J-A31038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                       v.

    JOHN SHULER

                              Appellant                No. 3246 EDA 2014


            Appeal from the Judgment of Sentence November 6, 2014
      in the Court of Common Pleas of Philadelphia County Criminal Division
                        at No(s): CP-51-CR-0014260-2013

BEFORE: BENDER, P.J.E., MOULTON , J., and FITZGERALD, J.*

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 22, 2017

        Appellant John Shuler appeals from his judgment of sentence of thirty

to sixty months’ imprisonment followed by four years’ probation for robbery,1

conspiracy to commit robbery,2 attempted theft by unlawful taking,3

possession of an instrument of crime,4 simple assault5 and filing a false

report.6 Appellant argues that the trial court erred in denying his motion to

suppress pants recovered from his car, a BB gun recovered from his house


*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S. § 3701(a)(1)(ii).

2   18 Pa.C.S. § 903(c).

3   18 Pa.C.S. § 901(a).

4   18 Pa.C.S. § 907(a).

5   18 Pa.C.S. § 2701(a).

6   18 Pa.C.S. § 4906(a).
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and multiple statements that he gave to a detective at the police station.

Appellant also challenges the legality of his sentence.       We affirm in part,

vacate in part and remand for resentencing.

      On August 27, 2013, Appellant was arrested and charged with the

foregoing offenses.   On June 12, 2014, the trial court held a suppression

hearing, entered findings of fact and conclusions of law, and denied Appellant’s

motion to suppress. N.T., 6/12/14, at 109-115. The trial court held a bench

trial and found Appellant guilty of the above-mentioned offenses. The trial

court sentenced Appellant to concurrent terms of thirty to sixty months’

imprisonment for robbery and conspiracy to commit robbery, a consecutive

four years’ probation for attempted theft, and four years’ probation each for

simple assault, false reports, and possessing an instrument of crime, all to run

concurrently with his sentence for attempted theft. Appellant filed this timely

appeal, and both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises the following issues in this appeal:

         1. Did not the trial court err in denying [A]ppellant’s motion
         to suppress the pants recovered from his car, the BB gun
         recovered from his house, and his second and third
         statements as impermissible fruit of violations under the 4th
         and 14th Amendments to the United States Constitution and
         Art. I, Section 8 of the Pennsylvania Constitution because
         the police:

            (a) unlawfully arrested [A]ppellant without probable
            cause when they took him from the hospital, without
            obtaining his consent, and transported him to the East
            Detective District; and




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            (b) unlawfully seized [A]ppellant’s car without probable
            cause or reasonable suspicion to believe that the car was
            evidence or contained evidence of a crime?

         2. Did not police unlawfully search [A]ppellant’s home in
         violation of the 4th and 14th Amendments to the United
         States Constitution and Art. I, Section 8 of the Pennsylvania
         Constitution because the affidavit of probable cause lacked
         sufficient probable cause that evidence of a crime would be
         found inside; and even assuming the affidavit of probable
         cause was facially sufficient to justify issuance of the
         warrant, the police intentionally and recklessly omitted the
         fact that [A]ppellant was licensed to carry a firearm, making
         the items recovered inside [A]ppellant’s home and the third
         statement unlawfully obtained fruit?

         3. Did not the lower court impose an illegal sentence
         because:

            (a) [A]ppellant’s sentence for attempted theft under 18
            Pa.C.S. § 901[] and 18 Pa.C.S. § 3921, should merge
            with his conviction for robbery under 18 Pa.C.S. §
            3701(a)(1)(ii), and;

            (b) [A]ppellant’s sentence for simple assault, 18 Pa.C.S.
            § 2701, should merge with his sentence for robbery
            under 18 Pa.C.S. § 3701(a)(1)(ii); and even if it did not
            merge, a sentence of [four] years of probation exceeds
            the statutory maximum sentence of [two] years as the
            offense is graded as a misdemeanor of the second
            degree, and;

            (c) [A]ppellant’s sentence of [four] years of reporting
            probation for false reports to law enforcement exceeds
            the statutory maximum as the offense is graded a
            misdemeanor of the second degree, 18 Pa.C.S. § 4906?

Appellant’s Brief at 3-4.

APPELLANT’S CHALLENGE TO TRIAL COURT’S SUPPRESSION RULING

      In his first two arguments, which we review together, Appellant

challenges the trial court’s order denying his motion to suppress the evidence


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seized during the warrantless search of his car, his statements to Detective

Gonzalez at East Detectives, and the search of his residence. The trial court

properly denied Appellant’s motion to suppress.

      When     the   defendant   files   a   motion   to   suppress,   “it   is   the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant’s

rights.”   Commonwealth v. Wallace, 42 A.3d 1040, 1047-48 (Pa. 2012)

(citations omitted).    In an appeal challenging the denial of a suppression

motion,

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

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

omitted). We must only consider the suppression record when reviewing the

suppression court’s rulings. See In re L.J., 79 A.3d 1073, 1085 (Pa. 2013)

(“it is inappropriate to consider trial evidence as a matter of course, because



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it is simply not part of the suppression record, absent a finding that such

evidence was unavailable during the suppression hearing”).

     In its Rule 1925 opinion, the trial court summarized the evidence at the

suppression hearing as follows:

           On August 27, 2013, Detective David Sherwood was
        alerted that [Appellant] had been shot while allegedly being
        robbed by two offenders. [On that date], [Appellant] was
        admitted to Episcopal Hospital with a gunshot wound.
        [Appellant] was then transferred to Temple Hospital
        Emergency Room for treatment.           Detective Sherwood
        ordered [Appellant]’s vehicle be towed from Episcopal
        Hospital to a police garage as a matter of standard
        procedure. The garage created a property receipt for the
        vehicle, with a timestamp and description [of] the vehicle
        indicating “for investigation pending search warrant.”

           Detective Sherwood interviewed [Appellant] at Temple
        Hospital, believing [Appellant] to be the victim of a robbery.
        [Appellant] told the detective he had been fishing near 2400
        Bea[ch] Street with a friend when two Hispanic males
        approached them and one pulled out a gun. [Appellant] said
        he ran and then heard a gunshot, but it was not until he was
        nearly home that he realized he was bleeding. [Appellant]
        told Detective Sherwood he had driven from his home to
        Episcopal Hospital. Detective Sherwood’s interview lasted
        approximately twenty minutes.

           After this initial interview with [Appellant], Detective
        Sherwood went to Bea[ch] Street and interviewed Cody
        Laine, who said he was in the area for several hours since
        the prior evening.      He reported that he never heard
        gunshots, nor saw two men fishing. Around the same time
        that morning, Detective Samuel Gonzalez began the day
        shift at East Detectives District, Special Investigations, and
        Detective Sherwood called to inform him he had found no
        evidence of a shooting at Bea[ch] Street.




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             Three hours later,[7] [Appellant] came to East Detectives
          District for a second interview with Detective Gonzalez.
          When he arrived, [a police] employee let him into the office.
          After a conversation lasting five to ten minutes, Detective
          Gonzalez checked police radio for reports of gunshots in the
          area of Bea[ch] Street but found none. Considering this
          information and the report from Detective Sherwood,
          Detective Gonzalez began to doubt [Appellant]’s story.

             Detective Gonzale[z] returned to the interview room,
          verbally gave [Appellant] Miranda[8] [w]arnings, and
          confronted him with inconsistencies in his story. [Appellant]
          then alleged he had accidently shot himself at home while
          taking a black [.380 caliber automatic glock] out of his pants
          pocket.    The detective and [Appellant] walked to the
          detective’s cubicle so that he could type [Appellant]’s
          statement. Detective Gonzalez read [Appellant] his rights
          once more, provided a form to acknowledge that he
          understood them, and then interviewed [Appellant] again.
          Within an hour of arriving, [Appellant] willingly signed the
          Miranda statement advising him of his rights. [Appellant]
          told Detective Gonzalez the gun was not registered to him,
          but that he did have a license to carry. He told [Appellant]
          the gun was still in his apartment. Detective Gonzalez
          confirmed [Appellant] had a permit to carry.

             Shortly after Detective Gonzalez typed up [Appellant]’s
          statement and explained that consent to search his vehicle
          was voluntary, [Appellant] filled out a consent form for the
          detectives to perform an investigative search of his car.
          Detective Gonzalez’s partner, Detective John Perfidio,
          proceeded to type up a search warrant to look for the
          handgun that [Appellant] said he had shot himself with at
          home on Richmond Street. The search warrant application
          contained [Appellant]’s first and second versions of the
          night’s events as well as the inconsistent facts discovered
          by the detectives.


7 Viewed in context, it appears that Appellant was receiving treatment at the
hospital during this three-hour period and then accompanied the police to the
station following his release from the hospital.

8   Miranda v. Arizona, 384 U.S. 436 (1965).


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J-A31038-16


            After obtaining consent, Detective Gonzalez conducted a
         search of [Appellant]’s car. The detective recovered a pair
         of black pants with what appeared to be a clean bullet hole,
         free of burns or residue, in the rear left pocket. The
         detective then went to [Appellant]’s home, where they
         found a silver and black 9 millimeter BB gun in the kitchen.
         In the bathroom where [Appellant] had allegedly shot
         himself, Detective Gonzalez noted the absence of a [.]380
         caliber automatic gun, blood, or any other indication that a
         shooting had occurred. The BB gun was logged by creating
         a property receipt.

            After conducting the search, both detectives returned to
         question [Appellant] who had remained at East[] Detectives
         without handcuffs.      The detectives again reviewed
         [Appellant]’s Miranda warnings with him and [Appellant]
         signed again and gave a third statement. [Appellant]
         admitted, in his third statement, that he attempted to
         commit a robbery when he was shot by another male while
         running away. [Appellant] was subsequently arrested.
         Police later learned the shooter was the victim of
         [Appellant]’s robbery.

Trial Ct. Op., 1/30/16, at 2-4.

      Additionally, we note that several hours before Appellant arrived at the

hospital for treatment of a gunshot wound, two men wearing ski masks

attempted to rob a man named Richard Fike near 401 East Girard Avenue in

Philadelphia. Police officers brought Fike to Temple Hospital, and Fike looked

at Appellant but could not identify him as one of the assailants. N.T., 6/12/14,

at 31-33. Later that day, Appellant admitted in his third statement to police

detectives that he had attempted to rob another male. The robbery attempted

failed, and Appellant was shot as he ran away. Fike was the victim of the

attempted robbery and shot Appellant as he fled from the scene.




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        The trial court held that the police properly impounded Appellant’s car,

because “the reasonable procedure here was to tow a vehicle when a gunshot

victim[] came to the hospital in it.” Trial Ct. Op. at 11. The court further held

that (1) Appellant was not under arrest when he arrived at the police station,

(2) Appellant voluntarily consented to the search of his car, and (3) the search

warrant for Appellant’s home was supported by probable cause. Id. at 11-

15.

        We hold that the impoundment of Appellant’s car was unconstitutional.

Nevertheless, the trial court’s error was harmless in nature, because the police

obtained all other evidence against Appellant through lawful means, and this

admissible evidence firmly established his guilt.

        We divide our analysis of the suppression issues into the following

sections:    (1)   the   impoundment     of   Appellant’s   car;   (2)   Appellant’s

transportation to East Detectives and first two statements at East Detectives;9

(3) Appellant’s consent to search his car and the ensuing search; (4) the

search warrant for Appellant’s residence; and (5) Appellant’s third statement

at East Detectives.

I.      Impoundment of Appellant’s Car

        The Commonwealth submitted the following evidence with regard to the

impoundment of Appellant’s car: at about 4:50 a.m. on August 27, 2013,

Appellant drove himself to Episcopal Hospital with a gunshot wound in his left


9   We also refer to East Detectives as the “police station.”


                                       -8-
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buttocks. N.T., 6/12/2014, at 13-24, 28. He lawfully parked his car in the

hospital’s parking lot and went inside for treatment. Id. at 27. Patrol officers

at the hospital called police headquarters to notify detectives about the

incident, and Detective Sherwood was assigned to investigate the matter. Id.

at 13-17.

      At approximately 5:00 a.m., Detective Sherwood told officers at the

hospital to tow Appellant’s car. Id. at 18-30. At this point, the detective had

only been informed that a shooting victim was at Episcopal Hospital; he had

not interviewed Appellant, seen the car or learned any other facts about the

case. Id. At some point later in the morning or early afternoon, the police

towed the car to a police garage at Whitaker and McAllister Streets. Id. at

46.

      Detective Sherwood testified that when police officers report that a

shooting victim has arrived at a hospital, the standard police procedure is for

police officer to “hold the scene, [and] if there is a car that the victim came to

the hospital in, that car is held and we process that car.” Id. at 17. Detective

Gonzalez gave similar testimony, stating that in all shootings in Philadelphia,

it is “standard procedure” and “normal practice to confiscate the vehicle that

is used to transport a victim from a crime scene to a hospital . . . It is part of

the investigation part of the crime scene. And it is what we do.” Id. at 46-

47.




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      In accordance with this “standard” procedure, Detective Sherwood

ordered Appellant’s car towed so it “could be examined for any evidence that

may have been in the vehicle[.]”     Id. at 20.   Detective Sherwood did not

explain why he believed there was any evidence of crime in the car or what

evidence or contraband he expected to find. Id. at 18, 20-21, 28-30.

      The trial court held:

         [T]owing [Appellant’s] car was a lawful inventory seizure.
         Detective Sherwood took custody of the vehicle in
         anticipation of performing a search. He was also mindful
         that this would preserve the vehicle for Detective Gonzalez
         when he took over the case a few hours later. Detective
         Sherwood had the car towed from Episcopal Hospital and
         did not search the vehicle. This action involved little
         invasion of [Appellant’s] privacy, since nothing inside the
         car was actually disturbed and [Appellant] did not have, or
         need, access to it from Temple Hospital while he was being
         treated.

         The reasonable procedure here was to tow a vehicle when a
         gunshot victim came to the hospital in it. Both Detectives
         Sherwood and Gonzalez testified to the established nature
         of this procedure that might aid in finding a shooter.
         Detective Gonzalez testified that, in his eighteen years as a
         detective, he ordered the towing of many cars in similar
         situations. The procedure was so restrained that it did not
         even include an inventory search until either a warrant or
         consent was obtained.

Trial Ct. Op., at 11.

      The Commonwealth argues in this Court that the seizure was proper

both under the automobile search and inventory exceptions to the Fourth

Amendment. Commonwealth’s Brief at 15. Appellant contends that neither

exception applies. Appellant’s Brief at 25-31.    We agree with Appellant.



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      The automobile search exception to the Fourth Amendment requires

that police have probable cause to conduct a warrantless search of the vehicle.

See Florida v. White, 526 U.S. 559, 565-66 (1999).          Probable cause to

conduct a search exists when the circumstances known to the officer

demonstrate a “fair probability that contraband or evidence of a crime will be

found in a particular place.” Commonwealth v. Torres, 764 A.2d 532, 537

(Pa. 2001). Here, Detective Sherwood ordered the car towed at 5:00 a.m.

simply because he heard over police radio that a shooting victim was at

Episcopal Hospital. He knew nothing more about the incident; nor is there

evidence that the officer who made the radio report knew anything more,

either. Compare Commonwealth v. Kenney, 297 A.2d 794, 796 (Pa. 1972)

(in robbery-murder case, upholding warrantless arrest by detective who

himself lacked probable cause, where he acted at direction of superior who

had specific knowledge of facts and circumstances sufficient to constitute

probable cause).    While it certainly was proper to investigate the report

further, the bare report of a shooting did not, without more, furnish probable

cause to believe that police would discover evidence of crime in the car.

      Furthermore, there was no valid basis to seize Appellant’s car under the

inventory exception.

            The purpose of an inventory search is not to
         uncover criminal evidence, but to safeguard items
         taken into police custody in order to benefit both the
         police and the defendant . . . In the seminal case of
         [South Dakota v.] Opperman, [428 U.S. 364 (1976], the
         high Court observed that inventory searches of impounded


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J-A31038-16


        vehicles serve several purposes, including (1) protection of
        the owner’s property while it remains in police custody; (2)
        protection of the police against claims or disputes over lost
        or stolen property; (3) protection of the police from
        potential danger; and (4) assisting the police in determining
        whether the vehicle was stolen and then abandoned.

           An inventory search of an automobile is permissible when
        (1) the police have lawfully impounded the vehicle; and (2)
        the police have acted in accordance with a reasonable,
        standard policy of routinely securing and inventorying the
        contents of the impounded vehicle.

Commonwealth v. Lagenella, 83 A.3d 94, 102 (Pa. 2013) (emphasis added

and citations omitted).   “[A]n inventory search is only excepted from the

warrant requirement or probable cause where it is motivated by a desire to

safeguard the contents of the vehicle and not by a design to uncover

incriminating evidence.” Commonwealth v. Germann, 621 A.2d 589, 594

(Pa. Super. 1993) (citation and footnote omitted).

     Inventory    searches    are   permissible      in   several   well-defined

circumstances. For example, the legislature has defined instances in which

law enforcement officers may impound cars for obstructing roadways or

highways. See 75 Pa.C.S. § 3352. Moreover, when an individual operates a

vehicle on a highway or trafficway while his operating privileges are

suspended, law enforcement officers may order the vehicle towed and stored

“in the interest of public safety.” 75 Pa.C.S. § 6309.2(a)(1). In addition,

police departments often promulgate standard procedures for when to tow

vehicles. See Commonwealth v. Chambers, 920 A.2d 892, 896 & n.3 (Pa.

Super. 2007) (police officer properly ordered vehicle towed under his police


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department’s general order relating to impoundment, which was attached as

exhibit to suppression hearing transcript).

      These procedures, however, are permissible because they are for a

purpose other than gathering evidence.        An inventory search cannot be a

subterfuge for obtaining evidence of crime. See Lagenella, 83 A.3d at 102.

In this case, Appellant’s car was parked legally in the hospital parking lot and

posed no public safety or traffic concerns. The sole reason for impounding

Appellant’s car was for the purpose of a criminal investigation.      Detective

Sherwood admitted as much by testifying that the confiscation of Appellant’s

vehicle was “part of the investigation part of the crime scene.” N.T., 6/12/14,

at 46-47.    The trial court reached the same conclusion in its opinion:

“Detective Sherwood took custody of the vehicle in anticipation of performing

a search.” Trial Ct. Op. at 11. Consequently, the impoundment of Appellant’s

car was not proper under the inventory search exception. See Germann,

621 A.2d at 594.

II.   Appellant’s Statement At Hospital And First Two Statements At
      East Detectives

      Following treatment for his gunshot wound, Appellant was transferred

from Episcopal Hospital to Temple University Hospital for treatment. There,

at 7:00 a.m., Appellant gave the following statement to Detective Sherwood:

         Me and Joe Harris were on our way home from fishing. Two
         Hispanic males approached and said something to us, but I
         don’t know what they had said. One Hispanic male pulled a
         gun and we ran. I dropped my gear, and ran home. I
         believe I heard a gunshot. I was almost home and I felt


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J-A31038-16


           pain in my rear end. I noticed that I was bleeding. Joe and
           I stepped into my car which was at my house. I drove
           myself to Episcopal Hospital. And then rescue drove me to
           Temple Hospital.10

Id. at 23. Appellant said that he and Harris had been fishing for a couple of

hours, and nobody else was fishing around them. Id. at 24. Appellant added

that the attempted robbery took place in the area of 2400 Beach Street. Id.

at 37.

         Detective Sherwood traveled to the alleged crime scene but found no

evidence of a shooting. Id. at 40. The detective also obtained a statement

from an individual who had been at this location all night long but who had

not “hear[d] any commotion, see anybody getting robbed [or] hear any

gunshots.” Id. at 25.

         Shortly before 8:00 a.m., Detective Sherwood contacted Detective

Gonzalez to inform him of his concerns about the veracity of Appellant’s story.

Id. Detective Sherwood’s work shift ended at 8:00 a.m. Id. at 29-30.

         Between 9:30 a.m. and 10:00 a.m., police officers brought Appellant

from the hospital to East Detectives.     Id. at 48-49 (Detective Gonzalez’s

testimony that Appellant “was brought” to East Detectives “for re-interview,”

and “we had his car and said this investigation was not complete”). Nothing

in the record suggests that Appellant accompanied the officers to the station

involuntarily.


10 Appellant does not contend that this statement should have been
suppressed. The trial court found that it was admissible, and so do we.


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      When Appellant arrived at East Detectives, police officers escorted him

to an interview room and told him to wait there for a detective. Id. at 48-49,

82.   Between 10:00 a.m. and 11:00 a.m., Detective Gonzalez interviewed

Appellant without providing Miranda warnings, and Appellant repeated his

original story. Id. at 49-50, 80-82.

      Detective Gonzalez left the interview room to review police radio calls

but found no reports of gunshots in the area of 2400 Beach Street. Id. at 48-

50. At around 11:00 a.m., the detective returned to the interview room and

read Miranda warnings to Appellant. Id. at 50-51, 83. Appellant waived his

rights and gave a second statement to Detective Gonzalez.         Id. at 51.

Appellant told the detective that he lied about getting shot on Beach Street.

Id. at 55-56. Appellant said that he and his friend, Joe Harris, were inside

Appellant’s apartment at 2987 Richmond Street inspecting some of Appellant’s

air pellet guns. Id. at 55. Appellant claimed that when he was using his

bathroom, a gun in his back pocket accidentally discharged into his buttocks.

Id. at 55. Appellant stated that the gun was not registered to him, but he

had a valid permit to carry a gun. Id. at 57. Appellant left the gun next to

his bed, and he and Harris drove to Harris’ mother’s house on Cumberland

Street in order for Harris’ mother to examine the wound.       Id. at 55-57.

Appellant told Harris’ mother that someone had attempted to rob Harris and

him as they left a Sunoco station. Id. at 56. This second interview took one

to two hours. Id. at 60.



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      The door to the interview room was closed during this time. Id. at 87-

88. Moreover, individuals cannot leave the station without police permission,

and Detective Gonzalez did not offer to escort Appellant out of the station.

Detective Gonzalez testified:

         Q. You have to be buzzed out of [E]ast [D]etectives?

         A. Yes, you need an ID card.

         Q. . . . [I]f you are not a police officer, you would have to
         be escorted out by officers. Isn’t that right?

         A. Yes, that is correct.

         Q. Okay. You never offered to escort [Appellant] out, did
         you?

         A. No. We were in the middle of an investigation.

Id. at 87.

      Appellant argues that the police arrested him without probable cause

when they transported him to East Detectives, and that his statements at East

Detectives were the fruit of an unlawful arrest. The Commonwealth responds

that Appellant accompanied police officers voluntarily to East Detectives as an

alleged victim of crime, and that his first two interviews at the station did not

constitute a custodial detention. We agree with the Commonwealth.

      Police detentions become custodial

         when, under the totality of the circumstances, the
         conditions and/or duration of the detention become so
         coercive as to constitute the functional equivalent of arrest.

             The factors a court utilizes to determine, under the
             totality of the circumstances, whether a detention has


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            become so coercive as to constitute the functional
            equivalent of arrest include: the basis for the detention;
            its length; its location; whether the suspect was
            transported against his or her will, how far, and why;
            whether restraints were used; whether the law
            enforcement officer showed, threatened or used force;
            and the investigative methods employed to confirm or
            dispel suspicions.

Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999) (en

banc) (citations omitted).

      Here, Appellant was initially interviewed at Temple Hospital by Detective

Sherwood and voluntarily gave a statement that he was shot when two

individuals attempted to rob him. Approximately two and a half hours later,

police officers brought Appellant to East Detectives, but the record does not

indicate that he went to the station involuntarily. There is no evidence that

he was handcuffed, and the trial court credited Detective Gonzalez’s testimony

that Appellant was being treated as a victim of crime and not as a suspect.

Thus, we agree with the Commonwealth that Appellant was not under arrest

at this time.

      At the station, Appellant was placed in an interview room and told to

wait for a detective, but he only waited for a half hour before Detective

Gonzalez arrived to begin the interview. The detective did not give Miranda

warnings (again because he was treating Appellant as a victim, not a suspect),

and they spoke for one hour. Appellant repeated his story that two individuals

attempted to rob him.        Nothing about this first interview constitutes the




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functional equivalent of an arrest; it was nothing more than an interview of

an alleged victim of crime.

      Following the first interview, Detective Gonzalez left the room to

perform further investigation.       When he returned at 11:00 a.m., he

administered Miranda warnings, and Appellant agreed to a second interview.

He admitted during this interview that he lied about getting shot on the street

and now claimed that a gun accidentally discharged in his back pocket while

he was inside his apartment. This second statement is admissible because

Appellant consented to an interview when the detective administered Miranda

warnings.

III. Appellant’s Consent To Search His Car And The Search

      Contemporaneous with Appellant’s second statement at East Detectives,

Detective Gonzalez asked Appellant to consent to a search of his car. N.T.,

6/12/14, at 58-59. The detective advised that he was seeking Appellant’s

“voluntary consent,” and that “he didn’t have to give it to us.” Id. at 59. At

12:30 p.m., Appellant signed a form consenting to the search. Id. at 59-60.

      At 1:55 p.m., the detective recovered a black pair of pants from the car

with a bullet hole in the rear left pocket area. Id. at 65. In cases of accidental

shooting, there are usually burn marks on shooter’s clothing. Id. at 65-66.

There were no burn marks on the pants, indicating that Appellant’s claim that

he shot himself accidentally was false. Id.




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        The trial court held that Appellant voluntarily consented to the search of

his car.     We agree, but for different reasons than the trial court.       See

Commonwealth v. Judge, 916 A.2d 511, 517 n. 11 (Pa. 2007) (“[T]his Court

may affirm on any ground”). The trial court held that Appellant was not under

arrest when he consented to the search. We, however, assume that Appellant

was under arrest, but we still find his consent valid.

        “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.” Commonwealth v. Strickler, 757 A.2d 884, 901 (Pa.

2000) (citation omitted).     Here, Appellant was in custody, and the police

informed him that they were in possession of his car. Even so, we do not

consider his consent to have resulted from duress, coercion or a will

overborne. Appellant was only in custody for a few hours before he gave

consent. There is no evidence that his interrogations were improper in any

way: the police did not use inappropriate language or tone of voice or make

any physical contact with Appellant other than escorting him into an interview

room.      The totality of circumstances convince us that his consent was

voluntary.

IV.     Search Warrant For Appellant’s Residence

        At some point during the afternoon, Detective Perfidio prepared a search

warrant application to seize “ballistics, ammunition, handguns, identification,



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[and] any and all items of evidentiary value” in Appellant’s apartment

residence at 2987 Richmond Street in Philadelphia. N.T., 6/12/14, at 60-61;

Commonwealth Exhibit C5.       Detective Perfidio stated in his affidavit of

probable cause:

         On 8/27/13 at approx. 4:56 a.m., [p]olice responded to
         Episcopal Hospital where [Appellant] informed them that he
         was shot by an unknown male at the location of 2400 Beach
         St. [Appellant] was suffering from a gunshot wound to his
         left buttock area. Upon investigation, witnesses in the area
         informed police that there were no gunshots heard in the
         area at the time of the alleged incident, no crime scene was
         located at 2400 Beach St. by the assigned. Upon further
         investigation inside of [East Detectives, Appellant]
         stated that the incident occurred inside his residence
         at the above location, where he accidentally shot
         himself while removing his .380 handgun from his
         rear pocket.

         [Appellant] stated that the weapon is still inside the
         location. Your affiant respectfully request[s] a search
         warrant be approved for the above location to recover the
         weapon and the above[-]mentioned items.11

Id. (emphasis added).     At 3:55 p.m., a magistrate approved the search

warrant. Id. Detectives Gonzalez and Perfidio went to Appellant’s apartment

and recovered a silver and black nine millimeter BB gun in the kitchen area

which “look[ed] like a real gun.” N.T., 6/12/14, at 67. The detectives did not

find a real gun, contrary to Appellant’s assurance in his second custodial

statement that the weapon was still inside his apartment.




11The affidavit did not mention the seizure of the pants from Appellant’s car,
presumably because Detective Perfidio prepared the affidavit before the
detectives searched the car.


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J-A31038-16

      The trial court held that the search warrant provided probable cause to

search Appellant’s residence. We agree.

         The legal principles applicable to a review of the sufficiency
         of probable cause affidavits are well settled. Before an
         issuing authority may issue a constitutionally valid search
         warrant, he or she must be furnished with information
         sufficient to persuade a reasonable person that probable
         cause exists to conduct a search.          The standard for
         evaluating a search warrant is a ‘totality of the
         circumstances' test as set forth in Illinois v. Gates, 462
         U.S. 213 [] (1983), and adopted in Commonwealth v.
         Gray, [] 503 A.2d 921 ([Pa.] 1985). A magistrate is to
         make a ‘practical, common sense decision whether, given
         all the circumstances set forth in the affidavit before him,
         including the ‘veracity’ and ‘basis of knowledge’ of persons
         supplying hearsay information, there is a fair probability
         that contraband or evidence of a crime will be found in a
         particular place.’   The information offered to establish
         probable cause must be viewed in a common sense,
         nontechnical manner. Probable cause is based on a finding
         of the probability, not a prima facie showing of criminal
         activity, and deference is to be accorded a magistrate's
         finding of probable cause.

Commonwealth v. Rapak, 138 A.3d 666, 670-71 (Pa. Super. 2016) (citation

omitted).

      Importantly, “[t]he law is clear that where some evidence contained in

a search warrant affidavit is unlawfully obtained, we must consider whether

the affidavit nonetheless sets forth probable cause in the absence of such

evidence.” Commonwealth v. Hernandez, 935 A.2d 1275, 1283 (Pa. 2007)

(citation omitted).

      Detective Perfidio’s affidavit of probable cause rests in material part

upon Appellant’s custodial statement to Detective Gonzalez that he



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accidentally shot himself in his apartment.       This statement established

probable cause that police would find evidence of crime inside Appellant’s

apartment.

V.    Appellant’s Third Statement At East Detectives

      After searching Appellant’s apartment without finding the gun that he

said he left there, Detective Gonzalez returned to the police station. At 7:30

p.m., the detective met with Appellant, who had remained in custody

throughout the day. N.T., 6/12/14, at 72-73.      The detective gave Appellant

Miranda warnings and “confronted him . . . [with] the inconsistencies in [his

earlier] statement.   It just didn’t add up.    And I asked him about [the

attempted robbery against Fike]. I asked him, and he told me that he was

involved in that [robbery].” Id. at 77. Appellant then told the detective that

Harris was with him at the time of this robbery. Id.

      Based on the evidence gathered throughout the day, the police had

probable cause to believe that Appellant either had submitted a false report

at the hospital or had participated in Fike’s robbery. For a second time, the

police properly administered Miranda warnings, resulting in Appellant’s

confession that he was involved in the robbery.

VI.   Conclusion

      As stated above, Appellant claims that the trial court erred by failing to

suppress his three statements to police at East Detectives, the evidence

obtained during the search of his car, and the evidence obtained during the



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search of his residence.       Having carefully studied each step of the

investigation, we conclude that the impoundment of Appellant’s car was

unconstitutional.   But for the reasons given above, this misstep did not

necessitate suppression of Appellant’s statements at East Detectives, the

evidence obtained during the search of his car, or the evidence obtained from

the search of his residence. This admissible evidence, along with the other

evidence admitted during trial, provides a sturdy foundation for the verdict.

Cf. Commonwealth v. Iannelli, 634 A.2d 1120, 1132 (Pa. Super. 1993)

(evidence of guilt was so overwhelming that the defendant would have been

convicted even absent evidence that police allegedly improperly seized from

defendant’s residence). The trial court’s disposition of Appellant’s motion to

suppress does not entitle him to relief.

        Appellant’s Challenge To The Legality Of His Sentence

      In his third and final argument, Appellant contends, inter alia, that the

trial court imposed an illegal sentence of four years’ probation for his second

degree misdemeanor of false reports, and his sentences for simple assault and

attempted theft should merge with his sentence for robbery. The trial court

agrees that Appellant’s sentence is illegal, Trial Ct. Op., at 16, and the

Commonwealth does not oppose a remand for resentencing. Accordingly, we

will remand this case for resentencing.

      Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.



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     P.J.E. Bender joins.

     Judge Moulton Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2017




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