J-S51023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellant

                       v.

SEYMOOR AGUSTUS DOYLE,

                            Appellee                      No. 1616 EDA 2015


                   Appeal from the Order Entered May 1, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0003506-2014


BEFORE: BOWES and SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                            FILED FEBRUARY 13, 2018

       The Commonwealth appeals from the trial court’s May 1, 2015 order

granting in part and denying in part Seymoor Agustus Doyle’s (“Appellee”)

Omnibus Pre-Trial Motion.         Specifically, the Commonwealth contends that

the trial court erred in suppressing statements made by Appellee to

Officer Jeffrey     Shull    (“Officer    Shull”)   and   Agent     Alan   Basewitz

(“Agent Basewitz”) before Appellee was Mirandized.1,         2    We affirm in part,

reverse in part and remand.

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   Miranda v. Arizona, 384 U.S. 436 (1966).

2 The May 1, 2015 order denied suppression of statements made by the
Appellee to Agent Basewitz. However, the trial court’s opinion later clarified
(Footnote Continued Next Page)
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      The trial court set forth the following factual recitation:

            This case involves the alleged March 6, 2014 trafficking of
      marijuana through a private parcel carrier. Employees of United
      Parcel Service (UPS) examined a package which revealed
      contents suspicious for marijuana. Agents of the Pennsylvania
      Attorney General’s Office were called to investigate the package.
      The investigation revealed the package contained 25 lbs. of
      suspected marijuana. A controlled delivery was conducted by
      agents of the Pennsylvania Attorney General’s Office, DEA and
      Springfield Township Police Department resulting in the arrest of
      [Appellee] who claimed the package.

             [Appellee] stands charged on six (6) criminal counts
      including: (1) violation of [35 P.S. §780-113 (a)(30)]
      manufacture, delivery, or possession with intent to deliver
      marijuana an ungraded felony; (2) violation of [35 P.S. § 780-
      113 (a)(16)] intent to possess controlled substance by person
      not registered to lawfully possess (marijuana) an ungraded
      misdemeanor; (3) violation of [18 Pa.C.S. § 7512 (a)] criminal
      use of communication facility, a third degree felony; (4) violation
      of [18 Pa.C.S. § 903 (c)] criminal conspiracy criminal use
      communication facility, a felony of the third degree; (5) violation
      of [18 Pa.C.S. §903 (c)] criminal conspiracy to possession of
      marijuana, an ungraded misdemeanor; (6) violation of [18
      Pa.C.S § 903 (c)] criminal conspiracy to deliver[] marijuana, an
      ungraded felony.

            On February 19, 2015 the [trial court] conducted
      proceedings in connection with [Appellee’s] omnibus pretrial
      motion which included a suppression motion and at that time
      testimony was received by the Commonwealth’s witnesses
      Agent Timothy King, Agent Alan Basewitz and Officer
      Jeffrey Shull. An Order was entered on [May 1], 2015
      suppressing certain un-Mirandized statements and in part
      denying suppression of certain Mirandized statements. It is from
      the [May 1], 2015 Order of Court from which [the
      Commonwealth] appeals.
(Footnote Continued) _______________________

that the court was suppressing only the pre-Miranda statements to
Agent Basewitz and denying suppression of the post-Miranda statements.
Trial Court Opinion, 12/20/16, at 1.



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                                   * * *

            On March 6, 2014 Agent King was working in his capacity
     as a narcotics agent for the Pennsylvania Attorney General’s
     office when he and his partner received a request from UPS
     management to investigate a suspicious parcel that they had at
     their Philadelphia airport facility.

                                   * * *

          Agent King testified that he appeared at the facility and
     was presented with a UPS package which was already opened.
     He observed a large plastic shrink-wrap ball which he’s seen on
     many prior occasions and he suspected it to be marijuana. Agent
     King estimated the dimensions of the package to be
     approximately 12" x 16".

           [Agent King further testified that t]he box’s label indicated
     that it was shipped from Custom Fabric in Burlington[,]
     North Carolina but that his investigation revealed it had actually
     been shipped from E and G Mailboxes in Los Angeles, California.
     Agent King testified that E and G [M]ailboxes [is] a private
     shipping and receiving agency.

           Agent King testified that the box was addressed to
     Outstanding Designs at 491 Baltimore Pike in Springfield, that
     491 Baltimore Pike is a MailSource[] shipping and receiving
     agency. He explained that his contact with MailSource revealed
     that Outstanding Designs Company had an account with the
     MailSource.

           Agent King testified that he returned the package to his
     headquarters and conducted a field test on the contents which
     revealed a 25 pound ball of compressed marijuana. He resealed
     the package and along with other agents and task force agents
     went to 491 Baltimore Pike with the package. He placed the
     package in a pile in the middle rear of the store where incoming
     packages were generally piled up. Agent King then set up
     surveillance inside the store.

           At 11:30 AM Agent King observed [Appellee] walk into the
     MailSource and walk directly to the pile of packages and pick up


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     the marijuana package without even reading the label and
     walked out the door with it.

           Agent King testified he observed [Appellee] walk to a gold
     Nissan Maxima in the parking lot and place the package on the
     rear seat area and a get into the car and drive it out of the
     parking lot all the while the other backup officers were following.
     Agent King explained that he was in radio communication with
     the officers outside and they also observed [Appellee] enter and
     exit with the package and place it in his vehicle.

                                  * * *
           [Agent Basewitz took the stand next and testified that
     after Appellee put the package in his car and drove out of the
     parking lot], a Springfield Township unmarked police car
     operated by Officer Jeffrey Schull followed [Appellee’s] vehicle
     and activated its emergency lights and [Appellee] pulled into a
     parking lot adjacent to a Home Depot. Officer Jeffrey Schull then
     spoke with [Appellee] ostensibly for a routine traffic stop and
     eventually removed him from the vehicle and had him standing
     at the rear trunk area of the car when Agent Basewitz
     approached with another Officer Thomas Hawn of the
     Philadelphia Police Department. [Appellee] contended he had
     just come from the Hibachi restaurant.          Agent Basewitz
     confronted [Appellee] about coming from the MailSource and
     [Appellee] relented and acknowledged coming from the
     MailSource.

                                   * * *

           Agent Basewitz testified that after [Appellee] voluntarily
     acquiesced in the search of the trunk of his car, the agents
     asked him where he was coming from and what he was doing
     with the package. [Appellee] answered that he was going to
     Bosco Moving and Storage at 53rd and Baltimore in Philadelphia
     and was intending to re-ship the package.          Further Agent
     Basewitz testified [Appellee] said he was picking the package up
     for somebody he knows as "Peter". [He also testified that],
     [Appellee] stated that he knew "Peter" through a woman he has
     known for several years. [Appellee] was to be paid one hundred
     dollars to retrieve (and re-ship) the package. [Basewitz testified
     that Appellee told him] that this "Peter" was going to call him
     when he arrived at Bosco and tell him the name and address of
     the person to re-ship the package. [Appellee] refused to permit

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     the agents to search his car. At this point [Appellee] was
     Mirandized and a consensual conversation purportedly ensued.

            The Agent testified that [Appellee] was not handcuffed
     until Agent Hawn read him Miranda warnings and then engaged
     [in] further conversation. Agent Basewitz described [Appellee]
     as very animated when standing by the trunk of his car; that he
     was walking and pacing and walking back and forth and was
     agitated and that he appeared angry and defensive. [Appellee]
     was cautioned to stay close to his car. Essentially, the Agents
     and Officers were attempting to gain [Appellee’s] cooperation in
     the investigation.

            At the scene, [Appellee] repeatedly refused to permit the
     search of the parcel package containing the illegal marijuana. In
     response to a question of whether drug dogs would react to a
     sniff of his car, [Appellee] said he loaned his car earlier that day
     to people who brought it to a repair shop in west Philly and that
     they had smoked "weed" in the car.

           Apparently as the conversation continued [Appellee] began
     to contradict himself regarding the story surrounding loaning his
     vehicle to two people who smoked "weed" in it. [Appellee] could
     not identify the repair shop where the vehicle was purportedly
     taken.

          With respect to the contents of the box [Appellee] said he
     doesn’t care what’s in it is (sic) not any of his business and he
     doesn’t care if it is guns, marijuana, cocaine or pornography.

           Agent Basewitz was asked if he purposely engaged in
     conversation to elicit information prior to [Appellee] being
     Mirandized. The agent responded that they engaged in a
     pretextual stop and conversation but that there wasn’t much
     substance to that.     That a conversation was attempted to
     determine where he was going and get some cooperation or
     consent. [Appellee] resisted that attempt.

           On cross-examination the agent admitted that he did
     confront [Appellee] with the fact that he saw him come from the
     MailSource not Hibachi.

           Agent Basewitz testified that Officer Schull, himself and
     Officer Hawn were all present at the back of the car. Although

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      there were a dozen officers at the scene most were unknown
      (undercover of some kind) to [Appellee].         Agent Basewitz
      testified that the post–Miranda conversations with the [Appellee]
      were essentially the same as the pre–Miranda conversations.

            The agent admitted there were some conversations that
      occurred pre-Miranda that elicited different information than
      post-Miranda conversations.     The post-Miranda conversation
      concerned the people who smoked weed in his car, the drug sniff
      dog and forgetting the name of the repair shop and its owner.

            On redirect the agent testified that [Appellee] also
      possessed $2,049.00 in cash in his pocket. [Appellee] blurted
      that it was tuition money for his son.      Agent Basewitz’s
      testimony concluded.

            Officer Jeffrey Shull was next called to testify.

                                     * * *

             Officer Shull testified that after he pulled [Appellee’s] car
      over, he spoke to [Appellee] through the passenger side window
      requesting his vehicle information, license, insurance and
      registration. Officer Shull treated it as a regular vehicle stop.
      Ultimately [Appellee] provided everything the officer asked for.
      The officer engaged [Appellee] in a conversation on where he
      was coming from and initially [Appellee] responded that he was
      coming from Hibachi, a Chinese restaurant. Officer Shull asked
      him if he had anything illegal in the car and [Appellee] stated
      "no you can check the trunk" At that point DEA agents arrived on
      the scene. Officer Shull had no further involvement at that
      point.

Trial Court Opinion, 12/20/16, at 2-12 (citations omitted).

      The Commonwealth presents a single issue for our review:

            Whether the trial court erred as a matter of law in granting
      the [Appellee’s] motion to suppress all the pre-Miranda
      statements made by [Appellee] during a lawful, non-custodial
      investigative detention?

Commonwealth’s Brief at 1.


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      Specifically, the Commonwealth argues the trial court erred when it

suppressed Appellee’s pre-Miranda statements made to Officer Shull that

he was leaving an Hibachi restaurant, and the answers Appellee gave to

Agent Basewitz’s questions regarding the package Appellee had retrieved

and his whereabouts prior to being stopped.         The Commonwealth asserts

that the above statements were made during what was effectively a brief

traffic stop, before the stop turned custodial, that did not require Appellee be

Mirandized. Commonwealth’s Brief at 16–17.

      Our standard of review is well established:

      When the Commonwealth appeals an order suppressing
      evidence, we may consider on review only the evidence from the
      defendant's witnesses along with the Commonwealth's evidence
      that remains uncontroverted.       Our standard of review is
      restricted to establishing whether the record supports the
      suppression court's factual findings; however, we maintain de
      novo review over the suppression court's legal conclusions.

      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.

Commonwealth v. Forsythe, 164 A.3d 1283, 1286 (Pa. Super. 2017)

(citations omitted).

      Under Pennsylvania law, there are three types of encounters between

citizens and police officers.   Commonwealth v. Acosta, 815 A.2d 1078,


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1082 (Pa. Super. 2003) (en banc).      The first is a mere encounter, which

requires no level of suspicion on the part of the officer and carries no

compulsion for the citizen to respond.     Id. The second is an investigative

detention, which requires a showing of reasonable suspicion.         Id.   This

second type of stop includes “a period of detention, but does not involve

such coercive conditions as so constitute the functional equivalent of an

arrest.” Id.   Finally, the third category, arrest or custodial detention, must

be supported by probable cause.      Id.   A statement made under custodial

interrogation is presumptively involuntary unless the individual in custody is

advised of his Miranda rights. Commonwealth v. Levanduski, 907 A.2d

3, 23 (Pa. Super. 2006).

      “The overlying test to determine whether a person is being subjected

to a custodial interrogation necessitating 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 his action or movement is

restricted by such interrogation.”   Commonwealth v. Turner, 772 A.2d

970, 973 (Pa. Super. 2001). See also Commonwealth v. Luster, 71 A.3d

1029, 1051 (Pa. Super. 2013) (“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 in any significant way”).

      Indeed, in order to determine if an individual has been detained, our

Supreme Court set forth a non-exclusive list of factors to consider, including:


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the presence of police excesses, physical contact by the police or an attempt

to restrain an individual’s movement, the demeanor of the police officer, the

location of the confrontation, the police officer’s manner towards the

individual, and the content of the           questions asked by the officer.

Commonwealth v. Strickler, 757 A.2d 884, 897–898 (Pa. 2000). A court

should look at the totality of the circumstances when determining whether

an individual has been subject to custodial interrogation. Commonwealth

v. Clinton, 905 A.2d 1026, 1032 (Pa. Super. 2006).

      Turning first to the statements made to Officer Shull, the trial court

found those statements were made while Appellee was subject to a custodial

interrogation. Trial Court Opinion, 12/20/16, at 20. We disagree, and after

reviewing the totality of Appellee’s interaction with Agent Shull, we find that

the trial court erred when it suppressed the statements made to Officer Shull

because   their   interaction   did   not   reach   the   threshold   of   custodial

interrogation.

      In the instant case, Officer Shull was alone when he stopped Appellee

and requested Appellee’s license, registration, and insurance. N.T., 2/19/15,

at 59. Officer Shull asked Appellee where he was coming from and if he had

anything illegal in the car. Id. at 60. Appellee replied that he did not have

anything illegal in the car and informed Officer Shull that he could search the

trunk. Id. At that point, Officer Shull asked Appellee to step out of the car

and the DEA agents arrived. Id. The entirety of Appellee’s exchange with


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Officer Shull took a “couple minutes.”           Id.    Officer Shull had no further

contact with Appellee once the DEA agents arrived. Id. at 61.

      Reviewing the relevant factors set forth in Strickler, 757 A.2d at 898–

899, we find Appellee was not subject to custodial detention.                    Here,

Officer Shull was a single police officer; thus there was no excessive police

presence.    Further, Officer Shull was not confrontational with Appellee.

Instead, he asked routine questions and neither challenged Appellee on any

of his responses nor attempted to restrain Appellee’s movement, beyond

asking Appellee to exit the vehicle. To the extent the trial court found that

Appellee’s   interaction’s     with    Officer   Shull    constituted     a   custodial

interrogation,   the   trial   court   erred.     The    Appellee’s     statements   to

Officer Shull should not have been suppressed because they occurred during

an investigatory detention, not a custodial detention. See Commonwealth

v. Clinton, 905 A.2d 1026 (Pa. Super. 2006) (finding investigatory

detention, not custodial interrogation, where police officer pulled appellee

over after appellee ran a stop sign, asked appellee if he had any weapons or

anything “the police should be aware of” and appellee responded that he

“had a little bit of weed”).

      The same cannot be said for Appellee’s interaction with Agent

Basewitz. Again, looking at the totality of the circumstances, Appellee was

subject to a custodial interrogation once Agent Basewitz and another officer




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J-S51023-17


arrived at the scene and began questioning him. As the trial court set forth

in its opinion:

            [Appellee and Officer Shull] were joined by Officer Hawn
      and Agent Basewitz at the back of the car. Surrounded by three
      (3) law enforcement officers with additional officers immediately
      nearby as well as even more officers along a perimeter indicates
      a compelling police presence. Neither handcuffs nor weapons
      were immediately deployed, however [Appellee] was instructed
      to stay in place by officers when he began to pace and wander at
      the back of the car during questioning.

            The manner of questioning proceeded with [Appellee]
      being confronted with questions about where he was coming
      from, headed to and then confronted by officers with his
      inconsistencies and a demand for explanation.        [Appellee’s]
      responses quickly broke down. Law enforcement asked for
      permission to search his vehicle to which [Appellee] responded
      they could search the trunk of the vehicle. He said he did not
      give permission for the officers to search the package.
      Ultimately, the officers handcuffed and Mirandized [Appellee]
      who continued to voluntarily answer essentially the same line of
      questioning.

             Under the totality of the circumstances the statements
      made by [Appellee] prior to being Mirandized are properly
      suppressed. The questions were expressly for the purpose of
      benefiting the ongoing investigation and therefore would
      foreseeably elicit incriminating admissions from [Appellee].
      [Appellee’s] liberty was significantly restricted. The suppression
      hearing testimony was clear that agents were going to detain,
      question and likely charge whoever showed up to pick up the
      package containing marijuana.         [Appellee] received specific
      orders to step and stay close to the rear bumper of his vehicle
      without wandering.       The fact that neither handguns nor
      handcuffs were initially deployed is not in and of itself dispositive
      of the coerciveness of the interrogation. Rather, the officers
      quickly employed handcuffs and Mirandized [Appellee] and re-
      initiated virtually the same line of questioning eliciting even
      further incriminating statements once the officers felt [Appellee]
      was neither cooperative nor responsive.




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            Also, the officer’s conversational tone in and of itself also
      did not obviate the necessities of Miranda. Essentially, the
      identical line of questioning was reengaged and the [Appellee]
      voluntarily responded once Mirandized. The likelihood of eliciting
      incriminating answers from the [Appellee] was reasonably
      foreseeable because the officers were well aware of the
      contraband in the vehicle.

Trial Court Opinion, 12/20/16, at 18–19.

      We agree with the trial court’s assessment as it applies to Appellee’s

interaction with Agent Basewitz and adopt it as our own.         Appellee was

under custodial interrogation when Agent Basewitz began questioning

Appellee; thus, the trial court did not err when it suppressed Appellee’s

statements to Agent Basewitz prior to Appellee receiving his Miranda

warning.

      Order affirmed in part and reversed in part.        Case remanded for

further proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/18




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