J-S41013-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERTO RIVERA,

Appellant No. 1414 MDA 2016

Appeal from the Judgment of Sentence July 27, 2016

in the Court of Common Pleas of Lebanon County

Criminal Division at No.: CP-38-CR-0000424-2015

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JULY 31, 2017

Appellant, Roberto Rivera, appeals from the judgment of sentence 

imposed by the trial court after his jury conviction of possession of a 

controlled substance, drug paraphernalia, and a small amount of marijuana.1 

Specifically, Appellant challenges the trial court’s denial of his motion to 

suppress the morphine pills seized by the police. We affirm.

We take the following facts from our independent review of the 

certified record. On July 1, 2014, Officer David Zinda, Detective Lawrence 

Minnick, and Detective Ryan Mong, from the Lebanon County Police 

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* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. §§ 780-113(a)(16), (a)(32), and (a)(31), respectively.
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Department, were dispatched to Appellant’s residence based on a neighbor’s 

complaint about illegal drug use. (See N.T. Hearing, 7/29/15, at 5, 22). 

Officer Zinda and Detective Minnick knocked on Appellant’s door while 

Detective Mong went to the complainant’s neighboring apartment. (See id.

at 6, 22). Upon answering the door, Appellant appeared very happy to see 

Detective Minnick, whom he had known for years, and greeted him in a 

friendly manner, calling him “Papa.” (Id. at 6, 23; see id. at 7). Detective 

Minnick explained why the officers were there and asked if they could have 

Appellant’s consent to search the apartment. (See id. at 7, 23-24). 

Appellant invited the officers into his apartment, and gave them consent to 

search. (See id. at 7, 24).

Appellant, although permitted to walk around his apartment, remained 

in the living room speaking with Detective Minnick while Officer Zinda 

searched the bedroom. (See id.). The officer found a marijuana grinder in 

plain view on an end table and showed it to Appellant. (See id. at 8). In 

response, Appellant said, “[h]old on a minute[,]” retrieved a metal tin of 

marijuana from the kitchen, gave it to the officers, and asked them to stop 

their search. (Id.; see id. at 24-25). The search immediately ceased. 

(See id. at 8).

At that time, Detective Minnick advised Appellant that, based on what 

Officer Zinda already had found, the police had probable cause to apply for a 

search warrant. (See id. at 9, 25). Thereafter, of his own volition, and 
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without the urging of the officers in his home, Appellant called his friend of 

approximately twenty years, Sergeant Brett Hopkins,2on Hopkins’ personal 

cell phone. (See id. at 25, 35). Sergeant Hopkins, who was on vacation in 

Cape May, New Jersey, at the time, did not have any personal knowledge of 

the situation in Appellant’s apartment. (See id. at 35). When Appellant 

asked him what he should do, the sergeant told him to cooperate with the 

police. (See id.).

Thereafter, the officers presented Appellant with a consent to search 

form and asked him to read and review it. (See id. at 25, 30-31). 

Detective Minnick advised him that, if he had any questions, he should ask. 

(See id. at 31). Appellant did not give any indication that he could not read 

or understand the form. (See id. at 34). The detective explained that 

Appellant should sign the document if he was comfortable with what was on 

it, and he wished to consent to the search of his apartment. (See id. at 25, 

31). Appellant signed the consent form, after which “he didn’t say anything 

else adverse about [the police] searching [the apartment].” (Id. at 26; see 

id. at 10). 

Shortly thereafter, while Officer Zinda resumed his search, Appellant 

complained he was very hot and experiencing respiratory issues. (See id. at 

11, 26, 32). Detective Minnick observed that Appellant was not sweating or 

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2 Sergeant Brett Hopkins is a member of the Lebanon County Drug Task 

Force. (See Trial Court Opinion, 10/03/16, at 4).
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breathing hard, but he continued to offer to call an ambulance for 

approximately ten or fifteen minutes until Appellant agreed to medical 

attention. (See id. at 26, 32-33). After Detective Minnick called the 

ambulance, Appellant sat with him on the front steps to his apartment while 

they waited for it to arrive. (Id. at 33). After the ambulance picked up 

Appellant, Detective Minnick and Officer Zinda briefly remained at his 

apartment; during that time, Detective Minnick found several round pills that 

tested positive for morphine. (See id. at 11, 26-27).

The Commonwealth filed an information on March 23, 2015 charging 

Appellant with the previously identified crimes. On April 13, 2015, Appellant 

filed a motion to suppress the marijuana, drug paraphernalia, and pills the 

officers had seized from his apartment. At the conclusion of the pre-trial 

hearing, the court denied Appellant’s motion to suppress the marijuana and 

paraphernalia, but requested briefs on the issue of “whether Sgt. Hopkins’ 

‘advice’ and/or [Appellant’s] hospitalization[3] vitiated the written consent 

that prompted the second search by Det. Minnic[k] and Officer Zinda.” (Trial 

Court Opinion, 10/03/16, at 3) (record citation omitted). On October 5, 

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3 There is no evidence in the certified record that Appellant was hospitalized 

after the ambulance took him from the scene. When the Commonwealth’s 

counsel attempted to enter evidence of what occurred at the hospital, 

Appellant’s counsel objected. (See N.T. Hearing, 7/29/15, at 12). In 

response, the assistant district attorney stated that “[T]hey called him an 

ambulance, and ultimately he never even received medical treatment. . . . 

[The police] received [information] that the ambulance arrived at the 

hospital and [Appellant] actually got out and ran away.” (Id.). 
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2015, the trial court granted Appellant’s motion to suppress the morphine 

pills, finding that his call to Sergeant Hopkins rendered his consent invalid. 

(See id. at 3-4). 

On October 9, 2015, the Commonwealth filed a motion to reconsider 

based on the doctrine of inevitable discovery. On November 13, 2015, after 

argument, the trial court reversed its earlier decision and denied Appellant’s 

motion to suppress the illegal pills.

Trial commenced on May 2, 2016. On May 6, 2016, the jury convicted 

Appellant of the previously mentioned crimes. On July 27, 2016, the trial 

court sentenced him to an aggregate term of six months’ probation, 

“notwithstanding the fact that [his] standard sentencing range required 

incarceration.” (Id. at 5). Appellant timely appealed.4

Appellant raises one issue for our review: “Did not the trial court err in 

denying Appellant’s motion to suppress evidence where the facts and 

circumstances do not support a finding that the discovery of the evidence 

was inevitable?” (Appellant’s Brief, at 4) (unnecessary capitalization 

omitted).5

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4 On September 20, 2016, Appellant filed a concise statement of errors 

complained of on appeal, pursuant to the court’s order. The court filed an 

opinion on October 3, 2016. See Pa.R.A.P. 1925.

5 Appellant’s challenge only relates to the morphine pills, not the marijuana 

and drug paraphernalia. (See Appellant’s Brief, at 8-9). 
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Our 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, we are bound by these findings and 

may reverse only if the court’s legal conclusions are erroneous. 

Where, as here, 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 our plenary 

review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012), 

appeal denied, 65 A.3d 413 (Pa. 2013) (citation omitted).

It is well-settled that:

A search conducted without a warrant is 

deemed to be unreasonable and therefore 

constitutionally impermissible, unless an established 

exception applies. One such exception is consent, 

voluntarily given. The central Fourth Amendment 

inquiries in consent cases entail assessment of the 

constitutional validity of the citizen/police encounter 

giving rise to the consent; and, ultimately, the 

voluntariness of consent. Where the underlying 

encounter is found to be lawful, voluntariness 

becomes the exclusive focus.

Commonwealth v. Kemp, 961 A.2d 1247, 1260-61 (Pa. Super. 2008) 

(citations omitted).

Pursuant to the inevitable discovery doctrine, “the fruits of an 

unconstitutional search are admissible where the prosecution can establish 
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by a preponderance of the evidence that the information ultimately or 

inevitably would have been discovered by lawful means.” Commonwealth 

v. Perel, 107 A.3d 185, 194 (Pa. Super. 2014), appeal denied, 124 A.3d 

309 (Pa. 2015) (internal quotation marks and citation omitted).

Here, the trial court denied Appellant’s motion to suppress the 

morphine pills based on its finding that, although Appellant’s phone call to 

Sergeant Hopkins and departure from the scene via ambulance rendered his 

consent invalid and the search unconstitutional, the items seized thereafter 

were admissible pursuant to the inevitable discovery doctrine. (See Trial Ct. 

Op., at 8). The Commonwealth maintains that Appellant voluntarily 

consented to the search of his apartment, but that, even if he had not done 

so, the evidence inevitably would have been discovered. (See 

Commonwealth’s Brief, at 7, 9-13). 

Therefore, because the language of the inevitable discovery doctrine 

requires a finding of an unconstitutional search before it will be applied, we 

will first consider the constitutionality of the search in this case. 

In connection with [the inquiry into the voluntariness of a 

consent given pursuant to a lawful encounter], the 

Commonwealth bears the burden of establishing that a consent 

is the product of an essentially free and unconstrained choice—

not the result of duress or coercion, express or implied, or a will 

overborne—under the totality of the circumstances. . . . [W]hile 

knowledge of the right to refuse to consent to the search is a 

factor to be taken into account, the Commonwealth is not 

required to demonstrate such knowledge as a prerequisite to 

establishing a voluntary consent. . . . Additionally, although the 

inquiry is an objective one, the maturity, sophistication and 

mental or emotional state of the defendant (including age, 
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intelligence and capacity to exercise free will), are to be taken 

into account. . . .

Kemp, supra at 1261 (citation omitted).

In determining whether consent was voluntary, this Court considers 

the following pertinent factors:

1) the presence or absence of police excesses; 2) whether there 

was physical contact; 3) whether police directed the citizen’s 

movements; 4) police demeanor and manner of expression; 5) 

the location of the interdiction; 6) the content of the questions 

and statements; 7) the existence and character of the initial 

investigative detention, including its degree of coerciveness; 8) 

whether the person has been told that he is free to leave; and 9) 

whether the citizen has been informed that he is not required to 

consent to the search.

Id. (citation omitted).

Here, the only two officers in Appellant’s home were Detective Minnick 

and Officer Zinda. Detective Minnick was familiar to Appellant, in plain 

clothes, with his gun concealed. There was no physical contact between the 

police and Appellant, and he was not restrained in any way. Appellant was 

allowed to make phone calls, and chose to call his friend Sergeant Hopkins 

on Hopkins’ private cell phone, without any suggestion by Detective Minnick 

or Officer Zinda that he do so. Sergeant Hopkins was vacationing at the 

time, had no independent knowledge of what was occurring in Appellant’s 

apartment, and was not involved in the investigation in any way. After a 

brief conversation, Appellant asked him what he should do, and Officer 

Hopkins merely told him to cooperate with the police. Thereafter, when 

Officer Minnick presented Appellant with the consent form, he explained it to 
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him, told him he could ask any questions, and only advised he sign it if he 

agreed with its terms.6 Appellant had time to consider the information given 

to him by Detective Minnick and the advice of his friend, and then signed the 

form. After signing, he did not, at any point, challenge the search or 

withdraw his consent.

Further, only after signing the form did Appellant start complaining of 

physical symptoms that resulted in Detective Minnick calling an ambulance, 

although the officer did not observe any signs indicating that Appellant was 

not well. After the ambulance was called, Appellant did not tell the officers 

to stop searching or request they leave. He and Detective Minnick sat on 

the front steps of his apartment to wait for the ambulance while Officer 

Zinda continued to search inside, and at no time did Appellant question the 

search or request that it not continue in his absence. In fact, Officer Zinda’s 

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6 Although the trial court observes that Sergeant Hopkins did not advise 

Appellant that he could refuse consent, we note first that he was not 

obligated to do so because he was not an investigating officer in this case or 

acting on the investigating officers’ behalf. Additionally, even if he were 

required to so advise Appellant, this would not render the consent invalid. 

See Commonwealth v. Cleckley, 738 A.2d 427, 433 (Pa. 1999) (“[O]ne’s 

knowledge of his or her right to refuse consent remains a factor to consider 

in determining the validity of consent; it simply is not a determinative factor 

since other evidence is oftentimes adequate to prove the voluntariness of a 

consent.”) (footnote omitted); see also Kemp, supra at 1261 (“Appellant’s 

permission was not the product of duress or coercion, but in fact was 

voluntarily given even though Appellant was not informed that he could 

refuse to consent to the search.”) (citation omitted). Moreover, as noted 

above, Detective Minnick, an investigating officer, did advise Appellant that 

it was his choice whether or not to sign the consent to search form.
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search had always been out of the presence of Appellant, who chose to 

remain in the living room, talking with Detective Minnick. Moreover, once 

the ambulance took Appellant from the scene, the search lasted for a brief 

time before the officers also left the apartment. 

Based on the foregoing, and in the totality of the circumstances, we 

conclude that the Commonwealth met its burden of establishing that 

Appellant voluntarily consented to the search of his home where his consent 

was not the product of coercion or duress. See Kemp, supra at 1261. 

Additionally, Appellant subsequently leaving the scene by ambulance did not 

somehow extinguish his consent where the officers merely were conducting 

the investigation for which he already had consented. See Commonwealth 

v. Witman, 750 A.2d 327, 337 (Pa. Super. 2000), appeal denied, 764 A.2d 

1053 (Pa. 2000), cert. denied, 534 U.S. 815 (2001) (“[W]here police are 

conducting a valid search pursuant to a defendant’s [] consent, the initial 

investigation in its entirety is permissible. . . . [A]n investigation may require 

officials to remain on the scene for an extended period of time repeatedly 

entering or re-entering the building . . . [.]”) (internal quotation marks and 

citation omitted).

Therefore, we are constrained to disagree with the trial court’s finding 

that Appellant did not voluntarily consent to the search of his apartment. 

However, we conclude that the court properly denied his motion to suppress 
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the morphine pills, albeit on a different basis.7 See McAdoo, supra at 783-

84. Appellant’s issue lacks merit.8

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/31/2017

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7

It is well-established “that we can affirm the trial court on any valid basis.” 

Kemp, supra at 1254 n.3 (citation omitted).

8 Because we affirm the trial court’s denial of Appellant’s motion to suppress 

on the basis that his consent was voluntary, we need not reach the question 

of whether the evidence would be admissible pursuant to the inevitable 

discovery doctrine.