Com. v. Jackson, S.

J-A22015-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAQUARN TONY DARYL JACKSON :
:
Appellant : No. 294 MDA 2021

Appeal from the Judgment of Sentence Entered January 27, 2021
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0004664-2019

BEFORE: BOWES, J., OLSON, J., and KING, J.

MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 8, 2022

Shaquarn Tony Daryl Jackson appeals from judgment of sentence of

twenty-four to forty-eight months of incarceration imposed after a jury

convicted him of carrying a firearm without a license and receiving stolen

property (“RSP”). We affirm.

On October 21, 2019, Pennsylvania State Police Trooper Thomas

Fleisher was patrolling I-78 in Berks County when he encountered a teal Volvo

with tinted windows. See N.T. Jury Trial, 10/19/20, at 20-23. As the Volvo

pulled into the parking lot of Bethel Truck Service, Trooper Fleisher initiated a

traffic stop. Id. The vehicle contained three occupants: Travis Price (“Price”),

the operator; Appellant, the front seat passenger; and Matthew Woodstein

(“Woodstein”), the back seat passenger. Id. at 23, 46. The full interaction

between Trooper Fleisher, Price, Woodstein, and Appellant was captured on
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the mobile video recorder (“MVR”) on Trooper Fleisher’s vehicle. Id. at 37;

see also Commonwealth Exhibit 9.

Trooper Fleisher approached an open back right passenger window,

introduced himself, and explained that he had stopped the vehicle due to its

tinted windows. He asked Price for his driver’s license and registration. Price

responded that he did not have a valid driver’s license. Trooper Fleisher asked

Price to write down his name and date of birth, and then asked whether

Woodstein and Appellant could provide him with photo identification. All three

men complied with his instructions and Trooper Fleisher returned to his vehicle

with their information.

Fifteen minutes later Trooper Justin Hope arrived. Id. at 25.

Trooper Fleisher and Trooper Hope approached the vehicle simultaneously,

but from opposite sides. Through the open rear passenger window,

Trooper Fleisher asked Woodstein to exit the vehicle. Meanwhile,

Trooper Hope engaged Price in conversation. Their conversation was not

picked up by Trooper Fleisher’s microphone. Trooper Fleisher then handcuffed

Woodstein and informed him that he was being detained due to a warrant out

of York County for drugs. Id.

As Trooper Fleisher was detaining Woodstein, Price exited the driver’s

side of the vehicle and walked towards Trooper Fleisher. Price asked Trooper

Fleisher if he could give Woodstein some money and where they were taking

him. Id. Trooper Fleisher answered his questions and the two discussed the

particulars of the drug warrant for Woodstein’s arrest. Trooper Fleisher asked

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Price if he had any drugs in his vehicle. Price responded that he did not.

Trooper Fleisher inquired whether he could search the vehicle to confirm that,

and Price said “sure.” See Commonwealth Exhibit 9. Trooper Fleisher read

the consent form to Price, who signed it without hesitation or qualification.

Trooper Fleisher asked Appellant to exit the vehicle so that he could complete

the vehicle search. Appellant and Price were patted down before being asked

to stand to the side of the car. Trooper Fleisher completed the search while

Trooper Hope conversed with Appellant and Price.

For the next ten minutes, Trooper Fleisher conducted a search of the

vehicle.1 Inside a fuse panel to the left of the steering wheel, Trooper Fleisher

discovered a magazine containing 9-millimeter rounds. Id. at 25-26, 28-29.

Minutes later, he located an unloaded Kel Tec 9-millimeter pistol under the

Volvo’s hood on the driver’s side of the vehicle. Id. at 26, 29, 48, 50. The

pistol was inside of a sock and wedged between the Volvo’s frame and either

the air filter or battery. Id. at 26. After discovering the firearm,

Trooper Fleisher immediately placed Price in handcuffs, while another trooper

cuffed Appellant. Out of view of the camera, they were read their Miranda2

warnings together. Id. at 31, 35, 49.

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1 While Appellant was standing out of view of the camera during this time,
Price can be seen moving around freely, using his cell phone, and drinking
from a water bottle that Trooper Hope had retrieved from the vehicle.

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

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Trooper Fleisher told Price and Appellant that he found a firearm and a

magazine in the vehicle. He indicated that, while neither man was obligated

to speak with him, he planned to arrest both for conspiracy to possess the

firearm if no one claimed responsibility for it. He then placed Appellant inside

of Trooper Hope’s vehicle so that he could retrieve the weapon from the hood

of the car. Thereafter, Price spontaneously uttered “this is no good.” See

Commonwealth Exhibit 9. Trooper Fleisher responded to Price’s remark by

repeating the Miranda warnings before asking Price whose gun it was. Price

was adamant that the gun did not belong to him but did not want to reveal

who the true owner was. He asked to speak privately with Appellant, which

the troopers allowed since they were brothers. Id. at 36.

After a couple minutes, Trooper Fleisher approached the two men and

asked if there was anything they wanted to tell him. Appellant immediately

responded, “It’s mine.” Appellant then volunteered that he had recently

purchased the pistol and magazine for $200 from “somebody walking around

down here” and that he intended to use the weapon for protection. Appellant

claimed that he had placed both items in the vehicle without Price’s

knowledge. Id. at 36, 43, 44. Trooper Fleisher asked if Appellant had a

license to carry the firearm and Appellant conceded that he did not. Id. at

42. Throughout the conversation, Appellant was “adamant” that he was not

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lying. Id. at 41. Based on his admissions, Appellant was arrested and

charged with firearms offenses and RSP.3

On December 17, 2019, Appellant filed an omnibus pretrial motion

seeking suppression of the evidence, suppression of his confession, and

habeas corpus relief. Appellant argued that the traffic stop was illegal, and all

evidence acquired as a result of the stop should be suppressed as fruit of the

poisonous tree. The trial court scheduled a hearing on the motion for

January 30, 2020, at 1:30 p.m. When Appellant was not present at 1:40 p.m.,

the court dismissed the motion and issued a warrant for Appellant’s arrest.

Appellant’s counsel did not object to the dismissal or ask to proceed without

Appellant. Appellant appeared later that day, at which time counsel asked the

court for a new trial date due to outstanding discovery. Counsel did not ask

the court to reconsider the denial of the suppression motion.

On October 19, 2020, Appellant proceeded to a jury trial. After the

Commonwealth closed its case-in-chief, defense counsel orally renewed the

suppression motion. See N.T. Jury Trial, 10/19/20, at 61. After a brief

discussion in chambers, the trial court found that the stop was a “valid legal

stop.” Id. Since all of Appellant’s arguments stemmed from his allegation

that the stop was illegal, the court denied the motion. Id. Thereafter, the

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3 Subsequent investigation led to the discovery that the pistol was owned by
Donald John (“John”), who had reported his pistol stolen on February 25,
2020. N.T. Jury Trial, 10/19/20, at 30, 56. John did not know Appellant and
had not given him, Price, or Woodstein permission to possess the firearm. Id.
at 57. The pistol was tested and found to be operable. Id. at 59-60.

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jury found Appellant guilty of carrying a firearm without a license and RSP.

Id. at 83.

On January 13, 2021, at his scheduled sentencing hearing, Appellant

made an oral motion for extraordinary relief. See N.T., 1/13/21, at 2.

Appellant requested a new trial based on our Supreme Court’s decision in

Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020), which changed the

law on warrantless vehicle searches. The court took the motion under

advisement, ultimately denying it by order of January 26, 2021. The next

day, Appellant was sentenced to serve an aggregate term of twenty-four to

forty-eight months in a state correctional facility. A timely post-sentence

motion was denied, and this appeal followed. Both Appellant and the trial

court complied with the mandates of Pa.R.A.P. 1925.

Appellant raises the following issues for our review:

1. Whether the trial court erred when it dismissed Appellant’s
pretrial motion with prejudice without a hearing when
Appellant was late for court?

2. Whether the trial court erred in denying Appellant’s [oral]
motion to suppress raised after the Commonwealth’s case
in chief that the stop of the vehicle lacked probable cause or
reasonable suspicion of criminal activity?

3. Whether the trial court erred in denying Appellant’s [oral]
motion to suppress raised after the Commonwealth’s case
in chief that the warrantless search of the vehicle
exceed[ed] the consent that a typical reasonable person
would have understood?

4. Whether the evidence [was] insufficient to sustain the
verdicts in this case for the fact that Appellant’s statement

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was not voluntary and should not have been considered as
evidence?

Appellant’s brief at 16.

In his first claim, Appellant argues that the trial court abused its

discretion when it denied Appellant’s suppression motion because Appellant

failed to appear in court at the time and date allocated for the suppression

hearing. See Appellant’s brief at 28-33. We find this issue waived because

counsel failed to object at the suppression hearing. It is well-established that

“[t]he absence of a contemporaneous objection below constitutes a waiver of

the claim on appeal.” Commonwealth v. Rodriguez, 174 A.3d 1130, 1145

(Pa.Super. 2017) (citation omitted). Our Supreme Court has stated:

[I]t is axiomatic that issues are preserved when objections are
made timely to the error or offense. See Commonwealth v.
May, 887 A.2d 750, 761 (Pa. 2005) (holding that an “absence of
contemporaneous objections renders” an appellant’s claim
waived); and Commonwealth v. Bruce, 916 A.2d 657, 671
(Pa.Super. 2007) (holding that a “failure to offer a timely and
specific objection results in waiver of” the claim). Therefore, we
shall consider any issue waived where Appellant failed to assert a
timely objection.

Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008). Including

an issue in a Pa.R.A.P. 1925(b) statement does not “resurrect” a waived claim.

Rodriguez, supra at 1145 n.6 (citation omitted).

In this case, a suppression hearing was scheduled for January 30, 2020,

at 1:30 p.m. Defense counsel, the prosecutor, and Commonwealth witnesses

were present and “ready to go” at 1:30 p.m. N.T. Motion Hearing, 1/30/20,

at 2. At 1:40 p.m., the trial court began the hearing. Id. After defense

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counsel confirmed that he had told Appellant the correct date and time, that

Appellant was not present, and that he did not know where Appellant was, the

trial court issued an order dismissing the suppression motion. Id. at 2-3.

Counsel did not object. Id. The Commonwealth requested a bench warrant

for Appellant, which was granted. Id. at 3. Sometime later that day,

Appellant appeared.4 Id. at 3. The trial judge, who was still on the bench,

rescinded its earlier authorization for a bench warrant and defense counsel,

who also was present, requested a new trial date. Id. at 3. After the new

date was agreed upon, the hearing concluded. Id. Again, counsel did not

object or request that the court reconsider its dismissal of the suppression

motion. Id.

Hence, it is plain from the certified record that Appellant’s counsel failed

to make a timely objection to the trial court’s dismissal of the suppression

motion due to Appellant’s failure to appear. Furthermore, after Appellant

arrived, defense counsel did not ask the court to reconsider its decision.

Instead, counsel proceeded to discuss scheduling matters and outstanding

____________________________________________

4 In his brief, Appellant asserts that he arrived ten to twenty minutes after
the motion was dismissed. See Appellant’s brief at 17. However, he does not
cite anything in the record for support and our review of the record did not
reveal what time Appellant arrived that day.

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discovery pertaining to trial. Thus, Appellant’s first issue is waived. See May,

supra at 758.5

Appellant’s remaining claims relate to the trial court’s finding of a legal

traffic stop. Preliminarily, we note that,

[a]n 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. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (cleaned

up).

“The Fourth Amendment to the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution protect citizens from unreasonable

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5 Even if properly preserved, any error was harmless because the court
ultimately considered the same suppression claims mid-trial that Appellant
had raised in his pre-trial motion. See N.T. Jury Trial, 10/19/20, at 61. See
also Commonwealth v. Abbas, 862 A.2d 606 (Pa.Super. 2004) (finding that
“any error that may have occurred [from the dismissal of the pretrial motion
due to appellant’s absence] was harmless because the issues raised in the
motion, in particular the issues of suppression of Abbas’ statements and the
photographs, were thoroughly addressed and resolved at trial.”).

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searches and seizures, including those entailing only a brief detention.”

Commonwealth v. Reppert, 814 A.2d 1196, 1201 (Pa.Super. 2002) (en

banc) (citation omitted).

A search conducted without a warrant is deemed to be
unreasonable and therefore constitutionally impermissible, unless
an established exception applies. One such exception is consent,
voluntarily given. The central Fourth Amendment inquiries in
consent cases entail assessment of the constitutional validity of
the citizen/police encounter giving rise to the consent; and,
ultimately, the voluntariness of consent. Where the underlying
encounter is found to be lawful, voluntariness becomes the
exclusive focus.

Commonwealth v. Strickler, 757 A.2d 884, 888-89 (Pa. 2000) (footnotes

and citations omitted).

I. The Legality of the Traffic Stop

First, Appellant argues that Trooper Fleisher lacked reasonable suspicion

or probable cause to stop the vehicle for tinted windows, since the Motor

Vehicle Code violation was not established, the investigation following the stop

did not target the suspected window tint, and Appellant was never ticketed for

tinted windows. See Appellant’s brief at 34. The issue of what level of cause

a police officer must possess to conduct a vehicle stop based on a possible

violation of the Motor Vehicle Code is a question of law, over which our scope

of review is plenary and our standard of review is de novo. See

Commonwealth v. Chase, 960 A.2d 108 (Pa. 2008).

Generally, a traffic stop must be supported by sufficient facts to provide

an officer with reasonable suspicion to believe that the vehicle or driver was

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in violation of a provision of the Motor Vehicle Code.6 See 75 Pa.C.S.

§ 6308(b).7 However, a stop based on reasonable suspicion under §6308(b)

must “serve an investigatory purpose relevant to the suspected violation.”

Commonwealth v. Salter, 121 A.3d 987 (Pa.Super. 2017); see also

Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. 2010) (en banc).

Therefore, in circumstances where the violation is such that it requires no

additional investigation, the officer must possess probable cause before

initiating the traffic stop.8 See Commonwealth v. Harris, 176 A.3d 1009,

1019 (Pa.Super. 2017).

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6 To establish reasonable suspicion, an officer “must articulate specific
observations which, in conjunction with reasonable inferences derived from
those observations, [lead] him to reasonably conclude, in light of his
experience, that criminal activity is afoot” and that the item to be searched
was involved in that activity. Commonwealth v. Basinger, 982 A.2d 121,
125 (Pa.Super. 2009).

7 Section 6308(b) provides:

Authority of police officer – Whenever a police officer is
engaged in a systematic program of checking vehicles or drivers
or has reasonable suspicion that a violation of this title is
occurring or has occurred, he may stop a vehicle, upon request or
signal, for the purpose of checking the vehicle’s registration, proof
of financial responsibility, vehicle identification number or engine
number or the driver’s license, or to secure such other information
as the officer may reasonably believe to be necessary to enforce
the provisions of this title.

75 Pa.C.S. § 6308(b) (emphasis added).
8 Probable cause exists where “the facts and circumstances within the officer’s
knowledge are sufficient to warrant a person of reasonable caution in the belief
(Footnote Continued Next Page)

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Put another way, if the officer has a legitimate expectation of
investigatory results, the existence of reasonable suspicion will
allow the stop—if the officer has no such expectations of learning
additional relevant information concerning the suspected criminal
activity, the stop cannot be constitutionally permitted on the basis
of mere suspicion.

Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa.Super. 2013) (citation

omitted).

Herein, it is uncontradicted that Trooper Fleisher stopped the vehicle for

an alleged window tint violation under 75 Pa.C.S. § 4524(e)(1). Section

4524(e) states, in pertinent part:

(e) Sun screening and other materials prohibited.—

(1) No person shall drive any motor vehicle with any sun
screening device or other material which does not permit a
person to see or view the inside of the vehicle through the
windshield, side wing or side window of the vehicle.

(2) This subsection does not apply to:

(i) A vehicle which is equipped with tinted
windows of the type and specification that
were installed by the manufacturer of the
vehicle or to any hearse, ambulance,
government vehicle or any other vehicle
for which a currently valid certificate of
exemption has been issued in accordance
with regulations adopted by the
department.

(ii) A vehicle which is equipped with tinted
windows, sun screening devices or other
____________________________________________

that an offense has been or is being committed.” Commonwealth v. Martin,
101 A.3d 706, 721 (Pa. 2014). When making a probable cause determination,
we consider the totality of the circumstances from the vantage point of a
“prudent, reasonable, cautious police officer on the scene at the time.” Id.

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materials which comply with all applicable
Federal regulations and for which a
currently valid certificate of exemption for
medical reasons has been issued in
accordance with regulations adopted by
the department.

75 Pa.C.S. § 4524(e)(1), (e)(2)(i)-(ii).

A violation of §4524(e)(1) is established if an officer is unable to see

inside the vehicle through the windshield, side wing, or side window of the

vehicle. Id. Pennsylvania appellate courts have interpreted §4524(e) and

found that an officer who observes a window-tint violation under §4524(e)(1)

has no burden to confirm that an (e)(2) exception does not apply. See

Commonwealth v. Rodriguez, 81 A.3d 103, 106 (Pa.Super. 2013). Rather,

the §4524(e)(2) exceptions function as affirmative defenses to criminal

culpability, which the defendant may choose to raise at trial. Id. at 106

(finding that the appellant was not entitled to application of the manufacturer-

tint exception because he presented no argument or evidence related to the

installation of the tinted windows in his vehicle).

Since further investigation, beyond the officer’s initial observations,

would provide no additional information as to whether a violation of

§4524(e)(1) occurred, we have held that officers must possess probable cause

before initiating a traffic stop based on a window-tint violation. See Prizzia,

supra at 270 (finding that a police officer had probable cause to stop a vehicle

for a violation of §4524(e) where he could not see the operator through the

window). Probable cause is established where an officer observes that the

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tint on the vehicle’s windows is so dark that it prohibits the officer from seeing

inside the car. See Harris, supra at 1019 (“Pennsylvania law makes clear

that a police officer has probable cause to stop a motor vehicle if the officer

observes a traffic code violation, even if it is a minor offense.”).

Here, the trial court found that Trooper Fleisher credibly testified that

the sole basis for the traffic stop was tinted windows. See Trial Court Opinion,

4/21/21, at 7; see also N.T., 10/19/20, at 45 (Trooper Fleisher testifying that

he pulled the vehicle over for tinted windows). While Trooper Fleisher was

not asked to expand on which windows he had difficulty seeing through, the

court reviewed the MVR of the traffic stop and found that it corroborated the

trooper’s testimony. Id. Specifically, the court found that the vehicle had

“significant window tint.” Id.

We find no abuse of discretion since the suppression court’s factual

findings are supported by the record. The facts demonstrated that

Trooper Fleisher could discern from his initial observation of the vehicle that

the window tint violated §4521(e) because he could not see into the car.

Considering the trial court’s specific finding that the trooper’s testimony was

credible, and our own review of the video, we find no abuse of discretion in its

holding that the trooper possessed the requisite probable cause to conduct

the traffic stop. See Prizzia, supra at 270 (“[T]o possess probable cause

that a vehicle is in violation of section 4524(e)(1), an officer must only observe

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that the tint on the vehicle’s windows is so dark that it prohibits the officer

from seeing inside the car.”).

Furthermore, we find no merit to Appellant’s secondary argument that

the stop was illegal because he was not issued a citation for tinted windows.

Since the vehicle did not belong to Appellant and he was not the one driving,

he would not have been issued a citation for tinted windows. See 75 Pa.C.S.

§ 4524(e)(1) (criminalizing driving a vehicle with tinted windows, not riding

in one). Additionally, the law does not require a tinted window citation to be

issued to legitimize the probable cause basis for the stop. See

Commonwealth v. Postie, 110 A.3d 1034, 1040 (Pa.Super. 2015) (finding

the fact that the appellant was not issued a citation for tinted windows had no

bearing on whether the officer had probable cause to pull the vehicle over).

Accordingly, we do not disturb the trial court’s holding that the initial traffic

stop was legal.

II. Legality of the Consent to Search the Vehicle

Next, Appellant contends that Price’s consent to search the vehicle was

involuntarily given because it was derived from the unlawful traffic stop. See

Appellant’s brief at 36-41. While Appellant acknowledges that such a

challenge would generally require him to make a preliminary showing of

standing and a reasonable expectation of privacy, he has not done so here.

Instead, Appellant argues that he did not need to demonstrate a privacy

interest in the area where the evidence was seized because the search was

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derived from an illegal seizure. See id. at 36 n.2. According to Appellant,

even if we find the initial stop lawful, the trial court still erred because the stop

was unlawfully prolonged past the time needed to issue a ticket for the tinted

windows. Id. Since Price’s consent was coerced as a result, Appellant alleges

that all evidence retrieved should have been excluded as fruit of the poisonous

tree pursuant to Commonwealth v. Shabezz, 166 A.3d 278, 287 (Pa. 2019).

We disagree.

Generally, before we may proceed to a determination of an appellant’s

substantive suppression claim, we must first discern whether the appellant

has established standing to challenge the search of the automobile and a

privacy interest in the contents of it. See Commonwealth v. Burton, 973

A.2d 428, 434-35 (Pa.Super. 2009). Our Supreme Court has emphasized that

these are distinct analyses:

While curiously similar, standing and privacy interest are different
concepts serving different functions. Standing is a legal interest
that empowers a defendant to assert a constitutional violation and
thus seek to exclude or suppress the government’s evidence
pursuant to the exclusionary rules under the Fourth Amendment
of the United States Constitution or Article 1, Section 8 of the
Pennsylvania Constitution. It ensures a defendant is asserting a
constitutional right of his own. The expectation of privacy is an
inquiry into the validity of the search or seizure itself; if the
defendant has no protected privacy interest, neither the Fourth
Amendment nor Article I, § 8 is implicated. In essence, while a
defendant’s standing dictates when a claim under Article I, § 8
may be brought, his privacy interest controls whether the claim
will succeed – once a defendant has shown standing, he must, in
short, having brought his claim, demonstrate its merits by a
showing of his reasonable and legitimate expectation of privacy in
the premises.

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Commonwealth v. Enimpah, 106 A.3d 695, 698-99 (Pa. 2014) (citations

and quotation mark omitted).

Appellant argues that he has standing to pursue a motion to suppress

the contents of the vehicle because he was charged with a possessory offense.

See Appellant’s brief at 36 n.2. We agree. Since Appellant was charged with

a possessory offense, he automatically has standing to challenge the

suppression of the items seized. See Commonwealth v. Viall, 890 A.2d

419, 421 (Pa.Super. 2005). However, whether Appellant needed to establish

a legitimate expectation of privacy in the vehicle’s contents is a closer

question, which Appellant argues is governed by Shabezz.

In Shabezz, our Supreme Court addressed the question of whether,

following an unconstitutional vehicle stop, the Fourth Amendment required a

passenger to demonstrate a reasonable expectation of privacy in those areas

of the vehicle that were searched and that yielded incriminating evidence.

Shabezz, supra at 284. It was undisputed that the stop was illegal and that

the passenger had no privacy interest in the vehicle. Id. Our High Court

ruled that evidence derived from an illegal automobile search constituted fruit

of the poisonous tree because of the illegal seizure. Accordingly, no further

demonstration of a privacy interest in the area from which the evidence was

seized was required by the Fourth Amendment. Id. at 287-89 (rejecting the

Commonwealth’s argument that the passenger must demonstrate a

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reasonable expectation of privacy in the areas of the vehicle where the

incriminating evidence was found regardless of the legality of the stop).

The Shabezz holding created a narrow exception to the general

requirement that defendants must demonstrate standing and a privacy

interest in the relevant area before the merits of their suppression motion can

be assessed. After Shabezz, those defendants who had standing and were

subject to an illegal unconstitutional seizure no longer needed to show that

they also had a privacy interest before their claims could be adjudicated on

the merits. See Commonwealth v. Yount, ___ A.3d ___, 1343 WDA 2020,

2021 WL 5121283, at *5 (Pa.Super. 2021) (non-precedential decision)

(“Because we conclude that the initial traffic stop was illegal, we also agree

with the suppression court’s conclusion that Appellee was not required to

establish an expectation of privacy in the vehicle.”). Herein, we have already

determined that the initial traffic stop was legal. However, the subsequent

request to search the vehicle came after the purpose of the initial detention

had been accomplished. Thus, the issue of whether Appellant can invoke the

exception carved out by Shabezz depends on whether the continuation of the

traffic stop rendered it illegal. For the reasons that follow, we find that it did

not.

It is well-established that the level of police-citizen interaction may alter

over the course of one incident. Therefore, our analysis of the legality of a

particular search or seizure is fact specific and considered in light of the totality

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of the circumstances. See In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). For

example, what began as an investigative detention may devolve into a mere

encounter. See Strickler, supra. Alternatively, what started as a stop

supported by probable cause may transform into a continued detention

buoyed by reasonable suspicion. See Prizzia, supra.

In Prizzia, a trooper initiated a legal traffic stop after he observed tinted

windows. When he approached the operator, he immediately noticed signs of

impairment. The results of field sobriety testing and a blood draw revealed

that the operator was driving while impaired by a controlled substance. A

warrantless consent search of her vehicle uncovered Klonopin pills for which

she did not have a prescription. The operator was arrested and, after

unsuccessfully litigating a suppression motion, was convicted of driving under

the influence and related charges. On appeal, the operator argued that the

stop was unlawfully prolonged past the time needed to issue a ticket for the

window-tint violation, thus coercing her consent to the vehicle search. We

disagreed, affirming the denial of her suppression motion on the grounds that

the trooper “possessed reasonable suspicion, independent from his probable

cause for the window-tint violation, that Appellant was driving under the

influence of narcotics. Thus, he was justified in extending the duration of the

traffic stop to further investigate the DUI offense.” Id. at 272.

Similar to what occurred in Prizzia, the initial stop due to tinted

windows in the instant case was valid since Trooper Fleisher observed a traffic

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code violation. Trooper Fleisher approached the vehicle and requested license

and registration documentation. See 75 Pa.C.S. § 6308(b). Price

immediately admitted that he did not have a valid driver’s license. See

Commonwealth Exhibit 9. Since driving a motor vehicle without a license or

with a suspended license was an additional violation of the motor vehicle code,

Price’s response merited further inquiry. See 75 Pa.C.S. § 1543 (driving while

operating privilege is suspended or revoked). See also 75 Pa.C.S. § 1501

(driving without a valid license). Thus, like the officer in Prizzia, Trooper

Fleisher had the additional reasonable suspicion that he needed to extend the

traffic stop while he investigated whether Appellant or someone else was

capable of driving the vehicle.

During the ensuing fifteen minutes, Trooper Fleisher discovered that

Woodstein had an active warrant for his arrest. Trooper Fleisher then had

probable cause to arrest Woodstein, which he did approximately twenty

minutes into the traffic stop. While Trooper Fleisher was detaining Woodstein,

Price exited his vehicle and engaged in a conversation with Trooper Fleisher.

The conversation centered on Woodstein’s arrest warrant for a drug case out

of York County, but ended when Price gave consent to search his vehicle. The

interaction between Price and Trooper Fleisher lasted approximately three

minutes. The consent-to-search form was executed twenty-six minutes into

the stop. During the ensuing ten-minute vehicle search, Price gave no

indication that the intrusiveness of the search was exceeding the scope of his

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consent. Instead, he continued to cooperate with Trooper Fleisher, even

volunteering to open the trunk when he observed Trooper Fleisher struggling

with the latch.

Accordingly, Trooper Fleisher possessed reasonable suspicion,

independent from his probable cause for the window-tint violation, that Price

was driving with a suspended license. Thereafter, he acquired probable cause

to arrest Woodstein on the outstanding warrant. Thus, he was justified in

extending the duration of the traffic stop to further investigate Price’s licensure

and to arrest Woodstein. Consequently, unlike in Shabezz where the search

followed an illegal stop, the consent search in the instant case occurred after

legitimate initial and extended seizures. Accordingly, Shabezz is inapplicable

here and Appellant was not absolved of his responsibility to show an

expectation of privacy in the vehicle. This he has not done.

According to the Commonwealth’s evidence, the vehicle was registered

to Price, who was operating it at the time of the traffic stop. N.T. Jury Trial,

10/19/20, at 23. Although it was revealed that Price was Appellant’s brother,

Appellant had no other connection to the vehicle. Id. at 36. Given his tenuous

connection to the vehicle, and no indication of a privacy interest by Appellant

in any part of the vehicle, we find that Appellant’s personal privacy rights were

not violated. Accordingly, he cannot mount a successful challenge to the

consent search of Price’s vehicle. See Commonwealth v. Millner, 888 A.2d

at 680, 692 (Pa. 2005) (“[A] defendant cannot prevail upon a suppression

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motion unless he demonstrates that the challenged police conduct violated

his own, personal privacy interests.”) (emphasis added). No relief is due

on this issue.9

III. Legality of Appellant’s Confession

In his final claim, Appellant alleges that the inculpatory statement he

made was not the product of his free will. Appellant asserts that the trial court

therefore erred by admitting it into evidence. As detailed above, in his

statement to police, Appellant claimed ownership of the firearm, conceded

that he did not have a license to carry the firearm, and confessed to

purchasing the weapon for $200 from someone on the street. Appellant

argues that his inculpatory statement was involuntary because he was

subjected to a lengthy illegal traffic stop and police trickery; thus, his

confession was coerced. We disagree.

____________________________________________

9 Appellant also argues that the warrantless search was not authorized
pursuant to Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020). See
Appellant’s brief at 44-45. Appellant did not raise this issue in his Rule
1925(b) statement, therefore, it is waived. See Pa.R.A.P. 1925(b)(4)(vii).
Even if not waived, the issue lacks merit. In Alexander, the Court held that
officers required probable cause and exigent circumstances before conducting
a warrantless search of a vehicle. However, in this case Price gave consent
to search the vehicle. Consent, where voluntarily given, functions as an
exception to the warrant requirement. See Commonwealth v. Strickler,
757 A.2d 884, 888-89 (Pa. 2000). Accordingly, since Price consented to the
search of his vehicle, and Appellant is unable to attack the validity of that
consent, the Alexander holding does not apply.

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When assessing the voluntariness of a confession, we consider the

totality of the circumstances. See Commonwealth v. Bryant, 67 A.3d 716,

724 (Pa. 2013). The factors that guide our review are well-established:

The duration and means of the interrogation, including whether
questioning was repeated, prolonged, or accompanied by physical
abuse or threats thereof; the length of the accused’s detention
prior to the confession; whether the accused was advised of his or
her constitutional rights; the attitude exhibited by the police
during the interrogation; the accused’s physical and psychological
state, including whether he or she was injured, ill, drugged, or
intoxicated; the conditions attendant to the detention, including
whether the accused was deprived of food, drink, sleep, or medical
attention; the age, education, and intelligence of the accused; the
experience of the accused with law enforcement and the criminal
justice system; and any other factors which might serve to drain
one’s powers of resistance to suggestion and coercion.

Id. (citing Commonwealth v. Perez, 845 A.2d 779, 787 (Pa. 2004)). Our

Supreme “Court has applied the totality of circumstances test with no less

force or vigor in cases where there was a claim that a promise or inducement

rendered the confession involuntary.” Commonwealth v. Templin, 795

A.2d 959, 963-64 (Pa. 2002).

In determining voluntariness, the question is not whether the
defendant would have confessed without interrogation, but
whether the interrogation was so manipulative or coercive that it
deprived the defendant of his ability to make a free and
unconstrained decision to confess. By the same token, the law
does not require the coddling of those accused of crime.
One . . . need not be protected against his own innate desire to
unburden himself.

Id. at 966 (citations and quotations omitted).

According to Appellant, his confession was the product of police coercion

because Trooper Fleisher aggressively handcuffed him and Price and

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threatened that they would both be arrested for conspiracy to possess the

firearm if neither confessed ownership. See Appellant’s brief at 48-50. While

Appellant concedes that Trooper Fleisher read him his Miranda warnings, he

nonetheless argues that this did nothing to dissipate the coercive atmosphere

created by the Trooper’s other statements.

After reviewing the MVR, the trial court disagreed. The trial court found

that Appellant’s confession was voluntary and explained its reasoning as

follows:

A review of the totality of the circumstances and the Bryant
factors clearly establishes that [Appellant’s] statement was
voluntary and admissible at trial. On the video introduced at trial,
[Appellant] immediately confessed to being the owner of the
firearm after talking with Price. He subsequently admitted to
possessing the magazine. The questioning of [Appellant] lasted
for [eight] minutes. The means of interrogation was in the form
of questions from Trooper Fleisher. The questioning was not
repeated, prolonged or accompanied by physical abuse or threats
of physical abuse. Prior to the confession, [Appellant] was seated
in the Volvo for about [twenty-five] minutes before the vehicle
was searched. He was then removed from the vehicle prior to the
search and taken into custody [ten] minutes later after the search
had been completed. [Eleven] minutes elapsed between
[Appellant’s] arrest and his confession. The total length of
[Appellant’s] detention before his confession was [forty-six]
minutes which was not excessive or unreasonable under the
circumstances. [Appellant] was also advised of his constitutional
rights upon his arrest and before he made any statements. During
the questioning, Trooper Fleisher’s attitude exhibited with
[Appellant] was conversational and polite. He did not raise his
voice or demand a statement from [Appellant]. There was no
evidence that [Appellant’s] psychological state was compromised
or impaired in any way. [Appellant] was not deprived of food,
drink or sleep and did not need medical attention. There was no
indication that [Appellant’s] age, education, or intelligence
prohibited him from making a voluntary statement.

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Trial Court Opinion, 4/21/21, at 12.

The certified record supports the court’s findings. While Appellant was

handcuffed, we do not find that circumstance alone rendered the atmosphere

so coercive as to deprive Appellant of his own free will. The interview was

short, and Appellant was read his Miranda warnings and told that he did not

need to talk with the Trooper before any questions were asked. When

Detective Fleisher spoke to Appellant, he used a calm voice, and the

questioning never became accusatory or threatening. While Trooper Feisher

told Appellant that he planned to charge both with possessory offenses if

neither confessed, he made no threats or promises of leniency in exchange

for his cooperation. In turn, Appellant responded politely and remained

conversational throughout the brief interview. The only time Appellant raised

his voice was when he became “adamant” that Trooper Fleisher believe that

the gun belonged only to him and his benign reasons for procuring it. See

N.T. Jury Trial, 10/19/20, at 36. See also Commonwealth Exhibit 9.

Since the record supports the trial court’s findings, we do not disturb its

conclusion that Appellant’s statement was voluntarily given. See Templin,

supra at 966 (holding that promising a recommendation of ROR bail at

arraignment did not automatically invalidate the appellant’s confession where

his Miranda rights were explained, the interview lasted only an hour, and

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there was no physical intimidation). Thus, Appellant’s remaining claim fails,

and no relief is due.10

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/08/2022

____________________________________________

10 In his statement of questions, Appellant attacks the sufficiency of the
evidence on the grounds that his confession was involuntary and should not
have been considered as evidence. See Appellant’s brief at 16. Without
Appellant’s confession, he contends that the evidence was insufficient to
sustain his conviction. Id. However, Appellant did not advance this
sufficiency argument in the body of his brief. Accordingly, it is waived.
Regardless, the claim would fail since we do not review sufficiency claims on
a diminished record. See Commonwealth v. Koch, 39 A.3d 996, 1001
(Pa.Super. 2011). Consequently, any sufficiency examination would have
been unaffected by the admissibility of Appellant’s confession.

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