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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DEONTE DEQUAN BRYANT                       :
                                               :
                       Appellant               :     No. 1649 WDA 2019

      Appeal from the Judgment of Sentence Entered September 9, 2019
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0000163-2018

BEFORE:      MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.:                                 FILED AUGUST 14, 2020

        Deonte Dequan Bryant (Appellant) appeals from the judgment of

sentence imposed following his conviction of receiving stolen properly. 1 On

appeal, Appellant challenges the trial court’s denial of his suppression motion.

After careful review, we affirm.

        Testimony from the suppression hearing reveals that shortly after

midnight, on October 8, 2017, Appellant along with three other individuals

were sitting in a vehicle parked at a Country Fair convenience store parking

lot in Summit Township, Pennsylvania.              Appellant was sitting in the front

passenger seat. Police Officers Kyle Sweeney (Trooper Sweeney) and Nathan


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*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. § 3925(a).
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Hartless (Trooper Hartless) were patrolling the area in full uniform and a

marked patrol car. N.T., 9/7/18, at 23.2 The troopers approached the vehicle

because of a strong odor of marijuana emanating from the car. Suppression

Court Opinion, 11/5/18, at 4.

       Trooper Hartless asked each of the four occupants for identification.

N.T., 9/7/18, at 16.          Initially, Appellant stated that he did not have

identification, but eventually provided his driver’s license indicating he was

from Ohio. See id. at 16-17.

       After receiving identification from each occupant, Trooper Sweeney

asked whether anyone was armed. Id. at 23-24. Appellant responded by

pointing to his chest; and consequently, Trooper Sweeney ordered Appellant

from the vehicle.      Id. at 24.     As he removed Appellant from the vehicle,

Trooper Sweeney saw Appellant kicking two handguns on the floor of the car.

Id. Troopers Sweeney and Hartless handcuffed each of the four occupants

and recovered the two guns. Id. at 24-25. Trooper Sweeney determined that

both guns were loaded.          Id. at 25.     After communicating with dispatch,

Trooper Sweeney learned that one of the guns was stolen. Id. at 25-26.

       Trooper Sweeney testified:

          I wanted to further our investigation to determine whether
       [Appellant] was actually the individual that possessed these
       handguns because throughout the entire encounter they seemed
       to be deceptive to us and they were very nervous. So the only
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2 Troopers Sweeney and Hartless were the only witnesses who testified at the
suppression hearing.

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       place I could talk to [Appellant] alone away from the three other
       occupants was at the back of our patrol vehicle, which at the time
       I brought [Appellant] in the back of our patrol vehicle and spoke
       with him.

                                      *        *   *

       . . . I informed him what was going on because he was standing
       there in handcuffs, he seemed a little confused. I informed him
       that one of the firearms . . . had come back stolen out of Toledo,
       Ohio.

          At this point in time, he stated that -- I asked him if the guns
       were his because I wanted to further our investigation
       before I determined whether he was going to be arrested
       or not, he stated they were his.

Id. at 25-26 (emphasis added).            At this time, Trooper Sweeney informed

Appellant “he was under arrest for possession of a stolen firearm[,]” and read

Appellant his Miranda3 rights. Id. at 27.

       Appellant told Trooper Sweeney that he understood his rights and

continued speaking with Trooper Sweeney about the stolen handgun. Id. at

29. Appellant stated that the gun did not belong to him and the gun’s owner

“was not on the scene at the time.” Id. at 29. Trooper Sweeney testified:

           After he informed me that the handguns were not his and the
       person who was the owner of the handguns was not on scene, he
       -- I asked him if he did not want to snitch on his friends and who
       he got them from and he refused to answer. And I ask[ed] him
       why he was lying to me about the handguns and he said, I don’t
       know.

          I asked him why they had handguns in the vehicle and
       possessed them, he said because you understand what’s been
       going on with all the recent shooting in the city. And him and his
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3   Miranda v. Arizona, 384 U.S. 436 (1966).

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      friends in the vehicle were up here at the Metroplex for a rap
      concert, and they had them for protection; that’s what he said.

         And he informed me that he had an Ohio concealment permit,
      but he did not have one with him. And that’s what he said in the
      back of the patrol unit.

Id. at 30.

      Following this conversation, the troopers transported Appellant to their

barracks. See id. at 35. At the barracks, Trooper Sweeney again questioned

Appellant about the stolen handgun. Id. Trooper Sweeney could not recall if

he re-read Appellant his Miranda rights at the barracks. Id. During this

conversation, Appellant gave multiple differening accounts of how he acquired

the stolen gun. He told Trooper Sweeney that he bought the handgun from a

gun store, that he bought the gun from a friend, and that he bought it at a

gun show.

      Trooper Hartless testified about problems with the mobile video recorder

(MVR) during the troopers’ encounter with Appellant and his three cohorts.

The trial court summarized Trooper Hartless’ testimony:

         . . . The MVR consists of a visual and audio recording. The
      visual recording was filmed by a camera mounted on the
      dashboard of the police vehicle. The camera was activated when
      the police cruiser lights were activated. The audio recording was
      made from a microphone mounted on the shoulder of Trooper
      Hartless’ uniform. While the audio recording was also activated
      when the troopers’ vehicle lights were activated, it could also be
      controlled by Trooper Hartless via a manual switch. Trooper
      Hartless was the only officer who wore a microphone that evening.

         The MVR was played at the suppression hearing. The audio
      “cut out” briefly. Trooper Hartless testified he unintentionally
      momentarily paused the audio recording or turned it off when he

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      gestured with his hand to his shoulder to make sure the
      microphone was turned on.       Trooper Hartless testified the
      microphone on his shoulder can only pick up audio a few feet from
      the microphone. Trooper Hartless testified that during portions of
      the MVR he was not always standing beside Trooper Sweeney.
      Trooper Harless testified his own attention was focused on the
      operator of the vehicle when Trooper Sweeney read [Appellant]
      the Miranda warnings.

Suppression Court Opinion, 11/5/18, at 5-6.         Because Trooper Hartless

paused the microphone, there is no audio of Trooper Sweeney reading

Appellant his Miranda rights. See N.T., 9/7/18, at 33-34.

      As noted, Troopers Sweeney and Hartless were the only witnesses to

testify at the suppression hearing.     The trial court found both troopers’

testimony to be credible. Id. at 47 (“Well, I believe the trooper. Both troopers

are credible here.”).

      The trial court summarized the procedural history that ensued:

         . . . Appellant was charged with one count of [r]eceiving
      [s]tolen [p]roperty.

        In April of 2018, Appellant filed an [o]mnibus [p]re-[t]rial
      [m]otion, and an evidentiary hearing was held. In July of 2018,
      Appellant filed an [a]mended [o]mnibus [p]re-[t]rial [m]otion,
      and another evidentiary hearing was held. The motions included
      a motion for writ of habeas corpus, and a motion to suppress
      Appellant’s statements at the time of the traffic stop.

         . . . In the suppression motion, Appellant asserted his
      statements to the police were made in the absence of Miranda
      warnings. On November 5, 2018, the [trial court] denied the
      motions.

         Following a three-day jury trial, Appellant was convicted of
      [r]eceiving [s]tolen [p]roperty. On September 9, 2019, the [trial
      court] imposed a mitigated-range sentence of restrictive
      intermediate punishment for 36 months, to begin with nine

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       months of electric monitoring, followed by three months of
       intensive supervision.

Trial Court Opinion, 1/3/20, at 1-2.

       On September 19, 2019, Appellant filed a post-sentence motion which

the trial court denied on October 15, 2019. On November 6, 2019, Appellant

filed a timely notice of appeal.        The trial court ordered Appellant to file a

concise statement of errors complained of on appeal pursuant to Pennsylvania

Rule of Appellate Procedure 1925(b). On December 6, 2019, Appellant filed

a Rule 1925(b) statement.

       Appellant presents one issue for review:

       I.   WHETHER THE [TRIAL] COURT ERRED IN DENYING
       [APPELLANT]’S MOTION TO SUPPRESS STATEMENTS[?]

Appellant’s Brief at 4.4

       At the outset, we recognize:

       [An appellate court’s] standard of review in addressing a challenge
       to the denial of a suppression motion is limited to determining
       whether the suppression court’s factual findings are supported by
       the record and whether the legal conclusions drawn from those
       facts are correct. Because the Commonwealth prevailed before
       the suppression court, we may consider only the evidence of the
       Commonwealth and so much of the evidence for the defense as
       remains uncontradicted when read in the context of the record as
       a whole. Where the suppression court’s factual findings are
       supported by the record, [the appellate court] is bound by [those]
____________________________________________


4  In his Rule 1925(b) statement, Appellant challenged the sufficiency of the
evidence supporting his receiving stolen property conviction. Appellant has
abandoned and waived this issue on appeal by failing to argue it in his brief.
See Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa. Super. 2008)
(finding appellant waived and abandoned issue he preserved for appeal by
failing to properly develop it in an appellate brief).

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      findings and may reverse only if the court’s legal conclusions are
      erroneous. Where . . . the appeal of the determination of the
      suppression court turns on allegations of legal error, the
      suppression court’s legal conclusions are not binding on an
      appellate court, whose duty it is to determine if the suppression
      court properly applied the law to the facts. Thus, the conclusions
      of law of the courts below are subject to [ ] plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015) (citation

omitted). Importantly, our scope of review is limited to the evidentiary record

from the suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

      Appellant makes three arguments in support of his suppression issue.

First, Appellant asserts that he was subject to a custodial detention and

interrogation when Trooper Sweeney, prior to reading him Miranda warnings,

removed him from the car, handcuffed his hands behind his back, placed him

in the patrol car, and questioned him about ownership of the stolen handgun.

Second, Appellant contends that after Trooper Sweeney read him his Miranda

rights, Appellant exercised his right to remain silent and the troopers did not

honor this right when they continued to question him at the barracks. Third,

Appellant claims the troopers should have re-read Appellant his Miranda

rights before questioning him at the barracks.

      There are three categories of interactions between police and citizens:

      The first of these is a “mere encounter” (or request for
      information) which need not be supported by any level of
      suspicion, but carries no official compulsion to stop or to respond.
      The second, an “investigative detention” must be supported by a
      reasonable suspicion; it subjects a suspect to a stop and a period
      of detention, but does not involve such coercive conditions as to
      constitute the functional equivalent of an arrest. Finally, an arrest
      or “custodial detention” must be supported by probable cause.

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Commonwealth v. Downey, 39 A.3d 401, 405 (Pa. Super. 2012) (citation

omitted).

      “To guide the crucial inquiry as to whether or not a seizure has been

effected, the United States Supreme Court has devised an objective test

entailing a determination of whether, in view of all surrounding circumstances,

a reasonable person would have believed that he was free to leave.”

Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000). In evaluating

the totality of the circumstances, our focus is whether, “by means of physical

force or show of authority, the citizen-subject’s movement has in some way

been restrained.” Id. at 889. In making this determination, no single factor

dictates “the ultimate conclusion as to whether a seizure has occurred.” Id.

      “An encounter becomes an arrest when, under the totality of the

circumstances, a police detention becomes so coercive that it functions as an

arrest.”    Commonwealth v. Stevenson, 894 A.2d 759, 770 (Pa. Super.

2006). Courts analyze numerous factors to determine whether a detention

has become an arrest, including, “the cause for the detention, the detention’s

length, the detention’s location, whether the suspect was transported against

his or her will, whether physical restraints were used, whether the police used

or threatened force, and the character of the investigative methods used to

confirm or dispel suspicions.” Id.

      With respect to custodial interrogations, this Court has explained:

      A law enforcement officer must administer Miranda warnings
      prior to custodial interrogation. The standard for determining

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     whether an encounter with the police is deemed “custodial” or
     police have initiated a custodial interrogation is an objective one
     based on a totality of the circumstances, with due consideration
     given to the reasonable impression conveyed to the person
     interrogated.     Custodial interrogation has been defined as
     “questioning initiated by law enforcement officers after a person
     has been taken into custody or otherwise deprived of his [or her]
     freedom of action in any significant way.” “Interrogation” is police
     conduct calculated to, expected to, or likely to evoke admission.
     When a person’s inculpatory statement is not made in response
     to custodial interrogation, the statement is classified as
     gratuitous, and is not subject to suppression for lack of warnings.

Commonwealth v. Schwing, 964 A.2d 8, 11 (Pa. Super. 2008) (quoting

Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999) (en

banc)).

     Thus, there are two criteria of a custodial interrogation that trigger the

requirement that police issue Miranda warnings. First, the defendant must

be in custody, i.e., subject to the functional equivalent of an arrest.     See

Stevenson, 894 A.2d at 770.      Second, there must be questioning by the

police that is likely to evoke an incriminating response. See Schwing, 964

A.2d at 11.

     Appellant asserts that his encounter with the troopers constituted a

custodial detention (i.e., functional arrest) because Trooper Sweeney removed

him from the vehicle, handcuffed him, and placed him in the patrol car.

Appellant further asserts that his interaction with Trooper Sweeney when

Appellant was in the patrol car was a custodial interrogation because Trooper

Sweeney questioned him about his ownership and acquisition of the stolen

handgun.      Appellant maintains that this custodial interrogation was

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unconstitutional because he did not receive Miranda warnings until after he

said the handgun belonged to him.

      After careful review of the record, we conclude that there was a

Miranda violation in this case. First, Appellant was subject to a custodial

detention for Miranda purposes. The record reflects that while on routine,

the troopers smelled marijuana emanating from the vehicle in which Appellant

was sitting, and approached the vehicle. When Trooper Hartless asked each

of occupants for identification, Appellant stated that he did not have

identification, but eventually provided his driver’s license. N.T., 9/7/18, at

16-17.

      After receiving identification from each occupant, the troopers asked

whether anyone was armed.         Id. at 23-24.     Appellant replied in the

affirmative, and pointed to his chest.   Id. at 24.   Trooper Sweeney then

removed Appellant from the vehicle. Id. As he removed Appellant from the

vehicle, Trooper Sweeney observed Appellant attempting to cover with his feet

two guns that were in plain view on the floor of the vehicle.      Id.   After

Appellant exited the vehicle, Trooper Sweeney placed Appellant in handcuffs.

Id. Trooper Sweeney then learned from dispatch that one of the two firearms

was stolen. Id. at 25. At this time, Trooper Sweeney placed Appellant in the

back of his patrol car. Id. at 26. Without reading Appellant his Miranda

rights, Trooper Sweeney asked Appellant if the stolen gun belonged to him.

Id. Appellant responded that the gun did belong to him and that he bought


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it from a private owner. Id. Trooper Sweeney then informed Appellant that

he was under arrest and read Appellant the Miranda warnings. Id. at 27.

      The record reveals that after removing Appellant from the vehicle and

handcuffing him, Trooper Sweeney placed Appellant in the back of his patrol

car. Thus, Appellant subject to the functional equivalent of an arrest before

Trooper Sweeney began questioning him about the stolen firearm.          See

Commonwealth v. Sepulveda, 855 A.2d 783, 790 (Pa. 2004) (“[a]ppellant

was clearly deprived of his freedom of action when [t]rooper [] handcuffed

him, placed him in the back of the patrol car, and locked the door.”);

Commonwealth v. Turner, 772 A.2d 970, 976 (Pa. Super. 2001) (holding

that the combination of placing the appellant in the police car, shutting the

door, and the police officer questioning him while blocking the doorway

“compel[led] the conclusion” that the appellant was subject to a custodial

interrogation).

      Next, we must determine whether Appellant was also subjected to a

custodial interrogation. Because Trooper Sweeney asked Appellant about the

ownership of the gun the trooper knew to be stolen, and how Appellant

acquired the gun, Trooper Sweeney’s questions likely to evoke admission to a

crime. See Schwing, 964 A.2d at 11. Thus, Trooper Sweeney’s questioning

of Appellant regarding the stolen firearm was a custodial interrogation, and

the trial court should have suppressed any statements Appellant made in the

patrol car prior to receiving Miranda warnings.


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      Nevertheless, Appellant is not entitled to relief. We are compelled to

recognize that Appellant does not argue that the troopers did not have

probable cause to arrest him for being in possession of a stolen handgun.

Likewise, Appellant does not challenge the troopers’ decision to continue his

detention or transport him to their barracks. Importantly, although Trooper

Sweeney failed to advise Appellant of his Miranda rights before questioning

him in the patrol car, Trooper Sweeney read Appellant Miranda warnings as

soon as Appellant said that the firearms “were his” and that “he bought them

from a private owner.” N.T., 9/7/18, at 26.

      Moreover, even without the statements Appellant made to Trooper

Sweeney in the back of the patrol car, the troopers clearly had probable cause

to arrest Appellant for possessing a stolen handgun. Probable cause exists

“where the facts and circumstances within the officers’ knowledge are

sufficient to warrant a person of reasonable caution in the belief that an

offense has been or is being committed.” Commonwealth v. Stultz, 114

A.3d 865, 883 (Pa. Super. 2015) (quotations and citations omitted).

      As stated above, the trial court found the officers’ testimony credible,

and we are bound by this determination. See Jones, 121 A.3d 524, 526-27;

see also N.T., 9/7/18, at 47. Troopers Sweeney and Hartless encountered

Appellant and his three friends late at night, in a vehicle parked in a Country

Fair store parking lot. The troopers initially approached the vehicle because

of a strong smell of marijuana emanating from the vehicle. When the troopers


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asked the vehicle’s occupants for identification, Appellant stated he did not

have any, but produced his driver’s license several minutes later.          When

Trooper Sweeney asked the four individuals if anyone was armed, Appellant

responded by pointing at his chest. As Trooper Sweeney removed Appellant

from the vehicle, he observed Appellant trying to conceal with his feet two

firearms on the floor of the car. Trooper Sweeney then learned from dispatch

that one of the two handguns was stolen out of the Toledo, Ohio, the same

general area listed on Appellant’s driver’s license. After Trooper Sweeney read

Appellant his Miranda rights, Appellant continued to admit that the handgun

belonged to him and gave Trooper Sweeney several different stories as to how

he acquired it. Based on our review of the suppression hearing testimony, the

facts and circumstances within the troopers’ knowledge were sufficient to

warrant a person of reasonable caution in the belief that Appellant had

committed the crime of receiving stolen property.5 See Stultz, 114 A.3d at

883.

       As this Court has explained, “where an unwarned statement is not the

product of police coercion, a careful and thorough administration of a

defendant’s Miranda rights will render any subsequent statement voluntary



____________________________________________


5  The Pennsylvania Crimes Code defines receiving stolen property as follows:
“A person is guilty of theft if he intentionally receives, retains, or disposes of
movable property of another knowing that it has been stolen, or believing that
it has probably been stolen, unless the property is received, retained, or
disposed with intent to restore it to the owner.” 18 Pa.C.S.A. § 3925(a).

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and knowing, and therefore, admissible.” Interest of N.M., 222 A.3d 759,

772 (Pa. Super. 2019) (citations omitted), appeal denied, 749 MAL 2019,

2020 WL 1862072 (Pa. Apr. 14, 2020).           Although a Miranda violation

occurred in this case, Appellant eventually received his Miranda warnings and

continued to make voluntary statements indicating that he was the owner of

a stolen handgun, and other inconsistent and incriminating statements

relating to how he acquired the firearm.       Accordingly, the troopers had

probable cause to arrest Appellant for the crime of receiving stolen property,

and appropriately continued his custodial detention and interrogation at their

barracks.

      Appellant raises two additional arguments in support of his challenge to

the trial court’s denial of his suppression motion: that Appellant exercised his

right to remain silent after he received his Miranda warnings and the troopers

did not honor this right, and that the troopers should have re-read Appellant

his Miranda rights before questioning him at the barracks.           Appellant,

however, did not raise these arguments in his suppression motion.          See

Amended Omnibus Pre-Trial Motion, 7/25/18.        Thus, Appellant has waived

both of these arguments. See Commonwealth v. Malloy, 856 A.2d 767,

778 (Pa. 2004) (finding an argument “waived because appellant failed to raise

this particular challenge before the suppression court”); see also Pa.R.A.P.

302 (“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”).     Additionally, the record developed at the


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suppression hearing was devoted almost entirely to Appellant’s first argument

(i.e., the Miranda violation that occurred in patrol car).       There is little

testimony relating to the troopers’ interactions with Appellant en route to and

at the barracks. Accordingly, Appellant has not preserved his second and third

arguments challenging the denial of his suppression motion for our review.

      In sum, although Trooper Sweeney improperly conducted the initial

custodial interrogation of Appellant in violation of Miranda, Trooper Sweeney

had probable cause to arrest Appellant for receiving stolen property, Trooper

Sweeney subsequently advised Appellant of his Miranda rights, Appellant

waived those rights by voluntarily speaking with Trooper Sweeney, and

Appellant made incriminating statements during that questioning.          Thus,

Trooper Sweeney’s subsequent actions cured the initial improper custodial

interrogation. See Interest of N.M., 222 A.3d at 772. Therefore, we discern

no error in the trial court’s denial of Appellant’s suppression motion.

      Judgment of sentence affirmed.

      P.J.E. Stevens joins the memorandum.

      Judge McLaughlin concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2020




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