J-S62007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

GEORGE BROWN

                            Appellant                 No. 2023 MDA 2015


            Appeal from the Judgment of Sentence October 20, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0004546-2014


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                           FILED AUGUST 30, 2016

        A jury found George Brown guilty of second degree murder, robbery,

conspiracy to commit robbery, and carrying firearms without a license. 1 The

essence of the case is that Brown robbed and murdered the victim during a

sale of illegal drugs on December 12, 2013. The trial court sentenced Brown

to life imprisonment on his murder conviction and concurrent terms of 2½ -

5 years’ imprisonment on the robbery and conspiracy convictions.2            Brown

filed a timely notice of direct appeal, and both Brown and the trial court

complied with Pa.R.A.P. 1925. We affirm.



____________________________________________


1
    18 Pa.C.S. §§ 2502, 3701, 903 and 6106, respectively.
2
    The trial court imposed no further penalty on the firearms conviction.
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       Brown raises a single issue in this appeal: “Did the trial court commit

an error of law when it denied [Brown’s] motion to suppress evidence

regarding a custodial statement to police, as said statement was obtained in

violation of [Brown’s] constitutional right against self-incrimination?”    Brief

For Appellant, at 5.

       In an appeal from the denial of a motion to suppress,

       [our] standard of review … is limited to determining whether the
       suppression court’s factual findings are supported by the record
       and whether the legal conclusions drawn from those facts are
       correct.   Because the Commonwealth prevailed before the
       suppression court, we may consider only the evidence of the
       Commonwealth 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 suppression court’s factual findings are
       supported by the record, [the appellate court is] bound by
       [those] findings and may reverse only if the court’s legal
       conclusions are erroneous.        Where … the appeal of the
       determination of the suppression court turns on allegations of
       legal error, the suppression court’s legal conclusions are not
       binding on an appellate court, whose duty it is to determine if
       the suppression court properly applied the law to the facts.
       Thus, the conclusions of law of the courts below are subject to []
       plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.2010).

       The record supports the following findings of fact3 made by the trial

court:

____________________________________________


3
  As a preliminary matter, we note the trial court failed to enter findings of
fact and conclusions of law following the suppression hearing. See
Pa.R.Crim.P. 581(I) (trial court must enter on record findings of fact and
conclusions of law at end of suppression hearing). Where a trial court fails
to abide by Rule 581(I), however, this Court may look at the trial court’s
(Footnote Continued Next Page)


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      A suppression hearing was held on August 4, 2015. The first
      witness was Detective John O’Connor with the Harrisburg City
      Police. In connection with the murder, Detective O’Connor was
      assisting multiple detectives with a search warrant for a home in
      the 2200 block of Logan Street, which turned out to be vacant. A
      neighbor told the detectives that Sam Sims, [Brown]’s brother,
      lived on the 2100 block of North Fourth Street, and gave them a
      good description of the home. The detectives went to the house
      and were told that [Brown] was not there. [Brown]’s mother and
      brother were there, and the detectives told the mother what
      they knew about the case. [Brown]’s mother called [Brown] and,
      while the detectives were still in the home, [Brown] came back
      to the house. Detective O’Connor testified that [Brown] was
      friendly, sober, talkative, and willing to help out. Detective
      O’Connor told [Brown] that Detective Richard Iachini wanted to
      talk to him about a homicide and asked if he would be willing to
      come to the police station with them. [Brown] said ‘sure.’
      Specifically, Detective [O’Connor] knew that an individual was
      shot inside of a vehicle in the 2100 block of North Fourth Street
      and a cell phone was recovered in the car next to the victim. The
      cell phone belonged to [Brown].

      Detective O’Connor asked [Brown] if he wanted a ride to the
      police station, to which [Brown] replied, ‘sure.’ Detective
      O’Connor and Corporal Olivera drove him to the police
      department in an unmarked car, with no handcuffs, and no
      ‘cage’ between the front and back seats. [Brown] sat in the back
      seat with Detective O’Connor, and the tone of the trip to the
      station was ‘friendly and cordial.’ When they arrived at the
      station, they took [Brown] to a conference room. Besides
      [Brown], only Detective O’Connor and Detective Iachini were
      present. Detective O’Connor testified that the lead detective,
      Detective Iachini, was the one doing the questioning. After some
      initial questioning, Detective Iachini started inquiring about the
      cell phone, and it was at that point that Detective O’Connor
                       _______________________
(Footnote Continued)

Rule 1925(a) opinion to garner findings of fact and conclusions of law.
Commonwealth v. Stevenson, 832 A.2d 1123, 1126 (Pa.Super.2003).
Here, the trial court issued a 1925(a) opinion that adequately relates the
court’s findings of fact and conclusions of law. Thus, we will review Brown’s
argument. Id.




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        issued [Brown] his Miranda4 rights. When asked why he did not
        administer [Brown] his rights initially, Detective O’Connor
        testified that he ‘felt he was more of a witness than he was an
        accused.’ Following the Miranda warnings, [Brown] indicated
        that he did not wish to speak any further. The interview was
        terminated.

        Detective Iachini also testified at the suppression hearing. His
        testimony was consistent with Detective O’Connor’s testimony.
        He stated that ‘the initial questions were kind of just some
        background stuff...informal. [O]nce I started asking [Brown]
        about the phone is when we decided to Mirandize him.’ After
        the interview was terminated, Detective Iachini made a call to
        the District Attorney’s Office and the District Attorney told him to
        release [Brown] at that point.

Pa.R.A.P. 1925 Opinion, at 2-3.

        The   Commonwealth          contends     that    the   suppression   record

demonstrates, and the trial court properly found, that Brown was not in

custody, and therefore the trial court properly denied Brown’s motion to

suppress.     We agree.     “A person is in custody for Miranda purposes only

when he is physically denied his freedom of action in any significant way or

is placed in a situation in which he reasonably believes that his freedom of

action or movement is restricted by the interrogation.” Commonwealth v.

Johnson, 727 A.2d 1089, 1100 (Pa.1999).                 The United States Supreme

Court has elaborated that, in determining whether an individual is in

custody, the “ultimate inquiry is ... whether there [is] a formal arrest or

restraint on freedom of movement of the degree associated with a formal
____________________________________________


4
    Miranda v. Arizona, 384 U.S. 436 (1966).



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arrest.” Stansbury v. California, 511 U.S. 318, 322 (1994). The question

of custody is an objective one, focusing on the totality of the circumstance,

with due consideration given to the reasonable impression conveyed upon

the person being questioned. Commonwealth v. Gwynn, 723 A.2d 143,

148 (Pa.1998), cert. denied, 528 U.S. 969 (1999).

      Pennsylvania courts have held multiple times that a suspect is not in

custody when he voluntarily accompanies officers to the police station and

answers     their   questions   under     non-coercive   circumstances.   See

Commonwealth v. Luster, 71 A.3d 1029, 1051 (Pa.2013) (murder

defendant was not subject to “custodial interrogation” for Miranda purposes

when he spoke to officer in police car; defendant voluntarily accompanied

officer to state police barracks for questioning regarding victim’s death,

defendant was not handcuffed and was accompanied by his sister, and

defendant initiated conversation with officer regarding events of prior

evening);    Commonwealth        v.     Freeman,   128    A.3d   1231,    1241

(Pa.Super.2015) (murder defendant was not in custody, and thus Miranda

warnings were not required, when he made statements to detectives

regarding his involvement in home invasion, kidnapping, and murder;

defendant voluntarily accompanied detectives to police station; detectives

did not show, use, threaten to use force, transfer defendant against his will,

or restrain defendant; detectives were dressed in formal business attire,

drove unmarked sedan, had their firearms concealed, and reminded


                                      -5-
J-S62007-16


defendant multiple times that he was not under arrest and was free to leave

at any time).

      Here, Brown came into contact with detectives at his home, where his

mother had allowed a consensual search of the premises. The detectives

introduced themselves and had a cordial, friendly conversation with Brown.

They informed Brown that the lead detective in the matter wanted to speak

with him about a homicide and asked him if he was willing to come to the

police station. This was a request, not a demand. Brown voluntarily agreed

to accompany the officers to meet with Detective Iachini at the police

station.   The detectives offered to give Brown a ride to the station, and

Brown voluntarily accepted their offer. He was not placed in handcuffs, he

entered the car of his own volition, and there was no cage in the car. His

movement and freedom were not restricted in any way. Upon arrival at the

police station, Brown voluntarily exited the car and walked into the

conference room.    The tone was friendly and cordial.   When the interview

turned to the fact that Brown’s cell phone was in the car, the detectives gave

Brown Miranda warnings. He invoked his rights, the interview stopped, and

Brown walked out of the police station. As in Luster and Freeman, Brown

was not in custody during the interview. Indeed, he was not in custody after

issuance of Miranda warnings, because he promptly stated that he did not

wish to speak further and left the police station.




                                     -6-
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      While   Brown   labels   his   encounter   with   the   detectives   as   an

“interrogation”, the fact remains that Brown consented to the interview and

never had his freedom restricted.      Brown argues that because the police

contacted the District Attorney’s office for direction on whether to charge

Brown, he therefore was in custody.         However, that is not part of the

analysis.   The District Attorney’s opinion as to whether there was enough

evidence to charge Brown is not relevant to whether the detectives

restricted Brown’s freedom of movement in a manner such that a reasonable

person would not have felt free to leave.        Because the detectives never

restricted Brown’s freedom of movement or threatened or coerced him in

any way, he was never in custody, and his statements to the detectives

were not subject to suppression.

      For these reasons, the trial court properly denied Brown’s motion to

suppress.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/2016




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