Commonwealth v. Gonzalez
979 A.2d 879
Pa. Super. Ct.
2009
Check Treatment

*1 that such constituted “substance opinion necessarily required specialized

abuse” lay juror.11 of a

knowledge beyond that conclusion, In we find no merit to and, according- appeal

Amtrak’s issues on it judgment against affirm the entered

ly, in favor of Callahan. Judgment affirmed. Pennsylvania,

COMMONWEALTH

Appellee GONZALEZ, Appellant.

Jose

Superior Pennsylvania. Court

Submitted Jan. 2009. July

Filed Having request slip discerned no error or abuse of nied its to include on the verdict regarding separate categories discretion the future economic loss lines for the different claims, damages including we find no need to address Amtrak’s claimed future lost earn- complaint improperly ings. that the trial court de- *3 Lebanon,

Timothy Engler, T. for appel- lant. in a calm and with the Defendant Eisenhart,. spoke Assistant District L.

Nichole Commonwealth, non-threatening tone of voice. Lebanon, Attorney, appellee. with the De- During his conversation fendant, if the De- Fisher asked BOWES, SHOGAN BEFORE: The De- had and cash. fendant KELLY, JJ. Almost responded that he did. fendant any immediately, prompting and without BOWES, J.: BY OPINION Fisher, the Defen- of Officer part on the Gonzalez, and crack a wad cash appeals pulled Jose dant Appellant, *4 pockets presented of three to of his and of sentence cocaine out judgment from the Officer Fish- imposed on March items to Officer Fisher. years incarceration the six 2008, any- at a if he had 19, following his conviction er asked the Defendant cocaine, The Defendant volunteered pos- thing else. possession trial of bench heroin, the drugs of cocaine there were more inside possession session deliver, vol- possession again, to Once the Defendant with intent dresser. untarily presented affirm. addi- drug paraphernalia. We retrieved He then tional to Officer Fisher. aptly 2 The trial court summarized yet closet and retrieved an- went into a the case as follows: facts of present cocaine in order to bag other 12, 2007, City Po- April On [Lebanon Fisher. bag to Officer an Brett Fisher traveled to Officer lice] during no time this encounter did At building Eighth at 221 North apartment partner Officer Fisher or his dis- either looking He was Ismael Street. any weap- or other play handguns their reported who to be a ten- Oquendo, At no time did Officer Fisher or his on. ant of Room 14. Officer Fisher knocked Defen- place their hands on the partner 14, on Room but no one answered. any him in physically dant or restrain standing Fisher was While Officer At no time did Officer Fisher way. Room hallway adjacent to threaten the Defendant or partner his opened. The Defen- door to Room 15 accusatory him in an man- interrogate dant, Gonzalez, appeared at Jose fact, a In Officer Fisher utilized ner. doorway. engaged Officer Fisher voice calm and conversational tone of about Defendant in conversation throughout the encounter. During Oquendo. whereabouts of Mr. 10/24/07, 2- Opinion, at Suppression Court conversation, Officer Fisher saw a this 3. on bag sandwich with a “twisted” end room.

the bed within the Defendant’s to pretrial filed a motion Fish- upon experience, Based his Officer 16, 2007, which the suppress August on bags that sandwich twisted er was aware following hearing on trial court denied contained con- in such a manner often Appellant proceeded August trolled substances. was convicted of the afore- bench trial and January mentioned offenses on the Defendant: Officer Fisher asked 19, 2008, imposed March the trial court if we come in? We want On you “Do mind years imprison- of three to six you your neighbor.” about a sentence to talk with followed, Ap- wherein appeal At ment. This responded The Defendant “sure”. trial court erred argues that the partner pellant Fisher and his point, this suppression motion. denying pretrial his apartment entered the Defendant’s ¶ 4 presented When with a chal brief at 18. He avers that police en- lenge to the denial aof motion to suppress tered his room illegally, maintaining that evidence, we are limited to determining he subjected to a custodial interroga- whether the trial court’s factual findings tion or investigative detention without rea- are supported by the record and whether suspicion sonable and without Miranda1 legal conclusions drawn from those warnings. findings are correct. See Commonwealth ¶ 7 The trial rejected court this claim Williams, 941 A.2d 14 (Pa.Super.2008) and concluded that the entire interaction (en banc). In review, conducting our we between Appellant and Officer Fisher was may consider only the evidence of the a mere encounter. The uncontradicted prosecution and so much of the evidence testimony of Officer Fisher established for the defense as remains uncontradicted that on April 2007, Officer Fisher and when read the context of the record as a partner, City Lebanon Police Officer whole. Graham, Commonwealth v. 949 Cory Gebhard, both of whom were in full 941-42 (Pa.Super.2008), appeal uniform displaying their badges, knocked granted on other grounds, 963 A.2d 901 on the door of room 14 at 221 North 8th *5 (Pa.2008). If the trial court’s factual find Street during a follow-up investigation of ings supported record, are by the we are Ismael Oquendo. N.T., 8/30/07, at 4-6. facts; bound however, those we may Appellant, occupant the adjacent room reverse suppression the court when it 15, opened his door and stood there while draws erroneous legal conclusions from guest his exited and walked down the hall. those factual findings. Commonwealth v. Id. As Appellant stood in open the door- Booze, 953 A.2d 1263 (Pa.Super.2008); In way, Officer Fisher could see ninety per- V.H., re (Pa.Super.2001). A.2d 976 cent of the room and observed a “plastic ¶ 5 At suppression the hearing in this sandwich bag that was twisted ... in a case, only the presented evidence was long that manner and then it was like in a Fisher, of Officer who testified for the squiggly.” Id. at 7. Officer Fisher en- Commonwealth. As Officer Fisher’s testi gaged Appellant in conversation about Mr. mony uncontradicted, was no relevant Oquendo, ultimately asking Appellant if facts are in dispute. To the extent the the officers could “step inside the room presented issue purely law, is a question of because I didn’t really want to talk about our standard of review is de novo. Com person the in Room 14 out in the hallway.” monwealth v. Worthy, 598 Pa. 957 Id. at Appellant 8. “said we could.” Id. (2008) A.2d 720 (citing Commonwealth v. Both officers entered Appellant’s room; Beaman, 583 Pa. 880 A.2d 578 Officer room, Fisher stood inside the and Officer Gebhard stood behind him. Id. ¶ at ease, 6 In the instant Appellant con- 8, 18, 26. Officer Fisher described Officer tends that drugs the drug and parapherna- Gebhard’s position as “standing in the lia found in his room and his statements to open doorway just right like inside the police should have been suppressed be- threshold.” Id. at 10.2 Appellant cause pressured, “was or other- coerced, ¶ wise into consenting to a search of 8 When Officer Fisher stepped inside his room and his person.” room, the he could see the portion of the Arizona, 1. Miranda v. 384 U.S. Contrary 86 S.Ct. Dissent, 2. to the assertion of the (1966). 16 L.Ed.2d 694 Officer Fisher specifically testified he and Of- ficer Gebhard did not block the doorway. N.T., 8/30/07, at 14-15. in the more any if he had again him the from visible been not had room that Fisher Officer 13. Then Id. at room.” twist- to the In addition at 9. hallway. Id. me to tell have “he didn’t Appellant told a calcu- bed, he observed the baggie on ed the rest go get Just to they were. where tabletop. Offi- aon blade razor lator and 14. Id. at to me.” them give and of them I’ve seen noted, past “In cer Fisher removed closet and opened involved that are in houses items similar from ... crack cocaine bag of large “a all combined I “when and dealing,” drug a flannel shirt pocket shirt I experience[,] my past from three [items] At 13-14. Id. at the closet.” hanging amounts any large had if he him asked placed Fisher Officer point Ap- at Id. drugs.” on him cash him transported car and wad of folded large “a removed pellant Id. at Department. Police Lebanon [the of what orange bag single and a cash Id. cocaine.” to be crack believed officer] levels testified evaluated Fisher trial court 11 The 10, 11. citizenry Id. at own.” his and it on between “produced interaction suppres- by the instant occurrence questioning that the Upon pointed concluded continued, just “He constitutes court, officer for what “a paradigm sion ” that stuff Court Suppression that he did ... encounter.’ responded ‘mere pockets.” 10/24/07, of his it out at 7. he took Opinion, then at 11. are Id. that there has noted This Court be- of interactions categories basic three Offi- experience, past upon 9 Based The first the police. citizens tween *6 large “the that concluded cer Fisher request a mere encounter category, bag of tiny little that money and of amount be information, need to not does blade” and razor the calculator crack and suspicion, any level of by supported drugs more probably “there indicated compulsion to carry any official not does Id. at apartment.” somewhere category, The second respond. stop or Appel- to Therefore, remarked the officer detention, from derives investigative an cash, a just that’s of lant, a lot “[T]hat’s Ohio[, 88 S.Ct. 392 U.S. Terry v. make sense it doesn’t drugs[,] little bit of (1968) progeny: its ] 20 L.Ed.2d you Do have. you all that that’s to me supported if is lawful a detention such Appel- at 11-12. Id. drugs?” more because, al- suspicion reasonable ... then head in shame his “hung lant stop to a suspect a subjects it though in the dress- more there was that indicated detention, not it does period and a over “looked The officer at 12. er.” Id. as to coercive conditions such involve ... what There was the dresser.... [at] of an equivalent the functional constitute bag, the plastic a to be similar appeared arrest or category, the final The arrest. Id. top.” out the hanging itof top portion detention, supported must be custodial Fisher asked at 11-12. Officer cause. by probable draw- of the drugs out get the “if I could A.2d Moyer, “a contained The dresser Commonwealth at 13. er.” Id. (en banc) (quoting (Pa.Super.2008) “a crack cocaine” bags of few more Smith, Pa. Id. heroin.” partial bundle 5, 10 that assessed patrolman The court the trial with agree 12 We that was to me seem “things still didn’t began as herein the interaction that be for should quantity what the it that encounter; agree not we do mere I asked had. money he quantity remained one. Police premis- were on the contact with. I if I asked step could looking es for Appellant’s neighbor, Ismael inside the room because I really didn’t Oquendo. They did not make contact with want to talk person about the in Room individual but instead encountered 14 out in the hallway. apartment his when he at Appellant Id. police admitted to his opened his door as stood knocking room. It was at point that Officer Oquendo’s at Mr. room. Officer Fisher Fisher drug observed paraphernalia on the inquired about Mr. Oquendo and asked tabletop and asked if he had Appellant if they could enter drugs or money. Appellant produced apartment both rather than speak about Mr. Oquendo in from his pocket. the hallway. Appellant, who decline, was free to admitted the officers ¶ 14 The Dissent also states that Appel- apartment. into his lant’s admission of police to his room ¶ 13 The Dissent “police states that offi- “could not have been intelligent or volun- sought cers entry ... because they ob- tary, as [his consent] obtained under served sandwich bag with a twisted pretext false of the search for Oquen- end-” Dissenting Opinion at 891. The do-” Dissenting Opinion at 891. There record does not support this factual asser- is absolutely nothing in the record that tion. Officer Fisher specifically testified supports that there was a pretext” “false only his intention was to locate the involved herein. Officer Fisher was the occupant of room but Appellant, who only witness provided who testimony at was the occupant of opened room suppression hearing. As supra, noted N.T., 8/30/07, door. at 5. When Appel- in conducting our review of a trial court’s guest lant’s exited and walked down the motion, denial of a suppression may we hall, Appellant door; did not shut his rath- only consider the evidence prose- of the er, he stood there talking with his cution and so much of the evidence for open. door Id. at 7. When what asked he the defense as remains uncontradicted observed as he stood the hallway, Offi- when read in the context of the record cer Fisher stated: *7 as a whole. Graham, Commonwealth v. I could see approximately percent 90 of supra. The uncontradicted evidence is the room. It tidy was a room. It patrolman that the wasn’t, step asked to know, inside you in shambles. The bed Appellant’s room to avoid inquiring made. In the about middle of the bed Oquendo in plastic hallway. there was a the bag, plastic a sand- wich bag. ¶

Q. you Could describe plastic that 15 At this point, police, who were bag? sandwich lawfully on the premises, viewed the drug A. It was a plastic bag paraphernalia table, sandwich that on the in plain view.

was twisted. It was like plain twisted The view doctrine permits the war- long a manner and then it was like rantless seizure of an object in plain view in a squiggly. (1) when: an officer object views the from (2) Id. Officer a lawful vantage point; Fisher did not claim it is that he immedi suspicious became ately apparent or desired entrance to him that object to the is the room (3) to see what else he incriminating; could ob- the officer has a continued, serve. He right lawful of object. access to the Com I Collins, started to ask him about person 1041, the in monwealth v. 950 A.2d 1045 (en Room 14 that I was there to try to make (Pa.Super.2008) banc )(citing Com- 886 when hearing, suppression the 238, At both. McCree, Pa. 924 592 v.

monwealth whether inquired pointedly court (2007)). the trial 621, 628-29 A.2d pro- to Fisher directed the challenge ¶ to sole Appellant’s 16 not, contraband, “I did replied, he the duce as- doctrine view plain the of applicability own. it on his produced He Honor. Your two the first that the conclusion sails ... that he did responded just He reject his claim. met.3 We were prongs it out of he took then stuff and that Appel- that have established already As we at 11. Id. pockets.” to his room police admission lant’s par- view of the Fisher’s voluntary, Officer ¶ record establishes recap, this To 19 vantage lawful was from aphernalia lawfully Appellant’s were 839 English, v. See Commonwealth point. the offi- admitted room, in that (since justi- the (Pa.Super.2003) 1136 A.2d Amendment Fourth voluntarily. The cers by con- already occurred intrusion fiable searches free of unreasonable to be right occasioned sent, intrusion further no D.M., 566 seizures, Interest In the in plain which was of evidence seizure (2001), violat- is not 445, 1161 781 A.2d Pa. view). right provides of the the holder ed when second challenge to the Appellant’s 17 to enter voluntary consent with the officer nature of incriminating prong, v. See, e.g., Commonwealth premises. immediately was not tabletop on the items 630, 634 Strader, Pa. 593 meritless. also is police, apparent (warrantless (2007) presumptively seizure drug para- requirement is no There Amend- the Fourth under unreasonable only as such can be identified phernalia estab- specifically a few subject to ment pow- “white accompanying is when there as such lished, exceptions, well-delineated on leafy substances green der or consensual, v. Horton it is when Califor- it, Appel- avers. as around” 110 nia, S.Ct. 496 U.S. Thus, claim is sum- this at 20. lant’s brief (1990)); L.Ed.2d view of Officer Fisher’s marily dismissed. (Pa.Su- Yancoskie, A.2d he after the table occurred items on (Fourth recognizes Amendment per.2006) apartment entered lawfully entry and search valid warrantless experi- consent, training and and his with voluntary obtain the when premises nature incriminating suggested ence Georgia v. (citing occupant) anof consent Newton, 943 items. Commonwealth 103, 126 S.Ct. Randolph, 547 U.S. (Pa.Super.2007). L.Ed.2d entering Appel- upon clear that 18 It is *8 ¶ Moreover, initial 20 room, experience Fisher’s lant’s money also and drugs the of production detection, n.t., in narcotics training and under the voluntary. Where entirely was of presence with the 8/30/07, coupled at here, lawful, as volun- is encounter lying used bed and items on the baggie a twisted focus. the exclusive becomes tariness distribution, Appel- that indicated drug in Bell, 267 871 A.2d v. Commonwealth activi- drug illegal in may be involved lant has The Commonwealth (Pa.Super.2005). Appellant simply asked Fisher ty. Officer con a defendant prove to that burden large the or drugs possessed he whether and seizure. search to a warrantless sented cash, produced Appellant and amounts We confine our prong. a third trine includes plain erroneously sets forth Appellant however, argument Ap- only the analysis, doctrine, encompasses contending it view at 19. Appellant’s brief above, forth. See pellant sets doc- prongs. As noted only two

887 in a free uncon- Herein, pocket as and police did not conduct search Id. choice. indeed, strained there no need to Appellant; voluntarily produced Appellant do so as ¶ 22 Appellant Once revealed that he “To person. contraband on his illegal cash, large had cocaine and a amount of voluntary [or consensual search establish however, the nature of the interaction be- seizure], prove must the Commonwealth Appellant police changed. tween and Fol- an product that a consent is the essen- lowing production, Appel- that we believe free and unconstrained choice—not tially in equivalent lant was the functional coercion, or express the result of duress or In police custody. determining Ap- that implied, or a will overborne —under in pellant custody, was not the Common- suppression at wealth court totality of the circumstances.” Id. and focused Strickler, upon Officer Fisher’s revelation that his Pa. (citing Commonwealth conversational, tone was he did not threat- 884, 901 As the 757 A.2d Appellant, gun, en he never drew his Supreme stated in United States Court placed Appellant he never in handcuffs. Bostick, 439, 111 Florida v. 501 U.S. N.T., 8/30/07, Indeed, pa- at 12-15. (1991), “The S.Ct. L.Ed.2d trolman “coopera- described as Amendment unreason- proscribes Fourth “polite” tive” and and “one of the nicest seizures; able it does not searches people I’ve come into contact with at 221 voluntary cooperation.” proscribe North at sup- 8th Street.” Id. 15. The pression opined court that the absence of ¶ Thus, supports the record that aggressive, police confrontational tactics in meeting, Appellant a chance vol following compelled this scenario its conclusion that room; untarily police admitted to his in custody was not and therefore therefore, police legitimately were on the protections “not entitled to constitutional entry, premises. Upon their the officers such as the one articulated in Miranda.” lawfully drug paraphernalia viewed 10/24/07, Suppression Opinion, Court at 8. conjunction plain triggered, view reasons, following For we do not training experience, with their police agree. Appellant possessed contra belief inquiry concerning The band. innocuous key 23 The difference between cash, any drugs or whether had investigative an and a custodial detention any reference to items without is that the latter “involves such coercive room, viewed in the could not be described conditions as to constitute the functional not interrogation. Appellant equivalent as of an arrest.” Commonwealth Pakacki, any way Pa. placed coerced under du (2006). Moreover, ress. His revelation of cash and crack voluntary. Appellant cocaine was free and during Statements made custodial in- acknowledge fails to that the instant inter terrogation presumptively are involun- progression, insisting only action was a tary, unless the accused is first advised apart not admit to his he did rights. of ... Miranda *9 therefore, voluntarily, (Pa.Su- he was in 574, ment and v. DiStefano, 782 A.2d 579 custody denied, 716, from the time the officers per.2001), appeal 569 Pa. (2002). have determined entered his room. We 806 A.2d 858 Custodial interro- Appellant voluntarily gation “questioning by admitted is initiated law totality apartment person to his and under the enforcement officers after a has circumstances, produced custody the and taken into or cash been otherwise

888 in ing person custody action in whether is for

deprived of freedom of [his] Miranda, way.” supra at any significant purposes Miranda must be evaluated on 444, 1612, at 16 L.Ed.2d at 706. 86 S.Ct case-by-case regard with due for basis safeguards “The come into Miranda involved); ... fact that facts defendant person custody a is play whenever investigation was focus of is relevant for subjected express questioning to either (whether determination of defendant equivalent.” or its functional Common “custody” require was in but does not Gaul, 175, 180, v. Pa. 912 wealth 590 per warnings). se Miranda — denied, 252, (2006), cert. way, police Said another detentions U.S.-, 43, 128 S.Ct. 169 L.Ed.2d 242 when, become custodial under the to- (2007). Thus, “Interrogation occurs circumstances, tality of the the condi- where the that their police should know tions duration of the detention and/or reasonably likely words or actions are become so coercive as to constitute an incriminating response elicit from the equivalent the functional of arrest. suspect.” Ingram, Commonwealth Mannion, Thus, supra at 200. the ulti 264, (Pa.Super.2002), ap 814 A.2d inquiry determining mate for whether denied, 671, peal 573 Pa. 821 A.2d 586 custody an is in for (2003). individual Miranda “In whether evaluating Mi purposes is “whether there was ‘for warnings necessary, randa were a court mal arrest or restraint on freedom of must totality consider circum Gaul, movement’ of the degree ...” associated with supra. stances. a formal arrest.” v. Pa person Whether a in custody is for kacki, 519, 587 Pa. 901 A.2d purposes depends Miranda on wheth- (2006) (quoting Stansbury person physically er the is denied of Califor nia, 318, 322, U.S. S.Ct. any signifi- freedom of action [his] way cant in a 128 L.Ed.2d 293 placed is situation reasonably which [he] believes that Williams, supra Commonwealth v. at 30- freedom of action or movement [his] is interrogation. restricted ¶ 24 We believe that the continued Moreover, the inter- test custodial interrogation Appellant pro after he rogation depend upon does not bag duced the wad of of crack cash subjective intent of the law enforce- equivalent constituted the functional of an Rather, ment interrogator. officer purposes. Significant arrest for Miranda test focuses on whether the indi- ly, being interrogated reasonably vidual when Officer Fisher was asked whether believes [his] freedom of action is be- he-would have allowed to leave ing restricted. produced money the room once he answered, Williams, drugs, patrolman “No.” Clayton Commonwealth v. (1994) N.T., 8/30/07, 61, 74, 539 Pa. at 26.4 Both officers 650 A.2d (internal omitted). were in uniform displaying “badge citations See also Mannion, authority.” Commonwealth v. Id. at 4. Officer Fisher stood banc) (en (stat- (Pa.Super.1999) within four or five feet of while emphasize, contrary 4. We to the Dissent's This fact is one more indicator of how the representation, that Officer Fisher testified changed Appel- tenor of the interaction after Appellant produced that it was after the wad voluntary production of cocaine and lant’s . of cash cocaine that would not pocket. cash from his N.T., 8/30/07, free to at been leave.

889 Gebhard, Appellant to armed, tinuing questions also constituted Officer fully while armed, doorway.” Id. at interrogation. Appellant in the an had voluntari “remained in his resi- 12, was located crack Appellant ly bag along revealed of $20.00 dence, him with nowhere thereby leaving that with a wad of cash indicated to Officer police. contact with the Fisher, to terminate go to drug para when combined with however, the continued importantly, Most phernalia baggie storing con represented sub- Appellant of questioning traband, have a larger must designed to elicit a coercion that was tle Thus, quantity drugs possession. of in his given response. patrolman should have known that his questions point reasonably at that were ¶ interrogation 25 does Custodial likely incriminating response to elicit an police “make a formal require not from v. Appellant. Commonwealth McAli arrest, to make police nor that the intend (interro 272 ley, (Pa.Super.2007) 919 A.2d Ingram, v. an arrest.” Commonwealth gation under Miranda refers to both ex 264, (Pa.Super.2002), appeal de A.2d press questioning and words or actions on (2003). nied, 671, A.2d 586 573 Pa. part they know or should interrogation has been defined Custodial reasonably likely know are to elicit an initiated law enforce “questioning as incriminating response suspect). from has been tak person ment officers after deprived otherwise custody en into or judice, 27 In the case sub where any significant in his freedom of action armed stood within original) in way.” (emphasis Id. at 271 him, in apartment proximity close Hoffman, v. (quoting Commonwealth pointed questions Ap- the officer’s followed (1991)). 530, 737, 744 Pa.Super. 589 A.2d pellant’s production of contraband from his the police occurs where “Interrogation person, persistent question- we believe the know that their words or actions should ing about the existence of more an incrimina reasonably likely are to elicit under that were occurred conditions rea- ting response suspect.” Ingram, from the sonably likely to an incriminating elicit (citing Hughes, v. supra Commonwealth Thus, response. sup- the instant record 355, 536 Pa. 639 A.2d 763 ports the conclusion that Officer Fisher ¶ 26 Given the circumstances of this given Appellant Miranda should case, was in his own room where warnings Appellant freely produced once to go, Appel and therefore had nowhere and crack from pocket. the cash his See that his free reasonably lant could believe Dewar, Pa.Super. v. action was restricted. See Com dom of (1996) (.Miranda 674 A.2d Eichinger, 591 Pa. monwealth rights suspect attached where cus- (2007) (test for deter 1133-34 tody subjected equivalent to functional custody is in “is mining suspect whether a “i.e., express questioning interroga- physically deprived he is whether tion”). placed any significant way freedom however, finding, 28 This does reasonably believes a situation in which he not conclude our review of the issue. Once action or movement is that his freedom of voluntarily produced the contra restricted,” (citing Commonwealth Chacko, inevit person, 314 band on his the doctrine of 500 Pa. (1983)). Moreover, discovery5 applicable became since Fisher’s con- able doctrine, covery it is clear that we can affirm Although nor neither the Commonwealth on an alternative basis. See the inevitable dis- the trial court the trial court referenced

890 reject

clearly, police ultimately logic, experience, would have dis- “would and com- 444, mon sense.” Id. at drugs in the drawer and in the S.Ct. covered the discovery ex- closet. inevitable Under ¶ exception exclusionary 31 This to the rule, exclusionary the fact ception to rule has been invoked on numerous occa- was obtained as a challenged evidence by Pennsylvania sions appellate courts as a government conduct illegal result of does was, admitting basis evidence that or inquiry into whether the evi- not end the been, was claimed to have illegally ob- at trial. dence was admissible by government tained or other See, investigators. e.g., Commonwealth v. Pennsylvania recog courts (Pa.Su- Winkle, 1280, Van 880 A.2d discovery nize the doctrine first inevitable per.2005) (holding that evidence obtained by Supreme States described United after permissible scope officer exceeded of Williams, 431, in Nix v. Court U.S. weapons frisk was admissible because it (1984). 104 S.Ct. 81 L.Ed.2d 377 within discovery excep- fell the inevitable Ingram, supra; v. Commonwealth see also tion); Ingram, supra Commonwealth v. Jones, v. 928 A.2d 1054 Commonwealth (deeming evidence obtained as a result of (Pa.Super.2007), appeal granted, 597 Pa. involuntary confession admissible because (2008). 58, 950 A.2d 265 That doctrine discovered); inevitably it would have been provides that “evidence which would Miller, v. 555 Pa. Commonwealth sufficiently purged been discovered was (1999) 900 n. 5 (citing Nix v. original illegality to allow admission of Williams, supra, noting that even if Ingram, the evidence.” Commonwealth v. the evidence found in the defendant’s [supra] [I]mplicit at 272.... in this doc seized, illegally home had been it “would trine is the fact that the evidence would have been because it inevitably admissible despite have been discovered initial discovered”); would have been Common- Jones, illegality. supra at 1060-61. Albrecht, v. wealth 554 Pa. (1998) (in 693, 702 n. 11 claim decided If prosecution can es constitutions, under federal and state hold- by preponderance

tablish of the evi ing that even if warrantless search of de- that the illegally dence obtained evidence home improper, sup- fendant’s had been ultimately inevitably or would have been pression required not because the evidence means, by discovered lawful then the evi discovered); inevitably would have been Williams, dence is admissible. Nix v. Garcia, 443 Pa.Super. Commonwealth supra. purpose “The of the inevitable (1995) (defendant 414, 661 A.2d 1388 not discovery setting rule is to block aside suppression entitled to in his convictions would have been obtained pocket they inevitably because would have without misconduct.” Id. at 444 n. police lawfully been discovered since were Thus, 104 S.Ct. 2501. evidence that ul him permitted to search incident to his timately inevitably or would have been arrest); Hoffman, Commonwealth v. su- recovered lawful means should not be pra (finding evidence recovered as a result suppressed despite the fact that its actual illegal search of defendant admissible recovery accomplished through illegal it inevitably because would have been dis- covered); Suppressing actions. Id. evidence in such Speaks, cases, (1986) (evi- it ultimately inevitably where Pa.Super. 505 A.2d 310 lawfully recovered, would have regarding discovery marijuana been dence Bostick, (Pa.Super.2008). Commonwealth v. 958 A.2d 543 *12 properly defendant’s residence clearly admitted had finding shifted from Mr. rule). discovery under inevitable Oquendo, to investigating Appellant. Nev- ertheless, officers, police in full uni- ¶ Appellant produced 32 Once the wad form and displaying their “badge of au- cocaine, of cash crack bag Offi thority,” under the ruse of discussing the probable cer Fisher had cause to arrest Oquendo whereabouts of Mr. in private, him supporting and had facts issuance of a permission obtained his warrant to search to enter. Appellant’s apartment, whereby he inevitably would have discov ¶2 The majority’s learned affirmance ered the other items of contraband in Ap heavily relies on voluntary consent of pellant’s room. See Pa entry to the police of the into his kacki, (once supra at 989 n. 7 defendant (See apartment. Majority Opinion, at 885- stated he marijuana pipe had and removed 87). However, for consent to an otherwise pocket, police it from his officer would illegal valid, search to be the consent must arrest); have probable had cause to Com be unequivocal, specific, and voluntary. It monwealth v. Murphy, 916 A.2d 679 only is where there is an intentional relin- (court (Pa.Super.2007) would examine to quishment or abandonment of a known tality of circumstances determine right or privilege that an effective waiver probable whether cause for issuance of can be found. The subject of a search exists). search warrant As the Nix Court must be made aware of his rights against a stated, physical “Exclusion of evidence warrantless search for a waiver to be intel- inevitably would have been discovered ligent. Gibson, See Commonwealth v. nothing adds to either the integrity or (1994). Pa. fairness of a criminal trial.” Nix v. Williams, supra at 104 S.Ct. 2501. ¶ Here, Appellant’s consent could not Accordingly, Appellant’s sup motion to intelligent been or voluntary, as it press properly denied. See Common was obtained under the false pretext of the wealth Ingram, supra (despite Miranda search for Oquendo, with a show of author- violation, where inevitably evidence would ity by armed, two police uniformed offi- have been discovered in search incident to Furthermore, cers. when the en- arrest, suppress motion to properly room, tered Officer Fisher stood inside the denied). and Officer Gebhard stood behind him “in ¶ Judgment of sentence affirmed. the open doorway just right like inside the 883). (Majority threshold.” at Two po- Judge KELLY a Dissenting files licemen stood between and his Opinion. door; he reasonably could infer he was not KELLY, DISSENTING OPINION BY go. Therefore, free to at the time the J.: police entered and blocked Appellant’s 1 The sought entry officers into' exit, he was effectively police custody Appellant’s apartment because they ob- and should have received Miranda warn- bag served a sandwich with a twisted end ings. which in experience their was used to con- ¶ 4 I Because conclude However, Appellant’s

tain controlled they substances. Therefore, saw consent to the search nothing investigation more. at time, although they was not knowing voluntary, lacked a warrant or and his probable cause to search statements were made without the benefit apartment, the investigation receiving focus of their warnings, Miranda I believe should statements and the evidence Therefore, I re- suppressed.

have been

spectfully dissent. *13 BIESE, Appellee

Tracy L. BIESE, Appellant.

Lee C. Pennsylvania.

Superior Court 9, 2009.

Argued June July

Filed