J-S21032-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                 Appellee                  :
                                           :
                    v.                     :
                                           :
KERRIE LEI GUIRLEO,                        :
                                           :
                 Appellant                 :     No. 1334 WDA 2016

          Appeal from the Judgment of Sentence August 31, 2016
             in the Court of Common Pleas of Fayette County
           Criminal Division at No(s): CP-26-CR-0001292-2015

BEFORE:    LAZARUS, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                        FILED JUNE 16, 2017

     Kerrie Lei Guirleo (Appellant) appeals from the judgment of sentence

imposed on August 31, 2016, after she was found guilty of one count of

persons not to possess firearms. We affirm.

     The trial court set forth the factual history as follows.

           On July 15, 2015, Trooper David Vinkler of the
     Pennsylvania State Police was dispatched to Iris Street in
     Connellsville, Fayette County, Pennsylvania for a matter
     unrelated to this case. As part of police protocol, Trooper Vinkler
     attempted to interview residents of the neighborhood. It was
     through this process that Trooper Vinkler came into contact with
     Appellant. Adjacent to the residence that Trooper Vinkler was
     dispatched to was Appellant’s residence, at 435 Iris Street.

           As Trooper Vinkler approached Appellant’s residence,
     Appellant was standing in the entranceway of her open door.
     Appellant invited Trooper Vinkler inside after he asked if he could
     talk to her.2 Once Trooper Vinkler entered the residence, he
     noticed a 410 shotgun laying across the arms of a recliner chair
     situated in the living room. Determining the shotgun to be



*Retired Senior Judge assigned to the Superior Court.
J-S21032-17


      unloaded, Trooper Vinkler removed the firearm from the
      residence and placed it outside of the main entrance door.

            Trooper Vinkler then located additional firearms in a locked
      gun case in a bedroom and a loaded [.]44 Caliber Ruger Pistol
      (“Ruger”) underneath a pillow on the couch in the living room.
      After locating the firearms, Trooper Vinkler escorted Appellant
      outside the house towards his patrol vehicle where he locked the
      Ruger in his trunk. With regards to the other firearms, Trooper
      Vinkler contacted a relative of Appellant to take possession and
      remove them from the house. Trooper Vinkler concluded his
      investigation by placing Appellant under arrest when he
      confirmed she was not permitted to possess a firearm.3

             Appellant testified at trial. Appellant testified that she
      lived with her husband and son. She testified that she did not
      know any guns were in the gun cabinets and she did not know
      that the Ruger was under a pillow in the living room. She later
      testified that the Ruger was her mother’s firearm, who was at
      the residence earlier that day.
             ______
             2
               Appellant testified that Trooper Vinkler just walked into
      her house but she did not tell him he could not come inside.
            3
                This [c]ourt read to the jury a stipulation agreed to by
      the parties that Appellant was prohibited from possessing or
      controlling a firearm due to a prior conviction and she was
      prohibited from possessing or controlling a firearm on a date
      more than sixty days from July 15, 2015.

Trial Court Opinion, 10/4/2016, at 2-3 (record citations omitted).

      After being charged with the aforementioned crime, Appellant filed an

omnibus pre-trial motion to suppress the evidence.       Specifically, Appellant

argued, inter alia, that Trooper Vinkler, the arresting officer, (1) entered her

home without a search warrant or probable cause; (2) lacked reasonable

suspicion and probable cause to search her residence; and (3) obtained




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statements from Appellant without reading her Miranda1 warnings.             The

suppression court held a hearing at which testimony from Trooper Vinkler

was presented. Appellant was not present at the hearing.2 The suppression

court made the following findings of fact on the record at the hearing.

        [O]n July 15, 2015, Trooper Vinkler was investigating a burglary
        that had been reported at the home of [Appellant’s mother,]
        Helen Newcomer[,] who resides at 433 Irish Street in
        Connellsville, Fayette County, Pennsylvania. In the course of his
        investigation he proceeded [next door] to 435 Irish Street in
        Connellsville which is the residence of [Appellant.] [Appellant]
        permitted Trooper Vinkler into her home and for his safety he
        made inquiry as to whether there were any firearms in the
        immediate area after first noticing a 410 shotgun across the arm
        of a chair. The trooper properly asked, to protect his own safety
        upon seeing the shotgun, if there were other weapons in the
        immediate area and it was then that [Appellant] reported that
        she had a loaded [.]44 [caliber firearm] under a pillow on her
        couch, which the trooper then removed from the immediate
        area. [Appellant] acknowledged that the guns were registered
        to her and Trooper Vinkler determined that she is not entitled to
        possess firearms in that she pled guilty to a felony offense which
        occurred in April of 1998.

N.T., 11/17/2015, at 15-16.      Following the hearing, the suppression court

denied Appellant’s motion. Order, 11/18/2015.

        A jury trial was held on August 1, 2016, and Appellant was found

guilty of the aforementioned charge.      On August 31, 2016, Appellant was




1
    Miranda v. Arizona, 384 U.S. 436 (1966).

2
  Appellant’s whereabouts were unknown at the time of the hearing, but her
counsel agreed to proceed because counsel did not plan to present
testimony from Appellant. N.T., 11/17/2015, at 3.


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sentenced to three and a half to seven years of incarceration.        Appellant

timely filed a notice of appeal.3

      On appeal, Appellant raises two issues.

      [1] Did the [suppression] court err in denying Appellant’s
      omnibus pretrial motion to suppress evidence?

      [2] Did the trial court err in permitting the Commonwealth to
      introduce testimony regarding multiple “firearms” where the
      Commonwealth information charged Appellant with being in
      possession of a single “firearm”?

Appellant’s Brief at 7.

      We consider the following regarding Appellant’s first issue.

      Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is limited to determining
      whether the factual findings are supported by the record and
      whether the legal conclusions drawn from those facts are
      correct. [W]e may consider only the evidence of the prosecution
      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 record supports the findings of the suppression
      court, we are bound by those facts and may reverse only if the
      court erred in reaching its legal conclusions based upon the
      facts.




3
   Appellant filed a statement pursuant to Pa.R.A.P. 1925 challenging the
suppression’s court ruling as well as an evidentiary ruling made at trial. The
trial court filed a Rule 1925(a) opinion addressing the evidentiary issue.
However, we note that while the suppression court stated its factual findings
on the record at the suppression hearing prior to issuing its ruling and made
a passing reference to officer safety, it did not issue specific “conclusions of
law as to whether the evidence was obtained in violation of the defendant’s
rights, or in violation of these rules or any statute,” as is required by
Pa.R.Crim.P. 581(I).


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Commonwealth         v. Prisk, 13 A.3d 526, 530 (Pa. Super. 2011) (quoting

Commonwealth v. Williams, 941 A.2d 14, 26–27 (Pa. Super. 2008) (en

banc)).

        Appellant argues that because Trooper Vinkler had neither a search

warrant nor probable cause to enter her home, any testimony regarding

firearms    recovered   from   the    home    should   have   been   suppressed.

Appellant’s Brief at 11-12.          She further argues that Trooper Vinkler

questioned her and obtained incriminating statements without administering

required Miranda warnings. Id. at 10-11.

        Appellant’s argument in her brief regarding Trooper Vinkler’s entry into

her home is cursory, underdeveloped, and lacks citation to pertinent case

law.4    It is an appellant's duty to present arguments that are sufficiently

developed for our review. Commonwealth v. Kane, 10 A.3d 327, 331 (Pa.

Super. 2010). This Court will not act as counsel and develop arguments on

behalf of an appellant. Id. Therefore, Appellant has waived this issue.

        Even if Appellant had not waived this issue, it would have no merit.

While the Fourth Amendment generally prohibits the warrantless entry of a

person’s home, the prohibition does not apply to situations in which

voluntary consent has been obtained. Illinois v. Rodriguez, 497 U.S. 177,

4
  We also note with disapproval that Appellant’s statement of the case fails
to include “[a] closely condensed chronological statement, in narrative form,
of all the facts which are necessary to be known in order to determine the
points in controversy, with an appropriate reference in each instance to the
place in the record where the evidence substantiating the fact relied on may
be found.” Pa.R.A.P. 2117(a)(4).

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181 (1990). Based upon Trooper Vinkler’s testimony that Appellant invited

him into her home, the suppression court found that Trooper Vinkler entered

Appellant’s home with her permission. N.T., 11/17/2015, at 7, 15-16.

      Similar to her argument regarding entry into the home, Appellant’s

argument concerning the lack of Miranda warnings is also underdeveloped.

Other than noting that she was a suspect in a burglary investigation, she

fails to describe why she was entitled to the warnings. While Appellant cites

to general case law regarding Miranda warnings, she fails to analyze the

issue by applying the facts of her case to the law.       Therefore, she has

waived this issue as well.

      Again, however, even if Appellant had not waived this issue, it would

merit no relief. Miranda safeguards only attach once a person is in custody

and subjected to     “express questioning or       its functional equivalent.”

Commonwealth v. Williams, 941 A.2d 14, 30 (Pa. Super. 2008).               To

constitute an interrogation, the words or actions of the police must be

“reasonably likely to elicit an incriminating response from the suspect.” Id.

“[I]n evaluating whether Miranda warnings were necessary, a court must

consider the totality of the circumstances.” Id.

             Whether a person is in custody for Miranda purposes
      depends on whether the person is physically denied of [his or
      her] freedom of action in any significant way or is placed in a
      situation in which [he or she] reasonably believes that [his or
      her] freedom of action or movement is restricted by the
      interrogation. Moreover, the test for custodial interrogation does
      not depend upon the subjective intent of the law enforcement
      officer interrogator. Rather, the test focuses on whether the

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     individual being interrogated reasonably believes [his or her]
     freedom of action is being restricted.

           Under the totality of the circumstances approach, the
     following factors are relevant to whether a detention has become
     so coercive as to constitute the functional equivalent of a formal
     arrest: the basis for the detention; its length; its location;
     whether the suspect was transported against his or her will, how
     far, and why; whether restraints were used; whether the law
     enforcement officer showed, threatened or used force; and the
     investigative methods employed to confirm or dispel suspicions.

Id. at 30-31 (citations and quotations omitted).

     Here, at the time Appellant made statements regarding the presence

and ownership of guns in her home, she was not in custody, even if Trooper

Vinkler’s burglary investigation focused upon Appellant.5      “The fact that a

police investigation has focused on a particular individual does not

automatically   trigger   ‘custody,’    thus   requiring   Miranda   warnings.”

Commonealth v. Witmayer, 144 A.3d 939, 948 (Pa. Super. 2016).

Appellant could not have reasonably believed that her freedom of action was

restricted. As noted above, Appellant invited Trooper Vinkler into her home.

Trooper Vinkler noticed a shotgun in plain sight upon entering the residence.

N.T., 11/17/2015, at 7-8. He asked Appellant’s permission to place the gun

outside, which she granted.       Id.     All of Trooper Vinkler’s questioning

regarding firearms occurred in the immediate aftermath of his entry into the




5
 Appellant’s mother, who lived next door to Appellant, alleged that Appellant
had kicked in the back door of her residence and stolen all of her food.
Appellant was charged with burglary but the charge was dismissed at the
magistrate’s level. N.T., 11/17/2015, at 5-6, 10.

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home, so their interaction was not of a long duration.           There are no

indications that Trooper Vinkler showed, threatened or used force.

      Appellant’s remaining claim of error is that the trial court should have

prohibited the Commonwealth from introducing testimony regarding multiple

firearms at trial because the criminal information referenced “a firearm.”

Upon our review of the certified record, the parties’ briefs, and the relevant

law, we conclude that the opinion of the Honorable Joseph M. George, Jr.

thoroughly and correctly addresses and disposes of that issue and

supporting arguments and evidences no abuse of discretion or errors of law.

See Trial Court Opinion, 10/3/2016, at 3-6. We agree with the trial court’s

analysis that the information tracked the wording of the statute and

Appellant’s argument would require reading the information in an overly

technical manner. Id. at 4-5. Moreover, Appellant had ample notice of the

testimony regarding multiple firearms due to Trooper Vinkler’s testimony at

the suppression hearing. Id. at 5-6.

      Accordingly, we adopt the trial court’s opinion, filed on October 3,

2016, as our own and hold, based upon the reasons stated therein, that the

trial court committed neither an error of law nor an abuse of discretion in

allowing the Commonwealth to present evidence of multiple firearms. The

parties shall attach a copy of the trial court’s October 3, 2016 opinion to this

memorandum in the event of future proceedings.

      Judgement of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/16/2017




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