J-A02004-18

                              2018 PA Super 208

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellant             :
                                        :
                                        :
            v.                          :
                                        :
                                        :
BRIAR DAVID JONES                       :   No. 755 WDA 2017

               Appeal from the Order Entered April 25, 2017
    In the Court of Common Pleas of Greene County Criminal Division at
                      No(s): CP-30-CR-0000388-2016


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

OPINION BY BOWES, J.:                                FILED JULY 17, 2018

     The Commonwealth appeals from the trial court’s order granting

suppression of a firearm and statements. We affirm in part, reverse in part,

and remand for further proceedings.

     The trial court set forth its factual findings in its order granting

suppression, which we adopt herein:

     The Court has heard the testimony of Pennsylvania State Police
     Trooper Nathan Feniello and the testimony of [Appellee], Briar
     Jones, and his girlfriend, Christina Wellman, and the Court . . .
     will make the following determination of facts:

     On September 14, 2016, Trooper Feniello, while being relatively
     newly employed and still being coached and/or mentored by
     Trooper James Bahirad, came into information which showed
     sometime prior to this date there were three entries and thefts
     into vehicles, that were temporally and geographically related.
     The Court also believes that the State Police had information
     which showed that [Appellee] was in possession of credit cards
     stolen during one of those three automotive “break ins” and that
     in one vehicle theft, a 9mm black pistol was stolen. As such, the
     Court believes that the State Police contacted [Appellee] and
     also the Court believes that [Appellee] lacked transportation,
J-A02004-18


     and that the request of [Appellee] to come to the Pennsylvania
     State Police Barracks would have been a voluntary request in
     which [Appellee] would have been free to decline.

     The Court also believes that the Pennsylvania State Police went
     to [Appellee]’s home at 1539 Aleppo Road, Aleppo,
     Pennsylvania, sometime in the evening hours of September 14,
     2016. The Court believes that there was a conversation with
     [Appellee] and the two Troopers mentioned above, on the porch
     of that home, and at that point [Appellee] was free to leave and
     not under arrest. Therefore, any statement made with regard to
     [Appellee] coming into possession of a gun which he purchased
     from Michael Dean would be a voluntary statement and not
     suppressed, the Court believing that Miranda would not have
     been required under those circumstances. The Court also
     believes the testimony of Trooper Feniello when he indicates that
     [Appellee] recognized that the gun was stolen or likely to be
     stolen. The Court also determines as factual that [Appellee] was
     transported, for whatever reason, but however transported in
     handcuffs from that address in Aleppo to his grandmother’s
     home, and regardless of the intention of the State Police, the
     Court believes that at least during the period of his transport
     from his home in Aleppo to his grandmother’s that he would’ve
     been in custody and any statements made by [Appellee] during
     that initial car trip would be suppressed. The Court need not
     consider the statements of the juvenile brother or the
     grandmother, as it though appears that the residence of the
     grandmother and presumably Forest, the brother of [Appellee],
     was searched, and again the Court need not determine whether
     that was Constitutional or not.

     The Court also determines that [Appellee] was again transported
     from his grandmother’s back to his place of residence in Aleppo
     and was again handcuffed, and any statements made during that
     second car trip would also be suppressed as no Miranda
     [w]arnings were read. After the second “handcuffed” trip and
     upon return to [Appellee]’s home, the Court believes that an
     environment was created that such that from the time that the
     garage was beginning to be searched, that [Appellee] was no
     longer free to leave and that Miranda [w]arnings were not read.
     The Court will also acknowledge, though, to the record that
     [Appellee]’s girlfriend, Christina Wellman, did indicate to the
     Pennsylvania State Police that the handgun could be located in
     the rafters of their home. The Court will make a determination

                                   -2-
J-A02004-18


       as to whether this was consensual, either by [Appellee] or by
       Ms. Wellman, that decision to be made after further
       consideration of the facts and law.

       The Court further determines as factual that the handgun, that
       was ultimately recovered, was recovered by [Appellee] and the
       circumstances were such that [Appellee] would have been in a
       position when he was no longer free to leave, in other words that
       the circumstances were custodial and that Miranda was never
       read from the time of [Appellee]’s and Troopers’ return to
       [Appellee]’s home at the Aleppo address. The Court will also
       acknowledge to the record that the Troopers and [Appellee]
       “recovered” a pink and black 9mm handgun, which all would
       acknowledge, and the Court factually determines was not the
       handgun for which the original investigation began.

Trial Court Order, 4/25/17, at 1-6.

       The trial court applied the law to these factual findings, which we will

address in detail below, and concluded that the gun must be suppressed

because neither Appellee nor Ms. Wellman voluntarily consented to the

search of the home.1

       The Commonwealth appealed and the trial court ordered a Pa.R.A.P.

1925(b) statement.2 The Commonwealth complied and the court authored

its opinion in response, which adopted the prior order and addressed the

Commonwealth’s additional issues. Before examining the Commonwealth’s
____________________________________________


1 The facts indicate that Ms. Wellman asked Appellee during these
conversations whether the firearm was in the rafters of the home. It is
unclear whether Appellee, Ms. Wellman, or both permitted the officers to
enter the home to search.

2 The Commonwealth certified with its notice of appeal that the order
substantially handicaps its prosecution. Accordingly, we have jurisdiction to
review this interlocutory appeal. Pa.R.A.P. 311(d).



                                           -3-
J-A02004-18


argument, we address Appellee’s assertion that this Court must quash the

appeal due to the Commonwealth’s purported failure to comply with

Pa.R.A.P. 1925. The relevant facts follow. The trial court’s order directed

the Commonwealth to file a Rule 1925(b) statement within twenty-one days,

and stated that noncompliance “may be considered as a waiver.”          Order,

5/23/17, at 1.       Additionally, the order required the Commonwealth “to

timely file and serve the statement of record with the court[.]” Id.

       The Commonwealth’s subsequent filing certified that a copy was

supplied to Appellant’s counsel “by hand, mail or facsimile.”          Concise

Statement, 6/6/17, at 2. The order did not, however, indicate whether or

not a copy was served on the judge.3

       The trial court’s Pa.R.A.P. 1925(a) opinion makes no reference to

whether the Commonwealth provided the judge a copy of the concise

statement.     Instead, the failure to serve a copy of the Pa.R.A.P. 1925(b)

statement was raised by Appellee in his brief, and we could remand for a

determination on that point. See Pa.R.A.P. 1925(c)(1) (“An appellate court

may remand in either a civil or criminal case for a determination as to

whether a Statement had been filed and/or served or timely filed and/or

served.”).

____________________________________________


3 Pursuant to Pa.R.A.P. 1925(b)(1), the statement may be served by manner
of service specified under Pa.R.A.P. 121(c), which includes personal service
at the judge’s chambers.



                                           -4-
J-A02004-18


      We have not found any case involving this scenario; instead, the cases

involve the trial court raising the issue in the Pa.R.A.P. 1925(a) opinion.

Berg v. Nationwide Mut. Ins. Co., Inc., 6 A.3d 1002, 1004 (Pa. 2010)

(plurality) (“[The trial judge] stated that he had not been served with

Appellants’ 1925(b) Statement, and concluded that, as a result, all of

Appellants’ issues on appeal were waived”); Commonwealth v. $766.00

U.S. Currency, 948 A.2d 912, 914 (Pa.Cmwlth. 2008) (“The trial court

noted that Appellant failed to serve on the trial court judge both his notice of

appeal and statement of errors complained of on appeal”); Forest

Highlands Cmty. Ass’n v. Hammer, 879 A.2d 223, 228 (Pa.Super. 2005)

(quoting trial court opinion, “To date, this [c]ourt has never been served

with a copy of a Rule 1925(b) Statement”).

      We decline to find waiver due to the Commonwealth’s potential

noncompliance, because the trial court’s Rule 1925(b) order itself is

deficient.   In Berg, supra, the trial court’s Rule 1925 order required the

appellants to “file with the [c]ourt, and a copy with the trial judge, a Concise

Statement[.]” Id. at 1004. The appellants’ attorney brought three copies of

the 1925(b) statement for filing, but the prothonotary stated that the judge

only wanted the original and refused to say where the senior trial judge’s

chambers were located.     The prothonotary promised counsel that the trial

judge would receive the statement. As noted supra, the trial judge stated




                                     -5-
J-A02004-18


that the statement was never served. In In re Estate of Boyle, 77 A.3d

674, 678 (Pa.Super. 2013), we explained Berg as follows:

      In Berg, our Supreme Court considered whether an appellant’s
      failure to personally serve on a trial judge a court-ordered
      1925(b) statement, in accordance with Pa.R.A.P. 1925, results in
      waiver of all issues, where the court’s order itself does not
      comply with Rule 1925. . . .

      A plurality of our Pennsylvania Supreme Court held that, in
      contravention of Rule 1925(b)(3), the express language of the
      1925(b) order did not instruct the appellants to serve a copy of
      their 1925(b) Statement on the trial judge; rather, it directed
      them to file copies . . . with the court and with the trial judge.
      Accordingly, it concluded, the appellants substantially complied
      with the court’s order by attempting to provide the prothonotary
      with two time-stamped copies of [their] 1925(b) statement, with
      one to be served on the trial judge.

Id. at 678 (cleaned up).

      Since “it is the trial court’s order that triggers an appellant’s obligation

under the rule,” id., we quote the order at issue herein:

      AND NOW, this 23rd day of May, 2017, the Commonwealth
      having filed an appeal to the Pennsylvania Superior Court on
      May 22, 2017, it is ORDERED that pursuant to Pennsylvania Rule
      of Appellate Procedure 1925(b), the Commonwealth shall file a
      concise statement of the matters complained of on appeal within
      twenty-one (21) days of this date, the failure to comply may be
      considered as a waiver of all objections to the order from which
      the appeal was taken, including the failure to timely file and
      serve the statement of record with the court, and as otherwise
      required by Pa.R.A.P. 2116.

Order, 5/23/17 at 1. The text of the Rule states:

      (3) Contents of order.--The judge’s order directing the filing and
      service of a Statement shall specify:




                                      -6-
J-A02004-18


              (i) the number of days after the date of entry of the
              judge’s order within which the appellant must file
              and serve the Statement;

              (ii) that the Statement shall be filed of record;

              (iii) that the Statement shall be served on the judge
              pursuant to paragraph (b)(1);

              (iv) that any issue not properly included in the
              Statement timely filed and served pursuant to
              subdivision (b) shall be deemed waived.

Pa.R.A.P. 1925(b)(3).

       The instant order fails to comply with this directive in several ways.

First, the order directs the Commonwealth to comply with Pa.R.A.P. 2116.

That citation is misplaced.        While the language of that Rule states “The

statement of the questions involved must state concisely the issues to be

resolved,” Rule 2116 is placed within chapter twenty-one, which governs the

contents of appellate briefs. Second, the order informs the Commonwealth

that failure to comply “may be considered” waiver. That language differs to

a material degree from the “shall be deemed waived” text of Rule

1925(b)(3)(iv).4 Third, the order does not specify “that the Statement shall

____________________________________________


4 The trial court’s order in Berg was defective in this respect, as it did not
mention waiver at all. The plurality declined to address whether that failure
independently justified its ruling.

       As noted, although the trial court’s order failed to meet the
       requirements of Rule 1925(b)(3)(iii) and (iv), it is the trial
       court’s failure to comply with subsection (b)(3)(iii) that we find
       directly implicated in the instant case. Therefore, we save for
(Footnote Continued Next Page)


                                           -7-
J-A02004-18


be served on the judge pursuant to paragraph (b)(1).”        Instead, it only

directs the Commonwealth to “file and serve the statement of record with

the court[.]”     Notably, paragraph (b)(1)(ii) governs filing the statement,

while (b)(1)(iii) discusses serving the statement with the judge. Herein, the

order used the phrase “the court,” which is ambiguous in that it does not

distinguish between the Court of Common Pleas as the court of record and

“the court” in reference to the trial judge.

      Due to the multiple foregoing defects, we decline to quash the appeal.

We recognize that the “substantial compliance” standard applied in Berg

would not be met herein if the Commonwealth had failed to supply a copy by




(Footnote Continued) _______________________

      another day the effect of a trial court’s failure to comply with
      subsection (b)(3)(iv), namely, the failure to specify in its Rule
      1925(a) order that any issue not included in an appellant’s Rule
      1925(b) statement shall be deemed waived.

Berg v. Nationwide Mut. Ins. Co., Inc., 6 A.3d 1002, 1012 n.19 (Pa.
2010).

The order in Berg, as quoted in the opinion, did not mention waiver in any
respect, whereas here the trial court stated that failure “may” result in
waiver. This case thus presents the additional question of who “deems the
issue waived”: the trial court, or the appellate court. This Court has raised
the issue sua sponte. In re Estate of Boyle, 77 A.3d 674, 679 (Pa.Super.
2013) (“We acknowledge that neither party nor the trial court has raised the
timeliness of the 1925(b) statement.”). However, in those cases, it is the
absence of a docket entry that permits this Court to sua sponte address the
issue. Here, as noted, the trial judge did not state whether or not the
Commonwealth supplied a copy.




                                          -8-
J-A02004-18


any means whatsoever.5           However, unlike Berg the order herein did not

require    the    Commonwealth         to      supply   a   copy.   Therefore,   the

Commonwealth’s obligations were unclear, and it was informed that waiver

“may” result.6      We therefore decline to find waiver and now turn to the

Commonwealth’s argument.


____________________________________________


5Our sister court determined, in Commonwealth v. Matsinger, 68 A.3d
390 (Pa.Cmwlth. 2013), that the following order was defective:

       In the instant matter, the trial court’s order omitted Pa.R.A.P.
       1925(b)(1) to describe the manner of filing and service, as is
       required by Pa.R.A.P. 1925(b)(3)(iii). Instead, the trial court’s
       order merely required “fil[ing] with the trial court and serv[ice]
       on the trial judge.” Trial Ct. Order, September 28, 2012. Thus,
       the trial court’s failure to comply with Pa.R.A.P. 1925(b)(3)(iii)
       deprived Matsinger of critical information regarding the proper
       method for filing and service of his 1925(b) Statement.

Id. at 395. That order distinguished between the court and the judge.
Matsinger ultimately concluded that the appellant substantially complied.

6 The use of permissive language suggests that waiver is not an automatic
consequence, which, as stated by Justice Baer’s dissenting opinion in Berg,
lends itself to disparate treatment.

       Were I to agree with the OAJC that the trial court’s order trumps
       Rule 1925(b), I would be inclined to join this reasoning. In my
       view, however, where an order and rule are in tension, the
       careful practitioner either should comply with both, or if that is
       not clearly possible, comply with the rule and seek clarification
       from the issuing judge of the order. Absent such prudence,
       waiver should result, not because it is harsh on the litigant or
       counsel, but because it ensures uniform justice to the tens of
       thousands of litigants proceeding through Pennsylvania courts
       each year.

(Footnote Continued Next Page)


                                            -9-
J-A02004-18


      We now address the Commonwealth’s appeal, which raises the

following question: “Did the court err in declaring the consent to search the

Appellee’s home involuntary and suppressing the evidence obtained as a

result?” Commonwealth’s brief at 9. We apply the following principles.

      When reviewing an appeal from a suppression court’s decision,
      we must first determine whether the record supports the court’s
      factual findings. Commonwealth v. Williams, 539 Pa. 61, 71,
      650 A.2d 420, 425 (1994). When the Commonwealth appeals
      from a suppression court’s decision, we consider only the
      evidence of [Appellee]’s witnesses and so much of the
      prosecution’s evidence that remains uncontradicted when fairly
      read in the context of the record as a whole. Commonwealth v.
      Prosek, 700 A.2d 1305, 1307 (Pa.Super.1997). We are bound
      by the suppression court’s factual findings when the evidence
      supports those findings; however, we may reverse the
      suppression court when it draws erroneous legal conclusions
      from those factual findings. Williams, 539 Pa. at 71–71, 650
      A.2d at 426.

In re V.H., 788 A.2d 976, 978 (Pa.Super. 2001).

      The Commonwealth notes that, by Rule, a defendant is required to

“state specifically and with particularity the evidence sought to be

suppressed, the grounds for suppression, and the facts and events in

support thereof.”      Pa.R.Crim.P. 581(D).       The instant suppression motion

stated, in pertinent part:

      It is believed that [Appellee], upon being questioned by the
      trooper, made inculpatory statements. These statements were
      not preceded by [Appellee] being advised of his rights pursuant
(Footnote Continued) _______________________

Berg v. Nationwide Mut. Ins. Co., Inc., 6 A.3d 1002, 1018 (2010) (Baer,
J., dissenting).




                                         - 10 -
J-A02004-18


     to Miranda v. Arizona and the state and federal progeny of
     that case; and, without [Appellee] making a knowing, voluntary
     and intelligent waiver of those rights. The statements were the
     “fruits” of an unlawful arrest and were obtained in violation of
     rights secured to [Appellee] by the Fourth, Fifth and Fourteenth
     Amendments to the United States Constitution, Article I, Section
     8 and Section 9 of the Pennsylvania Constitution and
     Pennsylvania Rules of Criminal Procedure.

     WHEREFORE, [Appellee] respectfully requests this Honorable
     Court to declare [Appellee]’s arrest to be unlawful and to
     suppress all evidence obtained as a result of the unlawful
     arrest, including, but not limited to, any and all evidence
     obtained, and statements obtained from [Appellee] by law
     enforcement officers.

Motion, 3/20/17, at 2 (emphasis added).

     We have carefully reviewed the record and conclude that the trial court

abused its discretion by suppressing the evidence on grounds not raised by

Appellee.   There is no doubt that Appellee sought suppression of the gun,

but Appellee did not theorize that suppression was warranted on the basis of

involuntary consent. Instead, he explicitly linked suppression to the lack of

Miranda warnings.

     The    trial   court   accepted    Appellee’s   Miranda   argument,   and

determined that Appellee was subject to custodial interrogation once he was

transported to his grandmother’s home.          The court thus suppressed all

statements made after that point.       With respect to the gun, however, the

trial court pivoted to an analysis of whether the search was consensual, and

concluded that neither Appellee nor Ms. Wellman consented.




                                       - 11 -
J-A02004-18


       In consideration of all the relevant factors the Court finds that
       the consent given was NOT voluntary and as such the evidence
       of the pink and black 9mm pistol is hereby SUPPRESSED.

       The Court also believes that the totality of the circumstances as
       they presented themselves were such that the Court believes
       any "consent" by Ms. Wellman was likewise involuntary.

Trial Court Order, 4/25/17, at 7.

       The trial court thus determined that the firearm was recovered as a

result of a consensual search, but that the consent was involuntarily given.7

This was an abuse of discretion, since Appellant did not raise that ground. A

defendant cannot raise, on appeal, a claim that he was entitled to

suppression on a theory he did not raise.           See Commonwealth v.

Baumhammers, 960 A.2d 59, 76 (Pa. 2008) (“This Court has consistently
____________________________________________


7 The trial court addressed both the consent of Appellee, and consent by his
girlfriend. “[A] warrantless entry and search by law enforcement officers
does not violate the Fourth Amendment’s proscription of ‘unreasonable
searches and seizures’ if the officers have obtained the consent of a third
party who possesses common authority over the premises.” Illinois v.
Rodriguez, 497 U.S. 177, 179 (1990) (citing United States v.
Matlock, 415 U.S. 164 (1974)).

Professor LaFave’s treatise on the Fourth Amendment observes:

       “It has sometimes been contended that because, as held in
       Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387
       (1978), Fourth Amendment rights are personal and may not be
       asserted vicariously, this means the defendant may not question
       the voluntariness of a third party’s consent. But this is not the
       case when that consent is being relied upon as a justification for
       intrusion into defendant’s legitimate expectation of privacy.”

Wayne R. LaFave, 4 Search & Seizure § 8.3 (5th ed.).




                                          - 12 -
J-A02004-18


affirmed the principle that a defendant waives the ground of suppressibility

as a basis for opposition to the Commonwealth’s introduction of evidence

when he or she fails to file a suppression motion pursuant to our rules of

criminal procedure.”).        Clearly, a trial judge would abuse his or her

discretion in sua sponte excluding, during trial, introduction of evidence that

the judge thinks was unlawfully obtained. That discretion is equally abused

when the judge applies a theory that was not raised. If Appellee wished to

litigate the issue discussed by the trial court, he was required to raise that

particular ground.8 Id.

       Having concluded that the trial court erred in suppressing the physical

evidence on the basis of a theory not raised by Appellee, we now address

whether the order may nevertheless be affirmed. Appellee correctly notes

that we may do so for any reason supported by the record, and argues that,

notwithstanding the trial court’s rationale, his suppression motion properly

challenged the recovery of the firearm as a violation of Miranda. Appellee

maintains that his motion properly sought suppression of the statements and

____________________________________________


8 That requirement is linked to the Commonwealth’s evidentiary burden. See
Commonwealth v. Dixon, 997 A.2d 368, 375 (Pa.Super. 2010) (en banc)
(“[Dixon] did not assert as a ground for suppression that the manner of the
seizure of the physical evidence violated Dixon’s constitutional rights, only
that the seizure was not warranted in the first place.”). Presently, there is no
evidence in the record to support or dispel the notion that any consent was
involuntary, which is unsurprising given the fact that Appellee did not raise
the issue.




                                          - 13 -
J-A02004-18


the firearm due to violations of Miranda, and that the order may be

affirmed on that ground.

      [Appellee] filed a pretrial motion challenging the admission of
      evidence of the firearm seized by the Trooper as
      unconstitutional. [Appellee] sought to have the Court declare
      [Appellee]’s arrest to be unlawful, to suppress evidence obtained
      as a result of the arrest, and to suppress statements made in
      violation of the rights secured by the Fourth, Fifth, and
      Fourteenth Amendment to the United States Constitution and
      Article I, Section 8 and 9 of the Pennsyl[v]ania Constitution, in
      particular unlawful search and seizure and violation of his right
      to counsel, fair trial and freedom from self-incrimination. . . . In
      addition, [Appellee] argued that what began as a consensual
      encounter between [Appellee] and the police in answer to their
      inquiry, became an unlawful arrest, an arrest and taking into
      custody as a prisoner without probable cause, and followed by
      continuing questioning without the Miranda advisements that
      led the police to obtain involuntarily from [Appellee] the location
      of a pistol.

Appellee’s brief at 22. Accordingly, Appellee advances the theory that the

evidence should have been suppressed based on the lack of Miranda

warnings, which “led the police to obtain involuntarily” the firearm’s location.

      We cannot affirm on this basis.     Appellee avers that the fruit of the

poisonous tree doctrine warrants suppression of the gun due to the lack of

Miranda warnings.     In other words, but for the improper questioning, he

would not have revealed the location of the gun, which, in turn, led to the

consensual search.    While the trial court focused on the last part of this

chain, Appellee asks us to consider an earlier link: his responses to the

officers’ questions, which the trial court suppressed.




                                     - 14 -
J-A02004-18


         We agree that the trial court’s legal conclusions with respect to

suppression of the statements must stand, as the Commonwealth does not

challenge that portion of the order on appeal.           However, Appellee fails to

recognize that the fruit of the poisonous tree doctrine does not extend to

physical evidence recovered due to Miranda violations. Hence, we may only

affirm     the   portion   of   the   suppression    order    suppressing   Appellee’s

statements.

         In United States v. Patane, 542 U.S. 630 (2004) (plurality), three

Justices concluded that a voluntary statement, although unwarned, does not

justify excluding physical evidence recovered as a result of that statement

under the fruit of the poisonous tree doctrine.              Therein, a police officer

arrested Patane for violating a restraining order. The officer had information

that Patane owned an illegal firearm.             In contravention of Miranda, the

officer repeatedly asked where the gun was located.                Patane eventually

stated that the gun was in his bedroom, leading to its recovery.               Patane

sought to suppress the physical evidence as an illegal derivative fruit of the

tainted statement. The plurality concluded that result was not warranted.

         [T]he Miranda rule is a prophylactic employed to protect against
         violations of the Self–Incrimination Clause. The Self–
         Incrimination Clause, however, is not implicated by the
         admission into evidence of the physical fruit of a voluntary
         statement. Accordingly, there is no justification for extending the
         Miranda rule to this context. And just as the Self–Incrimination
         Clause primarily focuses on the criminal trial, so too does the
         Miranda rule. The Miranda rule is not a code of police conduct,
         and police do not violate the Constitution (or even the Miranda


                                         - 15 -
J-A02004-18


      rule, for that matter) by mere failures to warn. For this reason,
      the exclusionary rule . . . does not apply.

Id. at 636–37. Justice Kennedy, joined by Justice O’Connor, concurred, but

declined to go so far as the plurality, opining:

      In light of the important probative value of reliable physical
      evidence, it is doubtful that exclusion can be justified by a
      deterrence rationale sensitive to both law enforcement interests
      and a suspect’s rights during an in-custody interrogation. Unlike
      the plurality, however, I find it unnecessary to decide whether
      the detective’s failure to give Patane the full Miranda warnings
      should be characterized as a violation of the Miranda rule itself,
      or whether there is “[any]thing to deter” so long as the
      unwarned statements are not later introduced at trial.

Id. at 645 (Kennedy, J., concurring) (citation omitted).        It has been

recognized that “the Patane plurality and concurrence agreed, at least, that

Miranda does not require the exclusion of physical evidence that is

discovered on the basis of a voluntary, although unwarned, statement. As

several of our sister circuits have recognized, this narrow agreement is the

holding of Patane.” United States v. Jackson, 506 F.3d 1358, 1361 (11th

Cir. 2007) (citations omitted); Commonwealth v. Abbas, 862 A.2d 606,

610 n.3 (Pa.Super. 2004) (“Though a plurality decision, the majority of the

Justices agreed that introduction of nontestimonial derivative evidence does

not implicate the Self–Incrimination Clause of the Fifth Amendment.”).     In

Abbas, we adopted the Patane approach.

      Currently, there is no precedent in this Commonwealth indicating
      that the Pennsylvania Constitution extends greater protection
      than its federal counterpart with respect to the Fifth Amendment
      right against self-incrimination in the context of physical
      evidence obtained as a result of or during the course of an

                                     - 16 -
J-A02004-18


     unwarned       statement.   We   find Patane instructive here.
     Accordingly,    until our Supreme Court has the occasion to
     conduct an     independent analysis, we are persuaded by the
     reasoning in   Patane.

Id. at 609–10 (footnotes omitted).

     Pursuant to these principles, the trial court could not have suppressed

the firearm based on the Miranda violations, which was the only ground

raised by Appellee.   We therefore cannot affirm on that alternative basis.

Accordingly, we affirm the portion of the order granting suppression of

Appellee’s statements, and reverse with respect to the firearm.

     Order reversed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2018




                                     - 17 -
