Com. v. Burger, T. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TYLER ADAM BURGER : No. 495 MDA 2021
Appeal from the Suppression Order Entered March 19, 2021
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0004994-2020
BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: FEBRUARY 8, 2022
Appellant, the Commonwealth of Pennsylvania, appeals from the March
19, 2021, order entered in the Court of Common Pleas of York County, which
granted, in part, and denied, in part, the pre-trial suppression motion filed by
Appellee, Tyler Adam Burger.1 Following a careful review, we reverse the
portion of the lower court’s March 19, 2021, suppression order, which granted
Appellee’s motion to suppress; we affirm the portion of the suppression order,
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* Former Justice specially assigned to the Superior Court.
1 “The Commonwealth may appeal an interlocutory order suppressing
evidence where, as here, the Commonwealth provides a certification with its
notice of appeal that the order terminates or substantially handicaps the
prosecution.” Commonwealth v. Williams, 165 A.3d 994, 995 n.1
(Pa.Super. 2017) (citing Pa.R.A.P. 311(d)) (other citation omitted).
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which denied Appellee’s motion to suppress; and we remand for further
proceedings consistent with this decision.
The relevant facts and procedural history are as follows: Appellee was
arrested and charged with numerous possessory offenses related to controlled
substances, as well as numerous driving while under the influence (“DUI”) of
alcohol or controlled substance offenses and failing to signal.2 On February 9,
2021, Appellee filed a counseled omnibus pre-trial motion seeking to suppress
evidence seized by Pennsylvania State Police Trooper Franklin Abreu, as well
as the statements Appellee made to the trooper, following the stop of his
vehicle.
Specifically, Appellee averred the initial stop of his vehicle was illegal
since the trooper lacked the necessary reasonable suspicion or probable cause
to effectuate the stop. See Appellee’s Motion to Suppress, filed 2/9/21, at 6
¶45. He also averred that, assuming the initial stop was proper, “it was
extended beyond the necessary time to address the citations and no separate
reasonable suspicion existed to extend the traffic stop and turn it into an
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2 Specifically, he was charged with possession of a controlled substance, 35
P.S. § 780-113(a)(16); possession of a small amount-personal use, 35 P.S. §
780-113(a)(31)(i); possession of drug paraphernalia, 35 P.S. § 780-
113(a)(32); DUI: Controlled Substance-Schedule I-1st offense, 75 Pa.C.S.A.
§ 3802(d)(1)(i); DUI: Controlled Substance-Schedule II or III-1st offense, 75
Pa.C.S.A. § 3802(d)(1)(ii); DUI: Controlled Substance-Schedule I, II, or III-
1st Offense, 75 Pa.C.S.A. § 3802(d)(1)(iii); failing to signal, 75 Pa.C.S.A. §
3334(a), and DUI of alcohol or a controlled substance, 75 Pa.C.S.A. §
3802(d)(2).
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investigatory stop.” Id. at 6 ¶46. In this vein, Appellee contended the
following:
51. Removing [Appellee] from his vehicle and interrogating him
as to the status of his license, his history of drug use, and the
presence of drugs and paraphernalia amounts to an investigative
detention that was not supported by reasonable suspicion.
52. Since the encounter was not supported by reasonable
suspicion, it was an illegal seizure and any and all evidence
obtained thereafter was likewise unconstitutional as “fruit of the
poisonous tree.” The doctrine of “fruit of the poisonous tree”
prohibits the admission in a criminal prosecution of evidence
derived from information gained in an unlawful search or manner.
See Wong Sun v. United States, 371 U.S. 471 (1963) and
Commonwealth v. Myers, 728 A.2d 960 (Pa.Super. 1999).
53. Therefore, [Trooper] Abreu did not possess any right or reason
to remove [Appellee] from the vehicle, question him as to the
contents of the vehicle, conduct a search of the vehicle based on
[Appellee’s] statements, conduct Field Sobriety Tests, arrest
[Appellee], or have him submit to a blood draw.
54. As a result of all of the above, any and all evidence discovered
by this unlawful detention and subsequent arrest, and any and all
evidence derived from the information discovered, should be
suppressed, including, but not limited to, statements made by
[Appellee] in response to [Trooper] Abreu’s questioning, evidence
discovered based on the search resulting from that line of
questioning, and the results of the blood draw.
Id. at 7-8 ¶¶51-54.
On March 19, 2021, the matter proceeded to a suppression hearing. The
defense offered no witnesses while the Commonwealth offered the testimony
of Trooper Abreu. Specifically, Trooper Abreu, who has been a state police
trooper for five years, testified he has received extensive training regarding
DUI investigations. N.T., 3/19/21, at 4. He estimated that, during his five
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years of service, he has made “a few thousand traffic stops[,]” and he has
been involved in “[a] few hundred” DUI investigations. Id. at 5.
Trooper Abreu testified that, on July 31, 2020, at approximately 4:45
p.m., he was in uniform and on routine patrol in an unmarked police vehicle
in the Red Lion Borough of York County when another vehicle “caught [his]
attention.” Id. Specifically, Trooper Abreu indicated:
As I was at the intersection,…I see [sic] the tan Chevy
Malibu, [which] appeared to try to stop at the intersection, went
beyond the stop sign[,] and over that white solid line.
This vehicle was continuously in motion….Ultimately, as I
started to drive,…the vehicle motioned for me to drive, and I
stopped, and they ultimately ended up making a left-hand turn.
At that point in time, the vehicle made the wide left-hand
turn. I proceeded to go through the intersection, and make a u-
turn just past the intersection into the library there in Red Lion
Borough on the left-hand side of the road and attempted to locate
this vehicle.
Id. at 5-6.
The trooper indicated he quickly located the vehicle and began to follow
it. He then “observed the vehicle make a right-hand quote/unquote jerking
motion, and then overcorrect back into the left, back to the left, and into the—
back on to the roadway where we had just been traveling on.” Id. at 6. As
he continued to follow directly behind the vehicle, Trooper Abreu observed
“[t]he vehicle again abruptly just pulled off of the main road, and essentially,
like, the side of the roadway and almost striking the curb without signaling.”
Id. at 7. Trooper Abreu explained that, “[w]ithout activating their turn signal
to initiate or to warn me that they were going to pull off, [the driver] instead
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[made] an abrupt right-hand, like, right jerking motion towards the sidewalk.”
Id.
Trooper Abreu testified that, at this point, after observing violations of
the motor vehicle code, he activated his unmarked vehicle’s lights. He clarified
the violations he observed included “the failure to signal prior to coming off of
the main roadway indicating that they were going to pull off onto the roadway
and/or attempt to park, [and] the fact that they almost struck the curb[.]” Id.
He noted that he also had concerns as to whether the driver was having “a
medical episode” or was “an impaired driver.” Id. at 8.
Trooper Abreu testified he approached the driver’s side of the tan Chevy
Malibu and observed two occupants, including the driver who identified himself
as Appellee, inside of the vehicle. Id. The trooper indicated he had a very
brief conversation with Appellee, and, since the vehicle was stopped on an
incline, he asked Appellee to move his vehicle to a safer location. Trooper
Abreu testified that Appellee complied, and he again parked his unmarked
police vehicle behind Appellee’s vehicle. Id. The trooper noted his police
vehicle’s flashing “lights remained on throughout the entire interaction.” Id at
9.
Trooper Abreu testified he approached the driver’s side of the tan Chevy
Malibu, and he observed that Appellee was “extremely sweaty, nervous. He
was shaking, extremely talkative, disheveled, if you will, and he just seemed
like he didn’t know where he was at.” Id. The trooper asked Appellee if he
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would mind stepping out of the vehicle, Appellee indicated he did not mind,
and after Appellee did so, the trooper “had a brief conversation [with him] at
the front of the [un]marked police cruiser.” Id. at 10. Specifically, the trooper
testified on direct examination by the assistant district attorney (“ADA”) as
follows regarding his observations and the conversation he had with Appellee:
Q. And once he was out of the vehicle, and in front of your
[vehicle], did you notice any additional physical signs that caused
you concern?
A. I did. As I was talking with him, he was extremely talkative,
but almost rambling on most of the time. He couldn’t stand still,
and a few other things. He was extremely fidgety, and just—
again, didn’t seem like he was familiar with where he was at, or
what his purpose for being there was or anything like that of that
nature.
Q. Did you notice anything about his speech?
A. It was—he was talkative, but almost, like, I couldn’t make
anything of it, very slurred to some degree.
Q. And during your conversation, do you recall asking him
questions about any drug or alcohol use?
A. I did.
Q. And what if you recall was his response?
A. If I recall, he stated that he had smoked marijuana
approximately to his knowledge 10 hours prior to the traffic stop.
Q. And then did you continue to question him regarding any recent
drug use?
A. I did.
Q. And what other information relative to the drug or alcohol use
did you elicit from [Appellee]?
A. He stated that he was currently prescribed methadone,
approximately 80 milligrams, which he was to take on a daily
basis, and that he had consumed that the day of.
Id. at 10-11.
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Officer Abreu clarified that, during the conversation, Appellee told him
that he had used marijuana, Xanax, gabapentin, and methadone. Id. at 11.
Officer Abreu testified he administered field sobriety tests, and Appellee “was
unable to perform” the walk-and-turn test. Id. at 13. Specifically, he noted
Appellee was unable to maintain his balance, and “for safety reasons, we both
agreed that it would be best to conclude the test at that point in time.” Id.
Trooper Abreu noted that, during the entire encounter, including as he
was initially approaching the driver’s side door, he smelled the odor of
marijuana. Id. at 13-14. He indicated Appellee later submitted to blood
testing, and the lab results were positive for “Alprazolam, 11 hydroxy delta 9
THC, delta 9 carboxy THC, delta 9 THC, methadone, EDDP, fentanyl, and
Norfentanyl[.]” Id. at 16.
On cross-examination, Trooper Abreu confirmed that, as he followed
Appellee’s vehicle:
[I]t appeared [Appellee] was going to make a right-hand turn and
then last minute this—when he saw me—made a quick left-hand
turn and jerked back into the initial lane of travel, and then once
he knows I’m behind him, upon confirming I’m behind him, he
pulls off of the roadway, off of the travel way and almost struck
the sidewalk there.
Id. at 17.
Trooper Abreu confirmed that, after he asked Appellee to pull to a safer
location, and Appellee did so, he approached the driver’s side window and
asked Appellee, who was driving, to step out of the vehicle. Id. The trooper
indicated he asked Appellee to exit the vehicle because Appellee was “fidgeting
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inside the vehicle[,]” and he was not sure if anything was “going on” between
Appellee and the passenger. Id.
Trooper Abreu confirmed that, as soon as Appellee exited the vehicle,
he had a brief conversation with Appellee, who “stated a few things,” including
“that he had marijuana in the vehicle[.]” Id. at 20. The trooper indicated he
did not search Appellee’s vehicle but that Appellee “brought the items out of
the vehicle[.]” Id. Specifically, he told Appellee to “grab [his] personal
belongings[,]” and Appellee did so, removing from the backseat a black pouch
containing a plastic baggie of marijuana. Id. at 22. Trooper Abreu indicated
he arrested Appellee, and since the only other occupant had a suspended
license, and the vehicle was legally parked, the officer did not have Appellee’s
vehicle towed. Id. at 23.
Regarding Appellee’s inability to complete the walk-and-turn field
sobriety test, the trooper confirmed on cross-examination that Appellee
“mentioned something about his ankle[.]” Id. at 24. Moreover, on re-direct
examination, the trooper confirmed Appellee did not produce a valid
prescription for the Xanax or marijuana. Id.
After the defense rested without presenting any evidence, the
suppression court permitted the attorneys to present oral arguments
regarding their positions. Appellee’s counsel argued:
[M]y argument is two-fold. First, the stated reason for the
traffic stop is a turn signal violation. [Appellee] was admittedly
lost, and when Trooper Abreu pulled behind him, he was already
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on the side of the road where it appears he almost made a wrong
turn and was getting back on the correct road.
Since he was already over it, there is no need for a turn
signal, and therefore, no violation occurred and the stop is not
justified at that point.
***
Second, even if it is found that the turn signal violation
occurred, Trooper Abreu extended a mere encountered [sic] traffic
stop into an investigatory detention without…reasonable
suspicion[.] By removing [Appellee] from the vehicle Trooper
Abreu created a reasonable belief that [Appellee] was not free to
leave.
Trooper Abreu claims that he smelled marijuana in the car.
First of all, the odor of marijuana alone is not enough to meet
reasonable suspicion under the totality of the circumstances test
under Barr.
Second, even if it is, Trooper Abreu’s forwards [sic] and
actions do not support that he actually smelled marijuana that
day. He never mentions the odor of marijuana during his
questioning of [Appellee].
His first question is about the status of his license and not
about anything in the vehicle. Only when [Appellee] brings up
that he smokes does Trooper Abreu begin questioning him
regarding the presence of drugs in the vehicle. He doesn’t even
start with marijuana, he first goes with methodone and heroin.
I would also argue that Trooper Abreu could not have
possibly smelled the marijuana that was in the vehicle, it was in
the back seat of the car in a backpack wrapped in a jacket in a
cloth pouch sealed in plastic and only a small amount.
In either of those cases, Your Honor, the physical evidence,
the statements made by [Appellee], and his field sobriety tests
should be suppressed as fruit of [the] poisonous tree under Wong,
Sun, and Myers, and the charges should be dismissed for lack of
evidence.
***
THE COURT: So tell me again what items are you asking me
to suppress? The statements of the [Appellee] starting when?
[DEFENSE COUNSEL]: When he was pulled out of the
vehicle, Your Honor. My argument is that when he was taken out
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of the vehicle that became an investigatory detention without
reasonable suspicion needed to do so, and therefore, any
statements made, any physical evidence acquired, and the
standard field sobriety tests should be suppressed.
Id. at 26-28.
In response, the ADA argued the trooper had probable cause to stop
Appellee’s vehicle since Appellee “didn’t use the turn signal” when he abruptly
pulled off the road and tried to park. Id. at 30. The ADA further argued that,
after the stop, the trooper immediately developed a reasonable suspicion that
Appellee was DUI when he approached the vehicle, smelled marijuana, and
observed Appellee’s physical appearance and demeanor. Id.
The ADA contended the trooper was permitted to ask Appellee to exit
the vehicle as a matter of course, and during the brief conversation, the
trooper “asked about the status of [Appellee’s] license, and immediately after
that, asked about drug use, and [Appellee] immediately offers the fact that
he has marijuana in the car. The trooper continues to develop his suspicions
of DUI asking multiple questions about [it].” Id. at 31. The ADA also argued
the trooper thereafter had probable cause to arrest Appellee and request that
he submit to a blood test.
The suppression court noted it had no difficulty with the trooper asking
Appellee to exit the vehicle, but that the court wondered why “no one’s
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mentioned the magic word of Alexander[3] today. Why is that? That’s what
I thought I was going to hear about today.” Id. at 33 (footnote added). In
response, defense counsel indicated Alexander was not an issue since
Appellee “essentially gave permission to search the vehicle[.]” Id. at 34.
The suppression court then turned to the ADA and asked “So when,
[ADA], do you believe [Appellee] should have been Mirandized?” Id. The
ADA responded that the trooper was not required to give Appellee Miranda4
warnings until “when the decision was [made] to place him under arrest…and
he was in handcuffs[.]” Id. The suppression court asked the ADA if “all of
those questions that were asked before [Appellee] was arrested were okay[,]”
and the ADA responded in the affirmative. Id. The ADA then noted the
Commonwealth was unprepared to address the Miranda issue specifically
since “it was not raised in the pre-trial motion.” Id. at 35. The suppression
court then indicated “And no one’s talked about a consent for the blood, so
I’m guessing that he signed a consent?” Id. at 36. Defense counsel confirmed
Appellee had signed a consent form. Id.
The suppression court then gave its ruling on the record as follows:
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3 While it is not entirely clear, it appears the suppression court was alluding
to Commonwealth v. Alexander, ___ Pa. ___, 243 A.3d 177 (2020), in
which our Supreme Court held that warrantless searches of vehicles require
both probable cause and exigent circumstances under the state constitution.
This issue was not raised in Appellee’s pre-trial suppression motion.
4 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
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Defense is seeking to suppress statements of [Appellee]
from the time he was exiting the vehicle and all items from within
the vehicle.
It’s an interesting question,…given the fact that [Appellee]
clearly was very nervous and fidgety, clearly was very difficult to
understand, and clearly offered up a lot of information that he
wasn’t even asked to offer up.
The problem that th[e] [suppression court] has with the
questioning is that we believe it went beyond the mere encounter,
and that it went almost to the detention stage without any
Miranda warnings.
So we will suppress the drugs in the car, and any statements
in response to whether there were drugs in the car.
We do not suppress his statements about any drugs that he
ingested, given the fact that there was the smell of marijuana
emanating from the vehicle, and he was the driver of the vehicle.
We certainly don’t suppress his blood draw, as there has
been no request to do so, so his charges of DUI are still very valid.
Id. at 36-37.5
On that same date, March 19, 2021, the suppression court filed an order
granting, in part, and denying, in part, Appellee’s pre-trial suppression motion.
The suppression court indicated “Drugs in car & response to drugs in car are
suppressed.” Suppression Court Order, filed 3/19/21.
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5As to Appellee’s pre-trial suppression claim that the initial stop of his motor
vehicle was improper since the trooper did not observe a violation of the motor
vehicle code, we note the suppression court found “there was no turn signal”
when Appellee “pulled over abruptly.” Id. at 26.
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On Monday, April 19, 2021, the Commonwealth filed a timely notice of
appeal.6 The trial court directed the Commonwealth to file a Pa.R.A.P. 1925(b)
statement, the Commonwealth timely complied, and the trial court filed a
responsive Pa.R.A.P. 1925(a) opinion. In its Rule 1925(a) opinion, the trial
court relevantly explained:
In reaching its decision to suppress some of the evidence,
the court found that the Trooper’s questioning of [Appellee] during
the traffic stop went beyond the mere encounter stage, and
moved into the detention stage without any Miranda warnings.
The court therefore suppressed the drugs found in the car and any
statements in response to whether there were drugs in the car.
The court did not suppress [Appellee’s] statements made about
any drugs he ingested given the fact that the Trooper testified to
the smell of marijuana coming from the vehicle, [Appellee] was
the driver, and when questioned about the smell, [Appellee]
volunteered information. The court did not suppress his blood
draw because there was no request to do so[.]
Trial Court Opinion, filed 7/1/21, at 6-7 (citations to transcript omitted).
As to whether Appellee properly raised the issue of a Miranda violation
in the lower court and/or whether the suppression court erred by sua sponte
granting, in part, Appellee’s suppression motion based on a Miranda violation,
the trial court indicated “the Miranda issue was raised by [Appellee] in the
sense that the omnibus pre-trial motion argues that the traffic stop moved
beyond a mere encounter to an investigative stop and ultimately to a custodial
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6 The thirtieth day for the Commonwealth to file an appeal was Sunday, April
18, 2021, and therefore, the appeal was timely filed. See 1 Pa.C.S.A. § 1908
(“Whenever the last day of any such period shall fall on Saturday or Sunday,
or on any day made a legal holiday by the laws of this Commonwealth or of
the United States, such day shall be omitted from the computation.”).
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detention, which requires Miranda warnings prior to questioning [Appellee].”
Id. at 12 (citing Appellee’s Omnibus Pre-Trial Motion, February 9, 2021, pp.
4-5).7
The trial court indicated that, at some point during the trooper’s
questioning of Appellee, but before Appellee retrieved the drugs from his
vehicle, “[Appellee was] in custody and was subject to police interrogation by
Trooper Abreu…Thus, the issue of Miranda warnings was properly before the
court during the suppression hearing.” Id. at 16-17 (citation omitted).
On appeal, the Commonwealth avers the suppression court abused its
discretion in granting, in part, Appellee’s suppression motion. We note:
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
…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.
Commonwealth v. Miller, 56 A.3d 1276, 1278–79 (Pa.Super.
2012) (citations omitted). “Our standard of review is restricted to
establishing whether the record supports the suppression court’s
factual findings; however, we maintain de novo review over the
suppression court’s legal conclusions.” Commonwealth v.
Brown, 606 Pa. 198, 996 A.2d 473, 476 (2010) (citation
omitted).
Commonwealth v. Korn, 139 A.3d 249, 252–53 (Pa.Super. 2016).
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7As discussed infra, we have reviewed Appellee’s pre-trial suppression motion
and find no indication Appellee averred the encounter led to a custodial
detention for which Miranda warnings were required.
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“It is within the suppression court’s sole province as factfinder to pass
on the credibility of witnesses and the weight to be given their testimony.”
Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.Super. 2006).
Moreover, 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.,
622 Pa. 126, 79 A.3d 1073, 1087 (2013).
The Commonwealth contends the suppression court erred in granting
the motion to suppress as it relates to Appellee’s statements that he had drugs
in the vehicle. Specifically, the Commonwealth contends the suppression court
erred in suppressing Appellee’s statements on the basis he made the
statements while he was subjected to custodial interrogation without proper
Miranda warnings in violation of the Fifth Amendment.
In this vein, the Commonwealth argues Appellee limited the issues in
his pre-trial suppression motion to whether the trooper properly stopped his
vehicle and whether he was subjected to a proper investigative detention
supported by reasonable suspicion at the time Appellee admitted he had drugs
in his vehicle.
Accordingly, the Commonwealth contends that, since Appellee did not
allege in his pre-trial suppression motion that he was subjected to a custodial
interrogation, or otherwise suggest a Miranda violation, the suppression court
erred in sua sponte raising the issue since Appellee had waived the issue by
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failing to include in it his motion to suppress. We agree with the
Commonwealth’s argument.
Pennsylvania Rule of Criminal Procedure 581(D) requires that a motion
to suppress “state specifically and with particularity the evidence sought to be
suppressed, the grounds for suppression, and the facts and events in
support thereof.” Pa.R.Crim.P. 581(D) (emphasis added). Our decision in
Commonwealth v. Whiting, 767 A.2d 1083 (Pa.Super. 2001), is instructive.
In Whiting, the trial court granted the defendant’s motion to suppress
statements as well as physical evidence found in the defendant’s home and
vehicle. Id. at 1086. However, the defendant did not raise in his suppression
motion any issues regarding the physical evidence found in the vehicle, and
the defendant did not amend his motion to include this issue. Id. We
concluded the trial court abused its discretion.
Specifically, we held:
Without raising this issue in any form of objection or motion,
[the defendant] effectively waived his challenge to the search of
the car. We have been unable to find any evidence of an oral
motion to amend [the defendant’s] pre-trial suppression motion,
nor do the docket sheets refer to such a filing.
Accordingly, it was improper, and therefore an abuse of
discretion for the trial court to voluntarily raise this issue and rule
upon it in [the defendant’s] favor where he never raised the issue
in any suppression motion, let alone with specificity and
particularity. Moreover, it was improper for the reason that the
court never took any testimony or evidence at the suppression
hearing on this issue and, therefore, could not make an informed
decision under Pa.R.Crim.[P.] 323(i). Finally, the Commonwealth
was not able to fulfill its burden of presenting evidence on the
issue and establishing that such challenged evidence was not
obtained in violation of the defendant’s rights. In fact, the
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transcribed testimony of the suppression hearing only touches
upon the consent to search [the defendant’s] car.
Id. at 1087-88 (citations and footnote omitted).
Subsequently, in Commonwealth v. Banks, 165 A.3d 976 (Pa.Super.
2017), this Court relied upon and applied the legal precepts set forth in
Whiting, supra. Specifically, in Banks, the trial court granted the
defendant’s motion to suppress on the basis the defendant was subjected to
an investigative detention without reasonable suspicion when the police
questioned him on his porch.
On appeal in Banks, the Commonwealth argued the trial court erred in
granting the suppression motion on this basis since the defendant failed to
raise in his motion any allegation that he was illegally detained. Rather, the
Commonwealth averred the defendant’s motion to suppress “simply alleged
that the search of the residence was illegal as the [police] lacked reasonable
suspicion to search the residence based on an anonymous tip, and [he] did
not raise the issue of whether [the defendant] had been seized at the outset
of the conversation on his porch.” Id. at 980. Thus, the Commonwealth
asserted the defendant had waived any issue related to the police’s
questioning of him on the porch, and therefore, the trial court erred in granting
the suppression motion on this basis.
Relying upon Whiting, this Court agreed with the Commonwealth’s
argument and reversed the suppression order. Specifically, we held:
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Here, [defendant] Banks did not argue that he was illegally
seized in his motion to suppress; he argued only that police lacked
reasonable suspicion to search the residence. Banks also did not
amend his motion to raise the seizure issue either orally or in
writing. Because Banks failed to argue that he was illegally seized,
the Commonwealth had no opportunity to respond to that
argument at the hearing. See Whiting, 767 A.2d at 1088.
Accordingly, we conclude that the trial court abused its discretion
in suppressing the physical evidence found in Banks’ residence on
grounds not asserted in Banks’ motion.
Banks, 165 A.3d at 980-81 (footnotes omitted).
Furthermore, subsequent to this Court’s Opinion in Banks, this Court
relied upon Banks and reversed an order granting a motion to suppress in
Commonwealth v. Carter, 234 A.3d 729 (Pa.Super. 2020). Therein, in
granting the defendant’s suppression motion, the trial court concluded that an
encounter between the police and the defendant was “a custodial interrogation
requiring Miranda warnings and a valid waiver, and that [the defendant] did
not knowingly, intelligently, or voluntarily waive his Miranda rights.” Carter,
234 A.3d at 732 (citation to trial court opinion omitted). Specifically, the trial
court held the defendant did not voluntarily waive his Miranda rights since
the Commonwealth failed to establish the defendant was aware of the general
nature of “‘the transaction giving rise to the investigation[.]’” Id. at 733
(citations omitted).
On appeal to this Court in Carter, the Commonwealth argued the
suppression court erred in suppressing evidence based on a suppression
theory, which was not raised by the defendant in his pre-trial motion or during
the evidentiary hearing. Specifically, the Commonwealth asserted the
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defendant did not claim he was unaware of the nature of the transaction giving
rise to the investigation; but rather, the defendant claimed his physical and
psychological state was such that he could not knowingly and voluntarily waive
his Miranda rights.
Relying upon the legal precepts set forth in Banks, supra, this Court
agreed with the Commonwealth and reversed the suppression order.
Specifically, we held:
[The defendant] did not challenge the validity of his waiver
based on a misunderstanding of “the general nature of the
transaction giving rise to the investigation.” Nevertheless, the
suppression court ignored the basis for the motion—that [the
defendant’s] physical and psychological state was such that he
could not knowingly, intelligently, and voluntarily waive his
Miranda rights—and instead sua sponte determined that “under
the circumstances, a ‘palpable ambiguity’ existed as to the reason
for the interrogation; was [the defendant] being questioned as a
suspect or a victim[?]” According to the suppression court, the
Commonwealth “was required to prove on a preponderance of the
evidence that [the defendant] knew of the occasion of the
interrogation.”
***
The Commonwealth [argued on appeal] that [the
defendant] did not suggest, either in his motion or at the
suppression hearing, that he was unaware of the reason the
detectives were in his hospital room. The motion and the
testimony presented at the hearing related strictly to [the
defendant’s] medical condition and his ability to…make a knowing,
intelligent, or voluntary waiver of his Miranda rights under those
circumstances.
Our reading of the motion and the hearing transcript
supports the Commonwealth’s contention.
***
[The defendant] did not call any witnesses at the
suppression hearing. The only witness was [the detective]. No
testimony was elicited from [the detective] even remotely
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suggesting that [the defendant] did not understand the “direction
and purpose of the questioning of the hearing.”
While we take no issue with the suppression court’s Findings
of Fact and recognize we are, therefore, bound by them, we
conclude the suppression court did not properly apply the law to
the facts as established at the suppression hearing.
[Pa.R.Crim.P.] 581(D) requires that a motion to suppress “state
specifically and with particularity the evidence sought to be
suppressed, the grounds for suppression, and the facts and
events in support thereof.” Pa.R.Crim.P. 581(D). Here, the
suppression court erred by suppressing evidence on grounds not
asserted in [the defendant’s] motion. Commonwealth v.
Banks, 165 A.3d 976, 980-81 (Pa.Super. 2017). Therefore, we
reverse the suppression court’s order granting [the defendant’s]
motion to suppress and remand for further proceedings.
Carter, 234 A.3d at 733-35 (bold in original) (citations omitted).
Applying the legal precepts of Whiting, Banks, and Carter to the case
sub judice, we conclude the suppression court erred in granting, in part,
Appellee’s motion to suppress based on grounds not asserted in Appellee’s
pre-trial suppression motion.
Specifically, contrary to the suppression court’s indication, Appellee
raised no claim in his pre-trial suppression motion indicating that he was
subjected to a custodial interrogation or that his Miranda rights were violated.
Rather, in his pre-trial suppression motion, Appellee challenged the initial stop
of his vehicle on the basis the police lacked the necessary reasonable suspicion
or probable cause to stop his vehicle. See Appellee’s Motion to Suppress, filed
2/9/21, at 6 ¶45.
Additionally, Appellee contended that, “[i]f the traffic stop is ruled to be
proper, it was extended beyond the necessary time to address the citations
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and no separate reasonable suspicion existed to extend the traffic stop and
turn it into an investigatory stop.” Id. at ¶45. Appellee reiterated that he
was subjected to “an investigative detention that was not supported by
reasonable suspicion.” Id. at 7 ¶51. He contended that any evidence seized
as a result of this “encounter…not supported by reasonable suspicion” should
be suppressed as “fruit of the poisonous tree.” Id. at ¶52.
Furthermore, Appellee did not amend his motion to suppress, either
orally or in writing, to include the theory relied upon by the suppression court
in granting the suppression motion. Appellee did not seek to raise or argue
any alleged Miranda violation during the suppression hearing. In fact, the
issue was raised for the first time by the suppression court sua sponte after
the parties had rested their cases. Upon being questioned by the suppression
court as to whether Appellee should have been given his Miranda warnings,
the ADA specifically informed the suppression court it was unprepared to
address the Miranda issue since “it was not raised in the pre-trial motion.”
N.T., 3/19/21, at 35.
Accordingly, consistent with binding precedent, while we take no issue
with the suppression court’s factual findings in the case sub judice, we
conclude the suppression court did not properly apply the law to the facts
inasmuch as it suppressed the evidence on grounds not asserted by Appellee
in the court below. See Whiting, supra; Banks, supra; Carter, supra.
Therefore, we reverse the suppression court’s order granting, in part,
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Appellee’s motion to suppress and remand for further proceedings consistent
with this decision.8
Order denying, in part, suppression motion affirmed. Order granting, in
part, suppression motion reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/08/2022
____________________________________________
8The Commonwealth also contends the suppression court erred in suppressing
the drugs, which Appellee removed from his vehicle and gave to the trooper,
on the basis the drugs were “fruit of the poisonous tree” flowing from
Appellee’s non-Mirandized statements. As discussed supra, we conclude the
suppression court erred in suppressing Appellee’s statements on a basis not
alleged by Appellee (i.e., under the theory that the statements were made
while Appellee was subjected to custodial interrogation absent proper
Miranda warnings). Accordingly, we also conclude the suppression court
erred in suppressing the drugs, which Appellee removed from his vehicle, on
the basis the drugs were “fruit of the poisonous tree” flowing from a Miranda
violation, which was not raised by Appellee in the court below.
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