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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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