J-A09040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
               v.                              :
                                               :
    ADAM ZYDNEY                                :
                                               :
                      Appellee                 :       No. 927 MDA 2016

                  Appeal from the Order Entered May 4, 2016
                In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0001371-2015,
                            CP-14-CR-0001810-2015


BEFORE:      GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                             FILED APRIL 27, 2017

       Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Centre County Court of Common Pleas, which suppressed the

statements which Appellee, Adam Zydney, made to police during a non-

custodial interview.1 We affirm.

       The relevant facts and procedural history of this case are as follows.

On July 31, 2015, police executed a search warrant at Appellee’s residence


____________________________________________


1
  The record indicates the court issued notice of its May 4, 2016 order to the
parties on May 5, 2016. The Commonwealth had until June 5, 2016, to file a
notice of appeal. June 5, 2016, however, fell on a Sunday. Accordingly, the
Commonwealth timely filed its notice of appeal on Monday, June 6, 2016.
See Pa.R.A.P. 108(a)(1) (explaining that in computing any period of time
under these rules involving date of entry of order, day of entry shall be day
clerk of court mails or delivers copies of order to parties).
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for indicia of possession and distribution of child pornography. During the

search, police confiscated, inter alia, Appellee’s laptop. On August 4, 2015,

Appellee and his attorney voluntarily met with Detective Martin, who

interviewed Appellee. Detective Martin informed Appellee the interview was

non-custodial and Appellee was free to leave at any time. Detective Martin

explained that he assumed Appellee understood his rights because counsel

was present; Appellee indicated he did. Detective Martin advised Appellee

that if Appellee cooperated and explained what authorities would discover on

Appellee’s laptop, Detective Martin would charge Appellee with only one

count of possession of child pornography.     Detective Martin also said he

could not “ultimately determine what would happen with the final disposition

of the case.”   (N.T. Suppression Hearing, 1/22/16, at 30).   Subsequently,

Appellee told Detective Martin there was child pornography on his laptop.

     The Commonwealth charged Appellee on August 31, 2015, with one

count of possession of child pornography at No. 1371-2015.                  The

Commonwealth charged Appellee, on November 11, 2015, with an additional

1,061 counts of possession of child pornography at No. 1810-2015.           The

court consolidated the cases on December 16, 2015.        On December 23,

2015, Appellee filed a motion to suppress his interview statements to

Detective Martin and to dismiss the additional 1,061 possession charges.

The court held a suppression hearing on January 22, 2016, where Detective

Martin testified. On May 4, 2016, the court granted in part and denied in


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part Appellee’s suppression motion. The court suppressed Appellee’s August

4th interview statements as involuntary but did not dismiss the additional

1,061 charges.    The Commonwealth filed a timely notice of appeal on

Monday, June 6, 2016, and certified in its notice of appeal that the court’s

suppression order substantially handicapped or terminated prosecution. On

that same day, the court ordered the Commonwealth to file a concise

statement of errors complained of on appeal per Pa.R.A.P. 1925(b); the

Commonwealth timely complied on June 27, 2016.

     The Commonwealth raises one issue for our review:

        WHETHER THE TRIAL COURT ERRED IN GRANTING
        [APPELLEE’S] MOTION TO SUPPRESS STATEMENTS
        FINDING THAT THE STATEMENTS WERE NOT MADE
        VOLUNTARILY WHEN THEY WERE MADE BY [APPELLEE],
        DURING A VOLUNTARY VISIT TO THE POLICE STATION,
        WHEN HE WAS ACCOMPANIED BY HIS ATTORNEY
        THROUGHOUT HIS INTERVIEW, AND NO PROMISE OF
        ACTUAL IMMUNITY WAS MADE TO [APPELLEE?]

(Commonwealth’s Brief at 4).

     When the Commonwealth appeals from a suppression order, the

relevant scope and standard of review are:

        [We] 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.       As long as there is some
        evidence to support them, we are bound by the
        suppression court’s findings of fact. Most importantly, we
        are not at liberty to reject a finding of fact which is based
        on credibility.

        The suppression court’s conclusions of law, however, are
        not binding on an appellate court, whose duty is to

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        determine if the suppression court properly applied the law
        to the facts.

Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),

appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (citations and quotations

omitted).

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Thomas King

Kistler, we conclude the Commonwealth’s issue merits no relief.            The trial

court’s opinion comprehensively discusses and properly disposes of the

question presented. (See Trial Court Opinion, filed May 4, 2016, at 9-10)

(finding: Appellee made inculpatory statements in interview with Detective

Martin; Appellee was free to leave interview and had counsel present

throughout interview; during suppression hearing, Detective Martin testified

that he told Appellee during interview that if Appellee “was cooperative…and

[if] he’s honest with me and I find what he’s telling me I’m going to find,

then I would charge him with one count, but I couldn’t ultimately determine

what would happen with the final disposition of the case”; notwithstanding

Detective’s statement that Appellee was free to leave interview at any time,

Detective was person in apparent authority to make and perform on his

promise to file only one charge; Detective Martin was unable to bind District

Attorney’s   office   with   promises   as    to   charging   decisions;   likewise,

Commonwealth cannot then use evidence obtained as direct result of those

promises against Appellee; under totality of circumstances, Appellee’s

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J-A09040-17


interview statements to Detective Martin were involuntary and must be

suppressed to put Appellee back in position as if he had not spoken with

Detective Martin).      The record supports the trial court’s reasoning.

Accordingly, we affirm on the basis of the trial court opinion.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2017




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