J-A03028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

ROBERT ARTHUR SNYDER, JR.

                            Appellee                     No. 485 MDA 2016


                Appeal from the Order Entered March 21, 2016
           In the Court of Common Pleas of Northumberland County
               Criminal Division at No: CP-49-CR-0000286-2015


BEFORE: LAZARUS, STABILE, and DUBOW, JJ.

MEMORANDUM BY STABILE, J.:                                 FILED MAY 02, 2017

       The Commonwealth of Pennsylvania appeals from the March 21, 2016

order entered in the Court of Common Pleas of Northumberland County

(“suppression court”) granting Appellee’s, Robert Arthur            Snyder, Jr.,

omnibus motion to suppress.            Upon review, we affirm in part, reverse in

part, and remand for further proceedings.

       Following an alleged domestic violence incident on February 4, 2015,

Appellee was arrested and brought into police custody.             Prior to being

charged, Appellee was placed in an interrogation room and questioned by

officers. Appellee’s time in the interrogation room was captured on video. 1

During that time he was interrogated and was placed in an interrogation
____________________________________________


1
 The recordings were introduced into evidence as Commonwealth Ex. 2 and
Commonwealth Ex. 3 at the suppression hearing on September 21, 2015.
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room by himself.        The Commonwealth eventually charged Appellee with

criminal attempt homicide, two counts of aggravated assault, terroristic

threats, recklessly endangering another person, and simple assault. 2         On

August 7, 2015, Appellee filed an omnibus pre-trial motion, which included a

motion to suppress.

        On September 21, 2015, the suppression court held a hearing on

Appellee’s omnibus pre-trial motion.           After the hearing, the suppression

court ordered the parties to file post-hearing briefs. On March 21, 2016, the

suppression court made the following findings of fact.

        1.    While in custody on or about February 4, 2015, [Appellee]
              made statements, both to the police and while himself
              alone in the interrogation room, which could be interpreted
              as being interlocutory and/or against his interest.

        2.    [Appellee] was in custody.

        3.    [Appellee] was handcuffed.

        4.    [Appellee] was advised of his Miranda[3] warnings and the
              right to waive those warnings.

        5.    [Appellee] understood his rights and the right to waive
              them.

        6.    [Appellee] indicated affirmatively that he was not waiving
              his rights.


____________________________________________


2
  18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 2702(a)(4), 2706(a)(1), 2705, and
2701(a)(1), respectively.
3
    Miranda v. Arizona, 384 U.S. 436 (1966).




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      7.    [Appellee] was advised as to the subject of the
            investigation, being a domestic incident involving a gun.
            He understood why he was in custody.

      8.    [Appellee] requested a minimum of twenty (20) times to
            speak to an attorney and, in some cases, his particular
            attorney.

      9.    In the first eighteen (18) minutes of the custodial
            interrogation, he invoked his right to an attorney nine (9)
            times.

      10.   Before being advised of his Miranda rights, [Appellee]
            requested that his attorney be called. He asked the police
            to please call his attorney, and he specified his attorney by
            name.

      11.   The Troopers engaged in both questioning and conduct
            reasonably intended to illicit responses from [Appellee],
            this constitutes interrogation.

      12.   The questions asked of [Appellee] were directly related to
            the underlying alleged criminal incident.

      13.   There was no break in the custodial interrogation,
            [Appellee] remained in custody of the Troopers during the
            entirety of the interrogation.

      14.   [Appellee], upon being questioned about his wishes,
            indicated he did not believe speaking to the police would
            be in his best interest.

Order, 3/21/2016, at 1-2. The suppression court granted Appellee’s motion

to suppress the video recordings and all statements made by Appellee

during his time in custody. Id. at 4.

      The Commonwealth filed a timely notice of appeal on March 23, 2016,

certifying that the March 21, 2016 order substantially handicapped the

prosecution.   On April 5, 2016, the suppression court issued an order

directing the Commonwealth to file a concise statement. On May 6, 2016,


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the Commonwealth filed a motion for leave to file a Pa.R.A.P. 1925(b)

statement nunc pro tunc.     On May 16, 2016, the Commonwealth’s motion

was granted and the Commonwealth filed a Rule 1925(b) statement on May

17, 2016. The suppression court did not issue a Pa.R.A.P. 1925(a) opinion,

noting that the March 21, 2016 order sufficiently addressed the issues raised

on appeal.

      The Commonwealth raises two issues on appeal, which we quote

verbatim.

      I.     Whether the [suppression court] erred in suppressing any
             and all of [Appellee’s] statements after his first request to
             call his attorney, where [Appellee] was not formally
             charged, was not being questioned, and which was prior to
             the police advising [Appellee] of his Miranda warnings.

      II.    Whether the [suppression court] erred in suppressing the
             video recording of [Appellee] on February 4th and 5th of
             2015 and finding that police interrogated [Appellee] where
             [Appellee] was not asked questions, but blurted out
             incriminating statements while alone in a room.

Appellant’s Brief at 4.

      The Commonwealth is appealing an interlocutory order as of right

pursuant to Pa.R.A.P. 311(d) which provides that “[i]n a criminal case, under

the circumstances provided by law, the Commonwealth may take an appeal

as of right from an order that does not end the entire case where the

Commonwealth certifies in the notice of appeal that the order will terminate

or substantially handicap the prosecution.” Pa.R.A.P. 311(d). “Our Supreme

Court has consistently held that [Rule 311(d)] applies to pretrial rulings that



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result     in   the   suppression,   preclusion   or   exclusion   of   evidence.”

Commonwealth v. Andre, 17 A.3d 951, 956 (Pa. Super. 2011) (citations

omitted).       In the matter sub judice, the Commonwealth is appealing an

order granting a motion to suppress and the Commonwealth provided that

the order will substantially handicap the prosecution; therefore, the

Commonwealth is entitled to an interlocutory appeal as of right.

         Our standard of review of a Commonwealth appeal from a suppression

order is well established. 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. 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 it is to determine if the suppression court
         properly applied the law to the facts.

Commonwealth v. Nester, 709 A.2d 879, 880-81 (Pa. 1998) (citations

omitted). The Commonwealth’s claims are significantly intertwined and as

such we will address them as one.

         The Commonwealth first argues that the suppression court erred by

suppressing statements made after Appellee requested counsel but prior to

being read his Miranda rights. The Commonwealth further argues that the

suppression court erred by suppressing statements made after Appellee was

advised of his Miranda rights because he was not formally charged and was

not being questioned.      This argument is troubling.    The Commonwealth is

arguing that it arrested Appellee, handcuffed him, and placed him in an


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J-A03028-17



interrogation room with a trooper who was asking questions, and this

conduct does not constitute custodial interrogation pursuant to Miranda.

One such example of the line of questioning Appellee faced was when a

Trooper stated

       I have one side of the situation. I got one side from your wife. I
       spoke to your wife, I sat down with her. I talked to her about it.
       I don’t know your side of it yet so this is your opportunity to give
       me that. If you want to talk to me, you can talk to me, again
       you can stop answering questions anytime you wish, I cannot
       force you to continue.

N.T. Suppression Hearing, 9/21/15, at Commonwealth Ex. 3 (“Comm. Ex.

3”).   The Commonwealth argues that Appellee’s Sixth Amendment rights

were not violated when he was interrogated.          This statement is correct

because Appellee’s Fifth Amendment rights were violated.           In order for

Miranda rights to be implicated, an individual must be subject to custodial

interrogation.   Commonwealth v. Freeman, 128 A.3d 1231, 1240 (Pa.

Super. 2015). There is no question that Appellee was in custody when he

was arrested, in handcuffs, and placed in the interrogation room.

       The Commonwealth, however, argues that there was no interrogation.

Interrogation is defined as “police conduct calculated to, expected to, or

likely to evoke admission.” Commonwealth v. Umstead, 916 A.2d 1146,

1152 (Pa. Super. 2007) (citations omitted).

       [T]he term “interrogation” under Miranda refers not only to
       express questioning, but also to any words or actions on the part
       of the police (other than those normally attendant to arrest and
       custody) that the police should know are reasonably likely to
       elicit an incriminating response from the suspect. The latter
       portion of this definition focuses primarily upon the perceptions

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J-A03028-17


      of the suspect, rather than the intent of the police. This focus
      reflects the fact that the Miranda safeguards were designed to
      vest a suspect in custody with an added measure of protection
      against coercive police practices, without regard to objective
      proof of the underlying intent of the police. A practice that the
      police should know is reasonably likely to evoke an incriminating
      response from a suspect thus amounts to interrogation. But,
      since the police surely cannot be held accountable for the
      unforeseeable results of their words or actions, the definition of
      interrogation can extend only to words or actions on the part of
      police officers that they should have known were reasonably
      likely to elicit an incriminating response.

Rhode Island v. Innis, 446 U.S. 291, 301-02 (1980) (footnotes omitted).

The Commonwealth argues that because Appellee anticipatorily invoked his

right to an attorney, the Fifth Amendment does not apply.            “The Fifth

Amendment right to counsel cannot be invoked anticipatorily outside of the

context of custodial interrogation.”     Commonwealth v. Sherwood, 982

A.2d 483, 500 (Pa. 2009) (emphasis added) (quoting Commonwealth v.

Romine, 682 A.2d 1296 (Pa. Super. 1996)).          Thus, the Commonwealth’s

argument fails because Appellee was subject to custodial interrogation when

he first requested an attorney. The Commonwealth’s argument taken t

o its logical conclusion suggests that as long as the police do not inform an

individual in custody of their Miranda rights, the rights do not exist, and the

individual can be interrogated freely.

      Further, the Trooper’s statement

      I have one side of the situation. I got one side from your wife. I
      spoke to your wife, I sat down with her. I talked to her about it.
      I don’t know your side of it yet so this is your opportunity to give
      me that. If you want to talk to me, you can talk to me, again
      you can stop answering questions anytime you wish, I cannot
      force you to continue.

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J-A03028-17



which occurred after Appellee requested counsel, is a clear attempt to elicit a

response from Appellee. See Comm. Ex. 3. Moreover, the Commonwealth

argues that Appellee’s statement “I did not pull the trigger” was self-serving

and therefore should not be suppressed pursuant to Miranda.                  “[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.”    Innis, 445 U.S. at 297 (quoting

Miranda, 384 U.S. at 444). The Commonwealth’s argument fails.

      Upon review of the record, Appellee clearly requested an attorney

immediately upon being placed in the interrogation room. See Comm. Ex.

3. Moreover, after being read his Miranda rights, he again indicated that he

wanted an attorney. During the first interview, the Trooper repeatedly made

statements intended to evoke an admission from Appellee. Id. As Appellee

was in custody and was subject to interrogation after he clearly requested

counsel, Appellee’s Miranda rights were violated and all statements made

as a result of the questioning by the Troopers were correctly suppressed.

However,   the   suppression   court’s   blanket    suppression   of   the   video

recordings and all statements made by Appellee went too far.

      The Commonwealth’s next argument is that the trial court erred in

suppressing the second video recording of Appellee wherein he made

statements alone in a room without being questioned. As discussed above,

custodial interrogation has two components, custody and interrogation.

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J-A03028-17



When Appellee was sitting alone in the interrogation room, he was not

subject to interrogation. For example, Appellee says “I’m going to fucking

kill you.    She’s fucking dead” at 1:01:45 of the second video while he is

alone in the interrogation room. See N.T. Suppression Hearing, 9/21/15, at

Commonwealth Ex. 2 (“Comm. Ex. 2”). Therefore, any statements made by

Appellee during that time do not implicate Miranda and should not have

been suppressed.     See Commonwealth v. Scarborough, 421 A.2d 147,

153   (Pa.    1980) (It   is   “well-established   that   a   statement   which   is

spontaneously volunteered is admissible notwithstanding a prior assertion of

constitutional rights.”) (citations omitted).      Further, we note there are

multiple instances where Appellee was not alone in the interrogation room

during the second video and was making statements to troopers. Appellee

initiated some of these conversations with the troopers.          The statements

made by Appellee that were not the result of an interrogation should not

have been suppressed. The trial court is directed to evaluate the individual

statements made by Appellee and whether they were the result of

interrogation by the troopers.

      At numerous times during this second video, Appellee initiates

conversation with the troopers.          See Comm. 2.           For example, at

approximately 1:38 of the second interview, Appellee makes an admission

not subject to interrogation.     Id.   Appellee stated that “I’m not guilty, I

didn’t try to do anything other than try to fucking kill myself.           My wife

grabbed the gun and the gun went off.” Id. The trooper responded “I didn’t

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J-A03028-17



ask you that.” Id. Appellee responded “I didn’t ask you to ask me that, I

just told you that.” Id. The suppression court’s blanket suppression of both

videos and all statements made by Appellee is overbroad as there are

multiple admissions, such as his statement “I’m going to fucking kill you.

She’s fucking dead” that do not violate Appellee’s Miranda rights.

     Therefore, we reverse the order of the trial court regarding the second

video and remand for further proceedings to determine which statements of

Appellee in the second video were the result of police interrogation and

which were spontaneously made by Appellee. The trial court is to suppress

those statements that were the result of police interrogation and permit

introduction   into   evidence   those    statements   that   Appellee   made

spontaneously.

     Order affirmed in part, reversed in part, remanded for further

proceedings. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2017




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