J-A04014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    CORNELL J. SUTTON                          :   No. 1419 EDA 2018

                      Appeal from the Order April 19, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0004873-2017


BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.:                              FILED MARCH 29, 2019

        The Commonwealth of Pennsylvania appeals from the order, entered in

the Court of Common Pleas of Philadelphia County on April 19, 2018,

suppressing statements made by Cornell J. Sutton during a custodial

interrogation.1 The Commonwealth argues Sutton knowingly and intelligently

waived his Miranda2 rights before being questioned by Detective Don

Suchinsky. After careful review, we reverse and remand.




____________________________________________


1The Commonwealth has certified in its notice of appeal that the suppression
order  “terminates  or   substantially     handicaps     the   prosecution.”
Commonwealth Notice of Appeal, 5/16/18, at 1; see Pa.R.A.P. 311(d).

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



*Retired Senior Judge assigned to the Superior Court.
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        On April 15, 2017, Sutton was arrested in relation to an April 6, 2017

murder. He was charged with murder,3 violations of the Uniform Firearms

Act,4 possession of an instrument of crime,5 robbery,6 and theft.7 On March

21, 2018, Sutton filed a pretrial motion challenging the admissibility of a

statement he made during an interrogation. Sutton argued that the statement

“was not given knowingly, intelligently or voluntarily, and was taken in

violation of his Constitutional rights and protections.” Sutton Motion in Limine,

3/21/18, at 2.

        On April 17, 2018, the trial court held a suppression hearing.       The

suppression court summarized the relevant facts of the underlying case as

follows:

        Detective [Suchinsky] stated that at four minutes and two seconds
        into the video, [Sutton] is shown seated in the interview room of
        the Homicide Unit. At one hour, six minutes and forty-one
        seconds into the video, Detective [Suchinsky] entered the room.
        At one hour, eight minutes and forty-nine seconds into the video.
        Detective [Suchinsky] read Miranda warnings to [Sutton].
        Thereafter, [Sutton] was escorted to the restroom.

        At one hour, fifty-five minutes and six seconds into the video,
        [Sutton] is shown giving his biographical information. At two
        hours and fourteen minutes and thirty-nine seconds into the
____________________________________________


3   18 Pa.C.S.A. § 2502.

4   18 Pa.C.S.A. §§ 6106, 6108.

5   18 Pa.C.S.A. § 907.

6   18 Pa.C.S.A. § 3701.

7   18 Pa.C.S.A. § 3921.

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      video, Detectives [Suchinsky] and Sloan resumed the
      interrogation and [Sutton] gave a statement. Miranda warnings
      were not repeated. At three hours[,] two minutes and 15 seconds
      into the video, [Sutton] was presented with a typed version of his
      statement, which he read and signed.

      This court carefully studied those portions of the video presented
      by the prosecutor. This court finds that at no time did either
      Detective [Suchinsky] or Detective Sloan ask [Sutton] if he
      understood the warnings and if he was willing to waive his rights.
      This court observed that at no time did [Sutton] manifest that he
      understood the warnings and that he was willing to waive his
      rights.

Trial Court Opinion, 6/11/18, at 2-3.

      Sutton’s interrogation was recorded and the video was entered into

evidence at the suppression hearing. At the suppression hearing, Detective

Suchinsky narrated what was occurring on the video. Judge Steven R. Geroff

granted Sutton’s suppression motion on April 19, 2017. The trial court found

Sutton “neither said anything nor gestured in any way indicating that he

understood his Miranda rights and that he was willing to waive them.” Trial

Court Opinion, 6/11/18, at 4. The Commonwealth appealed.

      Our scope of review of a suppression hearing is limited to the evidentiary

record created at the suppression hearing. Commonwealth v. Neal, 151

A.3d 1068, 1071 (Pa. Super. 2016).

      [T]his Court does not, nor is it required to, defer to the
      suppression court’s legal conclusions that a confession or
      Miranda waiver was knowing or voluntary. Instead, we examine
      the record to determine if it supports the suppression court’s
      findings of fact and if those facts support the conclusion that, as
      a matter of law, Appellant knowingly and intelligently waived his
      Miranda rights. . . .


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              Regardless of whether a waiver of Miranda is
              voluntary, the Commonwealth must prove by a
              preponderance of the evidence that the waiver is also
              knowing and intelligent.

              Miranda holds that ‘[t]he defendant may waive
              effectuation’ of the rights conveyed in the warnings
              ‘provided the waiver is made voluntarily, knowingly
              and intelligently.’     The inquiry has two distinct
              dimensions. First[,] the relinquishment of the right
              must have been voluntary in the sense that it was the
              product of a free and deliberate choice rather than
              intimidation, coercion or deception.     Second, the
              waiver must have been made with a full awareness
              both of the nature of the right being abandoned and
              the consequences of the decision to abandon it. Only
              if the ‘totality of the circumstances surrounding the
              interrogation’ reveal both an uncoerced choice and the
              requisite level of comprehension may a court properly
              conclude that Miranda rights have been waived.

Commonwealth v. Knox, 50 A.3d 732, 746 (Pa. Super. 2012) (citations

omitted) (emphasis in original).

      We have repeatedly emphasized that the best practice is for police

officers to obtain written and oral confirmation that a defendant understands

his Miranda rights prior to interrogating him. See, e.g., Commonwealth v.

Cohen, 53 A.3d 882, 887 (Pa. Super. 2012). However, in cases where the

suspect was read his Miranda rights, and the totality of the circumstances

manifests his understanding and intent to waive those rights, we will not

suppress the statements simply because the actual words were not spoken.

See id.

      There     is   no   formal   protocol   that   must   precede    a    waiver.

Commonwealth v. Clemons, 200 A.3d 441, 473 (Pa. 2019).                     A verbal

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expression of waiver is not necessary.           Id. at 472; Commonwealth v.

Bomar, 826 A.2d 831, 843 (Pa. 2003). So long as the Miranda rights were

properly conveyed, waiver can be inferred by the defendant’s conduct. See

Clemons, 200 A.3d at 472; see also Commonwealth v. Baez, 21 A.3d

1280, 1286 (Pa. Super. 2011).

       From our review of the record, it is apparent Sutton understood the

rights as he was being read them. He voluntarily waived those rights when

he began answering Detective Suchinsky’s questions. The video shows Sutton

was able to understand and follow the officers’ directions when he was first

brought into the interrogation room.8 After the officers processed Sutton, he

requested and was provided a cigarette. About an hour after entering the

interrogation room, Sutton was read his Miranda rights by Detective

Suchinsky. Sutton was making eye contact and nodding his head while the

rights were being read, similar to how he nodded his head in response to

questions when he was first brought into the interrogation room. Sutton then

went to the bathroom and, ten minutes later, Detective Suchinsky took

Sutton’s basic intake information. After that, Sutton made his statement to

the police.




____________________________________________


8 Sutton was directed to remove his belt and shoelaces and was given further
direction regarding his shoes, pockets, and rolled pant legs.        Sutton
understood and followed each direction.

                                           -5-
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        From the interrogation room video, it is clear that Sutton was informed

of his Miranda rights and understood the warning.       He knowingly waived

those rights when he chose not to remain silent. Clemons, 200 A.3d at 472.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/19




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