Commonwealth v. Cohen

53 A.3d 882

2012 PA Super 192

COMMONWEALTH of Pennsylvania, Appellant

v.Lance COHEN, Appellee.

Superior Court of Pennsylvania.

Argued Aug. 22, 2012.

Filed Sept. 11, 2012.

Pier N. Hess, Assistant District Attorney, Lebanon, for Commonwealth, appellant.

Kimberly A. Adams, Public Defender, Lebanon, for appellee.

BEFORE: STEVENS, P.J., BENDER, J., and GANTMAN, J.

OPINION BY BENDER, J.:

The Commonwealth, as Appellant, appeals from the court's July 21, 2011 order granting Appellee's, Lance Cohen (“Cohen”), motion to suppress statements he made to police on two different occasions. For the following reasons, we affirm in part, and reverse in part.

The relevant facts and procedural history of this case are as follows. Cohen was suspected of being involved in three different burglaries committed in Lebanon City during the summer of 2010. Consequently, Detective Anthony Verna and Detective Ulrich ¹ of the Lebanon City Police Department met with Cohen at the Lebanon County Prison on August 17, 2010, where Cohen was incarcerated on unrelated charges. At the start of the interview, Detective Verna read Cohen his Miranda²rights from a preprinted form. N.T. Suppression Hearing, 5/25/11, at 7. The detective also gave that form to Cohen, and he read it silently to himself. Id. Detective Verna then asked Cohen to sign the form indicating he understood his rights and desired to “waive them and willingly make a statement.” Id. at 30. Cohen refused to sign the document, instead “[sitting] there silently, ... not saying anything after [the detective] read him the form.” Id. at 31. At no point did Cohen indicate that he did not understand his rights, that he desired counsel, or that he did not want to speak with the detectives. Id. at 8.

Detective Verna then began asking Cohen for “biographical information such as [his] name, date of birth, [and] where he's been living.” Id. at 8. After Cohen “answered [these questions] freely,” the detective began to question Cohen regarding the burglaries. Id. Cohen denied any knowledge of or involvement in those crimes, and signed a consent form permitting Detective Verna to search his cell phone. Id. at 9–10. The interview ended when Cohen indicated he did not wish to speak to the detectives any further. Id. at 10.

At some point following this interview, Detective Verna discovered that Cohen had made phone calls from prison to a woman named Samantha Montgomery. Id. at 17, 43. On August 20, 2010, police officers went to Ms. Montgomery's apartment to speak with her. She informed them that Cohen did not reside with her, but that he did sleep at her home on occasion. Id. at 19. She identified certain property that he had brought into her apartment, including a Playstation gaming system and an Apple iPod. Id. at 20–22. Ms. Montgomery also permitted the officers to look around her residence and, in doing so, the officers found a “portable storage device” that could be “plug[ged] into a USB port on a computer.” Id. at 22. Ms. Montgomery did not recognize that item as belonging to her or her children. Id. at 23. The property recovered from Ms. Montgomery's home was later determined to have been stolen. Id. at 11, 24.

On September 16, 2010, Detective Verna returned to the Lebanon County Prison for a second interview with Cohen. Id. at 11. This time, Detective Verna did not read the Miranda form or otherwise verbalize those rights to him. Id. at 34. Instead, the detective simply told Cohen that he did not have to speak to him and if Cohen did not wish to talk, he could inform the detective of that fact and return to his cell. Id. at 12. Detective Verna then questioned him about the stolen items found in Ms. Montgomery's apartment. Id. at 25. Cohen denied knowing Ms. Montgomery, and claimed that he did not have any property at her house. Id. at 26. When the detective stated that the police had a search warrant, Cohen replied, “you can stick the warrant up your ass,” and walked away, thus ending the interview. Id. at 13.

Cohen was subsequently arrested and charged with three counts of burglary, receiving stolen property, two counts of access device fraud, criminal attempt to commit theft by unlawful taking or disposition, and theft by unlawful taking or disposition. Prior to trial, he filed a motion to suppress the evidence of his August 17, 2010 and September 16, 2010 statements to police, as well as the items recovered from Ms. Montgomery's apartment. On May 25, 2011, a hearing was conducted on that motion. On July 22, 2011, the court issued an order and opinion denying Cohen's motion to suppress the physical evidence obtained from Ms. Montgomery's apartment, but granting his motion regarding his statements to police.

The Commonwealth filed a timely appeal of the court's order suppressing Cohen's statements,³ as well as a timely concise statement of matters complained of on appeal in accordance with Pa.R.A.P. 1925(b). Herein, the Commonwealth presents two issues for our review:

A. Whether the [t]rial [c]ourt erred when it granted [Cohen's] Motion and suppressed all statements [he] made to police on August 14, 2010 even though [Cohen] affirmatively waived his rights pursuant to Miranda [?]

B. Whether the [t]rial [c]ourt erred when it granted [Cohen's] Motion and suppressed all statements [he] made to police on September 16, 2010 even though [Cohen] was apprised of his Miranda rights numerous times in the past, was not questioned about any criminal activity, chose to speak with law enforcement and, as such, affirmatively waived his rights pursuant to Miranda [?]

Commonwealth's Brief at 4.

We begin our analysis of these claims by noting our well-established standard of review:

When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and 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. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty [it] is to determine if the suppression court properly applied the law to the facts.

Commonwealth v. Baez, 21 A.3d 1280, 1282 (Pa.Super.2011) (citation omitted).

In its first issue, the Commonwealth contends that the trial court erred in suppressing Cohen's August 17, 2010 statement on the basis that Cohen did not indicate he understood his rights and, consequently, his waiver thereof was ineffective. Specifically, the trial court emphasized that after Detective Verna read Cohen his Miranda rights, Cohen refused to sign the form to confirm his understanding of those rights and, instead, simply sat in silence. Therefore, as the Commonwealth acknowledges, “the detective never received a finite, audible response to the question ‘do you understand your Miranda rights.’ ” Commonwealth's Brief at 17 (citation to the record omitted). Nevertheless, the Commonwealth avers that Cohen's statements should not have been suppressed because Cohen

never indicated he was confused by the Miranda form, or that he failed to understand its meaning. Rather, [he] simply refused to sign his name to the form. Detective Verna explained it was common for suspects to not sign the written Miranda form. [Cohen] never indicated he did not want to speak with Detective Verna. [He] never requested counsel, or used the word ‘attorney.’ Instead, [Cohen] verbally executed a knowing, voluntary, and intelligent waiver of Miranda.

Commonwealth's Brief at 17.

We begin by noting that “[i]t is the Commonwealth's burden to establish whether [a defendant] knowingly and voluntarilywaived his Miranda rights. In order to do so, the Commonwealth must demonstrate that the proper warnings were given, and that the accused manifested an understanding of these warnings.” Baez, 21 A.3d at 1283 (quoting Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1135–36 (2007) (citation omitted)). The basic precepts regarding what constitutes a sufficient waiver of Miranda rights have been defined through a line of cases beginning with Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309, 1314 (1979) (plurality opinion). In that plurality opinion, our Supreme Court rejected the more lenient Federal constitutional rule that a defendant can implicitly waive his Miranda rights, instead holding that “an explicit waiver is a mandatory requirement.” Id. at 1314 (emphasis added); See also North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) (holding that under Federal constitutional law, an implicit waiver of Miranda rights could be found where an accused expresses an understanding of his rights and gives a statement without expressly waiving the same). Our Supreme Court elaborated that an “explicit waiver” meant “an outward manifestation of a waiver such as an oral, written or physical manifestation.” Id. at 1314 n. 11.

In Commonwealth v. Hughes, 536 Pa. 355, 639 A.2d 763 (1994), the Court applied Bussey without acknowledging its limited precedential value as a plurality decision. There, the Court found that the defendant had “explicitly waived” his Miranda rights by “clearly and unequivocally” indicating that he understood his rights and then responding to the officer's questions. Id. at 770. In other words, the defendant's conduct “clearly manifested an intent to waive his rights.” Id. Similarly, in Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), our Supreme Court held that the defendant's twice stating he understood his Miranda rights after they were read to him, and answering questions immediately thereafter, sufficiently “manifested the intent to waive his rights.” ⁴Id. at 844 n. 13. Finally, in Baez, this Court relied on all of the above-cited Supreme Court cases in concluding that the defendant had sufficiently manifested his intent to waive his Miranda rights...