J-S12018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RODNEY JAY JOHNSON, JR.                    :
                                               :
                       Appellant               :   No. 1042 MDA 2018

           Appeal from the Judgment of Sentence Entered June 6, 2018
       In the Court of Common Pleas of Fulton County Criminal Division at
                        No(s): CP-29-CR-0000083-2017


BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                               FILED AUGUST 15, 2019

        Appellant, Rodney Jay Johnson, Jr., appeals from the June 6, 2018

Judgment of Sentence entered in the Fulton County Court of Common Pleas

following his non-jury conviction for two counts of Persons Not to Possess

Firearms.1     Appellant challenges the denial of his Motion to Suppress

statements that he made to police, asserting that he did not knowingly and

intelligently waive his Miranda2 rights. After careful review, we affirm.

        A detailed recitation of the factual and procedural history is not

necessary to our disposition.          Briefly, Pennsylvania State Police arrested

Appellant on May 26, 2017, for the sale of two firearms to another individual

on April 7, 2017, when Appellant had been disqualified from possessing
____________________________________________


1   18 Pa.C.S. § 6105(a)(1).

2   Miranda v. Arizona, 384 U.S. 436 (1966).
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firearms due to prior felony convictions in Florida. On the same day, Trooper

J.R. Holderbaum read Appellant his Miranda rights and conducted a recorded

interview of Appellant at the police station.

      On September 18, 2017, Appellant filed an Omnibus Pre-Trial Motion,

which included a Motion to Suppress Appellant’s statements to police because

he did not knowingly and intelligently waive his Miranda rights.

      On December 5, 2017, the suppression court held a hearing on

Appellant’s Motion. The Commonwealth entered the May 26, 2017 recorded

police interview into evidence.       See Commonwealth Exhibit 1, Police

Interview. At the beginning of the interview, Trooper Holderbaum states to

Appellant, “Before we get started, since you are under arrest, I got to read

you your rights, alright.       Then I’ll explain what this is all about.”

Commonwealth Exhibit 1, Police Interview. After Trooper Holderbaum read

Miranda warnings to Appellant, the following exchange occurred:


      Appellant: I understand.

      Trooper Holderbaum: Alright, you’re being charged, uh, you’re a
      convicted felon, right?

      Appellant: Um-hum (nodding affirmatively).

      Trooper Holderbaum: You had some burglaries and thefts out of
      Florida (last two works inaudible).

      Appellant: Um-hum (nodding affirmatively).

      Trooper Holderbaum: Alright, you’re being charged with Person
      Not to Possess a Firearm . . .




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Id.    Trooper Holderbaum proceeded to question Appellant about his

involvement with stolen firearms from Franklin County that Appellant allegedly

sold in Fulton County.    Appellant made incriminating statements that the

Commonwealth later used against him at trial.

      On February 26, 2018, the suppression court issued an Opinion and

Order of Court denying Appellant’s Motion to Suppress.      Appellant filed a

Motion to Reconsider, which the suppression court denied on March 19, 2018.

      On June 6, 2018, after a bench trial where the parties entered all

evidence by stipulation, the trial court convicted Appellant of two counts of

Persons Not to Possess Firearms. The trial court sentenced Appellant to an

aggregate term of 60 to 120 months’ incarceration.

      Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises the following issue on appeal: “Whether the trial court

erred by denying Appellant’s Motion to Suppress the statement he made to

the police, as well as his corresponding Motion for Reconsideration, where

Appellant did not knowingly and intelligently waive his Miranda rights?”

Appellant’s Brief at 4.

      When we review the denial of a Motion to Suppress, “we are limited to

considering only the Commonwealth’s evidence and so much of the evidence

for the defense as remains uncontradicted when read in the context of the

record as a whole.” Commonwealth v. Yorgey, 188 A.3d 1190, 1198 (Pa.

Super. 2018) (en banc) (citation and internal quotation marks omitted). When

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the testimony and other evidence support the trial court's findings of fact, this

Court is bound by them and we “may reverse only if the court erred in reaching

its legal conclusions based upon the facts.” Id. at 1198 (citation omitted).

“Moreover, it is within the lower court's province to pass on the credibility of

witnesses and determine the weight to be given to their testimony.”

Commonwealth v. McCoy, 154 A.3d 813, 816 (Pa. Super. 2017). This Court

will not disturb a suppression court's credibility determination absent a clear

and manifest error. Commonwealth v. Camacho, 625 A.2d 1242, 1245 (Pa.

Super. 1993).

      “The scope of review from a suppression ruling is limited to the

evidentiary record created at the suppression hearing.” Commonwealth v.

Neal, 151 A.3d 1068, 1071 (Pa. Super. 2016). Importantly, “[o]nce a motion

to suppress evidence has been filed, 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) (citing Pa.R.Crim.P. 581(H)).

      In his sole issue on appeal, Appellant avers that his Miranda waiver

was not valid because Trooper Holderbaum immediately started asking

incriminating questions after giving Appellant Miranda warnings and before

advising him of the “nature of the transaction.” Appellant’s Brief at 10, 15

(citing Commonwealth v. Dixon, 379 A.2d 553, 555 (Pa. 1977)).

Specifically, Appellant asserts that because proving that a person has a prior

felony conviction is an element of the offense with which Appellant was

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charged, when Trooper Holderbaum asked Appellant if he had a prior felony

conviction in Florida, Trooper Holderbaum first obtained an admission as to an

element of the offense and then advised Appellant of the offense. Id. at 16-

17. Therefore, Appellant asserts, his Miranda waiver was invalid. Id. at 16.

      Generally, “because of the inherently coercive nature of police custodial

interrogation, statements elicited from an accused in that environment are

inadmissible unless the accused was informed of and, inter alia, voluntarily

waived his privilege against self-incrimination and the right to counsel.”

Commonwealth v. Clemons, 200 A.3d 441, 471–72 (Pa. 2019) (citing

Commonwealth v. Lyons, 79 A.3d 1053, 1066 (Pa. 2013)). To determine

whether a waiver is valid, a suppression court must look to the totality of the

circumstances surrounding the waiver, “including but not limited to the

declarant's physical and psychological state, the attitude exhibited by the

police during the interrogation, and any other factors which may serve to drain

one's powers of resistance to suggestion and coercion.” Id. at 472 (citing

Lyons, 79 A.3d at 1066). A valid waiver does not necessarily require a verbal

expression of waiver and “can be clearly inferred from the actions and words

of the person interrogated.” Commonwealth v. Bomar, 826 A.2d 831, 843

(Pa. 2003) (citation omitted). A waiver is valid if a person clearly indicates

that they understand their Miranda rights and “immediately thereafter”

proceeds to answer questions posed by police “during the course of the same

dialogue.” Id.




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      Our Supreme Court has consistently held that a valid waiver of Miranda

rights requires that “the suspect is aware of the general nature of the

transaction giving rise to the investigation.” Commonwealth v. Johnson,

160 A.3d 127, 138 (Pa. 2017) (citing Dixon, 379 A.2d at 556). The suspect

cannot understand the consequences of waiving Miranda rights unless they

possess this knowledge. Dixon, 379 A.2d at 556. “It is a far different thing

to forgo a lawyer where a traffic offense is involved than to waive counsel

where first degree murder is at stake.” Commonwealth v. Collins, 259 A.2d

160, 163 (Pa. 1969). When a defendant asserts that his Miranda waiver is

invalid on this basis, “the Commonwealth must establish, by a preponderance

of the evidence, that the defendant was aware of the reason for the

interrogation.” Johnson, 160 A.3d at 138.

      While Appellant cites Dixon, supra, to support his argument that he

did not knowingly and intelligently waive his Miranda rights, Dixon is

factually distinguishable from the instant case.   In Dixon, the police were

investigating appellant for the murder of her child at the same time they were

serving a warrant upon her for failure to pay restitution regarding a prior

conviction for Malicious Mischief. Dixon, 379 A.2d at 554-55. Police read the

appellant her Miranda rights without informing her which crime they were

investigating; Appellant stated that she understood her Miranda rights and

signed a written waiver form. Id. at 555. Police then began questioning the

appellant regarding the death of her child. Id. The Court found the appellant’s

waiver to be unintelligent because at the time she signed the waiver there

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was a “palpable ambiguity” as to the nature of the crime that police were

investigating. Id. at 557.

      In contrast, in the instant case, in a matter of a few seconds, Appellant

indicated that he understood his Miranda rights, police informed him of the

nature of the crime that was the subject of the interrogation, and Appellant

began answering questions without invoking his Miranda rights. Unlike the

invalid waiver in Dixon, in this case there was no “palpable ambiguity” as to

the nature of the crime being investigated.

      The suppression court characterized Trooper Holderbaum’s question

regarding Appellant’s prior felony conviction in Florida as “help[ing] to

elucidate the current matter under investigation” rather than the beginning of

the interrogation.   Order of Court, filed 3/26/18, at 2 (unpaginated). The

suppression court concluded that the Commonwealth proved that Appellant

knowingly and intelligently waived his Miranda rights after Appellant was

aware of the reason for the interrogation. The suppression court opined:

      At the beginning of the investigation, Trooper Holderbaum advised
      [Appellant] of his Miranda rights. After [Appellant] was advised
      of these rights, the Trooper informed [Appellant] of the subject
      matter under investigation. At no point in time, prior to informing
      [Appellant] of the nature of the charges under investigation, did
      the Trooper obtain a waiver from [Appellant]. In other words,
      [Appellant] did not waive his Miranda rights prior to being
      informed of the charges against him. [Appellant] waived his rights
      by the act of responding to the Trooper’s questions, after being
      informed of his rights and after being informed about the nature
      of the investigation.     Accordingly, [Appellant]’s waiver was
      knowing and intelligent and therefore, [Appellant]’s Motion to
      Suppress is denied.



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Opinion and Order of Court, filed 2/26/18, at 4. The evidence supports the

suppression court’s findings and we decline to find error.

       We reject Appellant’s argument that he answered incriminating

questions prior to police informing him of the nature of the crime they were

investigating. Rather, we accept the suppression court’s finding that Trooper

Holderbaum asked the questions regarding Appellant’s prior felony convictions

in Florida to help Appellant understand the nature of the charges against him.

       In conclusion, we find that Appellant knowingly and intelligently waived

his Miranda rights and the suppression court did not err when it denied

Appellant’s Motion to Suppress.3

       Judgment of Sentence affirmed.




____________________________________________


3  We note that Appellant avers in the alternative, without citation to
precedential authority, that his waiver was not valid because it was implicit
rather than explicit. Appellant’s Brief at 14-16. He relies on Commonwealth
v. Bussey, 404 A.2d 1309 (Pa. 1979), and its progeny to support his
argument. In Bussey, a three-Justice plurality of the Pennsylvania Supreme
Court rejected the more lenient Federal constitutional rule that a defendant
can implicitly waive his Miranda rights, instead holding that “an explicit
waiver is a mandatory requirement.” Bussey, 404 A.2d at 1314. Our
Supreme Court has subsequently concluded, “[b]ecause Bussey was not a
majority opinion, it is not a binding precedent.” Bomar, 826 A.2d at 844. As
discussed above, in Bomar, our Supreme Court more recently held that a
defendant’s twice stating he understood his Miranda rights after they were
read to him and answering questions immediately thereafter sufficiently
“manifested the intent to waive his rights.” Id. at 844 n. 13. Accordingly,
Appellant’s argument lacks merit.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/15/2019




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