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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :        IN THE SUPERIOR COURT OF
                                            :              PENNSYLVANIA
                           Appellant        :
                                            :
                      v.                    :            No. 786 MDA 2019
                                            :
NEIL HOWARD GOLDSTEIN                       :


                   Appeal from the Order Entered April 18, 2019,
                 in the Court of Common Pleas of Lebanon County
                 Criminal Division at No. CP-38-CR-0001440-2018


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                        FILED JUNE 15, 2020

        The Commonwealth appeals1 from the April 18, 2019 order granting the

omnibus pre-trial suppression motion filed by appellee, Neil Howard

Goldstein. After careful review, we affirm.2

        The suppression court summarized the relevant facts of this case as

follows:

              On February 23, 2018, [Pennsylvania State] Trooper
              [Peter] Conforti responded to [a residence] in
              Lebanon County, in response to a report from a minor
              child and her mother regarding the minor child’s
              alleged receipt of unwanted Snapchat messages. The
              minor child accused [appellee] of contacting her for
              inappropriate reasons. [The minor child (hereinafter,

1 The Commonwealth certified, pursuant to Pa.R.A.P. 311(d), that the
suppression court’s April 18, 2019 order will terminate or substantially
handicap the prosecution.

2   Appellee has not filed a brief in this matter.
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             “the victim”) was between 15 and 16 years old at the
             time of these alleged incidents and was related to
             appellee.]       Trooper     [Daniel]   Womer     and
             Trooper Conforti interviewed [appellee] on March 1,
             2018 at the Jonestown Police Barracks. Before
             beginning the interview, neither Trooper Womer nor
             Trooper Conforti, nor any other officer advised
             [appellee] of his Miranda[3] rights.       During the
             interview, [appellee’s] cellphone was seized without a
             warrant. [A warrant was subsequently obtained to
             analyze the contents of appellee’s phone more than a
             month later, on April 5, 2019.]

Suppression court opinion, 7/10/19 at 3; see also notes of testimony,

4/17/19 at 7, 21.

        On October 2, 2018, appellee was charged with criminal solicitation to

commit sexual abuse of children, unlawful contact with minor, criminal use of

a communication facility, corruption of minors, and tampering with or

fabricating physical evidence.4    On November 9, 2018, appellee filed an

omnibus pre-trial motion to suppress the incriminating statements he made

to Troopers Womer and Confroti and argued that they illegally seized his cell

phone in violation of the Fourth Amendment.        (See “Motion for Suppress

Evidence,” 11/9/18 at §§ A-B.)      On April 17, 2019, the suppression court

conducted a hearing on appellee’s suppression motion, during which both

Troopers Womer and Confroti testified. Following the hearing, the suppression

court granted appellee’s suppression motion on April 18, 2019. This timely


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

4 18 Pa.C.S.A. §§ 902(a), 6318(a)(5), 7512(a), 6301(a)(1)(i), and 4910(1),
respectively.


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appeal followed. Although not ordered to do so, the Commonwealth filed its

concise statement of errors complained of on appeal, in accordance with

Pa.R.A.P. 1925(b), on May 23, 2019.         The suppression court filed its

Rule 1925(a) opinion on July 10, 2019.

      The Commonwealth raises the following issues for our review:

            A.    Did the [suppression] court commit reversible
                  error when it granted [appellee’s] request to
                  suppress the statements he made to the
                  Pennsylvania State Police?

            B.    Did the [suppression] court commit reversible
                  error when it determined that the Pennsylvania
                  State Police needed a search warrant to seize
                  [appellee’s] cellphone?

            C.    Did the [suppression] court commit reversible
                  error when it granted [appellee’s] request to
                  suppress the contents of [appellee’s] cell
                  phone?

Commonwealth’s brief at 4 (extraneous capitalization omitted).5

      Our standard of review in addressing a suppression court’s order

granting a suppression motion is well settled.

            When the Commonwealth appeals from a suppression
            order, we follow a clearly defined standard of review
            and 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.   The
            suppression court’s findings of fact bind an appellate
            court if the record supports those findings. The
            suppression court’s conclusions of law, however, are

5 In the “Argument” section of its brief, the Commonwealth has condensed its
three issues into two primary arguments: A. and B./C. We will address each
accordingly.


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            not binding on an appellate court, whose duty is to
            determine if the suppression court properly applied
            the law to the facts.

            Our standard of review is restricted to establishing
            whether the record supports the suppression court’s
            factual findings; however, we maintain de novo
            review over the suppression court’s legal conclusions.

Commonwealth v. Korn, 139 A.3d 249, 253-254 (Pa.Super. 2016) (internal

citations and quotation marks omitted), appeal denied, 159 A.3d 933 (Pa.

2016).

                                   Issue A.

      The Commonwealth first argues that the suppression court erred in

granting appellee’s motion to suppress the incriminating statements he gave

to the troopers because their interview with appellee did not constitute a

custodial interrogation, and thus, “Miranda warnings were not required.”

(Commonwealth’s brief at 10.) We disagree.

      A custodial interrogation for purposes of Miranda occurs when there is

a “questioning initiated by the police after a person has been taken into

custody or otherwise deprived of his or her freedom of action in any significant

way.” Commonwealth v. Clinton, 905 A.2d 1026, 1032 (Pa.Super. 2006)

(citations and emphasis omitted), appeal denied, 934 A.2d 71 (Pa. 2007).

In determining whether police conduct is the functional equivalent of

interrogation, this court has noted that,

            [t]he police officer’s subjective intent does not govern
            the determination but rather the reasonable belief of
            the individual being interrogated. . . . The standard


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            is an objective one, with due consideration given to
            the reasonable impression conveyed to the person
            being interrogated. A person is considered to be in
            custody for the purposes of Miranda when the
            officer’s show of authority leads the person to believe
            that [he] was not free to decline the officer’s request,
            or otherwise terminate the encounter.

Commonwealth v. Harper, ___ A.3d ___, 2020 WL 1516934, at *4

(Pa.Super. March 30, 2020) (citations omitted). Thus, “the inquiry must look

at the suspect’s perceptions rather than the intent of the police.”

Commonwealth v. Gaul, 912 A.2d 252, 255 (Pa. 2006) (citation omitted;

emphasis added), cert. denied, 552 U.S. 939 (2007).

      Although we are mindful of the fact that “not every statement made by

an individual during a police encounter constitutes an interrogation,”

Commonwealth v. Page, 59 A.3d 1118, 1131 (Pa.Super. 2013) (citation

omitted), appeal denied, 80 A.3d 776 (Pa. 2013), it is undisputed that “[a]

law enforcement officer must administer Miranda warnings prior to custodial

interrogation.”   Commonwealth v. Schwing, 964 A.2d 8, 11 (Pa.Super.

2008) (citation omitted; emphasis added).

            It is a fundamental precept enshrined in the United
            States Constitution that a suspect subject to a
            custodial interrogation by police must be warned that
            he has the right to remain silent, that anything he
            says may be used against him in court, and that he is
            entitled to the presence of an attorney.

Commonwealth v. Cruz, 71 A.3d 998, 1003 (Pa.Super. 2013) (citation

omitted), appeal denied, 81 A.3d 75 (Pa. 2013).




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           Police detentions become custodial when, under the
           totality of the circumstances, the conditions and/or
           duration of the detention become so coercive as to
           constitute the functional equivalent of arrest.

           The factors a court utilizes to determine, under the
           totality of the circumstances, whether a detention has
           become so coercive as to constitute the functional
           equivalent of arrest include: 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.

Commonwealth v. Baker, 24 A.3d 1006, 1019-1020 (Pa.Super. 2011)

(citations omitted), affirmed, 78 A.3d 1044 (Pa. 2013).

     Instantly, we discern no abuse of discretion on the part of the

suppression court in concluding that appellee was subject to a custodial

interrogation during his interview with Troopers Womer and Conforti, such

that he was entitled to receive Miranda warnings. The record establishes

that on the evening of March 1, 2018, Trooper Conforti contacted appellee by

telephone and requested that he come to the Jonestown Police Barracks for

an interview.   (Notes of testimony, 4/17/19 at 5, 24-25.)            During this

telephone call, Trooper Conforti identified himself as a member of the

Pennsylvania State Police and explained that the reason why he was calling

was an ongoing criminal investigation involving the victim. (Id. at 24-25.)

Trooper Conforti testified that he did not recall whether he specifically

instructed appellee that he was required to attend the interview, nor whether



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appellee informed him that he was unable to attend that evening because he

was helping a friend move. (Id. at 25-27.) Nonetheless, appellee arrived at

the Jonestown Police Barracks on his own accord and was escorted into an

interview room by both Troopers Womer and Conforti.          (Id. at 5-6, 27.)

During the ensuing interview, appellee was seated directly across from

Troopers Womer and Conforti, and the exit door of the interrogation room was

shut for what both troopers characterized as “privacy reasons.” (Id. at 6, 23.)

The record further reflects that this interview lasted approximately an hour,

during which time Trooper Conforti was dressed in full uniform with his

sidearm visible, and Trooper Womer was dressed in a suit. (Id. at 17, 23.)

Both Troopers Womer and Conforti testified that they instructed appellee he

was free to leave multiple times and claim they never threatened or coerced

appellee. (Id. at 6, 8, 32.) Notably, however, only the first 25 minutes of

the   interview   were   recorded   due    to   a   mechanical   problem   with

Trooper Womer’s recorder. (Id. at 4.)

      During the suppression hearing, the following exchange took place

during the suppression court’s examination of Trooper Womer:

            BY THE COURT:

            Q.    Trooper Womer, why was this guy called into
                  your station?

            A.    There was [sic] inappropriate messages being
                  sent to his niece, who is the victim.

            Q.    So you already knew that?



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           A.     Yes.

           Q.     You knew there was some probable criminal
                  conduct afoot; is that correct?

           A.     Yes.

           Q.     Why wouldn’t you Mirandize him?

           A.     Again, he wasn’t in custody.

           Q.     He wasn’t in custody? He was at the State
                  Police barracks with the door closed. You and
                  who else was in the room?

           A.     Trooper Conforti.

           Q.     Two troopers are in the room, and that’s not
                  custody?

           A.     He wasn’t under arrest.

           Q.     Oh, my gosh. . . .

Id. at 15-16.

     The   suppression    court   also   examined   Trooper Conforti   at   the

suppression hearing, during which the following exchange took place:

           BY THE COURT:

           Q.     Trooper, how much earlier than this interview
                  did you talk to the victim in this matter?

           ....

           A.     Let me get an exact date. It would have been
                  February 23rd that I spoke to her.

           Q.     Her.    And then when did you speak to
                  [appellee]?

           A.     March 1st.


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           Q.   So you had all of that time. You knew -- the
                victim told you his name, who he was,
                everything, right, when you talked to her, I’m
                assuming?

           A.   They had suspicion that it was him.

           Q.   I mean, when you say, “they had a suspicion,”
                they told you his name.

           A.   Yes.

           Q.   You knew all of that, why are you calling him in
                there to just put the fine tuning on it? Why
                didn’t you give him his Miranda rights?

           A.   It was a non-custodial interview.

           Q.   That’s what you say.          I’ll make that
                determination. But you knew all of this stuff,
                yet you call him back there in the back room
                with two troopers, closed door, you already
                knew his name; you know what the allegations
                are; and you don’t give him Miranda. Right?

           A.   Right.

           Q.   Why?

           A.   To us, he wasn’t under arrest at that time.

           Q.   To you. Why was he there?

           A.   To talk to us.

           Q.   But you told him to come in and talk to you.

           A.   Right.

           Q.   Oh, my God. Step down.

Id. at 33-35.



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     Based on the foregoing, we agree with the suppression court that under

the totality of the circumstances, a reasonable person in appellee’s position

would not have believed that he was free to terminate the interview and leave

the interrogation room.

     Moreover, as the suppression court set forth in its opinion,

           Further, the Court concluded that "interrogation" of
           [appellant] had taken place in Jonestown Police
           Barracks. Specifically, during “roughly an hour” of
           [appellant’s] “interview,” both police officers were
           asking     [appellant]    questions    regarding      his
           communications with the victim and his use of the
           cellphone. Questioning of [appellant], according to
           the testimony of the officers, was in spite of the
           ongoing criminal investigation. In light of the officers’
           experience in the field, the Court finds that police
           should have known that questions directed at
           [appellant] were more than likely to produce an
           incriminating      response,      thus      constituting
           “interrogation.” . . . No evidence on the record
           indicates that [appellant] volunteered his statements
           to police because his answers were direct responses
           to the officers’ questions.

Suppression court opinion, 7/10/19 at 7-8.

     Accordingly, we find that Miranda warnings were warranted in this

instance and the Commonwealth’s claim to the contrary must fail.



                                Issues B./C.

     The Commonwealth next argues that the suppression court erred in

suppressing the contents of appellee’s cell phone on the basis the phone was




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improperly seized by Troopers Womer and Conforti during the interview

without a search warrant. (Commonwealth’s brief at 14.)

     “Both the Fourth Amendment of the United States Constitution and

Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals

freedom from unreasonable searches and seizures.”        Commonwealth v.

Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation and internal quotation

marks omitted), appeal denied, 987 A.2d 158 (Pa. 2009). “A warrantless

search or seizure is presumptively unreasonable under the Fourth Amendment

and Article I, § 8, subject to a few specifically established, well-delineated

exceptions.” Commonwealth v. McCree, 924 A.2d 621, 627 (Pa. 2007).

One such exception is the exigent circumstances exception.             Exigent

circumstances arise only where “the need for prompt police action is

imperative, either because the evidence sought to be preserved is likely

to be destroyed or secreted from investigation, or because the officer

must protect himself from danger. . . .” Commonwealth v. Lee, 972 A.2d

1, 5 (Pa.Super. 2009) (citation omitted; emphasis added).

     Here,     the   Commonwealth     avers   that   there   existed   exigent

circumstances sufficient to justify the warrantless seizure of appellee’s

cell phone during the interview because there was a high probability that

appellee would have deleted incriminating evidence had they taken the time

to obtain a warrant. (Commonwealth’s brief at 16-17.) In support of this

contention, the Commonwealth notes that appellee acknowledged to



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Trooper Womer that he had previously attempted to delete Snapchat

messages and that his email account was set up to delete every 24 hours.

(Id.) Specifically, Trooper Womer testified as follows:

            Q.    During your interview with [appellee], did he
                  mention at all whether or not before coming in
                  to meet with you if he had attempted to delete
                  things?

            A.    Yes. He mentioned that -- he mentioned that
                  he got the e-mail from some unknown sender,
                  that his G-mail is set up to delete every
                  24 hours. He also mentioned that he tried to
                  delete the Snapchats.

            Q.    Was there an intent or a plan to analyze this
                  phone as part of the course of this investigation?

            A.    Yes.

            Q.    Was there any concern on your end that if he
                  were allowed to leave with his phone that day,
                  that he may have been able to destroy more
                  evidence or delete more evidence?

            A.    Yes.

Notes of testimony, 4/17/19 at 7.

      Contrary to the Commonwealth’s contention, our review of the record

reveals ample support for the suppression court’s determination that there

existed insufficient evidence of exigency to justify the troopers’ warrantless

seizure of appellee’s cell phone during the interview. As the suppression court

properly found in its opinion,

            after the officers removed the cellphone from
            [appellee’s] possession during the interview, their
            particularized concerns that he might break the phone


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            or otherwise destroy the phone must have been
            substantiated with evidence on the record. The record
            reveals that an alleged communication between
            [appellee] and the victim occurred via Snapchat, for
            which the Commonwealth had submitted a
            preservation of data request. In light of this evidence,
            the [suppression c]ourt did not find that [appellee’s]
            automatic deletion of incoming Gmail mail every
            24 hours was a sufficient reason for the warrantless
            seizure since inter alia no evidence was presented
            that [appellee’s] Gmail account was used in
            communication with the victim or that it was causally
            connected to the investigation. [Trooper] Womer
            testified that [appellee] told him during the interview
            that he tried to delete Snapchats. In light of the fact
            that the Commonwealth had submitted a data
            preservation request and was in possession of the
            needed electronic data, the [suppression c]ourt did
            not find it sufficient to justify a warrantless seizure.

Suppression court opinion, 7/10/19 at 10.

      The Commonwealth relies, in part, on this court’s decision in

Commonwealth v. Stem, 96 A3d 407 (Pa.Super. 2014), wherein a panel of

this court recognized that “the police constitutionally were permitted to seize

and secure [a] telephone[] in order to prevent the destruction of evidence

during the time it takes to obtain a valid search warrant.” Id. at 411

(citation omitted; emphasis in original). However, even assuming the exigent

circumstances exception was satisfied sufficient to justify the troopers’

warrantless seizure of appellee’s cell phone, it logically follows that a valid

search warrant must be obtained within a reasonable amount of time. Here,

the record reflects that Troopers Womer and Conforti failed to obtain a warrant

for the contents of appellee’s cell phone within a reasonable amount of time.



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Although the troopers seized appellee’s cell phone at the conclusion of the

March 1, 2018 interview, they did not request a search warrant to examine

the contents of said phone until more than a month later, on April 5, 2018.

(See notes of testimony, 4/17/19 at 35.) Moreover, neither Trooper Womer

nor Trooper Conforti offered any explanation at the suppression hearing as to

the cause of this delay. Rather, Trooper Womer testified on this matter as

follows:

             Q.     So in an hour you couldn’t get a warrant for this
                    cell phone?

             A.     If we are both in the same room with him, who
                    is going to get the warrant?

             Q.     How many troopers were there at the barracks
                    at this time?

             A.     I don’t know.

             ....

             Q.     No one else was available to get a warrant; is
                    that correct?

             A.     That we would have explained, no.

Id. at 17, 18.

      Based on the foregoing, we discern no legal error on the part of the

suppression court in suppressing the contents of appellee’s cell phone

following   its   warrantless   seizure   by   Troopers   Womer   and   Conforti.

Accordingly, we affirm the April 18, 2019 order granting appellee’s omnibus

pre-trial suppression motion.



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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/15/2020




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