J-S19022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

DONALD JAMES STONE,

                            Appellee                  No. 1657 MDA 2016


              Appeal from the Order Entered September 13, 2016
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0001762-2015


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED MAY 30, 2017

        The Commonwealth appeals from the trial court’s order partially

granting Appellee’s, Donald James Stone (hereinafter “Stone”), motion to

suppress oral and written statements he made to a prison official.        The

Commonwealth contends the statements in question were admissible

because they were voluntarily given and were not the product of a coercive

custodial interrogation, despite the Commonwealth’s concessions that

Appellee was not given Miranda1 warnings beforehand, and that the

statements occurred during a custodial detention. After careful review, we

affirm.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    Miranda v. Arizona, 384 U.S. 436 (1966).
J-S19022-17



     The trial court summarized the relevant facts in this case as follows:

           [Stone] is charged with Institutional Sexual Assault,
     Indecent Assault, Harassment[,] and Official Oppression. On
     June 3, 2015, [Stone], a physician employed by a third party
     contractor at S.C.I. Muncy (Muncy), was interviewed by Security
     Captain Shawn Waltman (Waltman) of Muncy and Trooper James
     Wool (Wool) of the Pennsylvania State Police (PSP) regarding a
     Prison Rape Elimination Act (PREA) allegation made by an
     inmate/patient. [Stone] g[a]ve a written statement to Waltman
     and once Wool arrived at Muncy, gave written consent to search
     his vehicle. Wool's search discovered a notebook that had been
     used by both [Stone] and the alleged victim.

               A. Testimony of Captain Shawn Waltman

           [The] Commonwealth's first witness was Waltman. On
     June 3, 2015, Waltman asked [Stone]'s supervisor to bring
     [Stone] to the security office to make a Staff Statement
     regarding a PREA allegation. Waltman testified [that Stone] was
     brought to the security office in the early afternoon. Waltman
     contacted the PSP after he received the report of the
     allegation[,] stating "that's part of the procedures when we
     receive an allegation that the PSP is notified as well as our Office
     of Special Investigation." Waltman testified that he had not
     been trained in the proper use of Miranda warnings. He also
     explained the reason [Stone] was escorted from the infirmary to
     the security office for his interview was "to make sure there was
     no chance they [alleged victim and alleged perpetrator] crossed
     paths."

           Waltman interviewed [Stone] in the security office of
     Muncy. He told [him] the reason for the investigation and
     advised him that if he left the interview before its completion he
     would not be complying with the investigation.           Waltman
     indicated that normally someone who is an employee of the
     State would be subject to disciplinary action up to and including
     termination if he or she did not comply with an investigation[,]
     but since [Stone] was a contract physician that rule would not
     apply to him.

           Waltman testified that Wool ultimately responded to
     Muncy. When Wool was in the parking lot searching [Stone]'s
     car, [Stone] asked to add information to his written statement;


                                    -2-
J-S19022-17


      Waltman stated that page 4 of the statement was the
      information added after Wool arrived at Muncy.          Waltman
      testified that [Stone] was escorted from the building and asked
      to return the badge that allowed him access to the institution at
      4:15 PM.

       B. Testimony of Trooper James Wool, Pennsylvania State
                                Police

            On June 3, 2015, at noon, Wool was contacted by Corporal
      Joseph Akers of the Pennsylvania State Police Montoursville,
      Criminal Investigation Unit. Wool was advised that Waltman
      contacted the PSP to report an alleged sexual assault that took
      place with a prison physician and an inmate. When Wool arrived
      at Muncy he was met by Waltman in the parking lot who briefed
      him on the situation. In Waltman's office he was told "[Stone]
      wasn't allowed to leave the area until they allowed him to do so.
      [Stone] wouldn't be allowed to go to his office or his vehicle for
      any reason."

             When Wool went into the interview room, Waltman
      explained to [Stone] "the reason why he was being held there.
      He told him that he wasn't allowed to go to his office or leave
      until they allowed him to." Wool confirmed on cross examination
      that it was his understanding that [Stone] was not permitted out
      of the institution until Waltman released him.

             Wool testified that he interviewed [Stone] for about an
      hour. The interview commenced at approximately 1:15 P.M. He
      testified that there was a break in the interview while he
      searched [Stone]'s vehicle, after [he] signed a PSP waiver of
      rights    and   consent    to    search   form,   submitted     as
      Commonwealth's Exhibit 2. Wool testified that it was a form to
      "conduct a search of … Stone's office and also his vehicle located
      at S.C.I. Muncy." Wool testified that he did not [read Miranda
      warnings to Stone] because he was not in custody. Wool told
      [him] that "he was not under arrest....he was probably going to
      go home today, more than likely to go home." He also testified
      that [Stone] did say that if he was going to be accused of sexual
      assault that he wanted an attorney.

Trial Court Suppression Opinion and Order (TCSO), 9/13/16, at 1-4

(footnotes and citations to the record omitted).



                                     -3-
J-S19022-17



       The Commonwealth ultimately charged Stone with the above-listed

offenses in a criminal information filed on October 30, 2015. Stone filed a

supplemental omnibus pre-trial motion on January 4, 2016, in which he

asserted, inter alia, that his verbal and written statements provided to

Waltman and Wool should be suppressed because he made them during a

custodial    detention     without     having    been   read    Miranda   warnings.

Supplemental Pre-Trial Motion, 1/4/16, at ¶¶ 29-33 (unnumbered pages). A

suppression hearing was held on April 25, 2016, at which Waltman and Wool

testified. Stone filed a brief in support of suppression on May 9, 2016, and

the Commonwealth filed its response on May 18, 2016. Stone also filed a

response to the Commonwealth’s brief on May 25, 2016.

       On September 13, 2016, the trial court issued an opinion and order

granting in part, and denying in part, Stone’s suppression motion.

Specifically, the court suppressed Stone’s “statements, oral and written,

made after Wool’s arrival at S.C.I. Muncy….”                   TCSO at 7.2     The

Commonwealth filed a motion for reconsideration of the suppression order

____________________________________________


2
  The trial court also ordered suppression of the notebook discovered in
Stone’s car, having determined that Stone’s consent to that search was
involuntary. The Commonwealth has not preserved on appeal any claim
pertaining to that aspect of the trial court’s suppression order. Moreover,
although Stone maintains that the trial court should have also suppressed
the statements he made prior to Wool’s arrival, Stone has not cross-
appealed in this case. Accordingly, our review in this matter is limited to the
portion of the suppression order pertaining to the oral and written
statements made by Stone after Wool’s arrival.



                                           -4-
J-S19022-17



on September 20, 2016, and Stone filed an answer thereto on September

28, 2016. On September 29, 2016, the trial court issued an order denying

reconsideration.

     The Commonwealth filed a timely notice of appeal on October 4, 2016,

and a timely, court-ordered Pa.R.A.P. 1925(b) statement on October 17,

2016. The trial court issued an order on October 25, 2016, indicating that it

was relying on its September 13, 2016 Opinion and order in lieu of issuing a

Rule 1925(a) opinion.

     The Commonwealth now presents the following question for our

review: Whether the trial court abused its discretion by granting suppression

of statements made by [Stone] to … Waltman at a time when [Stone] was

not being interrogated[?]” Commonwealth’s Brief at 8.

           Our standard of review in addressing a challenge to the
     suppression court's granting of a suppression motion is well
     settled.

        When the Commonwealth appeals from a suppression
        order, we follow a clearly defined standard of review and
        consider only the evidence from the defendant's witnesses
        together with the evidence of the prosecution that, when
        read in the context of the entire record, remains
        uncontradicted. The suppression court's findings of fact
        bind an appellate court if the record supports those
        findings. The suppression court's conclusions of law,
        however, are not binding on an appellate court, whose
        duty is to determine if the suppression court properly
        applied the law to the facts.

     Commonwealth v. Miller, 56 A.3d 1276, 1278–1279 (Pa.
     Super. 2012) (citations omitted). “Our standard of review is
     restricted to establishing whether the record supports the
     suppression court's factual findings; however, we maintain de
     novo review over the suppression court's legal conclusions.”

                                    -5-
J-S19022-17


     Commonwealth v. Brown, 606 Pa. 198, 996 A.2d 473, 476
     (2010) (citation omitted).

Commonwealth v. Korn, 139 A.3d 249, 252–53 (Pa. Super. 2016).

     In Miranda, the Supreme Court of the United States held that:

     [T]he prosecution may not use statements, whether exculpatory
     or inculpatory, stemming from custodial interrogation of the
     defendant unless it demonstrates the use of procedural
     safeguards effective to secure the privilege against self-
     incrimination. By custodial interrogation, we mean questioning
     initiated by law enforcement officers after a person has been
     taken into custody or otherwise deprived of his freedom of action
     in any significant way. As for the procedural safeguards to be
     employed, unless other fully effective means are devised to
     inform accused persons of their right of silence and to assure a
     continuous opportunity to exercise it, the following measures are
     required. Prior to any questioning, the person must be warned
     that he has a right to remain silent, that any statement he does
     make may be used as evidence against him, and that he has a
     right to the presence of an attorney, either retained or
     appointed.     The defendant may waive effectuation of these
     rights, provided the waiver is made voluntarily, knowingly and
     intelligently. If, however, he indicates in any manner and at any
     stage of the process that he wishes to consult with an attorney
     before speaking there can be no questioning. Likewise, if the
     individual is alone and indicates in any manner that he does not
     wish to be interrogated, the police may not question him. The
     mere fact that he may have answered some questions or
     volunteered some statements on his own does not deprive him
     of the right to refrain from answering any further inquiries until
     he has consulted with an attorney and thereafter consents to be
     questioned.

Miranda, 384 U.S. at 444–45 (footnote omitted).

     Moreover,

          [s]tatements made during custodial interrogation are
     presumptively involuntary, unless the accused is first advised of
     her Miranda rights. Commonwealth v. DiStefano, 782 A.2d
     574, 579 (Pa. Super. 2001)….          Custodial interrogation is
     “questioning initiated by law enforcement officers after a person
     has been taken into custody or otherwise deprived of [her]

                                   -6-
J-S19022-17


     freedom of action in any significant way.” Miranda, supra at
     444…. “[T]he Miranda safeguards come into play whenever a
     person in custody is subjected to either express questioning or
     its functional equivalent.” Commonwealth v. Gaul, 590 Pa.
     175, 180, 912 A.2d 252, 255 (2006)…. Thus, “[i]nterrogation
     occurs where the police should know that their words or actions
     are reasonably likely to elicit an incriminating response from the
     suspect.” Commonwealth v. Ingram, 814 A.2d 264, 271 (Pa.
     Super. 2002)…. “[I]n evaluating whether Miranda warnings
     were necessary, a court must consider the totality of the
     circumstances. In conducting the inquiry, we must also keep in
     mind that not every statement made by an individual during a
     police encounter amounts to an interrogation. Volunteered or
     spontaneous utterances by an individual are admissible even
     without Miranda warnings.” Gaul, supra.

Commonwealth v. Williams, 941 A.2d 14, 30 (Pa. Super. 2008).

     For purposes of this appeal, it is uncontested by the Commonwealth

that: 1) Stone was ‘in custody’ for Miranda purposes; 2) he was not read

Miranda warnings prior to giving the suppressed statements; and 3) he did

not execute any waiver of his Miranda rights.                    Nevertheless, the

Commonwealth contends that the suppressed statement were not “the fruits

of [a] custodial interrogation.”      Commonwealth’s Brief at 12.        Thus, the

Commonwealth contends that despite being in custody, and having been

subject   to   an   earlier   custodial   interrogation   by   Wool,   Stone   freely

volunteered the suppressed statements to Waltman while Wool was

searching Stone’s car for the notebook.           In making this argument, the

Commonwealth relies exclusively on two cases, Commonwealth v. Yount,

314 A.2d 242 (Pa. 1974), and Commonwealth v. Myers, 392 A.2d 685




                                          -7-
J-S19022-17



(Pa. 1978).     Although neither of those cases are directly on point, 3 we will

address each in turn.

       The pertinent facts in Yount were as follows:

             On April 28, 1966, the body of Pamela Sue Rimer, an
       eighteen year-old high school student, was discovered in a
       wooded area near her home in Luthersburg, Pennsylvania. One
       of her stockings was knotted and tied around her neck. An
       autopsy revealed that death was caused by strangulation.
       Further examination disclosed three slashes across the victim's
       throat and cuts of the fingers of her left hand, inflicted by a
       sharp instrument, and numerous wounds about her head, caused
       by a blunt instrument.

             At approximately 5:45 a.m. on the morning of April 29,
       1966, [Yount], a teacher at the school the deceased had
       attended, voluntarily appeared at the state police substation in
       DuBois, Pennsylvania, and rang the doorbell. An officer opened
       the door and asked whether he could be of assistance. [Yount]
       stated, ‘I am the man you are looking for.’ The officer asked
       whether he was referring to the ‘incident in Luthersburg,’ and
       [Yount] responded in the affirmative.

             The officer then asked [Yount] to come into the police
       station and be seated. Leaving [him] unattended, the officer
       proceeded to a back bedroom where a detective and another
       police officer were sleeping, woke them, and informed them that
       ‘there was a man in the front that said we are looking for him.’
       He then returned to the front office where [Yount], who had
       removed his coat, hat, and gloves, identified himself as Jon
       Yount.

             After dressing, the detective and the second officer
       entered the front office. The detective was told by the first
____________________________________________


3
  Specifically, neither Yount nor Myers directly address the core issue at
the heart of the Commonwealth’s argument: whether Stone’s response to an
immediately preceding custodial interrogation was so temporally displaced
from that interrogation that it constituted a spontaneous, volunteered
utterance unprotected by Miranda.



                                           -8-
J-S19022-17


      officer that [the man]'s name was Jon Yount. The detective then
      asked [Yount] to be seated inside a smaller office adjacent to the
      front office, where he asked, ‘Why are we looking for you?’
      [Yount] replied, ‘I killed that girl.’ Upon hearing that answer, the
      detective inquired, ‘What girl?’, and [Yount] responded, ‘Pamela
      Rimer.’

             In response to the detective's next question, ‘How did you
      kill this girl?’, [Yount] answered, ‘I hit her with a wrench and I
      choked her.’ At that point the detective gave [Yount] admittedly
      inadequate Miranda warnings, and began interrogation as to the
      details of the crime. A written confession was subsequently
      obtained.

Yount, 314 A.2d at 244–45.

      Yount was initially convicted of rape and first degree murder, but was

then granted a new trial on appeal when our Supreme Court determined that

Yount’s inculpatory answers (including his subsequent confession) to the

detective’s question, “How did you kill this girl?,” should have been

suppressed under the authority of Miranda.            See Commonwealth v.

Yount, 256 A.2d 464, 466 (Pa. 1969).          During Yount’s second trial, he

argued that “the [trial] court erred in not suppressing his statement, ‘I killed

that girl,’ and his identification of the victim as ‘Pamela Rimer[,]’” in

response to the detective’s questions, “Why are we looking for you?” and

“What girl?” Yount, 314 A.2d at 245.

      The Yount Court rejected his claim, concluding that the detective’s

inquiries did not constitute a custodial interrogation, and that Yount’s

responses were volunteered. The Court reasoned:

      [I]t cannot be said that the two police inquiries here challenged
      constitute conduct calculated to, expected to, or likely to elicit an
      incriminating response, or that they were asked with an intent to
      extract or an expectation of eliciting an incriminating statement.

                                      -9-
J-S19022-17


      All this record establishes is that the detective knew only that a
      man named Jon Yount—a name which the detective had never
      heard before—voluntarily came to the police station early in the
      morning and volunteered that the police were looking for him.
      In response to this information, the detective extemporaneously
      asked, ‘Why are we looking for you?’ [Yount] was not coerced,
      prompted, or urged to incriminate himself. To the contrary, the
      detective's inquiry, made in response to information volunteered
      by [Yount], was of a neutral character and not interrogative.

            [Yount]'s answer, ‘I killed that girl,’ was given freely and
      without compelling influence. It was therefore volunteered in
      the constitutional sense.       That the answer was in fact
      incriminating does not alter its volunteered character nor
      preclude its use. Miranda …, supra at 478, 86 S.Ct. at 1630,
      16 L.Ed.2d 694.

             Similarly, we are of the opinion that the statement
      identifying ‘that girl’ as ‘Pamela Rimer’ was volunteered.
      [Yount], without any compulsion, went to the substation and
      volunteered that he had killed ‘that girl.’ As we indicated in
      Commonwealth v. Simala, … 252 A.2d [575,] 579 n.2 (Pa.
      1969), after an incriminating, but ambiguous, statement is
      volunteered, as was done here, a question which does not do
      ‘anything more than clarify statements already made,’ in the
      absence of any coercion or prompting, subtle or overt, is
      permissible. See also Kamisar, “Custodial Interrogation' Within
      the Meaning of Miranda,' in Institute of Continuing Legal
      Education, Criminal Law and the Constitution—Sources and
      Commentaries 335, 354 (1968).

             Here, immediately upon hearing [Yount]'s volunteered
      statement, ‘I killed that girl,’ the detective spontaneously asked,
      ‘What girl?’ By this he sought only to clarify [Yount]'s prior
      statement. [Yount] responded, ‘Pamela Rimer.’ Such a clarifying
      inquiry, made in response to a statement volunteered by [Yount]
      during an interview which he initiated, is proper. The
      identification must be deemed constitutionally volunteered.

Yount, 314 A.2d at 246.

      We do not find Yount to be sufficiently analogous to the matter at

hand so as to call into question the propriety of the trial court’s suppression


                                    - 10 -
J-S19022-17



order.    Yount voluntarily went to a police station and told the police that

they were looking for him.             When they asked why, he volunteered an

inculpatory statement that he had killed a girl.          When asked a clarifying

question, he identified the victim.

       Factually speaking, nothing similar or analogous occurred here, where

it is undisputed that Stone was already in custody for Miranda purposes

long     before   he   offered   the    suppressed   statements.    While   Stone’s

statements were not made in the strictest sense as an immediate response

to a specific question, we cannot simply ignore the fact that they were made

after Stone had already been subject to a custodial detention and

interrogation for at least an hour, before Stone was released from that

custodial detention, and after Stone had indicated that he wanted a lawyer if

he was going to be accused of a crime.               Moreover, Wool’s searching of

Stone’s car for evidence, while Stone was still under a custodial detention,

itself may be fairly construed as police conduct intended to pressure Stone

into making an inculpatory statement, or at least as an inconsequential

pause in a custodial interrogation that resumed when the brief search was

completed.4




____________________________________________


4
  Waltman testified that the custodial interrogation continued when Wool
returned from searching Stone’s vehicle, N.T., 4/25/16, at 44, a fact which
was confirmed by Wool during his testimony, id. at 50.



                                          - 11 -
J-S19022-17



     As noted above in Williams, we must consider the totality of the

circumstances in determining whether Miranda warnings were necessary,

and there is a presumption of involuntariness applied to statements made

during a custodial interrogation conducted in the absence of Miranda

warnings.   Williams, 941 A.2d at 30.       Here, it cannot be fairly said that

Stone’s incriminating statements were made in the complete “absence of

any coercion or prompting, subtle or overt[,]” as was the case in Yount.

Yount, 314 A.2d at 246. To the contrary, Stone’s inculpatory statements

appear to have stemmed directly from the immediately preceding custodial

interrogation, as they were responsive to that interrogation, and were not at

all “spontaneous” in the same manner as was at issue in Yount.             The

Commonwealth essentially argues that the custodial interrogation of Stone

had ceased when he made the contested statements because Wool had

stopped the interview, temporarily, in order to search Stone’s car. That fact

is only one of many the trial court had to consider in determining whether

the failure to provide Miranda warnings rendered inadmissible the contested

statements.   Simply put, the Yount decision offers no support for the

Commonwealth’s claim on appeal.




                                   - 12 -
J-S19022-17



        In Myers, the defendant pled guilty to murder generally, requiring a

hearing to determine his degree of guilt.            At his degree-of-guilt hearing,5

Myers challenged the admission of an inculpatory statement he made in

prison while awaiting trial, and outside the presence of counsel. Myers was

approached by a police officer in regard to a matter unrelated to his murder

trial. See Myers, 392 A.2d at 687. After discussing the unrelated matter,

“and with no questioning from the officer about the murder, [Myers] asked

the officer to identify the informant in the murder case.                After the officer

responded, [Myers] made the challenged statement.”                  Id.    Our Supreme

Court    held    that    Myers’    inculpatory     statement    was       “spontaneously

volunteered.”      Id.    Moreover, the Court opined, “[w]here … a suspect

volunteers a statement without interrogation, there is no danger that police

interrogation tactics might have pressured him to forego his right to have

counsel present.” Id. at 688.

        We conclude that Myers is also inapposite. Here, Stone was not being

interrogated about an unrelated matter prior to making the contested

statements;     his     statements    were     directly   related   to    the   preceding

interrogation(s) by Wool and Waltman.              There is no indication that Myers

ever asked to have counsel present (even though he was already


____________________________________________


5
   This was Myers’ second degree-of-guilt hearing. His initial conviction for
first degree murder, and corresponding sentence of death, was overturned
on unrelated grounds.



                                          - 13 -
J-S19022-17



represented by counsel) when he made his spontaneous remarks, whereas

here, Stone indicated to Wool that he wanted counsel present if he was

being accused of committing a crime. Accordingly, we also disagree with the

Commonwealth that the Myers decision compels reversal of the suppression

order in this case.

      The Simala case, while also not directly on point, is at least more

analogous to the circumstances in this matter. In Simala, the victim was

killed with a .22 caliber gun. Simala, 252 A.2d at 576. Police received a

report that Simala had been seen with a .22 caliber revolver on the previous

day. Based on that information, the police obtained a search warrant from

“Ralph George, who served as mayor and as justice of the peace….”          Id.

When police went to Simala’s home to inquire about the gun, Simala told

them he had given the weapon to Robert Kline. Id. Simala was on juvenile

probation, and so police took him into custody, presumably because of his

admission that he had previously possessed the firearm.       Id.   However,

instead of taking him to a juvenile detention facility, the police took Simala

to Mayor George’s office, where he sat with Mayor George and two police

officers as other officers went to Kline’s home. Id. “About a half hour after

[Simala] was brought to the mayor's office, Mayor George asked him about

the gun, and [Simala] told him that he got the gun from a person named

Ralph who lived in Johnstown.” Id.

      That which then ensued is critical to the question of the
      admissibility of an oral statement made by [Simala]. All three
      persons testified substantially to the same effect as to what took

                                     - 14 -
J-S19022-17


     place, and [Simala]'s version does not seriously dispute it. The
     mayor and the two police officers were carrying on a
     conversation between themselves, and Mayor George looked
     over toward [Simala], who was ‘sitting there with his head down
     and looked out of this world.’ Mayor George said: ‘What's the
     matter, Mike, you look kind of down in the dumps; do you
     w[ant] to talk? He ([Simala]) said, I want to, but I can't. I said,
     well, if you want to talk, talk.’ At that point [Simala] orally
     confessed to having killed [the victim]. Mayor George then
     notified police officers who were in an adjoining room, and
     thereafter a written statement which was not introduced into
     evidence was taken from [Simala] after he had been warned of
     his Miranda rights for the first time.

            At a pre-trial suppression hearing [Simala] attacked the
     admissibility of the oral statement given in Mayor George's
     office, but the court below ruled that the oral confession was not
     the product of ‘custodial interrogation’ and that, therefore, it was
     not necessary to warn [Simala] of his Miranda rights before he
     volunteered the statement.

Id. at 576-77.

     Our Supreme Court reversed, stating that

     this is not a case where [Simala], unencouraged, began to blurt
     out his confession. Although [Simala] may have been thinking
     of confessing, something was making him think that he should
     not, and the first move was made not by him but by the mayor
     who [u]rged [him] to ‘talk.’         This should be sufficient to
     necessitate Miranda warnings. Once the mayor said ‘you look
     kind of down in the dumps if you want to talk, talk,’ he should
     have also been obligated to inform [Simala] of the consequences
     of any statement and of his constitutional right to remain silent
     and to be assisted by counsel. ‘(I)t is not simply custody plus
     ‘questioning,’ as such, which calls for the Miranda safeguards
     but custody plus police [c]onduct (here the mayor's conduct)
     calculated to, expected to, or likely to, evoke admissions.'

Id. at 578.

     Likewise, here, Stone was in custody, and the prior interrogation by

Wool and Waltman, coupled with Wool’s search of Stone’s car for


                                    - 15 -
J-S19022-17



incriminating evidence, was, by all appearances, police conduct calculated to

evoke an admission from Stone. While Stone’s contested statements were

made shortly after the formal interrogation itself, the delay was not so

substantial as to justify a determination that his Miranda rights had

suddenly evaporated.   The delay in the interrogation was brief, Stone had

attempted to invoke his right to counsel before making the statements, Wool

kept him in custody while the search was conducted, and continued a

custodial interrogation when he returned.

     Because Stone’s statements occurred in the absence of Miranda

warnings, while he was in custody, and within close temporal proximity to a

custodial interrogation that was intended to elicit an inculpatory response,

we agree with the trial court that suppression of the contested statements

was warranted in the circumstances of this case.         In any event, the

Commonwealth has simply failed to demonstrate any legal error in the trial

court’s suppression order.   Accordingly, we affirm the trial court’s order

suppressing Stone’s at-issue statements.

     Order affirmed.

     President Judge Gantman joins this memorandum.

     President Judge Emeritus Stevens files a dissenting memorandum.




                                   - 16 -
J-S19022-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/30/2017




                          - 17 -
