J. S71002/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

NATHAN EDWARD BROWN, : No. 885 WDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, December 16, 2013,

in the Court of Common Pleas of Allegheny County

Criminal Division at No. CP-02-CR-0000658-2013

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 19, 2016

Nathan Edward Brown appeals from the judgment of sentence of 

December 16, 2013, following his conviction of drug charges. We affirm the 

convictions, but vacate and remand for re-sentencing. 

On December 12, 2012, the Pennsylvania 

Bureau of Probation and Parole declared [appellant] 

delinquent in his parole and placed him on absconder 

status. On January 8, 2013, a state parole agent 

and local police went to [appellant]’s registered 

residence because of his parole status and an active 

warrant for his arrest.[1] Once at the home, 

[appellant]’s sister allowed law enforcement inside. 

The sister said [appellant] was in his bedroom and 

the agent and the police went to the room. Upon 

entering the room, [appellant] was placed in 

handcuffs for officer safety. [Appellant] said a gun 

 

1 The arrest warrant was based on an allegation that in the early morning 

hours of December 23, 2012, appellant robbed Ashley Munda (“Munda”) and 

Sandra Leski (“Leski”) at gunpoint. 
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was in a book bag under the bed.[2] The police 

found the bag and inside it a .38 caliber revolver 

along with 27 stamp bags of heroin.

Trial court opinion, 2/23/15 at 1.

On October 7, 2013, following a jury trial, appellant was found guilty 

of one count each of possession of a controlled substance (heroin) and 

possession with intent to deliver (“PWID”). Appellant was found not guilty of 

two counts of robbery and one count of burglary. An additional charge of 

possession of firearms prohibited was severed prior to trial.3 On 

December 16, 2013, appellant was sentenced to 21⁄2 to 5 years for PWID; 

possession merged for sentencing purposes. Appellant filed a timely 

post-sentence motion which was denied by operation of law on April 29, 

2014. A timely notice of appeal was filed on May 29, 2014. Appellant 

complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has 

filed a Rule 1925(a) opinion.4 

Appellant has raised the following issues for this court’s review:

 

2 Appellant’s statement was made in response to questioning by his parole 

agent.

3 Appellant was found guilty of the firearms charge and was sentenced on 

September 3, 2014, to serve 4 to 8 years’ incarceration, concurrent with his 

sentence on this case. Appellant filed an appeal on February 13, 2015, at 

docket number 277 WDA 2015. That case has not yet been assigned to a 

panel for disposition, as this court is still awaiting the original record.

4 Appellant received several extensions of time within which to file his 

concise statement. (Docket #32, 34.)
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I. Whether appellant’s sentence of two and 

one-half (21⁄2) to five (5) years for one (1) 

count of [PWID] was excessive[?]

II. Whether the evidence in this matter was 

legally insufficient to sustain appellant’s 

convictions of [PWID] and possession of a 

controlled substance[?]

III. Whether the trial court erred in denying 

appellant’s motion to suppress the evidence[?]

IV. Whether the trial court erred in denying 

appellant’s post-sentence motions without a 

hearing[?]

Appellant’s brief at 8 (capitalization omitted).

We will address these issues seriatim. In his first issue on appeal, 

appellant argues that the trial court failed to state adequate reasons on the 

record for imposition of an aggravated range sentence.

A challenge to the discretionary aspects 

of a sentence must be considered a 

petition for permission to appeal, as the 

right to pursue such a claim is not 

absolute. When challenging the 

discretionary aspects of the sentence 

imposed, an appellant must present a 

substantial question as to the 

inappropriateness of the sentence. Two 

requirements must be met before we will 

review this challenge on its merits. First, 

an appellant must set forth in his brief a 

concise statement of the reasons relied 

upon for allowance of appeal with respect 

to the discretionary aspects of a 

sentence. Second, the appellant must 

show that there is a substantial question 

that the sentence imposed is not 

appropriate under the Sentencing Code. 

That is, [that] the sentence violates 
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either a specific provision of the 

sentencing scheme set forth in the 

Sentencing Code or a particular 

fundamental norm underlying the 

sentencing process. We examine an 

appellant’s Pa.R.A.P. 2119(f) statement 

to determine whether a substantial 

question exists. Our inquiry must focus 

on the reasons for which the appeal is 

sought, in contrast to the facts

underlying the appeal, which are 

necessary only to decide the appeal on 

the merits. Commonwealth v. Ahmad, 

961 A.2d 884, 886-87 (Pa.Super.2008) 

(citations, quotation marks and footnote 

omitted).

Commonwealth v. Brooks, 2013 WL 66474, at *3 

(Pa.Super. Jan. 7, 2013) (italics in original). 

Commonwealth v. Hill, 66 A.3d 359, 363-364 (Pa.Super. 2013). In 

addition, in Commonwealth v. Mouzon, 812 A.2d 617, 627-628 (Pa. 

2002) (plurality), our Supreme Court stated that a claim a sentence which is 

within the statutory limits is excessive can raise a substantial question.

We determine that appellant has substantially complied with 

Rule 2119(f). The Commonwealth claims that appellant did not include the 

requisite Rule 2119(f) statement in his brief, and therefore, his discretionary 

aspects of sentencing claim is waived. (Commonwealth’s brief at 7.) See 

Commonwealth v. Davis, 734 A.2d 879, 882 n.4 (Pa.Super. 1999) (where 

the Commonwealth has specifically objected to its omission, the defect is 

fatal and this court is precluded from addressing the merits of appellant’s 

challenge). While it is true that appellant’s Rule 2119(f) statement is not 
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designated by a separate heading, he does include such a statement 

immediately before the argument portion of his brief. (Appellant’s brief at 

16-18.) Therein, appellant claims that his sentence fell within the 

aggravated range of the guidelines and the trial court failed to state reasons 

on the record justifying an upward deviation from the guidelines. (Id.) 

Such an allegation raises a substantial question for this court’s review. 

Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc) 

(“Where the appellant asserts that the trial court failed to state sufficiently 

its reasons for imposing sentence outside the sentencing guidelines, we will 

conclude that the appellant has stated a substantial question for our review.” 

(citation omitted)).

The matter of sentencing is vested within the sound 

discretion of the trial court; we only reverse the 

court’s determination upon an abuse of discretion. 

To demonstrate that the trial court has abused its 

discretion, the appellant must establish, by reference 

to the record, that the sentencing court ignored or 

misapplied the law, exercised its judgment for 

reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision. 

Moreover, 42 Pa.C.S.A. § 9721(b) provides that the 

trial court must disclose, on the record, its reasons 

for imposing the sentence.

Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.Super. 2004) 

(citations and internal quotation marks omitted).

The sentencing court is permitted to deviate 

from the sentencing guidelines; however, the court 

must place on the record its reasons for the 

deviation. In sentencing outside of the guidelines, 

the court must demonstrate that it understands the 
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sentencing guidelines ranges. Where the trial judge 

deviates from the sentencing guidelines . . . he must 

set forth on the record, at sentencing, in the 

defendant’s presence, the permissible range of 

sentences under the guidelines and, at least in 

summary form, the factual basis and specific reasons 

which compelled the court to deviate from the 

sentencing range. 

Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa.Super. 2009) 

(quotation marks and citations omitted). See also 204 Pa.Code § 303.13(c) 

(“When the court imposes an aggravated or mitigated sentence, it shall state 

the reasons on the record and on the Guideline Sentence Form . . .”); 

Commonwealth v. Johnson, 541 A.2d 332, 340-341 (Pa.Super. 1988), 

appeal denied, 552 A.2d 250 (Pa. 1988) (“when the court sentences 

outside the Guidelines, there must be a contemporaneous written statement 

of the reasons for the deviation from the Guidelines”), citing 

Commonwealth v. Royer, 476 A.2d 453, 458 (Pa.Super. 1984). “The 

failure to provide such a statement of reasons for the sentence imposed is 

reversible error requiring resentencing.” Johnson, 541 A.2d at 340 

(citations omitted).

With a prior record score of 4 and offense gravity score of 7, the 

guidelines for PWID were 18 to 24 months, plus or minus 6. Therefore, 

appellant’s sentence of 21⁄2 to 5 years was at the top end of the aggravated 
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range.5 At sentencing, there was no discussion whatsoever of the guideline 

ranges in this case. The trial court merely recited appellant’s criminal 

history, as follows:

Okay. I’m going to -- I want to put on the record, 

since there was a presentence report here, it just 

shows a criminal history as: At age 17, the 

Defendant, on May 20th, 2002, he was adjudicated 

delinquent. This was a receiving stolen property and 

a possession of a firearm by a minor. On 

February 27th, 2004, the Defendant was -- pled 

guilty in Washington County and was sentenced to 

eleven and a half to twenty-three months for a 

criminal conspiracy to commit robbery, a first-degree 

felony. And then on July 20th, 2004, guilty plea in 

front of Judge Zottola of Allegheny County, in which 

the charges were first-degree felony robbery, 

criminal conspiracy, robbery, and receiving stolen 

property, and the sentence was five to ten years, 

credit back to February 16th, ‘04, and to run 

concurrent with any other sentence. And in this one, 

it talks about the Defendant had a gun, produced a 

gun and pointed it at the victim. Then his most 

recent case comes up. So I just wanted to put that 

on the record. That -- if you have no comments, 

that’s fine.

Notes of testimony, 12/16/13 at 4-5. The trial court then imposed an 

aggravated range sentence of 21⁄2 to 5 years’ incarceration without 

elaboration or discussion of the applicable guideline ranges, nor do any 

reasons appear on the guideline sentence form. (Docket #19.) 

 

5 The Commonwealth requested a 5-10 year mandatory minimum sentence 

pursuant to 42 Pa.C.S.A. § 9712.1 (drug offenses committed with firearms). 

The trial court declined to impose the mandatory minimum sentence. (Notes 

of testimony, 12/16/13 at 8.) We note that Section 9712.1 has been held to 

be unconstitutional in its entirety. Commonwealth v. Valentine, 101 A.3d 

801 (Pa.Super. 2014), appeal denied, 124 A.3d 309 (Pa. 2015).
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Regarding appellant’s prior criminal record, that is already accounted 

for in the sentencing guidelines. “We have observed, ‘factors that are 

already used in Guidelines computations, including, inter alia, prior 

convictions, may not be used to justify an aggravated sentence.’” 

Commonwealth v. Whitmore, 860 A.2d 1032, 1037-1038 (Pa.Super. 

2004), reversed in part on other grounds, 912 A.2d 827 (Pa. 2006), 

quoting Commonwealth v. Johnson, 758 A.2d 1214, 1219 (Pa.Super. 

2000). “Pursuant to Johnson, a prior conviction which is already factored 

into a defendant’s prior record score can not [sic] be used to impose an 

aggravated minimum sentence under the sentencing guidelines.” Id. at 

1038. The record indicates that appellant had a prior record score of four 

and his prior convictions were already included in his prior record score. The 

trial court cannot double-count appellant’s prior convictions in imposing an 

aggravated sentence. Id.6 Therefore, it is necessary to vacate the 

judgment of sentence and remand for re-sentencing.

In his second issue on appeal, appellant challenges the sufficiency of

the evidence to support his convictions of possession of a controlled 

substance and PWID. Appellant argues that the Commonwealth failed to 

 

6 Even if appellant’s prior juvenile adjudications were not included in his 

prior record score, there is no indication the trial court was relying upon 

those in imposing an aggravated sentence. The trial court merely recited 

appellant’s criminal history as set forth in the PSI report. More importantly, 

the trial court did not address the applicable guideline ranges.
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prove constructive possession, where appellant was not in actual physical 

control of the heroin found under his bed.

As a general matter, our standard of 

review of sufficiency claims requires that 

we evaluate the record “in the light most 

favorable to the verdict winner giving the 

prosecution the benefit of all reasonable 

inferences to be drawn from the 

evidence.” Commonwealth v. 

Widmer, 560 Pa. 308, 744 A.2d 745, 

751 (2000). “Evidence will be deemed 

sufficient to support the verdict when it 

establishes each material element of the 

crime charged and the commission 

thereof by the accused, beyond a 

reasonable doubt.” Commonwealth v. 

Brewer, 876 A.2d 1029, 1032 

(Pa.Super.2005). Nevertheless, “the 

Commonwealth need not establish guilt 

to a mathematical certainty.” Id.; see 

also [Aguado, 760 A.2d at 1185] 

(“[T]he facts and circumstances 

established by the Commonwealth need 

not be absolutely incompatible with the 

defendant’s innocence.”). “[W]here no 

single bit of evidence will by itself 

conclusively establish guilt, the verdict 

will be sustained where the totality of the 

evidence supports the finding of guilt.” 

Commonwealth v. Thomas, 522 Pa. 

256, 561 A.2d 699, 704 (1989).

Commonwealth v. Kinard, 95 A.3d 279, 291-292 (Pa.Super. 2014) 

(en banc).

As appellant was not in physical possession of 

the contraband, the Commonwealth was required to 

establish that he had constructive possession of the 

seized items to support his convictions.
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Constructive possession is a legal fiction, 

a pragmatic construct to deal with the 

realities of criminal law enforcement. 

Constructive possession is an inference 

arising from a set of facts that 

possession of the contraband was more 

likely than not. We have defined 

constructive possession as conscious 

dominion. We subsequently defined 

conscious dominion as the power to 

control the contraband and the intent to 

exercise that control. To aid application, 

we have held that constructive 

possession may be established by the 

totality of the circumstances.

Commonwealth v. Brown, 48 A.3d 426, 430 

(Pa.Super.2012), appeal denied, 619 Pa. 697, 63 

A.3d 1243 (2013) (internal quotation marks and 

citation omitted). 

Id. at 292.

Instantly, the heroin was found inside a purple backpack underneath 

appellant’s bed. (Notes of testimony, 10/4/13 at 64-65.) Appellant 

admitted to police that the heroin was his and that he sold it on an 

as-needed basis when he was short of money. (Id. at 74-75.) Appellant 

stated that he obtained the heroin from a friend, but declined to identify 

him. (Id. at 75.) Appellant recently lost his job and told police that when 

he needed a few dollars, he would sell the heroin. (Id.) Appellant admitted 

to selling ten stamp bags of heroin over the last two months. (Id. at 87.) 

Clearly, the evidence was sufficient to support a conclusion that appellant 

constructively possessed the drugs. Appellant argues that his statement 

was not recorded and he was not given the opportunity to review it for 
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accuracy. (Appellant’s brief at 24.) However, on sufficiency review, “the 

entire record must be evaluated and all evidence actually received must be 

considered.” Commonwealth v. Valette, 613 A.2d 548, 549 (Pa. 1992). 

There is no merit to appellant’s sufficiency argument.

Next, appellant argues that the trial court erred in refusing to suppress 

physical evidence as well as appellant’s inculpatory statements to police. 

Regarding appellant’s initial statement to his parole officer that there was 

contraband under the bed, appellant argues that he was in police custody at 

that time and had not been properly Mirandized. Appellant also argues 

that his subsequent statement to police admitting possession of the gun and 

heroin was fruit of the poisonous tree and should likewise be suppressed. 

Regarding the evidence found in the book bag underneath his bed, appellant 

argues that the warrantless search was invalid because he was already 

handcuffed and in police custody and did not pose a threat. In addition, 

appellant claims that his parole officer was acting as a “stalking horse” for 

the police. According to appellant, the technical parole violations were 

merely a pretext to conduct a warrantless search in furtherance of the 

robbery investigation.

Our standard of review of a denial of suppression is 

whether the record supports the trial court’s factual 

findings and whether the legal conclusions drawn 

therefrom are free from error. Our scope of review 

is limited; we may consider only the evidence of the 

prosecution and so much of the evidence for the 

defense as remains uncontradicted when read in the 

context of the record as a whole. Where the record 
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supports the findings of the suppression court, we 

are bound by those facts and may reverse only if the 

court erred in reaching its legal conclusions based 

upon the facts.

Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa.Super. 2002) 

(en banc) (citations and quotation marks omitted).

61 Pa.C.S.A. § 6153 provides, in relevant part, the 

following:

(b) Searches and seizures authorized.--

(1) Agents may search the person and 

property of offenders in accordance 

with the provisions of this section.

(2) Nothing in this section shall be 

construed to permit searches or 

seizures in violation of the 

Constitution of the United States or 

Section 8 of Article I of the 

Constitution of Pennsylvania.

. . . .

(d) Grounds for personal search of offender.--

(1) A personal search of an offender may be 

conducted by an agent;

(i) if there is a reasonable 

suspicion to believe that the 

offender possesses 

contraband or other evidence 

of violations of the conditions 

of supervision;

(ii) when an offender is 

transported or taken into 

custody; or
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(iii) upon an offender entering or 

leaving the securing 

enclosure of a correctional 

institution, jail or detention 

facility.

(2) A property search may be conducted by 

an agent if there is reasonable suspicion 

to believe that the real or other property 

in the possession of or under the control 

of the offender contains contraband or 

other evidence of violations of the 

conditions of supervision.

. . . .

(6) The existence of reasonable suspicion to 

search shall be determined in accordance 

with constitutional search and seizure 

provisions as applied by judicial decision. 

In accordance with such case law, the 

following factors, where applicable, may 

be taken into account:

(i) The observation of agents.

(ii) Information provided by 

others.

(iii) The activities of the offender.

(iv) Information provided by the 

offender.

(v) The experience of agents 

with the offender.

(vi) The experience of agents in 

similar circumstances.

(vii) The prior criminal and 

supervisory history of the 

offender.
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(viii) The need to verify 

compliance with the 

conditions of supervision.

. . . .

61 Pa.C.S.A. § 6153(b), (d). 7

It is well established that a parolee has limited Fourth Amendment 

rights and a diminished expectation of privacy in exchange for his early 

release from prison. Commonwealth v. Curry, 900 A.2d 390, 394 

(Pa.Super. 2006) (citations omitted).

As this Court has stated:

Because the very assumption of 

the institution of parole is that the 

parolee is more likely than the ordinary 

citizen to violate the law, the agents 

need not have probable cause to search 

a parolee or his property; instead, 

reasonable suspicion is sufficient to 

authorize a search. Essentially, parolees 

agree to endure warrantless searches 

based only on reasonable suspicion in 

exchange for their early release from 

prison.

The search of a parolee is only 

reasonable, even where the parolee has 

signed a waiver . . . , where the totality 

of the circumstances demonstrate that 

(1) the parole officer had reasonable 

suspicion to believe that the parolee 

committed a parole violation; and (2) the 

search was reasonably related to the 

duty of the parole officer.

 

7

Formerly numbered 61 P.S. § 331.27a.
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Commonwealth v. Hunter, 963 A.2d 545, 551-52 

(Pa.Super.2008) (quotations and quotation marks 

omitted). The determination of whether reasonable 

suspicion exists is to be considered in light of the 

totality of the circumstances. See Commonwealth 

v. Shabazz, 18 A.3d 1217 (Pa.Super.2011).

Commonwealth v. Colon, 31 A.3d 309, 315 (Pa.Super. 2011), appeal 

denied, 42 A.3d 1058 (Pa. 2012).

Incident to a lawful arrest, a police officer may 

conduct a warrantless search of the arrestee’s 

person and of the area within the immediate control 

of the arrestee. The warrantless search acts to 

protect the arresting officer from weapons the 

arrestee may have access to, and prevents the 

destruction or concealment of evidence. 

Commonwealth v. Walker, 501 A.2d 1143, 1148 (Pa.Super. 1985), citing 

Commonwealth v. Timko, 417 A.2d 620, 622 (Pa. 1980); 

Commonwealth v. Long, 414 A.2d 113, 115 (Pa. 1980); Commonwealth 

v. Zock, 454 A.2d 35, 37 (Pa.Super. 1982), appeal dismissed, 465 A.2d 

641 (Pa. 1983). Parole officers have police powers including the power to 

arrest a parolee, without warrant, for technical parole violations. 

61 Pa.C.S.A. § 6152.8 See Commonwealth v. Miller, 450 A.2d 40, 42 

 

8 An agent is declared to be a peace officer and is 

given police power and authority throughout this 

Commonwealth to arrest without warrant, writ, rule 

or process any parolee or probationer under the 

supervision of the board for failing to report as 

required by the terms of his probation or parole or 

for any other violation of the probation or parole.

Id.
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(Pa.Super. 1982) (“When performing his normal duties, a parole agent is not 

required to obtain a search warrant. A parole officer has the authority to 

arrest parolees without a warrant for visible violations of parole.”) (citations 

omitted).

Appellant’s parole officer, Andrew Barnes (“Barnes”), testified at the 

hearing on appellant’s suppression motion. Barnes testified that in 

October/November 2012, appellant gave several positive urine tests for 

marijuana. (Notes of testimony, 5/30/13 at 17-18.) Appellant had also lost 

his job. (Id. at 16.) Because of the positive urine tests, appellant was 

referred to Addison Behavioral Care in Wilkinsburg for a drug and alcohol 

evaluation. (Id. at 19.) However, because he was no longer employed and 

was not covered by health insurance, appellant was instructed to apply for a 

medical card at the county assistance office to cover the costs. (Id.) Up 

until that point, appellant had been reporting to the parole office on a 

monthly basis; however, appellant was told to begin reporting every week. 

(Id.) Barnes testified that appellant stopped reporting in December 2012 

and was declared delinquent effective December 12, 2012. (Id. at 19-20.)

On January 8, 2013, accompanied by Penn Hills police officers, Barnes 

attempted to locate appellant at his approved residence at 114 Clinton 

Drive. (Id. at 21.) Appellant resided with his mother and stepfather. (Id.

at 15, 17.) Barnes was made aware by Penn Hills police that appellant had 
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an active warrant for armed robbery. (Id. at 21.) Barnes testified that he 

had been to 114 Clinton Drive at least six or seven times. (Id. at 22.)

Barnes, accompanied by Detective Joseph Blaze and two uniformed 

officers, knocked on the front door and identified himself. (Id. at 21-23.) 

Appellant’s sister answered the door and informed Barnes that appellant was 

in his bedroom. (Id. at 23.) Barnes entered the bedroom with his gun 

drawn. (Id. at 24.) Appellant was getting up out of bed. (Id.) Barnes 

ordered appellant to show his hands. (Id.) Appellant complied and he was 

placed in handcuffs. (Id.) At that point, Barnes questioned appellant about 

the gun; appellant stated that it was in a book bag underneath the bed. 

(Id.) Barnes pulled out the book bag and recovered a .38 caliber revolver, 

as well as stamp bags containing suspected narcotics. (Id. at 24-25.)

Clearly, Barnes had reasonable suspicion of criminal activity to search 

appellant, his parolee. In addition to technical violations of parole, Barnes 

was informed that appellant was wanted on suspicion of armed robbery and 

was in possession of a gun. As stated above, parolees enjoy a diminished 

expectation of privacy in exchange for their early release on parole. In 

addition, Barnes could search the area underneath the bed, an area within 

appellant’s immediate vicinity, as part of the search incident to a lawful 

arrest. 

Regarding appellant’s allegation that Barnes was acting at the behest 

of police, the record belies this argument. Barnes testified that he was 
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instructed to proceed to appellant’s approved residence by his supervisor. 

(Id. at 27.) Barnes testified that Penn Hills police never told him to search 

the residence. (Id. at 27-28.) Barnes explained that it is typical to search a 

parolee’s approved residence when he is in violation of the conditions of 

supervision. (Id. at 28.) Both Detective Anthony Diulus and 

Detective Blaze also testified that they did not give Barnes any particular 

instructions other than to take appellant into custody. (Notes of testimony, 

7/18/13 at 29-30, 52.)9 They did not tell Barnes to search the residence. 

(Id.) Detective Diulus testified that Barnes did not assist in any way with 

the police investigation into the armed robbery of Munda and Leski. (Id. at 

39-40.) Clearly, Barnes was not acting as a “stalking horse” for the 

Penn Hills police in their investigation into the alleged robbery. Barnes was 

aware of the charges, but was there in his capacity as appellant’s parole 

officer.

Next, we address appellant’s argument that his statements were 

obtained in violation of Miranda.

10

A confession obtained during a custodial 

interrogation is admissible where the 

accused’s right to remain silent and right 

to counsel have been explained and the 

accused has knowingly and voluntarily 

waived those rights. The test for 

determining the voluntariness of a 

confession and whether an accused 

 

9 The May 30, 2013 suppression hearing was continued on July 18, 2013.

10 Miranda v. Arizona, 384 U.S. 436 (1966).
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knowingly waived his or her rights looks 

to the totality of the circumstances 

surrounding the giving of the confession.

Commonwealth v. Jones, 546 Pa. 161, 170, 683 

A.2d 1181, 1189 (1996) (citations omitted). “The 

Commonwealth bears the burden of establishing 

whether a defendant knowingly and voluntarily 

waived his Miranda rights.” Commonwealth v. 

Bronshtein, 547 Pa. 460, 464, 691 A.2d 907, 913 

(1997) (citation omitted).

Commonwealth v. Parker, 847 A.2d 745, 748 (Pa.Super. 2004).

Statements made during custodial interrogation are 

presumptively involuntary, unless the accused is first 

advised of . . . Miranda rights. Commonwealth v. 

DiStefano, 782 A.2d 574, 579 (Pa.Super.2001), 

appeal denied, 569 Pa. 716, 806 A.2d 858 (2002). 

Custodial interrogation is “questioning initiated by 

law enforcement officers after a person has been 

taken into custody or otherwise deprived of [his] 

freedom of action in any significant way.” Miranda, 

supra at 444, 86 S.Ct at 1612, 16 L.Ed.2d at 706. 

“The Miranda safeguards come into play whenever a 

person in custody is subjected to either express 

questioning or its functional equivalent.” 

Commonwealth v. Gaul, 590 Pa. 175, 180, 912 

A.2d 252, 255 (2006), cert. denied, 552 U.S. 939, 

128 S.Ct. 43, 169 L.Ed.2d 242 (2007). Thus, 

“Interrogation occurs where the police should know 

that their words or actions are reasonably likely to 

elicit an incriminating response from the suspect.” 

Commonwealth v. Ingram, 814 A.2d 264, 271 

(Pa.Super.2002), appeal denied, 573 Pa. 671, 821 

A.2d 586 (2003). “In evaluating whether Miranda

warnings were necessary, a court must consider the 

totality of the circumstances . . . .” Gaul, supra.

Commonwealth v. Gonzalez, 979 A.2d 879, 888-889 (Pa.Super. 2009), 

quoting Commonwealth v. Williams, 941 A.2d 14, 30 (Pa.Super. 2008) 

(en banc). “Parolees, like any other individual, must be given Miranda 
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warnings when subject to custodial interrogation.” Commonwealth v. 

Cooley, 118 A.3d 370, 376 (Pa. 2015).

The concept of “fruit of the poisonous tree” and the 

possibility of “purging the taint” of contaminated 

evidence were extensively discussed in Wong Sun 

v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 

L.Ed.2d 441 (1963). The Pennsylvania Supreme 

Court found the following language from Wong Sun

to be particularly instructive:

“We need not hold that all evidence is 

‘fruit of the poisonous tree’ simply 

because it would not have come to light 

but for the illegal actions of the police. 

Rather, the more apt question in such a 

case is ‘whether, granting establishment 

of the primary illegality, the evidence to 

which instant objection is made has been 

come at by exploitation of that illegality 

or instead by means sufficiently 

distinguishable to be purged of the 

primary taint.’”

[Commonwealth v.] Cunningham, 471 Pa. [577] 

at 585-86, 370 A.2d [1172] at 1176-77 [(1977)] 

(quoting Wong Sun, 371 U.S. at 487-88, 83 S.Ct. at 

417 (footnote and citations omitted)). If the 

discovery of evidence can be traced to a source 

independent of the initial illegality, suppression is not 

mandated. Commonwealth v. Ariondo, 397 

Pa.Super. 364, 377, 580 A.2d 341, 347 (1990), 

appeal denied, 527 Pa. 628, 592 A.2d 1296 

(1991). The “fruit of the poisonous tree” doctrine 

excludes evidence obtained from, or acquired as a 

consequence of, lawless official acts; it does not 

exclude evidence obtained from an “independent 

source.” Id.

Commonwealth v. Brown, 700 A.2d 1310, 1318 (Pa.Super. 1997).
J. S71002/15

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Barnes testified that after he placed appellant in handcuffs, and 

without reading him his Miranda warnings, he asked him about the location 

of the gun:

I said: You know we’re here because of you not 

reporting and you got a warrant out in Penn Hills for 

a gun? I said: Where’s the gun? And he just stood 

there. And I said: Okay, but here’s the thing; I’m 

gonna call and get five or six more guys, we’re 

gonna come down and tear her house up. Do you 

want to disrespect her like that? He just kind of 

hung his head and said: It’s in the bookbag under 

the bed.

Notes of testimony, 5/30/13 at 24.

Appellant was handcuffed and in custody at the time he was 

questioned by Barnes regarding the location of the gun. However, appellant 

was not only in violation of his parole but had a warrant out for his arrest for 

a violent crime involving a firearm. Barnes had the right to search the 

residence for contraband including underneath appellant’s bed. In fact, 

Barnes testified that without appellant’s admission, he intended to call 

additional agents from the parole office and conduct a search of the entire 

house. (Id. at 25.) Barnes would have recovered the gun and drugs from 

inside the book bag independent of appellant’s admission. Therefore, even 

assuming the interrogation of appellant was improper, the evidence was 

admissible. See Gonzalez, 979 A.2d at 889-890 (explaining the inevitable 

discovery rule).
J. S71002/15

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Appellant also argues that his subsequent statement to 

Detective Diulus should have been suppressed as fruit of the poisonous tree. 

According to appellant, his statement at the police station flowed directly 

from the illegal interrogation and search of his bedroom. (Appellant’s brief 

at 39-40.)

Detective Diulus testified that after appellant was transported to the 

police station, he was given a copy of the arrest warrant and the criminal 

complaint, including the affidavit of probable cause. (Notes of testimony, 

7/18/13 at 30-31.) Later, Detective Diulus asked appellant whether he had 

read the documents over and wanted to talk; appellant indicated that he did 

want to talk. (Id. at 31.) At that time, appellant was read his Miranda

warnings and also signed a waiver form. (Id. at 31-32.) Appellant was not 

handcuffed and did not appear to be in any distress. (Id. at 31-32.) 

Appellant was taken upstairs to the detective office. (Id. at 33.) 

Detective Diulus again asked appellant whether he wanted to make a 

statement, and he answered in the affirmative. (Id.) Barnes and Detective 

Blaze were also present, but Detective Diulus was directing the interview. 

(Id. at 35, 54.) Detective Diulus, who was not at 114 Clinton Drive when 

appellant was arrested, described appellant’s demeanor as “very casual.” 

(Id. at 28-29, 35.)

Detective Diulus testified that appellant never asked the police to stop 

the interview and he never requested counsel. (Id. at 35.) Detective Blaze 
J. S71002/15

- 23 -

described appellant as cooperative and polite. (Id. at 54.) Appellant 

discussed the items recovered from the residence, but declined to answer 

questions about the alleged robbery. (Id. at 33-34, 36-37.) The only 

statement appellant made regarding the robbery allegations was that he and 

his friend left the bar that night and drove directly to his friend’s house 

where they played video games. (Id. at 36.)

Even assuming, arguendo, that appellant’s initial statement to Barnes 

was coerced and involuntary, his subsequent statement to Detective Diulus 

was made knowingly and voluntarily. There was a sufficient break in the 

chain of events to remove the taint of any coercion resulting from the 

allegedly illegal questioning of appellant and search of appellant’s bedroom 

at 114 Clinton Drive. Appellant was transported to the police station, where 

he was permitted to examine the criminal complaint and arrest warrant. 

Appellant indicated he wanted to talk to police. Appellant was then read his 

Miranda rights and executed a waiver form. While Barnes and 

Detective Blaze were present during the interview, it was conducted by 

Detective Diulus, who was not even at 114 Clinton Drive when appellant was 

arrested. Appellant’s demeanor was described as calm and relaxed. In fact, 

appellant declined to discuss the alleged robbery and only agreed to answer 

questions regarding the contraband found in his bedroom. Appellant’s 

statement to police was admissible, and the trial court did not err in denying 

appellant’s suppression motion. See Oregon v. Elstad, 470 U.S. 298, 310 
J. S71002/15

- 24 -

(1985) (“When a prior statement is actually coerced, the time that passes 

between confessions, the change in place of interrogations, and the change 

in identity of the interrogators all bear on whether that coercion has carried 

over into the second confession.”).

Finally, appellant claims that the trial court erred in failing to hold an 

evidentiary hearing on post-sentence motions. (Appellant’s brief at 25.) 

Whether or not to hold a hearing on post-sentence motions is within the trial 

court’s discretion. Pa.R.Crim.P. 720(B)(2)(b). With the exception of 

appellant’s sentencing challenge, we find his issues to be without merit; 

therefore, the trial court did not abuse its discretion in failing to hold an 

evidentiary hearing. Appellant’s sufficiency challenge and his argument that 

the trial court erred in refusing to suppress evidence, discussed supra, can 

be disposed of on the existing record.

Judgment of sentence vacated. Remanded for re-sentencing. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/2016