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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

RAUL BROWN,

Appellant : No. 1473 EDA 2018

Appeal from the Judgment of Sentence April 18, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0000415-2017

BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED JULY 23, 2019

Raul Brown (Appellant) appeals from the judgment of sentence imposed

after the trial court convicted him of persons not to possess firearms.' After

careful consideration, we affirm.

The trial court summarized the relevant facts of this case as follows:

On November 8, 2016, at about 8:30 p.m., Philadelphia Police

Officers Michael Inemer and William Barr were on routine patrol

in the area of the 600 block of East Ontario Street in Philadelphia

when they observed a vehicle driven by Appellant leave a parking

space and travel east on Ontario Street. The officers conducted a

traffic stop of the vehicle because its headlights and tail lights

were off when it left the parking space and entered travel. The

officer testified that the vehicle had an unusual amount of air

fresheners in it and, when asked for paperwork, Appellant could

only produce the title for the vehicle and his driver's license.

Since Appellant was unable to produce all of the required

paperwork, Officer Barr asked Appellant if he and his partner could

search the vehicle. Appellant stated that he was the owner of the

' 18 Pa.C.S.A. § 6105(a)(1).
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vehicle, having purchased it the previous day. Appellant verbally

consented to the search and signed a consent form. The officers

then searched the vehicle and, in its trunk, Officer Barr recovered

a .9 millimeter Smith and Wesson semiautomatic handgun and

loose bullets in some sort of a belt. The firearm was placed on a

property receipt. Appellant did not have a license to possess a

firearm and had prior convictions that made him ineligible to do

so.

While Appellant was incarcerated, he made a telephone call

which was recorded by prison authorities. During the call,

Appellant stated, "I did this. I put myself in here. I know better.

I take the majority of this blame. I didn't have to live like this."

The tape was admitted into evidence.

Trial Court Opinion, 9/27/18, at 2-3 (footnote and record citations omitted).

On September 28, 2017, Appellant appeared before the [trial

court] for a Motion to Suppress a firearm recovered by police in

the trunk of a car that Appellant was driving. At the conclusion of

the hearing, the [trial court] denied Appellant's motion and a trial

was held on February 7, 2018 . . ., sitting without a jury. At the

conclusion of the trial, [the trial court] found Appellant guilty of

the crime of Possession of Firearm by a Prohibited Person, 18

Pa.C.S.[A.] § 6105[(a)(1)].

On April 18, 2018, [the trial court] imposed a sentence of five

to ten years [of] incarceration on the Possession of Firearm by a

Prohibited Person conviction. On May 16, 2018, Appellant filed a

notice of appeal followed by a counseled court -ordered Pa.R.A.P.

1925(b) Statement of Matters raised on Appeal.

Id. at 1-2.

On appeal, Appellant presents the following issue for review:

Did the [t]rial [c]ourt err by denying Appellant's Motion to

Suppress Physical Evidence (i.e. the gun found in the trunk of the

car being driven by Appellant), where the evidence did not

establish that his consent to search was obtained voluntarily and

in accordance with lawful police procedure or that Appellant's

vehicle was subject to impoundment and an inventory search?

Appellant's Brief at 3.

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Our standard of review is as follows:

[An appellate court's] standard of review in addressing a challenge

to the denial of a suppression motion is limited to determining

whether the suppression court's factual findings are supported by

the record and whether the legal conclusions drawn from those

facts are correct. Because the Commonwealth prevailed before

the suppression court, we may consider only the evidence of the

Commonwealth and so much of the evidence for the defense as

remains uncontradicted when read in the context of the record as

a whole. Where the suppression court's factual findings are

supported by the record, [the appellate court] is bound by [those]

findings and may reverse only if the court's legal conclusions are

erroneous. Where . . . the appeal of the determination of the

suppression court turns on allegations of legal error, the

suppression court's legal conclusions are not binding on an

appellate court, whose duty it is to determine if the suppression

court properly applied the law to the facts. Thus, the conclusions

of law of the courts below are subject to [ ] plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015) (citation

omitted). Importantly, our scope of review from a suppression ruling is limited

to the evidentiary record that was created at the suppression hearing. In re

L..7., 79 A.3d 1073, 1087 (Pa. 2013).

"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). As this Court has explained:

A search conducted without a warrant is constitutionally

impermissible unless an established exception applies.

Commonwealth v. Slaton, 608 A.2d 5, 8-9 ([Pa.] 1992). A

consensual search is one such exception, and the central inquiries

in consensual search cases entail assessment of the constitutional

validity of the citizen/police encounter giving rise to the consent,

and the voluntariness of the consent given. [Commonwealth v.

Cleckley, 738 A.2d 427, 433 (Pa. 1999)]. To establish a valid

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consensual search, the Commonwealth must first prove that the

individual consented during a legal police interaction.

Commonwealth v. Strickler, [] 757 A.2d 884, 889 ([Pa.] 2000).

Where the interaction is lawful, the voluntariness of the consent

becomes the exclusive focus. Id.; Commonwealth v. Acosta,

815 A.2d 1078, 1083 (Pa. Super. 2003) (en banc).

Commonwealth v. Randolph, 151 A.3d 170, 176-77 (Pa. 2016).

"To secure the right of citizens to be free from such [unreasonable]

intrusions, courts in Pennsylvania require law enforcement officers to

demonstrate ascending levels of suspicion to justify their interactions with

citizens as those interactions become more intrusive." Commonwealth v.

Pratt, 930 A.2d 561, 563 (Pa. Super. 2007). Courts in this Commonwealth

have recognized three types of interactions between the police and a citizen:

a mere encounter, an investigative detention, and a custodial detention.

A mere encounter between police and a citizen need not be

supported by any level of suspicion, and carr[ies] no official

compulsion on the part of the citizen to stop or to respond. An

investigatory stop, which subjects a suspect to a stop and a period

of detention . . . requires a reasonable suspicion that criminal

activity is afoot. A custodial search is an arrest and must be

supported by probable cause.

Commonwealth v. Newsome, 170 A.3d 1151, 1154 (Pa. Super. 2017)

(citation omitted).

Appellant does not dispute that Officers Inemer and Barr had probable

cause to stop Appellant's vehicle for violations of the Pennsylvania Vehicle

Code. Instead, Appellant argues that he did not voluntarily consent to the

officers' search of the vehicle. Specifically, Appellant contends that his

consent to search his vehicle was not voluntary because he did not give it until

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the officers placed him in the back of a police vehicle. Appellant further asserts

that Officer Barr was unable to specify precisely when and where Appellant

gave consent. Appellant argues that Officer Barr conceded that he altered the

time written on the consent to search form.

Regarding consent to searches, this Court has stated:

The Commonwealth bears the burden of proving that the

defendant consented to a warrantless search. See

Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa. Super.

2003) (en banc). To establish a voluntary consensual search, the

Commonwealth must prove "that a consent is the product of an

essentially free and unconstrained choice - not the result of

duress or coercion, express or implied, or a will overborne - under

the totality of the circumstances." Strickler, 757 A.2d at 901.

Randolph, 151 A.3d at 179.

While there is no hard and fast list of factors evincing

voluntariness, some considerations include: 1) the defendant's

custodial status; 2) the use of duress or coercive tactics by law

enforcement personnel; 3) the defendant's knowledge of his right

to refuse to consent; 4) the defendant's education and

intelligence; 5) the defendant's belief that no incriminating

evidence will be found; and 6) the extent and level of the

defendant's cooperation with the law enforcement personnel.

Commonwealth v. Miller, 186 A.3d 448, 451 (Pa. Super. 2018) (citation

omitted), appeal denied, 199 A.3d 858 (Pa. 2018).

In concluding that Appellant consented to the search, the trial court

explained:

After Appellant stopped, Officer Barr observed that the vehicle

had an unusual amount of air fresheners on the dashboard. In

the officer's experience, air fresheners are often used to mask the

odor of narcotics. (N.T.[,] 9/28/17, [at] 11). Appellant also did

not have paperwork for the vehicle other than the title. As such,

the officers decided to Live Stop the vehicle. ([Id. at] 12, 14).

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The police asked Appellant for permission to search the car and

he gave both oral and written signed consent to do so after being

advised several times that he was not obliged to give such

consent. ([Id. at] 11-12, 14-15).

Trial Court Opinion, 9/27/18, at 5.

Based on our review of the certified record, particularly the transcript of

Appellant's suppression hearing, we conclude that the trial court accurately

summarized the evidence presented at the hearing. Notably, Officer Barr's

testimony reveals that, contrary to Appellant's assertion, the officers did not

place Appellant into the back of their police vehicle until after Appellant

consented to the search of his vehicle. N.T., 9/28/17, at 21. Although the

record is unclear as to precisely when during the stop Appellant consented to

the search, the record nevertheless reflects that Appellant consented, both

orally and in writing, to the search of his vehicle prior to the officers placing

him in the back of their vehicle and prior to the search. Id. Moreover, the

record contains no evidence that Officers Inemer and Barr used duress or

coercive tactics to obtain Appellant's consent.

Consistent with the foregoing, the trial court did not abuse its discretion

in determining that Appellant consented to the search of his vehicle. See

Randolph, 151 A.3d at 179. We thus conclude that the trial court did not err

in denying Appellant's suppression motion.

Judgment of sentence affirmed.

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Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 7/23/19

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