J-S03008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    DARNELL THOMAS,

                             Appellant                   No. 253 EDA 2018


        Appeal from the Judgment of Sentence Entered January 4, 2018
             In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0006648-2016

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                            FILED APRIL 10, 2019

        Appellant, Darnell Thomas, appeals from the judgment of sentence of

6-12 months’ incarceration and a consecutive term of 2 years’ probation,1

imposed following his conviction for carrying a firearm without a license2 and

carrying a firearm on the streets of Philadelphia.3 After careful review, we

affirm on the basis set forth in the trial court’s opinion.

        The trial court set forth a full recitation of the facts of this case in its

Pa.R.A.P. 1925(a) opinion. See TCO at 1-4. Briefly, Appellant was driving a

____________________________________________


1At the sentencing hearing, the trial court immediately paroled Appellant “to
house arrest,” and “granted Appellant’s oral motion to stay his sentence
pending the outcome of this appeal.” Trial Court Opinion (TCO), 4/19/18, at
4.

2   18 Pa.C.S. § 6106.

3   18 Pa.C.S. § 6108.
J-S03008-19



vehicle in front of a public transit bus and impeded the bus’s progress for six

blocks, including when he failed to proceed through green lights at two

intersections.   This caused a shouting match between Appellant and the

passengers and driver of the bus. When Detective Kevin Bradley (then Officer

Bradley) approached the scene, Appellant exited his vehicle and appeared

angry. Detective Bradley observed that Appellant’s eyes were bloodshot, and

he was staggering. Appellant also sounded incoherent to Detective Bradley,

as his replies were not related to the questions he was asked.       Detective

Bradley also noticed that Appellant had three children in the back of his

vehicle.

      Detective Bradley believed that Appellant might engage in a physical

confrontation with the passengers of the bus, although he did not make any

explicit threats to do so. Acting out of concern for his own safety, as well as

the safety of the children and the passengers, Detective Bradley frisked

Appellant for weapons. When he discovered what appeared to him to be an

empty holster on Appellant’s leg, he asked him if he had a weapon. Appellant

first denied that he had a weapon, before admitting that he might have one

in his trunk.    Detective Bradley subsequently searched the trunk and

discovered a handgun. After verifying that Appellant did not have a license

for the firearm, Detective Bradley arrested him.

      Appellant filed a timely suppression motion, and the trial court

conducted a suppression hearing on June 27, 2017. The court denied the

motion to suppress on July 17, 2017. On October 3, 2017, Appellant waived

                                     -2-
J-S03008-19



his right to a jury trial and the court held a stipulated non-jury trial. The court

found Appellant guilty of the aforementioned offenses. On January 4, 2018,

the trial court sentenced Appellant as stated above. Appellant filed a timely

notice of appeal, and a timely, court-ordered Rule 1925(b) statement. The

trial court issued its Rule 1925(a) opinion on April 19, 2018.

        Appellant now presents the following questions for our review:

        1. Did not the lower court err in denying Appellant’s motion to
        suppress physical evidence where Appellant was subjected to
        detention, frisk, and search without adequate suspicion of criminal
        activity or facts leading the police to believe that [he] was armed
        and dangerous?

        2. Did not the lower court err in denying Appellant’s motion to
        suppress physical evidence where [he] was subjected to a
        custodial interrogation without being Mirandized?[4]

Appellant’s Brief at 6.

        After careful consideration of the record, the parties’ briefs, and the well-

reasoned opinion by the Honorable Stella Tsai, we affirm on the basis set forth

in Judge Tsai’s opinion. See TCO at 5-8 (finding that it was reasonable for

Detective Bradley to suspect that Appellant might be dangerous and conclude

it was necessary to conduct a Terry5 frisk for weapons to ensure the safety



____________________________________________


4See Miranda v. Arizona, 384 U.S. 436 (1966) (holding that statements
obtained from defendants during a custodial interrogation, without full
warning of constitutional rights, are inadmissible under the Fifth Amendment).

5   See Terry v. Ohio, 392 U.S. 1 (1968).




                                           -3-
J-S03008-19



of those present);6 and see TCO at 8-11 (finding that Appellant was not

subject to a custodial detention when he made the at-issue statements

because, at that time, Appellant was not transported against his will, restraints

were not used, Detective Bradley had not threatened or used force against

him, and the detention was limited in scope to a brief pat down for weapons).

       Judgment of sentence affirmed.

       Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/19




____________________________________________


6The trial court concluded that Detective Bradley was justified in believing
Appellant might be dangerous based upon the following factors:

    Appellant was engaged in a shouting match with the … [b]us [d]river and
    the passengers and his speech was incoherent; the conflict had dragged
    out on the streets of Philadelphia for several blocks; [Appellant] got out
    of his car without being directed to do so and seemed ready for a fight;
    and the immediate area, while mostly commercial, is well known to
    [Detective] Bradley for its frequency of narcotics transactions, shootings,
    and gun arrests. The presence of three small children in the back seat of
    Appellant’s vehicle only amplified [Detective] Bradley’s concerns about
    safety.

TCO at 7-8.

                                           -4-
                                                                                Circulated 03/29/2019 08:46 AM




         IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                         FIRST JUDICIAL DISTIUCT
                   TRIAL DIVISION - CRIMINAL SECTION

 COMMONWEALTH OF
·PENNSYLVANIA,
     Appellee
                                                                                                   .,,
    DARNELL THOMAS,
                    v.
                                                                                                   -r
        Defendant-Appellant                                                                        rn
                                                                                                   0

    Tsai, J.

               I.   Introduction                         llllllll 11111111111111111
                                                               8098196661
          Defendant-Appellant, Darnell Thomas (hereafter "Appellant" or "Mr. Thomas"),

appeals his judgment of sentence entered on January 19, 2018. Appellant was convicted

of Carrying a Firearm without a License and Carrying a Firearm on the Streets of

Philadelphia (collectively "VUFA").1 This appeal is limited to our order which denies

Mr. Thomas's Omnibus Pre-trial Motion seeking the suppression of physical evidence

and statements made in response to police questioning. For the reasons stated in this

opinion, we respectfully ask that the Supreme Court affirm (1) our order denying

Appellant's Omnibus Pre-trial Motion and (2) AppeJlant's judgment of sentence.



          II.       Factual and Procedural History

          Detective Kevin Bradley is an eleven-year veteran of the Philadelphia Police

Force. At the time of the traffic incident that gives rise to this appeal, Bradley ("Officer

Bradley") was a police officer assigned to 39th District. Subsequent to the events of


1   18 Pa.C.S. § 6106(a)(1), 18 Pa.C.S. § 6108.

                                                  1
 June 25, 2016, Officer Bradley was promoted to detective and assigned to the Northwest

 Detectives. N.T. (Suppression Hearing) 06/27/2017 at pp. 9-10.

        On June 25, 2016 Officer Bradley was on routine patrol on the 1400 block of

West Allegheny Avenue. N.T. (Suppression Hearing) 06/27/2017 at p.10. He wore

plain clothes with a badge around his neck. Id. at p. 23. Although Officer Bradley

described the area as a mix of commercial and residential uses, it is a location where he

has conducted many narcotics surveillances, he has made 50 to 75 arrests--including

five to ten that involved the recovery of guns--and a number of shootings have taken

place. Id. at pp.12-13

       Officer Bradley encountered a maroon Grand Marquis in front of a SEPTA bus

that did not proceed through two consecutive green lights at 1400 West Allegheny

Avenue. N.T. (Suppression Hearing) 06/27/2017 at p.13. Passengers had disembarked

from the bus and were yelling at Appellant, who was the driver of the Grand Marquis.

Id. at pp.14-15. Appellant yelled back at the passengers of the bus. Id. at p.16. The

driver of the SEPTA bus was also yelling at Appellant; she informed Officer Bradley that

the Appellant had impeded the progress of the bus for six blocks. Id. at pp.ig, 25-26.

       Appellant got out of his vehicle without being asked by the police, and appeared

angry to Officer Bradley. N.T. (Suppression Hearing) 06/27/2017 at pp.15-16, 27, 29.

When Officer Bradley spoke with the Appellant, he noticed that the defendant had blood

shot eyes, was incoherent, and appeared to be staggering. It was not normal behavior to

Officer Bradley, who then noticed three young children in the back of the Appellant's

car. Id. at p.16. Officer Bradley began asking Appellant questions, but Appellant's

replies were not related to the questions he was asked. Id. at p.16.




                                            2
       Officer Bradley also considered it unusual that Appellant would be blocking a bus

and yelling at its passengers with three children in the back of his vehicle. N.T.

(Suppression Hearing) 06/27/2017 at p.17. Based on his observations, Officer Bradley

thought that Appellant might engage in a fight with the passengers of the bus. Officer

Bradley acknowledged, however, that Appellant did not make any explicit threats

against the passengers or the driver of the bus. Id. at pp.20-21, 28-29. Due to his

concerns for officer safety and the safety of the other people in the area, including the

children in the Appellant's car, Officer Bradley frisked Appellant for weapons. Id. at

pp.17, 29-31. Officer Bradley did not locate any weapons on Appellant's person but felt

what was immediately apparent to him to be an empty holster on Appel1ant's leg. Id. at
                                                                                ..
pp.17-18, 32.

       Officer Bradley then asked Appellant if he had a weapon. Officer Bradley recalled

that Appellant first denied having a weapon, but then stated that he "might" have a gun

in the trunk as Officer Bradley went to go open the driver's side door. N.T. (Suppression

Hearing) 06/27/2017 at p.17. Officer Bradley acknowledged that this statement had not

been included in his arrest paperwork or that he mentioned this statement during the

preliminary hearing. Id. at p. 33.

       Officer Bradley searched the trunk and located a black Hellcat handgun in a red

backpack, which was open. N.T. (Suppression Hearing) 06/27/2017 at p.34. After he

verified that the Appellant did not have a license to carry this gun, Officer Bradley

placed the Appellant under arrest Id.

      Appellant testified on his own behalf. He explained that he was leaving his

mother's house when he encountered the SEPTA bus at a stop sign. N.T. (Suppression

Hearing) 06/27/2017 at p.38. He said that SEPTA bus driver tried to get in front of him


                                             3
 and then started to curse at him. Id. at p,40. When they arrived at the Broad Street

intersection, Appellant recalled pulling up beside the SEPTA bus and walking over to the

bus driver's window to address the situation. Id. at pp,40-41, 44-45.

       Appellant acknowledged that the light may have turned green while this was

going on. N.T. (Suppression Hearing) 06/27/2017 at p,41. He recalled that the SEPTA

police arrived and was already speaking with the parties when Officer Bradley got

involved. Id. Officer Bradley was outside the car when he placed the Appellant in

handcuffs and pinned him to the back of his vehicle. Id. at pp.az, 49-50. Mr. Thomas

does not recall volunteering any information. Id. at p.43.

       We heard the motion to suppress on June 27, 2017, and held the motion under

advisement. We denied Appellant's motion to suppress on July 17, 2017. On October 3,

2017, Appellant waived his right to a jury trial and proceeded to a stipulated non-jury

trial before the undersigned. Appellant was found guilty of Carrying a Firearm without

a License and Carrying a Firearm on the Streets of Philadelphia; sentencing was

deferred so that a pre-sentence investigation report could be completed. N.T. (Trial)

10/03/2017 at   pp.3-14.

       On January 4, 2018, we sentenced Appe1lant to a term of incarceration of six to

twelve months, with immediate parole to house arrest, foJlowed by two years of

reporting probation, and granted Appellant's oral motion to stay his sentence pending

the outcome of this appeal. Appellant filed a timely notice of appeal on January 12,

2018 and later received an extension to file his concise Statement of Errors.

      Appellant timely filed his Statement of Errors Complained of on Appeal Pursuant

to Pa.R.A.P 1925(b) on April 6, 2018. Therein Appellant raises the following issues for

appellate review:


                                            4
              1.   The Trial Court erred by denying Appellant's pre-trial Motion to
                   Suppress Physical Evidence, namely a firearm.

              2. The Commonwealth failed to establish by specific and articulable
                   facts that Philadelphia Police Detective Kevin Bradley had
                   reasonable suspicion that AppeJlant was armed, dangerous, or
                   carrying a weapon which would justify a frisk or pat-down of
                   AppeJlant's clothing or person.

             3. The Trial Court erred in finding that the frisk was justified by
                reasonable suspicion and therefore not a violation of Appellant's
                Constitutional rights under the Fourth Amendment to the United
                States Constitution or the heightened protections of the
                Pennsylvania State Constitution, Article One, Section Eight,

             4. The Trial Court erred in its failure to suppress the firearm which
                was the fruit of a statement in response to police questioning
                during custodial interrogation before which Miranda warnings
                were required but not given.

             5. The Trial Court erred in even considering Appellant's alleged
                statement as evidence due to the fact that it was nowhere in
                discovery, Counsel for Appellant had no notice of its existence
                prior to the day of the Motion to Suppress, and the first time the
                statement was heard was during direct examination of Detective
                Kevin Bradley.

             6. The statement was allegedly made in response to police
                questioning in violation of the Fifth Amendment to the United
                States Constitution and Article One, Section Nine of the
                Pennsylvania State Constitution and should have also been
                suppressed for these reasons.

Appellant's 1925(b) statement.



      III.   Discussion

             A.      Officer Bradley Had Reasonable Suspicion to Conduct a
                     Frisk of Appellant.

      For purposes of this opinion, we have distilled Appellant's first three issues of his

1925(b) Statement to the following question: Did the suppression court err in findinq




                                            5
 that the frisk that lead to the recovery of the gun was supported by reasonable

suspicion? Our answer is no.

       The Commonwealth bears the burden to establish, by a preponderance of the

evidence, that the evidence at issue was obtained without violating Appellant's rights.

Commonwealth v. Wallace, 42 A.3d 1040, 1047-48 (Pa. 2012). The Fourth Amendment

to the United States Constitution and Article I, Section 8 of the Pennsylvania

Constitution protect citizens from unreasonable searches and seizures at the hands of

the government. Commonwealth v. Chase, 960 A.2d 108, 112-13, 116 (Pa. 2008). A

search conducted without a warrant is presumed to be unreasonable and therefore

constitutionalJy impermissible, unless an established exception applies.

Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000).

       One such exception is a pat-down search for weapons, also known as the Terry

frisk See, e.g., Commonwealth v. Johnson, 86 A.3d 182, 199 (2014) (discussing that

Terry frisks are permissible under both the Fourth Amendment and Article I, Section 8

of the Pennsylvania Constitution); Commonwealth u. Evans, 153 A.3d 323, 327-28 (Pa.

Super. 2016) (listing various exceptions to the warrant requirement, including "the stop

and frisk exception").

       A police officer may conduct a Terry frisk when the officer has reasonable

suspicion "that criminal activity is afoot and that the individual whose suspicious

behavior he is investigating at close range is armed and presently dangerous to the

officer or to others." Commonwealth v. Davis, 102 A.3d 996, 999 (Pa. Super. 2014)

(citations and quotation marks omitted). A Terry stop and frisk is "strictly limited to

that which is necessary for the discovery of weapons that might present a danger to the




                                            6
 officer or those nearby." Commonwealth v. Parker, 957 A.2d 311, 315 (Pa. Super. 2008)

 (citation and quotation marks omitted).

        To review an officer's decision to frisk for weapons, we balance two legitimate

 interests: "that of the citizen to be free from unreasonable searches and seizures; and

 that of the officer to be secure in his personal safety and to prevent harm to others."

 Commonwealth u, Zhahir, 751 A.2d 1153, 1158 (Pa. 2000) (citing Dunaway v. New

 fork, 442 U.S.   200, 209,   99 S.Ct. 2248, 60 L.Ed.2d 824 (1979)). Under Pennsylvania

law, "[a]n overt threat by the suspect or clear showing of a weapon is not required for a

frisk." Commonwealth v. Mack, 953 A.2d 587, 591 (Pa. Super. 2008). See also

Commonwealth v. Shine, 784 A.2d 167 (Pa. Super. 2001) (officer responding to a radio

call involving men with guns had reasonable suspicion to frisk two men involved in an

argument; even though officer did not see any weapons, he was confronted with what he

perceived to be an escalating violent situation and believed that a fight between the IB'o

men was imminent).

       Appellant argues that the Commonwealth did not present specific and articulable

facts to establish that Officer Bradley had a reasonable suspicion that Appellant was

armed and dangerous, thus justifying the intrusion of a frisk for weapons. We

respectfully disagree. We found that Appellant Officer Bradley testified credibly about

the facts and circumstances which accounted for his reasonable suspicion that Appellant

was dangerous and possibly armed: to wit, Appellant was engaged in a shouting match

with the SEPTA Bus Driver and the passengers and his speech was incoherent; the

conflict had dragged out on the streets of Philadelphia for several blocks; Mr. Thomas

got out of his car without being directed to do so and seemed ready for a fight; and the

immediate area, while mostly commercial, is well known to Officer Bradley for its


                                              7
 frequency of narcotics transactions, shootings, and gun arrests. The presence of three

 small children in the back seat of Appellant's vehicle only amplified Officer Bradley's

 concerns about safety.

        Looking at all of these factors and the totality of the circumstances, we find that it

 was reasonable for Officer Bradley to suspect that the Appellant might be dangerous and

conclude it was necessary to conduct a Terry frisk for weapons to ensure the safety of

those present. We note that an officer need not be absolutely certain that the individual

is armed; the issue is whether a reasonably prudent man in the circumstances would be

wan-anted in the belief that his safety or that of others was in danger. Commonwealth

u. Kondash, 808 A.2d 943, 948 (Pa. Super. 2002).



              B. The Appellant Was Not Subjected to a "Custodial"
                 Interrogation that Required Miranda Warnings.

       We have distilled Appellant's first, fourth, and sixth issues to the following

question: Did the suppression court err �nfinding that the Appellant was not subjected

to a custodial interrogation without Miranda warnings? Our answer is again, no.

       Appellant moved to suppress any statements he made to the police on the

grounds that he was questioned by the police while in custody without Miranda

warnings. N.T. (Suppression Hearing) 06/27/2017 at p.8. Appellant further requested

that any evidence obtained as a result of these iui-Mirandized statements must be

suppressed a fruit of the poisonous tree. Id. at pp.S-c.

      As previously stated, Officer Bradley frisked Appellant for weapons. N.T.

(Suppression Hearing) 06/27/2017 at p. 17, 30-31. Officer Bradley did not locate any

weapons on Appellant's person, but did detect an empty holster on Appellant's leg. Id.



                                             8
 at pp.17-18, 32. Based upon this discovery, Officer Bradley asked Appellant if he had

 any weapons on his person or in his vehicle. Id. at pp.is, 32-33. Appellant initially

 denied having a gun in his car, but then stated that there "might" be a gun in the trunk.

 Id. at pp.rd, 33. Officer Bradley then went to search the trunk of Appellant's car, where

 he found a black .38 caliber handgun. Id. at p.19.

       Appellant contends that Officer Bradley should have been read him Miranda

warnings before asking any questions. The issue of Miranda warnings was not directly

addressed in our conclusions oflaw on July 171 20171 but we did determine that Mr.

Thomas was subjected to an investigatory detention. N .T. (Suppression Hearing)

07/17/2017 at p.8. For the reasons set below, we conclude that while Appellant was

subjected to an investigatory detention, he not in custody at the time Officer Bradley

questioned him, and therefore Appellant was not entitled to Miranda warnings.

       Generally, a suspect is to be advised of his right to remain silent and his right to

have an attorney present during questioning when he/she is subject to a custodial

interrogation, i.e., "questioning initiated by law enforcement officers after a person has

been taken into custody or otherwise deprived of hisfreedom of action in any

significant way." Miranda v. Arizona, 384 U.S. 436, 443, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966) (emphasis added). See also Commonwealth v. Dupre, 866 A.2d 1089, 1106 (Pa.

Super. 2005) ("[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.") (citation omitted). However, "[n]ot every detention is

custodial for Miranda purposes." Commonwealth v. Pakacki, 901 A.2d 9831 988 (Pa.

2006). The Pakacki Court concluded that an individual who was patted down for


                                             9
    weapons was subjected to a Terry stop, and that it was not the equivalent of custody

    necessitating the reading of Miranda warnings. Id.2

           Here the police approached Appellant's vehicle while Appellant was involved in a

    heated traffic dispute with the driver and passengers of a SEPTA bus. Based upon his

    observations of Appellant, Officer Bradley decided to conduct a frisk for weapons out of

    concern for his safety and the safety of others around him. When the frisk yielded a

    holster but not a firearm, Officer Bradley began to ask Appellant whether he had a gun

    on his person or in the vehicle. N.T. (Suppression Hearing) 06/27/2017 at pp.id, 32-33.

          On cross-examination, Officer Bradley expressed his belief that Appellant was not

    free to leave during this interaction. N.T. (Suppression Hearing) 06/27/2017 at 32. At

this moment when Officer Bradley was questioning Appellant whether he had a weapon,

however, Appe1lant was not subjected to a deprivation of freedom that was the

functional equivalent of custody that would require the reading of Miranda rights.

Commonwealth v. Murray, 936 A.2d 76, 81 (Pa. Super. 2007); see also Maryland u,

Shatzer, 559 U.S. 98, 113, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010) ("the temporary and

relatively nonthreatening detention involved in a traffic stop or Terry stop does not

constitute Miranda custody.") (citations omitted).

          Appellant was frisked and questioned by Officer Bradley to confirm or dispel his

suspicions, but Appellant was not transported against his will. Officer Bradley did not

use restraints on him, nor did the officer show, threaten or use force against him other




2 Further, "[t]he fact that a police investigation had focused on a particular individual
does not automatically trigger 'custody,' thus requiring Miranda warnings."
Commonwealth v. Schwing, 964 A.2d 8, 12 (Pa. Super. 2008) (emphasis original)
(quoting Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999) (en bane)).


                                              10
     than the short-lived and relatively non-threatening detention necessary for the Terry

     frisk. Having examined the totality of the circumstances, we conclude that Appellant

    was not in custody for Miranda purposes and therefore not entitled to be given

    Miranda warnings. We properly denied his motion to suppress his statements and any

    evidence the police obtained as a result of those statements, to wit, the gun recovered

    from the trunk of Appellant's car.

           As an aside, we note that Appellant has not directly challenged our conclusion

    that the search of the trunk was proper, except as part of his general assertion that we

    erred in not suppressing the firearm and his claim that as the fruit of the poisonous tree

    with respect to his claim that he gave vui-Mirandized statements during a custodial

    detention. Appellant's 1925(b) statement at ,i,i 1, 4. We stand by our finding that once

    Officer Bradley located the holster during the frisk and learned that a weapon might be

    located in the trunk, Officer Bradley had probable cause to search the open, red

backpack in the trunk of AppeJlant's car for the firearm.

          The Supreme Court of Pennsylvania determined in Commonwealth v. Gary that

the prerequisite for conducting a warrantless search of a motor vehicle is "probable

cause to search" and "no exigency beyond the inherent mobility of a motor vehicle is

required." 91 A.3d 102, 138 (Pa. 2014) (plurality).e Appellant's statement to Officer

Bradley that he might have a gun in his trunk, established probable cause for Officer

Bradley to believe that a potential violation of the Uniform Firearms Act, 18 Pa.C.S. §




JWhile Gary was a plurality opinion announcing the judgment of the Supreme Court,
the Superior Court has adopted the holdings of Gary in several of its published
decisions. See Commonwealth v. Green, 168 A.3d 180, 186 (Pa. Super. 2017) (applying
Gary to the review of search of car); Commonwealth v. Freeman, 128 A.3d 1231, 1243
(Pa. Super. 2015); Commonwealth v. Hudson, 92 A.3d 1234, 1241 (Pa. Super. 2014).


                                               11
 6106, had occurred. Under Gary, the inherent mobility of Appellant's vehicle was an

 exigent circumstance that permitted Officer Bradley to open and search the trunk

 without a warrant.



              C. The Suppression Court Did Not Err in Relying on Appellant's
                 Statement to Officer Bradley, Which Had Not Been Disclosed
                 in Discovery.

       In the fifth paragraph of his Statement of Errors, Appellant argues that it was

improper for us to rely on Officer Bradley's testimony regarding any statements that

Appellant made to him during their interaction on June 25, 2016 because those

statements had not previously been disclosed in discovery. The suppression record

reflects that defense counsel did not object to Officer Bradley's testimony about the

statements on the basis that the statement had not previously been disclosed to the

defense in discovery. N.T. (Suppression Hearing) 06/27/2017 at pp.18-19. Instead,

counsel chose to cross-examine Officer Bradley about Appellant's statement there

"might" be a gun in the trunk of his car and test his credibility regarding the omission of

this statement from any of the police reports Officer Bradley had authored. Id. at p.33,

Officer Bradley took responsibility for the omission in a credible fashion and further

admitted that he made no mention of Appellant's statements to him during his

preliminary hearing testimony. Id.

       Pennsylvania Rule of Criminal Procedure 573 governs pre-trial discovery in

criminal cases. The rule provides that, inter alia, inculpatory statements and the

identity of the person to whom it is made are subject to mandatory disclosure by the

Commonwealth when they are: (1) requested by the defendant, (2) material to the case,




                                            12
 and (3) within the possession or control of the prosecutor. Pa.R.Crim.P. 573(B)(1)(b)

 (emphasis added). Rule 573 also imposes a continuing duty to disclose:

               If, prior to or during trial, either party discovers additional evidence
              or material previously requested or ordered to be disclosed by it,
              which is subject to discovery or inspection under this rule, or the
              identity of an additional witness or witnesses, such party shaU
              promptly notify the opposing party or the court of the additional
              evidence, material, or witness.

Pa.R.Crim.P. 573(D). However, "[w]here the evidence is equally accessible or

inaccessible to both the Commonwealth and the defense, the defense cannot use the

discovery rules against the Commonwealth for its failure to produce the evidence."

Commonwealth v. Miller, 172 A.3d 632, 647 (Pa. Super. 2017) (quoting Commonwealth

v. Dent, 837 A.2d 571, 585 (Pa. Super. 2003)). See also Commonwealth v. Sullivan, 820

A.2d 795, 801-804 (Pa. Super. 2003) (finding that the Commonwealth had not

committed a discovery violation where state trooper testified for the first time at trial

about defendant's admission to cocking the gun used in crime because the

Commonwealth had not known about this inculpatory statement).

       In Miller, a corrections officer had not included an inculpatory statement that

defendant had made to him in his official report, and first told the prosecutor about the

statement during the trial. Id. The Superior Court, therefore, reasoned that the

inculpatory statement "was equally inaccessible to both the Commonwealth and the

defense" and noted the Commonwealth complied with its continuing duty to disclose by

immediately informing defense counsel of the inculpatory statement. Id. The Superior




                                             13
 Court held Miller could not use the discovery rules to preclude the Commonwealth from

 admitting the inculpatory statement. Id. at 647-48.4

        Similar to Sullivan and Miller, Officer Bradley did not document Appellant's

 statement that there might be a gun in the trunk of his vehicle in his police report. Nor

 did he testify about it on a prior occasion. There is nothing in the record to suggest that

 the attorney for the Commonwealth knew about the inculpatory statement prior to the

 presentation of Officer Brady's testimony. Until the time of its disclosure, as in Sullivan

and Miller1 the statement was equally accessible or inaccessible to both the

Commonwealth and the defense and thus not subject to suppression as a remedy under

Rule 573 of the Rules of Criminal Procedure.

       Moreover, once the inculpatory statement was disclosed at the suppression

hearing, Appellant's counsel did not object or raise the alleged discovery violation.

Rather than object, Appel1ant used the statement on cross-examination to confront

Officer Bradley about the omission to challenge the officer's credibility.

       Appellant has not demonstrated that our decision to admit Officer Bradley's

testimony was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-

will. Without such evidence, our admission of Appellant's statement was proper.

Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015) (citations omitted) ("the

admissibility of evidence is a matter for the discretion of the trial court and a ruling

thereon will be reversed on appeal only upon a showing that the trial court committed




" Defense counsel in Miller declined an invitation to seek suppression of the inculpatory
statement, electing to cross-examine the corrections officer "extensively about his
untimely disclosure and omission within the report as part of his broader attempt to
undermine (the correction officer's) credibility." 172 A.3d at 647.


                                             14
an abuse of discretion ... a result of manifest unreasonableness, or partiality, prejudice,

bias, or ill-will, or such lack of support so as to be clearly erroneous'}



       IV.    Conclusion

       For the reasons discussed supra, we respectfully request that our order denying

Appellant's motion to suppress and Appellant's judgment of sentence be affirmed.




                                           BY THE COURT:



                                                  /ktt                         Stella Tsai, J.

                                                                              April 19, 2018




                                             15
        IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                        FIRST JUDICIAL DISTRICT
                  TRIAL DIVISION - CRIMINAL SECTION

 COMMONWEALTH OF                                        CP-51-CR-0006648-2016
 PENNSYLVANIA,
     Appellee

                v.
 DARNELL THOMAS,                                        253 EDA2018
 Defendant-Appellant


                                    PROOF OF SERVICE

       I hereby certify that I am this day serving the foregoing Order upon the person(s),
and in the manner indicated below, which service satisfies the requirements of Pa. R.
Crim. P. 114:

Larry Goode, Esq.
Philadelphia District Attorney's Office, Appeals Unit
3 South Penn Square
Philadelphia, PA 19107
Type of Service: Interoffice Mail

Jules Norris Szanto, Esq.
1700 Market St. Suite 1005
Philadelphia, PA 19103
Type of Service: First Class Mail
                                                                     �Chu,&q.
Date:   i-tj /q / J.-() f $
                I
                                                     �/
                                                  Law Clerk to the Honorable Stella Tsai
