J-A18003-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 TONY MCDONOUGH                            :
                                           :
                    Appellant              :   No. 768 WDA 2019

       Appeal from the Judgment of Sentence Entered March 19, 2019
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0004495-2017


BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 21, 2020

      Appellant, Tony McDonough, appeals nunc pro tunc from the judgment

of sentence of 5 to 10 years’ incarceration, followed by 5 years’ probation,

imposed after a jury convicted him of possession of a firearm by a person

prohibited, 18 Pa.C.S. § 6105(a)(1); carrying a firearm without a license, 18

Pa.C.S. § 6106(a)(1); possessing a controlled substance, 35 P.S. § 780-

113(a)(16); and possessing drug paraphernalia, 35 P.S. § 780-113(a)(32).

Appellant solely challenges the court’s denial of his pretrial motion to suppress

the firearm recovered during a warrantless search of his vehicle. We affirm.

      The trial court summarized the pertinent facts and procedural history of

this case, as follows:

             [Appellant] was arrested and charged as set forth above
      after he was found in possession of a firearm and drugs by officers
      conducting a routine patrol who approached an illegally parked
      vehicle from which a passenger fled as they approached it.
      [Appellant], who was in the driver’s seat, made movements within
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        the vehicle as they approached[,] which [led] the officers to have
        reasonable suspicion that he had possession of a firearm or
        contraband. The officers ordered [Appellant] from the vehicle and
        they then observed drugs in plain view. After [Appellant] was
        placed in custody[,] he was asked if there was anything else in
        the car[,] and [Appellant] informed the officers that there was a
        gun under the front seat. [Appellant] filed a [m]otion [t]o
        [s]uppress[,] alleging that there was neither reasonable suspicion
        or probable cause to order him from the vehicle and that he was
        not given any Miranda[1] warnings before being questioned by
        the officers.

               At the suppression hearing on October 3, 2017[,] the
        Commonwealth called [City of Pittsburgh Police] Officer Jenny
        Monteleone[,] who testified that on February 8, 2017[,] she and
        her partner, Officer Messer, were on direct patrol in the Marshall-
        Shadeland area of … Pittsburgh. She testified that direct patrol is
        a patrol being done as a result of recent complaints of ongoing
        issues with narcotics and firearms in the area. At that time[,] they
        were patrolling in an unmarked vehicle in plain clothes. Officer
        Monteleone testified that although the vehicle is unmarked[,] it is
        used on a daily basis for patrol in that area and that individuals in
        the neighborhood are familiar with the vehicle. Officer Monteleone
        testified they were traveling on Fleming Avenue when they
        observed a vehicle to their left with two males in the vehicle[,]
        which was parked facing the wrong direction on Fleming Avenue.
        [Appellant] was sitting in the driver’s seat and another individual
        was in the passenger seat as they drove by. As they passed the
        vehicle[,] the passenger appeared to recognize them as police and
        immediately exited and ran from the vehicle.[2] As the officers
        stopped and turned their vehicle to approach the parked vehicle[,]
____________________________________________


1   Miranda v. Arizona, 384 U.S. 436 (1966).
2 We note that defense counsel objected to Officer Monteleone’s testimony
that the passenger appeared to recognize the officers. N.T. Hearing, 10/3/17,
at 6. In response, the court did not explicitly sustain that objection, but
impliedly did so by directing the officer to only testify about what she
observed. Id. at 7. Nonetheless, the record supports the court’s factual
determination that Appellant’s passenger appeared to recognize the car as a
police vehicle, as Officer Monteleone testified that the unmarked police car
she was driving that day is used regularly in patrolling that area, and the
passenger fled upon seeing the car. We also note that Appellant does not
raise any challenge to this factual finding by the court on appeal.

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      Officer Monteleone was able to observe [Appellant] making
      “shoving motions underneath his seat.” Officer Messer pursed the
      passenger and Officer Monteleone approached [Appellant,] who
      was still seated in the vehicle. Although she could not see
      [Appellant]’s hands[,] she believed, based on her training and
      experience and the shoving motions that she had observed[,] that
      he may be armed. Officer Monteleone therefore drew her weapon
      and, while identifying herself as police and displaying her badge,
      ordered him to keep his hands on the steering wheel. She testified
      that [Appellant] kept his hands on the wheel and did not make
      any further movements until back up arrived and he was removed
      from the vehicle. When [Appellant] exited the vehicle[,] she
      observed a bundle of what appeared to be heroin in plain view on
      the driver’s seat where [Appellant] had been sitting. [Appellant]
      was detained and patted down for weapons[,] at which time he
      informed the officers that he had a needle in his pocket. As
      [Appellant] was moved back towards the vehicle[,] Officer Messer
      asked [Appellant] if there was anything else in the vehicle and
      [Appellant] stated there was a gun under his seat[,] which was
      retrieved.    On   cross[-]examination[,]    Officer   Monteleone
      acknowledged that until the passenger fled the vehicle[,] they had
      not observed any criminal activity other than the illegally parked
      vehicle. However, she reiterated that[,] based on her training and
      experience[,] she believed that [Appellant’s] shoving motions
      were either an attempt to conceal drugs[,] or [that] he may
      [have] be[en] reaching for a weapon. After consideration of the
      testimony, the [m]otion to [s]uppress was denied.

Trial Court Opinion (TCO), 12/11/19, at 2-4.

      Appellant proceeded to a jury trial and was ultimately convicted of the

above-stated offenses.    On March 19, 2019, he was sentenced to the

aggregate term set forth above. He did not file a timely appeal, but his right

to appeal was subsequently reinstated after he filed a petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant then filed

the present appeal, and he complied with the trial court’s order to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Herein, he states one issue for our review:

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     I. Did the trial court err in denying the motion to suppress the gun
     found under the driver’s seat of the vehicle in which … Appellant
     was seated[,] where the stop in the instant matter rose to the
     level of a custodial detention; the police lacked probable cause to
     conduct a warrantless search of the vehicle prior to interrogating
     … Appellant without advising him of his Miranda rights; and the
     Commonwealth did not prove that the gun would have been
     inevitably discovered?

Appellant’s Brief at 4 (unnecessary capitalization and emphasis omitted).

     Preliminarily, we note our well-settled standard of review:

     An appellate court’s standard of review in addressing a challenge
     to the denial of a suppression motion is limited to determining
     whether the suppression court’s factual findings are supported by
     the record and whether the legal conclusions drawn from those
     facts are correct. Because the Commonwealth prevailed before
     the suppression court, we may consider only the evidence of the
     Commonwealth and so much of the evidence for the defense as
     remains uncontradicted when read in the context of the record as
     a whole. Where the suppression court’s factual findings are
     supported by the record, the appellate court is bound by those
     findings and may reverse only if the court’s legal conclusions are
     erroneous. Where ... the appeal of the determination of the
     suppression court turns on allegations of legal error, the
     suppression court’s legal conclusions are not binding on an
     appellate court, whose duty it is to determine if the suppression
     court properly applied the law to the facts. Thus, the conclusions
     of law of the courts below are subject to plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa. Super. 2015) (citation

and brackets omitted).

     In this case, Appellant contends that the gun found in his vehicle should

have been suppressed, as it was discovered pursuant to a warrantless search

that was not supported by probable cause. In support, he argues that he was

under arrest and subjected to a custodial interrogation when Officer Messer

asked him if there was anything in his vehicle. Because Appellant was not



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provided with Miranda warnings, he insists that his incriminating response to

the officer’s question, in which he admitted that there was a gun under the

driver’s seat, was made in violation of his constitutional rights. Without his

admission regarding the gun, Appellant maintains that the officers lacked

probable cause to conduct the warrantless search of his vehicle. Appellant

also argues that the gun would not have been inevitably discovered by lawful

means, as the Commonwealth failed “to prove that the City of Pittsburgh had

a uniformly-applied, reasonable policy regarding the towing of vehicles and

inventory searches to insure that they are not applied in a discriminatory or

arbitrary way.” Appellant’s Brief at 16-17. Accordingly, he concludes that the

gun was discovered illegally, and the court should have suppressed that

evidence.

      Notably, the trial court determined that Appellant was under arrest at

the time he made the at-issue admission about the gun being in his vehicle

and, therefore, Miranda warnings should have been provided. See TCO at

4. We agree.

      In Miranda, the United States Supreme Court held that a
      confession given during custodial interrogation is presumptively
      involuntary, unless the accused is first advised of his right against
      self-incrimination. Miranda warnings are not required where the
      interrogation is not custodial. A person is in custody for the
      purposes of a custodial interrogation when he is physically
      deprived of his freedom in any significant way or is placed in a
      situation in which he reasonably believes that his freedom of
      action or movement is restricted by the interrogation. Police
      detentions become custodial when under the totality of the
      circumstances the conditions and/or duration of the detention



                                      -5-
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      become so coercive as to become the functional equivalent of
      arrest.

         Among the factors the court utilizes in determining, under
         the totality of the circumstances, whether the detention
         became so coercive as to constitute the functional
         equivalent of arrest are: the basis for the detention; the
         location; whether the suspect was transported against his
         will; how far, and why; whether restraints were used; the
         show, threat or use of force; and the methods of
         investigation used to confirm or dispel suspicions.

Commonwealth v. DiStefano, 782 A.2d 574, 579–80 (Pa. Super. 2001)

(cleaned up).

      In the case sub judice, it is clear that Appellant was in custody when he

told Officer Messer that there was a gun in his vehicle. At that point, Appellant

had been held at gunpoint, removed from his vehicle, detained, and patted

down. Therefore, Appellant was physically restrained to the extent that his

freedom was unquestionably restricted at the point when Officer Messer

questioned him about the contents of his vehicle. As such, we concur with the

trial court that Miranda warnings should have been provided.

      Nevertheless, the search of Appellant’s vehicle was lawful. First, as the

Commonwealth observes, “the fruit of the poisonous tree doctrine does not

extend   to   physical   evidence   recovered   due   to   Miranda   violations.”

Commonwealth’s Brief at 7 (quoting Commonwealth v. Jones, 193 A.3d

957, 965 (Pa. Super. 2018)). Thus, while Appellant’s statement about the

gun was suppressible based on the Miranda violation, the gun recovered from

his vehicle was not suppressible solely because of that police error.




                                      -6-
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     Moreover, we disagree with Appellant that, without his incriminating

statement, the police lacked probable cause to conduct the warrantless search

of his car. This Court has explained:

     [P]olice may search an automobile without a warrant so long as
     they have probable cause to do so, as an automobile search “does
     not require any exigency beyond the inherent mobility of a motor
     vehicle.” Commonwealth v. Gary, … 91 A.3d 102, 104 ([Pa.]
     2014). Our Supreme Court has concluded that Article I, Section
     8 of the Pennsylvania Constitution is co-extensive with the Fourth
     Amendment to the United States Constitution, which has long
     supported a warrant exception for automobile searches so long as
     probable cause to search exists. See id. at 108–13.

     With respect to probable cause to search, our Supreme Court
     instructs us that:

        [P]robable cause exists where the facts and circumstances
        within the officers’ knowledge are sufficient to warrant a
        person of reasonable caution in the belief that an offense
        has been or is being committed. With respect to probable
        cause, this [C]ourt adopted a “totality of the circumstances”
        analysis in Commonwealth v. Gray, … 503 A.2d 921, 926
        ([Pa.] 1985) (relying on Illinois v. Gates, 462 U.S. 213 …
        (1983)). The totality of the circumstances test dictates that
        we consider all relevant facts, when deciding whether [the
        officer had] probable cause.

Commonwealth v. Harris, 176 A.3d 1009, 1022–23 (Pa. Super. 2017)

(quoting Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999) (some citations

and quotation marks omitted)).

     In the present case, Officer Monteleone testified that Appellant’s vehicle

was parked illegally in an area where there had been recent complaints about

narcotics and firearms. See N.T. Hearing at 3, 6. As the officers approached

the car, the passenger in the vehicle ran, and Appellant was seen making

“shoving motions underneath his seat.”     Id. at 7, 8.   After Appellant was

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J-A18003-20



removed from the vehicle, Officer Monteleone observed what appeared to be

a bundle of heroin in plain view in the car. Id. at 9. The trial court found this

testimony credible. See TCO at 5. Based thereon, we discern no legal error

in the court’s conclusion that Officer Monteleone had probable cause to believe

that a crime was occurring. Therefore, the search of Appellant’s vehicle was

lawful, even without considering his illegally-obtained admission that a gun

was in the car. Accordingly, the trial court did not err in denying Appellant’s

motion to suppress.3

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2020




____________________________________________


3Given this disposition, we need not address whether the gun would have
been inevitably discovered by other lawful means.

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