J-S43018-18


                                2019 PA Super 54

 COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellant              :
                                           :
              v.                           :
                                           :
 BLAINE ELLIOT COLEMAN,                    :
                                           :
                    Appellee               :   No. 1789 WDA 2017

                  Appeal from the Order November 14, 2017
               In the Court of Common Pleas of Mercer County
              Criminal Division at No.: CP-43-CR-0000621-2017

BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.

OPINION BY DUBOW, J.:                            FILED FEBRUARY 22, 2019

      The Commonwealth appeals from the November 14, 2017 Order entered

in the Mercer County Court of Common Pleas granting the Motion to Suppress

filed by Appellee, Blaine Elliot Coleman. After careful review, we conclude that

the court erred as a matter of law and, thus, reverse.

      We glean the underlying facts from the suppression court’s November

14, 2017 Opinion, and our review of the evidence presented at the suppression

hearing.   Briefly, on March 30, 2017, Farrell Police Department Detective

Sergeant Charles Rubano and his partner Officer Michael Murphy were

investigating a recent arson that had killed a woman. Suspecting Appellee’s

involvement, they went to Appellee’s mother’s home in Farrell, Pennsylvania.

They were armed and in plainclothes. After identifying themselves and asking

Appellee if he could talk, Appellee allowed the officers to come into the home.
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        Inside, the officers told Appellee they wanted to speak with him at the

nearby police station, which was about 150 yards away. Appellee responded

that he would come down to the police station later when he could get a ride

because it was raining at the time. When the officers offered Appellee a ride,

Appellee agreed and grabbed his insulin kit.

        Appellee entered the back seat of the officers’ unmarked car.       The

officers did not frisk, handcuff, or restrain Appellee, and the car did not have

a cage inside. Detective Sergeant Rubano and Officer Murphy drove Appellee

to the police station.

        After the two-minute drive, they arrived at the Farrell Police Station,

which also contains a regional lockup facility, and entered the garage through

a sally port. The three walked inside the building, past jail cells, and into an

interview room. The officers did not restrain Appellee and permitted him to

keep and use his overcoat, his hat, and his insulin kit, which contained

syringes and insulin. The officers informed Appellee he was free to leave at

any time.

        The officers activated an audio/video recording system 1 and read

Appellee Miranda2 warnings.            Appellee read the Miranda warnings but

declined the officers’ request to sign the waiver form. Detective Sergeant


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1 The Commonwealth offered into evidence, and the trial court admitted
without objection, the 24-minute recording.

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

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Rubano then informed Appellee that he wanted to ask questions about the

arson.    After about one minute, Appellee explained that he did not have

anything to say about the arson.                 Appellee explicitly, clearly, and

unequivocally said he did not want to talk to the police.         See Trial Court

Opinion, 11/14/17, at 9, citing Commonwealth Exhibit 1 (video recording of

interview).

       Detective Sergeant Rubano and Officer Murphy ignored Appellee’s

statement and continued speaking to Appellee.3 They explained to Appellee

that he was not in custody and he was free to leave at any time. The officers

then advised Appellee that he was a suspect, along with an individual named

Brandon Gilchrest. N.T., 10/4/17, at 5-6; Trial Court Opinion, 11/14/17, at

4.

       The officers told Appellee that they wanted to show him some things “to

see if it change[d] [his] mind.” N.T., 10/4/17, at 25 (quoting Commonwealth

Exhibit 1 (video recording of interview)).        They showed Appellee blown-up

pictures of the crime scene and the victim’s body. They told Appellee details

about evidence and information they had obtained about the arson and who

was involved.      They showed Appellee video from a gas station showing


____________________________________________


3 In its Opinion, the trial court stated that, based on their reactions clearly
visible on the video recording, the officers “obviously understood that
[Appellee] was exercising his right to remain silent when they hesitated before
they decided to tell [Appellee] in effect that they would not ask him any
questions, but that they just wanted to show him what they had.” Trial Court
Opinion, 11/14/17, at 9.

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Appellee present in a vehicle where Appellee and his co-conspirators allegedly

obtained gasoline for the arson.     The officers also told Appellee disturbing

details about the burnt corpse and emphasized that the victim’s children did

not have a mother. See N.T., 10/4/17, at 24-25, 34; Trial Court Opinion,

11/14/17, at 4.

      Appellee initially denied his involvement after the officers explained their

version of the crime based on the evidence they had at the time. The officers

showed Appellee a photograph of Gilchrest at the gas station and explained

that, based on what they had heard, the officers believed Appellee had started

the fire. The officers told Appellee, “you know who did this, and whoever

comes in first, that is how the story will be told.”        Trial Court Opinion,

11/14/17, at 5 (quoting Commonwealth Exhibit 1 (video recording of

interview)).

      Appellee eventually “started to reveal names and information about a

vehicle and who the owner of the vehicle was and where that individual lived,

and eventually told the police that he pointed out the house that he thought

the alleged target lived in, and that Brandon Gilchrest lit the place up.” Id.

(describing Commonwealth Exhibit 1 (video recording of interview)).

      The officers gave Appellee some paper in case he wanted to make a

statement and then left the room for three minutes. While the officers were

not in the room, Appellee used his insulin kit and did not provide a written




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statement.     Immediately after returning to the room, the officers arrested

Appellee.

        The Commonwealth charged Appellee with Second-Degree Murder,

Aggravated Arson,4 and related offenses.

        Appellee filed a Motion to Suppress his statements to police. On October

4, 2017, the court held a hearing on the Motion to Suppress at which Detective

Sergeant Rubano testified consistent with the above facts.5          See N.T.,

10/4/17, at 4-40.

        On November 14, 2017, the court filed an Opinion and Order, with

formal findings of fact and conclusions of law, granting Appellee’s Motion to

Suppress.     The court concluded that Appellee “clearly and unequivocally

invoked his right to remain silent after he was given his Miranda warnings at

the Farrell Police Station.” Trial Court Opinion, 11/14/17, at 7. The court

observed that the officers ignored Appellee’s invocation of his right to remain

silent in order to elicit incriminating statements. Id. at 7. Significantly, the

court also explicitly concluded that Appellee “was not subjected to custodial

interrogation.” Id. at 8.




____________________________________________


4   18 Pa.C.S. § 2502(b) and 18 Pa.C.S. § 3301(a.1)(2), respectively.

5Detective Sergeant Rubano was the only witness to testify at the suppression
hearing.



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       On December 1, 2017, the Commonwealth filed an interlocutory appeal

pursuant to Pa.R.A.P. 311(d).6           Both the Commonwealth and the court

complied with Pa.R.A.P. 1925.

       The Commonwealth presents three issues for our review:

       1. Whether Appellee’s right to remain silent was violated even
       though he was not in custody or detained?

       2. Whether a defendant’s rights under Miranda and its progeny
       automatically execute upon Miranda warnings being read by
       police officers, regardless of what the defendant’s status of
       custody was at the time of questioning?

       3. Whether Appellee’s Fifth Amendment rights self-execute
       despite Appellee not being in custody or detention?

Commonwealth’s Brief at 4.

       Our standard of review applicable to suppression determinations is well

settled.    “When reviewing the grant of a suppression motion, we must

determine whether the record supports the trial court’s factual findings and

whether the legal conclusions drawn from those facts are correct.”

Commonwealth v. Ennels, 167 A.3d 716, 718 (Pa. Super. 2017) (citation

and quotation marks omitted). “We may only consider evidence presented at

the suppression hearing.” Id.




____________________________________________


6 Pa.R.A.P. 311(d) provides that “the Commonwealth may take an appeal as
of right from an order that does not end the entire case where the
Commonwealth certifies in the notice of appeal that the order will terminate
or substantially handicap the prosecution.”

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       “In addition, because the defendant prevailed on this issue before the

suppression court, we consider only the defendant’s evidence and so much of

the Commonwealth’s evidence as remains uncontradicted when read in the

context of the record as a whole.” Id. at 718-19 (citation omitted). “We may

reverse only if the legal conclusions drawn from the facts are in error.” Id. at

719.

       Importantly, “[o]nce a motion to suppress evidence has been filed, it is

the Commonwealth’s burden to prove, by a preponderance of the evidence,

that the challenged evidence was not obtained in violation of the defendant’s

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. Super.

2012) (en banc) (citation omitted); see also Pa.R.Crim.P. 581(H).

       The Fifth Amendment provides “no person ... shall be compelled in any

criminal case to be a witness against himself[.]” U.S. Const. amend. V. “This

prohibition not only permits an individual to refuse to testify against himself

when he is a defendant but also privileges him not to answer official questions

put to him in any other proceeding, civil or criminal, formal or informal, where

the    answers   might   incriminate   him   in   future   criminal   proceedings.”

Commonwealth v. Cooley, 118 A.3d 370, 375 (Pa. 2015) (citations and

quotation marks omitted).

       “The United States Supreme Court has held that, before law

enforcement officers question an individual who has been [] taken into custody

or has been deprived of his freedom in any significant way, the officers must


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first warn the individual that he has the right to remain silent, that anything

he says can be used against him in a court of law, that he has the right to the

presence of an attorney, and that if he cannot afford an attorney one will be

appointed.”   Commonwealth v. Yandamuri, 159 A.3d 503, 519-20 (Pa.

2017) (citing Miranda, 384 U.S. at 478–79).

      “However, these special procedural safeguards are required only where

a suspect is both taken into custody and subjected to interrogation.” Id. at

520 (citations omitted). See also Commonwealth v. Witmayer, 144 A.3d

939, 948 (Pa. Super. 2016) (“Our law is well settled that an individual is

entitled to Miranda warnings only when he is subject to a custodial

interrogation.”). “Statements not made in response to custodial interrogation

are classified as gratuitous and not subject to suppression for lack of Miranda

warnings.” Yandamuri, 159 A.3d at 520 (citation omitted).

      The procedural safeguards of Miranda do not apply to police

interactions less intrusive than custodial detentions, such as investigatory

detentions and mere encounters. Commonwealth v. Smith, 172 A.3d 26,

31-32, 34 n.6 (Pa. Super. 2017).         Importantly, administering Miranda

warnings does not automatically transform non-custodial questioning of a

defendant into an arrest or custodial detention. Yandamuri, 159 A.3d at 522.

      In its first issue, the Commonwealth asserts the trial court erred as a

matter of law in concluding that the officers violated Appellee’s right to remain

silent because, as the court noted, Appellee was not in a custodial


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interrogation based on the totality of circumstances. See Commonwealth’s

Brief at 11-17, 21.

      Assuming Appellee was not in a custodial interrogation under the

applicable standards governing Miranda, the procedural safeguards of

Miranda were not yet in force.       See Smith, 172 A.3d at 31-32, 34 n.6

(distinguishing custodial detention from other less intrusive levels of police

interactions where Miranda does not apply, such as investigative detentions

and mere encounters).

      The record amply supports the court’s factual finding that Appellee was

not in custody for Miranda purposes. Appellee voluntarily accompanied the

officers to the police station and kept his insulin kit the entire time.     The

officers did not show, use, or threaten to use force. They did not transfer

Appellee against his will. They did not frisk or restrain Appellee. They were

armed, but dressed in plainclothes and drove an unmarked car. Finally, they

reminded Appellee that he was not under arrest and that he was free to leave

at any time.

      Because he was essentially free to leave, chose not to leave, and

continued to listen and then speak with the officers, notwithstanding his initial

silence and invocation of his right to remain silent, Appellee’s statements were

“gratuitous” under Yandamuri. Appellee was free to remain silent the entire

time, but he voluntarily decided to change his mind at some point during the

interaction with the officers.     Although the officers provided Miranda


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warnings, this did not automatically trigger Miranda protections or transform

the interaction into a custodial detention or an arrest. Yandamuri, 159 A.3d.

at 522.7,8

       Based on the foregoing, we conclude that the court erred as a matter of

law in suppressing Appellee’s March 30, 2017 pre-arrest statements to police.9

       Order reversed. Case remanded for further proceedings consistent with

this Opinion. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



____________________________________________


7 This factor would be relevant under the totality of circumstances inquiry
about whether police have subjected a defendant to a custodial interrogation.
However, this factor is not significant to our analysis here since the parties
have not challenged the court’s finding that this was not a custodial
interrogation.

8 Seeming to recognize certain deficiencies in its analysis and the absence of
case law directly supporting its conclusions, the court attempted to rest its
findings on a freestanding pre-arrest right to remain silent apart from
Miranda.     See Trial Court Opinion, 2/21/18, at 4 (citing, inter alia,
Commonwealth v. Cooley, 118 A.3d 370, 375 (Pa. 2015)). We have
reviewed the cited cases and conclude that they are either distinguishable or
not relevant because they involve custodial interrogations or address other
incomparable circumstances, such as commenting on pre-arrest silence.

9 In light of our resolution, we will not address the Commonwealth’s remaining
issues.

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Date: 2/22/2019




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