Com. v. Campbell, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYRONE CAMPBELL :
:
Appellant : No. 1851 EDA 2017
Appeal from the Judgment of Sentence May 18, 2017
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001160-2016
BEFORE: BENDER, P.J.E., PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED AUGUST 21, 2018
Tyrone Campbell appeals from the judgment of sentence entered in the
Bucks County Court of Common Pleas following his conviction for possession
with intent to distribute. We affirm.
The relevant facts and procedural history of this case are as follows. In
order to apprehend suspects soliciting prostitutes, the Bensalem Police
Department conducted an undercover sting operation using an advertisement
for a prostitute placed on the website backpage.com. Officer Jillian Fox,
playing the role of a prostitute, responded to messages from interested
customers, and invited them to meet her at the Red Roof Inn. Appellant
contacted Officer Fox for “full service” pricing information, and arranged to
meet her at the hotel. N.T., Suppression, 1/9/17, at 11-12. Upon arrival,
Appellant counted out money for Officer Fox, and placed it on the bed. Officer
Fox then signaled to officers watching the exchange on a video feed, who
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entered the room and handcuffed Appellant.
The arresting officers asked to search Appellant’s car, and Appellant
gave them verbal permission to do so. He also told the officers his cell phone
was in the vehicle. One of the officers then reviewed a consent to search form
with Appellant, who signed it. As Appellant’s car was towed to the police
station to be searched, officers apprised Appellant of his Miranda1 rights and
interviewed him about why he came to the hotel. During the search of
Appellant’s car, officers located approximately $4,800.00 in cash, two cell
phones, and a blue backpack containing 350 wax paper baggies filled with
heroin.
Appellant was charged with possession with intent to distribute
(“PWID”), possession of drug paraphernalia, criminal use of a communications
facility, and soliciting a person to patronize a prostitute.2 He filed a pretrial
motion seeking to suppress evidence obtained in the search of his car, as well
as statements he made to police before he was read his Miranda rights. After
a lengthy hearing, the court denied the suppression motion. Appellant
thereafter proceeded to a stipulated bench trial. Appellant was found guilty of
PWID, and acquitted of the remaining charges. The court sentenced him to
2½ to 7½ years’ incarceration. This timely appeal followed.
____________________________________________
1 Miranda v. Arizona, 384 U.S. 436 (1966).
2 35 P.S. § 780-113(a)(30), (a)(32), and 18 Pa.C.S.A. §§ 7512(a),
5902(b)(4), respectively.
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Appellant challenges the denial of his suppression motion. “Once a
motion to suppress evidence has been filed, it is the Commonwealth’s burden
to prove, by a preponderance of the evidence, that the challenged evidence
was not obtained in violation of the defendant’s rights.” Commonwealth v.
Wallace, 42 A.3d 1040, 1047-1048 (Pa. 2012) (citations omitted).
Our standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is whether the factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. When reviewing the ruling of the
suppression court, we must consider only the evidence of the
prosecution and so much of the evidence of 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 legal conclusions drawn therefrom are in error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations
omitted).
“It is within the suppression court’s sole province as factfinder to pass
on the credibility of witnesses and the weight to be given to their testimony.
The suppression court is free to believe all, some or none of the evidence
presented at the suppression hearing.” Commonwealth v. Elmobdy, 823
A.2d 180, 183 (Pa. Super. 2003) (citation omitted).
Appellant first claims the police questioned him before he was given
Miranda warnings. When this Court assesses whether Miranda warnings
were necessary, we consider the totality of the circumstances. See
Commonwealth v. Gonzalez, 979 A.2d 879, 888 (Pa. Super. 2009).
“Interrogation occurs where the police should know that their words or actions
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are reasonably likely to elicit an incriminating response from the subject.” Id.(citation omitted). By contrast, a statement will not be suppressed where the
suspect spontaneously volunteers the information. See Commonwealth v.
Garvin, 50 A.3d 694, 698 (Pa. Super. 2012). “[G]eneral information such as
name, height, weight, residence, occupation, etc. is not the kind of information
which requires Miranda warnings[,] since it is not information generally
considered as part of an interrogation.” Id. (citation omitted).
Appellant’s characterization of the police questioning that occurred prior
to his Miranda warnings as an interrogation is fanciful. Though Appellant was
handcuffed and asked a few questions before being given his Miranda
warnings, the officers asked only general information questions. The record
reveals that when asked by police for his name, Appellant instead said, “[y]ou
know who I am.” N.T. Suppression, 1/9/17, at 89. Appellant then
spontaneously admitted he had been previously arrested on drug charges.
See id., at 89, 109. Appellant’s decision to volunteer this information in
response to a general question about his name was not the result of an
interrogation, and consequently does not require suppression. Appellant’s first
issue is without merit.
Appellant next insists he did not give knowing and voluntary consent to
search his vehicle, because he was unaware the police could search anywhere
in his car, including his trunk. Appellant contends he believed the police were
only searching for his cell phone, and the officers exceeded the scope of the
search by continuing to search his trunk after finding the phone. We disagree.
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“A search warrant is not required where a person with the proper
authority unequivocally and specifically consents to the search.”
Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa. Super. 2003)
(citations and internal quotation marks omitted). “To establish a valid
consensual search, the Commonwealth must first prove that the consent was
given during a legal police interaction.” Commonwealth v. Bell, 871 A.2d
267, 273 (Pa. Super. 2005). Appellant does not dispute that his interaction
with police was a lawful detention. Thus, our focus becomes voluntariness.
See id.“To establish a voluntary consensual search, the Commonwealth must
prove that a consent is the product of an essentially free and unconstrained
choice – not the result of duress or coercion, express or implied, or a will
overborne – under the totality of the circumstances.” Commonwealth v.
Randolph, 151 A.3d 170, 179 (Pa. Super. 2016) (citation and internal
quotation marks omitted). The Pennsylvania Supreme Court has found where
officers inform a suspect he has the right to withhold consent, they
substantially lessen the probability that their conduct could reasonably be
considered coercive. See Commonwealth v. Strickler, 757 A.2d 884, 901
(Pa. 2000). Even a suspect who has been detained and handcuffed may still
voluntarily consent to a search. See Commonwealth v. Rosas, 875 A.2d
341, 350 (Pa. Super. 2005). “[G]eneral consent to search a vehicle extends
to closed, but readily opened, containers discovered inside the car.”
Randolph, 151 A.3d at 185 (citation omitted).
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Detective Tobie, the officer who reviewed the consent to search form
with Appellant, testified he spoke to Appellant in a casual, nonthreatening
voice. See N.T., Suppression, 1/9/17, at 81. He asked Appellant if he had
anything illegal in his vehicle, which Appellant denied. See id. He then
reviewed the consent to search form with Appellant. See id. The form states
Appellant’s consent was free and voluntary; he understood his right to refuse
to give consent; and he could withdraw consent at any time. See Consent to
Search, dated 1/18/16.
To the extent Appellant contends he believed the police were only
searching for his cell phone, and should have halted the search after finding
it, Detective Tobie specifically informed Appellant the search was to ascertain
whether Appellant had anything illegal in his vehicle. Further, the consent to
search form separately lists Appellant’s cell phone and his vehicle. And the
heroin was discovered in an open backpack in Appellant’s trunk. Thus,
Appellant’s arguments regarding voluntariness and the scope of the search
are without merit.
Appellant’s final contention, that the search occurred before he gave
consent, is belied by the record. He points to a brief line in Officer Fox’s report
and testimony, that she was later advised Appellant had drugs and money in
his vehicle, as proof the officers immediately searched Appellant’s car before
obtaining consent. However, Officer Gansky testified he participated in the
search, and was surveilling the vehicle from the time Appellant arrived until
Appellant gave consent for the search. See N.T. Suppression, 1/9/17, at 33,
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41. Detective Tobie, who obtained Appellant’s consent for the search, also
confirmed the search did not occur until after Appellant signed the form. See
id., at 85.
While the suppression court acknowledged minor inconsistencies in
some of the officers’ testimony on “various post-arrest details such as precise
times,” the court found the officers’ testimony credible overall. Suppression
Court Findings of Fact/Conclusions of Law, 4/7/17, at 7. And, the court found
Appellant’s suggestion that the search occurred before he gave consent to be
wholly unsupported by the testimony offered at the hearing. See id., at 8. We
agree. Appellant’s final claim is also without merit. Accordingly, we affirm
Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/18
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