Com. v. Thomas, D. ( 2019 )

J-S03008-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
DARNELL THOMAS,
Appellant No. 253 EDA 2018
Appeal from the Judgment of Sentence Entered January 4, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006648-2016
BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 10, 2019
Appellant, Darnell Thomas, appeals from the judgment of sentence of
6-12 months’ incarceration and a consecutive term of 2 years’ probation,1
imposed following his conviction for carrying a firearm without a license2 and
carrying a firearm on the streets of Philadelphia.3 After careful review, we
affirm on the basis set forth in the trial court’s opinion.
The trial court set forth a full recitation of the facts of this case in its
Pa.R.A.P. 1925(a) opinion. See TCO at 1-4. Briefly, Appellant was driving a
____________________________________________
1At the sentencing hearing, the trial court immediately paroled Appellant “to
house arrest,” and “granted Appellant’s oral motion to stay his sentence
pending the outcome of this appeal.” Trial Court Opinion (TCO), 4/19/18, at
4.
2 18 Pa.C.S. § 6106.
3 18 Pa.C.S. § 6108.
J-S03008-19
vehicle in front of a public transit bus and impeded the bus’s progress for six
blocks, including when he failed to proceed through green lights at two
intersections. This caused a shouting match between Appellant and the
passengers and driver of the bus. When Detective Kevin Bradley (then Officer
Bradley) approached the scene, Appellant exited his vehicle and appeared
angry. Detective Bradley observed that Appellant’s eyes were bloodshot, and
he was staggering. Appellant also sounded incoherent to Detective Bradley,
as his replies were not related to the questions he was asked. Detective
Bradley also noticed that Appellant had three children in the back of his
vehicle.
Detective Bradley believed that Appellant might engage in a physical
confrontation with the passengers of the bus, although he did not make any
explicit threats to do so. Acting out of concern for his own safety, as well as
the safety of the children and the passengers, Detective Bradley frisked
Appellant for weapons. When he discovered what appeared to him to be an
empty holster on Appellant’s leg, he asked him if he had a weapon. Appellant
first denied that he had a weapon, before admitting that he might have one
in his trunk. Detective Bradley subsequently searched the trunk and
discovered a handgun. After verifying that Appellant did not have a license
for the firearm, Detective Bradley arrested him.
Appellant filed a timely suppression motion, and the trial court
conducted a suppression hearing on June 27, 2017. The court denied the
motion to suppress on July 17, 2017. On October 3, 2017, Appellant waived
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J-S03008-19
his right to a jury trial and the court held a stipulated non-jury trial. The court
found Appellant guilty of the aforementioned offenses. On January 4, 2018,
the trial court sentenced Appellant as stated above. Appellant filed a timely
notice of appeal, and a timely, court-ordered Rule 1925(b) statement. The
trial court issued its Rule 1925(a) opinion on April 19, 2018.
Appellant now presents the following questions for our review:
1. Did not the lower court err in denying Appellant’s motion to
suppress physical evidence where Appellant was subjected to
detention, frisk, and search without adequate suspicion of criminal
activity or facts leading the police to believe that [he] was armed
and dangerous?
2. Did not the lower court err in denying Appellant’s motion to
suppress physical evidence where [he] was subjected to a
custodial interrogation without being Mirandized?[4]
Appellant’s Brief at 6.
After careful consideration of the record, the parties’ briefs, and the well-
reasoned opinion by the Honorable Stella Tsai, we affirm on the basis set forth
in Judge Tsai’s opinion. See TCO at 5-8 (finding that it was reasonable for
Detective Bradley to suspect that Appellant might be dangerous and conclude
it was necessary to conduct a Terry5 frisk for weapons to ensure the safety
____________________________________________
4See Miranda v. Arizona, 384 U.S. 436 (1966) (holding that statements
obtained from defendants during a custodial interrogation, without full
warning of constitutional rights, are inadmissible under the Fifth Amendment).
5 See Terry v. Ohio, 392 U.S. 1 (1968).
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J-S03008-19
of those present);6 and see TCO at 8-11 (finding that Appellant was not
subject to a custodial detention when he made the at-issue statements
because, at that time, Appellant was not transported against his will, restraints
were not used, Detective Bradley had not threatened or used force against
him, and the detention was limited in scope to a brief pat down for weapons).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/19
____________________________________________
6The trial court concluded that Detective Bradley was justified in believing
Appellant might be dangerous based upon the following factors:
Appellant was engaged in a shouting match with the … [b]us [d]river and
the passengers and his speech was incoherent; the conflict had dragged
out on the streets of Philadelphia for several blocks; [Appellant] got out
of his car without being directed to do so and seemed ready for a fight;
and the immediate area, while mostly commercial, is well known to
[Detective] Bradley for its frequency of narcotics transactions, shootings,
and gun arrests. The presence of three small children in the back seat of
Appellant’s vehicle only amplified [Detective] Bradley’s concerns about
safety.
TCO at 7-8.
-4-
Circulated 03/29/2019 08:46 AM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTIUCT
TRIAL DIVISION - CRIMINAL SECTION
COMMONWEALTH OF
·PENNSYLVANIA,
Appellee
.,,
DARNELL THOMAS,
v.
-r
Defendant-Appellant rn
0
Tsai, J.
I. Introduction llllllll 11111111111111111
8098196661
Defendant-Appellant, Darnell Thomas (hereafter "Appellant" or "Mr. Thomas"),
appeals his judgment of sentence entered on January 19, 2018. Appellant was convicted
of Carrying a Firearm without a License and Carrying a Firearm on the Streets of
Philadelphia (collectively "VUFA").1 This appeal is limited to our order which denies
Mr. Thomas's Omnibus Pre-trial Motion seeking the suppression of physical evidence
and statements made in response to police questioning. For the reasons stated in this
opinion, we respectfully ask that the Supreme Court affirm (1) our order denying
Appellant's Omnibus Pre-trial Motion and (2) AppeJlant's judgment of sentence.
II. Factual and Procedural History
Detective Kevin Bradley is an eleven-year veteran of the Philadelphia Police
Force. At the time of the traffic incident that gives rise to this appeal, Bradley ("Officer
Bradley") was a police officer assigned to 39th District. Subsequent to the events of
1 18 Pa.C.S. § 6106(a)(1), 18 Pa.C.S. § 6108.
1
June 25, 2016, Officer Bradley was promoted to detective and assigned to the Northwest
Detectives. N.T. (Suppression Hearing) 06/27/2017 at pp. 9-10.
On June 25, 2016 Officer Bradley was on routine patrol on the 1400 block of
West Allegheny Avenue. N.T. (Suppression Hearing) 06/27/2017 at p.10. He wore
plain clothes with a badge around his neck. Id. at p. 23. Although Officer Bradley
described the area as a mix of commercial and residential uses, it is a location where he
has conducted many narcotics surveillances, he has made 50 to 75 arrests--including
five to ten that involved the recovery of guns--and a number of shootings have taken
place. Id. at pp.12-13
Officer Bradley encountered a maroon Grand Marquis in front of a SEPTA bus
that did not proceed through two consecutive green lights at 1400 West Allegheny
Avenue. N.T. (Suppression Hearing) 06/27/2017 at p.13. Passengers had disembarked
from the bus and were yelling at Appellant, who was the driver of the Grand Marquis.
Id. at pp.14-15. Appellant yelled back at the passengers of the bus. Id. at p.16. The
driver of the SEPTA bus was also yelling at Appellant; she informed Officer Bradley that
the Appellant had impeded the progress of the bus for six blocks. Id. at pp.ig, 25-26.
Appellant got out of his vehicle without being asked by the police, and appeared
angry to Officer Bradley. N.T. (Suppression Hearing) 06/27/2017 at pp.15-16, 27, 29.
When Officer Bradley spoke with the Appellant, he noticed that the defendant had blood
shot eyes, was incoherent, and appeared to be staggering. It was not normal behavior to
Officer Bradley, who then noticed three young children in the back of the Appellant's
car. Id. at p.16. Officer Bradley began asking Appellant questions, but Appellant's
replies were not related to the questions he was asked. Id. at p.16.
2
Officer Bradley also considered it unusual that Appellant would be blocking a bus
and yelling at its passengers with three children in the back of his vehicle. N.T.
(Suppression Hearing) 06/27/2017 at p.17. Based on his observations, Officer Bradley
thought that Appellant might engage in a fight with the passengers of the bus. Officer
Bradley acknowledged, however, that Appellant did not make any explicit threats
against the passengers or the driver of the bus. Id. at pp.20-21, 28-29. Due to his
concerns for officer safety and the safety of the other people in the area, including the
children in the Appellant's car, Officer Bradley frisked Appellant for weapons. Id. at
pp.17, 29-31. Officer Bradley did not locate any weapons on Appellant's person but felt
what was immediately apparent to him to be an empty holster on Appel1ant's leg. Id. at
..
pp.17-18, 32.
Officer Bradley then asked Appellant if he had a weapon. Officer Bradley recalled
that Appellant first denied having a weapon, but then stated that he "might" have a gun
in the trunk as Officer Bradley went to go open the driver's side door. N.T. (Suppression
Hearing) 06/27/2017 at p.17. Officer Bradley acknowledged that this statement had not
been included in his arrest paperwork or that he mentioned this statement during the
preliminary hearing. Id. at p. 33.
Officer Bradley searched the trunk and located a black Hellcat handgun in a red
backpack, which was open. N.T. (Suppression Hearing) 06/27/2017 at p.34. After he
verified that the Appellant did not have a license to carry this gun, Officer Bradley
placed the Appellant under arrest Id.
Appellant testified on his own behalf. He explained that he was leaving his
mother's house when he encountered the SEPTA bus at a stop sign. N.T. (Suppression
Hearing) 06/27/2017 at p.38. He said that SEPTA bus driver tried to get in front of him
3
and then started to curse at him. Id. at p,40. When they arrived at the Broad Street
intersection, Appellant recalled pulling up beside the SEPTA bus and walking over to the
bus driver's window to address the situation. Id. at pp,40-41, 44-45.
Appellant acknowledged that the light may have turned green while this was
going on. N.T. (Suppression Hearing) 06/27/2017 at p,41. He recalled that the SEPTA
police arrived and was already speaking with the parties when Officer Bradley got
involved. Id. Officer Bradley was outside the car when he placed the Appellant in
handcuffs and pinned him to the back of his vehicle. Id. at pp.az, 49-50. Mr. Thomas
does not recall volunteering any information. Id. at p.43.
We heard the motion to suppress on June 27, 2017, and held the motion under
advisement. We denied Appellant's motion to suppress on July 17, 2017. On October 3,
2017, Appellant waived his right to a jury trial and proceeded to a stipulated non-jury
trial before the undersigned. Appellant was found guilty of Carrying a Firearm without
a License and Carrying a Firearm on the Streets of Philadelphia; sentencing was
deferred so that a pre-sentence investigation report could be completed. N.T. (Trial)
10/03/2017 at pp.3-14.
On January 4, 2018, we sentenced Appe1lant to a term of incarceration of six to
twelve months, with immediate parole to house arrest, foJlowed by two years of
reporting probation, and granted Appellant's oral motion to stay his sentence pending
the outcome of this appeal. Appellant filed a timely notice of appeal on January 12,
2018 and later received an extension to file his concise Statement of Errors.
Appellant timely filed his Statement of Errors Complained of on Appeal Pursuant
to Pa.R.A.P 1925(b) on April 6, 2018. Therein Appellant raises the following issues for
appellate review:
4
1. The Trial Court erred by denying Appellant's pre-trial Motion to
Suppress Physical Evidence, namely a firearm.
2. The Commonwealth failed to establish by specific and articulable
facts that Philadelphia Police Detective Kevin Bradley had
reasonable suspicion that AppeJlant was armed, dangerous, or
carrying a weapon which would justify a frisk or pat-down of
AppeJlant's clothing or person.
3. The Trial Court erred in finding that the frisk was justified by
reasonable suspicion and therefore not a violation of Appellant's
Constitutional rights under the Fourth Amendment to the United
States Constitution or the heightened protections of the
Pennsylvania State Constitution, Article One, Section Eight,
4. The Trial Court erred in its failure to suppress the firearm which
was the fruit of a statement in response to police questioning
during custodial interrogation before which Miranda warnings
were required but not given.
5. The Trial Court erred in even considering Appellant's alleged
statement as evidence due to the fact that it was nowhere in
discovery, Counsel for Appellant had no notice of its existence
prior to the day of the Motion to Suppress, and the first time the
statement was heard was during direct examination of Detective
Kevin Bradley.
6. The statement was allegedly made in response to police
questioning in violation of the Fifth Amendment to the United
States Constitution and Article One, Section Nine of the
Pennsylvania State Constitution and should have also been
suppressed for these reasons.
Appellant's 1925(b) statement.
III. Discussion
A. Officer Bradley Had Reasonable Suspicion to Conduct a
Frisk of Appellant.
For purposes of this opinion, we have distilled Appellant's first three issues of his
1925(b) Statement to the following question: Did the suppression court err in findinq
5
that the frisk that lead to the recovery of the gun was supported by reasonable
suspicion? Our answer is no.
The Commonwealth bears the burden to establish, by a preponderance of the
evidence, that the evidence at issue was obtained without violating Appellant's rights.
Commonwealth v. Wallace, 42 A.3d 1040, 1047-48 (Pa. 2012). The Fourth Amendment
to the United States Constitution and Article I, Section 8 of the Pennsylvania
Constitution protect citizens from unreasonable searches and seizures at the hands of
the government. Commonwealth v. Chase, 960 A.2d 108, 112-13, 116 (Pa. 2008). A
search conducted without a warrant is presumed to be unreasonable and therefore
constitutionalJy impermissible, unless an established exception applies.
Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000).
One such exception is a pat-down search for weapons, also known as the Terry
frisk See, e.g., Commonwealth v. Johnson, 86 A.3d 182, 199 (2014) (discussing that
Terry frisks are permissible under both the Fourth Amendment and Article I, Section 8
of the Pennsylvania Constitution); Commonwealth u. Evans, 153 A.3d 323, 327-28 (Pa.
Super. 2016) (listing various exceptions to the warrant requirement, including "the stop
and frisk exception").
A police officer may conduct a Terry frisk when the officer has reasonable
suspicion "that criminal activity is afoot and that the individual whose suspicious
behavior he is investigating at close range is armed and presently dangerous to the
officer or to others." Commonwealth v. Davis, 102 A.3d 996, 999 (Pa. Super. 2014)
(citations and quotation marks omitted). A Terry stop and frisk is "strictly limited to
that which is necessary for the discovery of weapons that might present a danger to the
6
officer or those nearby." Commonwealth v. Parker, 957 A.2d 311, 315 (Pa. Super. 2008)
(citation and quotation marks omitted).
To review an officer's decision to frisk for weapons, we balance two legitimate
interests: "that of the citizen to be free from unreasonable searches and seizures; and
that of the officer to be secure in his personal safety and to prevent harm to others."
Commonwealth u, Zhahir, 751 A.2d 1153, 1158 (Pa. 2000) (citing Dunaway v. New
fork, 442 U.S. 200, 209, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979)). Under Pennsylvania
law, "[a]n overt threat by the suspect or clear showing of a weapon is not required for a
frisk." Commonwealth v. Mack, 953 A.2d 587, 591 (Pa. Super. 2008). See also
Commonwealth v. Shine, 784 A.2d 167 (Pa. Super. 2001) (officer responding to a radio
call involving men with guns had reasonable suspicion to frisk two men involved in an
argument; even though officer did not see any weapons, he was confronted with what he
perceived to be an escalating violent situation and believed that a fight between the IB'o
men was imminent).
Appellant argues that the Commonwealth did not present specific and articulable
facts to establish that Officer Bradley had a reasonable suspicion that Appellant was
armed and dangerous, thus justifying the intrusion of a frisk for weapons. We
respectfully disagree. We found that Appellant Officer Bradley testified credibly about
the facts and circumstances which accounted for his reasonable suspicion that Appellant
was dangerous and possibly armed: to wit, Appellant was engaged in a shouting match
with the SEPTA Bus Driver and the passengers and his speech was incoherent; the
conflict had dragged out on the streets of Philadelphia for several blocks; Mr. Thomas
got out of his car without being directed to do so and seemed ready for a fight; and the
immediate area, while mostly commercial, is well known to Officer Bradley for its
7
frequency of narcotics transactions, shootings, and gun arrests. The presence of three
small children in the back seat of Appellant's vehicle only amplified Officer Bradley's
concerns about safety.
Looking at all of these factors and the totality of the circumstances, we find that it
was reasonable for Officer Bradley to suspect that the Appellant might be dangerous and
conclude it was necessary to conduct a Terry frisk for weapons to ensure the safety of
those present. We note that an officer need not be absolutely certain that the individual
is armed; the issue is whether a reasonably prudent man in the circumstances would be
wan-anted in the belief that his safety or that of others was in danger. Commonwealth
u. Kondash, 808 A.2d 943, 948 (Pa. Super. 2002).
B. The Appellant Was Not Subjected to a "Custodial"
Interrogation that Required Miranda Warnings.
We have distilled Appellant's first, fourth, and sixth issues to the following
question: Did the suppression court err �nfinding that the Appellant was not subjected
to a custodial interrogation without Miranda warnings? Our answer is again, no.
Appellant moved to suppress any statements he made to the police on the
grounds that he was questioned by the police while in custody without Miranda
warnings. N.T. (Suppression Hearing) 06/27/2017 at p.8. Appellant further requested
that any evidence obtained as a result of these iui-Mirandized statements must be
suppressed a fruit of the poisonous tree. Id. at pp.S-c.
As previously stated, Officer Bradley frisked Appellant for weapons. N.T.
(Suppression Hearing) 06/27/2017 at p. 17, 30-31. Officer Bradley did not locate any
weapons on Appellant's person, but did detect an empty holster on Appellant's leg. Id.8
at pp.17-18, 32. Based upon this discovery, Officer Bradley asked Appellant if he had
any weapons on his person or in his vehicle. Id. at pp.is, 32-33. Appellant initially
denied having a gun in his car, but then stated that there "might" be a gun in the trunk.
Id. at pp.rd, 33. Officer Bradley then went to search the trunk of Appellant's car, where
he found a black .38 caliber handgun. Id. at p.19.
Appellant contends that Officer Bradley should have been read him Miranda
warnings before asking any questions. The issue of Miranda warnings was not directly
addressed in our conclusions oflaw on July 171 20171 but we did determine that Mr.
Thomas was subjected to an investigatory detention. N .T. (Suppression Hearing)
07/17/2017 at p.8. For the reasons set below, we conclude that while Appellant was
subjected to an investigatory detention, he not in custody at the time Officer Bradley
questioned him, and therefore Appellant was not entitled to Miranda warnings.
Generally, a suspect is to be advised of his right to remain silent and his right to
have an attorney present during questioning when he/she is subject to a custodial
interrogation, i.e., "questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of hisfreedom of action in any
significant way." Miranda v. Arizona, 384 U.S. 436, 443, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966) (emphasis added). See also Commonwealth v. Dupre, 866 A.2d 1089, 1106 (Pa.
Super. 2005) ("[a] person is in custody for the purposes of a custodial interrogation
when he is physically deprived of his freedom in any significant way or is placed in a
situation in which he reasonably believes that his freedom of action or movement is
restricted by the interrogation.") (citation omitted). However, "[n]ot every detention is
custodial for Miranda purposes." Commonwealth v. Pakacki, 901 A.2d 9831 988 (Pa.
2006). The Pakacki Court concluded that an individual who was patted down for
9
weapons was subjected to a Terry stop, and that it was not the equivalent of custody
necessitating the reading of Miranda warnings. Id.2
Here the police approached Appellant's vehicle while Appellant was involved in a
heated traffic dispute with the driver and passengers of a SEPTA bus. Based upon his
observations of Appellant, Officer Bradley decided to conduct a frisk for weapons out of
concern for his safety and the safety of others around him. When the frisk yielded a
holster but not a firearm, Officer Bradley began to ask Appellant whether he had a gun
on his person or in the vehicle. N.T. (Suppression Hearing) 06/27/2017 at pp.id, 32-33.
On cross-examination, Officer Bradley expressed his belief that Appellant was not
free to leave during this interaction. N.T. (Suppression Hearing) 06/27/2017 at 32. At
this moment when Officer Bradley was questioning Appellant whether he had a weapon,
however, Appe1lant was not subjected to a deprivation of freedom that was the
functional equivalent of custody that would require the reading of Miranda rights.
Commonwealth v. Murray, 936 A.2d 76, 81 (Pa. Super. 2007); see also Maryland u,
Shatzer, 559 U.S. 98, 113, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010) ("the temporary and
relatively nonthreatening detention involved in a traffic stop or Terry stop does not
constitute Miranda custody.") (citations omitted).
Appellant was frisked and questioned by Officer Bradley to confirm or dispel his
suspicions, but Appellant was not transported against his will. Officer Bradley did not
use restraints on him, nor did the officer show, threaten or use force against him other
2 Further, "[t]he fact that a police investigation had focused on a particular individual
does not automatically trigger 'custody,' thus requiring Miranda warnings."
Commonwealth v. Schwing, 964 A.2d 8, 12 (Pa. Super. 2008) (emphasis original)
(quoting Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999) (en bane)).
10
than the short-lived and relatively non-threatening detention necessary for the Terry
frisk. Having examined the totality of the circumstances, we conclude that Appellant
was not in custody for Miranda purposes and therefore not entitled to be given
Miranda warnings. We properly denied his motion to suppress his statements and any
evidence the police obtained as a result of those statements, to wit, the gun recovered
from the trunk of Appellant's car.
As an aside, we note that Appellant has not directly challenged our conclusion
that the search of the trunk was proper, except as part of his general assertion that we
erred in not suppressing the firearm and his claim that as the fruit of the poisonous tree
with respect to his claim that he gave vui-Mirandized statements during a custodial
detention. Appellant's 1925(b) statement at ,i,i 1, 4. We stand by our finding that once
Officer Bradley located the holster during the frisk and learned that a weapon might be
located in the trunk, Officer Bradley had probable cause to search the open, red
backpack in the trunk of AppeJlant's car for the firearm.
The Supreme Court of Pennsylvania determined in Commonwealth v. Gary that
the prerequisite for conducting a warrantless search of a motor vehicle is "probable
cause to search" and "no exigency beyond the inherent mobility of a motor vehicle is
required." 91 A.3d 102, 138 (Pa. 2014) (plurality).e Appellant's statement to Officer
Bradley that he might have a gun in his trunk, established probable cause for Officer
Bradley to believe that a potential violation of the Uniform Firearms Act, 18 Pa.C.S. §
JWhile Gary was a plurality opinion announcing the judgment of the Supreme Court,
the Superior Court has adopted the holdings of Gary in several of its published
decisions. See Commonwealth v. Green, 168 A.3d 180, 186 (Pa. Super. 2017) (applying
Gary to the review of search of car); Commonwealth v. Freeman, 128 A.3d 1231, 1243
(Pa. Super. 2015); Commonwealth v. Hudson, 92 A.3d 1234, 1241 (Pa. Super. 2014).
11
6106, had occurred. Under Gary, the inherent mobility of Appellant's vehicle was an
exigent circumstance that permitted Officer Bradley to open and search the trunk
without a warrant.
C. The Suppression Court Did Not Err in Relying on Appellant's
Statement to Officer Bradley, Which Had Not Been Disclosed
in Discovery.
In the fifth paragraph of his Statement of Errors, Appellant argues that it was
improper for us to rely on Officer Bradley's testimony regarding any statements that
Appellant made to him during their interaction on June 25, 2016 because those
statements had not previously been disclosed in discovery. The suppression record
reflects that defense counsel did not object to Officer Bradley's testimony about the
statements on the basis that the statement had not previously been disclosed to the
defense in discovery. N.T. (Suppression Hearing) 06/27/2017 at pp.18-19. Instead,
counsel chose to cross-examine Officer Bradley about Appellant's statement there
"might" be a gun in the trunk of his car and test his credibility regarding the omission of
this statement from any of the police reports Officer Bradley had authored. Id. at p.33,
Officer Bradley took responsibility for the omission in a credible fashion and further
admitted that he made no mention of Appellant's statements to him during his
preliminary hearing testimony. Id.
Pennsylvania Rule of Criminal Procedure 573 governs pre-trial discovery in
criminal cases. The rule provides that, inter alia, inculpatory statements and the
identity of the person to whom it is made are subject to mandatory disclosure by the
Commonwealth when they are: (1) requested by the defendant, (2) material to the case,
12
and (3) within the possession or control of the prosecutor. Pa.R.Crim.P. 573(B)(1)(b)
(emphasis added). Rule 573 also imposes a continuing duty to disclose:
If, prior to or during trial, either party discovers additional evidence
or material previously requested or ordered to be disclosed by it,
which is subject to discovery or inspection under this rule, or the
identity of an additional witness or witnesses, such party shaU
promptly notify the opposing party or the court of the additional
evidence, material, or witness.
Pa.R.Crim.P. 573(D). However, "[w]here the evidence is equally accessible or
inaccessible to both the Commonwealth and the defense, the defense cannot use the
discovery rules against the Commonwealth for its failure to produce the evidence."
Commonwealth v. Miller, 172 A.3d 632, 647 (Pa. Super. 2017) (quoting Commonwealth
v. Dent, 837 A.2d 571, 585 (Pa. Super. 2003)). See also Commonwealth v. Sullivan, 820
A.2d 795, 801-804 (Pa. Super. 2003) (finding that the Commonwealth had not
committed a discovery violation where state trooper testified for the first time at trial
about defendant's admission to cocking the gun used in crime because the
Commonwealth had not known about this inculpatory statement).
In Miller, a corrections officer had not included an inculpatory statement that
defendant had made to him in his official report, and first told the prosecutor about the
statement during the trial. Id. The Superior Court, therefore, reasoned that the
inculpatory statement "was equally inaccessible to both the Commonwealth and the
defense" and noted the Commonwealth complied with its continuing duty to disclose by
immediately informing defense counsel of the inculpatory statement. Id. The Superior
13
Court held Miller could not use the discovery rules to preclude the Commonwealth from
admitting the inculpatory statement. Id. at 647-48.4
Similar to Sullivan and Miller, Officer Bradley did not document Appellant's
statement that there might be a gun in the trunk of his vehicle in his police report. Nor
did he testify about it on a prior occasion. There is nothing in the record to suggest that
the attorney for the Commonwealth knew about the inculpatory statement prior to the
presentation of Officer Brady's testimony. Until the time of its disclosure, as in Sullivan
and Miller1 the statement was equally accessible or inaccessible to both the
Commonwealth and the defense and thus not subject to suppression as a remedy under
Rule 573 of the Rules of Criminal Procedure.
Moreover, once the inculpatory statement was disclosed at the suppression
hearing, Appellant's counsel did not object or raise the alleged discovery violation.
Rather than object, Appel1ant used the statement on cross-examination to confront
Officer Bradley about the omission to challenge the officer's credibility.
Appellant has not demonstrated that our decision to admit Officer Bradley's
testimony was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-
will. Without such evidence, our admission of Appellant's statement was proper.
Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015) (citations omitted) ("the
admissibility of evidence is a matter for the discretion of the trial court and a ruling
thereon will be reversed on appeal only upon a showing that the trial court committed
" Defense counsel in Miller declined an invitation to seek suppression of the inculpatory
statement, electing to cross-examine the corrections officer "extensively about his
untimely disclosure and omission within the report as part of his broader attempt to
undermine (the correction officer's) credibility." 172 A.3d at 647.
14
an abuse of discretion ... a result of manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be clearly erroneous'}
IV. Conclusion
For the reasons discussed supra, we respectfully request that our order denying
Appellant's motion to suppress and Appellant's judgment of sentence be affirmed.
BY THE COURT:
/ktt Stella Tsai, J.
April 19, 2018
15
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT
TRIAL DIVISION - CRIMINAL SECTION
COMMONWEALTH OF CP-51-CR-0006648-2016
PENNSYLVANIA,
Appellee
v.
DARNELL THOMAS, 253 EDA2018
Defendant-Appellant
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing Order upon the person(s),
and in the manner indicated below, which service satisfies the requirements of Pa. R.
Crim. P. 114:
Larry Goode, Esq.
Philadelphia District Attorney's Office, Appeals Unit
3 South Penn Square
Philadelphia, PA 19107
Type of Service: Interoffice Mail
Jules Norris Szanto, Esq.
1700 Market St. Suite 1005
Philadelphia, PA 19103
Type of Service: First Class Mail
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Law Clerk to the Honorable Stella Tsai