Com. v. McDonough, T.

J-A18003-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TONY MCDONOUGH :
:
Appellant : No. 768 WDA 2019
Appeal from the Judgment of Sentence Entered March 19, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004495-2017
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 21, 2020
Appellant, Tony McDonough, appeals nunc pro tunc from the judgment
of sentence of 5 to 10 years’ incarceration, followed by 5 years’ probation,
imposed after a jury convicted him of possession of a firearm by a person
prohibited, 18 Pa.C.S. § 6105(a)(1); carrying a firearm without a license, 18
Pa.C.S. § 6106(a)(1); possessing a controlled substance, 35 P.S. § 780-
113(a)(16); and possessing drug paraphernalia, 35 P.S. § 780-113(a)(32).
Appellant solely challenges the court’s denial of his pretrial motion to suppress
the firearm recovered during a warrantless search of his vehicle. We affirm.
The trial court summarized the pertinent facts and procedural history of
this case, as follows:
[Appellant] was arrested and charged as set forth above
after he was found in possession of a firearm and drugs by officers
conducting a routine patrol who approached an illegally parked
vehicle from which a passenger fled as they approached it.
[Appellant], who was in the driver’s seat, made movements within
J-A18003-20
the vehicle as they approached[,] which [led] the officers to have
reasonable suspicion that he had possession of a firearm or
contraband. The officers ordered [Appellant] from the vehicle and
they then observed drugs in plain view. After [Appellant] was
placed in custody[,] he was asked if there was anything else in
the car[,] and [Appellant] informed the officers that there was a
gun under the front seat. [Appellant] filed a [m]otion [t]o
[s]uppress[,] alleging that there was neither reasonable suspicion
or probable cause to order him from the vehicle and that he was
not given any Miranda[1] warnings before being questioned by
the officers.
At the suppression hearing on October 3, 2017[,] the
Commonwealth called [City of Pittsburgh Police] Officer Jenny
Monteleone[,] who testified that on February 8, 2017[,] she and
her partner, Officer Messer, were on direct patrol in the Marshall-
Shadeland area of … Pittsburgh. She testified that direct patrol is
a patrol being done as a result of recent complaints of ongoing
issues with narcotics and firearms in the area. At that time[,] they
were patrolling in an unmarked vehicle in plain clothes. Officer
Monteleone testified that although the vehicle is unmarked[,] it is
used on a daily basis for patrol in that area and that individuals in
the neighborhood are familiar with the vehicle. Officer Monteleone
testified they were traveling on Fleming Avenue when they
observed a vehicle to their left with two males in the vehicle[,]
which was parked facing the wrong direction on Fleming Avenue.
[Appellant] was sitting in the driver’s seat and another individual
was in the passenger seat as they drove by. As they passed the
vehicle[,] the passenger appeared to recognize them as police and
immediately exited and ran from the vehicle.[2] As the officers
stopped and turned their vehicle to approach the parked vehicle[,]
____________________________________________
1 Miranda v. Arizona, 384 U.S. 436 (1966).
2 We note that defense counsel objected to Officer Monteleone’s testimony
that the passenger appeared to recognize the officers. N.T. Hearing, 10/3/17,
at 6. In response, the court did not explicitly sustain that objection, but
impliedly did so by directing the officer to only testify about what she
observed. Id. at 7. Nonetheless, the record supports the court’s factual
determination that Appellant’s passenger appeared to recognize the car as a
police vehicle, as Officer Monteleone testified that the unmarked police car
she was driving that day is used regularly in patrolling that area, and the
passenger fled upon seeing the car. We also note that Appellant does not
raise any challenge to this factual finding by the court on appeal.
-2-
J-A18003-20
Officer Monteleone was able to observe [Appellant] making
“shoving motions underneath his seat.” Officer Messer pursed the
passenger and Officer Monteleone approached [Appellant,] who
was still seated in the vehicle. Although she could not see
[Appellant]’s hands[,] she believed, based on her training and
experience and the shoving motions that she had observed[,] that
he may be armed. Officer Monteleone therefore drew her weapon
and, while identifying herself as police and displaying her badge,
ordered him to keep his hands on the steering wheel. She testified
that [Appellant] kept his hands on the wheel and did not make
any further movements until back up arrived and he was removed
from the vehicle. When [Appellant] exited the vehicle[,] she
observed a bundle of what appeared to be heroin in plain view on
the driver’s seat where [Appellant] had been sitting. [Appellant]
was detained and patted down for weapons[,] at which time he
informed the officers that he had a needle in his pocket. As
[Appellant] was moved back towards the vehicle[,] Officer Messer
asked [Appellant] if there was anything else in the vehicle and
[Appellant] stated there was a gun under his seat[,] which was
retrieved. On cross[-]examination[,] Officer Monteleone
acknowledged that until the passenger fled the vehicle[,] they had
not observed any criminal activity other than the illegally parked
vehicle. However, she reiterated that[,] based on her training and
experience[,] she believed that [Appellant’s] shoving motions
were either an attempt to conceal drugs[,] or [that] he may
[have] be[en] reaching for a weapon. After consideration of the
testimony, the [m]otion to [s]uppress was denied.
Trial Court Opinion (TCO), 12/11/19, at 2-4.
Appellant proceeded to a jury trial and was ultimately convicted of the
above-stated offenses. On March 19, 2019, he was sentenced to the
aggregate term set forth above. He did not file a timely appeal, but his right
to appeal was subsequently reinstated after he filed a petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant then filed
the present appeal, and he complied with the trial court’s order to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Herein, he states one issue for our review:
-3-
J-A18003-20
I. Did the trial court err in denying the motion to suppress the gun
found under the driver’s seat of the vehicle in which … Appellant
was seated[,] where the stop in the instant matter rose to the
level of a custodial detention; the police lacked probable cause to
conduct a warrantless search of the vehicle prior to interrogating
… Appellant without advising him of his Miranda rights; and the
Commonwealth did not prove that the gun would have been
inevitably discovered?
Appellant’s Brief at 4 (unnecessary capitalization and emphasis omitted).
Preliminarily, we note our well-settled standard of review:
An appellate court’s 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. Where ... the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa. Super. 2015) (citation
and brackets omitted).
In this case, Appellant contends that the gun found in his vehicle should
have been suppressed, as it was discovered pursuant to a warrantless search
that was not supported by probable cause. In support, he argues that he was
under arrest and subjected to a custodial interrogation when Officer Messer
asked him if there was anything in his vehicle. Because Appellant was not
-4-
J-A18003-20
provided with Miranda warnings, he insists that his incriminating response to
the officer’s question, in which he admitted that there was a gun under the
driver’s seat, was made in violation of his constitutional rights. Without his
admission regarding the gun, Appellant maintains that the officers lacked
probable cause to conduct the warrantless search of his vehicle. Appellant
also argues that the gun would not have been inevitably discovered by lawful
means, as the Commonwealth failed “to prove that the City of Pittsburgh had
a uniformly-applied, reasonable policy regarding the towing of vehicles and
inventory searches to insure that they are not applied in a discriminatory or
arbitrary way.” Appellant’s Brief at 16-17. Accordingly, he concludes that the
gun was discovered illegally, and the court should have suppressed that
evidence.
Notably, the trial court determined that Appellant was under arrest at
the time he made the at-issue admission about the gun being in his vehicle
and, therefore, Miranda warnings should have been provided. See TCO at
4. We agree.
In Miranda, the United States Supreme Court held that a
confession given during custodial interrogation is presumptively
involuntary, unless the accused is first advised of his right against
self-incrimination. Miranda warnings are not required where the
interrogation is not custodial. A person is in custody for the
purposes of a custodial interrogation when he is physically
deprived of his freedom 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. Police
detentions become custodial when under the totality of the
circumstances the conditions and/or duration of the detention
-5-
J-A18003-20
become so coercive as to become the functional equivalent of
arrest.
Among the factors the court utilizes in determining, under
the totality of the circumstances, whether the detention
became so coercive as to constitute the functional
equivalent of arrest are: the basis for the detention; the
location; whether the suspect was transported against his
will; how far, and why; whether restraints were used; the
show, threat or use of force; and the methods of
investigation used to confirm or dispel suspicions.
Commonwealth v. DiStefano, 782 A.2d 574, 579–80 (Pa. Super. 2001)
(cleaned up).
In the case sub judice, it is clear that Appellant was in custody when he
told Officer Messer that there was a gun in his vehicle. At that point, Appellant
had been held at gunpoint, removed from his vehicle, detained, and patted
down. Therefore, Appellant was physically restrained to the extent that his
freedom was unquestionably restricted at the point when Officer Messer
questioned him about the contents of his vehicle. As such, we concur with the
trial court that Miranda warnings should have been provided.
Nevertheless, the search of Appellant’s vehicle was lawful. First, as the
Commonwealth observes, “the fruit of the poisonous tree doctrine does not
extend to physical evidence recovered due to Miranda violations.”
Commonwealth’s Brief at 7 (quoting Commonwealth v. Jones, 193 A.3d
957, 965 (Pa. Super. 2018)). Thus, while Appellant’s statement about the
gun was suppressible based on the Miranda violation, the gun recovered from
his vehicle was not suppressible solely because of that police error.
-6-
J-A18003-20
Moreover, we disagree with Appellant that, without his incriminating
statement, the police lacked probable cause to conduct the warrantless search
of his car. This Court has explained:
[P]olice may search an automobile without a warrant so long as
they have probable cause to do so, as an automobile search “does
not require any exigency beyond the inherent mobility of a motor
vehicle.” Commonwealth v. Gary, … 91 A.3d 102, 104 ([Pa.]
2014). Our Supreme Court has concluded that Article I, Section
8 of the Pennsylvania Constitution is co-extensive with the Fourth
Amendment to the United States Constitution, which has long
supported a warrant exception for automobile searches so long as
probable cause to search exists. See id. at 108–13.
With respect to probable cause to search, our Supreme Court
instructs us that:
[P]robable cause exists where the facts and circumstances
within the officers’ knowledge are sufficient to warrant a
person of reasonable caution in the belief that an offense
has been or is being committed. With respect to probable
cause, this [C]ourt adopted a “totality of the circumstances”
analysis in Commonwealth v. Gray, … 503 A.2d 921, 926
([Pa.] 1985) (relying on Illinois v. Gates, 462 U.S. 213 …
(1983)). The totality of the circumstances test dictates that
we consider all relevant facts, when deciding whether [the
officer had] probable cause.
Commonwealth v. Harris, 176 A.3d 1009, 1022–23 (Pa. Super. 2017)
(quoting Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999) (some citations
and quotation marks omitted)).
In the present case, Officer Monteleone testified that Appellant’s vehicle
was parked illegally in an area where there had been recent complaints about
narcotics and firearms. See N.T. Hearing at 3, 6. As the officers approached
the car, the passenger in the vehicle ran, and Appellant was seen making
“shoving motions underneath his seat.” Id. at 7, 8. After Appellant was
-7-
J-A18003-20
removed from the vehicle, Officer Monteleone observed what appeared to be
a bundle of heroin in plain view in the car. Id. at 9. The trial court found this
testimony credible. See TCO at 5. Based thereon, we discern no legal error
in the court’s conclusion that Officer Monteleone had probable cause to believe
that a crime was occurring. Therefore, the search of Appellant’s vehicle was
lawful, even without considering his illegally-obtained admission that a gun
was in the car. Accordingly, the trial court did not err in denying Appellant’s
motion to suppress.3
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2020
____________________________________________
3Given this disposition, we need not address whether the gun would have
been inevitably discovered by other lawful means.
-8-