J-A03016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN HAMILTON                             :
                                               :
                       Appellant               :   No. 1883 WDA 2017

           Appeal from the Judgment of Sentence November 16, 2017
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0014385-2016


BEFORE:      BOWES, J., SHOGAN, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.:                                FILED APRIL 23, 2019

       Appellant, Kevin Hamilton, appeals from the judgment of sentence

entered on November 16, 2017, following a bench trial. We affirm.

       The trial court summarized the facts of the crimes as follows:

       [T]he evidence presented at the stipulated non-jury trial
       established that the Pittsburgh Police Department executed a
       search warrant at [Appellant’s] home at 147 Orchard Street
       following information provided by a confidential informant and
       police corroboration through surveillance and two (2) trash
       pulls.[1] Following the execution of the search warrant [Appellant]
       asked to speak with [City of Pittsburgh Police] Detective [William]
       Churilla, and told the detective that when the police initially
       entered his home, he had flushed crack cocaine and heroin down
       the toilet. He also stated that the drugs found during the search
       were his and the flip phone was his “dirty phone.” Subsequent

____________________________________________


1 The targets of the search warrant were the residence’s occupants, Appellant
and his girlfriend, Taisha Demus. N.T. (Suppression), 6/22/17, at 8. We note
that Ms. Demus’s surname is misspelled as “Demass” throughout the
transcript.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A03016-19


      examination of the flip phone revealed text messages related to
      the sale of drugs.

Trial Court Opinion, 6/26/18, at 2–3.

      The trial court summarized the procedural history as follows:

             [Appellant] was charged with two (2) counts of Possession
      of a Controlled Substance with Intent to Deliver,1 two (2) counts
      of Possession of a Controlled Substance2 and one (1) count each
      of Criminal Use of a Communication Facility,3 Tampering with or
      Fabricating Physical Evidence4 and Possession of Drug
      Paraphernalia.5 He appeared before this [c]ourt on June 22, 2017
      for a hearing on his Pretrial Motion to Suppress, but that Motion
      was denied at the conclusion of the hearing. He next appeared
      before this [c]ourt on November 16, 2017 for a stipulated non-
      jury trial. At its conclusion, this [c]ourt found [Appellant] not
      guilty of the Possession with Intent to Deliver charges and guilty
      of the remaining charges. [Appellant] waived a Pre-Sentence
      Report and was immediately sentenced to a term of imprisonment
      of one (1) to two (2) years. No Post-Sentence Motions were filed.

            1   35 P.S. §780-113(a)(30)
            2   35 P.S. §780-113(a)(16)
            3   18 Pa.C.S.A. §7512(a)
            4   18 Pa.C.S.A. §4910(1)
            5   35 P.S. §780-113(a)(32)

Trial Court Opinion, 6/26/18, at 1–2. Appellant filed a timely notice of appeal;

both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises the following single issue on appeal:

       I.   Whether the trial court erred in denying [Appellant’s] motion
            to suppress when the testimony adduced at the suppression
            hearing established that [Appellant] was in police custody
            and subject to police interrogation, yet Detective Churilla
            openly admitted that he never informed [Appellant] of his




                                        -2-
J-A03016-19


              Miranda rights,[2] and [Appellant] made incriminating
              statements to Detective Churilla?

Appellant’s Brief at 5.

              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.

              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 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. Williams, 2008 PA Super 6, 941 A.2d 14,
       26–27 (Pa. Super. 2008) (en banc) (citations, quotations, and
       quotation marks omitted). Moreover, it is within the lower
       court’s province to pass on the credibility of witnesses and
       determine the weight to be given to their testimony. See
       Commonwealth v. Clemens, 2013 PA Super 85, 66 A.3d 373,
       378 (Pa. Super. 2013).

Commonwealth v. McCoy, 154 A.3d 813, 815–816 (Pa. Super. 2017)

(quoting Commonwealth v. Roberts, 133 A.3d 759, 771 (Pa. Super. 2016))

(emphasis added). “Furthermore, our Supreme Court in In the Interest of

L.J., 622 Pa. 126, 79 A.3d 1073, 1085 (2013), clarified that the scope of

review of orders granting or denying motions to suppress is limited to the

evidence presented at the suppression hearing.” McCoy, 154 A.3d at 816.




____________________________________________


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

                                           -3-
J-A03016-19


        At the suppression hearing, the Commonwealth presented the testimony

of Detective Churilla; Appellant presented no testimony. N.T. (Suppression),

6/22/17. Detective Churilla testified that on October 5, 2016, he, along with

a SWAT3 unit, executed a search warrant at 147 Orchard Place in Pittsburgh.

Id. at 3–5. When the police officers entered the residence, they encountered

Appellant and Ms. Demus in the living room, and their four children, who

ranged in age from “infant to maybe being teenagers.” Id. at 6, 8. Appellant

and Ms. Demus were handcuffed “for [the] safety for everyone within the

residence.” Id. at 6, 11.

        Detective Churilla searched the third floor of the residence, where he

found crack cocaine and heroin in the master bedroom. N.T. (Suppression),

6/22/17, at 6–7, 9.         Detective Churilla returned to the living room and

“informed the other detectives there that we needed to get both of them

dressed” because “they are going to jail.” Id. at 7, 13. Appellant then asked

Detective Churilla if he could speak to him. Id. at 7. The detective testified

that Appellant told him “[e]verything is mine. [Ms. Demus] has nothing to do

with this. . . . He went on to say that he flushed items down the toilet.” Id.

at 9.    Detective Churilla testified that Appellant “stated also that the cell

phones were his and that the flip phone was his dirty phone, and he had a

drug problem.” Id. at 10.


____________________________________________


3   SWAT is an abbreviation for Special Weapons and                    Tactics.
https://dictionary.cambridge.org/us/dictionary/english/swat-team.

                                           -4-
J-A03016-19


       On cross-examination, defense counsel and the detective had the

following exchange:

       Q. Did you say to him . . . hold on, let me read you your rights at
       that point?

       A. I didn’t know what he was going to talk about.

       Q. So did you ever read his rights, Miranda rights?

       A. I did not on scene, no.

N.T. (Suppression), 6/22/17, at 14.

       Appellant argues that because he was in custody, he should have been

given warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), when

he asked to speak to Detective Churilla and made incriminating statements to

him.    Appellant’s Brief at 16, 19.      He contends the trial court erred in

determining that Appellant was not subject to interrogation by Detective

Churilla. Id. at 16, 20. Appellant posits that Detective Churilla knew that if

Appellant “had not exonerated Ms. Demus on the scene, both [Appellant] and

Ms. Demus would have been arrested, thereby requiring [Allegheny County

Children, Youth, and Families] to take away their four children.” Appellant’s

Brief at 17. Therefore, Appellant suggests that based on the totality of the

circumstances, “Detective Churilla’s words and conduct clearly were calculated

to, expected to, or likely to evoke an incriminating response from [Appellant].”

Id. As such, Appellant contends that Miranda warnings were necessary.

       Appellant also assails the trial court’s lack of discussion of pertinent case

law. Appellant’s Brief at 25. Appellant contrasts Commonwealth v. Baker,

                                       -5-
J-A03016-19


24 A.3d 1006 (Pa. Super. 2011), and suggests unlike therein, where the

defendant was told he was not under arrest and was free to leave, Appellant

herein was handcuffed as soon as police entered the home, and he was under

arrest because police found cocaine. Appellant’s Brief at 26, 29.

      Appellant also distinguishes Commonwealth v. McAliley, 919 A.2d

272 (Pa. Super. 2007), where police placed the defendant under arrest upon

entering the residence.      The McAliley Court defined interrogation as

“questioning initiated by law enforcement officials,” and held that Mr. McAliley

spontaneously and by his own volition told police that narcotics were hidden

in the second dresser drawer in his bedroom.             Id. at 278 (quoting

Commonwealth v. DeJesus, 787 A.2d 394, 401 (Pa. 2001)).               Appellant

attempts to rely on this Court’s finding that Mr. McAliley made this statement

spontaneously, but instantly, Appellant did not.      Appellant’s Brief at 27.

Appellant maintains that given Detective Churilla’s experience, it “stretches

credulity” that the detective did not Mirandize Appellant when Appellant asked

to speak to the detective, because Detective Churilla “didn’t know what

[Appellant] was going to talk about.” Appellant’s Brief at 32.

      In rejecting Appellant’s claim regarding the necessity of Miranda

warnings when Appellant told Detective Churilla that he would like to speak to

him, the trial court stated as follows:

            “The principles surrounding Miranda warnings are ... well-
      settled. The prosecution may not use statements stemming from
      a custodial interrogation of a defendant unless it demonstrates
      that he was apprised of his right against self-incrimination and his

                                      -6-
J-A03016-19


      right to counsel . . . Thus, Miranda warnings are necessary any
      time a defendant is subject to a custodial interrogation.[”] . . .
      Moreover, “since the police surely cannot be held accountable for
      the unforeseeable results of their words or actions, the definition
      of interrogation can only extend to words or actions on the part of
      police officers that they should have known were reasonably likely
      to elicit an incriminating response.” Commonwealth v. Umstead,
      916 A.2d 1146, 1150 (Pa. Super. 2007), citing Rhode Island v.
      Innis, 446 U.S. 291, 300-301 (1980).

Trial Court Opinion, 6/26/18, at 7–8.

      Our review of the record confirms that there is no disagreement that

Appellant was in custody when he spoke to Detective Churilla.               N.T.

(Suppression), 6/22/17, at 21; Commonwealth’s Brief at 7 n.3.          However,

merely being “in custody” for Miranda purposes is not equivalent to custodial

interrogation.   “Miranda warnings are necessary only when the suspect is

subjected to custodial interrogation.” Commonwealth v. Fisher, 769 A.2d

1116, 1125 (Pa. 2001). “Interrogation occurs when the police should know

that their words or actions are reasonably likely to elicit an incriminating

response, and the circumstances must reflect a measure of compulsion above

and beyond that inherent in custody itself.” Id. (citation omitted).

      Here, the record reflects that Appellant initiated the conversation with

the detective. His admission was voluntary and not responsive to any query

by Detective Churilla. See Commonwealth v. Gibson, 720 A.2d 473, 480

(Pa. 1998) (The defendant’s “statements to the police . . . were made

voluntarily and were not responsive to any queries by the officers; rather, [the

defendant] initiated the conversation.”).      As the Commonwealth avers,


                                     -7-
J-A03016-19


Appellant’s comment was a mere gratuitous utterance, unsolicited by the

police, and therefore was admissible and did not require Miranda warnings.

Commonwealth’s Brief at 14. Similar to Fisher, although Appellant was in

custody, Detective Churilla neither questioned Appellant nor initiated a

conversation.    Fisher, 769 A.2d at 1125.        As our Supreme Court stated,

“Appellant’s    remarks,   being   unsolicited,   not   the   result   of   custodial

interrogation, constituted spontaneous, voluntary statements not subject to

suppression.” Id.

      When all of the circumstances surrounding Appellant’s initiated

discussion with Detective Churilla are considered, they do not establish that

Detective Churilla should have known Appellant was going to incriminate

himself.   See Commonwealth v. Briggs, 12 A.3d 291 (Pa. 2011)

(circumstances surrounding trooper’s conversation with accused did not

establish trooper should have known that discussion was likely to produce an

incriminating    response).   Appellant’s   statement    to   the   detective    was

spontaneous. Detective Churilla testified he had no idea what Appellant was

going to say when Appellant asked to speak to him. The detective did not do

or say anything to elicit the response. Nothing in the record points to the

conclusion that the detective’s communication to fellow officers that they

needed the couple to get dressed was improper or designed to elicit an

incriminating response from Appellant. As “it is within the suppression court’s

sole province as factfinder to pass on the credibility of witnesses and the


                                       -8-
J-A03016-19


weight to be given their testimony,” Commonwealth v. Gallagher, 896 A.2d

583, 585 (Pa. Super. 2006), Appellant’s issue lacks merit.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/2019




                                    -9-
