J-S10004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

STEVEN LANGLEY

                            Appellant                 No. 1768 EDA 2014


             Appeal from the Judgment of Sentence May 15, 2014
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0006897-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                         FILED MARCH 04, 2016

       Appellant, Steven Langley, appeals from the judgment of sentence

entered in the Bucks County Court of Common Pleas, following his jury trial

convictions for possession with intent to deliver a controlled substance

(“PWID”) and conspiracy, and his guilty plea to driving while operating

privilege is suspended or revoked.1 We affirm.

       The relevant facts and procedural history of this appeal are as follows:

          Officer Richard Meehl, of the Lower Makefield Township
          Police Department (“LMTPD”), testified that he is a county-
          sworn narcotics officer and has participated in hundreds of
          drug investigations in his six-and-a-half (6½) years as a
          police officer. On August 29, 2013, Officer Meehl observed
____________________________________________


1
  35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 903(c); 75 Pa.C.S.A. §
1543(b)(1), respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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          [Appellant] operating a black 2006 Ford Explorer in a
          parking lot located at 833 West Trenton Avenue,
          Morrisville, Bucks County, PA, which was the target of a
          narcotics investigation involving [co-conspirator] Craig
          Curry…. An undercover officer arranged to meet [Mr.]
          Curry at this location to purchase twenty ten[-]milligram
          Oxycodone pills for two-hundred and twenty-five dollars
          ($225.00).    [Appellant] was in the driver seat of the
          vehicle while [Mr.] Curry was in the front passenger seat.
          Officer Meehl observed a transaction between the
          undercover officer and [Mr.] Curry and directly thereafter
          at approximately 11:40 a.m. he took both suspects into
          custody. …

          Upon arrival at the LMTPD Headquarters, [Appellant] was
          secured with a handcuff on one wrist to a bench in the
          seated position in the booking area of the station. At
          approximately 1:13 p.m. [Appellant] was removed from
          this area into the detective interview room in the “Criminal
          Investigative Division” portion of the police station. …

          Officer Meehl, along with Officer Todd Hamski (also of the
          LMTPD) then proceeded to interview [Appellant] regarding
          his arrest and, in particular, the officer asked questions
          “about the sources of where [Appellant] actually obtained
          the narcotics that were sold in this particular transaction.”
          … During this interview, [Appellant] was handcuffed in the
          front. [Appellant] informed the officers that he could read
          and understand the English language.

          [Appellant] was read his Miranda[2] rights from a standard
          Miranda waiver form verbatim. Following the recital of
          each and every entry of the waiver form, [Appellant]
          verbally responded that he understood his rights. … After
          being read the Miranda waiver form and reading the form
          to himself, [Appellant] agreed to speak with the officers.

          [Appellant] indicated that on the date and time in question
          he was taking [Mr.] Curry to view a truck that was for sale
          in the Advance Auto Parts parking lot, although he
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2
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).



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       suspected that [Mr.] Curry was involved in a drug
       transaction. The officers had spoken to [Mr.] Curry prior
       to this interview and, therefore, they confronted
       [Appellant] with [Mr.] Curry’s differing version of events,
       in which he stated that [Appellant] provided him with the
       pills involved in the transaction with the undercover officer
       for fifty dollars ($50) compensation. Upon hearing this,
       [Appellant] told [the] officers he “didn’t have anything else
       to say.”      This concluded the interview, which took
       approximately fifteen (15) minutes.

       Officer Meehl testified that at no point during his time at
       the LMTPD did [Appellant] request any medical assistance.
       Further, [Appellant] was not physically abused or
       threatened during the interview. He was given water upon
       request and used the facilities. [Appellant] did not appear
       under the influence of any drugs or alcohol and the tone of
       the interview was conversational.

       After the interview, Appellant was returned to the booking
       room, approximately thirty (30) feet away from the
       interview room.     [Mr.] Curry was also present in the
       booking room at this time. While [Appellant] was being
       processed, he began to inquire as to what was going to
       happen to him in terms of sentencing and to his wife’s
       truck which he had operated on this date and that was
       then in the custody of police. Officer Meehl testified: “I
       just said to [Appellant] the best thing that he could do is
       cooperate. And I think I again stated, you know, Curry,
       you know, told us exactly what happened and you have
       yet to be honest with us.” Furthermore, Officer Meehl
       informed [Appellant] that he and Officer Hamski (who was
       also present in the booking room) were not prosecutors
       and, therefore, could not make any recommendations as to
       sentence. [Mr.] Curry then directed towards [Appellant]:
       “Listen, we are both in this together, we have to be honest
       and tell them exactly what happened.”         According to
       Officer Meehl, [Mr.] Curry “spoke up on his own,
       nobody…asked him for his input.”

       Upon hearing this, [Appellant] then made inculpatory
       statements admitting the pills were his and that he was
       going to give [Mr.] Curry fifty dollars…for setting up the
       deal. Officer Meehl asked [Appellant] to provide a written

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        statement of these remarks and gave him a pen and the
        standard department statement form. Officer Meehl read
        the statement back to [Appellant] to ensure that it was
        correct and gave him an opportunity to review the
        statement prior to the signing and adoption of it by
        [Appellant].    Appellant’s written statement reads as
        follows, verbatim: “give neighbor a ride to go look at a
        truck. The pills were mind [sic] and Craig set it up. Was
        going him $50. Give him 20 pills.” This series of events
        occurred at approximately 1:45 p.m., less than a half-hour
        after [Appellant] was read his Miranda rights in the
        interview room.

        After [Appellant] wrote his statement out, he awaited his
        video arraignment on the bench in the booking room for
        approximately twenty (20) to thirty (30) minutes until the
        proper paperwork was completed. … [During the video
        arraignment, Magisterial] District Justice Burns (“MDJ”)
        informed [Appellant] that he had the right to remain silent.
        In order to make the determination as to what bail would
        be appropriate, [the MDJ] asked [Appellant] about his
        employment, how long he had been in the community, and
        Officer Meehl’s recommendation on bail. Thereafter, [the
        MDJ] asked [Appellant] if he had “anything else to say”
        before bail was set. Appellant responded that “the reason
        he sold the drugs that day was to pay a bill.”

(Trial Court Opinion, filed April 28, 2015, Exhibit A at 1-6) (footnotes and

internal citations to the record omitted). On March 17, 2014, Appellant filed

a motion to suppress his oral statements to the police and to the MDJ. The

trial court denied the motion on March 18, 2014.       On that same date,

Appellant pled guilty to the charge of driving while operating privilege is

suspended or revoked. Following a one-day trial, a jury convicted Appellant

on March 19, 2014, of PWID and conspiracy. On May 15, 2014, the court

sentenced Appellant to a term of thirty (30) to sixty (60) months’

incarceration for PWID, followed by two (2) years’ probation for conspiracy,

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plus a concurrent term of sixty (60) days’ incarceration for driving while

operating privilege is suspended or revoked. Appellant filed a timely notice

of appeal on June 12, 2014. On June 17, 2014, the court ordered Appellant

to file a concise statement of errors complained of on appeal per Pa.R.A.P.

1925(b). Appellant filed an initial Rule 1925(b) statement on June 27, 2014.

Appellant subsequently filed with this Court a motion for remand to file an

amended Rule 1925(b) statement. This Court granted the motion on April

15, 2015, and Appellant filed an amended Rule 1925(b) statement on April

21, 2015.

      Appellant raises the following issue for our review:

         DID THE [TRIAL] COURT ERR IN FAILING TO SUPPRESS
         APPELLANT’S ORAL AND WRITTEN STATEMENTS AND
         SUBSEQUENT STATEMENT TO THE [MDJ] WHERE THE
         EVIDENCE ESTABLISHED AT SUPPRESSION THAT AFTER
         BEING ADVISED OF HIS MIRANDA RIGHTS AND HAVING
         GIVEN   A   NON-INCULPATORY     ORAL  STATEMENT,
         APPELLANT ASSERTED HIS RIGHT TO REMAIN SILENT
         WHICH WAS NOT HONORED BY POLICE WHO THEN
         INTENTIONALLY ELICITED INCRIMINATING ORAL AND
         WRITTEN STATEMENTS FROM APPELLANT WITHOUT
         AGAIN ADVISING APPELLANT OF HIS RIGHTS TO
         COUNSEL AND TO REMAIN SILENT[?]

(Appellant’s Brief at 7).

      Appellant argues Officer Meehl improperly reopened interrogation of

Appellant after he had invoked his right to remain silent. Appellant contends

Officer Meehl’s remarks encouraging Appellant to “cooperate” were intended

to elicit a confession despite Appellant’s unequivocal termination of a

Mirandized interrogation only thirty minutes earlier.        Appellant claims his

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questions to Officer Meehl—regarding Appellant’s likely sentence and what

would happen to his wife’s car—did not suggest that Appellant wanted to

discuss the facts of the incident again.   Appellant maintains Officer Meehl

nevertheless took the opportunity to persuade Appellant to confess.

Appellant also rejects the trial court’s reasoning that his oral confession was

admissible because he volunteered it after Craig Curry, not the police, had

urged him to do so. Appellant asserts Mr. Curry would not have directed his

comments at Appellant absent Officer Meehl’s initial call for cooperation,

which Mr. Curry simply echoed. Appellant concludes the trial court should

have suppressed his inculpatory statements. We disagree.

      We review the denial of a suppression motion as follows:

         Our standard of review in addressing a challenge to a trial
         court’s denial of a suppression motion is limited to
         determining whether the factual findings are supported by
         the record and whether the legal conclusions drawn from
         those facts are correct.

         [W]e 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 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. Williams, H., 941 A.2d 14, 26-27 (Pa.Super. 2008) (en

banc) (internal citations and quotation marks omitted).

      Statements made during custodial interrogation are presumptively

involuntary, unless the police first inform the accused of his Miranda rights.


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Commonwealth v. DiStefano, 782 A.2d 574 (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

___.   “[T]he 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). Whether a person is in custody depends on “whether the person is

physically denied [his] freedom of action in any significant way or is placed

in a situation in which [he] reasonably believes that [his] freedom of action

or movement is restricted by the interrogation.” Williams, H., supra at 30-

31 (quoting Commonwealth v. Williams, A.C., 539 Pa. 61, 74, 650 A.2d

420, 427 (1994)). “[I]nterrogation includes express questioning as well as

words or actions on the part of police officers that they should have known

were      reasonably   likely   to   elicit   an   incriminating   statement.”

Commonwealth v. Abdul-Salaam, 544 Pa. 514, 532, 678 A.2d 342, 351

(1996).

       “[T]he protective provisions of Miranda prohibit the continued

interrogation of an interviewee in police custody once he…has invoked the

right to remain silent and/or to consult with an attorney.” Commonwealth


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v. Bess, 789 A.2d 757, 762 (Pa.Super. 2002). Nevertheless,

        Subsequent police questioning after the invocation of a
        defendant’s right to remain silent is not a per se violation
        of that right. Rather, the police may attempt to question a
        defendant a second time after the defendant’s initial
        invocation of [his] right to remain silent in order to
        determine if the defendant wishes to speak further to the
        police voluntarily, where the police “scrupulously honor”
        the defendant’s initial invocation of the right to remain
        silent.    The question of whether the police have
        “scrupulously honored” the defendant’s right to remain
        silent focuses on the following considerations: (1) whether
        the defendant was advised of [his] Miranda rights before
        both interrogations; (2) whether the officer conducting the
        first interrogation immediately ceased the questioning
        when the defendant expressed his desire to remain silent;
        and (3) whether the second interrogation occurred after a
        significant time lapse, and whether it was conducted in
        another location by another officer.

Commonwealth v. Russell, 938 A.2d 1082, 1090-91 (Pa.Super. 2007),

appeal denied, 598 Pa. 766, 956 A.2d 434 (2008) (internal citations

omitted).   Accord Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46

L.Ed.2d 313 (1975) (holding admissibility of statements obtained after

suspect in custody has decided to remain silent depends on whether

suspect’s   right   to   cut   off   questioning   was   “scrupulously   honored”).

Additionally, “Where an interviewee elects to give an inculpatory statement

without police interrogation, …the statement is ‘volunteered’ and not subject

to suppression, notwithstanding the prior invocation of rights under

Miranda.”    Bess, supra at 762.         See also Commonwealth v. Bracey,

501 Pa. 356, 461 A.2d 775 (1983) (explaining spontaneously volunteered

statement is admissible notwithstanding prior assertion of constitutional

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rights).

      Instantly, Officers Meehl and Hamski read Appellant his Miranda

rights after they took him into custody and placed him in an interview room

at the police headquarters. Appellant verbally confirmed that he understood

his rights and agreed to speak with the officers.        The officers questioned

Appellant for approximately fifteen minutes. Appellant said he “didn’t have

anything else to say” when the officers confronted him with Mr. Curry’s

statement    incriminating   Appellant.     The   officers   immediately   ceased

questioning Appellant and returned him to the booking room to be

processed. Mr. Curry was also present in the booking room. Appellant then

initiated conversation with Officer Meehl. Appellant asked what was going to

happen to his wife’s truck, which Appellant had been operating when he was

apprehended, and what he could expect in terms of sentencing.              Officer

Meehl responded that he and Officer Hamski were not prosecutors so they

could not make any sentencing recommendations, but the best thing

Appellant could do was cooperate. Officer Meehl added, “Curry, you know,

told us exactly what happened and you have yet to be honest with us.”

Appellant did not respond.     Mr. Curry then told Appellant, “Listen, we are

both in this together, we have to be honest and tell them exactly what

happened.”    At that point, Appellant admitted he supplied the pills sold to

the undercover officer, and had agreed to pay Mr. Curry $50.00 for

arranging the transaction.


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       At the time the police brought Appellant into the booking room, he had

unequivocally invoked his right to remain silent.         Nevertheless, Appellant

voluntarily initiated a new conversation with Officer Meehl. Officer Meehl’s

remarks on the beneficial consequences of cooperation were responsive to

Appellant’s spontaneous inquiry regarding his possible sentence, and they

ended there.       Without any prompting from the officers, Mr. Curry then

encouraged Appellant to tell the truth about the incident.              Appellant

admitted his involvement in the drug deal only when Mr. Curry had urged

him to do so.      The trial court credited Officer Meehl’s testimony that Mr.

Curry spoke up of his own accord. There is no evidence that Mr. Curry was

acting on behalf of the police, or that Officer Meehl knew or should have

known his response to Appellant would lead Mr. Curry to encourage

Appellant to confess. Thus, Appellant’s oral confession to the police was not

the product of a custodial interrogation.          No Miranda violation occurred

because Appellant volunteered that statement. See Bracey, supra; Bess,

supra. Therefore, Appellant’s oral statement to the police was admissible. 3

____________________________________________


3
  We also observe Appellant’s motion to suppress did not specifically object
to the admission of his written statement to the police. See Motion to
Suppress, filed 3/17/14 (referring to “oral statements”).        Therefore,
Appellant waived any challenge to the admission of that statement. See
Pa.R.A.P. 302(a) (stating issues not raised in trial court are waived and
cannot be raised for first time on appeal).

Moreover, the Commonwealth produced overwhelming evidence of
Appellant’s guilt at trial, including the remarkably consistent testimony of
(Footnote Continued Next Page)


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Consequently, Appellant’s subsequent, freely-made incriminating statement

to the MDJ was likewise admissible and not “fruit of the poisonous tree.”

Accordingly, we affirm.

      Judgment of sentence affirmed.




                       _______________________
(Footnote Continued)

three witnesses: (1) Officer Hamski testified that he worked undercover to
arrange a drug deal with Craig Curry in an Advance Auto Parts parking lot;
Appellant drove the SUV into the parking lot with Mr. Curry sitting in the
passenger seat; Mr. Curry exited the SUV and approached Officer Hamski,
who was in a vehicle less than ten feet away; Officer Hamski handed “buy
money” to Mr. Curry, who immediately turned around and gave it to
Appellant; Mr. Curry then gave Officer Hamski a bottle containing twenty
Oxycodone pills; (2) Officer Meehl testified that he conducted surveillance on
the drug transaction between Officer Hamski and Mr. Curry; Officer Meehl
observed Appellant drive the SUV into the parking lot, where Mr. Curry
exited the vehicle and approached Officer Hamski; Officer Hamski signaled
when the transaction was completed, at which point several officers moved
in and arrested Appellant and Mr. Curry; Officer Meehl searched Appellant
and recovered from his pants pocket a bottle containing pills identical to
those supplied by Mr. Curry in the exchange with Officer Hamski; in a
statement to Officer Meehl, Mr. Curry explained he made a deal with
Appellant whereby Mr. Curry would receive $50.00 for arranging the drug
sale and Appellant would keep the remaining $175.00; (3) Mr. Curry
testified that Appellant supplied the Oxycodone pills used in the drug sale;
Appellant agreed to pay Mr. Curry $50.00 for arranging the sale; Appellant
drove Mr. Curry to the parking lot, where Mr. Curry gave the pills to Officer
Hamski in exchange for $225.00; Mr. Curry handed the money to Appellant
after receiving it. Thus, even if the police had induced any of Appellant’s
oral or written statements in violation of Miranda, we would conclude their
admission was harmless error. See Commonwealth v. Snyder, 60 A.3d
165 (Pa.Super. 2013), appeal denied, 620 Pa. 731, 70 A.3d 811 (2013)
(holding erroneous admission of defendant’s incriminating statements was
harmless error in light of overwhelming nature of Commonwealth’s
evidence).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




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