J-S41013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERTO RIVERA,

                            Appellant                No. 1414 MDA 2016


              Appeal from the Judgment of Sentence July 27, 2016
               in the Court of Common Pleas of Lebanon County
               Criminal Division at No.: CP-38-CR-0000424-2015


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JULY 31, 2017

        Appellant, Roberto Rivera, appeals from the judgment of sentence

imposed by the trial court after his jury conviction of possession of a

controlled substance, drug paraphernalia, and a small amount of marijuana.1

Specifically, Appellant challenges the trial court’s denial of his motion to

suppress the morphine pills seized by the police. We affirm.

        We take the following facts from our independent review of the

certified record. On July 1, 2014, Officer David Zinda, Detective Lawrence

Minnick, and Detective Ryan Mong, from the Lebanon County Police

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. §§ 780-113(a)(16), (a)(32), and (a)(31), respectively.
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Department, were dispatched to Appellant’s residence based on a neighbor’s

complaint about illegal drug use.    (See N.T. Hearing, 7/29/15, at 5, 22).

Officer Zinda and Detective Minnick knocked on Appellant’s door while

Detective Mong went to the complainant’s neighboring apartment. (See id.

at 6, 22). Upon answering the door, Appellant appeared very happy to see

Detective Minnick, whom he had known for years, and greeted him in a

friendly manner, calling him “Papa.” (Id. at 6, 23; see id. at 7). Detective

Minnick explained why the officers were there and asked if they could have

Appellant’s consent to search the apartment.         (See id. at 7, 23-24).

Appellant invited the officers into his apartment, and gave them consent to

search. (See id. at 7, 24).

      Appellant, although permitted to walk around his apartment, remained

in the living room speaking with Detective Minnick while Officer Zinda

searched the bedroom. (See id.). The officer found a marijuana grinder in

plain view on an end table and showed it to Appellant. (See id. at 8). In

response, Appellant said, “[h]old on a minute[,]” retrieved a metal tin of

marijuana from the kitchen, gave it to the officers, and asked them to stop

their search.     (Id.; see id. at 24-25).   The search immediately ceased.

(See id. at 8).

      At that time, Detective Minnick advised Appellant that, based on what

Officer Zinda already had found, the police had probable cause to apply for a

search warrant.     (See id. at 9, 25).   Thereafter, of his own volition, and


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without the urging of the officers in his home, Appellant called his friend of

approximately twenty years, Sergeant Brett Hopkins,2 on Hopkins’ personal

cell phone. (See id. at 25, 35). Sergeant Hopkins, who was on vacation in

Cape May, New Jersey, at the time, did not have any personal knowledge of

the situation in Appellant’s apartment.          (See id. at 35).   When Appellant

asked him what he should do, the sergeant told him to cooperate with the

police. (See id.).

       Thereafter, the officers presented Appellant with a consent to search

form and asked him to read and review it.                (See id. at 25, 30-31).

Detective Minnick advised him that, if he had any questions, he should ask.

(See id. at 31). Appellant did not give any indication that he could not read

or understand the form.          (See id. at 34).     The detective explained that

Appellant should sign the document if he was comfortable with what was on

it, and he wished to consent to the search of his apartment. (See id. at 25,

31). Appellant signed the consent form, after which “he didn’t say anything

else adverse about [the police] searching [the apartment].” (Id. at 26; see

id. at 10).

       Shortly thereafter, while Officer Zinda resumed his search, Appellant

complained he was very hot and experiencing respiratory issues. (See id. at

11, 26, 32). Detective Minnick observed that Appellant was not sweating or
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2
  Sergeant Brett Hopkins is a member of the Lebanon County Drug Task
Force. (See Trial Court Opinion, 10/03/16, at 4).



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breathing hard, but he continued to offer to call an ambulance for

approximately ten or fifteen minutes until Appellant agreed to medical

attention.    (See id. at 26, 32-33).            After Detective Minnick called the

ambulance, Appellant sat with him on the front steps to his apartment while

they waited for it to arrive.       (Id. at 33).    After the ambulance picked up

Appellant, Detective Minnick and Officer Zinda briefly remained at his

apartment; during that time, Detective Minnick found several round pills that

tested positive for morphine. (See id. at 11, 26-27).

       The Commonwealth filed an information on March 23, 2015 charging

Appellant with the previously identified crimes. On April 13, 2015, Appellant

filed a motion to suppress the marijuana, drug paraphernalia, and pills the

officers had seized from his apartment.           At the conclusion of the pre-trial

hearing, the court denied Appellant’s motion to suppress the marijuana and

paraphernalia, but requested briefs on the issue of “whether Sgt. Hopkins’

‘advice’ and/or [Appellant’s] hospitalization[3] vitiated the written consent

that prompted the second search by Det. Minnic[k] and Officer Zinda.” (Trial

Court Opinion, 10/03/16, at 3) (record citation omitted).            On October 5,
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3
  There is no evidence in the certified record that Appellant was hospitalized
after the ambulance took him from the scene. When the Commonwealth’s
counsel attempted to enter evidence of what occurred at the hospital,
Appellant’s counsel objected. (See N.T. Hearing, 7/29/15, at 12). In
response, the assistant district attorney stated that “[T]hey called him an
ambulance, and ultimately he never even received medical treatment. . . .
[The police] received [information] that the ambulance arrived at the
hospital and [Appellant] actually got out and ran away.” (Id.).



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2015, the trial court granted Appellant’s motion to suppress the morphine

pills, finding that his call to Sergeant Hopkins rendered his consent invalid.

(See id. at 3-4).

       On October 9, 2015, the Commonwealth filed a motion to reconsider

based on the doctrine of inevitable discovery. On November 13, 2015, after

argument, the trial court reversed its earlier decision and denied Appellant’s

motion to suppress the illegal pills.

       Trial commenced on May 2, 2016. On May 6, 2016, the jury convicted

Appellant of the previously mentioned crimes.       On July 27, 2016, the trial

court sentenced him to an aggregate term of six months’ probation,

“notwithstanding the fact that [his] standard sentencing range required

incarceration.” (Id. at 5). Appellant timely appealed.4

       Appellant raises one issue for our review: “Did not the trial court err in

denying Appellant’s motion to suppress evidence where the facts and

circumstances do not support a finding that the discovery of the evidence

was inevitable?”        (Appellant’s Brief, at 4) (unnecessary capitalization

omitted).5


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4
  On September 20, 2016, Appellant filed a concise statement of errors
complained of on appeal, pursuant to the court’s order. The court filed an
opinion on October 3, 2016. See Pa.R.A.P. 1925.
5
 Appellant’s challenge only relates to the morphine pills, not the marijuana
and drug paraphernalia. (See Appellant’s Brief, at 8-9).



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            Our 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, we are bound by these findings and
      may reverse only if the court’s legal conclusions are erroneous.
      Where, as here, 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 our plenary
      review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012),

appeal denied, 65 A.3d 413 (Pa. 2013) (citation omitted).

      It is well-settled that:

                   A search conducted without a warrant is
            deemed      to   be    unreasonable     and    therefore
            constitutionally impermissible, unless an established
            exception applies. One such exception is consent,
            voluntarily given. The central Fourth Amendment
            inquiries in consent cases entail assessment of the
            constitutional validity of the citizen/police encounter
            giving rise to the consent; and, ultimately, the
            voluntariness of consent.       Where the underlying
            encounter is found to be lawful, voluntariness
            becomes the exclusive focus.

Commonwealth v. Kemp, 961 A.2d 1247, 1260-61 (Pa. Super. 2008)

(citations omitted).

      Pursuant to the inevitable discovery doctrine, “the fruits of an

unconstitutional search are admissible where the prosecution can establish

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by a preponderance of the evidence that the information ultimately or

inevitably would have been discovered by lawful means.” Commonwealth

v. Perel, 107 A.3d 185, 194 (Pa. Super. 2014), appeal denied, 124 A.3d

309 (Pa. 2015) (internal quotation marks and citation omitted).

      Here, the trial court denied Appellant’s motion to suppress the

morphine pills based on its finding that, although Appellant’s phone call to

Sergeant Hopkins and departure from the scene via ambulance rendered his

consent invalid and the search unconstitutional, the items seized thereafter

were admissible pursuant to the inevitable discovery doctrine. (See Trial Ct.

Op., at 8).      The Commonwealth maintains that Appellant voluntarily

consented to the search of his apartment, but that, even if he had not done

so,   the   evidence   inevitably   would    have    been   discovered.     (See

Commonwealth’s Brief, at 7, 9-13).

      Therefore, because the language of the inevitable discovery doctrine

requires a finding of an unconstitutional search before it will be applied, we

will first consider the constitutionality of the search in this case.

            In connection with [the inquiry into the voluntariness of a
      consent given pursuant to a lawful encounter], the
      Commonwealth bears the burden of establishing that a consent
      is the product of an essentially free and unconstrained choice—
      not the result of duress or coercion, express or implied, or a will
      overborne—under the totality of the circumstances. . . . [W]hile
      knowledge of the right to refuse to consent to the search is a
      factor to be taken into account, the Commonwealth is not
      required to demonstrate such knowledge as a prerequisite to
      establishing a voluntary consent. . . . Additionally, although the
      inquiry is an objective one, the maturity, sophistication and
      mental or emotional state of the defendant (including age,

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      intelligence and capacity to exercise free will), are to be taken
      into account. . . .

Kemp, supra at 1261 (citation omitted).

      In determining whether consent was voluntary, this Court considers

the following pertinent factors:

      1) the presence or absence of police excesses; 2) whether there
      was physical contact; 3) whether police directed the citizen’s
      movements; 4) police demeanor and manner of expression; 5)
      the location of the interdiction; 6) the content of the questions
      and statements; 7) the existence and character of the initial
      investigative detention, including its degree of coerciveness; 8)
      whether the person has been told that he is free to leave; and 9)
      whether the citizen has been informed that he is not required to
      consent to the search.

Id. (citation omitted).

      Here, the only two officers in Appellant’s home were Detective Minnick

and Officer Zinda.    Detective Minnick was familiar to Appellant, in plain

clothes, with his gun concealed. There was no physical contact between the

police and Appellant, and he was not restrained in any way. Appellant was

allowed to make phone calls, and chose to call his friend Sergeant Hopkins

on Hopkins’ private cell phone, without any suggestion by Detective Minnick

or Officer Zinda that he do so.    Sergeant Hopkins was vacationing at the

time, had no independent knowledge of what was occurring in Appellant’s

apartment, and was not involved in the investigation in any way.     After a

brief conversation, Appellant asked him what he should do, and Officer

Hopkins merely told him to cooperate with the police.      Thereafter, when

Officer Minnick presented Appellant with the consent form, he explained it to

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him, told him he could ask any questions, and only advised he sign it if he

agreed with its terms.6 Appellant had time to consider the information given

to him by Detective Minnick and the advice of his friend, and then signed the

form.     After signing, he did not, at any point, challenge the search or

withdraw his consent.

        Further, only after signing the form did Appellant start complaining of

physical symptoms that resulted in Detective Minnick calling an ambulance,

although the officer did not observe any signs indicating that Appellant was

not well. After the ambulance was called, Appellant did not tell the officers

to stop searching or request they leave. He and Detective Minnick sat on

the front steps of his apartment to wait for the ambulance while Officer

Zinda continued to search inside, and at no time did Appellant question the

search or request that it not continue in his absence. In fact, Officer Zinda’s

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6
   Although the trial court observes that Sergeant Hopkins did not advise
Appellant that he could refuse consent, we note first that he was not
obligated to do so because he was not an investigating officer in this case or
acting on the investigating officers’ behalf. Additionally, even if he were
required to so advise Appellant, this would not render the consent invalid.
See Commonwealth v. Cleckley, 738 A.2d 427, 433 (Pa. 1999) (“[O]ne’s
knowledge of his or her right to refuse consent remains a factor to consider
in determining the validity of consent; it simply is not a determinative factor
since other evidence is oftentimes adequate to prove the voluntariness of a
consent.”) (footnote omitted); see also Kemp, supra at 1261 (“Appellant’s
permission was not the product of duress or coercion, but in fact was
voluntarily given even though Appellant was not informed that he could
refuse to consent to the search.”) (citation omitted). Moreover, as noted
above, Detective Minnick, an investigating officer, did advise Appellant that
it was his choice whether or not to sign the consent to search form.



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search had always been out of the presence of Appellant, who chose to

remain in the living room, talking with Detective Minnick.       Moreover, once

the ambulance took Appellant from the scene, the search lasted for a brief

time before the officers also left the apartment.

      Based on the foregoing, and in the totality of the circumstances, we

conclude that the Commonwealth met its burden of establishing that

Appellant voluntarily consented to the search of his home where his consent

was not the product of coercion or duress.          See Kemp, supra at 1261.

Additionally, Appellant subsequently leaving the scene by ambulance did not

somehow extinguish his consent where the officers merely were conducting

the investigation for which he already had consented. See Commonwealth

v. Witman, 750 A.2d 327, 337 (Pa. Super. 2000), appeal denied, 764 A.2d

1053 (Pa. 2000), cert. denied, 534 U.S. 815 (2001) (“[W]here police are

conducting a valid search pursuant to a defendant’s [] consent, the initial

investigation in its entirety is permissible. . . . [A]n investigation may require

officials to remain on the scene for an extended period of time repeatedly

entering or re-entering the building . . . [.]”) (internal quotation marks and

citation omitted).

      Therefore, we are constrained to disagree with the trial court’s finding

that Appellant did not voluntarily consent to the search of his apartment.

However, we conclude that the court properly denied his motion to suppress




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the morphine pills, albeit on a different basis.7 See McAdoo, supra at 783-

84. Appellant’s issue lacks merit.8

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/2017




____________________________________________


7
 It is well-established “that we can affirm the trial court on any valid basis.”
Kemp, supra at 1254 n.3 (citation omitted).
8
  Because we affirm the trial court’s denial of Appellant’s motion to suppress
on the basis that his consent was voluntary, we need not reach the question
of whether the evidence would be admissible pursuant to the inevitable
discovery doctrine.



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