J-S02004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                             :        PENNSYLVANIA
                                             :
              v.                             :
                                             :
                                             :
SCOTT BISHOP                                 :
                                             :
                    Appellant                :   No. 1193 EDA 2016

          Appeal from the Judgment of Sentence April 15, 2016
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0003894-2015


BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY BOWES, J.:                                  FILED JUNE 18, 2018

        Scott Bishop appeals from the judgment of sentence of three to eight

years    incarceration   and   two   years   probation,   imposed   following   his

convictions of possession of a firearm, possession of marijuana, and

possession of paraphernalia. We affirm.

        We adopt the following factual summary, as set forth in the trial

court’s supplemental Pa.R.A.P. 1925(a) opinion:

        On March 28, 2015, State Parole Agent Brandon Smith went to
        [Appellant]'s home at 5011 North Third Street in Philadelphia to
        conduct a home visit. [Appellant] was on state parole, and Agent
        Smith had supervised [him] since September 2014.

        When Agent Smith arrived at [Appellant]’s home, [Appellant] let
        Agent Smith into his home. After a brief discussion, Agent Smith
        informed [Appellant] that he was due for a drug test. Agent
        Smith administered a drug test to [Appellant], who immediately
        tested positive for Methamphetamine. [Appellant]'s positive drug
        test was a parole violation so Agent Smith placed [Appellant] in
        handcuffs for him to be taken into custody. Agent Smith then

* Retired Senior Judge Assigned to the Superior Court.
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     called his parole supervisor to obtain permission to search
     [Appellant]'s home for contraband because of the parole
     violation. After he received approval from his supervisor, Agent
     Smith asked [Appellant] whether he had anything in the home
     that Agent Smith should know about. [Appellant] replied, "Yes, I
     have a gun." Agent Smith then asked Defendant where the gun
     was, and [Appellant] replied, "It is in the closet." Finally, Agent
     Smith asked [Appellant] where the closet was, and [Appellant]
     replied, "The closet in the hallway.”

     Parole agents recovered a .38 Smith and Wesson revolver, two
     electronic scales, 18.9 grams of marijuana, and packaging
     material from inside a black trash bag that was inside a closet of
     [Appellant]'s home. Following the search of the home, parole
     agents searched [Appellant]'s vehicle. Parole agents recovered,
     inter alia, 11 rounds of .38 caliber ammunition from his vehicle.

           ....

     Parole Agent Eric Brown assisted Agent Smith in searching
     [Appellant]'s home. As he was searching the home, Agent Brown
     observed car keys on a dresser. Agent Brown asked Defendant,
     "Where the vehicle was?" Defendant responded, "Yeah, it's right
     out front." At the time Defendant made this statement to Agent
     Brown, Defendant was in handcuffs and in custody for the parole
     violation. Agent Brown testified that - if Defendant did not tell
     him where the car was - he would have found it either by using
     the car keys, or by looking up his license plate and then finding
     the vehicle with that license plate. Defendant's vehicle was
     located outside of his home.

     Agent Brown has conducted many searches of parolees' property
     as a parole agent. If a parolee tested positive for narcotics,
     Agent Brown would search the parolee's property for other
     possible parole violations including for possession of narcotics
     and firearms. In his experience as a parole agent, he has
     recovered contraband from parolees' home as well as from their
     vehicles during searches following parole violations for testing
     positive for narcotics.

Supplemental Trial Court Opinion, 7/21/17, at 1-3 (footnote omitted).




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      Appellant filed a motion to suppress all physical evidence in addition to

all statements. The Honorable Daniel J. Anders granted partial relief, finding

that Appellant’s statement regarding his ownership of a firearm was

inadmissible. The court denied the motion in all other respects. Appellant

thereafter proceeded to a non-jury trial before the Honorable Michael Erdos,

and was found guilty and sentenced as previously indicated.

      Appellant   filed   a   court-ordered   concise   statement   of   matters

complained of on appeal, and Judge Erdos responded with an opinion.

Appellant subsequently filed a petition with this Court to vacate briefing and

remand for a supplemental Rule 1925(b) statement, which we granted on

March 27, 2017.     The supplemental statement raised an additional claim,

and Judge Anders filed a supplemental opinion in response. The matter is

now ready for review of Appellant’s claims:

      1. Did not the suppression court and the trial court err in failing
         to suppress the physical evidence recovered from Appellant's
         residence as fruit of the poisonous tree, having been
         recovered as the result of a statement which was itself
         suppressed by the lower court, made by Appellant while in
         custodial detention without having been given Miranda [v.
         Arizona, 384 U.S. 436 (1966)] warnings?

      2. Did not the court err in denying suppression of the bullets
         recovered from Appellant's car, where the car search
         exceeded the scope of what was permissible under the
         federal and state constitutions and/or statutory and
         regulatory authority, where the police and parole agents
         lacked reasonable suspicion to conduct a search of
         Appellant's car, and where the search of the car was the fruit
         of an illegally obtained statement?




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      3. Did not the court err in denying suppression of Appellant's
         statement to parole agents about the location of his car
         because the statement was made while Appellant was in
         custody and subject to interrogation but had been given no
         Miranda warnings?

Appellant’s brief at 3 (reordered for ease of discussion).

      All three issues pertain to the trial court’s denial of Appellant’s

suppression motion, to which we apply the following standard of review:

      The standard and scope of review for a challenge to the denial of
      a suppression motion is whether the factual findings are
      supported by the record and whether the legal conclusions
      drawn from those facts are correct. When reviewing the rulings
      of a suppression court, [the appellate court] considers 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. When the record supports the findings of
      the suppression court, [the court is] bound by those facts and
      may reverse only if the legal conclusions drawn therefrom are in
      error.

Commonwealth v. Dougalewicz, 113 A.3d 817, 823 (Pa.Super. 2015)

(citation omitted, alterations in original).

      Appellant’s first two arguments both concern the suppression of

physical evidence, and we therefore address them together.     Preliminarily,

we note that Appellant’s arguments flow from the partial grant of his motion

to suppress based on Miranda v. Arizona, 384 U.S. 436 (1966).             As

indicated in the factual recitation, the trial court determined that Agent

Smith violated Miranda when he asked Appellant the question that elicited

Appellant’s answer that a gun was in his home.




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      The trial court, however, did not find a Miranda violation with respect

to Agent Brown’s question to Appellant regarding his vehicle.              While

searching a bedroom, Agent Brown observed car keys and asked Appellant

where the vehicle was located. Appellant told them, resulting in a search of

the vehicle. According to Appellant, that question, no less than the question

asked by Agent Smith, constituted interrogation and therefore the failure to

warn requires suppression of that statement.            In turn, according to

Appellant, all the searches were tainted by the Miranda violations, requiring

suppression of the evidence as fruit of the poisonous tree.

      We briefly examine the trial court’s rationale, which Appellant

addresses at length in his brief. The trial court determined that Appellant

was in custody, but that the question regarding the car did not constitute

interrogation as the officer was merely gathering information. See Rhode

Island v. Innis, 446 U.S. 291, 300 (1980) (“It is clear therefore that the

special procedural safeguards outlined in Miranda are required not where a

suspect is simply taken into custody, but rather where a suspect in custody

is subjected to interrogation”); Commonwealth v. Umstead, 916 A.2d

1146, 1152 (Pa.Super. 2007) (Miranda warnings are not necessary “in

every instance where an individual who is in police custody is questioned by

a law enforcement official ‘regarding a crime.’”). Alternatively, the trial court

concluded that the inevitable discovery doctrine applied, as the agents

testified that they simply would have consulted law enforcement databases


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to determine which vehicle was registered to Appellant if Appellant had not

answered.

      Our research has not uncovered a case from this jurisdiction directly

on point regarding a question designed to reveal the location of property

which may or may not contain evidence. On the one hand, the question was

not likely to elicit an admission as the question simply asked where the

vehicle was located. The agents had no particular knowledge at that time

that the vehicle contained anything criminal, or that the vehicle itself was

illegal in some fashion (such as by being stolen).         On the other hand, as

Appellant persuasively states, the officers (1) intended to link Appellant to

the vehicle, and (2) intended to search the vehicle for incriminating

evidence, which is what happened. Thus, the question was designed to elicit

a response that, while not directly incriminating, was linked to potentially

incriminating information. See In re D.H., 863 A.2d 562, 566 (Pa.Super.

2004)   (“‘Interrogation’”   is   defined   as   police   questioning   or   conduct

calculated, expected, or likely to evoke an admission.”).

      We find that resolving this question is unnecessary, as Appellant does

not draw any distinction between suppressing statements given following a

purported Miranda violation, and physical evidence uncovered as a result of




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those responses.1 As the Commonwealth notes, the fruit of the poisonous

tree doctrine does not extend to physical evidence resulting from a violation

of Miranda.          Stated another way, a violation of Miranda requires

suppression of the statements, but does not require the suppression of any

physical evidence discovered as a result of those statements.

       In United States v. Patane, 542 U.S. 630 (2004) (plurality), three

Justices concluded that a voluntary statement, although unwarned, does not
____________________________________________


1 Instead, Appellant discusses his belief that neither the inevitable discovery
nor independent source doctrines would apply, and claims that any search of
the vehicle was tainted by the misconduct flowing from a violation of
Miranda:

       The trial court concludes that “although the statements
       [Appellant] made to Agent Smith were suppressed, the parole
       agents would have discovered those items pursuant to the
       inevitable discovery doctrine.” That doctrine provides authorities
       with an anodyne mask to cover the effects of the poison.

              ....

       Again, as noted, because the questioning of Appellant was
       custodial   interrogation,  explicitly   directed at  obtaining
       information which would incriminate him, the police were
       required to inform him of his rights under Miranda and failed to
       do so. Therefore, the Commonwealth was required to show that
       the gun and paraphernalia would, necessarily and unavoidably,
       have been found, that "the evidence would have been discovered
       absent the police misconduct, not simply that they somehow
       could have lawfully discovered it." This the Commonwealth failed
       to do.

Appellant’s brief at 16-17 (citations omitted). This argument appears to
posit that the Commonwealth is required to establish an independent basis
for searching the car as a necessary condition to uphold the denial of
suppression, as opposed to a sufficient ground to do so.



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justify excluding physical evidence recovered as a result of that statement

under the fruit of the poisonous tree doctrine.      Therein, a police officer

arrested Patane, and had information that Patane owned an illegal firearm.

In contravention of Miranda, the officer repeatedly asked where the gun

was located.   Patane eventually stated that the gun was in his bedroom,

leading to its recovery. Patane sought to suppress the physical evidence as

an illegal derivative fruit of the tainted statement. The plurality concluded

that result was not warranted.

      [T]he Miranda rule is a prophylactic employed to protect against
      violations of the Self–Incrimination Clause. The Self–
      Incrimination Clause, however, is not implicated by the
      admission into evidence of the physical fruit of a voluntary
      statement. Accordingly, there is no justification for extending the
      Miranda rule to this context. And just as the Self–Incrimination
      Clause primarily focuses on the criminal trial, so too does the
      Miranda rule. The Miranda rule is not a code of police conduct,
      and police do not violate the Constitution (or even the Miranda
      rule, for that matter) by mere failures to warn. For this reason,
      the exclusionary rule . . . does not apply.

Id. at 636–37. Justice Kennedy, joined by Justice O’Connor, concurred, but

declined to go so far as the plurality, opining:

      In light of the important probative value of reliable physical
      evidence, it is doubtful that exclusion can be justified by a
      deterrence rationale sensitive to both law enforcement interests
      and a suspect's rights during an in-custody interrogation. Unlike
      the plurality, however, I find it unnecessary to decide whether
      the detective's failure to give Patane the full Miranda warnings
      should be characterized as a violation of the Miranda rule itself,
      or whether there is “[any]thing to deter” so long as the
      unwarned statements are not later introduced at trial.




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Id. at 645 (Kennedy, J., concurring) (citation omitted).       It has been

recognized that “the Patane plurality and concurrence agreed, at least, that

Miranda does not require the exclusion of physical evidence that is

discovered on the basis of a voluntary, although unwarned, statement. As

several of our sister circuits have recognized, this narrow agreement is the

holding of Patane.” United States v. Jackson, 506 F.3d 1358, 1361 (11th

Cir. 2007) (citations omitted); Commonwealth v. Abbas, 862 A.2d 606,

610 n.3 (Pa.Super. 2004) (“Though a plurality decision, the majority of the

Justices agreed that introduction of nontestimonial derivative evidence does

not implicate the Self–Incrimination Clause of the Fifth Amendment.”).   In

Abbas, we adopted the Patane approach.

     Currently, there is no precedent in this Commonwealth indicating
     that the Pennsylvania Constitution extends greater protection
     than its federal counterpart with respect to the Fifth Amendment
     right against self-incrimination in the context of physical
     evidence obtained as a result of or during the course of an
     unwarned      statement.    We    find Patane instructive   here.
     Accordingly, until our Supreme Court has the occasion to
     conduct an independent analysis, we are persuaded by the
     reasoning in Patane.

Id. at 609–10 (footnotes omitted).

     We therefore agree with the Commonwealth that the physical evidence

was not subject to suppression, even if Appellant is correct that the




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statement was subject to suppression.2 Therefore, the court did not err in

admitting the evidence.

       Having concluded that the trial court did not err in declining to

suppress any of the physical evidence recovered, we now address whether

the trial court failed to suppress the statement itself. We will assume, for

purposes of disposing of this claim, that the question was calculated to elicit

an incriminating response, and that the statement should have been

suppressed.

       The Commonwealth submits that any such error was harmless beyond

a reasonable doubt.        Commonwealth v. Baez, 720 A.2d 711, 720 (Pa.

1998) (“A suppression court's error regarding failure to suppress statements

by the accused will not require reversal if the Commonwealth can establish

____________________________________________


2  Appellant has not challenged the search on grounds other than his
Miranda theory, except to state, without elaboration, that the vehicular
search “exceeded the scope of what was permissible under the federal and
state constitutions and/or statutory and regulatory authority[.]” Appellant’s
brief at 14. We deem any argument attacking the search on those grounds
waived due to the failure to develop the argument in a meaningful fashion.

With respect to the vehicular search, we note that the parole agent
explained that he searched the vehicle due to policy implementations of the
statutory authority given to parole agents regarding parolee searches. See
61 Pa.C.S. § 6153(d)(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”). See also
Commonwealth v. Sperber, 177 A.3d 212 (Pa.Super. 2017) (holding that
reasonable suspicion existed to search parolee’s person, phone, and
vehicle).



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beyond a reasonable doubt that the error was harmless.”). Harmless error

exists where, inter alia, “the erroneously admitted evidence was merely

cumulative of other untainted evidence which was substantially similar to the

erroneously admitted evidence[.]”     Commonwealth v. Chmiel, 889 A.2d

501, 521 (Pa. 2005) (citation omitted).

     We agree that the statement was cumulative of other evidence

establishing that his ownership of the vehicle.         The Commonwealth

introduced evidence that the agents conducted a check of the vehicle’s

license plate, and learned that the vehicle was registered to Appellant.

Additionally, no other adult lived in the residence with Appellant; thus, the

mere fact Appellant was in possession of the vehicle’s keys linked him to the

vehicle. We therefore conclude that any error in introducing the statement

was harmless beyond a reasonable doubt.

     Judgment of sentence affirmed.

Judge Nichols joins the memorandum.

Judge Ransom concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/18



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