J-S63022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

STEPHEN CHACA AYRES

                            Appellant               No. 548 EDA 2015


          Appeal from the Judgment of Sentence November 12, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0001415-2013


BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                        FILED OCTOBER 27, 2015

       Appellant, Stephen Chaca Ayres, appeals from the November 12, 2014

aggregate judgment of sentence of five to ten years’ imprisonment, imposed

after he was found guilty of one count each of receiving stolen property,

possession of firearms prohibited, firearms not to be carried without a

license, possession of an instrument of a crime (PIC), loitering and prowling

at night time, and five counts of criminal conspiracy.1 After careful review,

we affirm.

       The trial court summarized the relevant factual and procedural

background of this case as follows.


____________________________________________
1
  18 Pa.C.S.A. §§ 3925(a), 6105(a)(1), 6106(a)(1), 907(a), 5506, and
903(c), respectively.
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                 At 4:00 a.m. on October 17, 2012, Darby
          Borough Police Officer Paul McGrenera responded to
          a radio call of an attempted burglary in progress at
          538 Pine Street in Darby. The radio dispatch advised
          that a blue Buick with tinted windows was possibly
          involved. When Officer McGrenera arrived at 538
          Pine Street he was informed by Mary Ann Bender
          who lived several doors away at 524 Pine that she
          saw a blue Buick with tinted windows driving east on
          Pine Street and turn left onto Fifth Street. The
          resident of 538 Pine Street, Oliver Sallie, told Officer
          McGrenera that he was sleeping in his living room
          when he heard loud banging from the rear door.
          Sallie went towards the noise and saw a male in a
          dark hooded sweatshirt on the porch kicking on the
          back door. Moments later, Sallie saw a blue Buick
          with heavy tint and a gray panel bottom driving
          away. The bottom panel on the passenger side was
          missing from the vehicle. There were footprints on
          the rear door and fresh damage to the wood frame
          molding around the door.

                 Darby Officer John Dupiriak, driving a different
          police vehicle, also responded to a radio call of a
          burglary in progress involving a blue Buick with a
          gray side panel. He was about 10 blocks away from
          538 Pine Street when he received the call, and he
          drove toward the scene with his lights activated but
          no sirens. The dispatcher advised that the actor was
          a black male wearing a dark hoody, and that the
          suspect vehicle was a blue Buick with a gray panel
          on the side. As Officer Dupiriak turned onto Moore
          Street, about three blocks away from 538 Pine
          Street, he observed Co-Defendant Ramey wearing a
          dark-colored sweatshirt walking towards him. Co-
          Defendant Ramey turned around and started to run.
          Officer Dupiriak exited his vehicle and ordered Co-
          Defendant Ramey to stop. Corporal Treg, who had
          also arrived on the scene, surrounded Co-Defendant
          Ramey with guns drawn. Co-Defendant Ramey was
          forced to the ground and handcuffed.            Officer
          Dupiriak patted Co-Defendant Ramey down for
          officer safety. Officer Dupiriak removed a bag that
          was in Co-Defendant Ramey’s waistband as well as

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          latex gloves. The bag was a large plastic trash bag
          three feet long. Nothing illegal was found inside the
          bag. There was a clear latex glove on the ground.
          Officer Dupiriak and Corporal Treg asked Co-
          Defendant Ramey what he was doing in the area.
          [He] answered that he was coming from
          Philadelphia, off of the trolley. The Officers believed
          this to be an odd story because the trolley had
          stopped running two hours earlier. Co-Defendant
          Ramey said he was in the area trying to go to his
          girlfriend’s house to retrieve some items. He could
          not identify the girlfriend’s address or her street. He
          said that he was doing work with the gloves earlier in
          the day and had the trash bag to retrieve some
          items from his girlfriend’s house.        Co-Defendant
          Ramey was not sure what location in Philadelphia he
          was coming from.         Officer Dupiriak arrested Co-
          Defendant Ramey for loitering, took him to police
          headquarters, and returned to the scene to do more
          investigating.        While    Officer  Dupiriak    was
          intercepting and arresting Ramey, Officer McGrenera
          talked with Sallie for about a half hour, and then left
          Sallie’s house in his police vehicle.

                About one to two blocks from Sallie’s house,
          Officer McGrenera saw a Buick matching the
          description of the car that Sallie identified. The car
          was blue with gray panels missing on the side and
          had tinted windows, just as Sallie had described.
          Officer Dupiriak, who had returned after leaving
          Ramey at the police station, arrived at this location
          at the same time as Officer McGrenera. Officer
          Dupiriak observed Officer McGrenera call Delcom
          dispatch and state that he found a vehicle matching
          the description of the Buick that had possibly been
          involved in the burglary attempt.

                A male, [Appellant], was sitting in the front
          passenger seat of the Buick, moving continuously
          inside the vehicle. Officers McGrenera and Dupiriak
          approached the car from the rear with guns drawn.
          Officer McGrenera ordered [Appellant] to exit the
          vehicle.    [Appellant] did not comply.      Officer
          McGrenera smashed the driver side windows to look

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              inside the vehicle because it was heavily tinted, and
              as he did so [Appellant] exited on the passenger
              side. Officer Dupiriak pulled [Appellant] from the
              vehicle and placed him on the ground.          Officer
              McGrenera saw a silver revolver on the front
              passenger floor beneath where [Appellant] had been
              sitting. Officer McGrenera secured the weapon, a
              [.]38 mm Smith and Wesson. The hand gun was
              loaded with six bullets. Through the open door, both
              Officer McGrenera and Officer Dupiriak observed in
              plain view latex gloves on the passenger side floor
              and a crowbar on the driver side floor. Corporal Treg
              ordered the Officers to stop the search and get a
              warrant, and the car was towed to Enforcement
              Towing.

Trial Court Opinion, 4/22/15, at 1-5 (internal citations omitted).

       On August 12, 2014, Appellant proceeded to a bench trial, at the

conclusion of which the trial court found Appellant guilty of one count each

of receiving stolen property, possession of firearms prohibited, firearms not

to be carried without a license, PIC, loitering and prowling at night time, and

five counts of criminal conspiracy.            The trial court imposed an aggregate

sentence of five to ten years’ imprisonment on November 12, 2014.2              On

November 18, 2014, Appellant filed a timely motion for reconsideration of




____________________________________________
2
  Specifically, the trial court sentenced Appellant to five to ten years for
possession of firearms prohibited, 6 to 36 months’ for receiving stolen
property, 42 to 84 months for firearms not to be carried without a license, 9
to 18 months for PIC, 6 to 12 months for loitering and prowling at night
time, and the same sentences for each corresponding criminal conspiracy
count. All of these sentences were to run concurrently to each other.



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sentence, which the trial court denied on February 3, 2015. On February 24,

2015, Appellant filed a timely notice of appeal.3

       On appeal, Appellant presents one issue for our review.

              Whether the [trial] court erred when it refused to
              suppress the fruits of the illegal stop and searches at
              issue herein, which were conducted without legal
              justification, and in violation of the rights guaranteed
              to Appellant by the Fourth and Fourteenth
              Amendments of the United States Constitution, and
              Article 1, Section 8 of the Pennsylvania Constitution?

Appellant’s Brief at 6.

       We begin by noting our well-settled standard of review.

              We may consider only the Commonwealth’s evidence
              and so much of the evidence for the defense as
              remains uncontradicted when read in the context of
              the record as a whole. Where the record supports
              the factual findings of the trial court, we are bound
              by those facts and may reverse only if the legal
              conclusions drawn therefrom are in error.          An
              appellate court, of course, is not bound by the
              suppression court’s conclusions of law.

Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted).

Appellant argues that the police subjected him to an unconstitutional

custodial arrest, unsupported by probable cause, or in the alternative an

unconstitutional     investigative      detention,   unsupported   by    reasonable

suspicion.     Appellant’s Brief at 21-22, 26, 32-33.         The Commonwealth

counters that Appellant was not subjected to a custodial arrest, but an
____________________________________________
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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investigative   detention   that   was    supported   by   reasonable   suspicion.

Commonwealth’s Brief 24-26.

                         The Fourth Amendment of the Federal
                   Constitution provides, “[t]he right of the
                   people to be secure in their persons, houses,
                   papers, and effects, against unreasonable
                   searches and seizures, shall not be violated ….”
                   U.S. Const. amend. IV. Likewise, Article I,
                   Section 8 of the Pennsylvania Constitution
                   states, “[t]he people shall be secure in their
                   persons, houses, papers and possessions from
                   unreasonable searches and seizures ….” Pa.
                   Const. Art. I, § 8.

            Commonwealth v. Carter, 105 A.3d 765, 768 (Pa.
            Super. 2014) (en banc), appeal denied, 117 A.3d
            295 (Pa. 2015).

Commonwealth v. Williams, --- A.3d ---, 2015 WL 5810631, at *6 (Pa.

Super. 2015).     Our cases have recognized three levels of police-citizen

interactions.

            The first is a mere encounter, which requires no level
            of suspicion at all. Commonwealth v. Daniel, 999
            A.2d 590, 596 (Pa. Super. 2010). The second level
            is an investigative detention, which must be
            supported by reasonable suspicion. Id. at 596-597.
            Finally, the third level is an arrest or custodial
            detention, which must be supported by probable
            cause. Id. at 597.

Commonwealth v. Walls, 53 A.3d 889, 892-893 (Pa. Super. 2012). “In

evaluating the level of interaction, courts conduct an objective examination

of the totality of the surrounding circumstances.”          Commonwealth v.

Lyles, 97 A.3d 298, 302 (Pa. 2014) (citation omitted).




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              The totality-of-the-circumstances test is ultimately
              centered on whether the suspect has in some way
              been restrained by physical force or show of coercive
              authority. Under this test, no single factor controls
              the ultimate conclusion as to whether a seizure
              occurred—to guide the inquiry, the United States
              Supreme Court and this Court have employed an
              objective test entailing a determination of whether a
              reasonable person would have felt free to leave or
              otherwise terminate the encounter. What constitutes
              a restraint on liberty prompting a person to conclude
              that he is not free to leave will vary, not only with
              the particular police conduct at issue, but also with
              the setting in which the conduct occurs.

Id. at 302-303.

       In the case sub judice, the police encountered Appellant in a vehicle

and ordered him out of said vehicle. N.T., 7/17/13, at 25. When he did not

comply with their directives, the officers broke through the windows on the

other side of the car from where Appellant was sitting. 4    Id. at 27. After

Officer McGrenera broke the driver’s side windows, Appellant opened the

front passenger side door and began to exit the vehicle.          Id.   Officer

Dupiriak then “pulled [Appellant] from the vehicle and placed him down on

the ground.” Id. The officer then handcuffed him. Id. at 71. Based on


____________________________________________
4
  Officer McGrenera testified that the reason for the breaking of the windows
was to be able to see what Appellant was doing inside the passenger
compartment of the vehicle for officer safety, as the windows were tinted
and Appellant “was still moving inside the vehicle.” N.T., 7/17/13, at 26, 27,
52. The Supreme Court has consistently held that an officer may conduct a
limited search of the passenger compartment of a car for weapons. See
generally Michigan v. Long, 463 U.S. 1032, 1049-1050 (1983). However,
Appellant does not raise a challenge to the search of the car on appeal.



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these factors, Appellant avers he was subjected to a custodial arrest;

whereas the Commonwealth avers the interaction was an investigative

detention. Appellant’s Brief at 21-22; Commonwealth’s Brief 24.

        Looking at the circumstances, we initially note that the officers

approached the vehicle because they suspected it as being the one utilized

by the perpetrators of the robbery at 538 Pine Street. The windows of the

Buick were tinted so that the officers could not tell what Appellant was doing

inside the vehicle. N.T., 7/17/13, at 24. Due to their inability to see what

Appellant was doing, the officers ordered him out of the vehicle. Id. It is

axiomatic that the police may order a driver or passenger out of a vehicle as

part of an investigative detention.            See generally Maryland v. Wilson,

519 U.S. 408, 414 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 110

(1977) (per curiam).

        Appellant   further    argues     that    the   officers’   use   of   handcuffs,

immediately after Appellant’s non-cooperation with their instruction to step

out of the Buick, supports a finding of a custodial arrest. Appellant’s Brief at

23. Our cases have held that, under Pennsylvania law, “the handcuffing of

[a defendant is] merely part and parcel of ensuring the safe detaining of the

individuals during the lawful Terry[5] stop.” Commonwealth v. Guillespie,

745 A.2d 654, 660-661 (Pa. Super. 2000).                Our Supreme Court has held


____________________________________________
5
    Terry v. Ohio, 392 U.S. 1 (1968).



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that a defendant is only subject to an investigative detention, even if the

police handcuffed him and placed him in the back of a police car.

Commonwealth v. Gwynn, 723 A.2d 143, 149 (Pa. 1998), cert. denied,

Gwynn v. Pennsylvania, 528 U.S. 969 (1999).           Further, this Court has

stated that a custodial arrest does not arise until a defendant is not only

handcuffed, but also transported by the police to jail. Commonwealth v.

Charleston, 16 A.3d 505, 515 (Pa. Super. 2011), appeal denied, 30 A.3d

486 (Pa. 2011); see also Commonwealth v. Rosas, 875 A.2d 341, 348

(Pa. Super. 2005) (stating that the fact that police “ordered Rosas out of the

car and placed him in handcuffs … [did] not support the conclusion that

Rosas was under arrest[]”), appeal denied, 897 A.2d 455 (Pa. 2005). Based

on these considerations, we conclude Appellant was subjected to an

investigative detention and not a custodial arrest.    Therefore, the officers’

needed reasonable suspicion that criminal activity was afoot to effectuate a

constitutional seizure of Appellant.

                  It is axiomatic that to establish reasonable
                  suspicion, an officer “must be able to articulate
                  something more than an inchoate and
                  unparticularized suspicion or hunch.” United
                  States v. Sokolow, 490 U.S. 1, 7 (1989)
                  (internal   quotation   marks     and    citation
                  omitted). … A suppression court is required to
                  “take[] into account the totality of the
                  circumstances—the          whole        picture.”
                  Navarette, supra (internal quotation marks
                  and citation omitted).     When conducting a
                  Terry analysis, it is incumbent on the
                  suppression court to inquire, based on all of
                  the circumstances known to the officer ex

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                  ante, whether an objective basis for the
                  seizure was present. Adams v. Williams, 407
                  U.S. 143, 146 (1972).

            Carter, supra at 768-769.

Williams, supra.

      In this case, the officers were called to 538 Pine Street in response to

a burglary. N.T., 7/17/13, at 9-10. The initial radio dispatch, a neighbor

eyewitness, and the victim of the robbery all told the officers that a blue

Buick, specifically with a grey side panel, was involved in the burglary. Id.

at 10, 14, 17-18. Approximately one to two blocks away from the site of the

burglary, the officers saw a blue Buick with grey side panels with tinted

windows, as had been described to them from multiple sources. Id. at 23.

In our view, the vehicle’s close proximity to the site of the burglary, as well

as the fact that it matched exactly the description given to the police from

multiple sources, provided the officers with the reasonable suspicion that the

person occupying it may have been involved in the robbery. “We stress that

the Fourth Amendment did not require that [the officers] be correct or even

certain in [their] suspicion.” Williams, supra at *7, citing Navarette v.

California, 134 S. Ct. 1683, 1687 (2014); see also Walls, supra at 894

(concluding that the officers had reasonable suspicion that suspect was

involved in criminal activity in part because of his “proximity to the location

described in the flash, and [his] matching the description of the suspect[]”).

Based on these considerations, we conclude that Appellant’s Fourth


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Amendment rights were not violated by the seizure in this case. Therefore,

as Appellant only argues that the items obtained from the vehicle were

tainted by his initial encounter with the police, the trial court did not err in

denying his motion to suppress the same as the “fruit of his unlawful arrest.”

Appellant’s Brief at 36.6

       Based on the foregoing, we conclude Appellant’s arguments on appeal

are devoid of merit.         Accordingly, the trial court’s November 12, 2014

judgment of sentence is affirmed.

       Judgment of sentence affirmed.

       Judge Musmanno joins the memorandum.

       Judge Donohue concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2015


____________________________________________
6
  Although the Commonwealth has argued in its brief that the search of the
car was constitutional under the plain view doctrine, as noted above,
Appellant does not challenge the search of the car outside the parameters
described above. Therefore, we do not express an opinion on this question.
In addition, in light of our resolution of Appellant’s issues in the
Commonwealth’s favor, we need not consider the Commonwealth’s
alternative argument that Appellant lacked a reasonable expectation of
privacy in the Buick.



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