J-A02003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DOMINIQUE PERRY

                            Appellant                 No. 3140 EDA 2015


          Appeal from the Judgment of Sentence September 10, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010803-2014


BEFORE: OTT, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                FILED MARCH 20, 2017

        Dominique Perry appeals from the judgment of sentence imposed on

September 10, 2015, in the Philadelphia County Court of Common Pleas.

The trial court sentenced Perry to an aggregate term of 11½ to 23 months’

imprisonment, followed by two years’ probation, after he was found guilty of

carrying a firearm without a license, carrying a firearm on public streets, and

possession of a small amount of marijuana.1 On appeal, Perry argues the

trial court erred in denying his pretrial motion to suppress physical evidence

and a statement. For the reasons below, we affirm.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S. §§ 6106(a)(1) and 6108, and 35 P.S. § 780-113(a)(31),
respectively.
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     The   facts   underlying   Perry’s   arrest,   as   developed   during   the

suppression hearing, are summarized by the trial court as follows:

           Philadelphia Police Officer Sergeant Daniel Ayres, assigned
     to the 19th District, testified that on September 7, 2014 at
     approximately 1:00 a.m. in the area of Washington Lane and
     Mansfield Avenue in … Philadelphia, he observed a Kia K900
     bearing a Maryland tag … traveling eastbound on Washington
     Lane.    Officer Ayres testified that the vehicle in question
     disregarded the red signal at Mansfield Avenue. In response,
     Officer Ayres immediately activated his lights and sirens, pulled
     the vehicle over, and conducted a vehicle investigation on the
     1600 block of Washington Lane. The vehicle in question was
     operated by [Perry] with no passengers present.

           Officer Ayres testified that the vehicle pulled over right
     away. Officer Ayres then approached the vehicle and asked
     [Perry] for his license, registration, and proof of insurance.
     Officer Ayres testified that [Perry] was extremely nervous as he
     was gathering his paperwork. Specifically, Officer Ayres stated
     that he observed [Perry’s] arms shaking. Officer Ayres stated
     that during this time he observed a license to carry a firearm in
     [Perry’s] possession as [Perry] was going through his paperwork
     in the vehicle.     At this particular time Officer Ayres asked
     [Perry], “Do you have any weapons on you?” Officer Ayres
     stated that [Perry] hesitated for a brief three (3) to five (5)
     seconds before responding, “No.” Officer Ayres testified that
     based on [Perry’s] extreme nervousness in addition to the
     hesitation when he asked [Perry] about the firearm and the
     permit to carry, Officer Ayres ordered [Perry] to exit his vehicle
     in order to conduct a frisk for weapons on [Perry’s] person.

           Officer Ayres testified that [Perry] complied and stepped
     out of his vehicle. Officer Ayres then asked [Perry] to place his
     hands on the vehicle. Officer Ayres stated that as he was about
     to frisk and pat down [Perry] to check for weapons on his
     person, [Perry] disclosed that he had a gun in the center
     console. Officer Ayres then immediately secured [Perry] and
     detained him in the back of his patrol vehicle and explained to
     the court, “I was by myself.” Officer Ayres thereafter went back
     to the center console of [Perry’s] vehicle where he discovered a
     … nine-millimeter [handgun] loaded with 18 live rounds.


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           Additionally, Officer Ayres testified that there was a clear
     glass jar in the center console which contained a clear sandwich
     bag with a loose amount of marijuana. Officer Ayres removed
     both the firearm and marijuana from the vehicle. [The officer
     then] returned to his vehicle and conducted a search of [Perry’s]
     license to carry a firearm on his computer in his vehicle.
     [Perry’s] license to carry … came back as expired as of
     November 5, 2013 almost a year prior.

           Officer Ayres testified that [Perry] was placed into custody
     for the possession of the firearm and the narcotics. A further
     search of [Perry’s] vehicle was conducted in which five (5) clear,
     glass jars with white lids of alleged marijuana inside were
     discovered in the backseat of the car. All evidence was placed
     on Philadelphia property receipts. Officer Ayres testified that he
     was in full uniform and in a marked vehicle during the
     commission of the traffic stop.

           Officer Ayres testified again that [Perry] stated that he had
     a gun in the center console of the vehicle right before he was
     pat[ted] down by the officer. Officer Ayres stated that he had
     asked [Perry] if he had any weapons on him as the officer took
     [Perry] out of the vehicle. Officer Ayres explained that he was
     right next to [Perry] as he was stepping out of the vehicle.

                                   ****

            On cross-examination, Officer Ayres testified that other
     officers came to assist him but could not recall the exact time.
     Officer Ayres stated that he believed that other officers arrived
     after the recovery of the firearm as he recalled that [Perry] was
     in handcuffs in a police vehicle. Officer Ayers repeated that
     [Perry] ran a red light and pulled over on his command during
     the traffic stop. Officer Ayres stated that he approached on the
     driver side, asked [Perry] for his paperwork, and at that point
     did not see any contraband. …

           Officer Ayres testified that he then noticed [Perry’s] license
     to carry as [Perry] was going through his paperwork and based
     on that he asked if [Perry] had a firearm on him. Officer Ayres
     stated that [Perry] paused for three to five (3-5) seconds and
     then turned around and said no. Officer Ayres then asked
     [Perry] to step out of the vehicle and decided to do a frisk of
     [Perry] to make sure he did not have a weapon on him. Officer
     Ayres stated:


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        “I don’t believe I actually had a chance to start patting him
        down. When I was asking him – as he’s coming out, Are
        you sure you don’t have any weapons on you, I might
        have been telling him, your (sic) shaking, your arms are
        shaking. Then that’s when he said, it’s a gun in the car.”

     Officer Ayres further explained his reasoning for the pat down:

        “The reason I was patting him down is because I was
        conducting a traffic stop. I wanted to make sure he wasn’t
        armed while we were having – while we were standing
        there during the traffic stop because he had a permit to
        carry. And he was extremely nervous.”

     Officer Ayres stated that he informed [Perry] that he was going
     to conduct a frisk for weapons. At the moment that Officer
     Ayres was about to pat [Perry] down, [Perry] stated “there’s a
     gun in the center console.” …

           On redirect examination, Officer Ayres testified that he
     never actually frisked [Perry]. Officer Ayres stated that once
     [Perry] stated that there was a gun in the center console he
     secured [Perry]. Officer Ayres explained that he was by himself
     at that time. As such, he secured [Perry] quickly and placed him
     in the police vehicle so he could “recover that gun.”

            [Perry] testified that on September 7, 2014 at
     approximately 1:00 a.m. he was on his way home from work
     driving a Kia. [Perry] stated that he worked at Avis at the
     Philadelphia International Airport, a rental car company. [Perry]
     affirmed that he had a gun in the center console and at some
     point he had a license to carry a firearm. [Perry] explained that
     he had a license to carry for protection because he transports
     money and paperwork for the company back and forth [to]
     different locations late at night. [Perry] stated that he had his
     license to carry and when he was ordered to step out of the
     vehicle, he placed it in a cup holder. [Perry] could not recall if
     the officer patted him down. [Perry] stated that the officer then
     at some point searched [Perry’s] car and recovered a firearm
     and marijuana.

           On cross-examination, [Perry] testified that the officer
     searched the vehicle before [Perry] stated that he had a firearm
     in the center console. [Perry] affirmed that the officer asked
     him for his license and registration and then asked if [Perry] had
     any weapons on him. [Perry] affirmed that he initially stated no

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J-A02003-17


     to the officer. He then affirmed that he was asked to step out of
     the vehicle and asked again if he had any weapons on him.
     [Perry] asserted that Officer Ayres began to search the vehicle
     while [Perry] was outside of the car. He could not recall if he
     was handcuffed. When asked if he said anything to the officer,
     [Perry] replied, “Not Really.” He stated there was a gun [and]
     marijuana in the center console but could not recall if there was
     marijuana in the back seat. [Perry] acknowledged that his
     license to carry was expired.

            On redirect, [Perry] furthermore testified that other
     officers arrived on the scene[] before any firearm or narcotic was
     recovered.     [Perry] testified that Officer Ayres began and
     initiated his search while [Perry] was standing outside of his
     vehicle. When asked if he was handcuffed, [Perry] stated he
     could not recall. [Perry] stated that the arriving officers “hopped
     out of the vehicle” but could not recall what the other officers
     were doing.

Trial Court Opinion, 6/17/2016, at 2-7 (record citations and footnote

omitted; emphasis supplied).

     Perry was subsequently charged with carrying a firearm without a

license, carrying a firearm on public streets, and possession of a small

amount of marijuana.     On October 14, 2014, he filed a pretrial motion to

suppress both the evidence recovered from his vehicle and his statement to

Officer Ayres.   Following a suppression hearing on April 6, 2015, the trial

court initially granted Perry’s motion. The Commonwealth then filed a timely

motion for reconsideration, which the court granted.     Following a second

hearing on June 3, 2015, the trial court denied Perry’s motion to suppress.

     The case proceeded to a non-jury trial on June 25, 2015, at which time

the parties incorporated the testimony from the suppression hearing.       The

trial court found Perry guilty of all charges. On September 10, 2015, Perry



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was sentenced to a term of 11½ to 23 months’ imprisonment followed by

two years’ probation on the charge of carrying a firearm without a license,

and a concurrent term of one-year probation on the charge of carrying a

firearm on public streets.        No further penalty was imposed on the drug

charge. This timely appeal followed.2

       Perry raises two issues on appeal, both of which challenge the trial

court’s ruling denying his pretrial suppression motion.      Our standard of

review is well-settled:

       [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.



____________________________________________


2
  Although the trial court did not direct Perry to file concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), Perry,
nevertheless, filed a concise statement on October 27, 2015, and an
amended concise statement on December 29, 2015.



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Commonwealth v. Mason, 130 A.3d 148, 151–152 (Pa. Super. 2015),

appeal denied, 138 A.3d 3 (Pa. 2016).

       In his first issue, Perry contends the trial court erred in denying his

motion to suppress both his statement to Officer Ayres and the evidence

recovered from his vehicle because the officer subjected him to an unlawful

frisk. See Perry’s Brief at 10. Perry concedes “he was lawfully stopped for a

Motor Vehicle Code violation and that [Officer] Ayres was permitted … to ask

[him] to step out of his vehicle.” Id., citing Pennsylvania v. Mimms, 434

U.S. 106 (1977).3       However, he argues that because Officer Ayers had no

reasonable basis to believe he was armed and dangerous, the officer had no

right to frisk him, and the statement he made during “the unlawful frisk

process” should have been suppressed. Perry’s Brief at 10.

       It is well-settled that a “forcible stop of a motor vehicle by the police

constitutes a second-level seizure, or ‘investigative detention,’ triggering the

constitutional protections of the Fourth Amendment.”       Commonwealth v.

Clinton, 905 A.2d 1026, 1030 (Pa. Super. 2006) (quotation omitted),

appeal denied, 934 A.2d 71 (Pa. 2007). As noted above, during a routine

traffic stop, a police officer may order the driver out of the vehicle for the



____________________________________________


3
  Indeed, “an officer conducting a valid traffic stop may order the occupants
of a vehicle to alight to assure his own safety.” Commonwealth v.
Reppert, 814 A.2d 1196, 1202 (Pa. Super. 2002) (en banc) (citations
omitted).



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officer’s safety. See Reppert, supra. However, before the officer may frisk

a driver, the Fourth Amendment requires another level of protection.

         “If, during the course of a valid investigatory stop, an officer
        observes unusual and suspicious conduct on the part of the
        individual which leads him to reasonably believe that the suspect
        may be armed and dangerous, the officer may conduct a pat-
        down of the suspect’s outer garments for weapons.”
        Commonwealth v. E.M./Hall, 558 Pa. 16, 735 A.2d 654, 659
        (1999). In order to establish reasonable suspicion, the police
        officer must articulate specific facts from which he could
        reasonably infer that the individual was armed and dangerous.
        See Commonwealth v. Gray, 896 A.2d 601, 606 (Pa. Super.
        2006). When assessing the validity of a Terry[4] stop, we
        examine the totality of the circumstances, see id., giving due
        consideration to the reasonable inferences that the officer can
        draw from the facts in light of his experience, while disregarding
        any unparticularized suspicion or hunch. See Commonwealth
        v. Zhahir, 561 Pa. 545, 751 A.2d 1153, 1158 (2000).

Commonwealth v. Wilson, 927 A.2d 279, 284 (Pa. Super. 2007).

        Here, the trial court found Officer Ayres possessed the requisite

reasonable suspicion that Perry might be armed and dangerous. The court

opined:

        Officer Ayres not only observed visible, extreme nervousness
        from [Perry] during the duration of the traffic stop, but
        furthermore observed other salient factors in warranting
        reasonable suspicion. Most markedly, Officer Ayres testified that
        he observed in [Perry’s] possession a license to carry a firearm.
        Officer Ayres testified that he observed the license to carry as
        [Perry] was going through his paperwork in a clearly distressed,
        visibly nervous state causing his arms to shake. Given the
        license to carry and [Perry’s] overt behavior, Officer Ayres
        reasonably asked [Perry] whether or not he had a firearm on
        him. [Perry] suspiciously paused for three to five (3-5) seconds
____________________________________________


4
    Terry v. Ohio, 392 U.S. 1 (1968).



                                           -8-
J-A02003-17


      before responding no, according to Officer Ayres. Moreover,
      Officer Ayres was conducting the traffic stop at a late hour
      around 1:00 a.m. with no partner or back-up for safety or
      assistance.

Trial Court Opinion, 6/17/2016, at 13-14.

      Perry,   nevertheless,    contends     the   facts   presented   during   the

suppression hearing do not support the court’s findings. Rather, he argues

the facts in the present case are “remarkably similar” to those in the en banc

decision, Commonwealth v. Cartagena, 63 A.3d 294 (Pa. Super. 2013)

(en banc), appeal denied, 70 A.3d 808 (Pa. 2013).

      In Cartagena, two officers pulled over the defendant’s car at 1:50

a.m. because the windows were heavily tinted, a violation of the Motor

Vehicle Code. Id. at 296. Although the defendant did not respond to the

officers’ initial request to lower his window, he did upon their second

request.   See id.    One of the officers testified that after he asked the

defendant for his license and registration, the defendant “opened his center

console, looked inside ‘like he was going to retrieve paperwork out of

there[,] […] looked stunned and then closed it.” Id. (citation omitted). The

officer described the defendant as “‘extremely nervous, […] [t]ripping over

his words and shaking.’”       Id. (citation omitted).     Although the defendant

provided the police officers with the requested paperwork, they asked him to

step out of the vehicle because of his “nervousness,” and conducted a pat-

down search which revealed no results. Id. at 297. However, one of the

officers proceeded to conduct a cursory search of the driver’s seat and

center console, and recovered a firearm. See id.

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     The defendant, who was charged with several firearms violations, filed

a motion to suppress the evidence recovered during the search.     The trial

court granted the motion. Upon the Commonwealth’s appeal, the en banc

panel concluded that “[b]ased on the evidence of record, … the totality of

circumstances, taken together, fall short of reasonable suspicion to conduct

the search at issue in this case.” Id. at 304 (footnote omitted). The panel

emphasized the only factors supporting the search were: “(1) the stop

occurred at night, (2) [the defendant’s] windows were tinted, and (3) [the

defendant] appeared to be nervous.” Id. The panel opined:

     Without more, the nervousness of a driver of a vehicle during a
     late night stop for suspected violation of the tinted window
     prohibition does not suffice to allow police to conduct a Terry
     frisk and a protective weapons search of a vehicle. A contrary
     ruling would serve to essentially eliminate a motor vehicle
     operator’s protection against unreasonable searches and
     seizures guaranteed by the Fourth Amendment of the United
     States Constitution and Article I, Section 8 of the Pennsylvania
     Constitution.

           Absent some combination of evidence to give context to
     the encounter—for example, testimony that the stop occurred in
     a high-crime area; testimony regarding [the officer’s] training
     and experience and its role in formulating a reasonable suspicion
     that [the defendant] was armed and dangerous; and/or
     testimony illuminating the length of the delay in [the defendant]
     lowering his windows—we cannot overturn the suppression
     court’s decision to suppress the gun found during the search of
     the passenger compartment of the vehicle. To do so would
     require an unwarranted expansion of police officers’ ability to
     conduct Terry frisks and protective vehicle searches, and a
     concomitant erosion of the rights of citizens of Pennsylvania to
     be free of unreasonable search and seizure.




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Id. at 306. Compare with Commonwealth v. Buchert, 68 A.3d 911 (Pa.

Super. 2013), (distinguishing Cartagena and finding officer possessed

reasonable suspicion to search area within passenger’s immediate control

when passenger was extremely nervous during late night stop of vehicle for

broken tail light, and officer witnessed passenger make furtive movements

before approach), appeal denied, 83 A.3d 413 (Pa. 2014).

     Relying on Cartagena, Perry maintains the record in the present case

is similarly lacking in evidence supporting a reasonable belief that he may

have been armed and dangerous.       See Perry’s Brief at 16.   To that end,

Perry emphasizes that, in the present case, there was: (1) no report of

criminal activity; (2) no testimony that he made any furtive movements

while in the car; (3) no evidence that the stop occurred in a high crime area;

(4) no testimony from Officer Ayres that he was fearful during the stop; and

(5) no observation of any weapons or bulges after Perry exited the car “that

would cause the [officer] to reasonably disbelieve [Perry] about the presence

of a gun.” Id. at 14.

     However, in underscoring the evidence that was not present in the

case sub judice, Perry fails to acknowledge the key factor that supports

Officer Ayres’ reasonable suspicion – Perry possessed a license to carry a

firearm.   This fact, coupled with the late night stop by an officer acting




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J-A02003-17



alone,5 Perry’s “extreme nervousness,” as well as Perry’s hesitation when

the officer first asked if he had “any weapons” on him, provided Officer

Ayres with reasonable suspicion to conduct a Terry frisk.6            Moreover, it

bears emphasis that Perry told Officer Ayres about the firearm in the center

console before the officer physically began to frisk him.                Unlike in

Cartagena, where the initial frisk yielded no results but the officers

proceeded to search the car anyway, here, Officer Ayres had not yet initiated

the frisk when Perry told the officer about the gun.

        Accordingly, because we conclude Officer Ayres had reasonable

suspicion to believe Perry might be armed and dangerous, we find the

officer’s initiation of the frisk process was proper.           Therefore, Perry’s

statement to the officer during that process, in which he acknowledged he

had a gun in the center console, was proper and supported the officer’s

limited search to retrieve the gun. Consequently, Perry’s first issue fails.

        In his second issue, Perry argues, alternatively, that the court erred in

failing to suppress his statement to Officer Ayres because it was obtained in

violation of his Miranda7 rights.         See Perry’s Brief at 20. Specifically, he

contends Officer Ayres subjected him to a custodial interrogation when,
____________________________________________


5
  Officer Ayres testified his backup did not arrive until after he had recovered
the firearm. See N.T., 4/6/2015 at 13.
6
    N.T., 4/6/2015, at 7.
7
    Miranda v. Arizona, 384 U.S. 436 (1966).



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during the frisk process, the officer asked him if he had a weapon. See id.

at 22. Perry states:

     In the present case, there can be no question that [Perry] was
     “deprived of his freedom of action or movement in a significant
     way” at the time he responded to [Officer] Ayres’ second
     question about the presence of any guns. [Perry] was stopped
     for a traffic violation. He was directed to step out of his car. He
     was ordered to place his hands on the car and was in the
     process of being frisked when he responded to the [officer’s]
     question and told him there was a gun in the center console.

Id. at 21-22. Because he was not provided with his Miranda warnings prior

to the questioning, Perry claims his statement, and the gun recovered as a

result thereof, should be suppressed.

      Preliminarily, we note the three levels of interaction between the

police and citizens are:      (1) a mere encounter, (2) an investigative

detention, and (3) a custodial detention. Clinton, supra, 905 A.2d at 1030.

Miranda warnings are only required before an officer conducts a custodial

interrogation. Id. at 1032.

     Custodial interrogation has been defined as questioning initiated
     by the police after a person has been taken into custody or
     otherwise deprived of his or her freedom of action in any
     significant way. Further, an “interrogation” occurs when the
     police “should know that their words or actions are reasonably
     likely to elicit an incriminating response from the suspect.”

Id. (internal citations omitted).   Further, as noted supra, a vehicle stop

generally constitutes an investigative detention, rather than a custodial

detention. Id. at 1030. However, an investigative detention may develop




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into a custodial detention when “the detention becomes so coercive that it is

the functional equivalent of an arrest.” Id. at 1032.

       The numerous factors used to determine whether a detention
       has evolved into an arrest include the cause for the detention,
       the 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 the suspicions of the police.

Id. (citation omitted).

       In the present case, the trial court found Miranda warnings were not

required. The court opined:

       [G]iven all the circumstances surrounding the time when [Perry]
       made his statement, Miranda warnings were not required from
       Officer Ayres as [Perry] was not in custodial detention or facing
       custodial interrogation during the duration of the traffic stop.
       Like in Clinton, the investigatory traffic stop had not concluded
       when [Perry] made his statement. At the time[] when [Perry]
       made his incriminating statement, revealing that there was a
       gun located in the center console of his vehicle, no driver’s
       license, registration, or proof of insurance was provided to
       Officer Ayres.[8] Additionally … [Perry] had not been transported
       against his will when the incriminating statement was made.

              Furthermore, no physical restrains were placed on [Perry]
       when he made his statement. Moreover, Officer Ayres did not
       threaten [Perry] with any force throughout the course of the
       traffic stop. Most markedly, Officer Ayres’ questions, “Do you
       have any weapons on you?,” in no way threatened, demanded,
       deceived or tricked [Perry] into incriminating himself, nor did
____________________________________________


8
 Upon our review of the record, it is unclear whether or not Perry provided
Officer Ayres with his paperwork before the officer ordered him out of the
vehicle. Nevertheless, as discussed infra, it is evident the initial stop had
not concluded at the time Perry told the officer that he had a gun in the car.




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J-A02003-17


       Officer Ayres[] purposely word his question in an attempt to
       elicit a likely incriminating response from [Perry].          Lastly,
       [Perry’s] incriminating statement was not made during or after a
       physical frisk but rather just prior to any physical frisk occurring.

Trial Court Opinion, 6/17/2016, at 16-17 (record citations omitted).

       Our review of the record supports the trial court’s findings.            Officer

Ayres testified that after stopping Perry’s vehicle, he approached and asked

Perry for his license and registration.        See N.T., 4/6/2015, at 7.        Officer

Ayres described Perry as “extremely nervous” and stated his “arms were

shaking.” Id. While Perry was going through his paperwork, Officer Ayres

observed a license to carry a firearm.9            See id.   At that point, the officer

asked Perry, “Do you have any weapons on you?”                     Id.   Officer Ayres

testified that there was “a brief three to five-second hesitation, at which

point [Perry] stated no.”        Id.    Based on Perry’s hesitation and extreme

nervousness, Officer Ayres asked Perry to “step out of the car, just to

conduct a frisk of him for weapons [.]” Id. Officer Ayres explained that as

he was taking Perry out of the car – and before he conducted the frisk – he

asked again if Perry had a weapon on him.               See id. at 9.    Under cross-

examination, the officer elaborated:

       I don’t believe I actually had a chance to start patting him down.
       When I was asking him – as he’s coming out, Are you sure you
____________________________________________


9
   Officer Ayres did not learn until after he secured the weapon that Perry’s
license to carry had expired. See N.T., 4/6/2015, at 20. He explained that
if the license had been valid, he would have “just held onto the gun until
[he] could finish [the] stop.” Id. at 21.




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       don’t have any weapons on you, I might have been telling him,
       your (sic) shaking, your arms are shaking. Then that’s when he
       said, it’s a gun in the car.

Id. at 16.10

       Therefore, we agree Perry was not subject to a custodial interrogation

the second time Officer Ayres asked him if he had a gun.         The question

occurred during a valid traffic stop, and before a lawful frisk for weapons. It

is evident from the testimony that the second question was posed shortly

after the stop, while the officer was still investigating the initial motor

vehicle violation. Compare Commonwealth v. Tam Thanh Nguyen, 116

A.3d 657, 667 (Pa. Super. 2015) (Miranda warnings required when “[a]fter

ending the interaction based on the traffic violation, … [the state trooper]

initiated a second round of questioning with the driver.”).     Perry was not

restrained, transported against his will, or threatened at the time the officer

asked him if he was sure he had no weapons.          Accordingly, because we

agree Perry was not subject to a custodial detention at the time he made the

incriminating statement, no Miranda warnings were required before the

officer’s question.11
____________________________________________


10
   Under redirect, Officer Ayres repeated that he “never actually frisked”
Perry. Id. at 20. Rather, once Perry stated that he had a gun in the car,
Officer Ayres “secured him real quick and placed him in the [patrol] car, so
[he] could recover that gun.” Id. at 20-21.
11
  We note that “[i]n order to trigger the safeguards of Miranda, there must
be both custody and interrogation.” Commonwealth v. Cruz, 71 A.3d 998,
1003 (Pa. Super. 2013) (quotation omitted), appeal denied, 81 A.3d 75 (Pa.
2013). Because we find Perry was not in “custody” at the time of his
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J-A02003-17



      Accordingly, we conclude the trial court did not err in denying Perry’s

pretrial suppression motion, and we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2017




                       _______________________
(Footnote Continued)

statement, we need not determine whether he was subject to an
“interrogation.”




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