J-S37042-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

JAMEL FLUKER : No. 1839 MDA 2016

Appeal from the Order entered October 17, 2016

in the Court of Common Pleas of Berks County,

Criminal Division, No(s): CP-06-CR-0001609-2014

BEFORE: STABILE, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JULY 17, 2017

The Commonwealth of Pennsylvania appeals from the Order granting 

the Motion to suppress evidence filed by Jamel Fluker (“Fluker”). We affirm.

The suppression court set forth the relevant facts underlying this appeal 

as follows:

On July 30, 2013, [Reading Police] Officers arrived at 645 

North Front Street, Reading, Berks County, Pennsylvania[,] to 

assist Children and Youth Services workers, who were taking 

custody of several children. Officers were notified that [] Fluker, 

... [a] resident of the home [and the father of some of the 

children], had an outstanding bench warrant. When the officers 

arrived at the scene, [Fluker] was not present.

[Fluker] subsequently did arrive, and an officer asked him 

his name. When [Fluker] stated his name, he was placed in 

handcuffs.[1] An officer then asked to have the warrant 

confirmed. While awaiting confirmation, Officer [Joseph] Ring 

[(“Officer Ring”)] testified that [Fluker] told him that he had crack 

cocaine on his person. There was no testimony presented by the 

Commonwealth of any question asked to elicit this statement. [] 

 

1 Notably, the police did not inform Fluker of his rights under Miranda v. 

Arizona, 384 U.S. 436 (1966), and its progeny.
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N.T.[,] pp. 9-10, 8/1/2016. The cocaine was then retrieved from 

[Fluker’s] left pocket, and [Fluker] was placed in the police wagon 

to await police transport. However, the bench warrant could not 

be confirmed, and [Fluker] was released approximately thirty [] 

minutes later.

[Fluker] testified that, after he was handcuffed, [] Officer 

[Ring] asked him if he had anything on his person. N.T.[,] pp. 

36-37, 8/1/2016. [Fluker] stated that he did, and the crack 

cocaine was removed. Id. [Fluker] further testified that he was 

in the police wagon for approximately an hour and a half before 

he was released. Id.

Suppression Court Opinion, 2/1/17, at 2 (footnote added).

In December 2013, the Commonwealth charged Fluker with one count 

of possession of a controlled substance.2 Following several delays 

(attributable to, inter alia, Fluker’s application to the Berks County 

Intermediate Punishment Program, and its eventual rejection of Fluker’s 

application), on April 15, 2016, Fluker filed an Omnibus Pretrial Motion (“the 

OPT Motion”). Therein, Fluker sought suppression of the narcotics (and his 

inculpatory statement) as the fruit of an unlawful custodial detention wherein 

the police did not inform him of his Miranda rights. The suppression court 

scheduled the matter for a suppression hearing (hereinafter “the OPT 

Hearing”) on April 25, 2016.3 Fluker failed to appear at the OPT Hearing, in 

response to which the suppression court dismissed the OPT Motion and 

authorized the issuance of a bench warrant if Fluker did not return to the 

 

2 35 P.S. § 780-113(a)(16).

3 The suppression court later stated that “the [] OPT [H]earing was scheduled 

on short notice.” Suppression Court Opinion, 2/1/17, at 6.
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jurisdiction within one week. Four days later, Fluker appeared to address the 

bench warrant, at which time the suppression court rescinded it. 

On May 12, 2016, Fluker filed a Motion to relist the OPT Motion (“the 

Motion to Relist”). Therein, Fluker asserted that his failure to appear at the 

OPT Hearing was unavoidable because he was outside of the jurisdiction with 

a group of people, on a job for his employer that ran over schedule, and 

unable to return on his own due to his dependence upon the group’s 

transportation. Following a hearing on the Motion to Relist, held on May 19, 

2016 (“the Motion to Relist Hearing”), the suppression court relisted the OPT 

Motion for a pretrial hearing, and ordered Fluker to pay $400 to reimburse the 

Commonwealth and its witnesses for his failure to appear at the OPT Hearing. 

At the relisted suppression hearing on August 1, 2016, Officer Ring, 

Fluker, and two other police officers involved in the July 30, 2013 incident 

testified. 

By an Order entered on October 18, 2016, the suppression court 

granted the OPT Motion, ruling, inter alia, that the evidence against Fluker 

was inadmissible as being the product of a custodial interrogation wherein 

police did not inform him of his Miranda rights. The Commonwealth timely
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filed a Notice of Appeal,4followed by a court-ordered Pa.R.A.P. 1925(b) 

Concise Statement of errors complained of on appeal.

The Commonwealth now presents the following issues for our review:

A. Did the suppression court err by concluding that [] Fluker was 

subjected to a custodial interrogation while he was briefly 

detained as officers awaited verification of a warrant for his 

arrest?

B. Did the suppression court err by permitting the filing and 

subsequent re–filing of [the OPT] [M]otion ...[,] well outside 

the time limitations imposed by Pa.R.Crim.P. 579 and 581[,] 

where the Commonwealth was prejudiced by the delay caused 

by the late filing?

Brief for the Commonwealth at 5 (some capitalization omitted).

The Commonwealth first challenges the suppression court’s grant of the 

OPT Motion, asserting that Fluker’s inculpatory statement, and the narcotics 

seized thereafter, was admissible as being the product of an investigative 

detention, wherein Miranda warnings are not required. Id. at 11.

When the Commonwealth appeals from a suppression order, 

we follow a clearly defined standard of review and consider only 

the evidence from the defendant’s witnesses together with the 

evidence of the prosecution that, when read in the context of the 

entire record, remains uncontradicted. The suppression court’s 

findings of fact bind an appellate court if the record supports 

those findings. The suppression court’s conclusions of law, 

however, are not binding on an appellate court, whose duty is to 

determine if the suppression court properly applied the law to the 

facts.

 

4

In filing this interlocutory appeal, the Commonwealth complied with 

Pennsylvania Rule of Appellate Procedure 311(d), which provides that “[i]n a 

criminal case, under the circumstances provided by law, the Commonwealth 

may take an appeal as of right from an order that does not end the entire 

case where the Commonwealth certifies in the notice of appeal that the order 

will terminate or substantially handicap the prosecution.” Pa.R.A.P. 311(d).
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Commonwealth v. Carter, 105 A.3d 765, 768 (Pa. Super. 2014) (en banc) 

(citation omitted).

“The Fourth Amendment of the Federal Constitution and Article I,

Section 8 of the Pennsylvania Constitution protect individuals from

unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012). There are three categories of interactions 

between police and a citizen: 

The first of these is a “mere encounter” (or request for 

information)[,] which need not be supported by any level of 

suspicion, but carries no official compulsion to stop or respond. 

The second, an “investigative detention[,]” must be supported by 

reasonable suspicion; it subjects a suspect to a stop and period of 

detention, but does not involve such coercive conditions as to 

constitute the functional equivalent of arrest. Finally, an arrest or 

“custodial detention” must be supported by probable cause.

Carter, 105 A.3d at 768 (citation omitted).

Miranda warnings must be provided to a defendant only if he is 

subjected to a custodial interrogation. Commonwealth v. Garvin, 50 A.3d 

694, 698 (Pa. Super. 2012).

The standard for determining whether an encounter with the 

police is deemed “custodial” or police have initiated a custodial 

interrogation is an objective one based on a totality of the 

circumstances, with due consideration given to the reasonable 

impression conveyed to the person interrogated. Custodial 

interrogation has been defined as questioning initiated by law 

enforcement officers after a person has been taken into custody 

or otherwise deprived of his or her freedom of action in any 

significant way. “Interrogation” is police conduct calculated to, 

expected to, or likely to evoke admission. When a person’s 

inculpatory statement is not made in response to custodial 
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interrogation, the statement is classified as gratuitous, and is not 

subject to suppression for lack of warnings.

The appropriate test for determining whether a situation 

involves custodial interrogation is as follows:

The test for determining whether a suspect is being 

subjected to custodial interrogation[,] so as to 

necessitate Miranda warnings[,] is whether he is 

physically deprived of his freedom in any significant way 

or is placed in a situation in which he reasonably believes 

that his freedom of action or movement is restricted by 

such interrogation.

Said another way, police detentions become custodial when, 

under the totality of the circumstances, the conditions and/or 

duration of the detention become so coercive as to constitute the 

functional equivalent of arrest.

The factors a court utilizes to determine, under the totality 

of the circumstances, whether a detention has become so 

coercive as to constitute the functional equivalent of arrest 

include: the basis for the detention; its length; its location; 

whether the suspect was transported against his or her will, how 

far, and why; whether restraints were used; whether the law 

enforcement officer showed, threatened or used force; and the 

investigative methods employed to confirm or dispel suspicions. 

The fact that a police investigation has focused on a particular 

individual does not automatically trigger “custody,” thus requiring 

Miranda warnings.

Commonwealth v. Baker, 24 A.3d 1006, 1019-20 (Pa. Super. 2011) 

(internal citations, brackets and quotations omitted) (quoting

Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999)); see 

also Commonwealth v. Gonzalez, 979 A.2d 879, 888 (Pa. Super. 2009)

(stating that the test for custodial interrogation does not depend upon the 

subjective intent of the law enforcement officer interrogator). Moreover, 

“[w]hile the use of handcuffs is not dispositive of a custody analysis, and we 
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still must conduct a totality-of-the-circumstances analysis, the use of 

restraints is generally recognized as a hallmark of a formal arrest.” 

Commonwealth v. Cooley, 118 A.3d 370, 379 (Pa. 2015) (citations and 

internal quotation marks omitted).

The Commonwealth argues that the suppression court erred by 

concluding that Fluker’s detention was the functional equivalent of a custodial 

arrest, as opposed to an investigative detention. Brief for the Commonwealth 

at 17. According to the Commonwealth, the following facts support a 

determination that the police conducted an investigative detention of Fluker, 

and not a “full-blown custodial arrest”: (1) Fluker “was patted-down and not 

actually searched before being placed in the police wagon”; (2) “Officer Ring 

testified that Fluker was being detained – not arrested – at that time[,] since 

the warrant had not yet been confirmed”; (3) “[f]orce was neither used nor 

threatened”; (4) “[a]lthough Fluker was handcuffed, he was not transported 

from the scene”; (5) “Fluker was detained no longer than necessary and 

ultimately released when the warrant could not be confirmed”; and (6) 

“throughout his entire interaction with police, Fluker remained essentially at 

the same location where the officers had first encountered him.” Id. at 16-

17; see also id. at 15 (asserting that “all of the important events for 

suppression purposes – the initial detention [of Fluker], subsequent 

questioning, and location of the drugs – took place during the first fifteen 

minutes of Fluker’s interaction with the police ....”).
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In its Opinion, the suppression court addressed the Commonwealth’s 

challenge as follows:

A review of the relevant factors in this case shows that the 

conditions surrounding [Fluker’s] interaction with police were so 

coercive as to constitute the functional equivalent of [an] arrest. 

[Fluker] was placed in handcuffs after officers informed him that 

there was an active warrant for his arrest. N.T.[,] pg. 35, 

8/1/2016. There were two police officers present during the 

interaction. [Fluker] was then moved from his porch to the 

sidewalk and then to the police wagon. He was in the police 

wagon for approximately one hour. N.T.[,] pg. 36, 8/1/2016. In 

totality, the [suppression c]ourt finds it unlikely that [Fluker] 

would have believed that he was free to move as he wished. The 

evidence shows that his freedom of movement was restricted. 

Given these circumstances, the interaction between [Fluker] and 

the police reaches the level of a functional arrest.

Suppression Court Opinion, 2/1/17, at 4. 

Our review discloses that the suppression court’s findings are supported 

by the record, and we agree with its legal determination. See id. Of 

particular importance in the totality of the circumstances analysis is the fact 

that Officer Ring placed Fluker in handcuffs prior to patting him down and 

questioning him. See Cooley, supra (noting that “the use of restraints is 

generally recognized as a hallmark of a formal arrest.”). Moreover, the police 

never informed Fluker that he was not under arrest, or that the handcuff 

detention was routine policy pending confirmation of the warrant. See id. at 

379 (holding that the parolee was subjected to the functional equivalent of an 

arrest where he was (1) handcuffed immediately upon arriving at his parole 

agent’s office; (2) questioned about new crimes and searched; and (3) never 

informed that “he was not under arrest or that he was restrained pursuant to 
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routine policy.”). Accordingly, because Fluker’s inculpatory statement was 

made during a custodial detention, wherein he was not given Miranda

warnings, the suppression court properly suppressed this evidence, and the 

narcotics found on his person, as fruits of the poisonous tree. See Baker, 

supra.

5

In its second issue, the Commonwealth argues that the suppression 

court erred by permitting Fluker to re-file the OPT Motion, outside of the time 

limitations imposed by Pennsylvania Rules of Criminal Procedure 5796and 

581.7 See Brief for the Commonwealth at 18-24. The Commonwealth points 

out that the Motion to Relist Hearing was held over two years after the filing 

of the Criminal Complaint, and alleges that the delay, all of which was 

attributable to Fluker, “unfairly prejudiced [the Commonwealth] in its ability 

to meet its burden concerning a possessory drug offense that occurred over 

three years earlier.” Id. at 18; see also id. at 22-23 (explaining the 

prejudice that the Commonwealth allegedly suffered).

 

5 The cases that the Commonwealth relies upon in support of its first issue, 

Commonwealth v. Ellis, 662 A.2d 1043 (Pa. 1995), and Commonwealth 

v. Freeman, 150 A.3d 32 (Pa. Super. 2016), are inapposite, as those cases 

involved investigative detentions, wherein neither defendant was handcuffed.

6 Rule 579 provides that, generally, “the omnibus pretrial motion for relief 

shall be filed and served within 30 days after arraignment, unless opportunity 

therefor did not exist, or the defendant or defense attorney, or the attorney 

for the Commonwealth, was not aware of the grounds for the motion, or 

unless the time for filing has been extended by the court for cause shown.” 

Pa.R.Crim.P. 579(A).

7 Rule 581 provides, inter alia, that “[i]f [a] timely motion [to suppress] is not 

made hereunder, the issue of suppression of such evidence shall be deemed 

to be waived.” Pa.R.Crim.P. 581(B).
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Preliminarily, we must address whether the Commonwealth preserved 

this issue for our review. It is well established that “[o]ne must object to 

errors, improprieties or irregularities at the earliest possible stage of the 

criminal adjudicatory process to afford the jurist hearing the case the first 

occasion to remedy the wrong and possibly avoid an unnecessary appeal to 

complain of the matter.” Commonwealth v. Rosser, 135 A.3d 1077, 1086 

(Pa. Super. 2016) (citation and ellipses omitted). “Issues not raised in the 

lower court are waived and cannot be raised for the first time on appeal.” 

Pa.R.A.P. 302(a). 

Here, the Commonwealth did not object before the suppression court 

that the OPT Motion was untimely, despite having had multiple opportunities 

to do so, nor did it articulate any prejudice that it suffered as a result of the 

delay.8 Accordingly, this claim is waived. See id.; see also 

Commonwealth v. Colavita, 993 A.2d 874, 891 (Pa. 2010) (stating that 

“[w]here the parties fail to preserve an issue for appeal, the Superior Court

 

8 We acknowledge that (1) at the OPT Hearing, the prosecutor requested the 

suppression court to dismiss the OPT Motion for Fluker’s failure to appear, and 

issue a bench warrant, N.T., 4/25/16, at 2; and, (2) at the Motion to Relist 

Hearing, the prosecutor requested the suppression court to deny the Motion 

to Relist, pointing to Fluker’s failure to appear at that hearing or the OPT 

Hearing, N.T., 5/19/16, at 2. However, on neither occasion did the 

prosecutor argue that the OPT Motion was untimely or articulate any 

prejudice to the Commonwealth attributable to the delay. See 

Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016) (stating 

that a new theory of relief cannot be raised for the first time on appeal).
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may not address that issue sua sponte.” (citation omitted)).9Furthermore, 

the fact that the Commonwealth raised this issue in its Rule 1925(b) Concise 

Statement does not preserve this issue on appeal. See Commonwealth v. 

Melendez-Rodriguez, 856 A.2d 1278, 1288 (Pa. Super. 2004) (holding that 

“[a] party cannot rectify the failure to preserve an issue by proffering it in 

response to a Rule 1925(b) order.”) (citation omitted). 

Accordingly, as neither of the Commonwealth’s issues entitle it to relief, 

and the suppression court did not err in granting the OPT Motion, we affirm 

the Order on appeal.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2017

 

9 Nevertheless, even if this claim was not waived, we would determine that it 

is without merit based upon the reasoning advanced in the suppression 

court’s Opinion. See Suppression Court Opinion, 2/1/17, at 5-6 (stating, 

inter alia, that “[w]hether the interests of justice require an extension of the 

thirty[-]day time limit to file an omnibus pretrial motion is a ‘matter for the 

discretion of the trial judge.’ [Commonwealth v.] Long, 753 A.2d 272, 279 

(Pa. Super. 2000)[; see also id. at 280 (stating that “[a] trial judge should 

exercise discretion to hear an untimely [] suppression motion on this basis in 

such situations where the merits of [the] [] motion were so apparent that 

justice required it be heard.”) (citation and quotation marks omitted).] In 

this case, the [suppression] court found that the interests of justice were best 

served by allowing [Fluker] to refile the [OPT M]otion[,]” where “the 

Commonwealth has failed to articulate any particular prejudice” it suffered as 

a result of the extension).