Com. v. Tokarcik, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RICHARD E. TOKARCIK, JR. :
:
Appellant : No. 741 WDA 2018
Appeal from the Judgment of Sentence February 7, 2018
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000132-2017
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED OCTOBER 30, 2019
Richard E. Tokarcik, Jr. (Appellant) appeals from the judgment of
sentence imposed after a jury found him guilty of criminal attempt – statutory
sexual assault, unlawful contact with a minor (relating to sexual abuse of
children), criminal solicitation – child pornography, criminal attempt –
corruption of minors, corruption of minors, and criminal use of a
communication facility.1 On appeal, Appellant challenges the trial court’s
denial of his suppression motion. After careful consideration, we affirm.
The trial court recounted the evidence presented at the suppression
hearing as follows:
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 901(a)/3122.1(b), 6318(a)(5), 902(a)/6312(d),
901(a)/6301(a)(1)(i), 6301(a)(1)(i), 7512(a).
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Officer [(Andrew)] Turnbull learned on January 6, 2017 that an
individual going by the name “Adam” had been sending sexually
explicit texts to three underage girls. He believed the texter to be
an older man based on references he made to his penis and his
claim to be of the same generation as a “62-year-old
grandmother.”
After attempting unsuccessfully to call the suspect, Turnbull
began texting him as the 16-year-old “Jamie” and her [15]-year-
old sister, “Sam.” Two days later, after exchanging sexually
explicit texts, among which the suspect described his genitalia,
the “three” decided to arrange a meeting. The suspect initially
suggested a rendezvous at “Diamond J” truck stop, which
confirmed to Turnbull that the man [with whom] he was
communicating was older since the truck stop had not been known
by that name in the officer’s lifetime, but the “three” ultimately
agreed to meet at a location on the southeast side of Brookville.
The suspect texted “Jamie” just after midnight on January 8 to
say he was en route.
Once the suspect and his would-be “victims” had agreed on a
destination, Turnbull updated Officer [(Justin)] Miller, who parked
his patrol car on a street the suspect would have to pass on his
way to meet “Jamie” and “Sam.” Pursuant to the plan he had
discussed with his colleague, Miller was planning to stop the
suspect. He knew he was looking for an older model vehicle,
which Turnbull had surmised from the suspect’s references to the
fact that it rattled and “did not even have a CD player.”
Although the suspect expressed some reservations about the
meet-up, he ultimately arrived in the borough and spoke with
“Jamie” to advise her that he was at the carwash near Hilltop, a
convenience market and gas station situated adjacent to the car
wash. Though he had attempted to channel his best high-pitched
female voice, Officer Turnbull was concerned that he had spoiled
the ruse and immediately alerted Officer Miller.
Looking toward state route 322, Miller saw an older pick-up
truck turning left onto Evans Street. He knew that the only places
from which it could be coming were the car wash parking lot and
a nearby dirt road. He also knew that the suspect had told
Turnbull moments earlier that he was at the carwash and that the
truck’s direction of travel was consistent with where the unlawful
encounter was scheduled to take place. Aware that traffic in
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Brookville tended to be sparse at 1:18 a.m., therefore, the officer
believed he was looking at the perpetrator’s truck. He thus turned
around at the carwash and, engaging his siren and emergency
lights, stopped the vehicle on Ridge Avenue, a residential street
lined with homes and illuminated by a street light.
Employing his employer’s designated procedures for high-risk
and felony stops, Miller exited the patrol vehicle, drew his gun,
and, ordered the suspect, whom he later learned was [Appellant],
to get out of the truck and lie face-down on the ground. His back
to the officer the entire time, [Appellant] complied. He thus did
not see that Miller had a gun. He testified, however, that he
assumed as much from things he had seen on television.
Turnbull arrived a few minutes later and was quickly able to
ascertain that [Appellant] was in fact an older man driving an older
vehicle. He thus detained him for further investigation, which
included checking him for weapons and placing him in handcuffs.
Within moments of his arrival, Turnbull was helping [Appellant] to
his feet and escorting him to the back of his own truck, where he
took a seat on the bumper.
[After reading Appellant his Miranda[2] rights, Officer Turnbull
asked Appellant] whether he knew what was going on[.]
[Appellant] said he knew “they” had the messages, at which point
Turnbull retrieved his cell phone and dialed the phone numbers
from which “Jamie” and “Sam” had received the subject texts and
recent phone call. Both phones rang from inside [Appellant]’s
truck[.] . . . He completed that transaction by putting [Appellant]
in the back of Miller’s patrol cruiser . . . . A tow truck was then
called to remove [Appellant]’s vehicle from the scene.
[Appellant] related a somewhat different scenario. He agreed
that Officer Turnbull asked whether he knew what was going on
and conceded that his answer may have been consistent with the
officer’s testimony. He testified, however, that he was never
advised that he was under arrest; that neither officer spoke to him
while he lay on the ground, during the few minutes he sat on his
truck’s bumper, or as he was placed into the police cruiser; and
that [Officer Turnbull]’s first words to him were, “You have the
right to remain silent,” which he indicated were given only after
____________________________________________
2 Miranda v. Arizona, 384 U.S. 436 (1966).
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he had been in the back seat for a few minutes, restrained not
only by handcuffs, but also by the officer standing directly outside
his closed door. He thus believed he was under arrest, he said,
from the moment Officer Miller ordered him to exit his vehicle.
Trial Court Opinion on Omnibus Pretrial Motion, 9/28/17, at 1-3.
Following his arrest, Appellant was charged with numerous sex crimes.
On September 22, 2017, Appellant filed a pre-trial motion to suppress
evidence from his vehicle stop and subsequent detention. Appellant averred
that Officers Miller and Turnbull placed him under arrest immediately upon
stopping his vehicle and did not have probable cause to do so. On September
28, 2017, following a hearing, the trial court denied the motion.
On October 18, 2017, Appellant filed a motion to reconsider the denial
of his suppression motion. In his motion, Appellant contested the veracity of
Officer Turnbull’s testimony that when he called the suspect’s phone numbers
during the stop, the phones in Appellant’s vehicle rang. Appellant argued that
the call logs for the cell phones recovered from his vehicle did not contain calls
from Officer Turnbull at the time immediately preceding his arrest.
Consequently, he asserted that the officers lacked probable cause to arrest
him. The same day, the trial court denied Appellant’s motion for
reconsideration.
On October 19, 2016, a jury found Appellant guilty of the above-
referenced crimes. On February 7, 2018, the trial court sentenced Appellant
to an aggregate term of 10 to 20 years of incarceration. Appellant filed a
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timely post-sentence motion, which the trial court denied on March 28, 2018.
This timely appeal followed.3
On appeal, Appellant presents the following issue for review:
Whether the record supports the trial court’s finding that the facts
and circumstances of Appellant’s detention and arrest
demonstrate Officers Miller and Turnbull initiated an investigatory
detention based on reasonable suspicion which, through further
investigation, confirmed their suspicions and evolved into
probable cause to arrest Appellant?
Appellant’s Brief at 5.
Appellant challenges the denial of his suppression motion. 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. Mason, 130 A.3d 148, 151-52 (Pa. Super. 2015)
(quotations and citations omitted), abrogated on other grounds,
____________________________________________
3 Both the trial court and Appellant have complied with Pa.R.A.P. 1925.
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Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019). 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.J., 79 A.3d 1073, 1087 (Pa.
2013).
It is well-settled that there are three categories of interactions between
police and a citizen evaluated pursuant to Article I, Section 8 of the
Pennsylvania Constitution:
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 to respond. The second, an
‘investigative detention’ must be supported by a reasonable
suspicion; it subjects a suspect to a stop and a period of detention,
but does not involve such coercive conditions as to constitute the
functional equivalent of an arrest. Finally, an arrest or ‘custodial
detention’ must be supported by probable cause.
Commonwealth v. Downey, 39 A.3d 401, 405 (Pa. Super. 2012) (citation
omitted).
“To guide the crucial inquiry as to whether or not a seizure has been
effected, the United States Supreme Court has devised an objective test
entailing a determination of whether, in view of all surrounding circumstances,
a reasonable person would have believed that he was free to leave.”
Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000). In evaluating
the totality of the circumstances, our focus is whether, “by means of physical
force or show of authority, the citizen-subject’s movement has in some way
been restrained.” Id. at 889. In making this determination, no single factor
dictates “the ultimate conclusion as to whether a seizure has occurred.” Id.
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Appellant asserts that his encounter with the police constituted a
custodial detention (i.e., an arrest) because when Officer Miller encountered
and approached him, he immediately drew his firearm, held Appellant at
gunpoint, and had him lay on the ground. Appellant further contends that his
encounter with the police was an arrest because when Officer Turnbull arrived,
he handcuffed Appellant and read him his Miranda rights before having any
kind of discussion with him. Thus, Appellant argues that the appropriate
inquiry into whether his detention was lawful is whether the police had
probable cause to arrest him.
“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. Stevenson, 894 A.2d 759, 770 (Pa. Super.
2006), abrogated on other grounds, Hicks, 208 A.3d 916. In
Commonwealth v. Hannon, 837 A.2d 551 (Pa. Super. 2003), we stated that
“an arrest exists 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. “This test is an objective test, and all circumstances must be
viewed in the light of the reasonable impression conveyed to the person
subjected to the seizure.” Id. (quotations and citations omitted).
Significantly, this Court has explained that “[c]ourts analyze numerous
factors to determine whether a detention has become an arrest.” Stevenson,
894 A.2d at 770. These factors include: “the cause for the detention, the
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detention’s 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.In Hannon, we determined that following circumstances constituted an
arrest:
The facts indicate that the police drew their weapons, ordered
appellant out of the car, immediately restrained him with
handcuffs, searched him, placed him in a police vehicle, and
eventually transported him to the police station where Miranda
warnings were given and an interrogation took place. A person
subjected to this seizure would reasonably believe that he was
under the control of the police and that the police intended to take
him into custody when he was ordered out of the car at gunpoint
and restrained with handcuffs.
Hannon, 837 A.2d at 554.
Upon review, we agree that Appellant’s encounter with the police
constituted an arrest. The record reflects that when Officer Miller stopped
Appellant’s vehicle, he ordered Appellant “out [of his vehicle] at gunpoint and
had him lay on the ground” until Officer Turnbull arrived. Id. at 15. When
Officer Turnbull arrived several minutes later, he immediately handcuffed
Appellant and read him Miranda rights. Id. at 42-43. During this time,
neither officer attempted to further confirm or dispel their belief that Appellant
was their suspect. See id. at 15, 42-43. Consequently, at this point,
Appellant was subject to arrest. Officer Turnbull then asked Appellant if he
“understood what was going on or why this was happening.” Id. at 43. Officer
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Turnbull testified that in response, Appellant “stated that he knew and that
we had the messages.” Id.
Unlike the officers in Hannon, Officers Miller and Turnbull did not put
Appellant in a police vehicle for transport to the police station prior to
Appellant making incriminating statements. Officer Miller, however, held
Appellant at gunpoint and had him on the ground for several minutes until
Officer Turnbull arrived. Upon his arrival, Officer Turnbull immediately
handcuffed Appellant, and then read Appellant his Miranda rights. As we
stated in Hannon, based on the totality of the circumstances, a person “would
reasonably believe that he was under the control of the police and that the
police intended to take him into custody when he was ordered out of the car
at gunpoint and restrained with handcuffs.” Hannon, 837 A.2d at 554.
Moreover, it is well-settled that “the Miranda safeguards come into play
whenever a person in custody is subjected to either express questioning or
its functional equivalent.” Commonwealth v. Gaul, 912 A.2d 252, 255 (Pa.
2006) (emphasis added, quotations and citations omitted); Commonwealth
v. Williams, 941 A.2d 14, 30 (Pa. Super. 2008). “Miranda warnings are
necessary any time a defendant is subject to a custodial interrogation.” Gaul,
912 A.2d at 255. That Miranda warnings are not necessary in a situation
where an individual is not under arrest further supports Appellant’s position
that he reasonably believed that he was under the control of the police and
that the police intended to take him into custody. Therefore, based on the
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totality of the circumstances, we conclude that the police officers’ encounter
with Appellant was a custodial detention, i.e., an arrest. Accordingly, we must
determine whether the police had probable cause to arrest Appellant. See
Downey, 39 A.3d at 405.
Probable cause exists “where the facts and circumstances within the
officers’ knowledge are sufficient to warrant a person of reasonable caution in
the belief that an offense has been or is being committed.” Commonwealth
v. Stultz, 114 A.3d 865, 883 (Pa. Super. 2015). We have explained:
In determining whether probable cause existed in a particular
situation, a court will look not just at one or two individual
factors, but will consider the “totality of the
circumstances” as they appeared to the arresting officer:
When we examine a particular situation to determine if
probable cause exists, we consider all the factors and their
total effect, and do not concentrate on each individual
element . . . . We also focus on the circumstances as seen
through the eyes of the trained officer, and do not view the
situation as an average citizen might . . . . Finally, we must
remember that in dealing with questions of probable cause,
we are not dealing with certainties. We are dealing with the
factual and practical considerations of everyday life on which
reasonable and prudent [persons] act.
Commonwealth v. Simmons, 440 A.2d 1228, 1234 (Pa. Super.
1982), quoting Commonwealth v. Kazior, 410 A.2d 822, 824
(Pa. Super. 1979). It is only the probability, and not a prima facie
showing, of criminal activity that is the standard of probable cause
for a warrantless arrest. Commonwealth v. Kloch, 327 A.2d
375 (Pa. Super. 1974). Probable cause exists when criminality is
one reasonable inference; it need not be the only, or even the
most likely, inference. See, e.g., Commonwealth v. Kendrick,
490 A.2d 923, 927 (Pa. Super. 1985) (probable cause “does not
demand any showing that . . . a belief [of criminal activity] be
correct or more likely true than false”); Commonwealth v.
Moss, 543 A.2d 514, 518 (Pa. 1988) (in assessing sufficiency of
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probable cause, the fact that other inferences could be drawn from
circumstances does not demonstrate that inference that was
drawn by police was unreasonable). As Courts of this
Commonwealth have repeatedly emphasized,
determinations of probable cause “must be based on
common-sense non-technical analysis.”
Commonwealth v. Quiles, 619 A.2d 291, 298 (Pa. Super. 1993) (en banc)
(citations modified) (emphases added).
The trial court, concluding that Officers Miller and Turnbull had probable
cause to arrest Appellant, explained:
In light of the [1:00 a.m.] hour at which [Appellant] was
apprehended, his text to “Jamie” that he was at the car wash,
Officer Miller’s contemporaneous sighting of [Appellant’s] vehicle
exiting the car wash parking lot, and Turnbull’s ability to
immediately identify the person lying on the pavement as an older
man driving an older vehicle, it would have sanctioned the officer’s
actions had he taken [Appellant] into custody immediately.
Trial Court Opinion on Motion for Reconsideration, 10/18/17, at 2.
Our review of the record reflects that prior to Appellant’s arrest, Officer
Turnbull was attempting, while posing as an underage female, to arrange a
meeting with the suspect, who was under the impression that the meeting
would be for the purpose of engaging in sex with two underage females in
Brookville, Jefferson County, Pennsylvania. N.T., 9/26/17, at 34-36. Officer
Turnbull stated that the suspect indicated that his vehicle was rattling, making
a lot of noise, and did not “even have a CD player,” leading Officer Turnbull to
believe the suspect was driving an older, run-down vehicle. Id. at 39-40.
Officer Turnbull testified that at around 1:16 a.m., the suspect told him he
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was at Henry’s Car Wash in Brookville. Id. at 37-38. Officer Turnbull
immediately relayed all of this information to Officer Miller. Id. at 7, 9-10.
Officer Miller testified that upon receiving the call from Officer Turnbull,
he proceeded to Henry’s Car Wash. Id. at 10-11. Officer Miller described the
area of Henry’s Car Wash as sparsely populated, with one or two other
businesses that were closed and vacant, given that it was approximately 1:16
a.m. on January 6th. Id. at 8. Officer Miller indicated that there was no one
else on the road, which was typical for that time of night and the frigid
temperatures the area was experiencing. Id. at 8, 12. Officer Miller reported
that roughly a minute later, as he approached Henry’s Car Wash, he saw
Appellant’s 1989 Ford truck pulling out. Id. at 9, 11. Officer Miller stated that
when he saw Appellant’s truck, which appeared old and run-down, he
“absolutely” knew he had located the suspect, and proceeded to make the
traffic stop. Id. at 12-14.
After careful consideration, and “based on the totality of the
circumstances as they appeared to the arresting officers,” we conclude that
Officers Miller and Turnbull had reason to believe Appellant was the suspect
Officer Turnbull was investigating for sending sexually explicit texts to, and
attempting to solicit, underage females. Quiles, 619 A.2d at 298(“determinations of probable cause ‘must be based on common-sense non-
technical analysis’”). The officers knew from Officer Turnbull’s
communications with the suspect that the suspect was driving an older, run-
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down vehicle. The suspect further communicated that he was waiting at
Henry’s Car Wash in Brookville — a sparsely populated area that was
experiencing frigid temperatures at approximately 1:16 a.m. on Friday,
January 6, 2017, when no one else was on the road — for the purpose of
meeting with and engaging in sexual activity with two underage females.
Upon arriving at Henry’s Car Wash, Officer Miller observed Appellant, in a 1989
Ford Truck, leaving the area. In short, Officer Miller discovered Appellant in
the exact location (the car wash), at the exact time (around 1:16 a.m.),
communicated by the suspect. The encounter occurred during unfavorable
weather conditions, at a time of day when no one else was around, making it
highly unlikely that anybody but the suspect would be at that location at that
time. On this record, the facts within the officers’ knowledge were sufficient
for a person of reasonable caution to believe — in Officer Miller’s case,
“absolutely” believe — that Appellant was the suspect sending sexually explicit
texts to underage females, and driving to a car wash in the middle of a very
cold January night to meet them for a sexual encounter. See Stultz, 114
A.3d at 883. Accordingly, we discern no error in the trial court’s determination
that the officers had probable cause to arrest Appellant, and the court’s
corresponding denial of Appellant’s suppression motion.
Judgment of sentence affirmed.
Judge McLaughlin joins the memorandum.
Judge Colins concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2019
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