J-S68017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMAR G. BAGLEY

                            Appellant                No. 3221 EDA 2013


           Appeal from the Judgment of Sentence October 25, 2013
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0008532-2012


BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                       FILED DECEMBER 12, 2014

        Appellant, Jamar G. Bagley, appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following his bench

trial convictions for possession of a firearm prohibited, carrying a firearm

without a license, and driving with a suspended or revoked license. 1      We

affirm.

        The trial court sets forth the relevant facts and procedural history of

this appeal as follows:

           On the evening of November 29, 2012 at approximately
           11:27 P.M., Officer Steven Corsi, of the Ridley Park Police
           Department, was on duty and working patrol along Chester
           Pike, which is located in Delaware County, Pennsylvania.
           Officer Corsi was in full uniform and in an unmarked patrol
           car, and was traveling with Officer Josh Powley. Officer
____________________________________________


1
    18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1); 75 Pa.C.S. 1543(a), respectively.
J-S68017-14


       Powley was driving. During their patrol, Officer Corsi
       observed a white Honda sedan traveling westbound on
       Chester Pike that had a registration lamp out. Upon seeing
       the vehicle’s lamp, Officer Powley activated the emergency
       lights on his police vehicle in order to make a traffic stop.
       The driver of the vehicle proceeded about a block, turned
       left onto Stewart Avenue, and pulled over to the right
       shoulder of the road. This took approximately 30 seconds.
       Officer Corsi observed that there was one person in the
       vehicle.   Through the rear window, he observed this
       individual lean across the center console and reach
       towards the passenger side of the vehicle.

       As Officers Corsi and Powley approached the vehicle, the
       individual continued to reach towards the passenger side
       of the vehicle. The individual, ([Appellant]) was ordered to
       put his hands on the steering wheel. [Appellant] appeared
       nervous and was ‘very jittery.’

       Officer Powley approached the driver’s side of the vehicle
       and made contact with [Appellant]. [Appellant] did not
       provide a driver’s license, but provided a state ID from
       North Carolina. The officers then ran the Appellant’s name
       through their system and discovered that he had a
       suspended driver’s license. The car was registered to
       Nafeassia Powell and Deborah Gordon.          It was later
       discovered that one of the registered owners, Nafeassia
       Powell, who is Appellant’s girlfriend, had given him
       permission to the drive the vehicle that day. Following the
       officers’ discovery of [Appellant’s] suspended license, they
       advised Appellant that he was going to be mailed citations.

       Based upon the fact that [Appellant] did not have a valid
       driver’s license, Officer Corsi asked [Appellant] to step
       away from the vehicle. [Appellant] was taken to the rear
       of the vehicle and [patted] down for officer safety. He was
       asked ‘if there was anything else in the vehicle, any type
       of weapons or any narcotic, anything like that.’
       [Appellant] answered no.        The officers did not tell
       [Appellant] that he was free to leave. The officers did tell
       [Appellant] that, because no one else was in the car to
       drive the vehicle, the vehicle was going to be towed and
       impounded. Officer Corsi explained that the policy of the
       Ridley Park Police Department is to tow a vehicle when the

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J-S68017-14


       driver is determined to have a suspended license. The
       policy of the police department also requires the vehicle to
       be searched and inventoried for items of value. Before
       performing the search, the officers asked [Appellant] if
       they could search the vehicle. He replied yes. Following a
       search of the vehicle, a silver revolver was recovered from
       underneath the front passenger seat in the vehicle.

       Officer Corsi secured the weapon and advised [Appellant]
       that they located a weapon. [Appellant] stated that ‘he
       had it for protection.’ [Appellant] was then detained while
       the officers checked to see if he had a permit for the
       firearm. The officers ran a search and discovered that
       [Appellant] was not licensed to carry a firearm in the state
       of Pennsylvania. Appellant was later placed in handcuffs.

                               *    *    *

       Appellant was arrested and charged with possession of a
       firearm prohibited, firearms not to be carried without a
       license, prohibited offensive weapons, and related
       offenses….

       On October 1, 2013, Appellant was tried before the
       undersigned on charges of possession of a firearm
       prohibited, firearms not to be carried without a license,
       prohibited offensive weapons, driving while operating
       privilege is suspended or revoked, and general lighting
       requirement - no headlights. At trial, the Commonwealth
       and defense counsel stipulated to the following:

          The first being Exhibit Commonwealth C-1, the
          incident report dated November 29, 2012;
          Commonwealth Exhibit C-2, the Affidavit of Probable
          Cause; Commonwealth Exhibit C-3, the certified
          driving history of Mr. Bagley[;] Commonwealth
          Exhibit C-4, State Police certification for licensing
          status of Mr. Bagley; Commonwealth Exhibit C-5, the
          certified conviction for Mr. Bagley from transcript
          number 5981 of 2006 dated December 18 of 2006;
          Commonwealth Exhibit C-6, the ballistics report from
          Detective Grandizio dated December 5, 2012;
          Commonwealth Exhibit C-7, the testimony from the
          preliminary hearing dated December 17, 2012;


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          Commonwealth Exhibit C-8, testimony on the
          Defendant's Motion to Suppress held before the
          Honorable Gregory M. Mallon dated August 29,
          2013; Commonwealth Exhibit C-9, a Kimmel brand
          model 5000, 32 caliber revolver, serial number
          G44611. It is further stipulated from the time each
          of the Government’s exhibits came into the
          Government’s possession through the time of their
          introduction into evidence a proper chain of custody
          was maintained and the exhibits were not altered,
          tampered with or modified in any way.             The
          Commonwealth Exhibit C-9 was analyzed by
          Detective Louis Grandizio who, if called to testify,
          would be qualified in the Field of Forensic Firearms
          Examination as an expert and would testify in that
          capacity to the result of his analysis that the
          revolver, R-1, was test fired and found to be
          operable. R-1 is the Kimmel brand model 5000
          caliber 32 revolver, serial G44611, submitted by the
          Ridley Park Police Department and recovered from
          the vehicle Mr. Bagley was operating on November
          29, 2012. And the results of Detective Grandzio’s
          analysis are contained in his ballistics report dated
          December 5, 2012 and incorporated herein as Exhibit
          C-6.

       [Appellant] took the stand at trial and denied making a
       statement to the police. He further stated that the police
       did not ask for consent to search the vehicle.

       Following the trial, this court found Appellant [guilty] of
       possession of a firearm prohibited, firearms not to be
       carried without a license, and driving while operating
       privilege is suspended or revoked. A presentence
       investigation was conducted and on October 25, 2013 this
       court sentenced Appellant as follows:

         • Possession of a firearm prohibited: 40 months to
           80 months of incarceration and 5 years of
           consecutive probation;
         • Firearms not to be carried without a license: 40
           months to 80 months of incarceration1;
         • Driving while operating privilege is suspended or
           revoked: [a] $200 fine.

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J-S68017-14



                     1
                       To run concurrent to his sentence        on
                     possession of a firearm prohibited.

          Appellant was found not to be RRRI eligible, was given
          credit for time served from the period of 11/29/12 through
          10/25/13, and was ordered to forfeit the gun recovered.

Trial Court Opinion, filed April 30, 2014, at 1-6 (internal citations to the

record omitted).

       On November 13, 2013, Appellant filed a pro se notice of appeal. On

January 15, 2014, the court ordered Appellant to file a Concise Statement of

Errors Complained of on Appeal, within twenty-one (21) days, pursuant to

Pa.R.A.P. 1925(b).       The prothonotary gave Appellant written notice of the

court’s order, but did not give such notice to Appellant’s counsel. Appellant

filed a counseled Rule 1925(b) statement on March 11, 2014.

       Appellant raises the following issues for our review:

          WHETHER APPELLANT HAS NOT WAIVED HIS ISSUES ON
          APPEAL BASED ON NON-COMPLIANCE WITH PA.R.A.P.
          1925, FOR UNTIMELY FILING HIS 1925(B) STATEMENT,
          WHERE THE DELAY IN FILING STEMMED FROM THE
          PROTHONOTARY’S FAILURE TO GIVE WRITTEN NOTICE OF
          THE TRIAL COURT’S 1925(B) ORDER TO APPELLANT’S
          ATTORNEY?2

          WHETHER APPELLANT’S CONVICTIONS FOR PERSONS
          PROHIBITED FROM POSSESSING A FIREARM AND
          CARRYING A FIREARM WITHOUT A LICENSE SHOULD BE
          VACATED, BECAUSE THE LOWER COURT ABUSED ITS
____________________________________________


2
  Although this issue was not raised in Appellant’s Rule 1925(b) statement
and is arguably waived, we must address it to determine whether Appellant’s
other issues are properly before this Court.



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J-S68017-14


       DISCRETION IN DENYING APPELLANT'S [SUPPRESSION]
       MOTION,    WHERE    FIREARM    ATTRIBUTABLE     TO
       APPELLANT’S POSSESSION WAS RECOVERED AS THE
       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?

       WHETHER APPELLANT’S CONVICTIONS FOR PERSONS
       PROHIBITED FROM POSSESSING A FIREARM AND
       CARRYING A FIREARM WITHOUT A LICENSE SHOULD BE
       VACATED, BECAUSE THE LOWER COURT ABUSED ITS
       DISCRETION IN DENYING APPELLANT’S SUPPRESSION
       MOTION,    WHERE    FIREARM    ATTRIBUTABLE    TO
       APPELLANT’S POSSESSION WAS RECOVERED AS THE
       RESULT OF THE POLICE OBTAINING APPELLANT’S
       CONSENT TO SEARCH VEHICLE, DURING THE COURSE OF
       AN INVESTIGATORY TRAFFIC STOP, WITHOUT FIRST
       ADVISING APPELLANT OF HIS MIRANDA RIGHTS, WHICH
       VIOLATED   APPELLANT’S    CONSTITUTIONAL    RIGHT
       AGAINST SELF-INCRIMINATION UNDER THE FIFTH
       AMENDMENT OF THE UNITED STATES CONSTITUTION, BY
       AND THROUGH THE DUE PROCESS CLAUSE OF THE
       FOURTEENTH AMENDMENT , AND ARTICLE 1, SECTION 9
       OF THE PENNSYLVANIA STATE CONSTITUTION?

       WHETHER APPELLANT’S CONVICTION FOR PERSONS
       PROHIBITED FROM POSSESSING A FIREARM AND
       CARRYING A FIREARM WITHOUT A LICENSE SHOULD BE
       VACATED, BECAUSE THERE WAS INSUFFICIENT EVIDENCE
       TO ESTABLISH THAT APPELLANT WAS IN CONSTRUCTIVE
       POSSESSION OF [THE] FIREARM RECOVERED FROM
       UNDERNEATH OF [THE] PASSENGER [SEAT] OF [THE]
       AUTOMOBILE, THAT WAS OPERATED BY APPELLANT BUT
       OWNED BY ANOTHER PERSON?


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J-S68017-14


Appellant’s Brief at 5-6.

        Before we address the merits of this appeal, we must determine

whether Appellant timely filed his Rule 1925(b) statement in the trial court.

If his statement was untimely, Pa.R.A.P. 1925(c)(3) obligates us to deem

appellate counsel ineffective and to remand the case for the filing of a Rule

1925(b) statement nunc pro tunc. Commonwealth v. Myers, 86 A.3d 286,

289 (Pa.Super.2014). In this case, because the prothonotary failed to send

the court’s Rule 1925(b) order to Appellant’s counsel, we will not find that

Appellant’s Rule 1925(b) statement is untimely.

        The Pennsylvania Rules of Appellate Procedure provide, in relevant

part:

          Rule 1925. Opinion in Support of Order

                                  *    *    *

              (b) Direction to file statement of errors
          complained of on appeal; instructions to the
          appellant and the trial court.--If the judge entering the
          order giving rise to the notice of appeal (“judge”) desires
          clarification of the errors complained of on appeal, the
          judge may enter an order directing the appellant to file of
          record in the trial court and serve on the judge a concise
          statement of the errors complained of on appeal
          (“Statement”).
              (1) Filing and service.--Appellant shall file of record
          the Statement and concurrently shall serve the judge.
          Filing of record and service on the judge shall be in person
          or by mail as provided in Pa.R.A.P. 121(a) and shall be
          complete on mailing if appellant obtains a United States
          Postal Service Form 3817, Certificate of Mailing, or other
          similar United States Postal Service form from which the
          date of deposit can be verified in compliance with the
          requirements set forth in Pa.R.A.P. 1112(c). Service on

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J-S68017-14


        parties shall be concurrent with filing and shall be by any
        means of service specified under Pa.R.A.P. 121(c).
            (2) Time for filing and service.--The judge shall allow
        the appellant at least 21 days from the date of the order’s
        entry on the docket for the filing and service of the
        Statement. Upon application of the appellant and for good
        cause shown, the judge may enlarge the time period
        initially specified or permit an amended or supplemental
        Statement to be filed. In extraordinary circumstances, the
        judge may allow for the filing of a Statement or amended
        or supplemental Statement nunc pro tunc.

                                    *     *    *

           (c) Remand.
           (1) An appellate court may remand in either a civil or
        criminal case for a determination as to whether a
        Statement had been filed and/or served or timely filed
        and/or served.

                                    *     *    *

           (3) If an appellant in a criminal case was ordered to file
        a Statement and failed to do so, such that the appellate
        court is convinced that counsel has been per se ineffective,
        the appellate court shall remand for the filing of a
        Statement nunc pro tunc and for the preparation and filing
        of an opinion by the judge.

Pa.R.A.P. 1925.

     Additionally,   we   note   that   the   Pennsylvania   Rules    of   Criminal

Procedure provide in relevant part:

        Rule 114. Orders and Court Notices: Filing; Service;
        and Docket Entries

        (A) Filing

        (1) All orders and court notices promptly shall be
        transmitted to the clerk of courts’ office for filing. Upon
        receipt in the clerk of courts’ office, the order or court


                                        -8-
J-S68017-14


       notice promptly shall be time stamped with the date of
       receipt.

       (2) All orders and court notices promptly shall be placed in
       the criminal case file.

       (B) Service

       (1) A copy of any order or court notice promptly shall be
       served on each party's attorney, or the party if
       unrepresented.

       (2) The clerk of courts shall serve the order or court
       notice, unless the president judge has promulgated a local
       rule designating service to be by the court or court
       administrator.

       (3) Methods of Service. Except as otherwise provided in
       Chapter 5 concerning notice of the preliminary hearing,
       service shall be:

         (a) in writing by

          (i) personal delivery to the party’s attorney or, if
          unrepresented, the party; or

          (ii) personal delivery to the party’s attorney’s employee
          at the attorney’s office; or

          (iii) mailing a copy to the party’s attorney or leaving a
          copy for the attorney at the attorney’s office; or

          (iv) in those judicial districts that maintain in the
          courthouse assigned boxes for counsel to receive
          service, when counsel has agreed to receive service by
          this method, leaving a copy for the party’s attorney in
          the box in the courthouse assigned to the attorney for
          service; or

          (v) sending a copy to an unrepresented party by
          certified, registered, or first class mail addressed to the
          party’s place of residence, business, or confinement; or




                                   -9-
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             (vi) sending a copy by facsimile transmission or other
             electronic means if the party’s attorney, or the party if
             unrepresented, has filed a written request for this
             method of service as provided in paragraph (B)(3)(c);
             or

             (vii) delivery to the party’s attorney, or the party if
             unrepresented, by carrier service; or

            (b) orally in open court on the record.


Pa.R.Crim.P. 114.

     In    Commonwealth         v.   Lord,        our   Supreme   Court   held   that

“[a]ppellants must comply whenever the trial court orders them to file a

Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any

issues not raised in a 1925(b) statement will be deemed waived.” 719 A.2d

306, 309 (1998). In Commonwealth v. Castillo, the Supreme Court re-

affirmed the bright line rule set forth in Lord that mandates strict

compliance with Rule 1925(b). 888 A.2d 775, 780 (Pa.2005). In Castillo,

the Court specifically voiced its disproval of “prior decisions of the

intermediate courts to the extent that they…created exceptions to Lord and

have addressed issues that should have been deemed waived.” Id.

     Regarding our compliance with Lord, this Court has noted:

          We have been strict in holding appellants to the dictates of
          [Lord] and its progeny. If we are going to do that, we
          should also be strict in requiring the trial court and clerk of
          courts to comply with the rules regarding notice of Rule
          1925(b) orders.

                                     *     *      *



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        The requirement that defendants be given notice of the
        need to file a Rule 1925(b) statement is not a mere
        technicality. If we are to find that defendants waived their
        constitutional rights, we must be sure that the clerk of the
        court did his or her job to advise the defendants that it
        was necessary to act.

Commonwealth v. Davis, 867 A.2d 585, 588 (Pa.Super.2005) (en banc).

See also Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc.,

88 A.3d 222, 224-26 (2014) (holding that failure by the prothonotary to

“give written notice of the entry of a court order and to note on the docket

that notice was given” will prevent waiver for timeliness pursuant to

Pa.R.A.P. 1925(b)).

     Instantly, Appellant filed a pro se notice of appeal, although he was

represented by counsel. The prothonotary sent Appellant written notice of

the trial court’s order pursuant to Rule 1925(b), but sent no such notice to

Appellant’s counsel. Because the prothonotary failed to give written notice

to Appellant’s counsel, Appellant’s issues will not be waived for failure to

comply with timeliness requirements of Rule 1925(b). See Davis, supra;

Pa.R.Crim.P. 114(B)(1). Thus, we address Appellant’s remaining issues.

     In his second and third issues, Appellant argues the trial court erred in

denying his suppression motion.     Specifically, Appellant claims the police

officers stopped him without reasonable suspicion or probable cause that he

had engaged in criminal activity.     Appellant complains that the officers




                                    - 11 -
J-S68017-14


should have advised him of his Miranda3 rights before obtaining his consent

to search his vehicle, and that his consent to the search of his vehicle was

coerced. Appellant concludes his federal and state constitutional rights have

been violated and that his judgment of sentence should be vacated.           We

disagree.

        As a preliminary matter, we observe that the trial court failed to enter

findings of fact and conclusions of law following the suppression hearing,

pursuant to Pennsylvania Rule of Criminal Procedure 581(I).4 “Where a trial

court fails to abide by Rule 581(I), however, this Court may look at the trial

court's Rule 1925(a) opinion to garner findings of fact and conclusions of

law.”       Commonwealth          v.   Stevenson,   832   A.2d   1123,   1126-27

(Pa.Super.2003) (citing Commonwealth v. Reppert, 814 A.2d 1196, 1200

(Pa.Super.2002)). See also Commonwealth v. Dutrieville, 932 A.2d 240

(2007).



____________________________________________


3
    Miranda v. Arizona, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966).
4
    The Pennsylvania Rules of Criminal Procedure provide in relevant part:

        At the conclusion of the hearing, the judge shall enter on the
        record a statement of findings of fact and conclusions of law as
        to whether the evidence was obtained in violation of the
        defendant's rights, or in violation of these rules or any statute,
        and shall make an order granting or denying the relief sought.

Pa.R.Crim.P. 581(I).



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J-S68017-14


      In the instant case, the trial court issued a Rule 1925(a) opinion that

adequately relates the court’s findings of fact and conclusions of law. Thus,

we are able to review Appellant’s issues.

      We review the denial of a suppression motion as follows:

         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.

         We 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.

Commonwealth v. Gillespie, ___ A.3d. ___, 2014 PA Super 245 (Oct. 27,

2014) (quoting Commonwealth v. Williams, 941 A.2d 14, 26–27

(Pa.Super.2008) (en banc ).

         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. Jones, 988 A.2d 649, 654 (Pa.2010) (internal

citations and quotation marks omitted).

      Initially, we observe that there are three types of interactions between

police officers and citizens.   Commonwealth v. Stevenson, 832 A.2d



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1123, 1126-27, (Pa.Super.2003).      “Interaction between citizens and police

officers, under search and seizure law, is varied and requires different levels

of justification depending upon the nature of the interaction and whether or

not the citizen is detained.” Id.

         Such interaction may be classified as a “mere encounter,”
         an “investigative detention,” or a “custodial detention.” A
         “mere encounter” can be any formal or informal interaction
         between an officer and a citizen, but will normally be an
         inquiry by the officer of a citizen. The hallmark of this
         interaction is that it carries no official compulsion to stop
         or respond.

         In contrast, an “investigative detention,” by implication,
         carries an official compulsion to stop and respond, but the
         detention is temporary, unless it results in the formation of
         probable cause for arrest, and does not possess the
         coercive conditions consistent with a formal arrest. Since
         this interaction has elements of official compulsion it
         requires “reasonable suspicion” of unlawful activity. In
         further contrast, a custodial detention occurs when the
         nature, duration and conditions of an investigative
         detention become so coercive as to be, practically
         speaking, the functional equivalent of an arrest.

         ‘The protection against unreasonable searches and
         seizures afforded by the Pennsylvania Constitution is
         broader than that under the Federal Constitution.’
         Commonwealth v. Jackson, 698 A.2d 571, 573
         (Pa.1997). However, ‘[i]n determining whether reasonable
         suspicion exists for a Terry stop, the inquiry is the same
         under either Article 1, Section 8 of the Pennsylvania
         Constitution or the Fourth Amendment of the United States
         Constitution.’ Commonwealth v. McClease, 750 A.2d
         320, 324 (Pa.Super.2000).

         To determine if an interaction rises to the level of an
         investigative detention, i.e., a Terry stop, the court must
         examine all the circumstances and determine whether
         police action would have made a reasonable person believe
         he was not free to go and was subject to the officer’s

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         orders. Commonwealth v. Sierra, 723 A.2d 644, 646
         ([Pa.]1999). An investigative detention, unlike a mere
         encounter, constitutes a seizure of a person and thus
         activates the protections of Article 1, Section 8 of the
         Pennsylvania     Constitution.       Commonwealth          v.
         Melendez, 676 A.2d 226, 229 ([Pa.]1996). To institute
         an investigative detention, an officer must have at least a
         reasonable suspicion that criminal activity is afoot. Sierra,
         supra at 176, 723 A.2d at 647. Reasonable suspicion
         requires a finding that based on the available facts, a
         person of reasonable caution would believe the intrusion
         was appropriate. See Commonwealth v. Zhahir, 751
         A.2d 1153 (Pa.2000).

Commonwealth v. Stevenson, 832 A.2d 1123, 1127-29 (Pa.Super.2003).

      Regarding custodial interrogations:

         The test for determining whether a suspect is being
         subjected to custodial interrogation so as to necessitate
         Miranda warnings is whether he 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 such interrogation.

         Said another way, police detentions 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
         arrest.

Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa.Super.1999) (internal

citations omitted).   Generally, a traffic stop is considered 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.”   Id.   Because “an ordinary traffic stop is

typically brief in duration and occurs in public view, such a stop is not

custodial for Miranda purposes.” Id.

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       Police may stop a motor vehicle if an officer observes a traffic code

violation, even if it is a minor offense. Commonwealth v. Chase, 960 A.2d

108, 113 (Pa.2008); see also 75 Pa.C.S. § 6308(b).5 The Vehicle Code

provides that every vehicle “shall be equipped with a rear lighting system”

including a “license plate light.” 75 Pa.C.S. § 4303(b).

       Instantly, the police officers stopped Appellant’s vehicle after they

observed that Appellant’s registration light was not lit, in violation of the

Vehicle Code. Thus, the initial stop was permissible. See Chase, supra.

       Because the police lawfully stopped Appellant, we must now decide

whether Appellant voluntarily consented to the search of his vehicle.          See

Commonwealth v. Reid, 811 A.2d 530, 545 (Pa.2002) (“If the court finds

that…a lawful interaction preceded an alleged consent, the court must then

determine whether the prosecution has adequately proven that the consent

was made voluntarily and was not the product of duress or coercion”).
____________________________________________


5
    The Vehicle Code provides:

       (b) Authority of police officer.--Whenever a police officer is
       engaged in a systematic program of checking vehicles or drivers
       or has reasonable suspicion that a violation of this title is
       occurring or has occurred, he may stop a vehicle, upon request
       or signal, for the purpose of checking the vehicle’s registration,
       proof of financial responsibility, vehicle identification number or
       engine number or the driver’s license, or to secure such other
       information as the officer may reasonably believe to be
       necessary to enforce the provisions of this title.

75 Pa.C.S. § 6308.




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      A warrantless search is:

     unreasonable and therefore constitutionally impermissible,
     unless an established exception applies.          One such
     exception is consent, voluntarily given. The central Fourth
     Amendment inquiries in consent cases entail assessment of
     the constitutional validity of the citizen/police encounter
     giving rise to the consent; and, ultimately, the
     voluntariness of consent. Where the underlying encounter
     is found to be lawful, voluntariness becomes the exclusive
     focus.
Commonwealth v. Kemp, 961 A.2d 1247, 1260-61 (Pa.Super.2008)

(internal citations omitted). Regarding the voluntariness of consent given,

this Court has further explained:

         In connection with [the inquiry into the voluntariness of a
         consent given pursuant to a lawful encounter], 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…. [W]hile 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 (including age, intelligence and capacity to
         exercise free will), are to be taken into account….

         Since both the tests for voluntariness and for a seizure
         centrally entail an examination of the objective
         circumstances surrounding the police/citizen encounter to
         determine whether there was a show of authority that
         would impact upon a reasonable citizen-subject's
         perspective, there is a substantial, necessary overlap in
         the analyses.




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Kemp, 961 A.2d at 1261. Further, the Court outlined a non-exclusive list of

factors pertinent to determining whether a defendant voluntarily consented

to a search. Id. These factors include:

      1) the presence or absence of police excesses; 2) whether there
      was physical contact; 3) whether police directed the citizen's
      movements; 4) police demeanor and manner of expression; 5)
      the location of the interdiction; 6) the content of the questions
      and statements; 7) the existence and character of the initial
      investigative detention, including its degree of coerciveness; 8)
      whether the person has been told that he is free to leave; and 9)
      whether the citizen has been informed that he is not required to
      consent to the search.

Id.

      Here, the encounter between police officers and Appellant never rose

to the level of a custodial interrogation. After the officers stopped Appellant,

one of the officers asked him for his license.       Appellant, who was very

nervous and jittery, was unable to produce a valid license, but handed the

officer a state ID from North Carolina. A subsequent search of the system

revealed that Appellant had a suspended driver’s license. The officer then

asked Appellant to step outside of the vehicle and patted him down for

officer safety. The officers advised Appellant that they intended to tow his

car because he did not have a valid license to operate the vehicle. One of

the officers asked Appellant if he had any weapons in the car, and Appellant

stated that he did not have any weapons. The officer then asked Appellant if

he could search the vehicle and Appellant stated that the officer had his

permission to search the vehicle.

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J-S68017-14


      Although the officers did not tell Appellant that he was free to leave,

the detention did not rise to the functional equivalent of arrest. The officers

did not handcuff Appellant or threaten him in any way. They merely asked

Appellant if he would consent to a search of his vehicle. Thus, the encounter

did not rise to the level of a custodial interrogation requiring Miranda

warnings.   Further, the officer’s behavior was not coercive in any way.

Therefore, Appellant’s claims that state and federal constitutional rights were

violated by a coerced consensual search of his vehicle are meritless.

      In his final issue, Appellant argues there was insufficient evidence to

establish that he was in constructive possession of the firearm recovered

from underneath the passenger seat of his vehicle. Appellant concludes the

court erred in determining that he possessed the gun and that his judgment

of sentence should be vacated. We disagree.

      When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder. In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.        Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter
         of law no probability of fact may be drawn from the
         combined circumstances. The Commonwealth may sustain

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J-S68017-14


         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the [trier] of fact
         while passing upon the credibility of witnesses and the
         weight of the evidence produced, is free to believe all, part
         or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874

A.2d 108, 120-21 (Pa.Super.2005)).

      The offense of possession of a firearm prohibited is defined by statute

as follows:

         § 6105. Persons not to possess, use, manufacture,
         control, sell or transfer firearms

              (a) Offense defined.--

               (1) A person who has been convicted of an offense
               enumerated in subsection (b), within or without this
               Commonwealth, regardless of the length of sentence or
               whose conduct meets the criteria in subsection (c) shall
               not possess, use, control, sell, transfer or manufacture
               or obtain a license to possess, use, control, sell,
               transfer  or    manufacture       a   firearm   in   this
               Commonwealth.

18 Pa.C.S. § 6105. The Commonwealth may prove possession through

proof of constructive possession:

         Constructive possession is a legal fiction, a pragmatic
         construct to deal with the realities of criminal law
         enforcement.   Constructive possession is an inference
         arising from a set of facts that possession of the
         contraband was more likely than not. We have defined
         constructive possession as ‘conscious dominion.’      We
         subsequently defined ‘conscious dominion’ as ‘the power to

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J-S68017-14


         control the contraband and the intent to exercise that
         control.’ To aid application, we have held that constructive
         possession may be established by the totality of the
         circumstances.

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa.Super.2004). “As with

any other element of a crime, constructive possession may be proven by

circumstantial evidence.” Commonwealth v. Haskins, 677 A.2d 328, 330

(Pa.Super.1996). “The intent to exercise conscious dominion can be inferred

from the totality of the circumstances.” Commonwealth v. Kirkland, 831

A.2d 607, 610 (Pa.Super.2003).

      Here, the Commonwealth presented testimonial evidence to show that

Appellant was the sole occupant of the vehicle at the time of the traffic stop,

that officers observed Appellant reaching over to the passenger side of the

vehicle, where the weapon was found, and that Appellant seemed nervous

and jittery. Police officers testified that when they told Appellant that they

found a firearm in the vehicle, Appellant told them that he had the firearm

“for protection.”   Thus, the evidence presented at Appellant’s trial was

sufficient for the court to find all elements of the crime beyond a reasonable

doubt. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




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J-S68017-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2014




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