Com. v. Brown, N.

J. S71002/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

NATHAN EDWARD BROWN, : No. 885 WDA 2014

:

Appellant :

Appeal from the Judgment of Sentence, December 16, 2013,

in the Court of Common Pleas of Allegheny County

Criminal Division at No. CP-02-CR-0000658-2013

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 19, 2016

Nathan Edward Brown appeals from the judgment of sentence of

December 16, 2013, following his conviction of drug charges. We affirm the

convictions, but vacate and remand for re-sentencing.

On December 12, 2012, the Pennsylvania

Bureau of Probation and Parole declared [appellant]

delinquent in his parole and placed him on absconder

status. On January 8, 2013, a state parole agent

and local police went to [appellant]’s registered

residence because of his parole status and an active

warrant for his arrest.[1] Once at the home,

[appellant]’s sister allowed law enforcement inside.

The sister said [appellant] was in his bedroom and

the agent and the police went to the room. Upon

entering the room, [appellant] was placed in

handcuffs for officer safety. [Appellant] said a gun

1

The arrest warrant was based on an allegation that in the early morning

hours of December 23, 2012, appellant robbed Ashley Munda (“Munda”) and

Sandra Leski (“Leski”) at gunpoint.

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was in a book bag under the bed.[2] The police

found the bag and inside it a .38 caliber revolver

along with 27 stamp bags of heroin.

Trial court opinion, 2/23/15 at 1.

On October 7, 2013, following a jury trial, appellant was found guilty

of one count each of possession of a controlled substance (heroin) and

possession with intent to deliver (“PWID”). Appellant was found not guilty of

two counts of robbery and one count of burglary. An additional charge of

possession of firearms prohibited was severed prior to trial.3 On

December 16, 2013, appellant was sentenced to 2½ to 5 years for PWID;

possession merged for sentencing purposes. Appellant filed a timely

post-sentence motion which was denied by operation of law on April 29,

2014. A timely notice of appeal was filed on May 29, 2014. Appellant

complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has

filed a Rule 1925(a) opinion.4

Appellant has raised the following issues for this court’s review:

2

Appellant’s statement was made in response to questioning by his parole

agent.

3

Appellant was found guilty of the firearms charge and was sentenced on

September 3, 2014, to serve 4 to 8 years’ incarceration, concurrent with his

sentence on this case. Appellant filed an appeal on February 13, 2015, at

docket number 277 WDA 2015. That case has not yet been assigned to a

panel for disposition, as this court is still awaiting the original record.

4

Appellant received several extensions of time within which to file his

concise statement. (Docket #32, 34.)

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I. Whether appellant’s sentence of two and

one-half (2½) to five (5) years for one (1)

count of [PWID] was excessive[?]

II. Whether the evidence in this matter was

legally insufficient to sustain appellant’s

convictions of [PWID] and possession of a

controlled substance[?]

III. Whether the trial court erred in denying

appellant’s motion to suppress the evidence[?]

IV. Whether the trial court erred in denying

appellant’s post-sentence motions without a

hearing[?]

Appellant’s brief at 8 (capitalization omitted).

We will address these issues seriatim. In his first issue on appeal,

appellant argues that the trial court failed to state adequate reasons on the

record for imposition of an aggravated range sentence.

A challenge to the discretionary aspects

of a sentence must be considered a

petition for permission to appeal, as the

right to pursue such a claim is not

absolute. When challenging the

discretionary aspects of the sentence

imposed, an appellant must present a

substantial question as to the

inappropriateness of the sentence. Two

requirements must be met before we will

review this challenge on its merits. First,

an appellant must set forth in his brief a

concise statement of the reasons relied

upon for allowance of appeal with respect

to the discretionary aspects of a

sentence. Second, the appellant must

show that there is a substantial question

that the sentence imposed is not

appropriate under the Sentencing Code.

That is, [that] the sentence violates

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either a specific provision of the

sentencing scheme set forth in the

Sentencing Code or a particular

fundamental norm underlying the

sentencing process. We examine an

appellant’s Pa.R.A.P. 2119(f) statement

to determine whether a substantial

question exists. Our inquiry must focus

on the reasons for which the appeal is

sought, in contrast to the facts

underlying the appeal, which are

necessary only to decide the appeal on

the merits. Commonwealth v. Ahmad,

961 A.2d 884, 886-87 (Pa.Super.2008)

(citations, quotation marks and footnote

omitted).

Commonwealth v. Brooks, 2013 WL 66474, at *3

(Pa.Super. Jan. 7, 2013) (italics in original).

Commonwealth v. Hill, 66 A.3d 359, 363-364 (Pa.Super. 2013). In

addition, in Commonwealth v. Mouzon, 812 A.2d 617, 627-628 (Pa.

2002) (plurality), our Supreme Court stated that a claim a sentence which is

within the statutory limits is excessive can raise a substantial question.

We determine that appellant has substantially complied with

Rule 2119(f). The Commonwealth claims that appellant did not include the

requisite Rule 2119(f) statement in his brief, and therefore, his discretionary

aspects of sentencing claim is waived. (Commonwealth’s brief at 7.) See

Commonwealth v. Davis, 734 A.2d 879, 882 n.4 (Pa.Super. 1999) (where

the Commonwealth has specifically objected to its omission, the defect is

fatal and this court is precluded from addressing the merits of appellant’s

challenge). While it is true that appellant’s Rule 2119(f) statement is not

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designated by a separate heading, he does include such a statement

immediately before the argument portion of his brief. (Appellant’s brief at

16-18.) Therein, appellant claims that his sentence fell within the

aggravated range of the guidelines and the trial court failed to state reasons

on the record justifying an upward deviation from the guidelines. (Id.)

Such an allegation raises a substantial question for this court’s review.

Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)

(“Where the appellant asserts that the trial court failed to state sufficiently

its reasons for imposing sentence outside the sentencing guidelines, we will

conclude that the appellant has stated a substantial question for our review.”

(citation omitted)).

The matter of sentencing is vested within the sound

discretion of the trial court; we only reverse the

court’s determination upon an abuse of discretion.

To demonstrate that the trial court has abused its

discretion, the appellant must establish, by reference

to the record, that the sentencing court ignored or

misapplied the law, exercised its judgment for

reasons of partiality, prejudice, bias or ill will, or

arrived at a manifestly unreasonable decision.

Moreover, 42 Pa.C.S.A. § 9721(b) provides that the

trial court must disclose, on the record, its reasons

for imposing the sentence.

Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.Super. 2004)

(citations and internal quotation marks omitted).

The sentencing court is permitted to deviate

from the sentencing guidelines; however, the court

must place on the record its reasons for the

deviation. In sentencing outside of the guidelines,

the court must demonstrate that it understands the

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sentencing guidelines ranges. Where the trial judge

deviates from the sentencing guidelines . . . he must

set forth on the record, at sentencing, in the

defendant’s presence, the permissible range of

sentences under the guidelines and, at least in

summary form, the factual basis and specific reasons

which compelled the court to deviate from the

sentencing range.

Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa.Super. 2009)

(quotation marks and citations omitted). See also 204 Pa.Code § 303.13(c)

(“When the court imposes an aggravated or mitigated sentence, it shall state

the reasons on the record and on the Guideline Sentence Form . . .”);

Commonwealth v. Johnson, 541 A.2d 332, 340-341 (Pa.Super. 1988),

appeal denied, 552 A.2d 250 (Pa. 1988) (“when the court sentences

outside the Guidelines, there must be a contemporaneous written statement

of the reasons for the deviation from the Guidelines”), citing

Commonwealth v. Royer, 476 A.2d 453, 458 (Pa.Super. 1984). “The

failure to provide such a statement of reasons for the sentence imposed is

reversible error requiring resentencing.” Johnson, 541 A.2d at 340

(citations omitted).

With a prior record score of 4 and offense gravity score of 7, the

guidelines for PWID were 18 to 24 months, plus or minus 6. Therefore,

appellant’s sentence of 2½ to 5 years was at the top end of the aggravated

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range.5 At sentencing, there was no discussion whatsoever of the guideline

ranges in this case. The trial court merely recited appellant’s criminal

history, as follows:

Okay. I’m going to -- I want to put on the record,

since there was a presentence report here, it just

shows a criminal history as: At age 17, the

Defendant, on May 20th, 2002, he was adjudicated

delinquent. This was a receiving stolen property and

a possession of a firearm by a minor. On

February 27th, 2004, the Defendant was -- pled

guilty in Washington County and was sentenced to

eleven and a half to twenty-three months for a

criminal conspiracy to commit robbery, a first-degree

felony. And then on July 20th, 2004, guilty plea in

front of Judge Zottola of Allegheny County, in which

the charges were first-degree felony robbery,

criminal conspiracy, robbery, and receiving stolen

property, and the sentence was five to ten years,

credit back to February 16th, ‘04, and to run

concurrent with any other sentence. And in this one,

it talks about the Defendant had a gun, produced a

gun and pointed it at the victim. Then his most

recent case comes up. So I just wanted to put that

on the record. That -- if you have no comments,

that’s fine.

Notes of testimony, 12/16/13 at 4-5. The trial court then imposed an

aggravated range sentence of 2½ to 5 years’ incarceration without

elaboration or discussion of the applicable guideline ranges, nor do any

reasons appear on the guideline sentence form. (Docket #19.)

5

The Commonwealth requested a 5-10 year mandatory minimum sentence

pursuant to 42 Pa.C.S.A. § 9712.1 (drug offenses committed with firearms).

The trial court declined to impose the mandatory minimum sentence. (Notes

of testimony, 12/16/13 at 8.) We note that Section 9712.1 has been held to

be unconstitutional in its entirety. Commonwealth v. Valentine, 101 A.3d

801 (Pa.Super. 2014), appeal denied, 124 A.3d 309 (Pa. 2015).

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Regarding appellant’s prior criminal record, that is already accounted

for in the sentencing guidelines. “We have observed, ‘factors that are

already used in Guidelines computations, including, inter alia, prior

convictions, may not be used to justify an aggravated sentence.’”

Commonwealth v. Whitmore, 860 A.2d 1032, 1037-1038 (Pa.Super.

2004), reversed in part on other grounds, 912 A.2d 827 (Pa. 2006),

quoting Commonwealth v. Johnson, 758 A.2d 1214, 1219 (Pa.Super.

2000). “Pursuant to Johnson, a prior conviction which is already factored

into a defendant’s prior record score can not [sic] be used to impose an

aggravated minimum sentence under the sentencing guidelines.” Id. at

1038. The record indicates that appellant had a prior record score of four

and his prior convictions were already included in his prior record score. The

trial court cannot double-count appellant’s prior convictions in imposing an

aggravated sentence. Id.6 Therefore, it is necessary to vacate the

judgment of sentence and remand for re-sentencing.

In his second issue on appeal, appellant challenges the sufficiency of

the evidence to support his convictions of possession of a controlled

substance and PWID. Appellant argues that the Commonwealth failed to

6

Even if appellant’s prior juvenile adjudications were not included in his

prior record score, there is no indication the trial court was relying upon

those in imposing an aggravated sentence. The trial court merely recited

appellant’s criminal history as set forth in the PSI report. More importantly,

the trial court did not address the applicable guideline ranges.

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prove constructive possession, where appellant was not in actual physical

control of the heroin found under his bed.

As a general matter, our standard of

review of sufficiency claims requires that

we evaluate the record “in the light most

favorable to the verdict winner giving the

prosecution the benefit of all reasonable

inferences to be drawn from the

evidence.” Commonwealth v.

Widmer, 560 Pa. 308, 744 A.2d 745,

751 (2000). “Evidence will be deemed

sufficient to support the verdict when it

establishes each material element of the

crime charged and the commission

thereof by the accused, beyond a

reasonable doubt.” Commonwealth v.

Brewer, 876 A.2d 1029, 1032

(Pa.Super.2005). Nevertheless, “the

Commonwealth need not establish guilt

to a mathematical certainty.” Id.; see

also [Aguado, 760 A.2d at 1185]

(“[T]he facts and circumstances

established by the Commonwealth need

not be absolutely incompatible with the

defendant’s innocence.”). “[W]here no

single bit of evidence will by itself

conclusively establish guilt, the verdict

will be sustained where the totality of the

evidence supports the finding of guilt.”

Commonwealth v. Thomas, 522 Pa.

256, 561 A.2d 699, 704 (1989).

Commonwealth v. Kinard, 95 A.3d 279, 291-292 (Pa.Super. 2014)

(en banc).

As appellant was not in physical possession of

the contraband, the Commonwealth was required to

establish that he had constructive possession of the

seized items to support his convictions.

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Constructive possession is a legal fiction,

a pragmatic construct to deal with the

realities of criminal law enforcement.

Constructive possession is an inference

arising from a set of facts that

possession of the contraband was more

likely than not. We have defined

constructive possession as conscious

dominion. We subsequently defined

conscious dominion as the power to

control the contraband and the intent to

exercise that control. To aid application,

we have held that constructive

possession may be established by the

totality of the circumstances.

Commonwealth v. Brown, 48 A.3d 426, 430

(Pa.Super.2012), appeal denied, 619 Pa. 697, 63

A.3d 1243 (2013) (internal quotation marks and

citation omitted).

Id. at 292.

Instantly, the heroin was found inside a purple backpack underneath

appellant’s bed. (Notes of testimony, 10/4/13 at 64-65.) Appellant

admitted to police that the heroin was his and that he sold it on an

as-needed basis when he was short of money. (Id. at 74-75.) Appellant

stated that he obtained the heroin from a friend, but declined to identify

him. (Id. at 75.) Appellant recently lost his job and told police that when

he needed a few dollars, he would sell the heroin. (Id.) Appellant admitted

to selling ten stamp bags of heroin over the last two months. (Id. at 87.)

Clearly, the evidence was sufficient to support a conclusion that appellant

constructively possessed the drugs. Appellant argues that his statement

was not recorded and he was not given the opportunity to review it for

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accuracy. (Appellant’s brief at 24.) However, on sufficiency review, “the

entire record must be evaluated and all evidence actually received must be

considered.” Commonwealth v. Valette, 613 A.2d 548, 549 (Pa. 1992).

There is no merit to appellant’s sufficiency argument.

Next, appellant argues that the trial court erred in refusing to suppress

physical evidence as well as appellant’s inculpatory statements to police.

Regarding appellant’s initial statement to his parole officer that there was

contraband under the bed, appellant argues that he was in police custody at

that time and had not been properly Mirandized. Appellant also argues

that his subsequent statement to police admitting possession of the gun and

heroin was fruit of the poisonous tree and should likewise be suppressed.

Regarding the evidence found in the book bag underneath his bed, appellant

argues that the warrantless search was invalid because he was already

handcuffed and in police custody and did not pose a threat. In addition,

appellant claims that his parole officer was acting as a “stalking horse” for

the police. According to appellant, the technical parole violations were

merely a pretext to conduct a warrantless search in furtherance of the

robbery investigation.

Our standard of review of a denial of suppression is

whether the record supports the trial court’s factual

findings and whether the legal conclusions drawn

therefrom are free from error. Our scope of review

is limited; 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

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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.

Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa.Super. 2002)

(en banc) (citations and quotation marks omitted).

61 Pa.C.S.A. § 6153 provides, in relevant part, the

following:

(b) Searches and seizures authorized.--

(1) Agents may search the person and

property of offenders in accordance

with the provisions of this section.

(2) Nothing in this section shall be

construed to permit searches or

seizures in violation of the

Constitution of the United States or

Section 8 of Article I of the

Constitution of Pennsylvania.

....

(d) Grounds for personal search of offender.--

(1) A personal search of an offender may be

conducted by an agent;

(i) if there is a reasonable

suspicion to believe that the

offender possesses

contraband or other evidence

of violations of the conditions

of supervision;

(ii) when an offender is

transported or taken into

custody; or

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(iii) upon an offender entering or

leaving the securing

enclosure of a correctional

institution, jail or detention

facility.

(2) A property search may be conducted by

an agent if there is reasonable suspicion

to believe that the real or other property

in the possession of or under the control

of the offender contains contraband or

other evidence of violations of the

conditions of supervision.

....

(6) The existence of reasonable suspicion to

search shall be determined in accordance

with constitutional search and seizure

provisions as applied by judicial decision.

In accordance with such case law, the

following factors, where applicable, may

be taken into account:

(i) The observation of agents.

(ii) Information provided by

others.

(iii) The activities of the offender.

(iv) Information provided by the

offender.

(v) The experience of agents

with the offender.

(vi) The experience of agents in

similar circumstances.

(vii) The prior criminal and

supervisory history of the

offender.

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(viii) The need to verify

compliance with the

conditions of supervision.

....

61 Pa.C.S.A. § 6153(b), (d). 7

It is well established that a parolee has limited Fourth Amendment

rights and a diminished expectation of privacy in exchange for his early

release from prison. Commonwealth v. Curry, 900 A.2d 390, 394

(Pa.Super. 2006) (citations omitted).

As this Court has stated:

Because the very assumption of

the institution of parole is that the

parolee is more likely than the ordinary

citizen to violate the law, the agents

need not have probable cause to search

a parolee or his property; instead,

reasonable suspicion is sufficient to

authorize a search. Essentially, parolees

agree to endure warrantless searches

based only on reasonable suspicion in

exchange for their early release from

prison.

The search of a parolee is only

reasonable, even where the parolee has

signed a waiver . . . , where the totality

of the circumstances demonstrate that

(1) the parole officer had reasonable

suspicion to believe that the parolee

committed a parole violation; and (2) the

search was reasonably related to the

duty of the parole officer.

7

Formerly numbered 61 P.S. § 331.27a.

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Commonwealth v. Hunter, 963 A.2d 545, 551-52

(Pa.Super.2008) (quotations and quotation marks

omitted). The determination of whether reasonable

suspicion exists is to be considered in light of the

totality of the circumstances. See Commonwealth

v. Shabazz, 18 A.3d 1217 (Pa.Super.2011).

Commonwealth v. Colon, 31 A.3d 309, 315 (Pa.Super. 2011), appeal

denied, 42 A.3d 1058 (Pa. 2012).

Incident to a lawful arrest, a police officer may

conduct a warrantless search of the arrestee’s

person and of the area within the immediate control

of the arrestee. The warrantless search acts to

protect the arresting officer from weapons the

arrestee may have access to, and prevents the

destruction or concealment of evidence.

Commonwealth v. Walker, 501 A.2d 1143, 1148 (Pa.Super. 1985), citing

Commonwealth v. Timko, 417 A.2d 620, 622 (Pa. 1980);

Commonwealth v. Long, 414 A.2d 113, 115 (Pa. 1980); Commonwealth

v. Zock, 454 A.2d 35, 37 (Pa.Super. 1982), appeal dismissed, 465 A.2d

641 (Pa. 1983). Parole officers have police powers including the power to

arrest a parolee, without warrant, for technical parole violations.

61 Pa.C.S.A. § 6152.8 See Commonwealth v. Miller, 450 A.2d 40, 42

8

An agent is declared to be a peace officer and is

given police power and authority throughout this

Commonwealth to arrest without warrant, writ, rule

or process any parolee or probationer under the

supervision of the board for failing to report as

required by the terms of his probation or parole or

for any other violation of the probation or parole.

Id.

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(Pa.Super. 1982) (“When performing his normal duties, a parole agent is not

required to obtain a search warrant. A parole officer has the authority to

arrest parolees without a warrant for visible violations of parole.”) (citations

omitted).

Appellant’s parole officer, Andrew Barnes (“Barnes”), testified at the

hearing on appellant’s suppression motion. Barnes testified that in

October/November 2012, appellant gave several positive urine tests for

marijuana. (Notes of testimony, 5/30/13 at 17-18.) Appellant had also lost

his job. (Id. at 16.) Because of the positive urine tests, appellant was

referred to Addison Behavioral Care in Wilkinsburg for a drug and alcohol

evaluation. (Id. at 19.) However, because he was no longer employed and

was not covered by health insurance, appellant was instructed to apply for a

medical card at the county assistance office to cover the costs. (Id.) Up

until that point, appellant had been reporting to the parole office on a

monthly basis; however, appellant was told to begin reporting every week.

(Id.) Barnes testified that appellant stopped reporting in December 2012

and was declared delinquent effective December 12, 2012. (Id. at 19-20.)

On January 8, 2013, accompanied by Penn Hills police officers, Barnes

attempted to locate appellant at his approved residence at 114 Clinton

Drive. (Id. at 21.) Appellant resided with his mother and stepfather. (Id.

at 15, 17.) Barnes was made aware by Penn Hills police that appellant had

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an active warrant for armed robbery. (Id. at 21.) Barnes testified that he

had been to 114 Clinton Drive at least six or seven times. (Id. at 22.)

Barnes, accompanied by Detective Joseph Blaze and two uniformed

officers, knocked on the front door and identified himself. (Id. at 21-23.)

Appellant’s sister answered the door and informed Barnes that appellant was

in his bedroom. (Id. at 23.) Barnes entered the bedroom with his gun

drawn. (Id. at 24.) Appellant was getting up out of bed. (Id.) Barnes

ordered appellant to show his hands. (Id.) Appellant complied and he was

placed in handcuffs. (Id.) At that point, Barnes questioned appellant about

the gun; appellant stated that it was in a book bag underneath the bed.

(Id.) Barnes pulled out the book bag and recovered a .38 caliber revolver,

as well as stamp bags containing suspected narcotics. (Id. at 24-25.)

Clearly, Barnes had reasonable suspicion of criminal activity to search

appellant, his parolee. In addition to technical violations of parole, Barnes

was informed that appellant was wanted on suspicion of armed robbery and

was in possession of a gun. As stated above, parolees enjoy a diminished

expectation of privacy in exchange for their early release on parole. In

addition, Barnes could search the area underneath the bed, an area within

appellant’s immediate vicinity, as part of the search incident to a lawful

arrest.

Regarding appellant’s allegation that Barnes was acting at the behest

of police, the record belies this argument. Barnes testified that he was

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instructed to proceed to appellant’s approved residence by his supervisor.

(Id. at 27.) Barnes testified that Penn Hills police never told him to search

the residence. (Id. at 27-28.) Barnes explained that it is typical to search a

parolee’s approved residence when he is in violation of the conditions of

supervision. (Id. at 28.) Both Detective Anthony Diulus and

Detective Blaze also testified that they did not give Barnes any particular

instructions other than to take appellant into custody. (Notes of testimony,

7/18/13 at 29-30, 52.)9 They did not tell Barnes to search the residence.

(Id.) Detective Diulus testified that Barnes did not assist in any way with

the police investigation into the armed robbery of Munda and Leski. (Id. at

39-40.) Clearly, Barnes was not acting as a “stalking horse” for the

Penn Hills police in their investigation into the alleged robbery. Barnes was

aware of the charges, but was there in his capacity as appellant’s parole

officer.

Next, we address appellant’s argument that his statements were

obtained in violation of Miranda.10

A confession obtained during a custodial

interrogation is admissible where the

accused’s right to remain silent and right

to counsel have been explained and the

accused has knowingly and voluntarily

waived those rights. The test for

determining the voluntariness of a

confession and whether an accused

9

The May 30, 2013 suppression hearing was continued on July 18, 2013.

10

Miranda v. Arizona, 384 U.S. 436 (1966).

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knowingly waived his or her rights looks

to the totality of the circumstances

surrounding the giving of the confession.

Commonwealth v. Jones, 546 Pa. 161, 170, 683

A.2d 1181, 1189 (1996) (citations omitted). “The

Commonwealth bears the burden of establishing

whether a defendant knowingly and voluntarily

waived his Miranda rights.” Commonwealth v.

Bronshtein, 547 Pa. 460, 464, 691 A.2d 907, 913

(1997) (citation omitted).

Commonwealth v. Parker, 847 A.2d 745, 748 (Pa.Super. 2004).

Statements made during custodial interrogation are

presumptively involuntary, unless the accused is first

advised of . . . Miranda rights. Commonwealth v.

DiStefano, 782 A.2d 574, 579 (Pa.Super.2001),

appeal denied, 569 Pa. 716, 806 A.2d 858 (2002).

Custodial interrogation is “questioning initiated by

law enforcement officers after a person has been

taken into custody or otherwise deprived of [his]

freedom of action in any significant way.” Miranda,

supra at 444, 86 S.Ct at 1612, 16 L.Ed.2d at 706.

“The Miranda safeguards come into play whenever a

person in custody is subjected to either express

questioning or its functional equivalent.”

Commonwealth v. Gaul, 590 Pa. 175, 180, 912

A.2d 252, 255 (2006), cert. denied, 552 U.S. 939,

128 S.Ct. 43, 169 L.Ed.2d 242 (2007). Thus,

“Interrogation occurs where the police should know

that their words or actions are reasonably likely to

elicit an incriminating response from the suspect.”

Commonwealth v. Ingram, 814 A.2d 264, 271

(Pa.Super.2002), appeal denied, 573 Pa. 671, 821

A.2d 586 (2003). “In evaluating whether Miranda

warnings were necessary, a court must consider the

totality of the circumstances . . . .” Gaul, supra.

Commonwealth v. Gonzalez, 979 A.2d 879, 888-889 (Pa.Super. 2009),

quoting Commonwealth v. Williams, 941 A.2d 14, 30 (Pa.Super. 2008)

(en banc). “Parolees, like any other individual, must be given Miranda

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warnings when subject to custodial interrogation.” Commonwealth v.

Cooley, 118 A.3d 370, 376 (Pa. 2015).

The concept of “fruit of the poisonous tree” and the

possibility of “purging the taint” of contaminated

evidence were extensively discussed in Wong Sun

v. United States, 371 U.S. 471, 83 S.Ct. 407, 9

L.Ed.2d 441 (1963). The Pennsylvania Supreme

Court found the following language from Wong Sun

to be particularly instructive:

“We need not hold that all evidence is

‘fruit of the poisonous tree’ simply

because it would not have come to light

but for the illegal actions of the police.

Rather, the more apt question in such a

case is ‘whether, granting establishment

of the primary illegality, the evidence to

which instant objection is made has been

come at by exploitation of that illegality

or instead by means sufficiently

distinguishable to be purged of the

primary taint.’”

[Commonwealth v.] Cunningham, 471 Pa. [577]

at 585-86, 370 A.2d [1172] at 1176-77 [(1977)]

(quoting Wong Sun, 371 U.S. at 487-88, 83 S.Ct. at

417 (footnote and citations omitted)). If the

discovery of evidence can be traced to a source

independent of the initial illegality, suppression is not

mandated. Commonwealth v. Ariondo, 397

Pa.Super. 364, 377, 580 A.2d 341, 347 (1990),

appeal denied, 527 Pa. 628, 592 A.2d 1296

(1991). The “fruit of the poisonous tree” doctrine

excludes evidence obtained from, or acquired as a

consequence of, lawless official acts; it does not

exclude evidence obtained from an “independent

source.” Id.

Commonwealth v. Brown, 700 A.2d 1310, 1318 (Pa.Super. 1997).

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Barnes testified that after he placed appellant in handcuffs, and

without reading him his Miranda warnings, he asked him about the location

of the gun:

I said: You know we’re here because of you not

reporting and you got a warrant out in Penn Hills for

a gun? I said: Where’s the gun? And he just stood

there. And I said: Okay, but here’s the thing; I’m

gonna call and get five or six more guys, we’re

gonna come down and tear her house up. Do you

want to disrespect her like that? He just kind of

hung his head and said: It’s in the bookbag under

the bed.

Notes of testimony, 5/30/13 at 24.

Appellant was handcuffed and in custody at the time he was

questioned by Barnes regarding the location of the gun. However, appellant

was not only in violation of his parole but had a warrant out for his arrest for

a violent crime involving a firearm. Barnes had the right to search the

residence for contraband including underneath appellant’s bed. In fact,

Barnes testified that without appellant’s admission, he intended to call

additional agents from the parole office and conduct a search of the entire

house. (Id. at 25.) Barnes would have recovered the gun and drugs from

inside the book bag independent of appellant’s admission. Therefore, even

assuming the interrogation of appellant was improper, the evidence was

admissible. See Gonzalez, 979 A.2d at 889-890 (explaining the inevitable

discovery rule).

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J. S71002/15

Appellant also argues that his subsequent statement to

Detective Diulus should have been suppressed as fruit of the poisonous tree.

According to appellant, his statement at the police station flowed directly

from the illegal interrogation and search of his bedroom. (Appellant’s brief

at 39-40.)

Detective Diulus testified that after appellant was transported to the

police station, he was given a copy of the arrest warrant and the criminal

complaint, including the affidavit of probable cause. (Notes of testimony,

7/18/13 at 30-31.) Later, Detective Diulus asked appellant whether he had

read the documents over and wanted to talk; appellant indicated that he did

want to talk. (Id. at 31.) At that time, appellant was read his Miranda

warnings and also signed a waiver form. (Id. at 31-32.) Appellant was not

handcuffed and did not appear to be in any distress. (Id. at 31-32.)

Appellant was taken upstairs to the detective office. (Id. at 33.)

Detective Diulus again asked appellant whether he wanted to make a

statement, and he answered in the affirmative. (Id.) Barnes and Detective

Blaze were also present, but Detective Diulus was directing the interview.

(Id. at 35, 54.) Detective Diulus, who was not at 114 Clinton Drive when

appellant was arrested, described appellant’s demeanor as “very casual.”

(Id. at 28-29, 35.)

Detective Diulus testified that appellant never asked the police to stop

the interview and he never requested counsel. (Id. at 35.) Detective Blaze

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J. S71002/15

described appellant as cooperative and polite. (Id. at 54.) Appellant

discussed the items recovered from the residence, but declined to answer

questions about the alleged robbery. (Id. at 33-34, 36-37.) The only

statement appellant made regarding the robbery allegations was that he and

his friend left the bar that night and drove directly to his friend’s house

where they played video games. (Id. at 36.)

Even assuming, arguendo, that appellant’s initial statement to Barnes

was coerced and involuntary, his subsequent statement to Detective Diulus

was made knowingly and voluntarily. There was a sufficient break in the

chain of events to remove the taint of any coercion resulting from the

allegedly illegal questioning of appellant and search of appellant’s bedroom

at 114 Clinton Drive. Appellant was transported to the police station, where

he was permitted to examine the criminal complaint and arrest warrant.

Appellant indicated he wanted to talk to police. Appellant was then read his

Miranda rights and executed a waiver form. While Barnes and

Detective Blaze were present during the interview, it was conducted by

Detective Diulus, who was not even at 114 Clinton Drive when appellant was

arrested. Appellant’s demeanor was described as calm and relaxed. In fact,

appellant declined to discuss the alleged robbery and only agreed to answer

questions regarding the contraband found in his bedroom. Appellant’s

statement to police was admissible, and the trial court did not err in denying

appellant’s suppression motion. See Oregon v. Elstad, 470 U.S. 298, 310

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J. S71002/15

(1985) (“When a prior statement is actually coerced, the time that passes

between confessions, the change in place of interrogations, and the change

in identity of the interrogators all bear on whether that coercion has carried

over into the second confession.”).

Finally, appellant claims that the trial court erred in failing to hold an

evidentiary hearing on post-sentence motions. (Appellant’s brief at 25.)

Whether or not to hold a hearing on post-sentence motions is within the trial

court’s discretion. Pa.R.Crim.P. 720(B)(2)(b). With the exception of

appellant’s sentencing challenge, we find his issues to be without merit;

therefore, the trial court did not abuse its discretion in failing to hold an

evidentiary hearing. Appellant’s sufficiency challenge and his argument that

the trial court erred in refusing to suppress evidence, discussed supra, can

be disposed of on the existing record.

Judgment of sentence vacated. Remanded for re-sentencing.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/2016

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