J-A28028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

IZEK TUGGLE

                            Appellant                 No. 218 EDA 2014


        Appeal from the Judgment of Sentence of December 16, 2013
           In the Court of Common Pleas of Montgomery County
             Criminal Division at No.: CP-46-CR-0006944-2011


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                        FILED NOVEMBER 21, 2014

       Izek Eugene Tuggle appeals his December 16, 2013 judgment of

sentence, which was imposed following a nonjury trial that resulted in

Tuggle being found guilty of: person not to possess a firearm, attempting to

obtain a controlled substance (Percocet) by fraud, manufacture of a

controlled substance (marijuana), possession of marijuana with intent to

deliver, and possession of Percocet with intent to deliver.1 We affirm.

       In 2011, Tuggle was the target of an investigation into the distribution

of controlled substances and usage of fraudulent medical prescriptions in

Montgomery County.          The Montgomery County Detective Bureau gathered

____________________________________________


1
     See 18 Pa.C.S. §§ 6105(a)(1), and 901 (35 P.S. § 780-113(a)(12));
and 35 P.S. § 780-113(a)(30), respectively.
J-A28028-14



information about Tuggle through confidential informants, reports from other

police departments, surveillance, and controlled purchases of controlled

substances. Based upon the probable cause established by this information,

police applied for and received a search warrant for Tuggle’s residence on

August 18, 2011. Upon the execution of that warrant and the recovery of

evidence obtained therefrom, Tuggle was arrested and charged with, inter

alia, the above-referenced crimes. Prior to his trial, Tuggle filed a motion to

suppress a statement that he provided after his arrest, and the trial court

held a hearing on Tuggle’s motion on July 15, 2013.

      The trial court has summarized the relevant facts and detailed the

testimony provided at Tuggle’s suppression hearing as follows:

      During the course of [Tuggle’s] suppression hearing, Detective
      [James] Vinter testified that, on August 19, 2011, at
      approximately 6:20 a.m., he participated in the execution of a
      search warrant at [Tuggle’s] apartment on Corson Street in
      Norristown, Montgomery County, Pennsylvania. Various items
      were discovered during this search, including:       Percocet,
      marijuana, blank prescription pads, and a handgun. [Tuggle]
      was immediately taken into custody and was transported to the
      headquarters of the Montgomery County Detectives, arriving
      there at approximately 8:30 a.m., and was taken to a “holding
      facility” within the building.

      Detective Vinter testified that, at some point—either at the
      Corson Street apartment or in the holding facility—he engaged
      [Tuggle] in a very brief conversation, during the course of which
      he asked [Tuggle] if he wanted to cooperate and give a
      statement. The detective testified that [Tuggle] replied that he
      did want to make a statement. The detective described [Tuggle]
      as being “very cooperative at that time.”




                                     -2-
J-A28028-14


       On cross-examination by [defense counsel], Detective Vinter
       readily acknowledged that he had not informed [Tuggle] of his
       rights under Miranda v. Arizona[2] prior to asking [Tuggle] if he
       was willing to cooperate with the police. Detective Vinter further
       acknowledged that, if the conversation had taken place in the
       holding facility at the Montgomery County Detectives building,
       [Tuggle] would have been handcuffed and “secured” at the time
       of the conversation.

       Asked by [defense counsel] if his conversation with [Tuggle] had
       “included your concern” over a handgun that was discovered
       during the search of [Tuggle’s] apartment, Detective Vinter
       testified that he could not recall having any discussion with
       [Tuggle] concerning the handgun. The detective testified:

          I don’t know if I ever said anything about a handgun, Your
          Honor. I know I didn’t ask him anything about what was
          found in his residence, other than asking him if he would
          supply a statement and cooperate. He said he would. But
          what was found in the house I never asked him.

       As the [trial court] stated on the record in denying [Tuggle’s]
       motion to suppress, [the] court fully credited Detective Vinter’s
       testimony in its entirety.

       Detective [Michael] Reynolds testified that he took [Tuggle’s]
       statement in an interview room in the Montgomery County
       Detectives building. The detective testified that, prior to taking
       the statement, he read [Tuggle] his rights under Miranda v.
       Arizona, and [Tuggle] then executed a written waiver of those
       rights. The waiver on its face explicitly advised [Tuggle] that:
       he had the right to remain silent and that anything he said could
       and would be used against him; that he had a right to consult a
       lawyer before being questioned and to have a lawyer present
       during questioning; that if he could not afford a lawyer, a lawyer
       would be provided to him without cost prior to questioning; and
       that he had the right to refuse to answer any questions and to
       stop talking at any time.

       After [Tuggle] executed the waiver, Detective Reynolds
       conducted an interview of [Tuggle], beginning at 11:00 a.m. and
____________________________________________


2
       384 U.S. 436 (1966).



                                           -3-
J-A28028-14


     ending at 11:50 a.m. The detective testified that [Tuggle] was
     cooperative, and that at no point did the conversation become
     contentious or heated, and at no point did [Tuggle] ask to stop
     the interview or ask for a lawyer.

     Detective Reynolds then typed [Tuggle’s] statement and gave it
     to him to review and make any changes he wanted. A copy of
     the typed statement was entered into evidence at [Tuggle’s]
     suppression hearing.     The statement on its face contains
     [Tuggle’s] explicit acknowledgment that no threats or promises
     had been made to him to induce him to talk to Detective
     Reynolds, and [Tuggle’s] explicit acknowledgment that his
     decision to provide a statement . . . was a product of his own
     free will.

     As the [trial court] stated on the record, [the] court fully credited
     the testimony of Detective Reynolds in its entirety.

     [Tuggle] testified on his own behalf at the suppression hearing.
     [Tuggle’s] testimony did not contradict, in any material way, the
     testimony of Detective Reynolds. [Tuggle’s] testimony was,
     however, at odds with that of Detective Vinter in regard to the
     conversation between the two men during which [Tuggle] agreed
     to provide a statement to the police.

     In contrast to Detective Vinter, [Tuggle] testified:

        That conversation was mainly about the firearm that was
        recovered in the apartment, more or less. Questioning me
        about was anything on it, which would refer to like it being
        a dirty gun or I guess a body or so being on it.

     [Tuggle] further testified:

        I was telling him that I’m not sure if anything’s on it. I
        was telling him it’s not my firearm. But I was just mostly
        like a little timid because he was like more persistent with
        trying to like more or less put it on me or so, or what I
        would say would be to try to scare me.

     [Tuggle] stated:

        I felt intimidated because I wasn’t sure. I had no idea if
        anything would come up on the firearm.         So I was
        intimidated. I was kind of scared.



                                     -4-
J-A28028-14


      [Tuggle] testified that he was concerned that the handgun—
      which he denied owning—might have been used in a crime that
      the police would try to “pin it on me” because the gun was
      discovered during a search of his residence. [Tuggle] testified
      that this concern “played a major role” in his decision to waive
      his Miranda rights and give a statement, testifying that he
      thought that “if I give him a statement then maybe he would
      stop asking me about the firearm or so.”

      On cross-examination by the attorney for the Commonwealth,
      [Tuggle] testified that no threats or promises were made to him
      to induce him to make a statement, but he asserted that he
      nonetheless felt “intimidated.” Asked to explain exactly what
      Detective Vinter said that made him feel intimidated, [Tuggle]
      testified:

         He said that I better hope nothing came back on the
         firearm. He intimidated me by saying that a lot of things
         that’s going on in Norristown as far as the unresolved
         murders or pertaining to crimes, things of that nature, that
         if something’s on that firearm then it will reflect on me.
         That’s what was intimidating to me.

      Asked directly if Detective Vinter had told him that giving a
      statement would help him, [Tuggle] replied: “No.”

Trial Court Opinion (“T.C.O.”), 3/11/2014, at 2-6 (citations to notes of

testimony omitted; some punctuation modified).

      In the statement that Tuggle provided to Detective Reynolds, Tuggle

admitted to stealing blank prescription forms, to filling out these prescription

forms and forging doctors’ signatures, to growing marijuana plants, and to

selling marijuana and Percocet.    Tuggle denied ownership of the handgun,

however, and stated that it belonged to a woman that left it in his

apartment.

      In his motion, Tuggle sought to suppress the statement that he

provided during the interview with Detective Reynolds.         The trial court


                                     -5-
J-A28028-14



denied   Tuggle’s   suppression   motion   because   the   court   credited   the

Detectives’ testimony over that provided by Tuggle and determined that

Tuggle’s statement had been preceded by a knowing, voluntary, and

intelligent waiver of his Miranda rights. T.C.O. at 8, 9. On July 16, 2013,

Tuggle proceeded to a nonjury trial, and he was convicted on the following

day. On December 16, 2013, the trial court conducted a sentencing hearing,

after which it imposed an aggregate sentence of not less than seven and one

half years nor more than fifteen years’ incarceration, to be followed by a two

year period of probation.

      Tuggle filed a timely notice of appeal on January 15, 2014.             On

January 21, 2014, the trial court directed Tuggle to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), to be

served upon the court no later than February 11, 2014. Tuggle filed a timely

concise statement on February 7, 2014. On March 11, 2014, the trial court

issued an opinion pursuant to Pa.R.A.P. 1925(a).

      Tuggle raises the following issue for our review:

      Whether the trial court erred in denying [Tuggle’s] Motion to
      Suppress his statements in that such statements were not
      preceded by a knowing, intelligent, and voluntary waiver of
      Miranda rights as the alleged waiver was preceded by coercive
      questioning by Detective James Vinter of [Tuggle] relating to the
      gun found in the premises and wanting him to cooperate with
      law enforcement authorities, which tainted the voluntariness of
      the subsequent Miranda waiver?

Brief for Tuggle at 4.




                                     -6-
J-A28028-14



      When reviewing a trial court’s order denying a suppression motion, our

standard of review is well-settled:

      In reviewing a suppression ruling, we are bound by the
      suppression court’s factual findings, unless they are without
      support in the record. We may reverse the legal conclusions
      reached by the suppression court, however, if they are in error.
      Thus, our standard of review of the legal conclusions reached by
      the suppression court is de novo. Where, as here, the defendant
      is appealing the ruling of the suppression court, we consider only
      the evidence of the prosecution, and so much of the evidence for
      the defense which remains uncontradicted when fairly read in
      the context of the [suppression] record.

Commonwealth v. Galvin, 985 A.2d 783, 795 (Pa. 2009) (citations

omitted). Additionally, “[i]t is within the suppression court’s sole province as

fact finder to pass on the credibility of witnesses and the weight to be given

their testimony.”   Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa.

Super. 2013) (citation omitted). With regard to our scope of review in the

context of an order denying a suppression motion, we are limited to

reviewing only the evidence that was presented at the suppression hearing,

and may not consider testimony adduced at trial. See In re L.J., 79 A.3d

1073, 1083–87 (Pa. 2013).

      Tuggle argues that, although he executed a waiver of his Miranda

rights prior to the interview with Detective Reynolds, his waiver was not

knowing, voluntary, and intelligent because it was influenced by Detective

Vinter’s allegedly coercive questioning.     Specifically, Tuggle asserts that

Detective Vinter questioned him about the firearm that was discovered in his

apartment, and that the detective intimidated him by implying that Tuggle

                                      -7-
J-A28028-14



may be implicated in any crimes in which the firearm was previously used.

Brief for Tuggle at 22.        Detective Vinter contradicted Tuggle’s testimony,

asserting that he only asked Tuggle if he was willing to cooperate and

provide a statement, and that he did not question Tuggle about anything

that was found in the apartment. On review of a ruling denying suppression,

we consider only the evidence of the prosecution, and so much of the

evidence for the defense which remains uncontradicted when fairly read in

the context of the entire record.         Galvin, 985 A.2d at 795.         As Tuggle’s

testimony was contradicted at the suppression hearing, we may not consider

it on appellate review.

      The trial court fully credited Detective Vinter’s testimony, and found

Tuggle’s testimony to be incredible and unpersuasive. T.C.O. at 8. “As we

believe   that   credibility    at   a   suppression   hearing   is   an    important

determination best resolved through the court’s personal observations, we

will not reverse a suppression court’s assessment of credibility absent clear

and manifest error.” Commonwealth v. Camacho, 625 A.2d 1242, 1245

(Pa. Super. 1993). The record provides us no reason to believe that the trial

court committed a clear and manifest error in making its credibility

determinations.     Thus, even if we are to consider Tuggle’s testimony

concerning his interaction with Detective Vinter, we are bound by the trial

court’s credibility determinations.

      While our standard of review is highly deferential with respect to the

suppression court’s factual findings and credibility determinations, we afford

                                          -8-
J-A28028-14



no deference to the suppression court’s legal conclusions, and review such

conclusions de novo. In re L.J., 79 A.3d at 1080 n.6. With regard to the

validity of a waiver of Miranda rights, our Supreme Court has described the

law of our Commonwealth as follows:

     In determining whether a defendant’s waiver of his Miranda
     rights is valid, a trial court must consider: (1) whether the
     waiver was voluntary, in the sense that the waiver was not the
     result of governmental pressure; and (2) whether the waiver
     was knowing and intelligent, in the sense that it was made with
     full comprehension of both the nature of the right being
     abandoned and the consequence of that choice.                The
     Commonwealth bears the burden of establishing that a
     defendant knowingly and voluntarily waived his Miranda rights.
     Factors to be considered in determining whether a waiver is valid
     and a confession is voluntary include: the duration and means of
     interrogation; the defendant’s physical and psychological state;
     the conditions attendant to the detention; the attitude exhibited
     by the police during the interrogation; and any other facts which
     may serve to drain one’s powers of resistance to suggestion and
     coercion.

Commonwealth v. Patterson, 91 A.3d 55, 76 (Pa. 2014) (citations

omitted).

     Tuggle was apprised fully of his Miranda rights before his interview

with Detective Reynolds, and he signed a waiver form, which indicated that

he was aware of his rights and was willing to give a voluntary statement.

Tuggle does not allege that Detective Reynolds coerced him, but rather that

his prior interaction with Detective Vinter “intimidated” him.     Notes of

Testimony, Suppression Hearing, (“N.T.”), 7/15/2013, at 66.       As to the

duration of this alleged interaction with Detective Vinter, Tuggle testified

that it was approximately five minutes. Id. at 65. Tuggle testified that he

                                   -9-
J-A28028-14



was interviewed in a room that the detectives called a “holding room.” Id.

at 59.     While the record does not provide a detailed description of the

“holding room,” Tuggle did not testify that the room itself was particularly

intimidating or oppressive.

      Tuggle     noted   that     he    had   been      consuming     marijuana     from

approximately 2:30 a.m. until 5:00 a.m. on the morning of his arrest. N.T.

at 67. The interview with Detective Reynolds during which Tuggle executed

the waiver of his Miranda rights began at 11:00 a.m., approximately six

hours after he had stopped smoking marijuana. While the fact that Tuggle

had consumed marijuana prior to executing the waiver is relevant to

Tuggle’s physical and psychological state, Tuggle testified that, at the time

that he gave the statement to Detective Reynolds, he was not impaired to a

degree that would prevent him from giving a statement. Id. at 69.

      The most pertinent factor to be considered in determining whether

Tuggle’s waiver is valid is the attitude exhibited by the police during the

interrogation, because Tuggle’s argument is premised upon the alleged

intimidation that he felt after interacting with Detective Vinter. However, as

we   discussed    above,     Tuggle’s     testimony     about   the   interaction   was

contradicted by Detective Vinter’s testimony.            Furthermore, the trial court

appropriately    exercised      its   discretion   in   crediting   Detective   Vinter’s

testimony over Tuggle’s—a determination that we will not disturb on appeal.

      The trial court summarized the basis for its legal conclusions as

follows:

                                          - 10 -
J-A28028-14


      Stated directly, this court heard no evidence indicating that any
      improper coercive or intimidating tactics were employed to
      induce the defendant to waive his Miranda rights and provide
      his statement to Detective Reynolds. The evidence this court
      heard rather supports the determination that the defendant’s
      waiver of Miranda rights and his statement to the detective
      were voluntary, and a product of the defendant’s own free will.

N.T. at 101. We have analyzed the relevant factors, and have determined

that Tuggle’s waiver of his Miranda rights was voluntary, knowing, and

intelligent. As such, his waiver was valid, and the trial court’s conclusions of

law were not erroneous.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2014




                                     - 11 -
