J-S37042-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellant               :
                                           :
              v.                           :
                                           :
JAMEL FLUKER                               :           No. 1839 MDA 2016

                Appeal from the Order entered October 17, 2016
                 in the Court of Common Pleas of Berks County,
               Criminal Division, No(s): CP-06-CR-0001609-2014

BEFORE: STABILE, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED JULY 17, 2017

      The Commonwealth of Pennsylvania appeals from the Order granting

the Motion to suppress evidence filed by Jamel Fluker (“Fluker”). We affirm.

      The suppression court set forth the relevant facts underlying this appeal

as follows:

            On July 30, 2013, [Reading Police] Officers arrived at 645
      North Front Street, Reading, Berks County, Pennsylvania[,] to
      assist Children and Youth Services workers, who were taking
      custody of several children. Officers were notified that [] Fluker,
      … [a] resident of the home [and the father of some of the
      children], had an outstanding bench warrant. When the officers
      arrived at the scene, [Fluker] was not present.

             [Fluker] subsequently did arrive, and an officer asked him
      his name. When [Fluker] stated his name, he was placed in
      handcuffs.[1]    An officer then asked to have the warrant
      confirmed. While awaiting confirmation, Officer [Joseph] Ring
      [(“Officer Ring”)] testified that [Fluker] told him that he had crack
      cocaine on his person. There was no testimony presented by the
      Commonwealth of any question asked to elicit this statement. []


1
 Notably, the police did not inform Fluker of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966), and its progeny.
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        N.T.[,] pp. 9-10, 8/1/2016. The cocaine was then retrieved from
        [Fluker’s] left pocket, and [Fluker] was placed in the police wagon
        to await police transport. However, the bench warrant could not
        be confirmed, and [Fluker] was released approximately thirty []
        minutes later.

              [Fluker] testified that, after he was handcuffed, [] Officer
        [Ring] asked him if he had anything on his person. N.T.[,] pp.
        36-37, 8/1/2016. [Fluker] stated that he did, and the crack
        cocaine was removed. Id. [Fluker] further testified that he was
        in the police wagon for approximately an hour and a half before
        he was released. Id.

Suppression Court Opinion, 2/1/17, at 2 (footnote added).

        In December 2013, the Commonwealth charged Fluker with one count

of    possession   of    a      controlled   substance.2      Following      several   delays

(attributable   to,     inter    alia,   Fluker’s   application   to   the   Berks     County

Intermediate Punishment Program, and its eventual rejection of Fluker’s

application), on April 15, 2016, Fluker filed an Omnibus Pretrial Motion (“the

OPT Motion”).      Therein, Fluker sought suppression of the narcotics (and his

inculpatory statement) as the fruit of an unlawful custodial detention wherein

the police did not inform him of his Miranda rights. The suppression court

scheduled the matter for a suppression hearing (hereinafter “the OPT

Hearing”) on April 25, 2016.3 Fluker failed to appear at the OPT Hearing, in

response to which the suppression court dismissed the OPT Motion and

authorized the issuance of a bench warrant if Fluker did not return to the



2
    35 P.S. § 780-113(a)(16).
3
 The suppression court later stated that “the [] OPT [H]earing was scheduled
on short notice.” Suppression Court Opinion, 2/1/17, at 6.


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jurisdiction within one week. Four days later, Fluker appeared to address the

bench warrant, at which time the suppression court rescinded it.

      On May 12, 2016, Fluker filed a Motion to relist the OPT Motion (“the

Motion to Relist”). Therein, Fluker asserted that his failure to appear at the

OPT Hearing was unavoidable because he was outside of the jurisdiction with

a group of people, on a job for his employer that ran over schedule, and

unable to return on his own due to his dependence upon the group’s

transportation. Following a hearing on the Motion to Relist, held on May 19,

2016 (“the Motion to Relist Hearing”), the suppression court relisted the OPT

Motion for a pretrial hearing, and ordered Fluker to pay $400 to reimburse the

Commonwealth and its witnesses for his failure to appear at the OPT Hearing.

      At the relisted suppression hearing on August 1, 2016, Officer Ring,

Fluker, and two other police officers involved in the July 30, 2013 incident

testified.

      By an Order entered on October 18, 2016, the suppression court

granted the OPT Motion, ruling, inter alia, that the evidence against Fluker

was inadmissible as being the product of a custodial interrogation wherein

police did not inform him of his Miranda rights. The Commonwealth timely




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filed a Notice of Appeal,4 followed by a court-ordered Pa.R.A.P. 1925(b)

Concise Statement of errors complained of on appeal.

     The Commonwealth now presents the following issues for our review:

     A. Did the suppression court err by concluding that [] Fluker was
        subjected to a custodial interrogation while he was briefly
        detained as officers awaited verification of a warrant for his
        arrest?

     B. Did the suppression court err by permitting the filing and
        subsequent re–filing of [the OPT] [M]otion …[,] well outside
        the time limitations imposed by Pa.R.Crim.P. 579 and 581[,]
        where the Commonwealth was prejudiced by the delay caused
        by the late filing?

Brief for the Commonwealth at 5 (some capitalization omitted).

     The Commonwealth first challenges the suppression court’s grant of the

OPT Motion, asserting that Fluker’s inculpatory statement, and the narcotics

seized thereafter, was admissible as being the product of an investigative

detention, wherein Miranda warnings are not required. Id. at 11.

            When the Commonwealth appeals from a suppression order,
     we follow a clearly defined standard of review and consider only
     the evidence from the defendant’s witnesses together with the
     evidence of the prosecution that, when read in the context of the
     entire record, remains uncontradicted. The suppression court’s
     findings of fact bind an appellate court if the record supports
     those findings.    The suppression court’s conclusions of law,
     however, are not binding on an appellate court, whose duty is to
     determine if the suppression court properly applied the law to the
     facts.


4
   In filing this interlocutory appeal, the Commonwealth complied with
Pennsylvania Rule of Appellate Procedure 311(d), which provides that “[i]n a
criminal case, under the circumstances provided by law, the Commonwealth
may take an appeal as of right from an order that does not end the entire
case where the Commonwealth certifies in the notice of appeal that the order
will terminate or substantially handicap the prosecution.” Pa.R.A.P. 311(d).


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

(citation omitted).

      “The Fourth Amendment of the Federal Constitution and Article I,

Section   8   of   the   Pennsylvania   Constitution   protect   individuals   from

unreasonable searches and seizures.”       Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012).        There are three categories of interactions

between police and a citizen:

      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.

Carter, 105 A.3d at 768 (citation omitted).

      Miranda warnings must be provided to a defendant only if he is

subjected to a custodial interrogation. Commonwealth v. Garvin, 50 A.3d

694, 698 (Pa. Super. 2012).

      The standard for determining whether an encounter with the
      police is deemed “custodial” or police have initiated a custodial
      interrogation is an objective one based on a totality of the
      circumstances, with due consideration given to the reasonable
      impression conveyed to the person interrogated.         Custodial
      interrogation has been defined as questioning initiated by law
      enforcement officers after a person has been taken into custody
      or otherwise deprived of his or her freedom of action in any
      significant way. “Interrogation” is police conduct calculated to,
      expected to, or likely to evoke admission. When a person’s
      inculpatory statement is not made in response to custodial




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      interrogation, the statement is classified as gratuitous, and is not
      subject to suppression for lack of warnings.

           The appropriate test for determining whether a situation
      involves custodial interrogation is as follows:

            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.

             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, 1019-20 (Pa. Super. 2011)

(internal    citations,   brackets     and    quotations    omitted)       (quoting

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

also Commonwealth v. Gonzalez, 979 A.2d 879, 888 (Pa. Super. 2009)

(stating that the test for custodial interrogation does not depend upon the

subjective intent of the law enforcement officer interrogator).           Moreover,

“[w]hile the use of handcuffs is not dispositive of a custody analysis, and we



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still must conduct a totality-of-the-circumstances analysis, the use of

restraints is generally recognized as a hallmark of a formal arrest.”

Commonwealth v. Cooley, 118 A.3d 370, 379 (Pa. 2015) (citations and

internal quotation marks omitted).

      The Commonwealth argues that the suppression court erred by

concluding that Fluker’s detention was the functional equivalent of a custodial

arrest, as opposed to an investigative detention. Brief for the Commonwealth

at 17.    According to the Commonwealth, the following facts support a

determination that the police conducted an investigative detention of Fluker,

and not a “full-blown custodial arrest”: (1) Fluker “was patted-down and not

actually searched before being placed in the police wagon”; (2) “Officer Ring

testified that Fluker was being detained – not arrested – at that time[,] since

the warrant had not yet been confirmed”; (3) “[f]orce was neither used nor

threatened”; (4) “[a]lthough Fluker was handcuffed, he was not transported

from the scene”; (5) “Fluker was detained no longer than necessary and

ultimately released when the warrant could not be confirmed”; and (6)

“throughout his entire interaction with police, Fluker remained essentially at

the same location where the officers had first encountered him.” Id. at 16-

17; see also id. at 15 (asserting that “all of the important events for

suppression   purposes   –   the   initial   detention   [of   Fluker],   subsequent

questioning, and location of the drugs – took place during the first fifteen

minutes of Fluker’s interaction with the police ….”).




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      In its Opinion, the suppression court addressed the Commonwealth’s

challenge as follows:

      A review of the relevant factors in this case shows that the
      conditions surrounding [Fluker’s] interaction with police were so
      coercive as to constitute the functional equivalent of [an] arrest.
      [Fluker] was placed in handcuffs after officers informed him that
      there was an active warrant for his arrest. N.T.[,] pg. 35,
      8/1/2016. There were two police officers present during the
      interaction. [Fluker] was then moved from his porch to the
      sidewalk and then to the police wagon. He was in the police
      wagon for approximately one hour. N.T.[,] pg. 36, 8/1/2016. In
      totality, the [suppression c]ourt finds it unlikely that [Fluker]
      would have believed that he was free to move as he wished. The
      evidence shows that his freedom of movement was restricted.
      Given these circumstances, the interaction between [Fluker] and
      the police reaches the level of a functional arrest.

Suppression Court Opinion, 2/1/17, at 4.

      Our review discloses that the suppression court’s findings are supported

by the record, and we agree with its legal determination.        See id.    Of

particular importance in the totality of the circumstances analysis is the fact

that Officer Ring placed Fluker in handcuffs prior to patting him down and

questioning him.   See Cooley, supra (noting that “the use of restraints is

generally recognized as a hallmark of a formal arrest.”). Moreover, the police

never informed Fluker that he was not under arrest, or that the handcuff

detention was routine policy pending confirmation of the warrant. See id. at

379 (holding that the parolee was subjected to the functional equivalent of an

arrest where he was (1) handcuffed immediately upon arriving at his parole

agent’s office; (2) questioned about new crimes and searched; and (3) never

informed that “he was not under arrest or that he was restrained pursuant to



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routine policy.”).   Accordingly, because Fluker’s inculpatory statement was

made during a custodial detention, wherein he was not given Miranda

warnings, the suppression court properly suppressed this evidence, and the

narcotics found on his person, as fruits of the poisonous tree.      See Baker,

supra.5

      In its second issue, the Commonwealth argues that the suppression

court erred by permitting Fluker to re-file the OPT Motion, outside of the time

limitations imposed by Pennsylvania Rules of Criminal Procedure 5796 and

581.7 See Brief for the Commonwealth at 18-24. The Commonwealth points

out that the Motion to Relist Hearing was held over two years after the filing

of the Criminal Complaint, and alleges that the delay, all of which was

attributable to Fluker, “unfairly prejudiced [the Commonwealth] in its ability

to meet its burden concerning a possessory drug offense that occurred over

three years earlier.”    Id. at 18; see also id. at 22-23 (explaining the

prejudice that the Commonwealth allegedly suffered).

5
  The cases that the Commonwealth relies upon in support of its first issue,
Commonwealth v. Ellis, 662 A.2d 1043 (Pa. 1995), and Commonwealth
v. Freeman, 150 A.3d 32 (Pa. Super. 2016), are inapposite, as those cases
involved investigative detentions, wherein neither defendant was handcuffed.
6
  Rule 579 provides that, generally, “the omnibus pretrial motion for relief
shall be filed and served within 30 days after arraignment, unless opportunity
therefor did not exist, or the defendant or defense attorney, or the attorney
for the Commonwealth, was not aware of the grounds for the motion, or
unless the time for filing has been extended by the court for cause shown.”
Pa.R.Crim.P. 579(A).
7
  Rule 581 provides, inter alia, that “[i]f [a] timely motion [to suppress] is not
made hereunder, the issue of suppression of such evidence shall be deemed
to be waived.” Pa.R.Crim.P. 581(B).


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      Preliminarily, we must address whether the Commonwealth preserved

this issue for our review.   It is well established that “[o]ne must object to

errors, improprieties or irregularities at the earliest possible stage of the

criminal adjudicatory process to afford the jurist hearing the case the first

occasion to remedy the wrong and possibly avoid an unnecessary appeal to

complain of the matter.” Commonwealth v. Rosser, 135 A.3d 1077, 1086

(Pa. Super. 2016) (citation and ellipses omitted). “Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”

Pa.R.A.P. 302(a).

      Here, the Commonwealth did not object before the suppression court

that the OPT Motion was untimely, despite having had multiple opportunities

to do so, nor did it articulate any prejudice that it suffered as a result of the

delay.8    Accordingly,   this   claim    is   waived.   See   id.;   see   also

Commonwealth v. Colavita, 993 A.2d 874, 891 (Pa. 2010) (stating that

“[w]here the parties fail to preserve an issue for appeal, the Superior Court




8
  We acknowledge that (1) at the OPT Hearing, the prosecutor requested the
suppression court to dismiss the OPT Motion for Fluker’s failure to appear, and
issue a bench warrant, N.T., 4/25/16, at 2; and, (2) at the Motion to Relist
Hearing, the prosecutor requested the suppression court to deny the Motion
to Relist, pointing to Fluker’s failure to appear at that hearing or the OPT
Hearing, N.T., 5/19/16, at 2.         However, on neither occasion did the
prosecutor argue that the OPT Motion was untimely or articulate any
prejudice to the Commonwealth attributable to the delay.                    See
Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016) (stating
that a new theory of relief cannot be raised for the first time on appeal).


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may not address that issue sua sponte.” (citation omitted)).9 Furthermore,

the fact that the Commonwealth raised this issue in its Rule 1925(b) Concise

Statement does not preserve this issue on appeal. See Commonwealth v.

Melendez-Rodriguez, 856 A.2d 1278, 1288 (Pa. Super. 2004) (holding that

“[a] party cannot rectify the failure to preserve an issue by proffering it in

response to a Rule 1925(b) order.”) (citation omitted).

      Accordingly, as neither of the Commonwealth’s issues entitle it to relief,

and the suppression court did not err in granting the OPT Motion, we affirm

the Order on appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/17/2017


9
  Nevertheless, even if this claim was not waived, we would determine that it
is without merit based upon the reasoning advanced in the suppression
court’s Opinion. See Suppression Court Opinion, 2/1/17, at 5-6 (stating,
inter alia, that “[w]hether the interests of justice require an extension of the
thirty[-]day time limit to file an omnibus pretrial motion is a ‘matter for the
discretion of the trial judge.’ [Commonwealth v.] Long, 753 A.2d 272, 279
(Pa. Super. 2000)[; see also id. at 280 (stating that “[a] trial judge should
exercise discretion to hear an untimely [] suppression motion on this basis in
such situations where the merits of [the] [] motion were so apparent that
justice required it be heard.”) (citation and quotation marks omitted).] In
this case, the [suppression] court found that the interests of justice were best
served by allowing [Fluker] to refile the [OPT M]otion[,]” where “the
Commonwealth has failed to articulate any particular prejudice” it suffered as
a result of the extension).


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