Com. v. Guirleo, K.

J-S21032-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KERRIE LEI GUIRLEO, :
:
Appellant : No. 1334 WDA 2016
Appeal from the Judgment of Sentence August 31, 2016
in the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001292-2015
BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 16, 2017
Kerrie Lei Guirleo (Appellant) appeals from the judgment of sentence
imposed on August 31, 2016, after she was found guilty of one count of
persons not to possess firearms. We affirm.
The trial court set forth the factual history as follows.
On July 15, 2015, Trooper David Vinkler of the
Pennsylvania State Police was dispatched to Iris Street in
Connellsville, Fayette County, Pennsylvania for a matter
unrelated to this case. As part of police protocol, Trooper Vinkler
attempted to interview residents of the neighborhood. It was
through this process that Trooper Vinkler came into contact with
Appellant. Adjacent to the residence that Trooper Vinkler was
dispatched to was Appellant’s residence, at 435 Iris Street.
As Trooper Vinkler approached Appellant’s residence,
Appellant was standing in the entranceway of her open door.
Appellant invited Trooper Vinkler inside after he asked if he could
talk to her.2 Once Trooper Vinkler entered the residence, he
noticed a 410 shotgun laying across the arms of a recliner chair
situated in the living room. Determining the shotgun to be
*Retired Senior Judge assigned to the Superior Court.
J-S21032-17
unloaded, Trooper Vinkler removed the firearm from the
residence and placed it outside of the main entrance door.
Trooper Vinkler then located additional firearms in a locked
gun case in a bedroom and a loaded [.]44 Caliber Ruger Pistol
(“Ruger”) underneath a pillow on the couch in the living room.
After locating the firearms, Trooper Vinkler escorted Appellant
outside the house towards his patrol vehicle where he locked the
Ruger in his trunk. With regards to the other firearms, Trooper
Vinkler contacted a relative of Appellant to take possession and
remove them from the house. Trooper Vinkler concluded his
investigation by placing Appellant under arrest when he
confirmed she was not permitted to possess a firearm.3
Appellant testified at trial. Appellant testified that she
lived with her husband and son. She testified that she did not
know any guns were in the gun cabinets and she did not know
that the Ruger was under a pillow in the living room. She later
testified that the Ruger was her mother’s firearm, who was at
the residence earlier that day.
______
2
Appellant testified that Trooper Vinkler just walked into
her house but she did not tell him he could not come inside.
3
This [c]ourt read to the jury a stipulation agreed to by
the parties that Appellant was prohibited from possessing or
controlling a firearm due to a prior conviction and she was
prohibited from possessing or controlling a firearm on a date
more than sixty days from July 15, 2015.
Trial Court Opinion, 10/4/2016, at 2-3 (record citations omitted).
After being charged with the aforementioned crime, Appellant filed an
omnibus pre-trial motion to suppress the evidence. Specifically, Appellant
argued, inter alia, that Trooper Vinkler, the arresting officer, (1) entered her
home without a search warrant or probable cause; (2) lacked reasonable
suspicion and probable cause to search her residence; and (3) obtained
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statements from Appellant without reading her Miranda1 warnings. The
suppression court held a hearing at which testimony from Trooper Vinkler
was presented. Appellant was not present at the hearing.2 The suppression
court made the following findings of fact on the record at the hearing.
[O]n July 15, 2015, Trooper Vinkler was investigating a burglary
that had been reported at the home of [Appellant’s mother,]
Helen Newcomer[,] who resides at 433 Irish Street in
Connellsville, Fayette County, Pennsylvania. In the course of his
investigation he proceeded [next door] to 435 Irish Street in
Connellsville which is the residence of [Appellant.] [Appellant]
permitted Trooper Vinkler into her home and for his safety he
made inquiry as to whether there were any firearms in the
immediate area after first noticing a 410 shotgun across the arm
of a chair. The trooper properly asked, to protect his own safety
upon seeing the shotgun, if there were other weapons in the
immediate area and it was then that [Appellant] reported that
she had a loaded [.]44 [caliber firearm] under a pillow on her
couch, which the trooper then removed from the immediate
area. [Appellant] acknowledged that the guns were registered
to her and Trooper Vinkler determined that she is not entitled to
possess firearms in that she pled guilty to a felony offense which
occurred in April of 1998.
N.T., 11/17/2015, at 15-16. Following the hearing, the suppression court
denied Appellant’s motion. Order, 11/18/2015.
A jury trial was held on August 1, 2016, and Appellant was found
guilty of the aforementioned charge. On August 31, 2016, Appellant was
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
Appellant’s whereabouts were unknown at the time of the hearing, but her
counsel agreed to proceed because counsel did not plan to present
testimony from Appellant. N.T., 11/17/2015, at 3.
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sentenced to three and a half to seven years of incarceration. Appellant
timely filed a notice of appeal.3
On appeal, Appellant raises two issues.
[1] Did the [suppression] court err in denying Appellant’s
omnibus pretrial motion to suppress evidence?
[2] Did the trial court err in permitting the Commonwealth to
introduce testimony regarding multiple “firearms” where the
Commonwealth information charged Appellant with being in
possession of a single “firearm”?
Appellant’s Brief at 7.
We consider the following regarding Appellant’s first issue.
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to determining
whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are
correct. [W]e 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 findings of the suppression
court, we are bound by those facts and may reverse only if the
court erred in reaching its legal conclusions based upon the
facts.
3
Appellant filed a statement pursuant to Pa.R.A.P. 1925 challenging the
suppression’s court ruling as well as an evidentiary ruling made at trial. The
trial court filed a Rule 1925(a) opinion addressing the evidentiary issue.
However, we note that while the suppression court stated its factual findings
on the record at the suppression hearing prior to issuing its ruling and made
a passing reference to officer safety, it did not issue specific “conclusions of
law as to whether the evidence was obtained in violation of the defendant’s
rights, or in violation of these rules or any statute,” as is required by
Pa.R.Crim.P. 581(I).
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Commonwealth v. Prisk, 13 A.3d 526, 530 (Pa. Super. 2011) (quoting
Commonwealth v. Williams, 941 A.2d 14, 26–27 (Pa. Super. 2008) (en
banc)).
Appellant argues that because Trooper Vinkler had neither a search
warrant nor probable cause to enter her home, any testimony regarding
firearms recovered from the home should have been suppressed.
Appellant’s Brief at 11-12. She further argues that Trooper Vinkler
questioned her and obtained incriminating statements without administering
required Miranda warnings. Id. at 10-11.
Appellant’s argument in her brief regarding Trooper Vinkler’s entry into
her home is cursory, underdeveloped, and lacks citation to pertinent case
law.4 It is an appellant's duty to present arguments that are sufficiently
developed for our review. Commonwealth v. Kane, 10 A.3d 327, 331 (Pa.
Super. 2010). This Court will not act as counsel and develop arguments on
behalf of an appellant. Id. Therefore, Appellant has waived this issue.
Even if Appellant had not waived this issue, it would have no merit.
While the Fourth Amendment generally prohibits the warrantless entry of a
person’s home, the prohibition does not apply to situations in which
voluntary consent has been obtained. Illinois v. Rodriguez, 497 U.S. 177,
4
We also note with disapproval that Appellant’s statement of the case fails
to include “[a] closely condensed chronological statement, in narrative form,
of all the facts which are necessary to be known in order to determine the
points in controversy, with an appropriate reference in each instance to the
place in the record where the evidence substantiating the fact relied on may
be found.” Pa.R.A.P. 2117(a)(4).
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181 (1990). Based upon Trooper Vinkler’s testimony that Appellant invited
him into her home, the suppression court found that Trooper Vinkler entered
Appellant’s home with her permission. N.T., 11/17/2015, at 7, 15-16.
Similar to her argument regarding entry into the home, Appellant’s
argument concerning the lack of Miranda warnings is also underdeveloped.
Other than noting that she was a suspect in a burglary investigation, she
fails to describe why she was entitled to the warnings. While Appellant cites
to general case law regarding Miranda warnings, she fails to analyze the
issue by applying the facts of her case to the law. Therefore, she has
waived this issue as well.
Again, however, even if Appellant had not waived this issue, it would
merit no relief. Miranda safeguards only attach once a person is in custody
and subjected to “express questioning or its functional equivalent.”
Commonwealth v. Williams, 941 A.2d 14, 30 (Pa. Super. 2008). To
constitute an interrogation, the words or actions of the police must be
“reasonably likely to elicit an incriminating response from the suspect.” Id.“[I]n evaluating whether Miranda warnings were necessary, a court must
consider the totality of the circumstances.” Id.Whether a person is in custody for Miranda purposes
depends on whether the person is physically denied of [his or
her] freedom of action in any significant way or is placed in a
situation in which [he or she] reasonably believes that [his or
her] freedom of action or movement is restricted by the
interrogation. Moreover, the test for custodial interrogation does
not depend upon the subjective intent of the law enforcement
officer interrogator. Rather, the test focuses on whether the
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individual being interrogated reasonably believes [his or her]
freedom of action is being restricted.
Under the totality of the circumstances approach, the
following factors are relevant to whether a detention has become
so coercive as to constitute the functional equivalent of a formal
arrest: the basis for the detention; its length; its location;
whether the suspect was transported against his or her will, how
far, and why; whether restraints were used; whether the law
enforcement officer showed, threatened or used force; and the
investigative methods employed to confirm or dispel suspicions.
Id. at 30-31 (citations and quotations omitted).
Here, at the time Appellant made statements regarding the presence
and ownership of guns in her home, she was not in custody, even if Trooper
Vinkler’s burglary investigation focused upon Appellant.5 “The fact that a
police investigation has focused on a particular individual does not
automatically trigger ‘custody,’ thus requiring Miranda warnings.”
Commonealth v. Witmayer, 144 A.3d 939, 948 (Pa. Super. 2016).
Appellant could not have reasonably believed that her freedom of action was
restricted. As noted above, Appellant invited Trooper Vinkler into her home.
Trooper Vinkler noticed a shotgun in plain sight upon entering the residence.
N.T., 11/17/2015, at 7-8. He asked Appellant’s permission to place the gun
outside, which she granted. Id. All of Trooper Vinkler’s questioning
regarding firearms occurred in the immediate aftermath of his entry into the
5
Appellant’s mother, who lived next door to Appellant, alleged that Appellant
had kicked in the back door of her residence and stolen all of her food.
Appellant was charged with burglary but the charge was dismissed at the
magistrate’s level. N.T., 11/17/2015, at 5-6, 10.
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home, so their interaction was not of a long duration. There are no
indications that Trooper Vinkler showed, threatened or used force.
Appellant’s remaining claim of error is that the trial court should have
prohibited the Commonwealth from introducing testimony regarding multiple
firearms at trial because the criminal information referenced “a firearm.”
Upon our review of the certified record, the parties’ briefs, and the relevant
law, we conclude that the opinion of the Honorable Joseph M. George, Jr.
thoroughly and correctly addresses and disposes of that issue and
supporting arguments and evidences no abuse of discretion or errors of law.
See Trial Court Opinion, 10/3/2016, at 3-6. We agree with the trial court’s
analysis that the information tracked the wording of the statute and
Appellant’s argument would require reading the information in an overly
technical manner. Id. at 4-5. Moreover, Appellant had ample notice of the
testimony regarding multiple firearms due to Trooper Vinkler’s testimony at
the suppression hearing. Id. at 5-6.
Accordingly, we adopt the trial court’s opinion, filed on October 3,
2016, as our own and hold, based upon the reasons stated therein, that the
trial court committed neither an error of law nor an abuse of discretion in
allowing the Commonwealth to present evidence of multiple firearms. The
parties shall attach a copy of the trial court’s October 3, 2016 opinion to this
memorandum in the event of future proceedings.
Judgement of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2017
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Circulated 06/02/2017 11:30 AM