Com. v. Poe, R.

J-S67015-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RONALD LEE POE : : Appellant : No. 1200 MDA 2019

Appeal from the Judgment of Sentence Entered June 18, 2019 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0003989-2018

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.* MEMORANDUM BY OLSON, J.: FILED JANUARY 07, 2020

Appellant, Ronald Lee Poe, appeals from the judgment of sentence entered on June 18, 2019, following his jury trial conviction for persons not to possess a firearm.1 We affirm.

The trial court summarized the facts of this case as follows:

[O]n June 24, 2018, at approximately 4:00 p.m., [Trooper Timothy Richartz (“Richartz”) of the Pennsylvania State Police (“PSP”)] and other troopers arrived at [a residence on] Tanning Yard Hollow Road in Drumore Township for service of a warrant on Lisa McCall (“McCall”). When Appellant came out of the house, Richartz asked if McCall was at the residence. Initially, Appellant stated he just woke up and did not know where she was. When Richartz informed Appellant that PSP received a tip that McCall was at his residence, Appellant invited Richartz into the house where McCall was located. Once McCall was in custody, [the PSP] left the residence.

____________________________________________

• • Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S.A. § 6105.

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During a subsequent interview, McCall told Richartz she arrived at Appellant’s residence at 4:30 p.m. When Richartz noted that was not possible because [the PSP] arrived at 4:00 p.m., McCall stated she arrived at 3:30 p.m. McCall told Richartz that she bought three bags of heroin from Appellant for $30[.00], and he gave her some methamphetamine for free. McCall said they used some of the narcotics in Appellant’s room. McCall further stated the heroin was in three white bags with a money symbol on them, and she threw the empty bags in the trash can in Appellant’s room.

Based on information provided by McCall, Richartz obtained a search warrant for the residence. According to the search warrant, McCall told Richartz that while they were in Appellant’s bedroom she saw heroin in raw form which Appellant placed into three bags for her. McCall also saw methamphetamine the size of a golf ball from which Appellant removed a small piece and gave it to her. McCall further stated that Appellant ke[pt] his narcotics in a black bag in his bedroom next to the dresser, she [] observed him hide narcotics in vehicles on his property to avoid police detection, she believed he cook[ed] methamphetamine in his basement, and she was told he may have a firearm. During a subsequent search of the residence, Richartz located a black bag containing heroin, methamphetamine and drug paraphernalia just outside Appellant’s room in a stack of brown boxes. A .32 caliber gun was located in a green bag inside Appellant’s bedroom behind the door. At the completion of the search, Appellant was taken into custody and transported to the Troop J Barracks.

At the police station, Richartz used a written form to read Appellant his Miranda[2] rights, and he gave Appellant a copy to follow along. After reading Appellant his Miranda rights Richartz asked, “[d]o you understand your rights I’ve explained to you?” Appellant responded, “yes.” Richartz then asked whether Appellant wished to make a statement. Appellant responded by shaking his head no and stating, “no, I haven’t thought about it.” Richartz then clarified by asking, “do you want to answer some questions? If you don’t want to, that’s fine.” Richartz testified that he interpreted Appellant’s response as him shrugging yes. Richartz further testified that at no time did Appellant mention the word lawyer.

____________________________________________ 2 Miranda v. Arizona, 384 U.S. 436 (1966).

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Thereafter, Appellant wrote his initials beside each “yes” mark that Richartz had checked on the Miranda rights form, acknowledging he understood his rights and he wanted to give a statement. Richartz testified that at no time during the interview did Appellant say he wanted to stop the interview or get a lawyer. Richartz noted that because Appellant appeared to answer all of his questions willingly, he never thought Appellant did not want to speak with him.

While they were together, Richartz did not threaten Appellant, engage in a show of force, or yell at him. Appellant was not handcuffed during the interview. Richartz believed Appellant’s behavior was normal during the interview based on their prior interactions. Appellant was alert, coherent, did not appear intoxicated, understood what was happening, and his decision to talk with Richartz appeared to be made freely and voluntarily. If Richartz believed that Appellant did not understand what was happening, Richartz would have discontinued the interview.

Trial Court Opinion, 8/28/2019, at 3-5 (footnote incorporated).

The Commonwealth charged Appellant with the aforementioned offense, as well as possession with intent to deliver narcotics (PWID), conspiracy to commit PWID, possession of a small amount of marijuana, and possession of drug paraphernalia.3 Prior to trial, Appellant filed motions to suppress the physical evidence recovered after executing the search warrant, as well as his subsequent statement to police. Appellant claimed there were material omissions contained in the affidavit of probable cause and that he invoked his rights to remain silent and to be represented by an attorney pursuant to Miranda. The trial court held a suppression hearing on November 8, 2018, following which it denied Appellant relief. On April 10, 2019, a jury trial found

Appellant guilty of persons not to possess a firearm offense. Prior to ____________________________________________

3 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903, 35 P.S. § 780-113(a)(31), and 35 P.S. § 780-113(a)(32).

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sentencing, the Commonwealth nol prossed the remaining crimes. On June 18, 2019, the trial court sentenced Appellant to five to ten years of incarceration. This timely appeal resulted.4

On appeal, Appellant presents the following issues for our review:

1. Whether the [t]rial [c]ourt erred in not granting the suppression of the search warrant for [the residence] on Tanning Hollow Road on June 24, 2018, as the affidavit of probable cause contained material omissions/misstatements of fact relied upon by the magisterial district judge in making a finding of probable cause and approving the warrant. Specifically, Lisa McCall did not know when she arrived at [the subject residence] on June 24, 2018, and Lisa McCall was under the influence of methamphetamines and heroin when she spoke to the Pennsylvania State Police Trooper on June 24, 2018. This information was omitted by the affiant of the search warrant.

2. Whether the [t]rial [c]ourt erred in not suppressing [Appellant’s] custodial statement given to the police on June 25, 2018, as [Appellant’s] Miranda waiver was not intelligent, knowing and voluntary. Specifically, [Appellant] shook his head in the negative when the police asked him whether he wished to answer questions. Moreover, [Appellant] told the police after Miranda warnings were given and he was asked whether he wished to answer questions, he responded “no, I haven’t thought about it” and references the word lawyer. In response to these verbal and body responses, Trooper Richartz did not engage in clarification questions but immediately proceeded with the custodial interrogation. This was done in violation of Article I, Section 9 of the Pennsylvania Constitution and the Fifth Amendment to the U.S. Constitution.

Appellant’s Brief at 4. ____________________________________________

4 Appellant filed a notice of appeal on July 18, 2019 and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on August 5, 2019. The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on August 28, 2019.

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J-S67015-19

This Court's well-settled standard of review of a denial of a motion to suppress evidence is as follows:

An appellate court's standard of review in addressing a challenge to the denial of a suppression motion 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, 121 A.3d 524, 526–527 (Pa. Super. 2015) (internal citation, original brackets, and ellipsis omitted).

We have carefully reviewed the certified record, the submissions of the parties, and the thorough opinion issued by the trial court on August 28, 2019. Based upon our review, we are satisfied that the affidavit of probable cause did not contain material omissions to invalidate the search warrant at issue. Here, the trial court determined that a minor discrepancy regarding McCall’s arrival time at the subject residence was not a material fact. Additionally, the trial court determined that McCall did not appear intoxicated when making statements to police, but even if she had been, it was not material to whether there were illegal items located inside Appellant’s residence. Moreover, the

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affidavit of probable cause, introduced into evidence at the suppression hearing, specifically states that McCall and Appellant used drugs together prior to McCall’s interview with police. Thus, the trial court determined that the police properly apprised the issuing authority of all of the material facts of this case before authorization of the search warrant. We discern no error.

Regarding Appellant’s subsequent statements to police, the trial court noted that while Appellant was not prepared to make a full statement to police, he was willing to answer their questions. Furthermore, police verbally explained Appellant’s Miranda rights to him and provided him with a copy of written Miranda rights prior to interviewing him. Appellant reviewed the written copy and signed the document, thereby waiving his Miranda rights, before answering police questions. Moreover, the trial court credited Trooper Richartz testimony that despite receiving Miranda warnings, Appellant never invoked his right to an attorney. Finally, we note that upon review of the certified record, the trial court viewed a video and audio recording of the entire interaction between the police and Appellant before ultimately denying suppression. Based upon all of the foregoing, the trial court determined that Appellant knowingly and intelligently waived his right to remain silent and his right to counsel prior to giving his statement to police. Again, we discern no error.

Because the trial court's opinion adequately and accurately addresses the claims Appellant presents on appeal, we adopt the trial court's August 28,

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2019 opinion as our own. The parties are hereafter directed to include a copy of the trial court's August 28, 2019 opinion with all future filings pertaining to our disposition of this appeal.

Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/07/2020

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f 1_up1n1on Circulated 12/16/2019 11:20 AM

COMMONWEALTH OF PENNSYLVANIA .. • 1200MDA 2019 VS. ·CP-36-CR-00.03989.:20 18 ·�·:,, ,;r RONALD. LEE POE

i>A R.A.f>� l92S OPINION

BY.TOTARO,J.

. Presently before the. Superior Court of Pennsylvania is an appeal filed by Ronald �e P.qe

(�'Appellant'') from thejudgment of sentence imposed on June 18;2019. For the-reasons stated

herein, the· appeal should be denied. On June. 24, 2018;. Trooper Timothy Richartz .("Ri(:ha11z") of'the Pennsylvania· State

Polic.et'PSP'�l exeeuted.a search warrant at Appellant's residence located al 1237 Tanning Yard

Hollow Road;Dr.um:oretownship,;LancasterCounty, Pennsylvania. (Notes of Testimony,

Suppression Hearing at 5"6) C'N:T�S.H;"); Based ()n evidence found in ihe.residence, Appellant

was charged with. person not to possess a firearm, possession wijh intent.io deliver heroin and

merhamphctaniine, conspiracy to possess with intent to. deliver a controlled substance, possession

ofa small amount.of marijuana, and possession of drug paraphernalia. See Criminal

Information.'

On October 19� 2018, Appellant filed a motion to suppress evidence obtained pursuant.to

the search warrant by claiming the affidavit of probable cause contained material omissions, See

Omnibus Pretrial Motion. Appellant-also soughtto suppress the statement he gave to police: by

1 l8 Pa.CS.A. 6 IOS;JSP:S. § 780-113(�)(30); 18.Pa.C.S�A. § 903; 35 P.S. § 780�1 IJ(a){3l)� und 35 .P,S, ij 780-1 I 3(tt}(32} respcc�iv.ely, ·· · · · · ·

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2�0pinion alleging he invoked his Miranda rightto remainsilent, Id. In an amended motion filed on NovemberS, 2018,.AppeJlanf further claimed his statement to poficeshouldbesuppressed because he invoked his right to an attorney. See Amended Omnibus Pretrial Motion.

Following a suppression hearingheld on NovernberS; 2018, the court entered an order

denying the suppression moiions. 'See Order. 2/8/ 19;, · Thereafter. on April to. 2.0 rs, the parties proceeded to aj ury trial onthe charge of person not to possess a firearm, at which time Appellant

was found guilty, (Notes . of Testimony,. Trial at 177) . ("'N.T."), . On June 18; 2019;. the court .

imposed a standard range guidel ine sentence of five to ten years Incarceratiorr, (Notes of Testimony, Sentencing, at.7, 23)t�N.T:S/').2

On July 18, 2019� Appellant filed a Notice of Appeal to the Superior Court. On August 5,2019, Appellant filed a Statement of Errors C0.n1plained ·Of on. Appeal {''Statement") alleging. the trial court erred. in: (1) not suppressing 'the. fruits of the search warrant because the affidavit of probable cause contained material omissions.or misstatements ofmaterial fact; and (2) not Suppressing Appellant'-s statement.to police because his Mira1.14Cl waiver was not.intelligent; .knowing and voluntary. See Statement "Thisoplnion.is written pursuantto Rule 1925(a) ofthe

Pennsylvania Rules or Appellate Procedure.. -. DISClISSION

When a motion to suppress has been.filed.jhe burdenis orrthe-Commonwealth to establish by a. preponderance..of the evidence· that.the.challenged evidence is. admissible.

Cv,m>wnweallh v. Bowmaster, .1 OJ A3d 789, 792 (Pa. Super.2014). When the Commonwealth prevails on a motion to suppress eviden¢¢before>the t.r.ial 'court, an, appellate court may consider.

2 Prior. to sentencing.the Commonwealth.nol-prossed the re1nairiing counts. (N.T;s. at2).

i_upm1on

only the Commonwealth's evidence and so much of'the evidence for the defense as remains

uncontradicted when read in the context of the record as a whole, Commonwealth v, Edwards,

194 A.3d 625, 631 (Pa. St1per.2018).

"It is within the.suppression courr's.sole province as factfindertq:p�sson the.credibility

of witnesses and the weight to be given their testimony," Commonwealth v, Dutrteville, 932.

A.2d 240, 242 (Pa; Super: . . Commcnwealth v: . Elmobtiy, 823 A2d 18.0, 18J(Pa'. 2007) (quoting .

Super; 200])). Furthermore.where tile record supports the factual findings of the trial court, tlw

appellate court is bound by those facts and may reverse- only if the legal.conel usions drawn

therefrom are in error, Commonwealth. v: Wilmer, 194 A.3d 564, 567 (Pa. 2018).

In the present case, T roo.per Richartz testified at the suppression hearing. that.on June J4;

2018,.at approximately 4�90 p.m., he. and other troopers arrived at T23 7 Tanning Yard Hollow

Road iii Drumore Township for service ofa warrant on Lisa McCall e·McCall''). (N.T.S.H. at9-

l .l ). When Appellantcame out of the. house, Richartz asked hint if McCall was at the residence.

kl. at 12; (nitia.tly� Appellant stated h,ejust' woke. up and did not know where she was. Id When

Richartz informed.Appellant.that PSPreceived a tip McCall was at his residence; Appellant

Invited Richartz into the house where McCall was located, Id at l2-i3. Once McCall wasin custodys - troopersleftthe residence. Id at J3.;

During.a subsequent interview, McCall told Richartz she arrived at Appellant's residence

at 4:30JJ;i11. (N,T.S.H; at 16);. When Richartz.notedtharwas not possible because troopers arrived at 4:00 p.m., McC.all stated she arrived at 3 :3.Q p.m. _ Id. McCall told Richartzthat she

bought three bags of heroin Irom Appellant for. $30, and.he gave hersome methamphetarnine for

free. Id at 14. McCall said they-then used some of.the narcotics in.Appellant's room, Id.

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2_0pinion

McCall further stated the heroin was.in three white bagswith a money syinboL9n them, and.she

threw. the etnpty bags. into the: trash can in Appellant's room. Id at L8.

Based on information provided by McCall) Richartz obtained a-search warrant for the

residence. (N;T$.H. at t8\ Corii.S.H. Exh. 1.5 During a subsequent search of the.residence,

Richartz located a black bag containing·. heroin, methamphetarnine and drug..paraphernalia just .

outside Appellant's room in a stack of brown boxes. (N.T.SJJ, at 2 I), A .32 caliber gun was

located ina green b�gi11sideAppellarifs.bedroofu behind the door. 'Id, At the completion of the

search, Appellant was taken.into custody· and transported to the Tro�p J Barracks. Id. at21 �22 .

At the police station, Richartz used.a written form to. read Appellanthis;i\1irai1datights,

and he gave Appellant a copy to follow alo11g. (N.J:S:H. a:t25:.�7);: C::9I11; S.R Exh'.. 2. After

reading Appellant.his Mirqnda rights.Richartz asked, ''[dJo you understand your rights I've

expfa11Jt!� to you?" (N.T.S.JI. at 26.). Appellant.responciett. "yes." Id. Richartz thenaskea

whether Appellant wished to make a statement. Id. Appel lant responded by shaking his head no

and stating, .. no, Ihaven't thought about it." Id Richartz then clarified.by asking "do you want.

to answer some questions? I f'you don't want. to, that's.fine," . Id at .34. Richartz testified. that he

interpreted Appellant' s response as him shrugging yes. Id. at 26. Richartz further testified that at

no time.did Appellant mention the word lawyer. Id. ai34.

3 . According to thesearch warrant, McCall told Richartzthat while they were in Appellant's. bedroom she.suw beroin in raw form which Appellant placed into three bags for her. See Aftidavitof Probable Calise, at, 2, M.�Call also saw rn�tl)amph�tamine the size of a golf b�II from which Appellant removed a smal I piece and gave to her; Id. McCal I forth er stated that Appetlantkeeps his narcotics in a black bag ii1 his. bedroom next tothe aresser, she has observed Appe] 1a,1fhide ntir¢citics in. vehicles on his property to � vo iGI po I ice detect ion, she be I ieved he cooks meth am phetam ine ill his basement; and she was told he: may have a Ilreann. Id: at 111 J.,:4, The �ffidavit.also states tllarApp.ella11t has three prior feloil.9 drug convictions. Ii.I. all S. .

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Thereafter, Appellant wrote his initials beside each "yes" mark that, Richartz had checked

on the. Miranda rig�ts form, acl<:n()wledging he understood his -rights and he wanted to give a

statement. (N.T.S;H.. at '26'."11.);. Com. S.H. .Exh. 2 .. Richartz testified that atno time during the

interview did Appellant say he wantedto stop the interview or get alawyer. (N,T.S.H. at 31).

Richartz noted 'that because Appellant appeared to answer all of his questions willingly. he never

thouglJ,i . Appellant . did no.t. wanttc speak with him, Id

While.they were.together, Richartz did not. threaten Appellant, engage in a show of force,

or yell at him. (N. T:SJI. at 24). Appellant-was not handcuffed during the interview• ld; at. JR.

Richartz believed Appellant's demeanor was normal during the interview based on their prior

interactions. Id at23�24, Appellant . was alert;. coherent, did not appear intoxicated, understood

what was happening, and his.decision-to talk-with Richartz appeared to be made freely and

voluntarify. Id at24-2S. lf'R.ichartz 1:!eli¢v�d t�arAppeJl�nt did.no; understand what was happening, Richartz would have discontinued the, interview. Jd. at25. In his first issue, Appellant alleges the affidavit ofprobable cause for the search warrant

contained material omissions or n1iss{ate:;n1ents of'the facts which were relied upon tiY the magisterial district judge in making a.flnding of probable cause and appr:oving the warrant. S�E?

Statement,. Specifically<; . . . Appellant avers . the . affiant of the search. wartant . omitted . the factthat .

MtCaU didnotknow \Vhen,slie�rriye.d.atAppeBanf sresidence on the day in.question, Iii.

Appellant further claims the affidavit of.probable cause.failed to explain that McCall was under

the influence of'drugs at.the.time ofher police interview. /•,·

"Probable cause exists where the facts and eircumstances within the affiant'sknowledge

arid of which. he has reasonably trust\Yorthy. information.are sufficient inthemsel yes to warrant a.

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2_0pinion man of reasonable. caution. in the beliefthat a. search should be conducted." Commonwealth v:

Leed,186 A.3d 405. . 413 (Pa, 2018)(quoting Co11111ionwea.llh . v. Johnson. :42 A,3d 1017,.1031

(Pa. 2012)), In deciding whether there is sufficient probable cause, theissuing authority must apply the totality ofthe circumstances test, "which requires her to make a practical, common-sense decision whether, giVen .all of the circumstances set.forth in th.� affidavitj.] including the veracityand basis of knowledge ofpersons suppl yin� hearsay. information, there is .a fair probability that.contraband or evidence ofa crime .Will be found.in a particular place." John:Wri,42 A. 3dat 1031 (internal quotation marks orniued).

111 reviewing-a search warrant. the reviewing court need.only determine whether "a substantial basis existed for the [issuing authority] to find probable cause." Johnson, 42. A.3d at 1031. Moreover, "[iJn analyzing whether a warrant was' supported by probable cause.judicial. review Js confined tothe follr comers of the affidavit." CiJinmonweq/ih v. Cole1.nan, 830 A2d 5.54� 560 (Pa, 20QJ), The· standard for addressing an alleged omission ofmaterial facts is as follows:

Where a defendant alleg�fth�t material facls, were omitted from ap affidavit, we. conslderj l}whetherthe officerwithhelda hfghly relevantfact.within hisknowledge, where any reasonable person would have known that this was the kind of thing. the judge would wish to know and (�) whether· th�, affidavit · would have provided probable cause if it had contained a disclosure of'theomitted information. This. type. of challenge typically applies where the omission: of facts tended to mislead. the magistrate as' to the ve:r�city ofthe facts iqqluqed. Th� p;rtinent anal ysis is· whether inclusion of the omitted material facts would have undermined the other facts inthe affidavit that gave rise. to probable cause.

C01i1111tmwe£1/th v. Gould,. . 187 A.3d 927, 94.0. ( .Pa. Super. 20.18}. (internal citations and 'quotations omitted). Courts.have held that, even where an.officer'sstatements inan a:ffjd�vitwere. "misleading. by omission," arid where the omission was deliberate.Jnvalidation offhe warrant

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was not necessary because the omission was '(not an attempt to create probable cause where none

existed" and because the affidavit stillY'oulq have presented.probable cause ff the full

information had been included. Cmnmomt;ealih "· Taylor, 850 A.2d 68,4� 689 (Pa. Super. 2004)

(quoting Commonwealth )>. Yer.get, 482 A.2d 984, 990-9 I (Pa. Super. 1984)).

hi response to Appellant's claim that fyfcCa.11 's confusion asto whenis.he arrived at the residence was amaterial omission, Riehartztestifled that in his experience people sometimes

tend to "be off; when trying to remember the timing.ofincidents, (�t TS;H. at J 6); .He did not

include McCall's. confusion in the.affidavit becauseshe corrected her arrival time.after being told

she could not have arrived at4:3.0 p.m. .ld. As such, this omission does hot appear to be an

attempt by Richartz to .create probable cause where 119ne existed. Moreover, the discrepancy in

arrival time of one hour does not appear. to. be a.material fact.

As to AppelJant's claim that the; affidavit of probal:!l!:?causefailed.to.explainMcCfillwas

under the influence ofdrugs at the time.of" her police interview. there is- no evidence to suggest

McCall was tinder the influence of'drugs at the time of the interview. Rather, Richartz testified

that McCall was alert, coherent, and .did not appear to be intoxicated during the interview.

(N. TS.H. at· 14. J 5). Riehartz knows what-signs to look for in someone who· is intoxicated, and

he would have stopped the.interview if he believed McCall was intoxicated, Id. Furthermore,

the.affidavit specifically stated that McCall and.Appellant "shot up some.of.the.heroin/meth

together'; after Appellant sold the drugs to McCall. See. Affidavit of Probable Cause at 1 2. Thus, the issuing authority was informed that McCall had used drugs prior to Iler interview, Assuming, arguendi), this information should have. been included in the affidavit,

invalidation ofthe warrant is not appropriate because theaffidavit still would have presented

, _ .. ..,, .._, ,, , , __,, __ __ , , . _

probable cause if'the full information had peen included. According to the affidavit, McCall informed Richartz that Appellant provided her with heroin and methamphetamine inside Appellant's .bedroom earlier that day, the .small piece of'methamphetamine he gave her was taken

from a larger piece the size of.a golf ball, Appellant keeps his narcotics in his bedroom, she has observed him hide.narcotics-in-vehicles on the.property to avoid confiscation.by police, she was

told Appellant may have a firearm, she believed he cooked methamphetamine in the basement, she saw empty boxes of Suda:fed inside the residence, and she knew of two other residents at .the house whosold and consumed narcotics in her presence. Ser: Affidavit of Probable.Cause.

Additionally, Richartz stated he knows Sudafed is. a precursor used to manufacture

methamphetamine based on his training and.experience..a-check of AppellanJ'scrirninal.hisiory indicated he had three prior felony drug convictions (35 P.S, § 780:. i l3(a)(30)), and within the

past two months individuals arrested by Richartzfor possession of narcotics or paraphernalia told him · that.Appellant sells methamphetamine Cr,001 his-residence. See Affidavit ofProbable Cause,

Based on all. ofthe. above: the court concluded that the omissions referenced by Appellant were not material, they were not an attempt to create probable cause where none existed.they did not tend Io.mislead the niagisfraie:as to the veracity of the facts included· in the search warrant affidavit, and the affidavit would.have provided probable. cause even if it had contained a disclosure of the omitted information, Therefore, the court denied the suppr.essionjnotion:'

" Appellant also alleged in his pre-lrial motion thatthere.were material omisslons because the aiTidavit of probable cause did notstate McCall was 011 parole for recklessly endangering another person or pro ba tion for possess io11 of drlig paraphe11falia at the iiiHe of the warran r, See' Orrin i bus Pre-Trial Motion. Furthermore, AppeUant argued there w.a$,,�l material omission.because the a:fficiav.k did noi state McCall would not be. charged with possession 'Of a controlled substance eveJJ though she. admitted-to police she. used drugs at Appellai1t 's house .thatday, Id. Because Appellant did riot raise these sp��ific issues in his Statement they are deemed waived. 8ee Commo,�w,mlt.l.lv. Eord, 719 A2d l06; 309 (Pa.

2_0pinion

In his second issue; Appellant.argues the trial court erred in not suppressing the statement he gave to police because his· Mtranda Waiver was not intelligent, knowing, and voluntary. See. Statement More specifically, Appellant claimshe shook his head in the negative when police asked him whether he wished to answer questions, he responded ":J don't think so," and police did riot seek to clarityAppellant' � verbal or body responses. ld.5

A police officer must administer Mii'anda warnings prior to. custodial-interrogation, Commonwealth v. Biikei,.24 A.Jd 1006, I Dl 9 (Pa. Supet.2011). Custodial interrogation means

"questioning initiated by law enforcement officers after a person bas been taken i{ito custody or otherwise deprived of his freedom of action in any signi ficant, way�'' Miranda v. Arizona, 384

U:S. 43'6; 444 (1966). In determiningwhether.an individual.is in custody for purposes of Mitanda, the "ultimate.inquiry .... iswhetherthere [was] a 'formal arrest or restraint on freedom ofmovement' of the degree associated with a formal arrest." Cpmmonwia�lh.:v; Cooliy, 118

A.3.d 370,376 (Pa. 20lS)(quotit:1g:St�nsburyv. California, 511 U.S. 31'8,322 (1994)). Presently, Appellant was questioned by police officers. after. being taken into custody.

l 998), Ass:..11ning;wgu(?nd.o, these issuesare'not waived, the affidavit.clearly states thattfooperstook McCall 111to custody for a·�warrantserv.ice" because she was entered into .CLEAN! NCIC as befog. wanted· by the L�1tca�ter County$h�riff's Office; S¢e Affidavit of Probable Cause at 1 1. There(dr¢, the a issuing authority was 'inforined that McCall was taken i11to police custody pursuant to. warrant. Even· if the charges or reason for the warraiit were not specified, such · inforniadbi1 would not have undermined the odwr. fitcls listed in the affidavi]. As to drug use.Richartz testified he d id not find any drugs or drug paraphernalia on. Mc.Call before obtaining the warrailt and there was no evidence Jct corroborate her adntission. (N�T:S.H. at4T}. Thus, Richartz concluded he could not charge McCall wifha crime prior to a. search of.the residence based on.her statement.alone, Id. at J 8; 42. See CQ1m11onwea/1b v.Taylor, 831 A.2d. 587.. 590. (Pa. ·20mna confession is not evidence in the absence of'proofofthe corpus delicti).

s in a pre-trial motion, Appellant also-alleged he .told pol ice ••No, .not wiihouta lawyer; no" in response to Whether he would answer questibns; See. Amended Omnibus Pre-trial Motion. However, this. issue is deemed waived because itwas not raised iii Appellant's Statement, See Lord; 719 A ..2d at 309 .. Assuming, arguendo, Jhe issue is not waived, Trooper Richartz testifi�d that at no time did Appellant use the word lawyer or ask.for alawyer, (N.T:S;J'l. a(Jl, 34).

2_:0pinion

Once a suspect is subjected to custodial inierrogatien, any statements made are admissible if the Commonwealth, can prove the suspect "knowingly and intelligently waived his privilege against.selfeincriminarion and his right to counsel." Commonwealth v, Sem�bQrough,42.1 A.2.d 147, l53{Pa. 1980). Adetermination of whether a suspect has made-a knowingand intelligent waiver is based on the totality of the circumstances. Commonwealthv. Barry, 454 A2d 985, 9'88

(Pa. 1.982). The Commonwealth mus.t prove by a preponderance of'the evidence thatthe statement was voluntary and the waiver was. intelligent anti knowing. Commonwealth v..

Ed,1 C1rd\·,555 A.2d .8.18,: 826 (Pa. 1989). 1

AU interrogation musrccaseif'an individual.stateshe wishes to exercise any of his rights after being advised qfMirandC1wa..rnings. Commonwealth v... Lukach, 19.5 A.3d 176, 185 (Pa. 2018). However, "if-a suspect-makes a reference to.an .attorney that is .arnbigpous or equivocal. in that a: reasonable officerin light.of the circumstances would haveundersiood onlytha! the. suspeclh1ight.beir1yokiugtherighJ to counsel, our precedents d9 not require the cessation of questioning." Davis v: UnitedSuuss, 512 U.S. 452,459 (f994){emphasis in original). "The inquiry into whether or not.a suspect has invoked the. right to counsel is an objective one." Commonwealthv. Chamimev, 161A.3d2651273(Pa. Super. 2017). Invocation of'the rightto remain silent in response to Miranda warnings must also beunambiguous and objectively clear; See Be11:huis v. Thoiiipf<ins, 5pQ'J:J..S. 370,)� I (2010); lukciC.h,. 1.95 A.3d atl8$..;86.6

6 iii Ber.gl111is, the U nited States Supreme Court nptedJhat "there is no prihcipled reason to adopt different.standards for determining when an accused has. invoked the Miranda righno remain silent and at the Mtranda right to counsel issue in Da\lN/' 560 US. at 18'{. InLukac:h. the Pennsylvania Sµpreme Court found thar'the appellant had tn)arribiguoµs'ly. invo�ed his right to remain silent when he said "Yeah. I don't. know j ust, 1'111 done. talking. l don't have noth i1ig to talk. abo ut," l9 S A .3 d .ar 189�90. The Court 1

reasoned it was logical to conclude that the statementt'I'm done h�fking') meant appellee had finished "contemplating" and had delin'itively made up his mind, Id

lO

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2:....0pinion

In the present case, Appellant. states he shook hi_s head in the neijative when poliee asked

him-whether.hewished toanswerquestions.and responded, "I don't think.so." Appellant further

claims police did not. seek to clarify his verbal.or body responses. Appellanf rnisstat¢$ the record. ..

Richartz-testified that when he asked Appellant if'he wanted to .make a statement, Appellant

shook his head ho and staled "no, I haven'tthought about it." (N.TS.H. at 26,Jl, 32-34).

Richartz then clarified by-asking "do you want toanswer some questions? Ifyou don't Want to,

that's fine:" Id... at34. Richartz interpreted Appellant's shrug as an indication he was willingto

talk. Id at26. Thereafter, Appellant initialed the Miranda waiverform .indicating he wished to

make a. statement With his rights in mind. Id. at 26-::27. Appellant then voluntarily answered

questions and ar no time did he stop to invoke his right to remain silent. Id: at .3 1.

As noted, invocation of the right to remain silent in response to Miranda warnings must be unambiguous and objectively clear. For example, the.Pennsylvania Supreme Court found in

Lukach that the appellant. had unani pigµpusJy invoked his rigllt \O remain silent whenhe said he

was done talking •. The present case is dearly distinguishable, Appellant never said he did not

want to talk. to. police, . Rather;. Appellantshook. . his head in the negative arrd �aid he had not thought about whether he wanted to makea.statement. AP.pell�nt's statement tlwJ he; hadn't.

thought about it is similar to the phrase ·t don 'l know," and indicates Appellant was unsure of

how to proceed. Viewing the.interaction asa-whole,J1 r¢a�ptlable officer would norhave

concluded that Appellant unambiguously invoked his right to remain silent. Therefore, the court

did not suppress Appellant's statement to police.'

7 At triai, the.courr instructed thej ury that.the Commonwealth must prove the stafemeht was. vofontary and there was no violationof'A,/irimda rights by.apreponderance of the evidence-before. the jury could consider the statementas evidence agains; Appellant. (NS. at I 5.6.; 162) .

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·CONCI.USION

Based on the. foregoing, the suppression court did not err when it denied Appellant's motions to suppress. The omissions from the-affidavit.referenced by Appellant were not material, they were not.an attemptto create probable.cause where none existed, and they did not tend to mislead the magistrate as to the veracity of the facts included in the search warrant affidavit, Furthermore, the affidavit would have provided probable cause even ifit had contained a disclosure of'the omitted information. As to his statement, the court properly found that Appellant did not invoke his right to remain.silent. Therefore, this appeal should be denied.

BY THE COURT:

August 2�L 20 I 9 �,2. ·.· TrlC: .. DATE. DONALD R. TOT ARb •.JlJDGE

ATTEST:

Copies: Travis S, Anderson, Esquire, Assis tam Qi strict Attorney Randall L Miller� Esquire; C::otinsel for. AppeH�rit

1:2.

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