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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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