J-S43014-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

MARCUS GARVEY TRUST JR.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 840 MDA 2023

Appeal from the Order Entered May 25, 2023

In the Court of Common Pleas of Cumberland County Criminal Division at 

No(s): CP-21-CR-0002265-2020

BEFORE: McLAUGHLIN, J., KING, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: MARCH 8, 2024

The Commonwealth appeals from the order granting Marcus Garvey 

Trust Jr.’s motion to suppress. It maintains that the trial court erred by 

entertaining the motion because it was untimely and claims the court erred in 

granting the motion. We affirm.

The instant case stems from an alleged rape in September 2019. See

Criminal Information, filed 11/3/20. The criminal complaint alleges that Trust 

sexually assaulted the victim on September 21, 2019, at approximately 9:44 

p.m. That same night, at approximately 11:00 p.m., Corporal Matthew 

Johnston interviewed Trust at the Carlisle Regional Medical Center. See

Criminal Complaint, at 7. Trust was receiving medical treatment after allegedly 

being assaulted by “an associate” of the victim. Id.

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* Retired Senior Judge assigned to the Superior Court.
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The Commonwealth filed charges against Trust for the alleged sexual 

assault four months later. Trust moved for an extension of time to file an 

omnibus pretrial motion, alleging outstanding discovery “material to the 

defense’s preparation of their pretrial motion.” Motion to Extend Time to File 

Omnibus Pretrial Motion, filed 12/14/20, at 2, ¶ 10. The court granted the 

motion and gave Trust an extension of 30 days “calculated from the date 

the discovery is complete.” See Order Extending Time to File Omnibus 

Pretrial Motion, filed 12/14/20 (emphasis added). The order also directed the 

District Attorney to “notify [Trust] in writing that discovery is complete.” Id.

On the day of trial, Trust filed a Motion in Limine for Exclusion of 

Statement of Defendant. He sought the exclusion of his statements to Corporal 

Johnston, claiming that he was subjected to a custodial interrogation without 

being given Miranda1 warnings. See Motion in Limine for Exclusion of 

Statement of Defendant, filed 5/8/23, at 3, ¶ 15. At a hearing on the motion, 

the Commonwealth stated, and the court confirmed, that the Commonwealth 

had objected off the record that the motion was untimely and that the court

had overruled the objection. 

Corporal Johnston testified that he arrived at the hospital, in plain 

clothes, to speak with Trust. N.T., Motion to Suppress Hearing, 5/24/23, at 

23. When Corporal Johnston arrived, Trust was in a room in the emergency 

department. Trust’s girlfriend and a member of the medical staff were in 

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1 Miranda v. Arizona, 384 U.S. 436, 444 (1966).
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Trust’s room. Id. at 24. Trust’s girlfriend had taken him to the hospital. Id. at 

27. Corporal Johnston testified that he asked the medical staff if he could 

speak with Trust privately, and they allowed him to do so. Id. at 24. Trust’s 

girlfriend also left the room at the corporal’s request. Id. at 32. Trust was not 

receiving treatment immediately before the interview but was holding gauze

to his face. Id. at 24, 32.

Corporal Johnston testified that during the interview, the door to the 

room was closed but not locked, two uniformed officers remained outside the

room, Trust “was sitting upright in the gurney,” and “was not handcuffed to 

the chair rail.” Id. at 27, 31-32, 36, 37-38. Corporal Johnston conceded that 

he did not at any point during the interview inform Trust of his Miranda rights. 

Id. at 35.

The Commonwealth played, during Corporal Johnston’s testimony, the

recording of his questioning of Trust. See id. at 25-26. The recording reflects 

that Corporal Johnston informed Trust at the beginning of the interview that 

he was not there to ask about the assault on Trust but rather about “some 

things that happened with the female[.]” R.R. 186 (unpaginated).2 Trust 

denied having attended a party or having “hook[ed] up” or having sexual 

relations that night. Id. at 187-88 (unpaginated). When medical personnel 

attempted to enter the room during the questioning, Corporal Johnston had 

them leave because they needed more time. Trust replied that he did not 

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2 A transcript of the interview is in the reproduced record. The parties do not 

dispute its accuracy, and our review shows it to be materially accurate.
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“need any more time” or “need to answer any more questions,” and Corporal 

Johnston ended the interview. Id. at 189-90 (unpaginated).

One of the uniformed officers who remained outside of Trust’s room 

during the interview, Trooper Corey James, testified that to get to the door to 

Trust’s room, he had to go through a secured door that only medical personnel 

with a key could access. Id. at 11-12. Trooper James did not go into Trust’s

room and was not blocking the door to his room. Id. at 6, 8. 

Trust testified in support of his motion. He said that during the interview, 

Corporal Johnston stood at the end of his hospital bed, and he did not feel like 

he could leave the room. Id. at 41. He did not indicate whether he knew or 

saw the two uniformed officers outside of his room. Trust admitted that he 

told Corporal Johnston he did not want to answer any more questions, stating 

it was because he saw the doctor who was ready to assist him. Id. at 43-44. 

The court granted the motion to suppress. Id. at 48. This timely appeal 

followed. 

The Commonwealth raises the following issues: 

I. Did the trial court err in hearing [Trust’s] untimely 

pretrial motion to suppress evidence?

II. Did the trial court err in suppressing evidence when it 

erroneously concluded that [Trust] was “in custody”

at the time of questioning and therefore his 

constitutional rights were violated?

Commonwealth’s Br. at 5 (suggested answers omitted). 

The Commonwealth’s first issue addresses whether the trial court erred 

in hearing Trust’s motion to suppress. The Commonwealth likens this case to 
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Commonwealth v. Borovichka, 18 A.3d 1242, 1246-48 (Pa.Super. 2011). 

The Commonwealth maintains that Trust, like Borovichka, filed an untimely 

motion to suppress and failed to give a reason for the untimely filing. The 

Commonwealth also maintains that Trust “was aware of the grounds for the 

motion” and “was clearly on notice about the content and circumstance of the 

interview” with Corporal Johnston. Id. at 21, 22. 

The Commonwealth’s claim is meritless. It acknowledges that the court 

granted Trust an extension but ignores the basis of that extension, i.e., the 

completion of discovery. Id. 14 (“On December 14, 2020, [Trust] filed a 

motion to extend to time to file an omnibus pretrial motion, which was granted 

and the time to file was extended by 30 days”). Thus, it erroneously claims 

that Trust’s motion was “877 days late.” Id. at 21. This calculation assumes 

the deadline ran from the court’s order granting the extension. However, the 

deadline ran from the completion of discovery. Therefore, we discern no error 

by the court. 

Next, the Commonwealth alleges that the court erred in granting the 

motion to suppress. It maintains that the court incorrectly concluded that 

Trust was in custody at the time of his interview. It points to numerous factors 

that would suggest that Trust was not in custody at the time including the 

“short” duration of the interview, that Trust was not arrested before, during,

or after the interview, that the interview occurred in Trust’s hospital bed, and

that Corporal Johnston obtained permission from hospital staff to speak with 

Trust. See id. at 31-32. It also notes that Trust agreed to be interviewed and 
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went to the hospital on his own accord to be treated for his injuries. See id.

at 33. The Commonwealth further points out that Trooper James did not block 

the door to Trust’s room, that Corporal Johnston asked, “general questions,”

and that “no uniformed troopers were present” during the interview. Id. at 

34, 35. 

Our standard of review is settled for the grant of a motion to suppress: 

We consider only the evidence from the defendant’s 

witnesses together with the evidence of the prosecution 

that, when read in the context of the entire record, remains 

uncontradicted. This Court must first determine whether the 

record supports the factual findings of the suppression court 

and then determine the reasonableness of the inferences 

and legal conclusions drawn from those findings. In appeals 

where there is no meaningful dispute of fact, . . . our duty 

is to determine whether the suppression court properly 

applied the law to the facts of the case.

Commonwealth v. Arthur, 62 A.3d 424, 427 (Pa.Super. 2013) (internal 

quotation marks and citations omitted). 

If a person is in custody or its functional equivalent, and is subject to 

interrogation, police must give the familiar Miranda warnings. See

Commonwealth v. Gonzalez, 979 A.2d 879, 887-88 (Pa.Super. 2009). A 

person is in custody if they are “physically denied [their] freedom of action in 

any significant way or . . . placed in a situation in which [they] reasonably 

believe[] that [their] freedom of action or movement is restricted by the 

interrogation.” Commonwealth v. Cooley, 118 A.3d 370, 376 (Pa. 2015) 

(citation omitted). “The standard for determining whether an encounter is 

custodial is an objective one, focusing on the totality of the circumstances with 
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due consideration given to the reasonable impression conveyed to the 

individual being questioned.” Id. We consider such factors as: “the basis for 

the detention; the duration; the location; whether the suspect was transferred 

against his will, how far, and why; whether restraints were used; the show, 

threat or use of force; and the methods of investigation used to confirm or 

dispel suspicions.” Commonwealth v. Cruz, 71 A.3d 998, 1004 (Pa.Super. 

2013) (citation omitted).

The trial court determined that Trust was in custody at the time of 

Corporal Johnston’s questioning. See Rule 1925(a) Opinion, filed 7/5/23, at

4-5. That was a proper application of the law to the facts of this case.

Certainly, Trust’s freedom of action or movement was limited by the fact that 

he was in the emergency room to receive treatment for his injuries. However, 

that is not the issue. The question is whether he reasonably believed he could 

leave the interview. Under the entirety of the facts here, he did not. Corporal 

Johnston told Trust at the start of the interview that he was questioning him 

because he was a suspect in a sexual assault. Corporal Johnston had medical 

personnel and Trust’s girlfriend leave the room, closed the door, and had a 

doctor that entered the room during the questioning, leave. Trust’s room was 

accessible through a secured door that only hospital employees with a key 

could open, and two uniformed troopers were outside of Trust’s room during 

the interview. 

Trust’s telling Corporal Johnston he did not want to answer more 

questions does not mandate a contrary outcome. He did so for the stated 
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reason that he wanted medical attention, and his desire not to answer 

questions does not demonstrate that he was not in custody. On balance, in 

view of the totality of the circumstances, Trust “reasonably believe[d] that his 

freedom of action or movement [was] restricted by the interrogation.”

Cooley, 118 A.3d at 376; cf. Commonwealth v. Johnson, 727 A.2d 1089, 

1100-01 (Pa. 1999) (concluding appellant was not in custody during interview 

with detective at a hospital where another patient was in the room; the door 

to the room remained open; and appellant’s restraints were “due to his 

physical condition”); Commonwealth v. Ellis, 700 A.2d 948, 955 (Pa.Super. 

1997) (concluding appellant was not in custody during interview with detective 

at a hospital where detective obtained permission from medical staff to speak 

with appellant, appellant agreed to answer questions, appellant was not 

restrained, and interview occurred in hospital lounge).

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 3/8/2024