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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Miranda3rights?

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 Terry4stop 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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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 onehalf 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 

____________________________________________

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