Com. v. Brown, L. ( 2020 )

J. S23045/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LAURANCE ANTHONY BROWN, : No. 3435 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence Entered February 1, 2018,
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0004086-2016
BEFORE: NICHOLS, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: September 10, 2020
Laurance Anthony Brown appeals from the February 1, 2018 aggregate
judgment of sentence of two and one-half to five years’ imprisonment imposed
after he was found guilty in a bench trial of two counts of possession of a
firearm with altered manufacturer’s number, and one count each of criminal
use of communication facility (“CUCF”), possession with intent to distribute a
controlled substance (“PWID”), possession of a controlled substance, and
possession of drug paraphernalia.1 After careful review, we affirm the
judgment of sentence.
The lengthy factual history of this case was set forth by the trial court
in its June 25, 2019 opinion and we need not reiterate it here. (See trial court
118 Pa.C.S.A. §§ 6110.2(a), 7512(a), and 35 P.S. § 780-113(a)(30), (a)(16),
and (a)(32), respectively.
J. S23045/20
opinion, 6/25/19 at 1-11.) Appellant was charged with a litany of firearm and
drug-related offenses following the February 2016 search of his person,
vehicle, and residence by members of the Lower Merion Township Police
Department. On November 10, 2016, appellant filed an omnibus pre-trial
motion to suppress all the physical evidence seized as a result of these
searches. An evidentiary hearing was held on appellant’s suppression motion
on July 24 and 25, 2017. On September 21, 2017, the suppression court
denied appellant’s suppression motion by issuing findings of fact and
conclusions of law on the record. Thereafter, appellant waived his right to a
jury and proceeded to a stipulated bench trial on December 6, 2017. As noted,
the trial court found appellant guilty of two counts of possession of a firearm
with altered manufacturer’s number, and one count each of CUCF, PWID,
possession of a controlled substance, and possession of drug paraphernalia.
On February 1, 2018, the trial court sentenced appellant to two and one-half
to five years’ imprisonment. Appellant filed a post-sentence motion for
reconsideration of sentence that was denied by the trial court on March 13,
2018. Following the reinstatement of his direct appeal rights nunc pro tunc,
this timely appeal followed on November 21, 2018.2
2 On November 26, 2018, the trial court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). Appellant filed a timely, albeit lengthy, Rule 1925(b)
statement on November 30, 2018. On June 25, 2019, the trial court filed its
Rule 1925(a) opinion.
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Appellant raises the following eight claims of suppression court error for
our review:
1. Did the suppression court err in holding that the
Commonwealth presented sufficient evidence
that [a]ppellant was not subject to an unlawful
custodial detention lacking probable cause when
he was interrogated and marijuana, keys, a
cellphone, and a wallet were removed from his
person?
2. Did the suppression court err in holding that the
Commonwealth presented sufficient evidence
that [a]ppellant was not subject to an unlawful
investigative detention lacking reasonable
suspicion when he was interrogated and
marijuana, keys, a cellphone, and a wallet were
removed from his person?
3. Did the suppression court err in holding that the
Commonwealth presented sufficient evidence
that [a]ppellant gave valid consent prior to the
search of his vehicle when he was unduly
coerced by the circumstances of the encounter?
[4]. Likewise, did the suppression court err in
holding that the Commonwealth presented
sufficient evidence that [a]ppellant gave valid
consent prior to the search of his home when he
was unduly coerced by the circumstances of the
encounter?
[5]. Did the suppression court err in holding that the
Commonwealth presented sufficient evidence
that [a]ppellant’s consent to search extended to
items that were recovered from inside a locked
box inside of his vehicle?
[6]. Did the suppression court err in denying the
motion to suppress all evidence seized from
Philadelphia County where law enforcement
officers violated the Municipal Police Jurisdiction
Act [(“MPJA”), 42 Pa.C.S.A. § 8953]?
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[7]. Did the suppression court err in denying the
motion to suppress statements made regarding
[a]ppellant’s cell phone password and any
evidence located within the cell phone after an
unlawful search of the phone while transporting
[a]ppellant to Philadelphia[?]
[8]. Did the suppression court err in denying the
motion to suppress statements to law
enforcement during the course of the encounter
as involuntary?
Appellant’s brief at 5-6.3
Our standard of review when addressing a challenge to a denial of a
suppression motion is well settled.
[Our] 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.
Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation
omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).
3 For the ease of our discussion, we have elected to renumber some of
appellant’s issues.
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Following a thorough review of the record, including the briefs of the
parties, the applicable law, and the well-reasoned opinion of the trial court, it
is our determination that appellant’s claims warrant no relief. The trial court
authored a comprehensive, 34-page opinion wherein it thoroughly discussed
all of the alleged errors of the suppression court. We find that the trial court’s
conclusions are supported by competent evidence and are clearly free of legal
error. Specifically, we agree with the trial court that the police had reasonable
suspicion, based on the totality of the circumstances, to believe that appellant
was the person from whom the confidential informant arranged to purchase
marijuana, sufficient to conduct an investigative detention. (See trial court
opinion, 6/25/19 at 19-20; Issue 2, infra.) Additionally, we agree with the
trial court that the police had probable cause to arrest appellant after he
informed them during the course of their investigation that he had marijuana
on his person. (Id. at 20-21; Issue 1, infra.) We also agree with the trial
court that there is no arguable merit to appellant’s myriad of reasons that his
consent to search his vehicle and home was not voluntary. (Id. at 21-24;
Issues 3-5, infra.) Likewise, the record supports the trial court’s conclusion
that appellant “erroneously alleged that [his] mother gave consent for the
search of the basement[,]” when, in fact, it was appellant’s grandmother, the
homeowner, who consented to the search. (Id. at 25; Issues 3-5, infra.)
Next, we agree with the trial court that the MPJA did not apply to the search
of appellant’s residence because law enforcement’s actions in this matter fell
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outside the scope of the MPJA. (Id. at 25-28; Issue 6, infra.)4 We further
agree that the suppression court did not err in denying appellant’s motion to
4We agree with the trial court that Commonwealth v. O’Shea, 567 A.2d
1023 (Pa. 1989), cert. denied, 498 U.S. 881 (1990), is instructive:
In O'Shea, the court stated
we do not believe section 8953 prohibits
police officers from leaving their primary
jurisdiction to go into other jurisdictions to
ask questions therein, or to enter a
residence therein upon the consent of its
owners (and full disclosure of the officers’
purpose) and observe what they observe
therein. Such unobtrusive police conduct is
outside the scope of section 8953, and is
not illegal. Any citizen of the
Commonwealth could do what Detectives
Freeman and Hediger did herein, namely
drive to the O’Shea residence, ask them
questions, enter their home with their
consent and look around. In the absence
of explicit legislative directives to the
contrary, we will not prohibit police officers
from doing that which a private citizen
could do.
Accordingly, the initial search of the O’Shea
residence and seizure of the items viewed
in plain sight therein was not illegal under
section 8953, nor under the constitutions of
this state or of the United States. That
warrantless search was reasonable and
justified by the freely given and informed
consent of the owners of the residence,
James and Marion O’Shea, who obviously
had authority to show the detectives their
gameroom-basement area.
Trial court opinion, 6/25/19 at 27-28, quoting O’Shea, 567 A.2d at
1029-1030.
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J. S23045/20
suppress various statements he voluntarily gave to police at the station. (Id.
at 28-32; Issue 8, infra.) As recognized by the trial court, appellant’s
statements were gratuitously offered while he was not under custodial
interrogation, or made following a valid waiver of his right to remain silent.
(Id.) Lastly, we agree with the trial court’s conclusion that appellant’s phone
was properly searched pursuant to a valid search warrant supported by
sufficient probable cause. (Id. at 32-33, Issue 7, infra.)
Based on the foregoing, we discern no error on the part of the
suppression court in denying appellant’s motion to suppress. Accordingly, we
adopt the trial court’s comprehensive June 25, 2019 opinion as our own for
purposes of appellate review of appellant’s claims.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/20
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Circulated 08/04/2020 10:24 AM
OPINION
Filed 6/27/2019 11:07:00 AM Superior Court Eastern District
3435 EDA 2018
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA : I NO. 4086-16
,:;-,,
V. : I
• I 3435 EDA 2018
LAURANCE BROWN
OPINION
O'Neill, J.
The Defendant, Laurance Brown, appeals from the judgment of sentence
entered on February 1, 2018, as made final by the denial of his post-sentence
motion on March 13, 2018. For the reasons set forth below, the judgment of
sentence should be affirmed.
I. Facts and Procedural History
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Detective Cameron Parker testified that early in the month of February
2016, a confidential informant approached him and offered to set up a
purchase of marijuana. N.T. Jul. 25, 2017 at 11; N.T. Sept. 21, 2017 at 7. On
February 10, 2016, the informant texted Detective Parker and indicted that
they had arranged a deal with "L.B.," for a quarter pound of marijuana.' Id.
The transaction was arranged for February 11, 2016 between 11 a.m. and 2
p.m. at the Haverford Gable Apartments, in Haverford, Montgomery County
located at 312 W. Montgomery Avenue. N.T. Jul. 25, 2017 at 12; N.T. Sept. 21,
201 7 at 7. The informant could only descri9e the seller as a black male in his
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20s who went by "L.B." N.T. Jul. 25, 2017 at 12; N .T. Sept. 21, 2017 at 3.
On the morning of February 11, 20161 Detective Parker directed several
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law enforcement officers to establish surveillance in the area near the
Haverford Gables Apartments. N.T. Sept. 21, 2017 at 4. Detective Walter Kerr
and his team were in the parking lot of the 1djacent Haverford House
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Apartments located at 302 W. Montgomery tvenue. Id. Detective Kerr and his
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team had a full view of Haverford Gables. N1.T. Jul. 24, 2017 at 13; N.T. Sept.
21, 2017 at 4. Detective Parker stayed with! the informant in the vestibule of
the Haverford Gables Apartments. Id. During the operation, the informant
and L.B. were in continuous communicatiori via text message, which Detective
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Parker observed. N.T. Jul. 24, 2017 at 14; N.T. Sept. 21, 2017 at 7. L.B. told
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the informant when he arrived at the locatio'n. Id. Detective Parker relayed
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that information to the surveillance officers. Id.
At approximately 1 :30 p.m., Detective Parker radioed to the surveillance
team that L.B. texted the confidential inforrriant that he was arriving and was
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in the parking lot. N.T. Jul. 24, 2017 at 13; N.T. Sept. 21, 2017 at 7. The
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surveillance team observed a dark Chrysler 300 pull into the parking lot of the
Haverford House Apartments. N.T. Jul. 24, 2017 at 14, 28; N.T. Sept. 21, 2017
at 4. The driver was the only passenger in the car. N.T. Jul. 24, 2017 at 14.
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The driver exited the car and began to walk kround the parking lot as if he
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were looking for someone. Id. He fit the description of the seller-a young black
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male in his 20s. N.T. Jul. 24, 2017 at 14-15; N.T. Sept. 21, 2017 at 4.
Detective Kerr identified Laurance Brown as the driver. N.T. Jul. 24, 2017 at
2
14. The driver of the car began to walk toward the location arranged by the
confidential informant. N.T. Jul. 24, 2017 at 15; N.T. Sept. 21, 2017 at 4.
At this point, Detective Kerr, Officer Turek, Officer Larosa and a second
detective on surveillance decided to approach the Defendant. N.T. Jul. 24,
2017 at 15; N.T. Sept. 21, 2017 at 4. Officer Turek was in full uniform;
Detective Kerr wore a jacket identifying him as police. N.T. Jul. 24, 2017 at 17;
N.T. Sept. 21, 2017 at 5. As they approached the Defendant, Detective Kerr
had his gun drawn, pointing down at the side of his leg. N.T. Jul. 24, 2017 at
17. Officer Turek was wearing an AR-15 rifle in a sling across the front of his
body. N.T. Jul. 24, 2017 at 17; N.T. Sept. 21, 2017 at 5. Neither Kerr nor
Turek pointed their weapons at the Defendant. N.T. Jul. 24, 2017 at 17; N.T.
Sept. 21, 2017 at 5. The other officers checked the car for additional
occupants. N.T. Jul. 24, 2017 at 17.
Officer Turek asked the Defendant if he was L.B., to which the Defendant
responded, "yes." N.T. Jul. 24, 2017 at 17; N.T. Sept. 21, 2017 at 5. Detective
Kerr explained that they were detectives and asked the Defendant if he had
anything on him that he should not have. N.T. Jul. 24, 2017 at 18; N.T. Sept.
21, 2017 at 5. The Defendant indicated that he had an ounce of marijuana in
his coat pocket. Id. For officer safety, Kerr continued to ask the Defendant if
he had any weapons or anything that could harm officers on his person. Id.
Detective Kerr explained to the Defendant what was going to happen, reached
into his pocket and removed the marijuana. N.T. Jul. 24, 2017 at 19; N.T.
Sept. 21, 2017 at 5. Detective Kerr also removed the Defendant's keys, cell
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phone and wallet from his pockets. N.T. JuH 24, 2017 at 34; N.T. Sept. 21,
2017 at 5.
Detective Kerr took the Defendant to the car that they had been in during
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the surveillance and asked him to wait in tHe backseat to await Detective
Parker's arrival.I N.T. Jul. 24, 2017 at 19; N.T. Sept. 21, 201 7 at 5. Detective
Kerr got into the backseat with the Defendant and continued to speak to him.
N.T. Jul. 24, 2017 at 19. He asked him basic demographic questions and did
not question him about the case. N.T. Jul. ?4, 2017 at 39; N.T. Sept. 21, 2017
at 6. The Defendant was never handcuffed during this interaction; the car
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doors were not locked and the Tahoe was ncit a police vehicle. N.T. Jul. 24,
2017 at 19, 34; N.T. Sept. 21, 2017 at 5. However, Detective Kerr testified that
the Defendant was detained at that point. N.T. Jul. 24, 2017 at 35; N.T. Sept.
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21, 2017 at 6. None of the law enforcement officers present during this part of
the investigation ever raised their voices or threatened the Defendant. N.T. Jul.
24, 2017 at 21.
Detective Parker arrived at the scene; he was dressed in casual clothing
with a police jacket. N.T. Jul. 24, 2017 at 20; N.T. Sept. 21, 2017 at 5.
Detective Parker never drew his gun or pointed a gun at the Defendant. Id.
Detective Parker got into the car with the Defendant and introduced himself
and explained they were investigating drug activity in the area. N.T. Jul. 25,
!
'Detective Parker removed the informant from the location and ultimately went
to the location where Detective Kerr's team had detained the Defendant. N.T.
Jul 25, 2017 at 14; N.T. Sept. 21, 2017 at 7.
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2017 at 15; N.T. Sept. 21, 2017 at 8. The Defendant was not handcuffed. Id.
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There were no marked vehicles in the area Jnd no vehicles activated their lights
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and sirens. N.T. Jul. 25, 2017 at 16; N .T. S¢pt. 21, 2017 at 8. Detective
Parker asked the Defendant about the marijuana that Detective Kerr recovered
from his person. Id. Detective Parker asked the Defendant for permission to
search his car because the amount of marijuana recovered from the Defendant
was substantially less than the amount the informant arranged to purchase.
N.T. Jul. 25, 2017 at 16, 18; N.T. Sept. 21, 2017 at 8. The Defendant
consented to the search of his car and exec1!lted a consent to search from. N.T.
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Jul. 25, 2017 at 18; N.T. Sept. 21, 2017 at 8. Detective Parker explained to
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the Defendant that he had the right to refu~e the search. Id. The Defendant
asked Detective Parker what would happen if he refused, Parker told him they
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would decide whether to impound the car a~d apply for a search warrant. Id.
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The Defendant consented and signed the co~sent to search form. Id.; Exhibit
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CS-1. At the time he consented to the search, he was not under the influence
of any intoxicants or mental illness or distress. N.T. Jul. 25, 2017 at 19; N.T.
Sept. 21, 2017 at 8. Detective Parker testified that in his training and
experience, the Defendant voluntarily consented to the search of his car. Id.
Throughout their interaction, Detective Parker maintained a conversational
tone of voice and did not raise his voice or n\.ake any threats or promises to
obtain consent. N.T. Jul. 25, 2017 at 20. dmcers searched the Defendant's
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car and recovered four sealed bags of marijuana from a locked box in the trunk
5
that the Defendant's keys were used to open. N.T. Jul. 21, 2017 at 21; N.T.
Sept. 21, 2017 at 9.
Knowing that drug traffickers typically have a base of operations,
Detective Parker asked the Defendant if there were any additional drugs or
anything related to his sale of marijuana in his home. N.T. Jul. 25, 2017 at
21-22; N.T. Sept. 21, 2017 at 9. Prior to inquiring about any additional drugs
in his home, Detective Parker verbally advised the Defendant of his Miranda2
rights. N.T. Jul. 25, 2017 at 22; N.T. Sept. 21, 2017 at 9. At that point, the
Defendant indicated that he had some marijuana and packaging materials in
his home. N.T. Jul. 25, 2017 at 23; N.T. Sept. 21, 2017 at 9. Detective Parker
asked the Defendant if he could accompany him to the home to retrieve the
items. Id. Detective Parker told the Defendant that they would only retrieve
the items; the Defendant lived with his mother and grandmother in a home
owned by his grandmother. Id. Detective Parker did not make any threats or
promises to induce the Defendant to take them to his home in Philadelphia.
N.T. Jul. 25, 2017 at 24; N.T. Sept. 21, 2017 at 9. At the time the Defendant
consented to accompany Detective Parker to his home, Detective Parker added
the Defendant's bedroom in the home to the consent to search form. N.T. Jul.
25, 2017 at 25; N.T. Sept. 21, 2017 at 10. Detective Parker did not have the
Defendant sign the form or initial after this addition. Id. After the Defendant
consented to a search of his bedroom, Detective Parker and the Defendant got
into the back of an unmarked detective's car. N.T. Jul. 25, 2017 at 26; N.T.
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
6
Sept. 21, 2017 at 10. The Defendant walked himself to the unmarked car and
was not handcuffed during that walk or during the drive to Philadelphia. Id.'
Detective Parker sat in the back seat with him. Id. The car was an unmarked
sedan that did not have a cage and the doors were not locked. N.T. Jul. 25,
2017 at 85.
During the drive, Detective Parker initially agreed that the Defendant
could call the home to let his mother know they were on their way. N.T. Jul.
25, 2017 at 27; N.T. Sept. 21, 2017 at 10. The Defendant provided Detective
Parker with the passcode to unlock his phone. Id. While Detective Parker did
unlock the phone before deciding against the call, he did not look at any of the
phone's contents. N.T. Jul. 25, 2017 at 28; N.T. Sept. 21, 2017 at 10. They
arrived at the home approximately ten minutes later. Id.Upon arriving at the home, Detective Harker spoke with the Defendant's
mother at the front door and told her that they were there to retrieve drug
related items with the Defendant's permission. N.T. Jul. 25, 2017 at 28-29;
N.T. Sept. 21, 2017 at 10. The Defendant's mother invited them in to.the
home.' N.T. Jul. 25, 2017 at 30; N.T. Sept. 21, 2017 at 10. They did not search
the first floor. N.T. Sept. 21, 2017 at 10. The Defendant was present and was
not handcuffed. N.T. Jul. 25, 2017 at 30; Nil'. Sept. 21, 2017 at 10.
Detective Parker further explained to the Defendant's mother that the
Defendant told them there was additional marijuana and some paraphernalia
in his bedroom that they sought to retrieve; he told her they did not intend to
search her whole house. N.T. Jul. 25, 2017 at 32; N.T. Sept. 21, 2017 at 11.
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The Defendant led Parker to a second floor bedroom. N.T. Jul. 25, 2017 at 33;
N.T. Sept. 21, 2017 at 11. The Defendant went in and moved a few things
around in the room; Defendant manipulated items while Parker observed. Id.The Defendant could not find anything in his room; he indicated maybe it was
in the study downstairs. Id. The Defendant was leading Detective Parker
around the house, the other officers remained on the first floor. Id. There was
nothing in study, the Defendant opined that perhaps his brother had taken it.
Id. At this point, Parker asked what was going on and told the Defendant to
stop playing games. N.T. Jul. 25, 2017 at 34; N.T. Sept. 21, 2017 at 11. The
Defendant swore that the items had been in his bedroom but now they were
gone. Id.As Detective Parker was preparing to leave the home and return to the
police station, he asked the Defendant's grandmother, the homeowner, if the
home had a basement. N.T. Jul. 25, 2017 at 35; N.T. Sept. 21, 2017 at 11.
She said that it did and Detective Parker asked her if they could check to make
sure there was nothing illegal in the basement. Id. She consented; there was
no evidence that she was under influence or in mental distress. Id. The
Defendant was present at this time and did not say anything when she
consented to the search of the basement. N.T. Jul. 25, 2017 at 36; N.T.Sept.
21, 2017 at 11. Two officers went down to the basement, Detective Parker
remained on the first floor with the Defendant's mother and grandmother. N.T.
Jul. 25, 2017 at 35; N.T. Sept. 21, 2017 at 12. One of the officers returned and
asked Detective Parker to come to the basement. Id.8
Detective Parker went down to the basement where he found a section of
the basement that was set up like a bedroom. N.T. Jul. 25, 2017 at 36; N.T.
Sept. 21, 201 7 at 12. From where he was standing, Detective Parker could see
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additional marijuana packaging material in 'plain view. N.T. Jul. 25, 2017 at
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37; N.T. Sept. 21, 2017 at 12. Detective Patker returned the first floor of the
home where the Defendant's grandmother confirmed that the Defendant
sometimes used the basement as his bedroom. Id. Detective Parker then
asked the Defendant if that was his bedroom; the Defendant confirmed that he
sometimes stayed down there. Id.Detective Parker asked the Defendant'for consent to search the
basement. Id. He told the Defendant and his family that they could refuse and
that if they refused Detective Parker would stay as long as it took for
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Philadelphia or the State Police to get a warrtant. Id. The Defendant's
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grandmother indicated that she wanted the things out of the house. N.T. Jul.
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25, 2017 at 37; N.T. Sept. 21, 2017 at 12. At that point, the Defendant
consented to a search of the basement. Id. Detective Parker added the
basement to consent form. N.T. Jul. 25, 2017 at 38; N.T. Sept. 21, 2017 at 12.
The Defendant signed and initialed the form before the search. Id.I Detective
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Parker's tone remained conversational and he did not make any threats to
obtain consent; the Defendant was never handcuffed. Id.After obtaining consent to search the basement, Detective Parker, Officer
Garner and the Defendant went into the basement. N.T. Jul. 25, 2017 at 40;
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N.T. Sept. 21, 2017 at 13. A search of the area uncovered, approximately 70
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plastic jars containing 1 /2-1 gram of marijuana, unopened cases of bottles,
packaging, 2 guns, vacusealed bags of marijuana labeled by strain, and
currency. Id. The items were collected and taken into evidence. N.T. Jul. 25,
2017 at 45; N.T. Sept. 21, 2017 at 13. Detective Parker and the other officers
returned to the police station with the Deferidant. Id.While law enforcement was inside thel home, the Defendant's phone
remained in the unmarked vehicle in which he was driven to the home. N.T.
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Jul. 25, 2017 at 39. No one accessed the plane or got it out of the car. Id.I
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This Court found, specifically, that there wa!s no search of the Defendant's
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phone. N.T. Sept. 21, 2017 at 21.
Once they returned to the station, Detective Parker readvised the
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Defendant of his Miranda rights and had hiin sign a Constitutional rights form.
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N.T. Jul. 25, 2017 at 46; Exhibit CS-9; N .T. 1Sept. 21, 2017 at 13. After
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reviewing the form with the Defendant, Detective Parker instructed the
Defendant to read a sentence out loud to en;,ure that he was following along
and understood the form. N.T. Jul. 25, 201!7 at 47-48. The Defendant initialed
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the sentence that he read aloud. N.T. Jul. 25, 2017 at 48. He indicated "yes"
on the form when asked if he understood his constitutional rights. Id. He
also wrote "yes" when asked if he was still willing to speak to law enforcement
and to give a voluntary statement. N.T. Jul.125, 2017 at 48; N.T. Sept. 21,
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2017 at 13.
The statement began at 4:20 p.m. anc\ concluded at 5:08 p.m. Exhibit
CS-10. The interview took place in a room riext to the booking room at the
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Lower Merion Police station. N.T. Jul. 25, 2017 at 54; N.T. Sept. 21, 2017 at
13. The door was closed to allow for privacy. Id. Detective Parker's tone
remained conversational throughout his entire interaction with the Defendant.
N.T. Jul. 25, 2017 at 55; N.T. Sept. 21, 2017 at 14.
The Defendant was not confrontational or argumentative. N.T. Jul. 25,
2017 at 54; N.T. Sept. 21, 2017 at 14. He was not happy to be at the police
station, but he never refused to answer any Iquestions. N.T. Jul. 25, 2017 at
55; N.T. Sept. 21, 2017 at 14. The Defendant chose to give a statement to
police about the drugs and guns recovered. Id. He never indicated that the
wanted to stop talking to police. Id. He never asked for an attorney. Id. The
Defendant was awake and alert during his statement. N.T. Jul. 25, 2017 at
55-56; N.T. Sept. 21, 2017 at 14. The Defendant appeared to understand what
he was doing. Id. The Defendant initialed next to most, if not all, of the
questions on his written statement and sign;ed the bottom of each page. N.T.
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Jul. 25, 2017 at 56.
On March 22, 2017, Detective Parker applied for a search warrant for the
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Defendant's cell phone. N.T. Jul. 25, 2017 at 62; N.T. Sept. 21, 2017 at 14. At
the time of Defendant's arrest on February 11, 2016, the Defendant's phone
was taken in to police custody where it remained. N.T. Jul. 25, 2017 at 65;
N.T. Sept. 21, 2017 at 14. At .the time of the search warrant, Detective Parker
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believed the contents of the phone would still be in existence as the device was
placed in airplane mode. Id. In airplane mode, the phone cannot be accessed
remotely. Id.11
The Defendant and his mother both tbstified at the Suppression Hearing.
They presented a version of events that this:Court did not find credible. N.T.
I
Sept. 21, 2017 15-18, 20.
The Defendant was charged with seven firearm and drug related charges.
I
Following a suppression hearing on July 24~and 25, 2017, this Court denied
I
the Defendant's Motion to Suppress by issuing findings of fact and conclusions
of law on the record on September 21, 2017; Thereafter, the Defendant
'
proceeded to a stipulated bench trial on December 6, 2017 and was convicted
of two counts of Possession of a Firearm with Altered Manufacturer's Number, 3
'
'
one count of Criminal use of a Communicatibn Facility, 4 one count of
i
Possession with the Intent to Deliver, 5 one count of Possession of a Controlled
Substance6 and one count of Possession of Brug Paraphernalia. 7 On February
'
I
1, 2018 he was sentenced to two and one hajlf to five years' incarceration in a
State Correctional Institution. The Defendant filed a post sentence motion on
March 1, 2018. This Court denied the Motio~ on March 13, 2018. The
Defendant filed a timely notice of appeal on March 22, 2018. However, counsel
failed to file a docketing statement and the appeal was dismissed.
On September 5, 2018, the Defendant lfi!ed a PCRA seeking
reinstatement of his direct appeal nunc pro tune, which this Court granted by
order of October 24, 2018. On November 21j 2018, Defendant filed a notice of
I
3 18 Pa. C.S.A. § 6110.2 (a).
4 18 Pa. C.S.A. § 7512 (a).
s 35 Pa. C.S.A. § 780-113 (a)(30).
6 35 Pa. C.S.A. § 780-113 (a)(16).
7 35 Pa. C.S.A. § 780-113(a)(32).
12
I
appeal. By Order of November 26, 2018, thi's Court directed the Defendant to
I
I
file a Concise Statement of Errors Complainld of on Appeal. He has since
complied with that directive.
II. Issues
I
I
I
The Defendant raises the following issues, reproduced verbatim:
I
1. The Defendant must be awarded l
new trial as the trial court
erred in denying Mr. Brown's niotion to suppress physical
evidence and statements based on !a lack of probable cause and
reasonable suspicion to be stopped by the police under the 4 th
'
and 14 th Amendments of the United States and Pennsylvania
Constitutions.
a. The Defendant's encounter ~ith police 'at Haverford House
Apartments was so coercive
' '
as to be the functional
equivalent of an arrest, and ;therefore the Defendant was
subject to a custodial detention that required police to
possess probable cause. Police that stopped Mr. Brown did
not possess the requisite belief that more likely than not
the Defendant committed a crime at the point the
Defendant was approached by five officers, with guns
drawn, surrounded by multiple unmarked police vehicles,
placed into handcuffs, physically searched and his
belongings removed from his person, and instructed to sit
inside a police vehicle where he was not free to go.
b. In the alternative, the Defendant's encounter with police at
Haverford House Apartments was an investigatory
detention that required police to possess reasonable
suspicion. Police that stopped Mr. Brown did not possess
the requisite belief that criminal activity was afoot at the
point he was approached by five officers, with guns drawn,
surrounded by multiple unmarked police vehicles, placed
into handcuffs, physically searched and his belongings
removed from his person, and sat inside a police vehicle
where he was not free to go.
13
c. Police lacked reasonable su~picion and probable cause to
stop the Defendant. The soly basis for the stop was vagqe
identifying information that Iwas not corroborated at the
time that the police conducted the stop. Further, the
reliance solely on a confidential informant, when the
information from the confidential information does not
match law enforcement's observations, is insufficient for
reasonable suspicion or prooable cause.
I
d. All physical evidence and s!tatements acquired after the
initial illegal stop must be· suppressed as fruits of the
poisonous tree.
2. The Defendant must be awarded :a new trial as the trial court
erred in denying Mr. Brown's motion to suppress physical
evidence recovered from his person based on lack of reasonable
• !
suspicion and probable cause. 1
a. Police lacked reasonable suspicion and probable cause to
search the Defendant's person and recover narcotics.
There was no evidence that: the search was conducted in
accordance with the Terry v. ,Ohio standards nor was there
sufficient probable cause dt the time of the search to
believe the Defendant had narcotics on his person,-
b. Police lacked reasonable suspicion and probable cause to
search the Defendant's person and recover keys, wallet and
a cell phone. At the time of ithe search there was no basis
to support these items being removed pursuant to Terry v.
Ohio nor was there sufficient probable cause at the time of
the search to believe that the items were connected to
criminal activity.
3. The Defendant must be awarded :a new trial as the trial court
erred in denying Mr. Brown's inotion to suppress physical
evidence recovered in his vehicle based on invalid consent.
a. Mr. Brown's consent to search was invalid as the consent
was acquired as a result of coercion and duress. See
Commonwealth v. Acosta, 815 A.2d 1078 (Pa. Super.
2003). Mr. Brown's consent to search did not include
!
14
locked items inside of his vehicle. See Commonwealth v.
Randolph, 151 A.3d 170 (Pa; Super. 2016).
4. The Defendant must be awarded a new trial as the trial court
erred in denying Mr. Brown's motion to suppress physical
evidence recovered in his home.
a. The police flagrantly violated the MPJA when they searched
1
and recovered items m the Defendant's home.
Commonwealth v. Fiume, 292 Pa. Super. 54 (1981). A
flagrant violation of the MPJA, made not during hot pursuit
or to effectuate an arrest, necessitates the suppression of
all physical evidence and ~tatements obtained after the
illegal police activity outside of the appropriate jurisdiction.
b. Police did not obtain valid consent to search any part of the
home, particularly the Defendant's bedroom/basement.
Mr. Brown's consent to search the bedroom/basement was
invalid as the consent was acquired as a result of coercion
or duress. Further, Mr. Brown's consent to search the
basement was invalidly requested after police had already
searched the area. Finally, any items recovered in the
Defendant's home must be suppressed as police
unconstitutionally accessed and searched, without a
warrant or consent, the Defendant's phone in order to
obtain information directing law enforcement to
contraband in the basement of the Defendant's home.
c. Nor could did [sic] the Defendant's mother provide a valid
consent. Ms. Laurie Lindsey's consent to search was
invalid as she did not have the authority to grant
permission to search the Defendant's bedroom/basement.
Ms. Laurie Lindsey's consent to search was invalid as the
consent was acquired as a result of coercion and duress.
5. The Defendant must be awarded a new trial as the trial court
erred in denying Mr. Brown's motion to suppress physical
statements regarding his possession of narcotics, guns and his
phone passcode
15
a. If the Court believes the Defendant made an admission to
possessing marijuana on his person during the initial stop
at Haverford House Apartments in response to an alleged
question about whether he .had any dangerous items on
his person, that statement must be suppressed due to lack
of Miranda warnings, as the questioning done by Detective
Kerr was designed to elicit an incriminating response and
the Defendant was the subject of custodial interrogation.
b. If the Court believes that the Defendant made Statements
to Detective Parker, before, during, and after the vehicle
search and before, during, and after the search of Mr.
Brown's home, those statements must be suppressed. The
statements made by the Defendant regarding any items
kept at his Philadelphia home must be suppressed due to
lack of Miranda warnings, as there is no evidence that
Miranda was given and understood by the Defendant at
that time. The statements made by the Defendant
identifying what rooms and property were his must be
suppressed due to lack of Miranda warnings, as there is no
evidence that Miranda was given and understood by the
Defendant at that time. Finally, the passcode provided by
the Defendant for his cell phone was illegally obtained and
must be suppressed since it was obtained without Miranda
warnings. To the extent that his cellphone was later
searched using that passcode, any evidence on his phone
or any evidence recovered based on the content of his
phone must be suppressed. To the extent that law
enforcement was able to put the device in "airplane mode"
pending search warrant, preventing other persons from
remotely accessing the phone, the contents of the phone
must be suppressed.
c. The Defendant's statements made to Detective Parker at
the police station must be suppressed. The Defendant's
statement was made after an illegal search and arrest and
must be suppressed. Additionally, the Defendant's
statement was made after unknowing and involuntary
Miranda warnings and therefore must be suppressed.
16
i
I
6. The Defendant must be awarded ~ new trial as the trial court
erred in denying the Defendant's m.otion to suppress the physical
evidence recovered from an invalid! search of the Defendant's cell
phone.
I
a. The Defendant's passcode wls unlawfully obtained without
Miranda warnings and then iused to manipulate his phone
prior to the application and 1approval of a search warrant.
The search warrant for the contents of the phone was
facially insufficient for a sho,/ving of probable cause and the
I
information contained within the search warrant was stale.
III. Discussion
The Court notes preliminarily that pursuant to Pa. R. A. P. 1925 (b)(4)(ii),
'
a Statement of Errors Complained of on Appeal shall "shall concisely identify
each ruling or error that the appellant inteAds to challenge with sufficient
detail to identify all pertinent issues for th~ judge." (emphasis added). Likewise,
"[t]he Statement should not be redundant dJr provide lengthy explanations as to
'
any error." 1925 (b)(iv).
i
Initially, the Court notes that at the butset of the hearing on his
suppression motion the Defendant indicat~d that he sought to challenge: "the
initial stop, the search of the vehicle, the s~arch of the house on consent
'
grounds, and the search of the house under violation of the MPJA." N.T. Jul.
25, 2017 at 6. Subsequently, during the hearing on the motion, he indicated
I
that he also wished to challenge the four cprners of the search warrant
i
obtained for his cell phone. N.T. Jul. 25, 2017 at 59. While his concise
I
statement is verbose and redundant and factually incorrect in many instances,
it appears that the Defendant seeks to challenge the same on appeal.
I
171
Additionally, he has raised, for the first time on appeal, three issues,
I
which this Court submits are waived. First~ he challenges the purported
search of his person which recovered his keys, wallet and cell phone (Concise
Statement Issue 2 (b)); next, he appears to .:\.liege that the passcode to his
phone was illegally obtained without Miranda warnings (Concise Statement
Issue 5(b)) 8 ; finally, he makes an indecipherable claim relating to his phone
being placed in "airplane mode" by police until they obtained a search warrant
(Concise Statement S(b)). None of these claims were made at the hearing on
I
his written motion, thus constituting waiver'. "Issues not raised in the lower
I
'
court are waived and cannot be raised for the first time on appeal." Pa. R.A.P.
302(a). For the reasons set forth below, the iremaining claims are without merit
'
and must fail.
The standard of review for the denial of a suppression motion is well
I
settled. The Pennsylvania Supreme Court hks stated:
[o]ur standard of review in addressing a challenge to a trial court's
denial of a suppression motion is limit1yd to determining whether the
factual findings are supported by the :record and whether the legal
conclusions drawn from those facts are correct. Since the
prosecution prevailed in the suppression court, we may consider
only the evidence of the prosecution 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 record supports the factual
'The Court made a specific finding that there was no search of the Defendant's
phone conducted prior to the execution of the search warrant for the phone.
N.T. Sept. 21, 2017 at 21. The only evidence adduced at the suppression
hearing was that the Defendant requested to 1 call his mother when en route to
the home, Detective Parker asked for the passcode to unlock it to make the call
and then changed his mind about making the call. Detective Parker did not
search the phone and the phone remained in' the car during the entire
interaction at the Defendant's residence. '
18
findings of the trial court, we are bqund by those facts and may
reverse only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Bomar, 826 A.2d 831, 84:2 (Pa. 2003) (citing Commonwealth
I
v. Fletcher, 750 A.2d. 261 (Pa. 2007); Commonwealth v. Hall, 701 A.2d 109,
I
'
197 (Pa. 1997), cert. denied, 523 U.S. 1082 ''(1998)).
1. The initial stop and search of the Defendant was lawful.
(Concise Statement Issues 1 and 2 (a))
The Defendant's first contention is that his initial encounter with police
was not supported by reasonable suspicion or probable cause, thus, any
evidence and statements obtained after the illegal stop must be suppressed.
To the extent that the Defendant alleges that his person was searched without
reasonable suspicion or probable cause, this claim was not raised before this
Court, thus constituting waiver. The remaining claims are without merit and
must fail.
'
I
It is well settled that there are three cltegories of police-citizen
I
interactions,
i
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.
Ii
Commonwealth v. Ranson, 103 A.3d 73, 76,77 (Pa. Super. 2014), reargument
denied (Dec. 16, 2014), appeal denied, 117 A.3d 296 (Pa. 2015) (citations
omitted). Furthermore,
19
[a] police officer may detain an individual in order to conduct an
investigation if that officer reasonably suspects that the individual
is engaging in criminal conduct. This 1standard, less stringent than
probable cause, is commonly known' as reasonable suspicion. In
order to determine whether the police officer had reasonable
suspicion, the totality of the circumstances must be considered. In
making this determination, we must give due weight to the specific
reasonable inferences the police officer is entitled to draw from the
facts in light of his experience. Also, the totality of the circumstances
test does not limit our inquiry to an examination of only those facts
that clearly indicate criminal conducf Rather, even a combination
of innocent facts, when taken together, may warrant further
investigation by the police officer.
Id. at 77. (citations omitted).
Instantly, while conducting surveillance as a part of a controlled buy
operation, law enforcement received word ttlat the intended target texted the
confidential informant that he had arrived at the designated location. Law
enforcement observed the Defendant to be ihe only person in the area,
additionally, he matched the description of the dealer, identified by the
'
I
confidential informant as "L.B." Police approached him initially to determine if
'
he was, in fact, L.B. The Defendant answered affirmatively that he was L.B.
At this point, police had adequate reasonable suspicion to believe that the
Defendant was the person from whom the informant arranged to buy
marijuana. Armed with that suspicion, police lawfully detained the Defendant
'
to continue that investigation. During the course of that investigation,
Detective Kerr asked the Defendant if he hcfd anything on his person, to which
the Defendant replied that there was an ounce of marijuana in his pocket.
I
Detective Kerr retrieved the marijuana froni his pocket and emptied his
pockets. At that point, police had probable cause to arrest the Defendant for
'
20 '.
I
1
possession of narcotics. Instead, they conti nued their investigation. Thus,
based on the totality of the circumstances, the initial stop of the Defendant was
I
supported by reasonable suspicion and the 'continued investigation was
I
supported by probable cause and this claim! must fail.
2. The Defendant's consent to search his and his home car was
validly obtained. (Concise Statetnent Issue 3 and 4 (b) and (cl).
I
The Defendant makes multiple contentions related to the consensual
I
searches of his car and home. First, he allei?;es that the consent to search his
vehicle was coerced and did not include the locked box in his trunk. Next, he
I
claims that his consent to search his home was coerced and his consent to
I
search the basement was obtained after the area had already be searched.9
Finally, he claims that his mother did not have the authority to consent to a
i
search of the basement. He is mistaken.
Generally, a search without a warrant !is constitutionally impermissible.
I
However, there are exceptions to the warran _requirement, including a
7I
consensual search. Commonwealth v. Valdivia, 195 A.3d 855, 861 (Pa., 2018)
To establish a valid consensual search "the Jrosecution must first prove that
I
'
the consent was given during a legal police interaction, or if the consent was
I
given during an illegal seizure, that it was not a result of the illegal seizure; and
second, that the consent was given voluntariliy." Commonwealth v. Reid, 811
I
A.2d 530, 544 (Pa. 2002) (citations omitted). Validity of consent based on
9 Additionally, he alleges that the basement was searched as a result of a
search of his phone that this Court specifica111/ found did not occur. N.T. Sept.
21, 2017 at 21. '
21
totality of circumstances. Id. at 546 (citatioil omitted). "When an official
search is properly authorized, the scope of the search is limited by the terms of
its authorization. The standard for measuring the scope of a person's consent
is based on an objective evaluation of what a reasonable person would have
understood by the exchange between the officer and the person who gave the
consent." Id. at 549 (citations omitted). The Pennsylvania Supreme Court has
'
declined to adopt per se rule that consent in context of a lawful custodial
detention is involuntary. Commonwealth v .. Mack, 796 A.2d 967 (Pa. 2002).
Statement by police that they would have to get a search warrant is a non-
dispositive factor to consider in the totality of the circumstances to determine if
consent was coerced. Id. "For a finding of voluntariness, the Commonwealth
must establish that the consent given by th.e defendant "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." Valdivia, 195 A.3d at 862 (citations omitted).
First, the Defendant voluntarily consented to the search of his vehicle.
As discussed above, law enforcement legally detained the Defendant prior to
seeking his consent to search his vehicle. Thus, the issue turns on the
voluntariness of his consent. At the time of the consent, Detective Parker had
gotten into the back seat of an unmarked police Tahoe where the Defendant
was seated. There were no other law enforcement officers in the vehicle.
Detective Parker did not have a weapon drawn. There were no marked cars in
the area, no police vehicles deployed their lights and sirens. The Defendant
22
was not handcuffed; he had been in the car for one to two minutes before
I
Detective Parker arrived. The car was an uninarked detective car with no cage;
'
the door could be opened from the inside anr the door was not locked.
Detective Parker explained th(! investi~ation and asked him if he would
ctmsent to a search of his car since the amofnt of marijuana found on his
'
person was much less than the confidential informant had arranged to buy.
1
Detective Parker explained to the Defendant that he could refuse consent; the
'
I
Defendant asked what would happen if he refused. Detective Parker explained
that they would decide whether to impound[the car and to apply for a search
warrant. Detective Parker testified that he maintained a conversational tone
throughout and made no threats or promisJs to induce the Defendant to
I
consent. Detective Parker testified that in his opinion it appeared that the
i
Defendant voluntarily consented to the seatlch of the vehicle. The Defendant
consented to the search of the vehicle and did not limit or revoke his consent at
any time.
The Defendant signed a consent to search form that further advised him
' '
of his right to refuse to sign the form and iridicated that no promises, threats,
force or physical or mental coercion were ured. Exhibit CS-1. Based on the
'
totality of the circumstances, the Defendan~ voluntarily consented to the
search of his car, including the locked box )n the trunk, from which drugs were
I
ultimately recovered. Thus, this claim is without merit and must fail.
Likewise, the Defendant gave a voluritary consent to search his home to
. I
recover the drugs and paraphernalia he told police were there. Before driving
23
to Philadelphia, the Defendant's bedroom was added to the consent to search
form. While the Defendant did not sign or initial at that time, he had recently
read and signed the same form when he corisented to the car search. The form
I
informed him of his right to refuse the searcih. The Defendant was aware that
I
'
he could refuse, but agreed to accompany p~lice to his home to remove the
items he told them were in his possession.
When they arrived at the home, the D,efendant's mother invited them in
and Detective Parker explained to her that the Defendant had given permission
'
I'
to retrieve some items from his bedroom. A~ that point, the Defendant led
Detective Parker upstairs and began to looJ around his room. He was unable
to find the items he said were there. He then led Detective Parker to another
room in the house, before stating that his brother must have taken the items.
After the initial search of his bedrooJ did not recover the items he said
'
I
were there, law enforcement obtained cons9nt from the homeowner and the
I
Defendant to search the basement. The Defendant and his mother were both
present and did not object. Upon learning that the Defendant used part of the
room as a bedroom, this area was added to Jthe consent to search form and he
I
signed and dated the form. Again, the form explained that he had the right to
I
refuse consent. No threats or promises were made to obtain consent to search
the basement. The family was informed that law enforcement would obtain a
warrant if they refused consent. There was no evidence that the Defendant or
his grandmother were under the influence c)f any substances or mental or
I
'
emotional disorders. Based on the totality of these circumstances, this Court
I
'
24
found that the consent to search the home as voluntary and this claim must
I
fail.
Finally, the Defendant's concise statement erroneously alleges that the
Defendant's mother gave consent for the se1rch of the basement. This Court
I
credited Detective Parker's testimony that the Defendant's grandmother, the
I
homeowner, gave consent for the search along with the Defendant himself.
Testimony adduced at the suppression heajing indicated that the Defendant's
I
mother was present and did not object to th e search.1
Therefore, this claim
must fail.
3. The Municipal Police Jurisdiction Act did not apply to the search
of the Defendant's home. (Concise Statement Issue 4 (al),
;
The Defendant's final allegation of errrr relating to the search of his
home is .that it violated the Municipal Police['Jurisdiction Act ("MPJA"). The Act
provides,
(a)General rule.--Any duly employed unicipal police officer who is
within this Commonwealth, but beyond the territorial limits of his
primary jurisdiction, shall have the power and authority to enforce
the laws of this Commonwealth or otherwise perform the functions
of that office as if enforcing those laws or performing those functions
within the territorial limits of his : primary jurisdiction in the .
following cases: '
(1) Where the officer is acting pursuan;t to an order issued by a court
of record or an order issued by ~a district magistrate whose
magisterial district is located within the judicial district wherein
!
the officer's primary jurisdiction is situated, or where the officer is
otherwise acting pursuant to the requirements of the Pennsylvania
Rules of Criminal Procedure, except that the service of an arrest or
search warrant shall require the consent of the chief law
. enforcement officer, or a person authorized by him to give consent,
of the organized law enforcement agency which regularly provides
25
I
primary police services in the municipality wherein the warrant is to
be served. [
I
(2) Where the officer is in hot pursuit of any person for any offense
which was committed, or which he l\.as probable cause to believe
I
was committed, within his primary jurisdiction and for which
offense the officer continues in fresh pursuit of the person after the
commission of the offense. 1
(3) Where the officer has been requested to aid or assist any local,
State or Federal law enforcement officer or park police officer or
otherwise has probable cause to believe that the other officer is in
need of aid or assistance. I
(4) Where the officer has obtained thfr prior consent of the chief law
enforcement officer, or a person authorized by him to give consent,
of the organized law enforcement agency which provides primary
police services to a political subdivision which is beyond that
'
officer's primary jurisdiction to enter the other jurisdiction for the
purpose of conducting official duties which arise from official
matters within his primary jurisdiction.
(5) Where the officer is on official business and views an offense, or
I
has probable cause to believe that ah offense has been committed,
and makes a reasonable effort to ide,ntify himself as a police officer
and which offense is a felony, misdeineanor, breach of the peace or
other act which presents an immediate clear and present danger to
!
persons or property.
(6) Where the officer views an offense which is a felony, or has
probable cause to believe that an off~nse which is a felony has been
committed, and makes a reasonable effort to identify himself as a
police officer. I
42 Pa.C.S.A. § 8953.
The Defendant alleged that Detective Parker's actions did not fall within
I
I •
any of the foregoing exceptions and thus the evidence seized from 5100
Woodbine Avenue in Philadelphia should !be suppressed. He is mistaken.
'
Specifically, this Court found Commonwealth v. O'Shea, 567 A.2d 1023(Pa. 1989) 10 , to be instructive. In O'Shea, law enforcement travelled outside of
'
their primary jurisdiction in the course of a murder investigation. Id. at 1025.
Hoping to question the Defendant about a Homicide and robbery that took
place in Pittsburgh, City of Pittsburgh Detecltives travelled to the Defendant's
home in a neighboring jurisdiction. Id. Th~ Defendant was not home at the
time of their arrival, however, the homeowners granted consent for the
!
Detectives to look around the home. Id. The homeowners, the defendant's
- I
brother and sister-in-law let Detectives to the area of the home where the
'I
defendant slept. Id. In plain view, there were several items identical to those
stolen from the crime scene. Id. at 1025-2:6.
In O'Shea, the court stated I
I
I
we do not believe section 8953 prohibits police officers from leaving
their primary jurisdiction to go into other jurisdictions to ask
questions therein, or to enter a residence therein upon the consent
of its owners (and full disclosure of the officers' purpose) and observe
'
what they observe therein. Such unobtrusive police conduct is
outside the scope of section 8953, and is not illegal. Any citizen of
the Commonwealth could do what Detectives Freeman and Hediger
did herein, namely drive to the ,O'Shea residence, ask them
questions, enter their home with their consent and look around. In
the absence of explicit legislative directives to the contrary, we will
not prohibit police officers from doihg that which a private citizen
could do.
10 This Court is aware of the Supreme Court's recent decision of
Commonwealth v. Hlublin, ---A.3d. ---- (Pa. 2019) calling the continued
'
viability of O'Shea's three part test for determining whether suppression is the
appropriate remedy for a violation of Section 8953 into doubt. However,
O'Shea has not been explicitly overruled as of this date and this Court found
that there was no violation of the MPJA in: the instant matter.
27,
I
I
I
Accordingly, the initial search of the O'Shea residence and seizure
of the items viewed in plain sight therein was not illegal under
'
section 8953, nor under the constitµtions of this state or of the
United States. That warrantless search was reasonable and justified
by the freely given and informed cpnsent of the owners of the
residence, James and Marion O'Shea, who obviously had authority
to show the detectives their gameroom-basement area.
I
Id. at 1029-30.
I
Instantly, law enforcement did that which a private citizen could do
when they traveled to the Defendant's horrl in a neighboring jurisdiction
and entered the home with his consent and with that of his grandmother,
'
the homeowner. Therefore, this Court foun 1d that their actions fell outside
I
of the scope of the MPJA and this claim mlil.st fail.
'
4. The Court properly denied the Defendant's Motion to Suppress
his statements. (Concise Statetnent Issue 5).
I
The Defendant's next contention is that his statements should have been
I
suppressed. First, he contends that his statement to Detective Kerr about the
I
I
marijuana in his pocket required Miranda warnings. Next, he contends that
any statements regarding additional drugs' or paraphernalia and their location
'
in his home must be suppressed due to a lack of Miranda warnings. Finally,
I
he contends his statement at the police station must be suppressed as a fruit
I
of an illegal search and arrest and for "unknowing and involuntary Miranda
I
I
warnings." He is mistaken.
I
In order to trigger the safeguards of Miranda, there must be both
custody and interrogation. Commonwealth v. Heggins, 809 A.2d 908,914 (Pa.
Super. 2002) (citing Commonwealth v. Turner, 772 A.2d 970, 973 (Pa. Super.
'
I
28
I
I
2001) (en bane)). "The standard for determ1ping whether an encounter with
I
the police is deemed "custodial" or police h~ve initiated a custodial
I
interrogation is an objective one based on aitotality of the circumstances, with
I
due consideration given to the reasonable impression conveyed to the person
interrogated rather than the strictly subjective view of the officers or the person
being seized." Commonwealth v. Gwynn, 555 Pa. 86, 98, 723 A.2d 143, 148
(1998).
"The test for custodial interrogation is 'whether the suspect is physically
deprived of his freedom in any significant w~y or is placed in a situation in
I
which he reasonably believes that his freedom of action of movement is
I
i
restricted by such interrogation."' Commonwealth v. Brown, 375 A.2d 1260,
'
I
1264 (Pa. 1977) (citations omitted). Thus, cµstodial interrogation does not
require that the police make a formal arrest] nor that the police intend to make
I
an arrest. Id. Rather, the test of custodial i;nterrogation is whether the
individual being interrogated reasonably believes· his freedom of action is being
restricted. Id. Statements not made in response to custodial interrogation are
classified as gratuitous and are not subject to suppression for lack of Miranda
warnings. Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999)
(en bane) (citation omitted).
"The test for determining the voluntar1ness of a confession and the
I
validity of the waiver of the right to remain Jiient is the totality of the attending
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'
circumstances." Commonwealth v. D'Amatd, 526 A.2d 300, 305 (Pa. 1987)
I
I
(citing Commonwealth v. Fahy, 516 A.2d 689, 695 (Pa. 1986); Commonwealth
29
v. Whitney, 512 A.2d 1152 (Pa. 1986)). In jxamining the totality of the
I
I
circumstances surrounding a confession, tl:ie courts look to a myriad of factors
'
including "the duration and methods of interrogation, the conditions of
detention, the manifest attitude of the police toward the accused, the accused's
I
physical and psychological state, and 'all other conditions present which may
I
serve to drain one's powers of resistance to !suggestion and undermine his self-
determination."' D'Amato, 526 A.2d at 305 (citing Commonwealth v. Crosby,
i
346 A.2d 768 (Pa. 1975)). Other relevant factors include:
I
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The accused's age; his level of education and intelligence; the extent
I
of his previous experience with polic~; the repeated and prolonged
nature of the questioning; the length of detention prior to the
confession; whether he was advised of his constitutional rights;
whether he was injured, ill, drugged, or intoxicated when he
confessed; whether he was deprived of food, sleep, or medical
1
:~t``!'.on; and whether he was physiclally abused or threatened with
Commonwealth v. Perez, 845 A.2d 779, 78 · (Pa. 2004) (citing People v.
Cipriano, 431 Mich. 315,429 N.W.2d 781 (1988)). To be valid, a confession
must be given free of any physical or psych'ological coercion which might
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'' .
interfere with one's will to resist. Commonwealth v. Cunningham, 370 A.2d
I
1172, 1175 (Pa. 1977) (citing Culombe v. Connecticut, 367 U.S. 568 (1961);
Commonwealth v. Cockfield, 350 A.2d 833 (Pa. 1976)).
Initially, Detective Kerr and the survdillance team approached the
. I
Defendant and asked him for identification! Upon producing said
'
identification, they had reasonable suspicion to believe that he was the dealer
with whom the confidential informant arranged a drug deal. At that point, they
I
detained him to continue their investigatiob. For officer safety, Detective Kerr
I'
3o I
asked him if there was anything on his perJon that could harm the officers or
anything that he should not have. The DefJndant responded that there was
marijuana in his pocket. There was no custodial interrogation at this point,
I
and thus his statement regarding the marijuana in his pocket was gratuitous
I
and not subject to suppression for lack of Miranda warnings.
As to his statements regarding additi6nal drugs in his home, Detective
Parker testified that the verbally gave the D~fendant Miranda warnings ·prior to
questioning him about items in his home. This Court credited Detective
Parker's testimony in this regard. Throughbut this interaction, Detective
I
Parker's tone remained conversational. The Defendant continued to cooperate
with the investigat'.on ~nd told Detective Pl'rker what was in his home and
where they could fmd 1t. ·
Finally, the Defendant's statement at the police station was voluntary
' '
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and pursuant to a valid waiver of his right to remain silent. Throughout his
• I
entire interaction with police, the DefendaJt was cooperative. When they
returned to the station following the seizure of the drugs and guns from his
home, Detective Parker reviewed a written lonstitutional rights form with the
I
Defendant. He testified that he had the Defendant read a sentence out loud to
I
ensure that he could read and understandithe document; the Defendant
initialed the sentence he read aloud. The iitatement took place in a room off of
the booking room at the police station. The Defendant was not handcuffed
I
during the statement. Detective Parker's tbne remained conversational. The
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Defendant was not confrontational. He was awake and alert throughout the
31
statement. He was not under the influence of any mental or physical distress
or any substances. He never asked for a la{vyer or to stop answering
questions. The statement took only approximately 45 minutes. There was no
extended questioning. The Defendant simply acknowledged that the items
recovered were his and that he intended to sell drugs to. the confidential
informant. He also signed and initialed next to nearly every question on his
statement after he reviewed the statement ~nd made changes where necessary.
Therefore, this claim is also without merit and must fail.
5. The Defendant's phone was searched pursuant to a valid search
warrant. (Concise Statement Issue 6).
In his final issue on appeal, the Defendant makes two claims. First, that
his passcode was illegally obtained and use to search his phone. As noted
above, the Court specifically found that there was no search of the phone prior
to obtaining a warrant, thus this claim is without merit. His second contention
I
is that the warrant lacked probable cause and was based on stale information.
This claim is likewise without merit.
I
It is well settled that probable cause for the issuance of a search warrant
exists "where the facts and circumstances within the affiant's knowledge and of
which he has reasonably trustworthy information are sufficient in themselves
to warrant a man of reasonable caution in the belief that a search should be
conducted." Commonwealth v. Leed, 186 A.3d 405,413 (Pa., 2018) (citation
'
and internal quotations omitted). "Affidavit for a search warrant is to be tested
by this court with common sense and a rea,listic manner, and not subjected to
32
overly technical interpretations; the magistrlate's determination of probable
!
'
cause is to be accorded great deference on 1eview." Commonwealth v. Vergotz,
616 A.2d 1379, 1382 (Pa. Super. 1992) (citJtions omitted). Stale information
cannot provide probable cause in support of a warrant. The Superior Court
has stated,
[the] age of the information supporting a warrant application is a
factor in determining probable cause. If too old, the information is
stale and probable cause may no longer exist. Age alone, however,
does not determine staleness. The determination of probable cause
is not merely an exercise in county the days or even months between
the facts relied on and the issuance ofthe warrant. Rather, we must
examine the nature of the crime and the type of evidence.
'
Commonwealth v. Hoppert, 39 A.3d 358 (PJ.
Super. 2012) (citing
Commonwealth v. Janda, 14 A.3O 147, 158~ (Pa. Super. 2011).
'
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Instantly, the search warrant for the Defendant's phone contained
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sufficient probable cause. While the incident that provided probable cause for
the search took place 13 months prior to th~ search, the information sought
I
was information relating to those crimes thJt was still in existence at the time
of the execution of the warrant. Law enforcement had custody of the phone
from the date of the Defendant's arrest and could the evidence could not be
accessed or altered as the phone was placed in airplane mode after it was
seized by police. Therefore, this claim fails.
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IV. CONCLUSION
Based upon the foregoing, the Judgment of Sentence should be affirmed.
BY THE COURT:
STEVEN T. O'NEILL J.
Copies mailed on ~
to the following:
Robert Falin, Esq. (District Attorney's Office)
Edw. rd C. Meehan, Esq. I
1 Assistant
34