J-S36024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NICO SCOTT :
:
Appellant : No. 2056 MDA 2018
Appeal from the Judgment of Sentence Entered November 20, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001753-2017
BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 13, 2019
Appellant, Nico Scott, appeals from the judgment of sentence entered
following her convictions of two counts of possession of a controlled substance
and one count of possession of drug paraphernalia.1 We affirm.
In addressing Appellant’s omnibus pretrial motion, the trial court offered
the following background of this case:
On May 31, 2017, the Old Lycoming Township police
executed a search warrant [of Appellant’s residence] at 510 Dylan
Drive, Cogan Station, Hepburn Township in Lycoming County
Pennsylvania. The police were investigating the report of a
possible drug related homicide. While [police were] executing the
search warrant, [Appellant] was interviewed. She confirmed that
the various controlled substances found within her residence were
hers. Among the items were various quantities of pills, marijuana,
crystal methamphetamine along with electronic devices, and U.S.
currency. The controlled substances and pills were all contained
____________________________________________
1 35 P.S. §§ 780-113 (A)(16) and (30), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S36024-19
in various packaging materials and found within a locked safe
located in [Appellant’s] bedroom.
While being interviewed by the police, [Appellant] admitted
that she used the marijuana and methamphetamine for pain. She
also volunteered that “although it looks like she sells drugs she
was only stockpiling them for her own personal use.” As a result
of the items found in the search, police charged [Appellant] with
two counts of Possession of a Controlled Substance for the
methamphetamine and marijuana; and, one count of Possession
of Drug Paraphernalia.
[Appellant] alleges that the items seized from her home are
a product of a violation of her constitutional rights under both the
U.S. and Pennsylvania Constitutions since the reason for their
presence there (the investigation of the homicide) no longer
existed and they had no reason to suspect drugs were present in
the house.
The parties agreed that the facts were not in dispute.
Detective Christopher Kriner of the Old Lycoming Township Police
Department went to [Appellant’s] residence on May 31, 2017, to
locate the cremains of an individual they believed had been killed
and burned by [Appellant]. While the search warrant was being
executed, [Appellant] was placed in handcuffs and relocated to
the back of a police cruiser to await the results of the search. The
warrant was specifically issued to “search the residence for
evidence related to the death/disappearance of an unknown
Hispanic male.” Commonwealth’s exhibit 2, Search warrant
issued 5/31/2017.
While the home was being searched and [Appellant was] still
in the cruiser but no longer in handcuffs, [Detective] Kriner [read]
her Miranda[2] warnings and she agree[d] to talk with him.
[Appellant made] incriminating statements regarding drugs which
could be found inside her house. She talk[ed] about the fact that
she uses marijuana and methamphetamine for pain that she
suffers in her stomach. She further state[d] that she has been
stockpiling the drugs because she doesn’t use them all of the time.
She also mention[ed] a large quantity of cash that she has
____________________________________________
2 Miranda v. Arizona, 384 U.S. 436 (1966).
-2-
J-S36024-19
because she recently collected rents so it look[ed] like she might
be selling drugs.
Police then receive[d] confirmation that the person believed
to be deceased [was] still quite alive. However[,] as a result of
the search, police discover[ed] a safe in [Appellant’s] bedroom
which [was] locked and bolted to the floor. While [Appellant was]
still located in the cruiser and knowing the information she ha[d]
volunteered to them about the drugs in the house, the police
request[ed] her consent to search the safe. [Detective] Kriner
advise[d] her that she [did not] have to give them consent, but
they would need to get a search warrant if she [chose] not to
consent. She then provide[d] the police with the key to the safe
so they [could] open it.
Trial Court Order and Opinion, 5/4/18, at 1-3 (footnotes omitted).
On September 15, 2017, Appellant was charged with the above-stated
drug offenses. She filed an omnibus pretrial motion seeking to suppress
evidence on December 26, 2017. On March 19, 2018, the trial court held a
suppression hearing and filed an opinion and order denying the motion on May
4, 2018. A nonjury trial was held on September 21, 2018, following which
Appellant was convicted of all charges. On November 20, 2018, the trial court
sentenced Appellant to serve two consecutive terms of six months of probation
for the possession of controlled substance convictions and fined her $100 for
the possession of drug paraphernalia conviction. This timely appeal followed.
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
I. Whether the trial court erred, as a matter of law, in denying
Appellant’s motion to suppress all statements made during the
uncounseled and custodial interrogation by law enforcement in
that said statements were not preceded by a knowing, intelligent,
and voluntary waiver of Appellant’s Miranda rights?
-3-
J-S36024-19
II. Whether the trial court erred, as a matter of law, in denying
Appellant’s motion to suppress all items seized from her safe
during the search of Appellant’s residence, as they were the direct
result of an unlawful detention and consent was not given
voluntarily?
Appellant’s Brief at 4 (full capitalization omitted).
Appellant first argues that the trial court erred in denying her motion to
suppress statements made to police. Appellant’s Brief at 13-17. Appellant
claims that the statements, made during the execution of a search warrant,
were not preceded by a valid waiver of her Miranda rights. She contends
that her waiver was not voluntary under the circumstances of her detention.
Id. at 14.
With respect to an appeal from the denial of a motion to suppress, our
Supreme Court has stated the following:
Our standard of review in addressing a challenge to a trial court’s
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 ruling of a
suppression court, we must consider only the evidence of the
prosecution and so much of the evidence of the defense as
remains uncontradicted when read in the context of the record. .
. . Where the record supports the findings of the suppression
court, we are bound by those facts and may reverse only if the
legal conclusions drawn therefrom are in error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations
omitted). “It is within the suppression court’s sole province as factfinder to
pass on the credibility of witnesses and the weight to be given their
testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.
-4-
J-S36024-19
2006). Moreover, our scope of review from a suppression ruling is limited to
the evidentiary record that was created at the suppression hearing. In re
L.J., 79 A.3d 1073, 1087 (Pa. 2013).
Further, we are aware that Pa.R.Crim.P. 581, which addresses the
suppression of evidence, provides in relevant part as follows:
(H) The Commonwealth shall have the burden . . . of
establishing that the challenged evidence was not obtained in
violation of the defendant’s rights.
Pa.R.Crim.P. 581(H). At a suppression hearing, the Commonwealth has the
burden of “establish[ing] by a preponderance of the evidence that the
evidence was properly obtained.” Commonwealth v. Galendez, 27 A.3d
1042, 1046 (Pa. Super. 2011) (quoting Commonwealth v. Culp, 548 A.2d
578, 581 (Pa. Super. 1988)).
In Miranda, the Supreme Court set forth safeguards to protect a
person’s rights under the Fifth Amendment to the United States Constitution,
which provides that a criminal defendant cannot be compelled to be a witness
or give evidence against himself. Miranda, 384 U.S. at 461. The Court held
that police officers are required to inform a suspect prior to questioning that
he has the right to remain silent, that any statement made may be used
against him, and that he has the right to an attorney. Id., at 444. “The
defendant may waive effectuation of these rights, provided the waiver is made
voluntarily, knowingly and intelligently.” Id. The Pennsylvania Supreme
Court has reiterated that for a waiver of these rights to be valid, the defendant
-5-
J-S36024-19
must be adequately apprised of and understand his rights and the
consequences of waiving those rights, and must not be threatened, forced, or
coerced to waive his rights in any way. Commonwealth v. DeJesus, 787
A.2d 394, 402 (Pa. 2001). “It is the Commonwealth’s burden to establish
whether [the accused] knowingly and voluntarily waived his Miranda rights.
In order to do so, the Commonwealth must demonstrate that the proper
warnings were given, and that the accused manifested an understanding of
these warnings.” Eichinger, 915 A.2d at 1135-1136.
In considering whether a defendant has validly waived his Miranda
rights, the trial court engages in a two-pronged analysis:
(1) whether the waiver was voluntary, in the sense that [the]
defendant’s choice was not the end result of governmental
pressure[;] and (2) whether the waiver was knowing and
intelligent, in the sense that it was made with full comprehension
of both the nature of the right being abandoned and the
consequence of that choice.
Commonwealth v. Mitchell, 902 A.2d 430, 451 (Pa. 2006).
“The determination of whether a confession is voluntary is a conclusion
of law, and as such, is subject to plenary review.” Commonwealth v.
Roberts, 969 A.2d 594, 599 (Pa. Super. 2009). In evaluating the
voluntariness of a confession, this Court looks at the totality of the
circumstances to determine whether, due to police conduct, the defendant’s
“will has been overborne and his capacity for self-determination critically
impaired.” Id. at 598-599 (citation omitted). Thus, in order to determine if
a proper waiver of Miranda rights has occurred, “[w]e employ a totality of
-6-
J-S36024-19
circumstances test in reviewing the waiver. We are bound also by the
suppression court’s findings of fact if they are supported by competent
evidence.” Commonwealth v. Logan, 549 A.2d 531, 537 (Pa. 1988).
In concluding that Appellant voluntarily waived her Miranda rights prior
to speaking to the police, the trial court offered the following:
The [trial c]ourt listened to the audio recording of
[Detective] Kriner’s interview with [Appellant] and is satisfied that
[Appellant] made a knowing and voluntary waiver of her right to
remain silent. Although [Appellant] was upset, there was nothing
in her responses or the manner in which [Detective] Kriner was
talking with her that indicated her waiver was not knowing,
intelligent or voluntary. Despite the fact that she was sitting in
[Detective] Kriner’s vehicle, the conditions appeared to be free of
coercion. [Detective] Kriner’s attitude toward [Appellant] was
professional, not condescending or demanding.
Although the [trial c]ourt could not see [Appellant] in her
encounter with [Detective] Kriner, he attempted to make her
comfortable by not only taking the handcuffs off of her, but
starting the car so she would be warm. Although she fluctuated
between being emotional and calm, [Detective] Kriner was able to
get [Appellant] to focus on the questions at hand to insure that
she understood what she was doing, and that she intended to
speak with him.
Trial Court Order and Opinion, 5/4/18, at 4-5.
Our review of the record, including the fifty-eight minute audio recording
of Appellant’s interaction with Detective Kriner, reflects that Appellant
voluntarily waived her Miranda rights. The recording establishes that, at the
outset of their interaction, Detective Kriner accurately read Appellant her
-7-
J-S36024-19
Miranda rights. Defendant’s Exhibit 1, Audio Recording at 2:15-2:45.3
Appellant then acknowledged that she wanted to speak with Detective Kriner.
Id. at 3:25-3:35. Further, Detective Kriner explained to Appellant the written
Miranda waiver form and reiterated that Appellant had the choice to refuse
to answer any questions, after which Appellant again acknowledged her
willingness to waive her Miranda rights and to speak to police without an
attorney present. Id. 5:00-5:50. Similar to the trial court’s conclusion, our
review reflects that Appellant was not threatened, forced, or coerced by the
police to compel her to waive her rights. DeJesus, 787 A.2d at 402. Contrary
to Appellant’s claim, Appellant sounded completely cognizant and in control at
the time she waiver her Miranda rights, such that we conclude her waiver
was knowing and intelligent.
The record establishes that proper Miranda warnings were given and
Appellant manifested a complete understanding of those warnings.
Eichinger, 915 A.2d at 1135-1136. Based on the foregoing and our review
of the suppression hearing transcript and the audio recording, we conclude
that Appellant’s waiver of her Miranda rights and subsequent statements
were knowing and voluntary and that the Commonwealth proved “by a
preponderance of the evidence that the evidence was properly obtained.”
____________________________________________
3 Throughout this memorandum, the times cited for the audio recording reflect
the minute and second mark as they appear on the DVD submitted as
Defendant’s Exhibit 1.
-8-
J-S36024-19
Galendez, 27 A.3d at 1046. Therefore, it is our determination that the record
supports the trial court’s factual findings and that the trial court did not err in
denying Appellant’s motion to suppress her statements.
Appellant next argues that the trial court erred in denying her motion to
suppress the physical evidence seized from her safe. Appellant’s Brief at 18-
30. Appellant asserts that her consent to the search of the safe was not valid.
Initially, Appellant claims that the consent resulted from an illegal detention.
Id. at 20-27. In addition, she contends that her consent to the search was
not free and unconstrained, but resulted from coercion and duress. Id. at 27-
30.
The Fourth Amendment to the United States Constitution
and Article I, Section 8 of the Pennsylvania Constitution protect
individuals from unreasonable searches and seizures, thereby
ensuring the “right of each individual to be let alone.”
Schneckloth v. Bustamonte, 412 U.S. 218, 236, 36 L. Ed. 2d
854, 93 S. Ct. 2041 (1973); Commonwealth v. Blair, 394 Pa.
Super. 207, 575 A.2d 593, 596 (Pa. Super. 1990).
Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super. 2002).
To secure the right of citizens to be free from intrusions by police, courts
in Pennsylvania require law enforcement officers to demonstrate ascending
levels of suspicion to justify their interactions with citizens as those
interactions become more intrusive. Commonwealth v. Beasley, 761 A.2d
621, 624 (Pa. Super. 2000).
It is undisputed that:
[s]tate case law recognizes three categories of interaction
between police officers and citizens, which include: (1) a mere
-9-
J-S36024-19
encounter, or request for information, which need not be
supported by any level of suspicion, but which carries no official
compulsion to stop or to respond; (2) an investigative detention,
which must be supported by reasonable suspicion as it subjects a
suspect to a stop and a period of detention, but does not involve
such coercive conditions as to constitute the functional equivalent
of an arrest; and (3) arrest or custodial detention, which must be
supported by probable cause.
Commonwealth v. Acosta, 815 A.2d 1078, 1082 (Pa. Super. 2003) (en
banc). “The police have probable cause where the facts and circumstances
within the officer’s knowledge are sufficient to warrant a person of reasonable
caution in the belief that an offense has been or is being committed.”
Commonwealth v. Hernandez, 935 A.2d 1275, 1284 (Pa. 2007).
Additionally, we have long stated that “there is no threshold of suspicion
needed for a request to search; consent to a search obviates the need for any
level of suspicion on the part of the police.” Commonwealth v. Shelly, 703
A.2d 499, 502 (Pa. Super. 1997) (citing Florida v. Bostick, 501 U.S. 429
(1991)). It is a well-established standard that a warrant is not required when
a person, with authority to do so, consents to a search. Commonwealth v.
Reid, 811 A.2d 530 (Pa. 2002). “To establish a valid consensual search, the
prosecution must first prove that the consent was given during a legal police
interaction, or if the consent was given during an illegal seizure, that it was
not a result of the illegal seizure; and second, that the consent was given
voluntarily.” Id. at 544.
To establish the constitutionality of a consent to search:
- 10 -
J-S36024-19
the Commonwealth bears the burden of establishing that a
consent is the product of an essentially free and unconstrained
choice—not the result of duress or coercion, express or implied,
or a will overborne—under the totality of the circumstances. As
noted, while knowledge of the right to refuse to consent to the
search is a factor to be taken into account, the Commonwealth is
not required to demonstrate such knowledge as a prerequisite to
establishing a voluntary consent. Additionally, although the
inquiry is an objective one, the maturity, sophistication and
mental or emotional state of the defendant (including age,
intelligence and capacity to exercise free will), are to be taken into
account.
Commonwealth v. Strickler, 757 A.2d 884, 901 (Pa. 2000) (citations
omitted).
We have indicated that the following factors are pertinent to a
determination of whether consent to search is voluntarily given:
1) the presence or absence of police excesses; 2) whether there
was physical contact; 3) whether police directed the citizen’s
movements; 4) police demeanor and manner of expression; 5)
the location of the interdiction; 6) the content of the questions
and statements; 7) the existence and character of the initial
investigative detention, including the degree of coerciveness; 8)
whether the person has been told that he is free to leave; and 9)
whether the citizen has been informed that he is not required to
consent to the search.
Commonwealth v. Powell, 994 A.2d 1096, 1102 (Pa. Super. 2010) (quoting
Commonwealth v. Kemp, 961 A.2d 1247, 1261 (Pa. Super. 2008) (en
banc)). Again, our scope of review from a suppression ruling is limited to the
evidentiary record that was created at the suppression hearing. In re L.J.,
79 A.3d 1073, 1087 (Pa. 2013).
In the first portion of this issue, Appellant argues that her consent to
the search was the result of an illegal detention. Appellant’s Brief at 20-27.
- 11 -
J-S36024-19
Appellant asserts that, although she was lawfully detained during the
execution of a search warrant to investigate a potential homicide, once the
police concluded that the purpose of the search warrant had ended she was
then unlawfully detained. Id. at 21-22. Appellant contends, “Detective
Kriner, despite no longer operating pursuant to a valid warrant, continued to
hold [Appellant] in custody and question her about the no longer unidentified
Hispanic male [believed to have been murdered], who was quite alive.” Id.
at 25. Appellant claims that she “was held in custody and interrogated absent
a valid warrant or any degree of justifying suspicion on the part of law
enforcement.” Id. at 27.
Our review confirms that the police arrived at Appellant’s residence on
May 31, 2017, with a valid search warrant.4 “[T]he purpose and scope of the
initial warrant was to search for ‘any and all evidence related to the
death/disappearance of an as yet unidentified Hispanic male.’” Appellant’s
Brief at 21 (citing Search Warrant 5/31/17). As discussed above, while
Appellant was detained she validly waived her Miranda rights and spoke with
police. During the interrogation process, Appellant admitted to using
methamphetamine. Defendant’s Exhibit 1, Audio Recording at 12:50-13:30.
Thereafter, Appellant admitted to having drugs in the house. Id. at 14:20-
____________________________________________
4Appellant states, “Appellant accepts that the warrant under which the initial
search and seizure was executed was lawful, that it was supported by probable
cause and described with sufficient particularity the place to be searched and
persons or things to be seized.” Appellant’s Brief at 20-21.
- 12 -
J-S36024-19
14:45. After further discussion, Detective Kriner stopped the interrogation
and left Appellant’s presence for slightly more than three minutes. Id. at
17:00-20:30. Upon returning, Detective Kriner informed Appellant that police
confirmed that the purported victim was alive. Id. at 21:00. Detective Kriner
continued questioning Appellant regarding her connection with the purported
victim and his drug business. Id. at 24:30-27:00.
These facts establish that, during the legal police detention while the
valid search warrant was being executed, Appellant admitted to using illegal
narcotics and that there was contraband present in her residence. We
conclude that these facts, in the knowledge of police, rose to the level of
probable cause because they are sufficient to warrant a person of reasonable
caution to believe that an offense has been or is being committed.
Hernandez, 935 A.2d at 1284. Accordingly, Detective Kriner’s continued
interrogation of Appellant regarding her connection with the purported victim
and his drug business was a legal police interaction. Hence, Appellant’s
consent to search the safe in her residence was given during a legal police
interaction, and her contrary claim lacks merit.
In the second portion of this issue, Appellant argues that the consent to
search her safe was not a free and unconstrained voluntary choice.
Appellant’s Brief at 27-30. Appellant claims that under the circumstances, her
consent was the result of duress and coercion. Id. at 28-30.
- 13 -
J-S36024-19
In addressing this claim, the trial court offered the following brief
discussion:
[Appellant’s] consent was not a product of duress.
[Detective] Kriner was calm and patient with [Appellant]; he
continued to speak with her trying to keep focused to establish for
the recording that [Appellant] understood what was being asked
of her. Although she was not advised that she was free to leave,
she was advised of her right to refuse consent. The [trial c]ourt
finds that there was nothing inherently coercive about the
circumstances that evening. [Appellant’s] consent to search was
voluntarily made.
Trial Court Order and Opinion, 5/4/18, at 5. We agree.
Because Appellant gave consent to the search during a legal police
interaction, we need address only whether the consent was voluntary, and do
so considering the relevant factors set forth in Powell. Powell, 994 A.2d at
1102. Here, our review of the audio recording reflects that the police activity
preceding the consent was legitimate, no verbal or physical force was used,
one police officer was involved in discussion and interrogation of Appellant
while the search warrant was being executed. Furthermore, Detective Kriner’s
demeanor was kind and courteous. Thus, we cannot conclude that there were
any police excesses. Although Appellant can be heard crying at various times
on the fifty-eight minute audio recording, there was no evidence that
Appellant was anything other than a competent adult at the time she provided
the police detective with the requested information and consent to search her
safe for contraband. Furthermore, although the entire interaction occurred in
the back of the police vehicle and Appellant was not informed that she was
- 14 -
J-S36024-19
free to leave, our review reveals no duress or coercion on the part of the police
in securing the verbal and written consent of Appellant to search the safe.
The record supports the trial court’s determination with regard to the evidence
seized. Hence, having concluded that Appellant’s consent to the search of the
safe was voluntary, we conclude that Appellant’s contrary claim with regard
to the suppression order lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2019
- 15 -