J. A25040/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
ERIC R. WILLIAMS, :
:
Appellant : No. 3495 EDA 2014
Appeal from the Judgment of Sentence November 25, 2014
In the Court of Common Pleas of Delaware County
Criminal Division No(s).: CP-23-CR-0001773-2014
BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 22, 2015
Appellant appeals from the judgment of sentence entered in the
Delaware County Court of Common Pleas. Following a non-jury trial,
Appellant was found guilty of possession of firearms prohibited 1 and firearms
not to be carried without a license.2 Appellant contends the trial court erred
in denying his motion to suppress the physical evidence seized as a result of
his illegal detention. We affirm.
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6105(a)(1).
2
18 Pa.C.S. § 6106(a)(1).
J.A25040/15
We adopt the facts as set forth by the trial court’s opinion. 3 See Trial
Ct. Op., 10/15/14, at 1-5.4 At the suppression hearing, Trooper Colon
testified as follows regarding Appellant’s criminal history:
[The Commonwealth]: . . . So, Trooper, you’re back in the
car. You’re reviewing [Appellant’s] criminal history?
A: Yes, sir.
Q: Is that standard practice?
A: Yes.
* * *
Q: Possession with Intent in ’95, . . . Resisting in ’96, is
that right, Robbery RSP, acquitted in Robbery in ’98?
A: Yes, sir.
Q: Acquitted in ’01?
A: Yes.
Q: Acquitted in ’02?
A: Correct.
Q: Gun charge, ’03?
A: Yes.
3
Appellant does not contest the legality of the motor vehicle stop. See
Appellant’s Brief at 5.
4
We note that there is no reference to the notes of testimony in the trial
court’s recitation of certain findings of fact. Our review of the record
indicates that the court had the benefit of a video of the traffic stop. N.T.,
7/25/14, at 7. The court viewed the video, which was not part of the
certified record. See id. at 21, 24, 25, 33, 63.
-2-
J.A25040/15
Q: Two acquits in ’04?
A: Yes.
Q: Gun charge in ’05?
A: Yes.
Q: Tampering with Evidence and Possession with Intent to
Distribute in 2010?
A: Yes.
Q: Driving while suspended, 2012?
A: Yes.
Q: And a possessing (inaudible) charge?
A: Yes, sir. Those are all the things that were revealed.
* * *
Q: . . . [D]id you check [Appellant’s] licensing status?
A: Yes, and it was found to be suspended.
Q: So he’s a suspended driver at this point with an
unregistered vehicle?
A: That is correct.
* * *
Q: . . . You asked [Appellant] if he’d ever been arrested
before, right?
A: Yes, sir, I did.
A: And how did he respond?
A: He contradicted what was revealed to me on the earlier
query of his RAP sheet by relating that he had only
-3-
J.A25040/15
been─his most recent arrest was in 2008, which as we saw
earlier was not true. . . . Furthermore, he related that
arrest specifically in 2008 was for a domestic charge,
to─which again contradicted what was revealed in that
query.
Q: And he gave you a story about being shot five times?
A: Yes, for . . .
Q: As part of that domestic situation?
A: Yes.
Q: Did you ask him about that or did he just offer that
information?
A: He had just offered that information stating that he was
a victim, yet he was arrested in ’08, which I didn’t
understand.
N.T. at 25-28, 40.
Appellant filed an omnibus pre-trial motion to suppress the firearms
seized as a result of the search of his vehicle. On July 25, 2015, the trial
court held a hearing and denied the motion. Following a stipulated non-jury
trial, Appellant was sentenced to five to ten years’ imprisonment for
possession of firearms prohibited and a consecutive term of seven years’
probation for firearms not to be carried without a license.5 This timely
appeal followed. Appellant filed a court ordered Pa.R.A.P. 1925(b)
5
Appellant misstates the court’s sentence for firearms not to be carried
without a license. See Appellant’s Brief at 3. At sentencing, the court
stated: “On Count 2, Firearms Carried Witihout a License, the Court
sentences [Appellant] to seven years’ State Probation consecutive to Count
1 and payment of Court costs.” N.T., 11/25/14, at 14.
-4-
J.A25040/15
statement of errors complained of on appeal and the trial court filed a
responsive opinion.
Appellant raises the following issues for our review.
Whether the trial court erred in denying [Appellant’s]
Motion to Suppress when subsequent to a lawful stop by
law enforcement for a motor vehicle violation and
subsequent issuance and delivery of a warning by law
enforcement to [Appellant], [Appellant] was unlawfully re-
engaged and detained by law enforcement in violation of
his constitutional rights?
Did [sic] trial court err in denying [Appellant’s] Motion
to Suppress when upon completion of a motor vehicle
stop, [Appellant] was unlawfully directed out of his motor
vehicle which was an unlawful and illegal seizure and
detention of [Appellant] and therefore any subsequent
action of the [sic] law enforcement including a search,
consensual or otherwise, would be a violation of
[Appellant’s] constitutional rights?
Did [sic] trial court err in denying [Appellant’s] Motion
to Suppress when after an illegal and unlawful seizure and
detention of [A]ppellant, [A]ppellant was searched?6
Appellant’s Brief at 4.7
6
Appellant does not address issue three in his brief. Therefore, it is
abandoned on appeal. See Commonwealth v. Dunphy, 20 A.3d 1215,
1218 (Pa. Super. 2011).
7
Our Rules of Appellate Procedure set forth the required contents of
appellate briefs. The argument section of Appellant’s brief does not comply
with Rule 2119(a) which provides that “[t]he argument shall be divided into
as many parts as there are questions to be argued; and shall have at the
head of each part--in distinctive type or in type distinctively displayed--the
particular point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). Following a two
page recitation of facts, Appellant states: “Therefore the pivotal question
before the suppression court was whether there was [sic] any actions of
[A]ppellant subsequent to his being told he was free to go which would
-5-
J.A25040/15
Appellant contends that the investigative detention that followed his
lawful traffic stop was unlawful and therefore the court erred in denying his
motion to suppress the evidence seized as a result of the search of his
vehicle. Appellant argues that
[i]n the instant case the trial court incorrectly establishes
reasonable suspicion for the second illegal detention on
facts that were known to the officer at the time he
released [Appellant], advised him he was free to leave and
concluded that he was not going to search the vehicle
based on those facts. The trial court cites no facts that
occurred subsequent to that release that would warrant
[sic] justify a second re-engagement and unlawful
detention.
This is directly contrary to the holding in [Commonwealth
v.] Ortiz[, 786 A.2d 261 (Pa. Super. 2011).8]
lawfully justify the second investigative detention. This is whether the
officer had new or additional information for a basis for reasonable suspicion
to establish a subsequent investigation detention of [A]ppellant.”
Appellant’s Brief at 10.
8
As will be discussed infra, Appellant’s reliance on Ortiz is unavailing as it
has been overruled for the proposition cited by Appellant in
Commonwealth v Kemp, 961 A.2d 1247, 1260 (Pa. Super. 2008) (en
banc). We note that Appellant baldly asserts “that consent to search that
followed the unlawful investigative detention was clearly a product of the
illegal detention and therefore not a valid consent to search.” Appellant’s
Brief at 13. Appellant cites to Ortiz, supra, at 266-267. See id. In
passing, we note that Appellant concedes he “consented to the search of the
vehicle at the second re-engagement.” Id. at 6. Furthermore, there is no
indication in the record, and does Appellant does not claim, that the consent
was “the result of duress or coercion, express or implied, or a will
overborne—under the totality of the circumstances.” Commonwealth v.
Strickler, 757 A.2d 884, 901 (Pa. 2000). At the suppression hearing,
Trooper Sergio Colon testified, inter alia, as follows:
-6-
J.A25040/15
Appellant’s Brief at 12.
Our review of the suppression court’s denial of a motion to suppress is
governed by the following principles:
Q: Did you ask [Appellant] if he would consent to search of
the vehicle?
A: Yes, I did.
Q: And he gave you verbal consent?
A: Yes, he did.
Q: And is it your policy or the State─is it the State Police
policy or is it your policy to get written consent as well?
A: It’s─yes, this is a department form that is required to
be filled out by us.
Q: Okay. When you . . .
A: When searching a vehicle.
Q: When you verbally asked [Appellant] if he [sic] could
search the vehicle, did he hesitate?
A: He blighted (ph) [sic] away from me and, no, he said,
go ahead, sir, you can do whatever you like and kind of
backed up.
Q: And when you put the form in front of him to sign,
similarly did he hesitate to sign the form?
A: No, he slightly─he read it over, didn’t have any
questions . . . .
N.T., 7/25/15, at 41-42.
-7-
J.A25040/15
[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.
Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015)
(citation omitted).
This Court enunciated the test for determining the nature of the
encounter when the police continue to question an individual following a
traffic stop as follows:
In Commonwealth v. Strickler, [ ] 757 A.2d 884
([Pa.] 2000), our Supreme Court analyzed under what
circumstances a police interdiction can devolve into a mere
encounter following a traffic stop when police continue to
question the person after the reason for the traffic stop
has concluded. The Supreme Court in Strickler ruled that
after police finish processing a traffic infraction, the
determination of whether a continuing interdiction
constitutes a mere encounter or a constitutional seizure
centers upon whether an individual would objectively
believe that he was free to end the encounter and refuse a
request to answer questions.
-8-
J.A25040/15
Our Supreme Court adopted a totality-of-the-
circumstances approach. It delineated a non-exclusive list
of factors to be used in making this assessment. Those
factors include 1) the presence or absence of police
excesses; 2) whether there was physical contact; 3)
whether police directed the citizen’s movements; 4) police
demeanor and manner of expression; 5) the location and
time of the interdiction; 6) the content of the questions
and statements; 7) the existence and character of the
initial investigative detention, including its degree of
coerciveness; 8) “the degree to which the transition
between the traffic stop/investigative detention and the
subsequent encounter can be viewed as seamless, . . .
thus suggesting to a citizen that his movements may
remain subject to police restraint,” and 9) whether there
was an express admonition to the effect that the citizen-
subject is free to depart, which “is a potent, objective
factor.” Our Supreme Court also observed that when an
individual has been subjected to a valid detention but
police continue to engage the person in conversation, the
person is less likely to reasonably believe that he is
actually free to leave the scene.
Kemp, 961 A.2d at 1253 (citations omitted). Furthermore,
[w]e are required to apply a “totality of the circumstances”
test in assessing whether police had reasonable suspicion
to conduct an investigatory detention. Therefore, we
overrule Ortiz and [Commonwealth v.] Johnson[, 833
A.2d 755 (Pa. Super. 2003)] to the extent that they hold
that facts gathered during a valid traffic stop cannot be
utilized to justify an investigatory detention occurring after
a police officer has indicated that a defendant is free to
leave. Commonwealth v. Jacobs, 900 A.2d 368, 377 n.
9 (Pa. Super. 2006) (Superior Court, sitting en banc, can
overrule panel decision by three judges).
Id. at 1260.
In Commonwealth. v. Caban, 60 A.3d 120 (Pa. Super. 2012), this
Court found there was reasonable suspicion to justify an investigatory
detention and opined:
-9-
J.A25040/15
In the present case, Trooper Jones gave [Yashera
Renee] Veras a citation for speeding, returned her license
and insurance card, and told her that she was free to
leave. As Veras returned to her car, Trooper Jones asked
if she would answer a few more questions. At the start,
she answered the Trooper’s questions, but then indicated
that she “was ready to go.” As she returned to her car,
Trooper Jones told her to “hold tight” while he questioned
[Waldemar] Caban. Based upon this factual scenario, we
conclude that Caban and Veras were subjected to an
investigatory detention. . . .
We also conclude, however, that the facts adduced by
Trooper Jones by the time he told Veras to “hold tight”
provided him with sufficient reasonable suspicion to justify
the investigatory detention. To establish reasonable
suspicion, the officer must “articulate specific observations
which, in conjunction with reasonable inferences derived
from those observations, led him to reasonably conclude,
in light of his experience, that criminal activity was afoot
and that the person he stopped was involved in that
activity.” To determine whether the officer had reasonable
suspicion, the totality of the circumstances must be
considered. In this regard, we must give “due weight ...
to the specific reasonable inferences [the police officer] is
entitled to draw from the facts in light of his experience.”
* * *
When considering the totality of the circumstances, we
need not limit our inquiry to only those facts that clearly
and unmistakably indicate criminal conduct. Instead,
“even a combination of innocent facts, when taken
together, may warrant further investigation by the
police officer.”
Id. at 128-29 (citations omitted and emphases added).
In the case sub judice, the trial court opined:
An interaction amounts to an investigatory detention
where the officer, following a valid traffic stop, instructs
the individual to exit the vehicle, issues a warning, tells the
individual “to have a nice day,” allows the individual to
- 10 -
J.A25040/15
proceed back towards vehicle, and then subsequently re-
engages the individual with further questioning.
Therefore, based upon Kemp, in the case sub judice, the
interaction amounted to an investigatory detention [9]
where the Trooper, following a valid traffic stop, instructed
the individual to exit the vehicle, issued a citation and
warning, tells the driver that he is free to leave, allowed
the individual to proceed back towards his vehicle, and
then subsequently re-engaged the individual with further
questioning.
* * *
The Trooper testified to reasonable suspicion beyond the
original reasonable suspicion which led to the traffic stop.
The Trooper provided the [c]ourt with unrebutted, credible
testimony. The facts adduced by the Trooper during the
valid traffic stop provided him with sufficient reasonable
suspicion that criminal activity was afoot justifying the
investigatory detention. The facts included:
Initially, the Trooper noted that [Appellant] appeared
extremely nervous; [his] hands were physically shaking
when he handed over his documents to Trooper Colon.
He barely made eye contact with the Trooper.
[Appellant] provided Trooper Colon with a myriad of
unsolicited information . . . .
Trooper Colon found that there was a discrepancy
between the address listed on the vehicle’s registration,
the address on [Appellant’s] license, and the
information [Appellant] provided him about where he
lived. Further, [Appellant] also stated that he was
unaware that the registration for the vehicle was
expired.
9
We note Appellant makes the following statement: “In the present case,
the suppression court properly denied the second re-engagement with
[A]ppellant as an investigative detention. (Trial Ct. Opinion P. [)]”
Appellant’s Brief at 10.
- 11 -
J.A25040/15
During their exchange, [Appellant] asked Trooper Colon
if he could light a cigarette, to which Trooper Colon
replied yes.
During the initial traffic stop, the Trooper learned that
[Appellant] had an extensive criminal history . . . .
When the Trooper asked [Appellant] if he had ever been
arrested before, he replied that his most recent arrest
was in 2008 for a domestic charge. The Trooper
testified that [Appellant’s] RAP sheet established that
[Appellant] was not being truthful. His most recent
charge was from 2012 and did not involve a domestic
charge. After re-engagement, [Appellant] continued to
offer unsolicited information i.e., that he was the victim
in the domestic charge and also that he was involved in
a shooting and had to have a colostomy bag.
While he was writing out the citation and the warning in
his patrol vehicle, Trooper Colon noticed that
[Appellant] was staring back at him the entire time. . . .
[Appellant] asked Trooper Colon several questions
regarding how to remedy the expired registration and
where to take the citation, and how to take care of
paying for it. [Appellant] also told Trooper Colon that
he was on a payment plan, and that was why his license
was suspended, which conflicted with what [Appellant]
had said earlier in the encounter, about not knowing
that his license was suspended.
Trial Ct. Op. at 6-8. The trial court concluded that, based upon the totality
of the circumstances, “Trooper Colon had reasonable suspicion that criminal
activity was afoot, justifying the investigatory detention.” Id. at 8.
We discern no abuse of discretion or error of law by the trial court in
denying the motion to suppress. See Jones, 121 A.3d at 526-27. Based
upon the totality of the circumstances, the Trooper had reasonable suspicion
- 12 -
J.A25040/15
to justify the search of Appellant’s vehicle. See Caban, 60 A.3d at 128-29;
Kemp, 961 A.2d at 1260. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2015
- 13 -