J. S71002/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                  v.                   :
                                       :
NATHAN EDWARD BROWN,                   :         No. 885 WDA 2014
                                       :
                       Appellant       :


       Appeal from the Judgment of Sentence, December 16, 2013,
           in the Court of Common Pleas of Allegheny County
            Criminal Division at No. CP-02-CR-0000658-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED FEBRUARY 19, 2016

     Nathan Edward Brown appeals from the judgment of sentence of

December 16, 2013, following his conviction of drug charges. We affirm the

convictions, but vacate and remand for re-sentencing.

                 On December 12, 2012, the Pennsylvania
           Bureau of Probation and Parole declared [appellant]
           delinquent in his parole and placed him on absconder
           status. On January 8, 2013, a state parole agent
           and local police went to [appellant]’s registered
           residence because of his parole status and an active
           warrant for his arrest.[1]      Once at the home,
           [appellant]’s sister allowed law enforcement inside.
           The sister said [appellant] was in his bedroom and
           the agent and the police went to the room. Upon
           entering the room, [appellant] was placed in
           handcuffs for officer safety. [Appellant] said a gun


1
 The arrest warrant was based on an allegation that in the early morning
hours of December 23, 2012, appellant robbed Ashley Munda (“Munda”) and
Sandra Leski (“Leski”) at gunpoint.
J. S71002/15


              was in a book bag under the bed.[2] The police
              found the bag and inside it a .38 caliber revolver
              along with 27 stamp bags of heroin.

Trial court opinion, 2/23/15 at 1.

        On October 7, 2013, following a jury trial, appellant was found guilty

of one count each of possession of a controlled substance (heroin) and

possession with intent to deliver (“PWID”). Appellant was found not guilty of

two counts of robbery and one count of burglary. An additional charge of

possession of firearms prohibited         was severed prior to trial.3        On

December 16, 2013, appellant was sentenced to 2½ to 5 years for PWID;

possession merged for sentencing purposes.             Appellant filed a timely

post-sentence motion which was denied by operation of law on April 29,

2014.     A timely notice of appeal was filed on May 29, 2014.          Appellant

complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has

filed a Rule 1925(a) opinion.4

        Appellant has raised the following issues for this court’s review:




2
 Appellant’s statement was made in response to questioning by his parole
agent.
3
  Appellant was found guilty of the firearms charge and was sentenced on
September 3, 2014, to serve 4 to 8 years’ incarceration, concurrent with his
sentence on this case. Appellant filed an appeal on February 13, 2015, at
docket number 277 WDA 2015. That case has not yet been assigned to a
panel for disposition, as this court is still awaiting the original record.
4
  Appellant received several extensions of time within which to file his
concise statement. (Docket #32, 34.)


                                       -2-
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            I.     Whether appellant’s sentence of two and
                   one-half (2½) to five (5) years for one (1)
                   count of [PWID] was excessive[?]

            II.    Whether the evidence in this matter was
                   legally insufficient to sustain appellant’s
                   convictions of [PWID] and possession of a
                   controlled substance[?]

            III.   Whether the trial court erred in denying
                   appellant’s motion to suppress the evidence[?]

            IV.    Whether the trial court erred in denying
                   appellant’s post-sentence motions without a
                   hearing[?]

Appellant’s brief at 8 (capitalization omitted).

      We will address these issues seriatim.       In his first issue on appeal,

appellant argues that the trial court failed to state adequate reasons on the

record for imposition of an aggravated range sentence.

                   A challenge to the discretionary aspects
                   of a sentence must be considered a
                   petition for permission to appeal, as the
                   right to pursue such a claim is not
                   absolute.       When    challenging    the
                   discretionary aspects of the sentence
                   imposed, an appellant must present a
                   substantial    question    as    to    the
                   inappropriateness of the sentence. Two
                   requirements must be met before we will
                   review this challenge on its merits. First,
                   an appellant must set forth in his brief a
                   concise statement of the reasons relied
                   upon for allowance of appeal with respect
                   to the discretionary aspects of a
                   sentence. Second, the appellant must
                   show that there is a substantial question
                   that the sentence imposed is not
                   appropriate under the Sentencing Code.
                   That is, [that] the sentence violates


                                      -3-
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                   either a specific provision of the
                   sentencing scheme set forth in the
                   Sentencing     Code    or   a   particular
                   fundamental     norm     underlying   the
                   sentencing process.      We examine an
                   appellant’s Pa.R.A.P. 2119(f) statement
                   to determine whether a substantial
                   question exists. Our inquiry must focus
                   on the reasons for which the appeal is
                   sought, in contrast to the facts
                   underlying the appeal, which are
                   necessary only to decide the appeal on
                   the merits. Commonwealth v. Ahmad,
                   961 A.2d 884, 886-87 (Pa.Super.2008)
                   (citations, quotation marks and footnote
                   omitted).

              Commonwealth v. Brooks, 2013 WL 66474, at *3
              (Pa.Super. Jan. 7, 2013) (italics in original).

Commonwealth v. Hill, 66 A.3d 359, 363-364 (Pa.Super. 2013).                    In

addition, in Commonwealth v. Mouzon, 812 A.2d 617, 627-628 (Pa.

2002) (plurality), our Supreme Court stated that a claim a sentence which is

within the statutory limits is excessive can raise a substantial question.

      We      determine   that   appellant   has   substantially   complied   with

Rule 2119(f). The Commonwealth claims that appellant did not include the

requisite Rule 2119(f) statement in his brief, and therefore, his discretionary

aspects of sentencing claim is waived. (Commonwealth’s brief at 7.) See

Commonwealth v. Davis, 734 A.2d 879, 882 n.4 (Pa.Super. 1999) (where

the Commonwealth has specifically objected to its omission, the defect is

fatal and this court is precluded from addressing the merits of appellant’s

challenge).    While it is true that appellant’s Rule 2119(f) statement is not



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designated by a separate heading, he does include such a statement

immediately before the argument portion of his brief. (Appellant’s brief at

16-18.)    Therein, appellant claims that his sentence fell within the

aggravated range of the guidelines and the trial court failed to state reasons

on the record justifying an upward deviation from the guidelines.        (Id.)

Such an allegation raises a substantial question for this court’s review.

Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)

(“Where the appellant asserts that the trial court failed to state sufficiently

its reasons for imposing sentence outside the sentencing guidelines, we will

conclude that the appellant has stated a substantial question for our review.”

(citation omitted)).

            The matter of sentencing is vested within the sound
            discretion of the trial court; we only reverse the
            court’s determination upon an abuse of discretion.
            To demonstrate that the trial court has abused its
            discretion, the appellant must establish, by reference
            to the record, that the sentencing court ignored or
            misapplied the law, exercised its judgment for
            reasons of partiality, prejudice, bias or ill will, or
            arrived at a manifestly unreasonable decision.
            Moreover, 42 Pa.C.S.A. § 9721(b) provides that the
            trial court must disclose, on the record, its reasons
            for imposing the sentence.

Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.Super. 2004)

(citations and internal quotation marks omitted).

                  The sentencing court is permitted to deviate
            from the sentencing guidelines; however, the court
            must place on the record its reasons for the
            deviation. In sentencing outside of the guidelines,
            the court must demonstrate that it understands the


                                     -5-
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            sentencing guidelines ranges. Where the trial judge
            deviates from the sentencing guidelines . . . he must
            set forth on the record, at sentencing, in the
            defendant’s presence, the permissible range of
            sentences under the guidelines and, at least in
            summary form, the factual basis and specific reasons
            which compelled the court to deviate from the
            sentencing range.

Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa.Super. 2009)

(quotation marks and citations omitted). See also 204 Pa.Code § 303.13(c)

(“When the court imposes an aggravated or mitigated sentence, it shall state

the reasons on the record and on the Guideline Sentence Form . . .”);

Commonwealth v. Johnson, 541 A.2d 332, 340-341 (Pa.Super. 1988),

appeal denied, 552 A.2d 250 (Pa. 1988) (“when the court sentences

outside the Guidelines, there must be a contemporaneous written statement

of   the   reasons     for   the   deviation   from   the   Guidelines”),   citing

Commonwealth v. Royer, 476 A.2d 453, 458 (Pa.Super. 1984).                  “The

failure to provide such a statement of reasons for the sentence imposed is

reversible error requiring resentencing.”        Johnson, 541 A.2d at 340

(citations omitted).

      With a prior record score of 4 and offense gravity score of 7, the

guidelines for PWID were 18 to 24 months, plus or minus 6.            Therefore,

appellant’s sentence of 2½ to 5 years was at the top end of the aggravated




                                       -6-
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range.5 At sentencing, there was no discussion whatsoever of the guideline

ranges in this case.    The trial court merely recited appellant’s criminal

history, as follows:

            Okay. I’m going to -- I want to put on the record,
            since there was a presentence report here, it just
            shows a criminal history as:       At age 17, the
            Defendant, on May 20th, 2002, he was adjudicated
            delinquent. This was a receiving stolen property and
            a possession of a firearm by a minor.             On
            February 27th, 2004, the Defendant was -- pled
            guilty in Washington County and was sentenced to
            eleven and a half to twenty-three months for a
            criminal conspiracy to commit robbery, a first-degree
            felony. And then on July 20th, 2004, guilty plea in
            front of Judge Zottola of Allegheny County, in which
            the charges were first-degree felony robbery,
            criminal conspiracy, robbery, and receiving stolen
            property, and the sentence was five to ten years,
            credit back to February 16th, ‘04, and to run
            concurrent with any other sentence. And in this one,
            it talks about the Defendant had a gun, produced a
            gun and pointed it at the victim. Then his most
            recent case comes up. So I just wanted to put that
            on the record. That -- if you have no comments,
            that’s fine.

Notes of testimony, 12/16/13 at 4-5.      The trial court then imposed an

aggravated range sentence of 2½ to 5 years’ incarceration without

elaboration or discussion of the applicable guideline ranges, nor do any

reasons appear on the guideline sentence form. (Docket #19.)


5
  The Commonwealth requested a 5-10 year mandatory minimum sentence
pursuant to 42 Pa.C.S.A. § 9712.1 (drug offenses committed with firearms).
The trial court declined to impose the mandatory minimum sentence. (Notes
of testimony, 12/16/13 at 8.) We note that Section 9712.1 has been held to
be unconstitutional in its entirety. Commonwealth v. Valentine, 101 A.3d
801 (Pa.Super. 2014), appeal denied, 124 A.3d 309 (Pa. 2015).


                                    -7-
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      Regarding appellant’s prior criminal record, that is already accounted

for in the sentencing guidelines.         “We have observed, ‘factors that are

already used in Guidelines computations, including, inter alia, prior

convictions,   may   not   be      used   to   justify   an   aggravated   sentence.’”

Commonwealth v. Whitmore, 860 A.2d 1032, 1037-1038 (Pa.Super.

2004), reversed in part on other grounds, 912 A.2d 827 (Pa. 2006),

quoting Commonwealth v. Johnson, 758 A.2d 1214, 1219 (Pa.Super.

2000). “Pursuant to Johnson, a prior conviction which is already factored

into a defendant’s prior record score can not [sic] be used to impose an

aggravated minimum sentence under the sentencing guidelines.”                  Id. at

1038. The record indicates that appellant had a prior record score of four

and his prior convictions were already included in his prior record score. The

trial court cannot double-count appellant’s prior convictions in imposing an

aggravated sentence.        Id.6     Therefore, it is necessary to vacate the

judgment of sentence and remand for re-sentencing.

      In his second issue on appeal, appellant challenges the sufficiency of

the evidence to support his convictions of possession of a controlled

substance and PWID.        Appellant argues that the Commonwealth failed to




6
  Even if appellant’s prior juvenile adjudications were not included in his
prior record score, there is no indication the trial court was relying upon
those in imposing an aggravated sentence. The trial court merely recited
appellant’s criminal history as set forth in the PSI report. More importantly,
the trial court did not address the applicable guideline ranges.


                                          -8-
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prove constructive possession, where appellant was not in actual physical

control of the heroin found under his bed.

                  As a general matter, our standard of
                  review of sufficiency claims requires that
                  we evaluate the record “in the light most
                  favorable to the verdict winner giving the
                  prosecution the benefit of all reasonable
                  inferences to be drawn from the
                  evidence.”         Commonwealth          v.
                  Widmer, 560 Pa. 308, 744 A.2d 745,
                  751 (2000). “Evidence will be deemed
                  sufficient to support the verdict when it
                  establishes each material element of the
                  crime charged and the commission
                  thereof by the accused, beyond a
                  reasonable doubt.” Commonwealth v.
                  Brewer,      876    A.2d    1029,     1032
                  (Pa.Super.2005).      Nevertheless, “the
                  Commonwealth need not establish guilt
                  to a mathematical certainty.” Id.; see
                  also [Aguado, 760 A.2d at 1185]
                  (“[T]he     facts   and     circumstances
                  established by the Commonwealth need
                  not be absolutely incompatible with the
                  defendant’s innocence.”). “[W]here no
                  single bit of evidence will by itself
                  conclusively establish guilt, the verdict
                  will be sustained where the totality of the
                  evidence supports the finding of guilt.”
                  Commonwealth v. Thomas, 522 Pa.
                  256, 561 A.2d 699, 704 (1989).

Commonwealth v. Kinard, 95 A.3d 279, 291-292 (Pa.Super. 2014)

(en banc).

                   As appellant was not in physical possession of
             the contraband, the Commonwealth was required to
             establish that he had constructive possession of the
             seized items to support his convictions.




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                   Constructive possession is a legal fiction,
                   a pragmatic construct to deal with the
                   realities of criminal law enforcement.
                   Constructive possession is an inference
                   arising from a set of facts that
                   possession of the contraband was more
                   likely than not.       We have defined
                   constructive possession as conscious
                   dominion.       We subsequently defined
                   conscious dominion as the power to
                   control the contraband and the intent to
                   exercise that control. To aid application,
                   we      have    held   that    constructive
                   possession may be established by the
                   totality of the circumstances.

              Commonwealth v. Brown, 48 A.3d 426, 430
              (Pa.Super.2012), appeal denied, 619 Pa. 697, 63
              A.3d 1243 (2013) (internal quotation marks and
              citation omitted).

Id. at 292.

     Instantly, the heroin was found inside a purple backpack underneath

appellant’s bed.     (Notes of testimony, 10/4/13 at 64-65.)       Appellant

admitted to police that the heroin was his and that he sold it on an

as-needed basis when he was short of money. (Id. at 74-75.) Appellant

stated that he obtained the heroin from a friend, but declined to identify

him. (Id. at 75.) Appellant recently lost his job and told police that when

he needed a few dollars, he would sell the heroin. (Id.) Appellant admitted

to selling ten stamp bags of heroin over the last two months. (Id. at 87.)

Clearly, the evidence was sufficient to support a conclusion that appellant

constructively possessed the drugs.      Appellant argues that his statement

was not recorded and he was not given the opportunity to review it for


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accuracy.     (Appellant’s brief at 24.)   However, on sufficiency review, “the

entire record must be evaluated and all evidence actually received must be

considered.” Commonwealth v. Valette, 613 A.2d 548, 549 (Pa. 1992).

There is no merit to appellant’s sufficiency argument.

      Next, appellant argues that the trial court erred in refusing to suppress

physical evidence as well as appellant’s inculpatory statements to police.

Regarding appellant’s initial statement to his parole officer that there was

contraband under the bed, appellant argues that he was in police custody at

that time and had not been properly Mirandized.          Appellant also argues

that his subsequent statement to police admitting possession of the gun and

heroin was fruit of the poisonous tree and should likewise be suppressed.

Regarding the evidence found in the book bag underneath his bed, appellant

argues that the warrantless search was invalid because he was already

handcuffed and in police custody and did not pose a threat.        In addition,

appellant claims that his parole officer was acting as a “stalking horse” for

the police.     According to appellant, the technical parole violations were

merely a pretext to conduct a warrantless search in furtherance of the

robbery investigation.

              Our standard of review of a denial of suppression is
              whether the record supports the trial court’s factual
              findings and whether the legal conclusions drawn
              therefrom are free from error. Our scope of review
              is limited; we 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


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           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.

Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa.Super. 2002)

(en banc) (citations and quotation marks omitted).

           61 Pa.C.S.A. § 6153 provides, in relevant part, the
           following:

           (b)   Searches and seizures authorized.--

                 (1)    Agents may search the person and
                        property of offenders in accordance
                        with the provisions of this section.

                 (2)    Nothing in this section shall be
                        construed to permit searches or
                        seizures   in    violation  of   the
                        Constitution of the United States or
                        Section 8 of Article I of the
                        Constitution of Pennsylvania.

                 ....

           (d)   Grounds for personal search of offender.--

                 (1)    A personal search of an offender may be
                        conducted by an agent;

                        (i)    if there is a reasonable
                               suspicion to believe that the
                               offender             possesses
                               contraband or other evidence
                               of violations of the conditions
                               of supervision;

                        (ii)   when     an      offender  is
                               transported    or taken into
                               custody; or




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                      (iii)   upon an offender entering or
                              leaving       the     securing
                              enclosure of a correctional
                              institution, jail or detention
                              facility.

               (2)    A property search may be conducted by
                      an agent if there is reasonable suspicion
                      to believe that the real or other property
                      in the possession of or under the control
                      of the offender contains contraband or
                      other evidence of violations of the
                      conditions of supervision.

               ....

               (6)    The existence of reasonable suspicion to
                      search shall be determined in accordance
                      with constitutional search and seizure
                      provisions as applied by judicial decision.
                      In accordance with such case law, the
                      following factors, where applicable, may
                      be taken into account:

                      (i)     The observation of agents.

                      (ii)    Information     provided     by
                              others.

                      (iii)   The activities of the offender.

                      (iv)    Information provided by the
                              offender.

                      (v)     The experience of       agents
                              with the offender.

                      (vi)    The experience of agents in
                              similar circumstances.

                      (vii) The    prior      criminal  and
                            supervisory      history of the
                            offender.



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                         (viii) The     need      to     verify
                                compliance       with      the
                                conditions of supervision.

                         ....

             61 Pa.C.S.A. § 6153(b), (d). 7

        It is well established that a parolee has limited Fourth Amendment

rights and a diminished expectation of privacy in exchange for his early

release from prison.      Commonwealth v. Curry, 900 A.2d 390, 394

(Pa.Super. 2006) (citations omitted).

             As this Court has stated:

                          Because the very assumption of
                   the institution of parole is that the
                   parolee is more likely than the ordinary
                   citizen to violate the law, the agents
                   need not have probable cause to search
                   a parolee or his property; instead,
                   reasonable suspicion is sufficient to
                   authorize a search. Essentially, parolees
                   agree to endure warrantless searches
                   based only on reasonable suspicion in
                   exchange for their early release from
                   prison.

                         The search of a parolee is only
                   reasonable, even where the parolee has
                   signed a waiver . . . , where the totality
                   of the circumstances demonstrate that
                   (1) the parole officer had reasonable
                   suspicion to believe that the parolee
                   committed a parole violation; and (2) the
                   search was reasonably related to the
                   duty of the parole officer.



7
    Formerly numbered 61 P.S. § 331.27a.


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             Commonwealth v. Hunter, 963 A.2d 545, 551-52
             (Pa.Super.2008) (quotations and quotation marks
             omitted). The determination of whether reasonable
             suspicion exists is to be considered in light of the
             totality of the circumstances. See Commonwealth
             v. Shabazz, 18 A.3d 1217 (Pa.Super.2011).

Commonwealth v. Colon, 31 A.3d 309, 315 (Pa.Super. 2011), appeal

denied, 42 A.3d 1058 (Pa. 2012).

                   Incident to a lawful arrest, a police officer may
             conduct a warrantless search of the arrestee’s
             person and of the area within the immediate control
             of the arrestee. The warrantless search acts to
             protect the arresting officer from weapons the
             arrestee may have access to, and prevents the
             destruction or concealment of evidence.

Commonwealth v. Walker, 501 A.2d 1143, 1148 (Pa.Super. 1985), citing

Commonwealth            v.   Timko,   417      A.2d     620,      622   (Pa.   1980);

Commonwealth v. Long, 414 A.2d 113, 115 (Pa. 1980); Commonwealth

v. Zock, 454 A.2d 35, 37 (Pa.Super. 1982), appeal dismissed, 465 A.2d

641 (Pa. 1983). Parole officers have police powers including the power to

arrest   a   parolee,    without   warrant,    for    technical    parole   violations.

61 Pa.C.S.A. § 6152.8        See Commonwealth v. Miller, 450 A.2d 40, 42



8
             An agent is declared to be a peace officer and is
             given police power and authority throughout this
             Commonwealth to arrest without warrant, writ, rule
             or process any parolee or probationer under the
             supervision of the board for failing to report as
             required by the terms of his probation or parole or
             for any other violation of the probation or parole.

Id.


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(Pa.Super. 1982) (“When performing his normal duties, a parole agent is not

required to obtain a search warrant.     A parole officer has the authority to

arrest parolees without a warrant for visible violations of parole.”) (citations

omitted).

        Appellant’s parole officer, Andrew Barnes (“Barnes”), testified at the

hearing on appellant’s suppression motion.          Barnes testified that in

October/November 2012, appellant gave several positive urine tests for

marijuana. (Notes of testimony, 5/30/13 at 17-18.) Appellant had also lost

his job.    (Id. at 16.)   Because of the positive urine tests, appellant was

referred to Addison Behavioral Care in Wilkinsburg for a drug and alcohol

evaluation. (Id. at 19.) However, because he was no longer employed and

was not covered by health insurance, appellant was instructed to apply for a

medical card at the county assistance office to cover the costs. (Id.) Up

until that point, appellant had been reporting to the parole office on a

monthly basis; however, appellant was told to begin reporting every week.

(Id.)    Barnes testified that appellant stopped reporting in December 2012

and was declared delinquent effective December 12, 2012. (Id. at 19-20.)

        On January 8, 2013, accompanied by Penn Hills police officers, Barnes

attempted to locate appellant at his approved residence at 114 Clinton

Drive. (Id. at 21.) Appellant resided with his mother and stepfather. (Id.

at 15, 17.) Barnes was made aware by Penn Hills police that appellant had




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an active warrant for armed robbery. (Id. at 21.) Barnes testified that he

had been to 114 Clinton Drive at least six or seven times. (Id. at 22.)

      Barnes, accompanied by Detective Joseph Blaze and two uniformed

officers, knocked on the front door and identified himself. (Id. at 21-23.)

Appellant’s sister answered the door and informed Barnes that appellant was

in his bedroom.    (Id. at 23.)   Barnes entered the bedroom with his gun

drawn.    (Id. at 24.)   Appellant was getting up out of bed.   (Id.)   Barnes

ordered appellant to show his hands. (Id.) Appellant complied and he was

placed in handcuffs. (Id.) At that point, Barnes questioned appellant about

the gun; appellant stated that it was in a book bag underneath the bed.

(Id.) Barnes pulled out the book bag and recovered a .38 caliber revolver,

as well as stamp bags containing suspected narcotics. (Id. at 24-25.)

      Clearly, Barnes had reasonable suspicion of criminal activity to search

appellant, his parolee. In addition to technical violations of parole, Barnes

was informed that appellant was wanted on suspicion of armed robbery and

was in possession of a gun. As stated above, parolees enjoy a diminished

expectation of privacy in exchange for their early release on parole.       In

addition, Barnes could search the area underneath the bed, an area within

appellant’s immediate vicinity, as part of the search incident to a lawful

arrest.

      Regarding appellant’s allegation that Barnes was acting at the behest

of police, the record belies this argument.    Barnes testified that he was



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instructed to proceed to appellant’s approved residence by his supervisor.

(Id. at 27.) Barnes testified that Penn Hills police never told him to search

the residence. (Id. at 27-28.) Barnes explained that it is typical to search a

parolee’s approved residence when he is in violation of the conditions of

supervision.      (Id.   at   28.)    Both     Detective   Anthony   Diulus   and

Detective Blaze also testified that they did not give Barnes any particular

instructions other than to take appellant into custody. (Notes of testimony,

7/18/13 at 29-30, 52.)9 They did not tell Barnes to search the residence.

(Id.) Detective Diulus testified that Barnes did not assist in any way with

the police investigation into the armed robbery of Munda and Leski. (Id. at

39-40.)     Clearly, Barnes was not acting as a “stalking horse” for the

Penn Hills police in their investigation into the alleged robbery. Barnes was

aware of the charges, but was there in his capacity as appellant’s parole

officer.

        Next, we address appellant’s argument that his statements were

obtained in violation of Miranda.10

                   A confession obtained during a custodial
                   interrogation is admissible where the
                   accused’s right to remain silent and right
                   to counsel have been explained and the
                   accused has knowingly and voluntarily
                   waived those rights.       The test for
                   determining the voluntariness of a
                   confession and whether an accused

9
    The May 30, 2013 suppression hearing was continued on July 18, 2013.
10
     Miranda v. Arizona, 384 U.S. 436 (1966).


                                      - 18 -
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                   knowingly waived his or her rights looks
                   to the totality of the circumstances
                   surrounding the giving of the confession.

             Commonwealth v. Jones, 546 Pa. 161, 170, 683
             A.2d 1181, 1189 (1996) (citations omitted). “The
             Commonwealth bears the burden of establishing
             whether a defendant knowingly and voluntarily
             waived his Miranda rights.” Commonwealth v.
             Bronshtein, 547 Pa. 460, 464, 691 A.2d 907, 913
             (1997) (citation omitted).

Commonwealth v. Parker, 847 A.2d 745, 748 (Pa.Super. 2004).

             Statements made during custodial interrogation are
             presumptively involuntary, unless the accused is first
             advised of . . . Miranda rights. Commonwealth v.
             DiStefano, 782 A.2d 574, 579 (Pa.Super.2001),
             appeal denied, 569 Pa. 716, 806 A.2d 858 (2002).
             Custodial interrogation is “questioning initiated by
             law enforcement officers after a person has been
             taken into custody or otherwise deprived of [his]
             freedom of action in any significant way.” Miranda,
             supra at 444, 86 S.Ct at 1612, 16 L.Ed.2d at 706.
             “The Miranda safeguards come into play whenever a
             person in custody is subjected to either express
             questioning      or    its   functional     equivalent.”
             Commonwealth v. Gaul, 590 Pa. 175, 180, 912
             A.2d 252, 255 (2006), cert. denied, 552 U.S. 939,
             128 S.Ct. 43, 169 L.Ed.2d 242 (2007).             Thus,
             “Interrogation occurs where the police should know
             that their words or actions are reasonably likely to
             elicit an incriminating response from the suspect.”
             Commonwealth v. Ingram, 814 A.2d 264, 271
             (Pa.Super.2002), appeal denied, 573 Pa. 671, 821
             A.2d 586 (2003). “In evaluating whether Miranda
             warnings were necessary, a court must consider the
             totality of the circumstances . . . .” Gaul, supra.

Commonwealth v. Gonzalez, 979 A.2d 879, 888-889 (Pa.Super. 2009),

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

(en banc).     “Parolees, like any other individual, must be given Miranda


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warnings when subject to custodial interrogation.”        Commonwealth v.

Cooley, 118 A.3d 370, 376 (Pa. 2015).

           The concept of “fruit of the poisonous tree” and the
           possibility of “purging the taint” of contaminated
           evidence were extensively discussed in Wong Sun
           v. United States, 371 U.S. 471, 83 S.Ct. 407, 9
           L.Ed.2d 441 (1963).        The Pennsylvania Supreme
           Court found the following language from Wong Sun
           to be particularly instructive:

                 “We need not hold that all evidence is
                 ‘fruit of the poisonous tree’ simply
                 because it would not have come to light
                 but for the illegal actions of the police.
                 Rather, the more apt question in such a
                 case is ‘whether, granting establishment
                 of the primary illegality, the evidence to
                 which instant objection is made has been
                 come at by exploitation of that illegality
                 or    instead    by  means      sufficiently
                 distinguishable to be purged of the
                 primary taint.’”

           [Commonwealth v.] Cunningham, 471 Pa. [577]
           at 585-86, 370 A.2d [1172] at 1176-77 [(1977)]
           (quoting Wong Sun, 371 U.S. at 487-88, 83 S.Ct. at
           417 (footnote and citations omitted)).            If the
           discovery of evidence can be traced to a source
           independent of the initial illegality, suppression is not
           mandated.     Commonwealth v. Ariondo, 397
           Pa.Super. 364, 377, 580 A.2d 341, 347 (1990),
           appeal denied, 527 Pa. 628, 592 A.2d 1296
           (1991). The “fruit of the poisonous tree” doctrine
           excludes evidence obtained from, or acquired as a
           consequence of, lawless official acts; it does not
           exclude evidence obtained from an “independent
           source.” Id.

Commonwealth v. Brown, 700 A.2d 1310, 1318 (Pa.Super. 1997).




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      Barnes testified that after he placed appellant in handcuffs, and

without reading him his Miranda warnings, he asked him about the location

of the gun:

              I said: You know we’re here because of you not
              reporting and you got a warrant out in Penn Hills for
              a gun? I said: Where’s the gun? And he just stood
              there. And I said: Okay, but here’s the thing; I’m
              gonna call and get five or six more guys, we’re
              gonna come down and tear her house up. Do you
              want to disrespect her like that? He just kind of
              hung his head and said: It’s in the bookbag under
              the bed.

Notes of testimony, 5/30/13 at 24.

      Appellant was handcuffed and in custody at the time he was

questioned by Barnes regarding the location of the gun. However, appellant

was not only in violation of his parole but had a warrant out for his arrest for

a violent crime involving a firearm.     Barnes had the right to search the

residence for contraband including underneath appellant’s bed.         In fact,

Barnes testified that without appellant’s admission, he intended to call

additional agents from the parole office and conduct a search of the entire

house. (Id. at 25.) Barnes would have recovered the gun and drugs from

inside the book bag independent of appellant’s admission. Therefore, even

assuming the interrogation of appellant was improper, the evidence was

admissible. See Gonzalez, 979 A.2d at 889-890 (explaining the inevitable

discovery rule).




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J. S71002/15


     Appellant     also   argues    that      his   subsequent    statement   to

Detective Diulus should have been suppressed as fruit of the poisonous tree.

According to appellant, his statement at the police station flowed directly

from the illegal interrogation and search of his bedroom. (Appellant’s brief

at 39-40.)

     Detective Diulus testified that after appellant was transported to the

police station, he was given a copy of the arrest warrant and the criminal

complaint, including the affidavit of probable cause.      (Notes of testimony,

7/18/13 at 30-31.) Later, Detective Diulus asked appellant whether he had

read the documents over and wanted to talk; appellant indicated that he did

want to talk.    (Id. at 31.)   At that time, appellant was read his Miranda

warnings and also signed a waiver form. (Id. at 31-32.) Appellant was not

handcuffed and did not appear to be in any distress.             (Id. at 31-32.)

Appellant was taken upstairs to the detective office.              (Id. at 33.)

Detective Diulus again asked appellant whether he wanted to make a

statement, and he answered in the affirmative. (Id.) Barnes and Detective

Blaze were also present, but Detective Diulus was directing the interview.

(Id. at 35, 54.) Detective Diulus, who was not at 114 Clinton Drive when

appellant was arrested, described appellant’s demeanor as “very casual.”

(Id. at 28-29, 35.)

     Detective Diulus testified that appellant never asked the police to stop

the interview and he never requested counsel. (Id. at 35.) Detective Blaze



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described appellant as cooperative and polite.         (Id. at 54.)     Appellant

discussed the items recovered from the residence, but declined to answer

questions about the alleged robbery.          (Id. at 33-34, 36-37.)    The only

statement appellant made regarding the robbery allegations was that he and

his friend left the bar that night and drove directly to his friend’s house

where they played video games. (Id. at 36.)

      Even assuming, arguendo, that appellant’s initial statement to Barnes

was coerced and involuntary, his subsequent statement to Detective Diulus

was made knowingly and voluntarily.       There was a sufficient break in the

chain of events to remove the taint of any coercion resulting from the

allegedly illegal questioning of appellant and search of appellant’s bedroom

at 114 Clinton Drive. Appellant was transported to the police station, where

he was permitted to examine the criminal complaint and arrest warrant.

Appellant indicated he wanted to talk to police. Appellant was then read his

Miranda    rights   and   executed   a   waiver    form.    While   Barnes    and

Detective Blaze were present during the interview, it was conducted by

Detective Diulus, who was not even at 114 Clinton Drive when appellant was

arrested. Appellant’s demeanor was described as calm and relaxed. In fact,

appellant declined to discuss the alleged robbery and only agreed to answer

questions regarding the contraband found in his bedroom.               Appellant’s

statement to police was admissible, and the trial court did not err in denying

appellant’s suppression motion. See Oregon v. Elstad, 470 U.S. 298, 310



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(1985) (“When a prior statement is actually coerced, the time that passes

between confessions, the change in place of interrogations, and the change

in identity of the interrogators all bear on whether that coercion has carried

over into the second confession.”).

      Finally, appellant claims that the trial court erred in failing to hold an

evidentiary hearing on post-sentence motions.       (Appellant’s brief at 25.)

Whether or not to hold a hearing on post-sentence motions is within the trial

court’s discretion.    Pa.R.Crim.P. 720(B)(2)(b).     With the exception of

appellant’s sentencing challenge, we find his issues to be without merit;

therefore, the trial court did not abuse its discretion in failing to hold an

evidentiary hearing. Appellant’s sufficiency challenge and his argument that

the trial court erred in refusing to suppress evidence, discussed supra, can

be disposed of on the existing record.

      Judgment    of   sentence   vacated.     Remanded     for   re-sentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/19/2016




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