J-S36024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NICO SCOTT                                 :
                                               :
                       Appellant               :   No. 2056 MDA 2018

      Appeal from the Judgment of Sentence Entered November 20, 2018
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0001753-2017


BEFORE:      PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.

MEMORANDUM BY SHOGAN, J.:                           FILED NOVEMBER 13, 2019

        Appellant, Nico Scott, appeals from the judgment of sentence entered

following her convictions of two counts of possession of a controlled substance

and one count of possession of drug paraphernalia.1 We affirm.

        In addressing Appellant’s omnibus pretrial motion, the trial court offered

the following background of this case:

              On May 31, 2017, the Old Lycoming Township police
        executed a search warrant [of Appellant’s residence] at 510 Dylan
        Drive, Cogan Station, Hepburn Township in Lycoming County
        Pennsylvania. The police were investigating the report of a
        possible drug related homicide. While [police were] executing the
        search warrant, [Appellant] was interviewed. She confirmed that
        the various controlled substances found within her residence were
        hers. Among the items were various quantities of pills, marijuana,
        crystal methamphetamine along with electronic devices, and U.S.
        currency. The controlled substances and pills were all contained

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1   35 P.S. §§ 780-113 (A)(16) and (30), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        in various packaging materials and found within a locked safe
        located in [Appellant’s] bedroom.

              While being interviewed by the police, [Appellant] admitted
        that she used the marijuana and methamphetamine for pain. She
        also volunteered that “although it looks like she sells drugs she
        was only stockpiling them for her own personal use.” As a result
        of the items found in the search, police charged [Appellant] with
        two counts of Possession of a Controlled Substance for the
        methamphetamine and marijuana; and, one count of Possession
        of Drug Paraphernalia.

              [Appellant] alleges that the items seized from her home are
        a product of a violation of her constitutional rights under both the
        U.S. and Pennsylvania Constitutions since the reason for their
        presence there (the investigation of the homicide) no longer
        existed and they had no reason to suspect drugs were present in
        the house.

              The parties agreed that the facts were not in dispute.
        Detective Christopher Kriner of the Old Lycoming Township Police
        Department went to [Appellant’s] residence on May 31, 2017, to
        locate the cremains of an individual they believed had been killed
        and burned by [Appellant]. While the search warrant was being
        executed, [Appellant] was placed in handcuffs and relocated to
        the back of a police cruiser to await the results of the search. The
        warrant was specifically issued to “search the residence for
        evidence related to the death/disappearance of an unknown
        Hispanic male.” Commonwealth’s exhibit 2, Search warrant
        issued 5/31/2017.

               While the home was being searched and [Appellant was] still
        in the cruiser but no longer in handcuffs, [Detective] Kriner [read]
        her Miranda[2] warnings and she agree[d] to talk with him.
        [Appellant made] incriminating statements regarding drugs which
        could be found inside her house. She talk[ed] about the fact that
        she uses marijuana and methamphetamine for pain that she
        suffers in her stomach. She further state[d] that she has been
        stockpiling the drugs because she doesn’t use them all of the time.
        She also mention[ed] a large quantity of cash that she has


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2   Miranda v. Arizona, 384 U.S. 436 (1966).

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     because she recently collected rents so it look[ed] like she might
     be selling drugs.

             Police then receive[d] confirmation that the person believed
     to be deceased [was] still quite alive. However[,] as a result of
     the search, police discover[ed] a safe in [Appellant’s] bedroom
     which [was] locked and bolted to the floor. While [Appellant was]
     still located in the cruiser and knowing the information she ha[d]
     volunteered to them about the drugs in the house, the police
     request[ed] her consent to search the safe. [Detective] Kriner
     advise[d] her that she [did not] have to give them consent, but
     they would need to get a search warrant if she [chose] not to
     consent. She then provide[d] the police with the key to the safe
     so they [could] open it.

Trial Court Order and Opinion, 5/4/18, at 1-3 (footnotes omitted).

     On September 15, 2017, Appellant was charged with the above-stated

drug offenses.   She filed an omnibus pretrial motion seeking to suppress

evidence on December 26, 2017. On March 19, 2018, the trial court held a

suppression hearing and filed an opinion and order denying the motion on May

4, 2018. A nonjury trial was held on September 21, 2018, following which

Appellant was convicted of all charges. On November 20, 2018, the trial court

sentenced Appellant to serve two consecutive terms of six months of probation

for the possession of controlled substance convictions and fined her $100 for

the possession of drug paraphernalia conviction. This timely appeal followed.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

     Appellant presents the following issues for our review:

     I. Whether the trial court erred, as a matter of law, in denying
     Appellant’s motion to suppress all statements made during the
     uncounseled and custodial interrogation by law enforcement in
     that said statements were not preceded by a knowing, intelligent,
     and voluntary waiver of Appellant’s Miranda rights?

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      II. Whether the trial court erred, as a matter of law, in denying
      Appellant’s motion to suppress all items seized from her safe
      during the search of Appellant’s residence, as they were the direct
      result of an unlawful detention and consent was not given
      voluntarily?

Appellant’s Brief at 4 (full capitalization omitted).

      Appellant first argues that the trial court erred in denying her motion to

suppress statements made to police. Appellant’s Brief at 13-17. Appellant

claims that the statements, made during the execution of a search warrant,

were not preceded by a valid waiver of her Miranda rights. She contends

that her waiver was not voluntary under the circumstances of her detention.

Id. at 14.

      With respect to an appeal from the denial of a motion to suppress, our

Supreme Court has stated the following:

      Our standard of review in addressing a challenge to a trial court’s
      denial of a suppression motion is whether the factual findings are
      supported by the record and whether the legal conclusions drawn
      from those facts are correct. When reviewing the ruling of a
      suppression court, we must consider only the evidence of the
      prosecution and so much of the evidence of the defense as
      remains uncontradicted when read in the context of the record. .
      . . Where the record supports the findings of the suppression
      court, we are bound by those facts and may reverse only if the
      legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted). “It is within the suppression court’s sole province as factfinder to

pass on the credibility of witnesses and the weight to be given their

testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.


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2006). Moreover, our scope of review from a suppression ruling is limited to

the evidentiary record that was created at the suppression hearing. In re

L.J., 79 A.3d 1073, 1087 (Pa. 2013).

      Further, we are aware that Pa.R.Crim.P. 581, which addresses the

suppression of evidence, provides in relevant part as follows:

      (H) The Commonwealth shall have the burden . . . of
      establishing that the challenged evidence was not obtained in
      violation of the defendant’s rights.

Pa.R.Crim.P. 581(H). At a suppression hearing, the Commonwealth has the

burden of “establish[ing] by a preponderance of the evidence that the

evidence was properly obtained.”     Commonwealth v. Galendez, 27 A.3d

1042, 1046 (Pa. Super. 2011) (quoting Commonwealth v. Culp, 548 A.2d

578, 581 (Pa. Super. 1988)).

      In Miranda, the Supreme Court set forth safeguards to protect a

person’s rights under the Fifth Amendment to the United States Constitution,

which provides that a criminal defendant cannot be compelled to be a witness

or give evidence against himself. Miranda, 384 U.S. at 461. The Court held

that police officers are required to inform a suspect prior to questioning that

he has the right to remain silent, that any statement made may be used

against him, and that he has the right to an attorney.       Id., at 444. “The

defendant may waive effectuation of these rights, provided the waiver is made

voluntarily, knowingly and intelligently.”   Id.   The Pennsylvania Supreme

Court has reiterated that for a waiver of these rights to be valid, the defendant



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must be adequately apprised of and understand his rights and the

consequences of waiving those rights, and must not be threatened, forced, or

coerced to waive his rights in any way. Commonwealth v. DeJesus, 787

A.2d 394, 402 (Pa. 2001). “It is the Commonwealth’s burden to establish

whether [the accused] knowingly and voluntarily waived his Miranda rights.

In order to do so, the Commonwealth must demonstrate that the proper

warnings were given, and that the accused manifested an understanding of

these warnings.” Eichinger, 915 A.2d at 1135-1136.

      In considering whether a defendant has validly waived his Miranda

rights, the trial court engages in a two-pronged analysis:

      (1) whether the waiver was voluntary, in the sense that [the]
      defendant’s choice was not the end 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.

Commonwealth v. Mitchell, 902 A.2d 430, 451 (Pa. 2006).

      “The determination of whether a confession is voluntary is a conclusion

of law, and as such, is subject to plenary review.”      Commonwealth v.

Roberts, 969 A.2d 594, 599 (Pa. Super. 2009).                In evaluating the

voluntariness of a confession, this Court looks at the totality of the

circumstances to determine whether, due to police conduct, the defendant’s

“will has been overborne and his capacity for self-determination critically

impaired.” Id. at 598-599 (citation omitted). Thus, in order to determine if

a proper waiver of Miranda rights has occurred, “[w]e employ a totality of

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circumstances test in reviewing the waiver.        We are bound also by the

suppression court’s findings of fact if they are supported by competent

evidence.” Commonwealth v. Logan, 549 A.2d 531, 537 (Pa. 1988).

      In concluding that Appellant voluntarily waived her Miranda rights prior

to speaking to the police, the trial court offered the following:

             The [trial c]ourt listened to the audio recording of
      [Detective] Kriner’s interview with [Appellant] and is satisfied that
      [Appellant] made a knowing and voluntary waiver of her right to
      remain silent. Although [Appellant] was upset, there was nothing
      in her responses or the manner in which [Detective] Kriner was
      talking with her that indicated her waiver was not knowing,
      intelligent or voluntary. Despite the fact that she was sitting in
      [Detective] Kriner’s vehicle, the conditions appeared to be free of
      coercion. [Detective] Kriner’s attitude toward [Appellant] was
      professional, not condescending or demanding.

             Although the [trial c]ourt could not see [Appellant] in her
      encounter with [Detective] Kriner, he attempted to make her
      comfortable by not only taking the handcuffs off of her, but
      starting the car so she would be warm. Although she fluctuated
      between being emotional and calm, [Detective] Kriner was able to
      get [Appellant] to focus on the questions at hand to insure that
      she understood what she was doing, and that she intended to
      speak with him.

Trial Court Order and Opinion, 5/4/18, at 4-5.

      Our review of the record, including the fifty-eight minute audio recording

of Appellant’s interaction with Detective Kriner, reflects that Appellant

voluntarily waived her Miranda rights. The recording establishes that, at the

outset of their interaction, Detective Kriner accurately read Appellant her




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Miranda rights.        Defendant’s Exhibit 1, Audio Recording at 2:15-2:45.3

Appellant then acknowledged that she wanted to speak with Detective Kriner.

Id. at 3:25-3:35. Further, Detective Kriner explained to Appellant the written

Miranda waiver form and reiterated that Appellant had the choice to refuse

to answer any questions, after which Appellant again acknowledged her

willingness to waive her Miranda rights and to speak to police without an

attorney present. Id. 5:00-5:50. Similar to the trial court’s conclusion, our

review reflects that Appellant was not threatened, forced, or coerced by the

police to compel her to waive her rights. DeJesus, 787 A.2d at 402. Contrary

to Appellant’s claim, Appellant sounded completely cognizant and in control at

the time she waiver her Miranda rights, such that we conclude her waiver

was knowing and intelligent.

       The record establishes that proper Miranda warnings were given and

Appellant    manifested      a   complete      understanding   of   those   warnings.

Eichinger, 915 A.2d at 1135-1136. Based on the foregoing and our review

of the suppression hearing transcript and the audio recording, we conclude

that Appellant’s waiver of her Miranda rights and subsequent statements

were knowing and voluntary and that the Commonwealth proved “by a

preponderance of the evidence that the evidence was properly obtained.”



____________________________________________


3 Throughout this memorandum, the times cited for the audio recording reflect
the minute and second mark as they appear on the DVD submitted as
Defendant’s Exhibit 1.

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Galendez, 27 A.3d at 1046. Therefore, it is our determination that the record

supports the trial court’s factual findings and that the trial court did not err in

denying Appellant’s motion to suppress her statements.

      Appellant next argues that the trial court erred in denying her motion to

suppress the physical evidence seized from her safe. Appellant’s Brief at 18-

30. Appellant asserts that her consent to the search of the safe was not valid.

Initially, Appellant claims that the consent resulted from an illegal detention.

Id. at 20-27. In addition, she contends that her consent to the search was

not free and unconstrained, but resulted from coercion and duress. Id. at 27-

30.

             The Fourth Amendment to the United States Constitution
      and Article I, Section 8 of the Pennsylvania Constitution protect
      individuals from unreasonable searches and seizures, thereby
      ensuring the “right of each individual to be let alone.”
      Schneckloth v. Bustamonte, 412 U.S. 218, 236, 36 L. Ed. 2d
      854, 93 S. Ct. 2041 (1973); Commonwealth v. Blair, 394 Pa.
      Super. 207, 575 A.2d 593, 596 (Pa. Super. 1990).

Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super. 2002).

      To secure the right of citizens to be free from intrusions by police, courts

in Pennsylvania require law enforcement officers to demonstrate ascending

levels of suspicion to justify their interactions with citizens as those

interactions become more intrusive. Commonwealth v. Beasley, 761 A.2d

621, 624 (Pa. Super. 2000).

      It is undisputed that:

      [s]tate case law recognizes three categories of interaction
      between police officers and citizens, which include: (1) a mere

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      encounter, or request for information, which need not be
      supported by any level of suspicion, but which carries no official
      compulsion to stop or to respond; (2) an investigative detention,
      which must be supported by reasonable suspicion as it subjects a
      suspect to a stop and a period of detention, but does not involve
      such coercive conditions as to constitute the functional equivalent
      of an arrest; and (3) arrest or custodial detention, which must be
      supported by probable cause.

Commonwealth v. Acosta, 815 A.2d 1078, 1082 (Pa. Super. 2003) (en

banc). “The police have probable cause where the facts and circumstances

within the officer’s knowledge are sufficient to warrant a person of reasonable

caution in the belief that an offense has been or is being committed.”

Commonwealth v. Hernandez, 935 A.2d 1275, 1284 (Pa. 2007).

      Additionally, we have long stated that “there is no threshold of suspicion

needed for a request to search; consent to a search obviates the need for any

level of suspicion on the part of the police.” Commonwealth v. Shelly, 703

A.2d 499, 502 (Pa. Super. 1997) (citing Florida v. Bostick, 501 U.S. 429

(1991)). It is a well-established standard that a warrant is not required when

a person, with authority to do so, consents to a search. Commonwealth v.

Reid, 811 A.2d 530 (Pa. 2002). “To establish a valid consensual search, the

prosecution must first prove that the consent was given during a legal police

interaction, or if the consent was given during an illegal seizure, that it was

not a result of the illegal seizure; and second, that the consent was given

voluntarily.” Id. at 544.

      To establish the constitutionality of a consent to search:




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

Commonwealth v. Strickler, 757 A.2d 884, 901 (Pa. 2000) (citations

omitted).

      We have indicated that the following factors are pertinent to a

determination of whether consent to search is voluntarily given:

      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 the 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.

Commonwealth v. Powell, 994 A.2d 1096, 1102 (Pa. Super. 2010) (quoting

Commonwealth v. Kemp, 961 A.2d 1247, 1261 (Pa. Super. 2008) (en

banc)). Again, our scope of review from a suppression ruling is limited to the

evidentiary record that was created at the suppression hearing. In re L.J.,

79 A.3d 1073, 1087 (Pa. 2013).

      In the first portion of this issue, Appellant argues that her consent to

the search was the result of an illegal detention. Appellant’s Brief at 20-27.


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Appellant asserts that, although she was lawfully detained during the

execution of a search warrant to investigate a potential homicide, once the

police concluded that the purpose of the search warrant had ended she was

then unlawfully detained.         Id. at 21-22.    Appellant contends, “Detective

Kriner, despite no longer operating pursuant to a valid warrant, continued to

hold [Appellant] in custody and question her about the no longer unidentified

Hispanic male [believed to have been murdered], who was quite alive.” Id.

at 25. Appellant claims that she “was held in custody and interrogated absent

a valid warrant or any degree of justifying suspicion on the part of law

enforcement.” Id. at 27.

       Our review confirms that the police arrived at Appellant’s residence on

May 31, 2017, with a valid search warrant.4 “[T]he purpose and scope of the

initial warrant was to search for ‘any and all evidence related to the

death/disappearance of an as yet unidentified Hispanic male.’” Appellant’s

Brief at 21 (citing Search Warrant 5/31/17).           As discussed above, while

Appellant was detained she validly waived her Miranda rights and spoke with

police.    During the interrogation process, Appellant admitted to using

methamphetamine. Defendant’s Exhibit 1, Audio Recording at 12:50-13:30.

Thereafter, Appellant admitted to having drugs in the house. Id. at 14:20-


____________________________________________


4Appellant states, “Appellant accepts that the warrant under which the initial
search and seizure was executed was lawful, that it was supported by probable
cause and described with sufficient particularity the place to be searched and
persons or things to be seized.” Appellant’s Brief at 20-21.

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14:45. After further discussion, Detective Kriner stopped the interrogation

and left Appellant’s presence for slightly more than three minutes.     Id. at

17:00-20:30. Upon returning, Detective Kriner informed Appellant that police

confirmed that the purported victim was alive. Id. at 21:00. Detective Kriner

continued questioning Appellant regarding her connection with the purported

victim and his drug business. Id. at 24:30-27:00.

      These facts establish that, during the legal police detention while the

valid search warrant was being executed, Appellant admitted to using illegal

narcotics and that there was contraband present in her residence.          We

conclude that these facts, in the knowledge of police, rose to the level of

probable cause because they are sufficient to warrant a person of reasonable

caution to believe that an offense has been or is being committed.

Hernandez, 935 A.2d at 1284.       Accordingly, Detective Kriner’s continued

interrogation of Appellant regarding her connection with the purported victim

and his drug business was a legal police interaction.      Hence, Appellant’s

consent to search the safe in her residence was given during a legal police

interaction, and her contrary claim lacks merit.

      In the second portion of this issue, Appellant argues that the consent to

search her safe was not a free and unconstrained voluntary choice.

Appellant’s Brief at 27-30. Appellant claims that under the circumstances, her

consent was the result of duress and coercion. Id. at 28-30.




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      In addressing this claim, the trial court offered the following brief

discussion:

            [Appellant’s] consent was not a product of duress.
      [Detective] Kriner was calm and patient with [Appellant]; he
      continued to speak with her trying to keep focused to establish for
      the recording that [Appellant] understood what was being asked
      of her. Although she was not advised that she was free to leave,
      she was advised of her right to refuse consent. The [trial c]ourt
      finds that there was nothing inherently coercive about the
      circumstances that evening. [Appellant’s] consent to search was
      voluntarily made.

Trial Court Order and Opinion, 5/4/18, at 5. We agree.

      Because Appellant gave consent to the search during a legal police

interaction, we need address only whether the consent was voluntary, and do

so considering the relevant factors set forth in Powell. Powell, 994 A.2d at

1102. Here, our review of the audio recording reflects that the police activity

preceding the consent was legitimate, no verbal or physical force was used,

one police officer was involved in discussion and interrogation of Appellant

while the search warrant was being executed. Furthermore, Detective Kriner’s

demeanor was kind and courteous. Thus, we cannot conclude that there were

any police excesses. Although Appellant can be heard crying at various times

on the fifty-eight minute audio recording, there was no evidence that

Appellant was anything other than a competent adult at the time she provided

the police detective with the requested information and consent to search her

safe for contraband. Furthermore, although the entire interaction occurred in

the back of the police vehicle and Appellant was not informed that she was


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free to leave, our review reveals no duress or coercion on the part of the police

in securing the verbal and written consent of Appellant to search the safe.

The record supports the trial court’s determination with regard to the evidence

seized. Hence, having concluded that Appellant’s consent to the search of the

safe was voluntary, we conclude that Appellant’s contrary claim with regard

to the suppression order lacks merit.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2019




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