J-A06007-20


                                  2020 PA Super 141

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                             Appellant

                        v.

    WALLACE CARTER

                             Appellee                   No. 154 EDA 2019


               Appeal from the Order Entered December 13, 2018
              In the Court of Common Pleas of Montgomery County
                Criminal Division at No: CP-46-CR-0004959-2017


BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*

OPINION BY STABILE, J.:                                  FILED JUNE 16, 2020

        The Commonwealth appeals from the December 13, 2018 order entered

in the Court of Common Pleas of Montgomery County granting the motion to

suppress filed by Appellee, Wallace Carter (“Carter”).      The Commonwealth

claims trial court error for granting Carter’s motion on grounds not raised in

his motion to suppress or at his suppression hearing. Finding merit in the

Commonwealth’s argument, we reverse and remand.

        In conjunction with its December 13, 2018 order, the suppression court

issued Findings of Fact and Conclusions of Law.           The Findings of Fact,

supported by citation to the suppression hearing transcript, are summarized

as follows:

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      In the early morning hours of June 12, 2016, a shooting occurred in

Norristown.   Detective Charles Leeds (“Leeds”) responded to the scene

approximately ten minutes later.      Leeds took on an investigative lead

regarding the shooting.

      At the scene, Leeds encountered Carter, who was suffering from a

gunshot wound—an entry wound to the lower-left abdomen and an exit wound

in his back. Carter was under the influence of PCP, crack, and alcohol, and

was visibly intoxicated.

      Carter was transported to Penn Presbyterian Medical Center in

Philadelphia where he underwent surgery. Leeds was in contact with hospital

personnel who kept Leeds informed of Carter’s condition and progress. During

the daytime hours of June 14, 2016, after receiving information that Carter

was conscious and alert, Leeds and Corporal Nicholas Dumas (“Dumas”)

traveled to the hospital. They spoke with hospital personnel before entering

Carter’s room in the ICU where Carter was sleeping and was hooked up to

numerous medical devices. Upon their entry to his room, Carter awoke. He

“was under the influence of some kind of pain medication” at the time.

      Leeds and Dumas were wearing detective uniforms identifying them as

Norristown Police Detectives. Their badges were displayed and both had their

service weapons openly and visibly holstered on their hips.

      Leeds and Dumas positioned themselves on either side of Carter’s bed.

Leeds, who deemed Carter “alert and conscious,” began to speak with Carter


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and asked if Carter knew who Leeds was. Carter responded, “Yeah, Leeds.”

Leeds then asked if Carter knew why he was in the hospital. Carter said he

was in the hospital because he had been shot.

        Leeds then read Carter his Miranda1 rights.         Leeds ordinarily has

interrogation subjects sign a Miranda waiver when they agree to waive their

rights but did not do so in this instance because Carter was connected to

numerous medical devices.           Instead, Leeds opted to secure only Carter’s

verbal confirmation and waiver of his Miranda rights.          Carter stated he

understood his Miranda rights and he was willing to speak with Leeds.

        Leeds then began to question Carter and Carter answered Leeds’

questions, giving appropriate responses. The conversation was described as

cordial and calm and Carter appeared clearheaded as he gave concise

responses that made sense.           During the conversation, neither Leeds nor

Dumas raised his voice, unholstered or brandished a firearm, physically

touched Carter, or made any threats or promises to Carter. At no point, did

Leeds or Dumas discuss how charges against Carter would proceed. It was

stipulated that the encounter in Carter’s hospital room was a custodial

interrogation. See Findings of Fact, 12/13/18, at ¶¶ 1-26.

        The interrogation yielded a confession from Carter. In his brief, Carter

contends he was the victim of the June 12, 2016 shooting. Appellee’s Brief at



____________________________________________


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

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1 (citing Notes of Testimony, Suppression Hearing, 11/29/18, at 8-10, 22).

The Commonwealth contends,

      [Carter] pulled a gun on the victims, a struggle ensued, one of the
      victims wrestled the gun away from [Carter] and warned him to
      stay away. [Carter] then charged him and was shot. [Carter]
      was charged with two counts of simple assault, possession of a
      firearm with the intent to employ it criminally, recklessly
      endangering another person, terroristic threats, and person not to
      possess a firearm.

Commonwealth Brief at 4-5.

      Carter filed a motion to suppress, styled “Motion to Suppress

Statements Made While He Was Confined to a Hospital Bed and Extracted

Absent a Knowing, Voluntary and Intelligent Waiver of his Miranda Rights.”

In his motion, he asserted his confession was obtained only “as a result of a

custodial interrogation that occurred while [] Carter was medicated, connected

to medical devices, confined to a hospital bed and questioned under

circumstances in which he could not have knowingly, voluntarily and

intelligently waived his Miranda rights.” Motion to Suppress, 9/17/18, at 1.

He claimed he was Mirandized moments after waking from sleep; he was

medicated; and his body “was physically entwined with multiple medical

devices,” which prevented him from signing any written statement that might

confirm he was able to understand the “alleged ‘Miranda warnings.’” Id. at

2, ¶¶ 9-13.   He asserted that his “‘physical and psychological state’ while

medicated and confined to a hospital bed during treatment for gunshot

wounds necessarily suggests that he could not have knowingly, voluntarily


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and intelligently waived his rights.” Id. at 2, ¶ 14 (citing Commonwealth v.

D’Amato, 526 A.2d 300, 304-05 (Pa. 1987)). “Likewise, the ‘condition of,’ []

Carter’s ‘detention,’ surrounded by two police officers while physically confined

to bed by medical devices, suggests that he could not have knowingly,

voluntarily and intelligently waived his rights.”      Id. at 3, ¶ 15 (citing

D’Amato).

      The suppression court conducted a hearing on November 29, 2018,

during which Carter argued, consistent with his motion, that the conditions

under which his confession was given were such that “a person could not

voluntarily, knowingly, intelligently surrender the rights that Miranda is

designed to protect, when they say, yes, I’ll agree to give a statement.” Notes

of Testimony, Suppression Hearing, 11/29/18, at 4.

      At the conclusion of the hearing, the court took the matter under

advisement.    On December 13, 2018, the court issued the order granting

Carter’s motion.   The court concluded that the encounter was a custodial

interrogation requiring Miranda warnings and a valid waiver, and that Carter

did not knowingly, intelligently, or voluntarily waive his Miranda rights.

Conclusions of Law, 12/13/18, at 10, ¶¶ 1-2.

      The Commonwealth filed this timely appeal under Pa.R.A.P. 311(d),

which permits an appeal from the grant of a suppression order upon

certification in the notice of appeal that the order “will terminate or




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substantially handicap the prosecution.”     The Commonwealth presents one

issue for our review:

   1. Whether the trial court erred by suppressing evidence based on a
      suppression theory [Carter] failed to raise in his pretrial motion or
      at the suppression hearing, and then compounded the error by
      denying the Commonwealth the opportunity to present evidence
      to address the waived constitutional claim raised sua sponte by
      the trial court?

Commonwealth Brief at 3.

    In Commonwealth v. Korn, 139 A.3d 249 (Pa. Super. 2016), this Court

explained:

      Our standard of review in addressing a challenge to the
      suppression court’s granting of a suppression motion is well
      settled.

         When the Commonwealth appeals from a suppression order,
         we follow a clearly defined standard of review and 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 is to determine if the
         suppression court properly applied the law to the facts.

      Commonwealth v. Miller, 56 A.3d 1276, 1278–1279 (Pa. Super.
      2012) (citations omitted). “Our standard of review is restricted to
      establishing whether the record supports the suppression court’s
      factual findings; however, we maintain de novo review over the
      suppression court’s legal conclusions.”      Commonwealth v.
      Brown, 606 Pa. 198, 996 A.2d 473, 476 (2010) (citation
      omitted).

Id. at 252-53.




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      Prior to setting forth its Conclusions of Law, the court noted the

Commonwealth’s burden to “establish, by a preponderance of the evidence,

that the defendant was aware of the reason for the interrogation.” Findings

of Fact and Conclusions of Law, 12/13/18, at 6 (quoting Commonwealth v.

(Marcel) Johnson, 160 A.3d 127, 138 (Pa. 2017). The court noted that the

“ultimate test of voluntariness is whether the confession is the product of an

essentially free and unconstrained choice by its maker.” Id. at 5 (quoting

Commonwealth v. (Christopher) Johnson, 107 A.3d 52, 93 (Pa. 2014)

(additional citations omitted)). The court discussed the need for a suspect’s

awareness of “the transaction giving rise to the investigation,” id. (citing

Commonwealth v. Dixon, 379 A.2d 553, 556 (Pa. 1977)), and that the

interrogation be conducted under circumstances reflecting that “there is no

circumstance lending ambiguity to the direction and purpose of the

questioning.” Id. at 6 (quoting Johnson, 160 A.3d at 138, in turn quoting

Dixon, 379 A.2d at 556).

      In (Marcel) Johnson, our Supreme Court explained:

      A waiver of Miranda rights is valid where the suspect is aware of
      the general nature of the transaction giving rise to the
      investigation. Commonwealth v. Dixon, 475 Pa. 17, 379 A.2d
      553, 556 (Pa. 1977). “[O]nly when such knowledge is possessed
      by a suspect . . . can [he] be said to understand the consequences
      of yielding the right to counsel.” Id. This is because “[i]t 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, 436 Pa. 114, 259 A.2d 160, 163 (Pa.
      1969). When a defendant challenges the validity of his
      Miranda waiver on this basis, the Commonwealth must
      establish, by a preponderance of the evidence, that the defendant

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      was aware of the reason for the interrogation. Dixon, 379 A.2d
      at 556.

Johnson, 160 A.3d at 138 (emphasis added).

      Here, as reflected in his suppression motion and by the testimony at the

hearing, Carter did not challenge the validity of his waiver based on a

misunderstanding of “the general nature of the transaction giving rise to the

investigation.” Id. Nevertheless, the suppression court ignored the basis for

the motion—that Carter’s physical and psychological state was such that he

could not knowingly, intelligently, and voluntarily waive his Miranda rights—

and instead sua sponte determined that “under the circumstances, a ‘palpable

ambiguity’ existed as to the reason for the interrogation; was [Carter] being

questioned as a suspect or a victim[?]” Suppression Court Rule 1925(a)

Opinion, 3/4/19, at 6 (citing Findings of Fact and Conclusions of Law,

12/13/18, at 5-10). According to the suppression court, the Commonwealth

“was required to prove on a preponderance of the evidence that [Carter] knew

of the occasion of the interrogation.” Id. The court concluded that “[d]ue to

the particular circumstances of [Carter’s] hospitalization and the ‘palpable

ambiguity’ concerning the detectives’ presence in his hospital room (Were the

police questioning [Carter] as a victim or a suspect?) this court found that the

[Commonwealth] failed to meet its burden of proof.”         Id. at 6-7 (citing

Findings of Fact and Conclusions of Law, 12/13/18, at 5-10).

     The Commonwealth counters that Carter did not suggest, either in his

motion or at the suppression hearing, that he was unaware of the reason the

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detectives were in his hospital room. The motion and the testimony presented

at the hearing related strictly to Carter’s medical condition and his ability to

waive make a knowing, intelligent, or voluntary waiver of his Miranda rights

under those circumstances.

      Our reading of the motion and the hearing transcript supports the

Commonwealth’s contention. Carter’s suppression motion was clearly based

on his medical circumstances as preventing him from properly waiving his

Miranda rights. To suggest, as the suppression court does, that he was

unaware why the officers were questioning him is wholly unsupported by the

record. Moreover, it does not make sense. If the officers were there to speak

with him as a victim, there would have been no reason to Mirandize him.

       The     suppression   court   extensively   cites   to,   and   relies   upon,

Dixon. However, Dixon is readily distinguishable. In that case, a woman

who had been convicted of malicious mischief was informed she would be

arrested if she did not make restitution. She failed to make restitution and

was arrested. She was read her Miranda rights and was asked if she knew

the reason for her arrest. She said she did. However, she mistakenly believed

she was being arrested and questioned in relation to her failure to make

restitution.   The officers did not ask about the failure to make restitution.

Instead, they questioned her about the death of her infant son.                  She

immediately broke down and confessed to the murder. Our Supreme Court

held that confession was not the result of a knowing and intelligent waiver of


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her constitutional rights.    Therefore, the confession should have been

suppressed. The Court reversed her judgment of sentence for second-degree

murder and ordered a new trial.

      In contrast, Carter did not advance any argument in his motion or at

the suppression hearing that he believed he was waiving his Miranda rights

in conjunction with being the victim of a shooting. In fact, in his introductory

remarks to the suppression court, Carter’s counsel stated:

      I submit, Your Honor, you should shift the burden to the
      Commonwealth to present evidence that Mr. Carter’s statement
      could not have been made in a knowing, voluntary and intelligent
      manner, specifically because it’s agreed upon by the parties and
      within all the police reports and obtained in discovery that Mr.
      Carter’s alleged confession occurred after a Miranda warning, yes,
      but a Miranda warning that was given two days after he had been
      shot with both entry and exit wounds and during the course of his
      treatment in the hospital, while he’s sitting in a hospital bed
      intubated and drugged.

      The defense’s argument, Your Honor, is that in those conditions,
      a person could not voluntarily, knowingly, intelligently surrender
      the rights that Miranda is designed to protect, when they say, yes,
      I'll agree to give a statement.

Notes of Testimony, Suppression Hearing, 11/29/18, at 3-4.

      Carter did not call any witnesses at the suppression hearing. The only

witness was Detective Leeds. No testimony was elicited from Detective Leeds

even remotely suggesting that Carter did not understand the “direction and

purpose of the questioning of the hearing.” See (Marcel) Johnson, 160 A.3d

at 138.




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      While we take no issue with the suppression court’s Findings of Fact and

recognize we are, therefore, bound by them, we conclude that the suppression

court did not did not properly apply the law to the facts as established at the

suppression hearing.      Pennsylvania Rule of Criminal Procedure 581(D)

requires that a motion to suppress “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) (emphasis added).

Here, the suppression court erred by suppressing evidence on grounds not

asserted in Carter’s motion. Commonwealth v. Banks, 165 A.3d 976, 980-

81 (Pa. Super. 2017). Therefore, we reverse the suppression court’s order

granting Carter’s motion to suppress and remand for further proceedings. In

light of our disposition, there is no need to reconvene the hearing for additional

evidence.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2020




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