Com. v. Mosley, A.

J-S43014-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW MOSLEY :
:
Appellant : No. 406 WDA 2020
Appeal from the Judgment of Sentence Entered March 6, 2020
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000699-2018
BEFORE: SHOGAN, J., STABILE, J., and KING, J.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 30, 2020
Appellant, Andrew Mosley, appeals from the March 6, 2020 judgment of
sentence entered in the Court of Common Pleas of Fayette County following a
nonjury trial. We affirm.
The trial court, the Honorable Nancy D. Vernon, summarized the
procedural history as follows:
Appellant was found guilty of Receiving Stolen Property, 18
Pa.C.S.A. § 3925(a), Possession of Firearm Prohibited, 18
Pa.C.S.A. § 6105(a)(1), three counts of Possession with Intent to
Deliver, 35 [P.S.] § 780-113(a)(30), and four counts [of]
Possession, [35 P.S.] § 780-113(a)(16).
Appellant was sentenced to a term of incarceration of five
to ten years on Count 2—Possession of Firearm Prohibited and
three to six years on Count 3—Possession with Intent to Deliver[,]
and no further penalty was imposed for the remaining convictions.
Opinion in Support of Non-Jury Verdict, 4/6/20, at 1.
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The suppression court, the Honorable Steve P. Leskinen, summarized
the background of the case, as follows:
[Appellant] was on State Parole when Pennsylvania State
Parole Agents, namely Agent Derrick Eberhardt, Agent Timothy
Murphy, and Agent Rhonda Bogus, along with other members of
law enforcement, performed a Probation Check on [Appellant] at
his residence in Fayette County on February 8, 2018. Agent
Eberhardt testified that they needed numerous members of law
enforcement present because [Appellant] had a history of
attempting to run from them. Agent Murphy was at the back of
the residence and alerted Agent Eberhardt that he observed,
through a window, an individual present in the home. The door
to the interior of [Appellant’s] residence was not secure[,] and
when Agent Eberhardt knocked, it opened; Agent Eberhardt
entered the residence.
[Appellant] was on State Parole and his Conditions
Governing Parole, signed by [Appellant], was admitted into
evidence. One of the conditions was that [Appellant] expressly
consented to the search of his person, property, and residence
without a warrant by agents of the Pennsylvania Board of
Probation and Parole.
[Appellant] was the only individual present during this
event[,] and Agent Eberhardt observed [Appellant] continuing to
nervously look[] back and forth at a room and Agent Eberhardt
when he tried to make contact with [Appellant]. Pursuant to his
observations, Agent Eberhardt placed [Appellant] in custody and
performed a search on [Appellant’s] person; [Appellant] had five
(5) strips of Suboxone on his person[,] and he did not have a
prescription for Suboxone. Agents performed a safety sweep of
[Appellant’s] residence[,] and Agent Murphy found, in plain view,
a white substance in small baggies that [was] contained in a larger
bag, which appeared to be consistent with crack cocaine. Agent
Murphy called for Agent Eberhardt to observe the potential
contraband, Agent Eberhardt testified that he attempted to pass
off [Appellant] into another Agent’s custody then [Appellant], at
that time, tried to run away, but he was unsuccessful.
At this time, some of the law enforcement officers left the
residence to obtain a search warrant to conduct a search of the
residence. In the interim, [Appellant] made some inculpatory
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statements to members of law enforcement that remained at his
residence. The Agents testified that [Appellant] was never read
his Miranda[1] rights but they never asked [Appellant] any
questions or interrogated him in any way. The Agents testified
that [Appellant] was visibly disappointed in his actions and was
talking aloud to himself. [Appellant] made statements to the
effect that he was a bad drug dealer, he should not have
purchased a gun, and that he was trying to get money quick to
help his mother. When the law enforcement officers returned with
a search warrant, their subsequent search of the residence
uncovered a Springfield XD-45 semi–automatic firearm in
[Appellant’s] bedroom.
Suppression Court Opinion, 6/21/18, at unnumbered 1–2.
Appellant filed an omnibus pretrial motion on May 16, 2018. Judge
Leskinen held a suppression hearing on June 13, 2018, following which he
denied the suppression motion. Appellant pled guilty on February 5, 2019,
but filed a motion to withdraw the plea, which was granted on February 26,
2019. Appellant proceeded to trial before Judge Vernon on February 25, 2020,
and was convicted and sentenced as described supra. Appellant filed a timely
appeal; both Appellant and the trial court complied with Pa.R.A.P. 1925. The
trial court relied on the Opinion and Order filed June 21, 2018, by Judge
Leskinen for the disposition of the issue raised in Appellant’s Pa.R.A.P. 1925(b)
statement.
Appellant raises the following two issues on appeal:
Question 1: Whether the suppression court erred by not
suppressing evidence recovered from Appellant and Appellant’s
residence when authorities lacked reasonable suspicion to search
Appellant’s person and property?
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1 Miranda v. Arizona, 384 U.S 436 (1966).
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Question 2: Whether the suppression court erred by not
suppressing Appellant’s statement to authorities that he
possessed a controlled substance?
Appellant’s Brief at 7 (full capitalization omitted).2
The standard of review an appellate court applies when considering an
order denying a suppression motion is well established. “On review from an
order suppressing evidence, we ‘consider only the evidence from the
defendant’s witnesses together with the evidence of the prosecution that,
when read in the context of the entire record, remains uncontradicted.’”
Commonwealth v. Johnson, 202 A.3d 125, 127 (Pa. Super. 2019). “This
Court is bound by the factual findings of the suppression court where the
record supports those findings and may only reverse when the legal
conclusions drawn from those facts are in error.” Commonwealth v.
Haynes, 116 A.3d 640, 644 (Pa. Super. 2015). Because the Commonwealth
prevailed in the suppression court, we consider only the Commonwealth’s
evidence and the evidence presented by Appellant that remains
uncontradicted. Commonwealth v. Harlan, 208 A.3d 497, 499 (Pa. Super.
____________________________________________
2 The Commonwealth’s suggestion that Appellant’s claims are waived because
he did not file an appeal from the denial of his suppression motion is rejected
outright. Commonwealth’s Brief at 7. A defendant in a criminal case may not
appeal from an order of a suppression court even if it is postured as a cross-
appeal filed in conjunction with the Commonwealth’s appeal of a suppression
order. 26A Standard Pennsylvania Practice 2d § 132:595; Commonwealth
v. Fisher, 221 A.2d 115 (Pa. 1966); Commonwealth v. Parker, 173 A.3d
294 (Pa. Super. 2017).
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2019). Additionally, we may consider only the evidence presented at the
suppression hearing. In re L.J., 79 A.3d 1073, 1085–1087 (Pa. 2013).
Our Supreme Court has summarized state parole agents’ authority and
duties with respect to parolees as follows:
[S]tate parole agents’ authority and duties with respect to
parolees are prescribed by two sections of the Prisons and Parole
Code. Section 6152 declares agents to be peace officers and
provides them with police power to arrest without warrant any
parolee under supervision for violating parole conditions. See 61
Pa.C.S. § 6152. Section 6153 deems parole agents to be in a
“supervisory relationship with their offenders,” aimed at assisting
parolees in rehabilitation and reassimilation and protecting the
public. Id. § 6153(a). This section further outlines the procedures
and requirements for agents to search the person and property of
offenders, see id. § 6153(b)(1), (d), and provides that such
searches must comport with the protections of the United States
and Pennsylvania Constitutions, see id. § 6153(b)(2). Another
provision prevents the exclusion of evidence from parole or
criminal proceedings based solely on a violation of the statute.
See id. § 6153(c).
Commonwealth v. Mathis, 173 A.3d 699, 701–702 (Pa. 2017) (footnote
omitted).
We note that Appellant cites case law only for the standards that apply
to evaluation of his case; he does not cite to any cases that support his
argument. In his first issue, Appellant asserts that the “mere fact that he was
looking to the rear of the residence does not amount to reasonable suspicion
[to search] pursuant to 61 Pa.C.S. § 6153.” Appellant’s Brief at 14. Appellant
further contends that the Commonwealth failed to present evidence that Agent
Eberhardt “reasonably believed” Appellant was “armed and dangerous.” Id.
Finally, Appellant posits that “there was no reasonable suspicion articulated
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by the state parole agents to justify a search of Appellant’s residence.” Id. at
16.
The suppression court responded to these claims, and they are
supported by the record. The suppression court stated:
In this case, [Appellant’s] signed parole agreement was
entered into evidence and he consented to warrantless searches
of his person, property, and residence. Even with this signed
agreement, Agents still need to have reasonable suspicion to
conduct a search. When Agent Eberhardt entered the residence,
he intended to make contact with [Appellant], as he did, he
observed [Appellant] acting odd and nervously looking back and
forth between he and a room in [Appellant’s] residence. Based on
Agent Eberhardt’s observations, experience, [Appellant’s] history
of offenses, and his proclivity to run from law enforcement, Agent
Eberhardt had reasonable suspicion that [Appellant] was in
possession of contraband and was justified to detain [Appellant],
search his person and the residence.
When Agent Murphy entered the room [Appellant] was
nervous, . . . he found, in plain view, a white substance in multiple
baggies contained in a larger bag; the substance was observed to
be consistent with crack cocaine. After these observations, the
law enforcement officers applied for a warrant to search the
residence, a valid warrant was obtained and the ensuing search
uncovered a Springfield XD-45 semiautomatic firearm in
[Appellant’s] bedroom. [Appellant] was a person who was not
supposed to possess a firearm.
Suppression Court Opinion, 6/21/18, at unnumbered 4.
Contrary to Appellant’s suggestion, and as supported by the suppression
court and the record, Agent Eberhardt’s reasonable suspicion was not based
solely on Appellant’s furtive movements. Our review of the record
substantiates that Appellant “kept looking like he wanted to go back to the
rear of the residence. He kept like starting to step that direction.” N.T.,
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6/13/18, at 12. Agent Eberhardt testified that when Agent Murphy asked him
to come to the back bedroom, he “handed [Appellant] off to Agent Bogus . . .
and [Appellant] immediately pulled away from the agents and from the other
officers and ran through the front door of the residence and onto [the] porch,”
where he was detained by a constable. Id. at 13. Agent Eberhardt testified
that Agents Bogus and Murphy accompanied him as well as German Township
Police Officer Toski, Masontown Police Officer O’Barto, and Pennsylvania State
Constable Smith3 were all present “due to our knowledge of [Appellant’s]
history and both his criminal history [and] parole history.” Id. at 8. Due to
the agents’ experience dealing with Appellant in the past, as amplified by his
movements on the day in question, the trial court correctly concluded that the
facts established reasonable suspicion to search. “In conducting a reasonable
suspicion inquiry, a suppression court is required to ‘afford due weight to the
specific, reasonable inferences drawn from the facts in light of the officer’s
experience.’” Commonwealth v. Carter, 105 A.3d 765, 773 (Pa. Super.
2014) (quoting Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010)).
“Among the circumstances that can give rise to reasonable suspicion are the
officer’s knowledge of the methods used in recent criminal activity and the
characteristics of persons engaged in such illegal practices.” Carter, 105 A.3d
at 773.
____________________________________________
3 The first names of these officers were not provided at the suppression
hearing.
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The record supports the conclusion that the agents were lawfully
positioned within Appellant’s residence for a parole check. Based on their
observations, prior experience with Appellant, and given the totality of the
circumstances, Appellant was lawfully detained and searched.
In his second issue, Appellant maintains that statements he made to the
agents should have been suppressed because he was not given Miranda
warnings. Appellant’s Brief at 16. He submits that there is no question that
he was in custody, and the only reason that he was detained at the residence
by the agents during the search was to “illicit [sic] an incriminating response
based on their findings.” Id. at 17. Once again, Appellant fails to support his
claim with relevant case law. Id. at 16–17.
The suppression court addressed this issue as follows:
Miranda warnings are required when the accused is subject
to custodial interrogation. Commonwealth v. Thompson, 778 A.2d
1215, 1221 (Pa. Super. 2001). A person is in custody for the
purposes of Miranda where he “is physically denied his freedom of
action in any significant way or is placed in a situation in which he
reasonably believes that his freedom of action or movement is
restricted by the interrogation.” Id. Interrogation occurs where
the officer knows that their words or actions are reasonably likely
to provoke an incriminating response from the suspect. Id. The
“special procedural safeguards outlined in Miranda are required
not where a suspect is simply taken into custody, but rather where
a suspect in custody is subjected to interrogation.”
Commonwealth v. Bland, 115 A.3d 854, 857 (Pa. 2015).
Opinion and Order, 6/21/18, at unnumbered 4–5.
Our review of the record confirms that there is no disagreement that
Appellant was in custody during the search. Commonwealth’s Brief at 9.
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However, merely being “in custody” for Miranda purposes is not equivalent
to custodial interrogation. “Miranda warnings are necessary only when the
suspect is subjected to custodial interrogation.” Commonwealth v. Fisher,
769 A.2d 1116, 1125 (Pa. 2001). “Interrogation occurs when the police
should know that their words or actions are reasonably likely to elicit an
incriminating response, and the circumstances must reflect a measure of
compulsion above and beyond that inherent in custody itself.” Id. (citation
omitted).
As observed by the suppression court:
In the current case, [Appellant] was in police custody, however,
the Agents testified that they never asked [Appellant] any
questions or made any comments to him other than their attempts
to console him because he was visibly upset over the situation.
Further testimony provided that [Appellant] was talking to
himself, in a manner that was loud enough for the law
enforcement officers to hear, and made inculpatory statements on
his own volition.
Opinion and Order, 6/21/18, at unnumbered 5.
Agent Eberhardt testified that Appellant:
was very emotional. He was physically upset with himself. He
was crying off and on about the situation. He said he was
disappointed with himself, his mother would be upset. The entire
time that we were there, he continually just made statements
about how stupid the decision was that he made to sell drugs. The
decision that he had made to purchase the gun, I think he said for
25 or $50.00.
N.T., 6/13/18, at 17. The suppression court interjected with, “Just to be clear,
was someone asking him about these things?” Id. Agent Eberhardt replied,
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“[W]e in no way questioned him about what he was doing or, you know,
anything. He just kept continually talking.” Id.
Agent Bogus concurred that Appellant “was very distraught.” N.T.,
6/13/18, at 25. She described the same statements that Appellant
spontaneously uttered, and explained that Appellant was “talking to himself,
just being mad at himself.” Id. Agent Murphy testified similarly that he did
not question Appellant and he spontaneously described having a weapon and
drugs. Id. at 30.
The record reflects that Appellant initiated the conversation with the
agents. His admissions were voluntary and not responsive to any query by the
agents. See Commonwealth v. Gibson, 720 A.2d 473, 480 (Pa. 1998) (The
defendant’s “statements to the police . . . were made voluntarily and were not
responsive to any queries by the officers; rather, [the defendant] initiated the
conversation.”). Appellant’s comments were mere gratuitous utterances,
unsolicited by the agents, and therefore were admissible and did not require
Miranda warnings. See also Commonwealth v. Fisher, 769 A.2d 1116,
1125 (Pa. 2001) (“Interrogation occurs when the police should know that their
words or actions are reasonably likely to elicit an incriminating response, and
the circumstances must reflect a measure of compulsion above and beyond
that inherent in custody itself.”) (citation omitted). Similar to Fisher, although
Appellant was in custody, the agents neither questioned Appellant nor initiated
conversation. Fisher, 769 A.2d at 1125. As our Supreme Court stated,
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“Appellant’s remarks, being unsolicited, not the result of custodial
interrogation, constituted spontaneous, voluntary statements not subject to
suppression.” Id.
Thus, as found by the suppression court, although Appellant was not read
his Miranda rights, “he was never subjected to a custodial interrogation and
thus Miranda was not required. Therefore, [Appellant’s] statements were not
given in violation of Miranda.” Opinion and Order, 6/21/18, at unnumbered
5.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2020
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