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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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.
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* Retired Senior Judge assigned to the Superior Court.
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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
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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.
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2 Miranda v. Arizona, 384 U.S. 436 (1966).
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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.
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3 SWAT is an abbreviation for Special Weapons and Tactics.
https://dictionary.cambridge.org/us/dictionary/english/swat-team.
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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,
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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
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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,
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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
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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
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