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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
TENETHIA TONI BRIGHT,                    :         No. 2067 MDA 2016
                                         :
                         Appellant       :


        Appeal from the Judgment of Sentence, September 16, 2016,
               in the Court of Common Pleas of Centre County
             Criminal Division at No. CP-14-CR-0001089-2015


BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 06, 2017

      Tenethia Toni Bright appeals from the judgment of sentence of

September 16, 2016, following her convictions of firearms not to be carried

without a license, possession of a small amount of marijuana, possession of

drug paraphernalia, and obscured plates.1 After careful review, we affirm.

      The trial court has aptly summarized the relevant facts of this matter

as follows:

                    On June 23, 2015, Trooper Trevor Danko
              (“Trooper Danko”) observed a red Chevrolet Cavalier
              traveling east on Interstate 80 without a license
              plate. Trooper Danko effectuated a traffic stop of
              the vehicle. Upon approach, Trooper Danko saw a
              piece of white paper taped to the back windshield of
              the vehicle. The paper was not taped flat against
              the glass, so it was only legible upon approach.

1
   18 Pa.C.S.A. § 6106(a)(1), 35 P.S. § 780-113(a)(31)(i), 35 P.S.
§ 780-113(a)(32), and 75 Pa.C.S.A. § 1332(b)(3), respectively.
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           Trooper Danko spoke to the driver through the
           passenger window.       The driver was [appellant].
           [Appellant]’s minor son occupied the front passenger
           seat. Trooper Danko identified the odor of fresh
           marijuana emanating from the passenger side of the
           vehicle.       After   speaking    with   [appellant],
           Trooper Danko returned to his cruiser to run
           [appellant]’s license and registration and to call for
           backup.

                 When Trooper Danko had trouble accessing
           [appellant]’s information through his computer, he
           re-approached the vehicle to explain the delay.
           Trooper Danko then asked [appellant] to exit her
           vehicle. At that time, Trooper Danko told [appellant]
           he smelled marijuana and asked [appellant] if there
           was “any marijuana in the vehicle, or anything [I]
           need to know about in the vehicle.” [Appellant]
           admitted she had given her son marijuana to hold.
           [Appellant]’s son handed a bag of marijuana to
           Trooper Danko. When Trooper Danko inquired if
           there was anything else in the vehicle he should be
           aware of, [appellant] told him she had a firearm in
           the back seat.

                 Trooper    Danko    asked     [appellant]   for
           permission to search the vehicle. [Appellant] did not
           give consent.    Trooper Danko explained he was
           going to search anyway, because he had probable
           cause. Several other Troopers arrived at the scene
           and assisted in searching [appellant]’s vehicle. The
           Troopers discovered a loaded firearm in the back
           seat of the vehicle. During the search, [appellant]
           was not restrained.

Opinion and Order, 4/1/16 at 1-2.

     Appellant’s omnibus pre-trial motion was denied. On June 27, 2016,

following a stipulated non-jury trial, appellant was found guilty of the

above-mentioned offenses.    Appellant was sentenced on September 16,

2016, to an aggregate term of 11½ to 23½ months’ incarceration. Appellant


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filed a timely post-sentence motion on September 23, 2016, which was

denied    on    December    14,   2016.2     This   timely   appeal   followed   on

December 19, 2016. On December 20, 2016, appellant was ordered to file a

concise statement of errors complained of on appeal within 21 days pursuant

to Pa.R.A.P. 1925(b). Appellant complied on January 5, 2017, and the trial

court has filed an opinion. (Docket #48, 50.)

        Appellant has raised the following issues for this court’s review:

               I.    Did the lower court err in denying [appellant]’s
                     motion to suppress all evidence obtained as a
                     result of the illegal traffic stop?

               II.   Did the lower court err in denying [appellant]’s
                     motion to suppress all evidence obtained as a
                     result of the violation of the Miranda[3] Rule?

Appellant’s brief at 4 (emphasis added).

                     Our standard of review where an
                     appellant appeals the denial of a
                     suppression motion is well-established:
                     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. We
                     may consider the evidence of the
                     witnesses offered by the prosecution, as
                     verdict winner, and only so much of the
                     defense      evidence     that   remains
                     uncontradicted when read in the context
                     of the record as a whole. We are bound
                     by facts supported by the record and

2
  The Commonwealth also filed a post-sentence motion requesting an
upward modification of appellant’s sentence which was denied on the same
date. (Docket #44.) The Commonwealth has not filed an appeal.
3
    Miranda v. Arizona, 384 U.S. 436 (1966).


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                  may reverse only if the legal conclusions
                  reached by the court below were
                  erroneous.

            Commonwealth v. Scott, 878 A.2d 874, 877
            (Pa.Super. 2005), appeal denied, 586 Pa. 749, 892
            A.2d 823 (2005) (citations omitted).

Commonwealth v. Smith, 904 A.2d 30, 35 (Pa.Super. 2006).

      Here, Trooper Danko stopped appellant for a suspected violation of

Section 1332 of the Vehicle Code, “display of registration plate,” which

provides, in relevant part, as follows:

            (a)   General rule.--Every registration plate shall,
                  at all times, be securely fastened to the vehicle
                  to which it is assigned or on which its use is
                  authorized in accordance with regulations
                  promulgated by the department.

            (b)   Obscuring plate.--It is unlawful to display on
                  any vehicle a registration plate which:

                  (3)    is   otherwise   illegible  at   a
                         reasonable distance or is obscured
                         in any manner[.]

75 Pa.C.S.A. § 1332(a), (b)(3).       Stopping a vehicle on the basis of a

violation of 75 Pa.C.S.A. § 1332 requires the police officer to possess

probable cause, as that is a violation that does not require further

investigation.    See Commonwealth v. Salter, 121 A.3d 987, 993

(Pa.Super. 2015) (explaining when a traffic stop requires probable cause or

reasonable suspicion).

            To determine whether probable cause exists, we
            must consider “whether the facts and circumstances
            which are within the knowledge of the officer at the


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            time of the arrest, and of which he has reasonably
            trustworthy information, are sufficient to warrant a
            man of reasonable caution in the belief that the
            suspect has committed or is committing a crime.”

Commonwealth v. Ibrahim, 127 A.3d 819, 824 (Pa.Super. 2015), appeal

denied, 138 A.3d 3 (Pa. 2016), quoting Commonwealth v. Rodriguez,

585 A.2d 988, 990 (Pa. 1991).

      Trooper Danko testified that on June 23, 2015, he was sitting in the

median of I-80 watching eastbound traffic when he observed appellant’s

vehicle. (Notes of testimony, 1/26/16 at 22.) Trooper Danko testified that

appellant’s vehicle did not appear to have a license plate:     “It traveled in

front of me and I looked for a registration plate, and I double looked. And I

noticed where a registration plate is supposed to be on a bumper, there’s no

registration plate.”    (Id. at 23.)   At that time, Trooper Danko initiated a

traffic stop. (Id.) Trooper Danko called in the traffic stop as a vehicle with

unknown registration. (Id. at 24.) It was not until Trooper Danko got out

and approached the vehicle that he noticed a temporary registration taped

to the back windshield. (Id. at 24-25, 42.)

      Clearly, Trooper Danko had probable cause to stop appellant based on

the fact that he reasonably believed she was in violation of Section 1332 of

the Vehicle Code.      Appellant complains that he was mistaken because she

did have a temporary registration taped to her rear windshield. (Appellant’s

brief at 12.)   However, it is well established that a mistake of fact, if

reasonable, can support a finding of probable cause to stop a motor vehicle.


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See, e.g., Commonwealth v. Rachau, 670 A.2d 731, 735 (Pa.Cmwlth.

1996) (distinguishing between a mistake of fact and a mistake of law).

Here, Trooper Danko testified that due to the glare off the rear windshield,

he could not see the white paper temporary registration until he had already

stopped appellant’s vehicle. (Notes of testimony, 1/26/16 at 42-43.) The

trial court determined that Trooper Danko’s mistake was reasonable under

the circumstances. (Opinion and Order, 4/1/16 at 4.) We agree. Trooper

Danko had probable cause to stop appellant’s vehicle, and the trial court did

not err in denying appellant’s suppression motion on this basis.

      Next, appellant argues that her statements to Trooper Danko were

made during a custodial interrogation and that she did not receive Miranda

warnings. Therefore, appellant contends that her inculpatory statements as

well as the gun and marijuana recovered during the ensuing search of her

vehicle should have been suppressed. We disagree.

            In this Commonwealth, the test for custodial
            interrogation is whether the suspect is physically
            deprived of his freedom in any significant way or is
            placed in a situation in which he reasonably believes
            that his freedom of action or movement is restricted
            by said interrogation. Once it is established that a
            defendant is in custody (or his freedom of movement
            is curtailed in any significant way), Miranda
            warnings are necessary as a condition precedent to
            the admission of the accused’s inculpatory
            statements.

Commonwealth v. Proctor, 657 A.2d 8, 10 (Pa.Super. 1995), appeal

denied, 666 A.2d 1054 (Pa. 1995) (citations omitted). It is well settled that



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the dictates of Miranda do not attach during an investigatory detention such

as a Terry stop.       Commonwealth v. Kondash, 808 A.2d 943, 948

(Pa.Super. 2002), citing Miranda v. Arizona, 384 U.S. 436, 477-478

(1966); Proctor, supra; Commonwealth v. Kloch, 327 A.2d 375,

380-381 (Pa.Super. 1975).

             The usual traffic stop constitutes an investigative
             rather than a custodial detention, unless, under the
             totality of the circumstances, the conditions and
             duration of the detention become the functional
             equivalent of arrest. Since an ordinary traffic stop is
             typically brief in duration and occurs in public view,
             such a stop is not custodial for Miranda purposes.

Commonwealth v. Mannion, 725 A.2d 196, 202 (Pa.Super. 1999)

(en banc) (citations omitted). “A motorist has a statutory duty to bring his

vehicle to a stop when a police officer so directs.” Id., citing 75 Pa.C.S.A.

§ 3733(a).

             An ordinary traffic stop becomes “custodial” when
             the stop involves coercive conditions, including, but
             not limited to, the suspect being forced into a patrol
             car and transported from the scene or being
             physically restrained.       Such coercive conditions
             constitute “restraints comparable to arrest” so as to
             transform the investigative nature of an ordinary
             traffic stop into custodial interrogation.

Id. See also Commonwealth v. Sullivan, 581 A.2d 956 (Pa.Super. 1990)

(defendant-motorist not in custody for Miranda purposes when subject to

an ordinary traffic stop, and not placed under arrest, forced to enter a police

patrol car, subjected to coercion, or subject to prolonged questioning).




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      Instantly, Trooper Danko testified that he asked appellant to step out

of the vehicle. (Notes of testimony, 1/26/16 at 29.) The conversation took

place on the side of the highway, in between the two vehicles.       (Id. at

30-31.) Appellant was not in handcuffs or restrained in any way. (Id. at

32.) Trooper Danko testified that he did not raise his voice or unholster his

weapon.   (Id. at 30, 33.)    Trooper Danko told appellant that he smelled

marijuana and asked if there was marijuana in the vehicle; appellant stated

that she had given the marijuana to her 17-year-old son to hold.      (Id. at

30.) Trooper Danko then asked appellant if there was anything else in the

vehicle that he needed to know about, and appellant related that there was

a weapon in the vehicle. (Id. at 33.) At that point, Trooper Danko called

for backup and they performed a search of the vehicle. (Id. at 31.) Even

during the search, appellant and her son were not handcuffed or restrained

in any way.    (Id. at 32.)   Trooper Danko estimated that approximately

10-12 minutes elapsed between the time he initiated the traffic stop and the

search of appellant’s vehicle. (Id. at 34.)

      Clearly, this was an ordinary traffic stop, and appellant was not in

custody for Miranda purposes.       Appellant was not placed under arrest,

handcuffed, forced to enter a patrol car, subjected to coercion, or subjected

to prolonged questioning. Therefore, Miranda warnings were not required.




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     For these reasons, the trial court did not err in denying appellant’s

pre-trial suppression motion.4

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2017




4
  A third issue raised in appellant’s Rule 1925(b) statement, that the trial
court erred in denying her motion to dismiss on the basis that the
Commonwealth failed to preserve exculpatory evidence, has been
abandoned on appeal.


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