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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 786 MDA 2019
:
NEIL HOWARD GOLDSTEIN :
Appeal from the Order Entered April 18, 2019,
in the Court of Common Pleas of Lebanon County
Criminal Division at No. CP-38-CR-0001440-2018
BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 15, 2020
The Commonwealth appeals1 from the April 18, 2019 order granting the
omnibus pre-trial suppression motion filed by appellee, Neil Howard
Goldstein. After careful review, we affirm.2
The suppression court summarized the relevant facts of this case as
follows:
On February 23, 2018, [Pennsylvania State] Trooper
[Peter] Conforti responded to [a residence] in
Lebanon County, in response to a report from a minor
child and her mother regarding the minor child’s
alleged receipt of unwanted Snapchat messages. The
minor child accused [appellee] of contacting her for
inappropriate reasons. [The minor child (hereinafter,
1 The Commonwealth certified, pursuant to Pa.R.A.P. 311(d), that the
suppression court’s April 18, 2019 order will terminate or substantially
handicap the prosecution.
2 Appellee has not filed a brief in this matter.
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“the victim”) was between 15 and 16 years old at the
time of these alleged incidents and was related to
appellee.] Trooper [Daniel] Womer and
Trooper Conforti interviewed [appellee] on March 1,
2018 at the Jonestown Police Barracks. Before
beginning the interview, neither Trooper Womer nor
Trooper Conforti, nor any other officer advised
[appellee] of his Miranda[3] rights. During the
interview, [appellee’s] cellphone was seized without a
warrant. [A warrant was subsequently obtained to
analyze the contents of appellee’s phone more than a
month later, on April 5, 2019.]
Suppression court opinion, 7/10/19 at 3; see also notes of testimony,
4/17/19 at 7, 21.
On October 2, 2018, appellee was charged with criminal solicitation to
commit sexual abuse of children, unlawful contact with minor, criminal use of
a communication facility, corruption of minors, and tampering with or
fabricating physical evidence.4 On November 9, 2018, appellee filed an
omnibus pre-trial motion to suppress the incriminating statements he made
to Troopers Womer and Confroti and argued that they illegally seized his cell
phone in violation of the Fourth Amendment. (See “Motion for Suppress
Evidence,” 11/9/18 at §§ A-B.) On April 17, 2019, the suppression court
conducted a hearing on appellee’s suppression motion, during which both
Troopers Womer and Confroti testified. Following the hearing, the suppression
court granted appellee’s suppression motion on April 18, 2019. This timely
3 Miranda v. Arizona, 384 U.S. 436 (1966).
4 18 Pa.C.S.A. §§ 902(a), 6318(a)(5), 7512(a), 6301(a)(1)(i), and 4910(1),
respectively.
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appeal followed. Although not ordered to do so, the Commonwealth filed its
concise statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b), on May 23, 2019. The suppression court filed its
Rule 1925(a) opinion on July 10, 2019.
The Commonwealth raises the following issues for our review:
A. Did the [suppression] court commit reversible
error when it granted [appellee’s] request to
suppress the statements he made to the
Pennsylvania State Police?
B. Did the [suppression] court commit reversible
error when it determined that the Pennsylvania
State Police needed a search warrant to seize
[appellee’s] cellphone?
C. Did the [suppression] court commit reversible
error when it granted [appellee’s] request to
suppress the contents of [appellee’s] cell
phone?
Commonwealth’s brief at 4 (extraneous capitalization omitted).5
Our standard of review in addressing a suppression court’s order
granting a suppression motion is well settled.
When the Commonwealth appeals from a suppression
order, we follow a clearly defined standard of review
and consider only the evidence from the defendant’s
witnesses together with the evidence of the
prosecution that, when read in the context of the
entire record, remains uncontradicted. The
suppression court’s findings of fact bind an appellate
court if the record supports those findings. The
suppression court’s conclusions of law, however, are
5 In the “Argument” section of its brief, the Commonwealth has condensed its
three issues into two primary arguments: A. and B./C. We will address each
accordingly.
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not binding on an appellate court, whose duty is to
determine if the suppression court properly applied
the law to the facts.
Our standard of review is restricted to establishing
whether the record supports the suppression court’s
factual findings; however, we maintain de novo
review over the suppression court’s legal conclusions.
Commonwealth v. Korn, 139 A.3d 249, 253-254 (Pa.Super. 2016) (internal
citations and quotation marks omitted), appeal denied, 159 A.3d 933 (Pa.
2016).
Issue A.
The Commonwealth first argues that the suppression court erred in
granting appellee’s motion to suppress the incriminating statements he gave
to the troopers because their interview with appellee did not constitute a
custodial interrogation, and thus, “Miranda warnings were not required.”
(Commonwealth’s brief at 10.) We disagree.
A custodial interrogation for purposes of Miranda occurs when there is
a “questioning initiated by the police after a person has been taken into
custody or otherwise deprived of his or her freedom of action in any significant
way.” Commonwealth v. Clinton, 905 A.2d 1026, 1032 (Pa.Super. 2006)
(citations and emphasis omitted), appeal denied, 934 A.2d 71 (Pa. 2007).
In determining whether police conduct is the functional equivalent of
interrogation, this court has noted that,
[t]he police officer’s subjective intent does not govern
the determination but rather the reasonable belief of
the individual being interrogated. . . . The standard
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is an objective one, with due consideration given to
the reasonable impression conveyed to the person
being interrogated. A person is considered to be in
custody for the purposes of Miranda when the
officer’s show of authority leads the person to believe
that [he] was not free to decline the officer’s request,
or otherwise terminate the encounter.
Commonwealth v. Harper, ___ A.3d ___, 2020 WL 1516934, at *4
(Pa.Super. March 30, 2020) (citations omitted). Thus, “the inquiry must look
at the suspect’s perceptions rather than the intent of the police.”
Commonwealth v. Gaul, 912 A.2d 252, 255 (Pa. 2006) (citation omitted;
emphasis added), cert. denied, 552 U.S. 939 (2007).
Although we are mindful of the fact that “not every statement made by
an individual during a police encounter constitutes an interrogation,”
Commonwealth v. Page, 59 A.3d 1118, 1131 (Pa.Super. 2013) (citation
omitted), appeal denied, 80 A.3d 776 (Pa. 2013), it is undisputed that “[a]
law enforcement officer must administer Miranda warnings prior to custodial
interrogation.” Commonwealth v. Schwing, 964 A.2d 8, 11 (Pa.Super.
2008) (citation omitted; emphasis added).
It is a fundamental precept enshrined in the United
States Constitution that a suspect subject to a
custodial interrogation by police must be warned that
he has the right to remain silent, that anything he
says may be used against him in court, and that he is
entitled to the presence of an attorney.
Commonwealth v. Cruz, 71 A.3d 998, 1003 (Pa.Super. 2013) (citation
omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
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Police detentions become custodial when, under the
totality of the circumstances, the conditions and/or
duration of the detention become so coercive as to
constitute the functional equivalent of arrest.
The factors a court utilizes to determine, under the
totality of the circumstances, whether a detention has
become so coercive as to constitute the functional
equivalent of arrest include: the basis for the
detention; its length; its location; whether the suspect
was transported against his or her will, how far, and
why; whether restraints were used; whether the law
enforcement officer showed, threatened or used
force; and the investigative methods employed to
confirm or dispel suspicions.
Commonwealth v. Baker, 24 A.3d 1006, 1019-1020 (Pa.Super. 2011)
(citations omitted), affirmed, 78 A.3d 1044 (Pa. 2013).
Instantly, we discern no abuse of discretion on the part of the
suppression court in concluding that appellee was subject to a custodial
interrogation during his interview with Troopers Womer and Conforti, such
that he was entitled to receive Miranda warnings. The record establishes
that on the evening of March 1, 2018, Trooper Conforti contacted appellee by
telephone and requested that he come to the Jonestown Police Barracks for
an interview. (Notes of testimony, 4/17/19 at 5, 24-25.) During this
telephone call, Trooper Conforti identified himself as a member of the
Pennsylvania State Police and explained that the reason why he was calling
was an ongoing criminal investigation involving the victim. (Id. at 24-25.)
Trooper Conforti testified that he did not recall whether he specifically
instructed appellee that he was required to attend the interview, nor whether
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appellee informed him that he was unable to attend that evening because he
was helping a friend move. (Id. at 25-27.) Nonetheless, appellee arrived at
the Jonestown Police Barracks on his own accord and was escorted into an
interview room by both Troopers Womer and Conforti. (Id. at 5-6, 27.)
During the ensuing interview, appellee was seated directly across from
Troopers Womer and Conforti, and the exit door of the interrogation room was
shut for what both troopers characterized as “privacy reasons.” (Id. at 6, 23.)
The record further reflects that this interview lasted approximately an hour,
during which time Trooper Conforti was dressed in full uniform with his
sidearm visible, and Trooper Womer was dressed in a suit. (Id. at 17, 23.)
Both Troopers Womer and Conforti testified that they instructed appellee he
was free to leave multiple times and claim they never threatened or coerced
appellee. (Id. at 6, 8, 32.) Notably, however, only the first 25 minutes of
the interview were recorded due to a mechanical problem with
Trooper Womer’s recorder. (Id. at 4.)
During the suppression hearing, the following exchange took place
during the suppression court’s examination of Trooper Womer:
BY THE COURT:
Q. Trooper Womer, why was this guy called into
your station?
A. There was [sic] inappropriate messages being
sent to his niece, who is the victim.
Q. So you already knew that?
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A. Yes.
Q. You knew there was some probable criminal
conduct afoot; is that correct?
A. Yes.
Q. Why wouldn’t you Mirandize him?
A. Again, he wasn’t in custody.
Q. He wasn’t in custody? He was at the State
Police barracks with the door closed. You and
who else was in the room?
A. Trooper Conforti.
Q. Two troopers are in the room, and that’s not
custody?
A. He wasn’t under arrest.
Q. Oh, my gosh. . . .
Id. at 15-16.
The suppression court also examined Trooper Conforti at the
suppression hearing, during which the following exchange took place:
BY THE COURT:
Q. Trooper, how much earlier than this interview
did you talk to the victim in this matter?
....
A. Let me get an exact date. It would have been
February 23rd that I spoke to her.
Q. Her. And then when did you speak to
[appellee]?
A. March 1st.
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Q. So you had all of that time. You knew -- the
victim told you his name, who he was,
everything, right, when you talked to her, I’m
assuming?
A. They had suspicion that it was him.
Q. I mean, when you say, “they had a suspicion,”
they told you his name.
A. Yes.
Q. You knew all of that, why are you calling him in
there to just put the fine tuning on it? Why
didn’t you give him his Miranda rights?
A. It was a non-custodial interview.
Q. That’s what you say. I’ll make that
determination. But you knew all of this stuff,
yet you call him back there in the back room
with two troopers, closed door, you already
knew his name; you know what the allegations
are; and you don’t give him Miranda. Right?
A. Right.
Q. Why?
A. To us, he wasn’t under arrest at that time.
Q. To you. Why was he there?
A. To talk to us.
Q. But you told him to come in and talk to you.
A. Right.
Q. Oh, my God. Step down.
Id. at 33-35.
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Based on the foregoing, we agree with the suppression court that under
the totality of the circumstances, a reasonable person in appellee’s position
would not have believed that he was free to terminate the interview and leave
the interrogation room.
Moreover, as the suppression court set forth in its opinion,
Further, the Court concluded that "interrogation" of
[appellant] had taken place in Jonestown Police
Barracks. Specifically, during “roughly an hour” of
[appellant’s] “interview,” both police officers were
asking [appellant] questions regarding his
communications with the victim and his use of the
cellphone. Questioning of [appellant], according to
the testimony of the officers, was in spite of the
ongoing criminal investigation. In light of the officers’
experience in the field, the Court finds that police
should have known that questions directed at
[appellant] were more than likely to produce an
incriminating response, thus constituting
“interrogation.” . . . No evidence on the record
indicates that [appellant] volunteered his statements
to police because his answers were direct responses
to the officers’ questions.
Suppression court opinion, 7/10/19 at 7-8.
Accordingly, we find that Miranda warnings were warranted in this
instance and the Commonwealth’s claim to the contrary must fail.
Issues B./C.
The Commonwealth next argues that the suppression court erred in
suppressing the contents of appellee’s cell phone on the basis the phone was
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improperly seized by Troopers Womer and Conforti during the interview
without a search warrant. (Commonwealth’s brief at 14.)
“Both the Fourth Amendment of the United States Constitution and
Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals
freedom from unreasonable searches and seizures.” Commonwealth v.
Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation and internal quotation
marks omitted), appeal denied, 987 A.2d 158 (Pa. 2009). “A warrantless
search or seizure is presumptively unreasonable under the Fourth Amendment
and Article I, § 8, subject to a few specifically established, well-delineated
exceptions.” Commonwealth v. McCree, 924 A.2d 621, 627 (Pa. 2007).
One such exception is the exigent circumstances exception. Exigent
circumstances arise only where “the need for prompt police action is
imperative, either because the evidence sought to be preserved is likely
to be destroyed or secreted from investigation, or because the officer
must protect himself from danger. . . .” Commonwealth v. Lee, 972 A.2d
1, 5 (Pa.Super. 2009) (citation omitted; emphasis added).
Here, the Commonwealth avers that there existed exigent
circumstances sufficient to justify the warrantless seizure of appellee’s
cell phone during the interview because there was a high probability that
appellee would have deleted incriminating evidence had they taken the time
to obtain a warrant. (Commonwealth’s brief at 16-17.) In support of this
contention, the Commonwealth notes that appellee acknowledged to
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Trooper Womer that he had previously attempted to delete Snapchat
messages and that his email account was set up to delete every 24 hours.
(Id.) Specifically, Trooper Womer testified as follows:
Q. During your interview with [appellee], did he
mention at all whether or not before coming in
to meet with you if he had attempted to delete
things?
A. Yes. He mentioned that -- he mentioned that
he got the e-mail from some unknown sender,
that his G-mail is set up to delete every
24 hours. He also mentioned that he tried to
delete the Snapchats.
Q. Was there an intent or a plan to analyze this
phone as part of the course of this investigation?
A. Yes.
Q. Was there any concern on your end that if he
were allowed to leave with his phone that day,
that he may have been able to destroy more
evidence or delete more evidence?
A. Yes.
Notes of testimony, 4/17/19 at 7.
Contrary to the Commonwealth’s contention, our review of the record
reveals ample support for the suppression court’s determination that there
existed insufficient evidence of exigency to justify the troopers’ warrantless
seizure of appellee’s cell phone during the interview. As the suppression court
properly found in its opinion,
after the officers removed the cellphone from
[appellee’s] possession during the interview, their
particularized concerns that he might break the phone
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or otherwise destroy the phone must have been
substantiated with evidence on the record. The record
reveals that an alleged communication between
[appellee] and the victim occurred via Snapchat, for
which the Commonwealth had submitted a
preservation of data request. In light of this evidence,
the [suppression c]ourt did not find that [appellee’s]
automatic deletion of incoming Gmail mail every
24 hours was a sufficient reason for the warrantless
seizure since inter alia no evidence was presented
that [appellee’s] Gmail account was used in
communication with the victim or that it was causally
connected to the investigation. [Trooper] Womer
testified that [appellee] told him during the interview
that he tried to delete Snapchats. In light of the fact
that the Commonwealth had submitted a data
preservation request and was in possession of the
needed electronic data, the [suppression c]ourt did
not find it sufficient to justify a warrantless seizure.
Suppression court opinion, 7/10/19 at 10.
The Commonwealth relies, in part, on this court’s decision in
Commonwealth v. Stem, 96 A3d 407 (Pa.Super. 2014), wherein a panel of
this court recognized that “the police constitutionally were permitted to seize
and secure [a] telephone[] in order to prevent the destruction of evidence
during the time it takes to obtain a valid search warrant.” Id. at 411
(citation omitted; emphasis in original). However, even assuming the exigent
circumstances exception was satisfied sufficient to justify the troopers’
warrantless seizure of appellee’s cell phone, it logically follows that a valid
search warrant must be obtained within a reasonable amount of time. Here,
the record reflects that Troopers Womer and Conforti failed to obtain a warrant
for the contents of appellee’s cell phone within a reasonable amount of time.
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Although the troopers seized appellee’s cell phone at the conclusion of the
March 1, 2018 interview, they did not request a search warrant to examine
the contents of said phone until more than a month later, on April 5, 2018.
(See notes of testimony, 4/17/19 at 35.) Moreover, neither Trooper Womer
nor Trooper Conforti offered any explanation at the suppression hearing as to
the cause of this delay. Rather, Trooper Womer testified on this matter as
follows:
Q. So in an hour you couldn’t get a warrant for this
cell phone?
A. If we are both in the same room with him, who
is going to get the warrant?
Q. How many troopers were there at the barracks
at this time?
A. I don’t know.
....
Q. No one else was available to get a warrant; is
that correct?
A. That we would have explained, no.
Id. at 17, 18.
Based on the foregoing, we discern no legal error on the part of the
suppression court in suppressing the contents of appellee’s cell phone
following its warrantless seizure by Troopers Womer and Conforti.
Accordingly, we affirm the April 18, 2019 order granting appellee’s omnibus
pre-trial suppression motion.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2020
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