Com. v. Ramey, M.

J-A28034-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MARQUIS RAMEY,

Appellant No. 3513 EDA 2014

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-0001422-2013

BEFORE: GANTMAN, P.J., PANELLA, and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JANUARY 13, 2016

Appellant, Marquis Ramey, appeals from the November 12, 2014

judgment of sentence of an aggregate term of incarceration of nine to

twenty years imposed after he was found guilty of loitering and prowling at

night time, possession of instruments of crime, receiving stolen property,

possession of a firearm, carrying a firearm without a license, and criminal

conspiracy. Appellant alleges specifically that the trial court erred when it

denied his pre-trial suppression motion. After careful review, we affirm.

The trial court summarized the relevant factual and procedural

background of this case as follows:

At 4:00 a.m. on October 17, 2012, Darby Borough Police
Officer [Paul] McGrenera responded to a radio call of a burglary
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, Mary Ann Bender,
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a female from several doors away (524 Pine) told him 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 lying on his
living room couch when he heard loud banging from the back
door. He went towards the noise and saw a black male in a dark
hooded sweatshirt on the porch attempting to kick in the back
door. Moments later, he saw a blue Buick with 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 a black male [Appellant] wearing a dark colored
sweatshirt walking towards him. The male turned around and
started to run. The officer exited his vehicle and ordered the
male to stop.

Corporal [Joseph Trigg], who had also arrived on the
scene, surrounded the male with guns drawn. The male was
forced to the ground and handcuffed. Officer Dupiriak patted the
male down. He removed a bag that was in plain view in the
male’s waistband as well as a blue latex glove from his front
right jean pocket and a clear latex glove from his front left jean
pocket. The bag was a large plastic trash bag three feet long,
but nothing illegal was inside the bag. There was a clear latex
glove on the ground. Officer Dupiriak and Corporal [Trigg]
asked the male what he was doing in the area, and the male
answered that he was coming from Philadelphia off of the trolley.
The Officers believed this to be an odd story because the trolley
stopped running two hours earlier. The male 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

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girlfriend’s house. He was not sure what location in Philadelphia
he was coming from.

Officer Dupiriak arrested [Appellant] for loitering, took him
to police headquarters, and returned to the scene to do more
investigating. While Officer Dupiriak was intercepting and
arresting [Appellant], Officer McGrenera talked with Sallie for
about a half hour, and then left Sallie’s house in his vehicle.

About one to two blocks away from Sallie’s house,
Officer McGrenera saw a Buick matching the description of the
car that Sallie saw. 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 [Appellant] 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’s co-defendant], was sitting in the front
passenger seat of the Buick, hunched over trying to hide while
moving around. Officers McGrenera and Dupiriak approached
the car from the rear with guns drawn, and Officer McGrenera
ordered the male to exit the vehicle. The male did not comply.
Officer McGrenera smashed the driver side windows to look
inside the vehicle because it was heavily tinted, and the male
exited on the passenger side. Officer Dupiriak pulled the male
from the vehicle and placed him on the ground.
Officer McGrenera saw a silver revolver on the front passenger
floor beneath where the male had been sitting. Officer
McGrenera secured the weapon and found it 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 [Trigg] ordered the Officers to stop the search and get
a warrant, and the car was towed to Enforcement Towing.

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Trial Court Order Denying Motion to Suppress, 3/27/14, at 1–4 (internal

citations and paragraph numbering omitted).1

On October 17, 2012, the Commonwealth charged Appellant with

burglary-criminal attempt, receiving stolen property, persons not to possess

a firearm, firearms not to be carried without a license, possession of

instrument of crime, loitering and prowling, and conspiracy. On June 21,

2013, Appellant filed a motion to suppress the physical evidence seized from

his person and vehicle and his statements to police.

On July 17 and 25, 2013, the Honorable Patricia Jenkins held hearings

on the motion to suppress. After Judge Jenkins was appointed to serve on

this Court, the case was reassigned to the Honorable Mary Alice Brennan

who held argument on the motion on February 27, 2014.2 On March 27,

2014, Judge Brennan denied in part and granted in part the suppression

motion. The trial court denied the suppression of the plastic trash bag
____________________________________________

1
On March 9, 2015, the trial court filed an opinion in compliance with
Pa.R.A.P. 1925(a), concluding that the judgment of sentence should be
affirmed. In support of this decision, the trial court incorporated by
reference its March 27, 2014 order denying Appellant’s suppression motion,
which included Findings of Fact and Conclusions of Law “that offer a
complete basis upon which the appellate courts can conduct a review.” Trial
Court Opinion, 3/9/15, at 2.
2
We note that Appellant failed to include in the certified record the
transcripts of the July 25, 2013, and February 27, 2014 suppression
hearings. However, Appellant’s co-defendant included these transcripts in
the certified record accompanying his appeal, and they have now been
certified as part of the official record in this appeal. We, therefore, will
consider the merits of Appellant’s suppression claims.

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discovered in Appellant’s waist, the latex glove found on the ground,

Appellant’s statements to the police, and the items seized from the blue

Buick. The court granted the motion as to the latex gloves removed from

Appellant’s pockets.

On August 12 and 18, 2014, Judge Brennan conducted a nonjury trial

and found Appellant not guilty of attempted burglary and guilty of the

remaining offenses. Appellant was sentenced on November 12, 2014. On

December 10, 2014, Appellant filed a timely notice of appeal.

Appellant presents the following issues for review:

1. Whether the Trial Court erred when it denied Appellant’s
Motion for Suppression as to the items seized from
Appellant’s person because Appellant was the subject of an
illegal warrantless arrest that was not supported by probable
cause?

2. Whether the Trial Court erred when it denied Appellant’s
Motion for Suppression as to the items seized from
Appellant’s person because the arrest was unlawful; and
therefore, the search incident to arrest was not valid?

3. Whether the Trial Court erred when it denied Appellant’s
Motion for Suppression as to the statements made by
Appellant because Appellant was under arrest when the
statements were made; and therefore, should have been
advised of his Miranda3 rights?

4. Whether the Trial Court erred when it denied Appellant’s
Motion for Suppression as to the items seized from
Appellant’s vehicle because the police officers conducted an
illegal warrantless search of Appellant’s vehicle?

____________________________________________

3
Miranda v. Arizona, 384 U.S. 436 (1966).

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5. Whether the Trial Court erred when it denied Appellant’s
Motion for Suppression as to the items seized from
Appellant’s vehicle because the police officers did not have a
lawful right of access to view the items seized from
Appellant’s vehicle; and therefore, the plain view exception
to the search warrant requirement is not applicable?

6. Whether the Trial Court erred when it failed to render
conclusions of law in support of its denial of Appellant’s
Motion for Suppression as to the items seized from
Appellant’s vehicle?

Appellant’s Brief at 8.

Our standard of review is well-settled:

When reviewing the denial of a motion to suppress
evidence, we examine “the evidence of the Commonwealth and
so much of the evidence for the defense as remains
uncontradicted when read in context of the record as a whole.”
Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654
(2010). We then determine “whether the suppression court’s
factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct.” Id. Our
review of the application of the law to the facts is plenary. Id.

Commonwealth v. Washington, 51 A.3d 895, 897 (Pa. Super. 2012).

Appellant’s first three arguments challenging the trial court’s denial of

his suppression motion are intertwined. Appellant’s overarching assertion is

that he was the victim of a warrantless arrest unsupported by probable

cause. Appellant then claims that because his arrest was unlawful, the

search of his person was invalid, and those items seized from that search

must be suppressed. Third, Appellant claims that his statements to the

police must be suppressed because he was not advised of his Miranda

rights after he was arrested. The Commonwealth counters that Appellant

was not subjected to a custodial arrest; instead, it was an investigative

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detention that was supported by reasonable suspicion. Thus, resolution of

Appellant’s first three issues depends upon the nature of Appellant’s contact

with the police officers on the date in question. Given the nature of our

inquiry, while we are bound by the suppression court’s factual findings that

are supported by the record, the question of whether an arrest occurred is a

pure question of law subject to plenary review. Commonwealth v. Lyles,

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

Our jurisprudence recognizes three levels of police-citizen interactions.

The first is a mere encounter, which requires no level of suspicion.

Commonwealth v. Daniels, 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. The third level is an arrest or

custodial detention, which must be supported by probable cause. Id. at

597. “In evaluating the level of interaction, courts conduct an objective

examination of the totality of the surrounding circumstances.” Lyles, 97

A.3d at 302 (citation omitted).

When we examine the totality of the circumstances, the focus is

centered on whether the subject’s movements have in some way been

restrained by physical force or show of authority. However, when courts are

making this determination, no single factor dictates whether a seizure has

occurred. Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000). The

United States Supreme Court and the Pennsylvania Supreme Court have

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employed an objective test to determine 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. Lyles, 97 A.3d

at 302–303 (quoting Michigan v. Chestnut, 486 U.S. 567, 573–574

(1988)).

The trial court analyzed the instant citizen-police interaction and

concluded that the responding police officers affected a Terry4 stop that was

supported by reasonable suspicion. The court concluded as follows:

[Appellant] is challenging the legality of the stop and is
seeking suppression of the evidence that was recovered from the
vehicle he was in and the suppression of any statement(s) he
made to police. Since the parties concede [Appellant] was
subjected to a “Terry stop” this Court must determine whether
or not the Police had a reasonable suspicion to stop [Appellant].5

Officer Dupiriak had reasonable suspicion to stop
[Appellant] on the street, since (1) the officer was responding to
a radio dispatch of a very recent burglary in progress identifying
the suspect as a black male in a dark hoody, (2) as the officer
____________________________________________

4
Terry v. Ohio, 392 U.S. 1 (1968).
5
We note that the trial court’s decision was reasoned in part by its position
that the parties “conceded” that Appellant was subjected to a Terry stop.
No such concession is a part of the record and, in fact, is contradicted by
Appellant’s written motion to suppress, both counsels’ representations at the
hearings held on the motion, and by Appellant’s post-motion hearing brief.
However, since we also conclude that a Terry stop occurred in this instance,
we need not expound on the trial court’s reliance on this supposed
concession.

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J-A28034-15

was driving to the scene, he saw [Appellant], a black male in a
dark sweatshirt, walking in the officer’s direction only a few
blocks from [the] crime scene, (3) [Appellant] turned and
started running away as the officer approached. . . . This Court
determines that the record in this case confirms that Officer
Dupiriak had a reasonable suspicion to subject [Appellant] to a
“Terry stop.”

Trial Court Order Denying Motion to Suppress, 3/27/14, at 7–8.

Appellant assails the trial court’s reasoning and asserts that the

totality of the circumstances demonstrated instead that he was subject to an

illegal arrest. Appellant offers that Commonwealth v. Hannon, 837 A.2d

551 (Pa. Super. 2003), compels this conclusion. In Hannon, this Court

declared that “an arrest occurs when (1) the police intended to take

appellant into custody, and (2) appellant was subjected to the actual control

and will of the police.” Id. at 554 (citation omitted). This Court determined

that an arrest transpired when the police ordered the appellant out of a

vehicle with weapons drawn, restrained him with handcuffs, searched him,

placed him into a police car, transported him to the police station where

Miranda rights were recited, and an interrogation followed. Id.

While the Hannon case is somewhat factually similar to the instant

matter, it is distinguishable by the chronology of the relevant events. In this

matter, when Appellant began to run in the opposite direction of

Officer Dupiriak’s police vehicle, the officer exited his vehicle and ordered

Appellant to stop. Officer Dupiriak and Corporal Trigg then cornered

Appellant with their guns drawn. Officer Dupiriak then “reholstered” his

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weapon, forced Appellant to the ground, handcuffed him, and patted him

down for “officer safety” and to “search for weapons or contraband.” N.T.,

7/25/13, at 8, 22–24. While the officer did not feel anything resembling

weapons or contraband, he discovered a trash bag in Appellant’s waistband

and a latex glove lying on the ground next to him. Id. at 8–9. At this point,

however, the situation varies from that examined in Hannon. Unlike the

suspect in Hannon, Appellant was not immediately placed in the police

vehicle and transported to the police station. This counters against a

conclusion that, at this point, the officers intended to take Appellant into

custody. Rather, the officers questioned Appellant as to the reason that he

was in the area. Appellant responded that he had travelled from

Philadelphia by trolley. Officer Dupiriak believed this was a peculiar story

because the trolley stopped running two hours earlier. N.T., 7/25/13, at 9.

Appellant then represented that he was headed to his girlfriend’s house to

retrieve some items, but could not identify an address where the girlfriend

lived. Id. At this point, according to Officer Dupiriak, Appellant was

arrested and placed in the police vehicle. Id. at 10.

“An encounter becomes an arrest when, under the totality of the

circumstances, a police detention becomes so coercive that it functions as an

arrest.” Commonwealth v. Charleston, 16 A.3d 505, 514-515 (Pa. Super.

2011) (quotation omitted). A number of factors will determine if a detention

has become an arrest, including “the cause for the detention, the detention’s

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length, the detention’s location, whether the suspect was transported

against his or her will, whether physical restraints were used, whether the

police used or threatened force, and the character of the investigative

methods used to confirm or dispel suspicions.” Id. (quoting

Commonwealth v. Stevenson, 894 A.2d 759, 770 (Pa. Super. 2006)

(citations omitted)).

Herein, Appellant was detained because he met the description of a

person involved in a suspected burglary, was in close proximity to the

reported scene of the crime, and ran in the opposite direction of the police

car responding to the crime report. The detention occurred on a street and

did not consume a significant amount of time. The responding officers

approached Appellant with guns drawn, pushed him to the ground and

handcuffed him. He was then questioned as to his presence in that area.

When Appellant provided an incredible reason for being near the scene of

the supposed crime, he was then placed in the police car and transported to

the police station.

Considering the totality of the circumstances, these factors weigh in

favor of a conclusion that Appellant was subjected to an investigatory Terry

stop and not an arrest. While the officers drawing their weapons and

pushing Appellant to the ground were forcible tactics, none of the other

factors indicates that an arrest occurred. Notably, under Pennsylvania law,

“the handcuffing of [a defendant is] merely part and parcel of ensuring the

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safe detaining of the individuals during the lawful Terry stop.”

Commonwealth v. Guillespie, 745 A.2d 654, 660–661 (Pa. Super. 2000).

This Court has further stated that a custodial arrest does not arise until a

defendant is not only handcuffed, but also transported by the police to jail.

Charleston, 16 A.3d at 515; see also Commonwealth v. Rosas, 875

A.2d 341, 348 (Pa. Super. 2005) (finding 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.”).

Instantly, Appellant was not placed into the police car and transported

to the police station until after he was unable to provide a credible reason

for his whereabouts in proximity to the time and place of the reported crime.

Additionally, the evidence does not demonstrate that the place and duration

of the detention or the character of the officers’ questions were coercive in

nature. Based on these facts, we conclude Appellant was subjected to an

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

needed only reasonable suspicion that criminal activity was afoot to

effectuate a constitutional detention of Appellant. Commonwealth v.

Davis, 102 A.3d 996, 999–1000 (Pa. Super. 2014), appeal denied, 113 A.3d

278 (Pa. 2015).

The reasonable suspicion necessary to conduct an investigative

detention is a less demanding standard than the probable cause needed to

effectuate an arrest. Commonwealth v. Fell, 901 A.2d 542, 545 (Pa.

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Super. 2006) (quoting Alabama v. White, 496 U.S. 325, 330 (1990)).

“The determination of whether an officer had reasonable suspicion that

criminality was afoot so as to justify an investigatory detention is an

objective one, which must be considered in light of the totality of the

circumstances.” Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011).

In assessing all the circumstances, courts must give weight to the inferences

that a police officer may draw upon their training and experience. Id. at 95.

We find Commonwealth v. Walls, 53 A.3d 889, 893–895 (Pa. Super.

2012) to be instructive in our resolution of whether reasonable suspicion

existed here. In Walls, the police officer received information over his radio

that a black male wearing a black coat and black jeans was observed at an

intersection carrying a gun. The officer stopped an individual who matched

the description of the suspect with regard to gender, race, and clothing one-

half block away from the identified location. After seeing the officer, the

individual fled. Id. at 894. The Walls Court agreed with the suppression

court that these circumstances, when added together, amounted to the

reasonable suspicion required for the responding officer to stop the male.

Id. at 893. In so deciding, the Court made particular note of the United

States Supreme Court’s observation in Illinois v. Wardlow, 528 U.S. 119,

124 (2000) that “[h]eadlong flight—wherever it occurs—is the consummate

act of evasion. . . .” Walls, 53 A.3d at 893 n.4. The Walls Court thus

concluded that unprovoked flight, even when not in a high crime area,

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combined with the actor’s proximity to the subject location and his match to

the description of the suspect, gave “rise to reasonable suspicion that

criminal activity was afoot.” Id. at 894.

In the case sub judice, at approximately 4:00 a.m., Officer Dupiriak

observed Appellant two blocks from the scene of a reported attempted

burglary. Appellant, who met the general description of the suspect in the

crime, ran in the opposite direction as the officer approached him. Relying

on Walls, these facts supplied Officer Dupiriak with the requisite reasonable

suspicion to detain Appellant.

Given our conclusion that Appellant was detained and not arrested

until after the officer’s questioning, Appellant’s tandem arguments that the

items seized must be suppressed because the search of his person was

incident to an illegal arrest and that his statements to the police were

obtained in violation of his post-arrest Miranda rights likewise fail.

However, Appellant also argues that even if he was subject to an

investigative detention, the trash bag found in his waistband and the latex

glove discovered on the ground must be suppressed because

Officer Dupiriak’s patdown exceeded the permissible scope of a Terry frisk.

The trial court resolved the issue of the legality of the seizure of the

trash bag and gloves as follows:

Officer Dupiriak’s recovery of the latex glove on the ground
in plain view and the removal of the black trash bag in plain view
hanging over [Appellant’s] waist belt was perfectly permissible.
Officer Dupiriak went too far, however, when he reached into

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[Appellant’s] pocket and pulled out a blue latex glove from his
front right jean pocket and a clear latex glove from his front left
jean pocket. . . . There was nothing about these two gloves that
suggested they were weapons or contraband. Therefore
evidence of these two gloves is suppressed as to [Appellant]
only.

Trial Court Order Denying Motion to Suppress, 3/27/14, at 8–9.

Appellant argues that the plain view doctrine did not justify the seizure

of the trash bag or glove on the ground because there was no reason for

Officer Dupiriak to believe that those items were incriminating.6 Appellant is

incorrect.

A police officer has probable cause to believe that an object is

incriminating where “the facts available to the officer would ‘warrant a man

of reasonable caution in the belief’, that certain items may be contraband or

stolen property or useful as evidence of a crime[.]” Commonwealth v.

Wright, 99 A.3d 565, 569 (Pa. Super. 2014) appeal denied, 116 A.3d 605

(Pa. 2015) (emphasis in original) (quoting Commonwealth v. McEnany,

667 A.2d 1143, 1148 (Pa. 1995) (quotation omitted)). Here, the police were

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6
Appellant also contends that Officer Dupiriak’s search was not for officer
safety; rather, it constituted an “illegal attempt to discover evidence.”
Appellant’s Brief at 29. Not only is this assertion directly contrary to the
only record evidence, i.e., Officer Dupiriak’s testimony that Appellant was
patted down for “officer safety” and to “search for weapons or contraband,”
see N.T., 7/25/13, at 8, 22–24, Appellant cites no legal authority to support
this representation. Absent Appellant’s reference to legal authorities and
development of a cogent argument, we find this issue waived.
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014) appeal
denied, 95 A.3d 275 (Pa. 2014); see also Pa.R.A.P. 2119(a).

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investigating a suspected burglary. It was reasonable, therefore, for

Officer Dupiriak to conclude that a latex glove and a large trash bag could

feasibly be viewed as evidence of this crime.

Appellant’s third claim tied to his position that he was arrested without

probable cause is that his statements to the police were illegally obtained

because he was not apprised of his Miranda warnings. Appellant further

contends that the statements were the product of improper police

interrogation. Appellant’s arguments do not warrant relief.

The trial court addressed the legality of Appellant’s claim regarding his

statements to the police, as follows:

The Court finds that the officer’s questions to [Appellant] were
succinct enough to fall within the “moderate number of
questions” permissible during a Terry stop. Moreover, the
officers had a basis independent of the illegally seized evidence
to ask [Appellant] about where he was coming from and going,
and about the glove on the ground in plain view and the trash
bag in his belt also in plain view. . . .

The Court further finds that Miranda warnings were not
necessary before the officers asked [Appellant] questions during
the Terry stop. [Appellant] was not in custody during this Terry
stop, and without a custodial interrogation, Miranda warnings are
unnecessary.

Trial Court Order Denying Motion to Suppress, 3/27/14, at 9–10 (citations

omitted).

We conclude that the trial court’s factual findings are supported by the

record and that its legal conclusions are correct. As we have determined,

the scrutinized contact between Appellant and the police was an

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investigative detention rather than a custodial arrest. An investigative

detention does not require the protections and warnings afforded by

Miranda. Commonwealth v. Pakacki, 901 A.2d 983, 988 (Pa. 2006).

Moreover, we agree with the trial court that the questions posed by the

officers during the investigative detention—where Appellant was coming

from and where he was going—were not designed to elicit incriminating

information. Accordingly, reversal of the order denying Appellant’s

suppression motion is not warranted on the Miranda issue.

Appellant’s final three issues concern the search of Appellant’s vehicle.

Initially, we confront Appellant’s claim of error related to the trial court’s

failure to render conclusions of law in support of its decision denying

Appellant’s motion to suppress the items seized from the vehicle.

Under Pa. R. Crim. P. 581(I), at the conclusion of a suppression

hearing, “the judge shall enter . . . findings of fact and conclusions of law as

to whether the evidence was obtained in violation of the defendant’s

rights. . . .” In Commonwealth v. Millner, 888 A.2d 680, 688 (Pa. 2005),

the Pennsylvania Supreme Court expressed displeasure with courts that do

not comply with Rule 581, but offered that a remand is not always necessary

to correct this deficiency. We conclude that the trial court’s omission herein

does not compel a remand. First, it is noteworthy that the trial court did

issue findings of fact detailing the search of Appellant’s vehicle. See Trial

Court Order Denying Motion to Suppress, 3/27/14, at 3–4. Second, in those

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findings of fact, the trial court characterized the items seized from

Appellant’s vehicle as being in “plain view,” arguably a legal conclusion. Id.

at 4, ¶17. Third, Appellant’s challenges to the vehicle search pose legal

questions. Where the appeal of the determinations of the suppression court

entail allegations of legal error, that court’s legal conclusions are not binding

on a reviewing court, “whose duty it is to determine if the suppression court

properly applied the law to the facts.” Commonwealth v. Jones, 988 A.2d

649, 654 (Pa. 2010) (quoting Commonwealth v. Mistler, 912 A.2d 1265,

1269 (Pa. 2006) (quotation omitted)). See also, Lyles, 97 A.3d at 302

(pure questions of law are subject to plenary review). Therefore, even if the

trial court had issued conclusions of law, we would not be required to accept

those determinations.

The trial court issued the following findings of fact related to the

search of Appellant’s vehicle:

12. While Officer Dupiriak was intercepting and arresting
[Appellant], Officer McGrenera talked with Sallie for about a half
hour and then left Sallie’s house in his vehicle.

13. About one to two blocks away from Sallie’s house,
Officer McGrenera saw a Buick matching the description of the
car that Sallie saw. The car was blue with gray panels missing
on the side and had tinted windows, just as Sallie had described.

14. Officer Dupiriak, who had returned after leaving
[Appellant] 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.

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15. A male [Appellant’s co-defendant] was sitting in the
front passenger seat of the Buick, hunched over trying to hide
while moving around. Officers McGrenera and Dupiriak
approached the car from the rear with guns drawn, and Officer
McGrenera ordered the male to exit the vehicle. The male did
not comply.

16. Officer McGrenera smashed the driver side windows to
look inside the vehicle because it was heavily tinted, and the
male exited on the passenger side. Officer Dupiriak pulled the
male from the vehicle and placed him on the ground.

17. Officer McGrenera saw a silver revolver on the front
passenger floor beneath where the male had been sitting.
Officer McGrenera secured the weapon and found it 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.

18. Corporal [Trigg] ordered the Officers to stop the search
and get a warrant, and the car was towed to Enforcement
Towing. The affidavit of probable cause attached to the search
warrant states that the two officers seized the revolver, latex
gloves and crowbar at the scene of [Appellant’s co-defendant’s]
apprehension. The warrant issued the next day, and the police
recovered multiple other items from the car.

Trial Court Order Denying Motion to Suppress, 3/27/14, at 3–4 (record

references omitted).

Appellant first asserts that the search of his vehicle was illegal because

the police officers lacked probable cause and exigent circumstances to

search it without a warrant. The Commonwealth counters that the

Pennsylvania Supreme Court’s plurality opinion in Commonwealth v. Gary,

91 A.3d 102, 138 (Pa. 2014) (“the prerequisite for a warrantless search of a

motor vehicle is probable cause; no exigency beyond the inherent mobility of

a mobile is required”) eliminated the exigent circumstances requirement for

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a warrantless search, but offers only a conclusory statement that the

requisite probable cause existed here. Because the Commonwealth does not

present a developed factual or legal foundation for its probable cause

pronouncement, we will confine our review in this matter to whether the

plain view exception to the search warrant requirement applies.

The plain view doctrine permits warrantless seizures of objects when:

“(1) an officer views the object from a lawful vantage point; (2) it is

immediately apparent to him that the object is incriminating; and (3) the

officer has a lawful right of access to the object.” Commonwealth v.

Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014) appeal denied, 106 A.3d

724 (Pa. 2014). Thus, we must first ascertain if the responding officers

viewed the items in the Appellant’s vehicle from a lawful vantage point. The

relevant inquiry is whether the officers were legally authorized to order

Appellant’s co-defendant to exit the vehicle and whether it was

constitutionally permissible to force him out of the car as these were the

precipitating events leading to the observation of the items in the vehicle.

In Commonwealth v. Pratt, 930 A.2d 561 (Pa. Super. 2007), this

Court held that a police officer may order a passenger of a stopped vehicle

to remain inside or get back into the vehicle without offending the

passenger’s rights under the Fourth Amendment, “even absent a reasonable

suspicion that criminal activity is afoot.” Id. at 564; see also

Commonwealth v. Brown, 654 A.2d 1096, 1102 (Pa. Super. 1995)

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(relying on Pennsylvania v. Mimms, 434 U.S. 106 (1977), and holding

that “police may request both drivers and their passengers to alight from a

lawfully stopped car without reasonable suspicion that criminal activity is

afoot.”). In this case, the initial radio dispatch, a neighbor eyewitness, and

the victim of the attempted burglary all related that a blue Buick, with a gray

side panel and tinted windows, was involved in the crime. N.T., 7/17/13, 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. Although the tinted windows impaired the officers’ ability to see

into the vehicle, they were able to observe the person moving around in the

passenger seat, “hunched over on the floor facing out the rear window.”

N.T., 7/25/13, at 12. At this point, the police officers were well within their

rights to request the occupant to exit the vehicle. See Pratt, 930 A.2d at

564 (officer may order occupants of a vehicle to exit the vehicle even absent

a reasonable suspicion of criminal activity).

The next question is whether the officers could justifiably force

Appellant’s co-defendant from the vehicle. When the occupant remained in

the vehicle after repeated warnings to exit, Officer McGrenera smashed the

driver side window. N.T., 7/17/13, at 27. When the occupant then opened

the passenger side door, Officer Dupiriak pulled him from the vehicle and

pushed him to the ground. Id. At this point, the officers observed a

revolver and latex gloves on the passenger side floor and a crowbar on the

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driver’s side floor through the open passenger door. N.T., 7/17/13, at 53–

54; 7/25/13, at 13. Thus, we must decide if the officers acted legally

leading up to that moment when they secured an advantageous position to

view the items on the vehicle’s floor.

Our decision in Commonwealth v. Murray, 936 A.2d 76 (Pa. Super.

2007), is helpful to this inquiry. In Murray, a police officer observed

significant movement in a stopped vehicle, but, because of the tinted

windows, could not discern the nature of the movement. Due to the

excessive movement, the officer pulled the occupant out of the vehicle,

frisked him to make sure he had no weapon because he was concerned for

his and his partner’s safety. Id. at 79. While the Murray Court did not

specifically address the propriety of the occupant’s forceful exit by the police

officer, it determined that these facts were sufficient to allow the officer to

properly conclude that Murray could have been armed and justified a limited

search for weapons in the passenger compartment of the vehicle. Id. at 80.

What we extrapolate from the holding in Murray is that if legitimate

concerns of officer safety can validate a warrantless search for weapons in

an automobile, such considerations can also legitimize the officers’ use of

reasonable force to remove the vehicle’s occupant. The vehicle’s close

proximity to the site of the burglary and its match to the description of the

car observed at the crime scene provided the officers with the reasonable

suspicion that the person occupying it may have been involved in the

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robbery. Additionally, the occupant was seen moving about in the vehicle,

hunched over and facing backwards, and was unresponsive to their repeated

orders to exit the vehicle. Considering all these circumstances, the police

were entitled to ensure their safety by removing Appellant’s co-defendant

from the vehicle. Accordingly, the officers did not violate the Fourth

Amendment in arriving at a position from which the evidence could be

plainly viewed.

Second, there is no question that the objects in plain view, a revolver,

a crowbar, and latex gloves, were incriminating. Appellant, however,

challenges whether the lawful right of access prong of the plain view

doctrine test has been satisfied. In Commonwealth v. Brown, 23 A.3d

544 (Pa. Super. 2011) (en banc), this Court decreed that the portion of the

Pennsylvania Supreme Court’s plurality decision in Commonwealth v.

McCree, 924 A.2d 621 (Pa. 2007), holding that “where police officers

observe incriminating-looking contraband in plain view from a lawful

vantage-point, the lack of advance notice and opportunity to provide a

warrant provides the officers with a lawful right of access to seize the object

in question” had precedential value and applied this rationale in conducting a

plain view analysis. Brown, 23 A.3d at 557.

Applying the lawful right of access principle as set forth in Brown, we

conclude that the warrantless seizure was proper. The officers’ observation

of a gun, crowbar, and latex gloves in Appellant’s vehicle created probable

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cause to believe that a crime had been committed and that evidence

pertaining to the crime was present in Appellant’s vehicle. While the officers

had some notice that the vehicle was possibly linked to the reported

burglary, they had no notice that they would encounter the vehicle in that

location or that the vehicle would carry evidence of a crime. See Brown, 23

A.3d at 554 (noting that “[t]he plurality in McCree favored the

“Baker/Rodriguez standard . . . allow[ing] warrantless searches where

officers” have no particular knowledge regarding the subject vehicle).

Additionally, because the vehicle was occupied and the occupant was moving

about suspiciously, the police were required to act immediately and did not

have an opportunity to obtain a warrant before observing the challenged

contraband in Appellant’s vehicle. We, therefore, conclude that the officers

had a lawful right of access to the items and their warrantless seizure passed

constitutional muster.

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.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2016

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