop for speeding. Id. at 8. The vehicle pulled over, and

Trooper Colon approached the vehicle on the passenger side.         Id.   Upon

approaching the vehicle, Trooper Colon asked its sole occupant, later

identified as Appellant, for his driver’s license, registration, and proof of

insurance.    Id. at 10.       “During the course of him gathering his

documentation, [Appellant and Trooper Colon] ha[d] [a] small conversation

relative to [Appellant’s] course of travel throughout the day[.]” Id. During

said conversation, Trooper Colon asked Appellant if he had any firearms in

the vehicle, to which Appellant responded, “yes, just mine.”     Id.   Trooper

Colon asked Appellant if he could retrieve said firearm for the duration of the

stop, to which Appellant replied, “sure[.]” Id. Trooper Colon retrieved the

firearm and took it back to his patrol car and secured it therein. Id. at 12.

Upon returning to Appellant, Trooper Colon asked him if he had a permit for

the firearm, to which Appellant replied that he did not. Id. At this point,

Trooper Colon placed Appellant under arrest. Id. at 13.

      On October 23, 2013, the Commonwealth filed an information charging

Appellant with one count of firearms not to be carried without a license.

Appellant filed a motion to suppress the firearm on December 12, 2013. The

trial court conducted a suppression hearing on April 2, 2014, at which


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Trooper Colon testified as the sole witness for the Commonwealth. Appellant

did not present any evidence at said hearing.        On April 4, 2014, the trial

court entered an order denying Appellant’s motion to suppress.           Appellant

then proceeded to a one-day bench trial on July 31, 2014, at the conclusion

of which the trial court found Appellant guilty of the above-mentioned

offense.     The trial court immediately imposed a sentence of one year’s

probation.    Appellant did not file a post-sentence motion.      On August 21,

2014, Appellant filed a timely notice of appeal.2

       On appeal, Appellant presents the following two issues for our review.

              1.     Whether Appellant’s conviction for [p]ossessing
                     a [f]irearm without a [l]icense should be
                     vacated, because the [trial] court abused its
                     discretion in denying Appellant’s suppression
                     motion, where [the] firearm attributable to
                     Appellant’s possession was recovered as a
                     result of a coerced consensual search,
                     conducted     during    the    course     of   an
                     investigatory traffic stop, without reasonable
                     suspicion or probable cause that Appellant had
                     engaged in criminal activity, which violated
                     Appellant’s constitutional right to a fair search
                     and seizure under the Fourth Amendment of
                     the United States Constitution, by and through
                     the Due Process Clause of the Fourteenth
                     Amendment of the United States Constitution,
                     and Article 1, Section 8 of the Pennsylvania
                     State Constitution?



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2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.




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              2.     Whether Appellant’s conviction for [p]ossessing
                     a [f]irearm without a [l]icense should be
                     vacated, because the [trial] court abused its
                     discretion in denying Appellant’s suppression
                     motion, where Appellant admitted that he
                     possessed [the] firearm, without a carry
                     permit, during the functional equivalent of a
                     custodial interrogation, while being subjected
                     to a routine traffic stop, without being advised
                     of his Miranda[3] rights, which violated
                     Appellant’s constitutional rights against self-
                     incrimination and to have the presence and
                     advice of counsel during police questioning,
                     under the Fifth and Sixth Amendments of the
                     United States Constitution, by and through the
                     Due Process Clause of the Fourteenth
                     Amendment of the United States Constitution,
                     and Article 1, Section 9 of the Pennsylvania
                     State Constitution?

Appellant’s Brief at 4.

        As Appellant’s issues on appeal both pertain to the trial court’s denial

of his suppression motion, we begin by noting our well-settled standard of

review regarding suppression issues.

              [I]n addressing a challenge to a trial court’s denial of
              a suppression motion [we are] limited to determining
              whether the factual findings are supported by the
              record and whether the legal conclusions drawn from
              those facts are correct. Since the [Commonwealth]
              prevailed in 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 record supports the
              factual findings of the trial court, we are bound by


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3
    Miranda v. Arizona, 384 U.S. 436 (1966).



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             those facts and may reverse only if the legal
             conclusions drawn therefrom are in error.

Commonwealth v. Washington, 63 A.3d 797, 802 (Pa. Super. 2013)

(some brackets and citation omitted). We elect to address Appellant’s issues

together for ease of analysis, as we dispose of both issues on the same

ground.   In his first issue, Appellant argues that his consent for Trooper

Colon to search his glove compartment for his firearm was coerced.

Appellant’s Brief at 16. However, Appellant’s developed argument, does not

depend on whether his consent was voluntary.     Rather, Appellant devotes

his argument on this issue to whether the traffic stop in this case “was

elevated to an investigatory detention, when Appellant was asked if there

was a firearm inside the vehicle.” Id. In his second issue, Appellant avers

that his statements to Trooper Colon should have been suppressed because

he was subjected to a custodial interrogation and not given his Miranda

warnings. Id. at 18. As this illustrates, both of Appellant’s arguments on

appeal are premised on the type of detention to which Appellant was

subjected.

      The Fourth Amendment of the Federal Constitution provides, “[t]he

right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated

….”   U.S. Const. amend. IV.       Likewise, Article I, Section 8 of the

Pennsylvania Constitution states, “[t]he people shall be secure in their




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persons, houses, papers and possessions from unreasonable searches and

seizures ….” Pa. Const. art. I, § 8.

            Under Pennsylvania law, there are three levels of
            encounter that aid courts in conducting search and
            seizure analyses.

                  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 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. Williams, 73 A.3d 609, 613
            (Pa. Super. 2013) (citation omitted), appeal denied,
            87 A.3d 320 (Pa. 2014).

Commonwealth v. Carter, 105 A.3d 765, 768 (Pa. Super. 2014) (en

banc).

            The law is clear that Miranda is not implicated
            unless the individual is in custody and subjected to
            interrogation.

                   Police detentions only become custodial when,
            under the totality of the circumstances, the
            conditions and/or duration of the detention become
            so coercive as to constitute the functional equivalent
            of formal arrest … [T]he test focuses on whether the
            individual being interrogated reasonably believes his
            freedom of action is being restricted.




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Commonwealth v. Snyder, 60 A.3d 165, 170 (Pa. Super. 2013) (internal

quotation marks and citations omitted, emphasis in original), appeal denied,

70 A.3d 811 (Pa. 2013).

                  The factors a court utilizes to determine, under
            the totality of the circumstances, whether a
            detention has become so coercive as to constitute
            the functional equivalent of arrest include: the basis
            for the detention; its length; its location; whether
            the suspect was transported against his or her will,
            how far, and why; whether restraints were used;
            whether the law enforcement officer showed,
            threatened or used force; and the investigative
            methods employed to confirm or dispel suspicions.
            The fact that a police investigation has focused on a
            particular individual does not automatically trigger
            “custody,” thus requiring Miranda warnings.

Commonwealth v. Baker, 24 A.3d 1006, 1019-1020 (Pa. Super. 2011),

affirmed, 78 A.3d 1044 (Pa. 2013), quoting Commonwealth v. Mannion,

725 A.2d 196, 200 (Pa. Super. 1999) (en banc) (citations omitted).

      In the case sub judice, Appellant does not contest the constitutionality

of the initial traffic stop.   This Court has noted that “[t]raffic stops, like

Terry stops, constitute investigative rather than custodial detentions, unless

under the totality of circumstances the conditions and duration of the

detention    become      the    functional   equivalent    of   an   arrest[.]”

Commonwealth v. Schatzel, 724 A.2d 362, 365 (Pa. Super. 1998)

(citation omitted), appeal denied, 740 A.2d 232 (Pa. 1999); see also

Rodriguez v. United States, --- U.S. ---, 2015 WL 1780927, at *5 (2015)

(stating, “a routine traffic stop is more analogous to a so-called Terry stop


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... than to a formal arrest[]”) (internal quotation marks omitted), quoting

Knowles v. Iowa, 525 U.S. 113, 117 (1998).

                    “The key difference between an investigative
              and a custodial detention is that the latter ‘involves
              such coercive conditions as to constitute the
              functional equivalent of an arrest.’” Commonwealth
              v. Gonzalez, 979 A.2d 879, 887 (Pa. Super. 2009)
              (quoting Commonwealth v. Pakacki, 901 A.2d
              983, 987 (Pa. 2006)).

                     The court considers the totality of the
                     circumstances to determine if an encounter is
                     investigatory or custodial, but the following
                     factors are specifically considered: the basis for
                     the detention; the duration; the location;
                     whether the suspect was transported against
                     his will, how far, and why; whether restraints
                     were used; the show, threat or use of force;
                     and the methods of investigation used to
                     confirm or dispel suspicions.[4]

              Commonwealth v. Teeter, 961 A.2d 890, 899 (Pa.
              Super. 2008).

Commonwealth v. Goldsborough, 31 A.3d 299, 306 (Pa. Super. 2011)

(parallel citation omitted), appeal denied, 49 A.3d 442 (Pa. 2012).




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4
  Consistent with the Supreme Court’s mandate that courts employ a totality
of the circumstances analysis in determining whether a citizen is in custody,
we stress that this is not an exhaustive list. See generally J.D.B. v. North
Carolina, 131 S. Ct. 2394, 2402 (2011) (stating, “[r]ather than demarcate
a limited set of relevant circumstances, we have required police officers and
courts to examine all of the circumstances surrounding the [alleged
custodial] interrogation, including any circumstance that would have affected
how a reasonable person in the suspect’s position would perceive his or her
freedom to leave[]”).



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      Applying this framework, we conclude the trial court did not err when

it concluded Appellant was not in custody for the purposes of Miranda.

Here, as noted above, Appellant was subject to a routine traffic stop for

speeding, which is classified as an investigative detention.         There is no

indication that the traffic stop was unreasonably prolonged, it took place on

the side of a major interstate highway, Appellant was not restrained nor

transported, nor did Trooper Colon employ any threat or use of force against

him. See generally id.

      Appellant argues that he was subject to a custodial detention because

Trooper Colon “testified on cross-examination that Appellant was not free to

leave, during the traffic stop, when he asked Appellant if he possessed a

firearm.” Appellant’s Brief at 21. Appellant also argues that the encounter

escalated to a custodial detention “[o]nce Appellant disclosed that there was

a firearm inside the Ford, [because] he was subject to arrest.”         Id.   We

conclude that neither of these factors viewed in light of the totality of the

circumstances escalated the traffic stop to a custodial detention.

      It is already incumbent in a traffic stop, or any other investigative

detention that the individual is not free to leave.           See generally

Commonwealth v. Santana, 959 A.2d 450, 452 (Pa. Super. 2008), appeal

denied, 989 A.2d 916 (Pa. 2010). In addition, it is not legally accurate to

presume that Appellant was automatically subject to arrest when he

disclosed the existence of a firearm in the vehicle. The statute giving rise to


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Appellant’s conviction in this case, states that a person is not guilty of the

offense if that individual has a license for the firearm in question.             See

generally 18 Pa.C.S.A. §§ 6106(a), 6109. Also, Section 6106(b) gives a list

of 16 exceptions to which the statute does not apply. See generally id. §

6106(b).        Regarding Appellant’s first issue, as we have explained, traffic

stops     are    investigative   detentions   for   the   purposes   of   the   Fourth

Amendment.         See Schatzel, supra.       In addition, the Supreme Court has

concluded that law enforcement may question drivers about unrelated

matters during a traffic stop, as long as said questioning does not

unreasonably prolong the stop.           See Rodriguez, supra (stating, “the

Fourth Amendment tolerate[s] certain unrelated investigations that d[o] not

lengthen the roadside detention[]”); accord Arizona v. Johnson, 555 U.S.

323, 333 (2009) (stating, “[a]n officer’s inquiries into matters unrelated to

the justification for the traffic stop, this Court has made plain, do not convert

the encounter into something other than a lawful seizure, so long as those

inquiries do not measurably extend the duration of the stop[]”). Based on

these considerations, we conclude Appellant is not entitled to relief on either

issue.

         Based on the foregoing, we conclude the trial court properly denied

Appellant’s motion to suppress. See Washington, supra. Accordingly, the

trial court’s July 31, 2014 judgment of sentence is affirmed.

         Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2015




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