Judges Opinions, — October 31, 2018 10:00 — 0 Comments

Commonwealth of PA vs. Joel Plaza No. CP-38-CR-0000935-2017

Criminal Action-Law-Constitutional Law-Drug Related Charges-Possession with Intent to Deliver-Miranda Rights-Voluntariness of Waiver-Consent to Search-Voluntariness of Consent-Prima Facie Case

Defendant, who was charged with violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq., including Possession with Intent to Deliver (“PWID”) relating to his presence in a kitchen in front of a pot of boiling water next to a measuring cup and a digital scale containing a large quantity of cocaine at an apartment leased by Michael Pifath (“Lessor”), filed a Pretrial Motion seeking suppression of evidence and a Petition for Habeas Corpus relief challenging the Commonwealth’s establishment of a prima facie case as to the PWID charge.

1. Warnings pursuant to Miranda v. Arizona, 384 US 436 (1966), are required when an individual is subject to custodial interrogation.
2. A custodial interrogation is questioning initiated by law enforcement authorities in which law enforcement should know that the words or actions reasonably are likely to elicit an incriminating response from the defendant.
3. In considering whether a defendant has waived his or her Miranda rights, the court should consider whether the waiver was voluntary in the sense that the choice was not the end of governmental pressure and the waiver was knowing and intelligent in the sense that it was made with full comprehension of both the nature of the right being abandoned and the consequence of the choice.
4. Voluntariness of a waiver is determined from the totality of the circumstances surrounding the confession. In assessing the voluntariness of waiver, the court should consider the duration and means of interrogation, the physical and psychological state of the accused, the conditions attendant to the detention, the attitude of the interrogator and any other facts that could drain a person’s ability to withstand suggestion and coercion.
5. An individual who is read his or her rights, indicates understanding of those rights and makes a statement can be found expressly to have waived his or her Miranda rights even though there is no specific statement of waiver of rights.
6. Unsolicited statements of a defendant need not be preceded by Miranda warnings.
7. When the totality of the circumstances reveals that Defendant was advised his Miranda rights by law enforcement, verbally indicated understanding of those rights, made contradictory statements regarding ownership of the cocaine, began to yell at the lessor of the apartment for permitting law enforcement to enter the apartment and asked the lessor if he would accept responsibility for the cocaine and later signed a written waiver of his Miranda rights and there is no indication of coercive or manipulative conduct on the part of law enforcement, the record establishes that Defendant voluntarily waived his Miranda rights.
8. If consent to a search voluntarily is given by an individual who has authority to give that consent, a warrantless search is proper.
9. In determining voluntariness of consent for a search, considerations for the court include the defendant’s custodial status, the use of duress or coercive tactics by law enforcement, the defendant’s knowledge of his or her right to refuse consent, the defendant’s education and intelligence, the defendant’s belief that no incriminating evidence will be found and the extent and the level of the defendant’s cooperation with law enforcement.
10. In light of the fact that Defendant twice was advised of his Miranda rights, signed a written waiver of those rights, signed two (2) written forms authorizing his consent to search cell phones that informed him that he did not have to consent to the same and provided the passwords of the cell phones to law enforcement and there is no evidence of undue duress on the part of law enforcement or compromising factors about Defendant’s maturity or intelligence, consent to search the cell telephones was given freely and knowingly.
11. To demonstrate the existence of a prima facie case, the Commonwealth must produce evidence of every material element of the charged offense and the defendant’s complicity therein. The proof need be such that if the evidence were presented at trial and accepted as true, the judge would be warranted in allowing the case to go to the jury.
12. Since the lessor of the apartment stated to law enforcement that his supplier was inside of his apartment, Defendant was found standing in front of a pot of boiling water on the stove next to a large pile of cocaine on a digital scale, Defendant’s cell phone was plugged into the wall for charging next to the scale, testimony was provided by law enforcement that the items found in close proximity to Defendant commonly were used to cook crack cocaine, Defendant made statements indicating that the cocaine belonged to he and the lessor of the apartment and a law enforcement officer provided an expert opinion that the cocaine was possessed with intent to deliver and/or manufacture it, the Commonwealth established a prima facie case to support the PWID charge.
L.C.C.C.P. No. CP-38-CR-0000935-2017, Opinion by John C. Tylwalk, President Judge, January 30, 2018.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION NO. CP-38-CR-935-2017

COMMONWEALTH OF PENNSYLVANIA
v.
JOEL PLAZA

ORDER OF COURT

AND NOW, this 30th day of January, 2018, upon consideration of Defendant’s Pretrial Motion and the evidence adduced at the hearing conducted on January 10, 2018, it is hereby Ordered that said Motion is DENIED. It is further Ordered that Defendant’s Petition for Habeas Corpus Relief is DENIED. Defendant is directed to appear for the Call of the List scheduled for February 6, 2018 at 8:30 a.m. in the designated Courtroom and the Term of Criminal Jury Trials to commence on February 26, 2018.
BY THE COURT:

JOHN C. TYLWALK, P.J.
APPEARANCES:

NICHOLE EISENHART, ESQUIRE FOR THE COMMONWEALTH
FIRST ASSISTANT DISTRICT ATTORNEY

ELIZABETH JUDD, ESQUIRE FOR JOEL PLAZA
ASSISTANT PUBLIC DEFENDER

OPINION, TYLWALK, P.J., JANUARY 30, 2018.
Defendant is charged with Possession with Intent To Deliver and/or Manufacture a Controlled Substance (Cocaine) (“PWID”), Possession of a Controlled Substance (Cocaine), and Possession of Drug Paraphernalia (1) for an incident that occurred on April 22, 2017 at a second-floor apartment at 122 East Cumberland Street in the City of Lebanon. He has filed a Pretrial Motion seeking suppression of evidence and a Petition for Habeas Corpus Relief challenging the Commonwealth’s evidence to support a prima facie case as to the PWID charge. We conducted a hearing on January 10, 2018, the parties have filed Briefs, and the matter is now before us for disposition.
At the hearing, Detective Lawrence Minnick of the Lebanon County Drug Task Force testified that the apartment was the residence of Michael Pifath. Detective Minnick, Detective Ryan Mong, and Sergeant Brett Hopkins, also of the Drug Task Force, went to the apartment on April 22, 2017 to place Pifath under arrest for drug violations. After observing Pifath leaving the apartment, the officers arrested him. Detective Minnick and Detective Ryan Mong entered the apartment with Pifath’s consent in order to secure the premises. Once inside, Defendant was observed standing at the stove in the kitchen in front of a pot of boiling water. Beside him on the kitchen counter was a digital scale containing a large quantity of a substance that appeared to be cocaine on it and a glass Pyrex measuring cup.
Detective Mong determined that there were outstanding warrants for Defendant in Lancaster County. He arrested Defendant, placed him in handcuffs and turned him over to Detective Minnick. When Detective Minnick gave Defendant his Miranda warnings, Defendant said that he understood and would speak with him. Defendant made several statements to Detective Minnick. At one point, he yelled into the living room asking Pifath why he “let the cops in” and asking Pifath whether he would take responsibility for the drugs. Defendant first stated that the drugs did not belong to him, but later referred to Pifath and stated “what’s mine is his.” Defendant then stopped answering the questions posed to him by Detective Minnick.
Defendant was then transported to the Drug Task Force Office where he was given his Miranda warnings a second time. He signed a written waiver form and agreed to speak with the officers. At that point, he denied ownership of the cocaine found at the apartment or any involvement in any drug-related activity.
Detective Mong testified that he was the first officer to enter the apartment. After Pifath gave the keys to the officers and consented to a search the premises, he entered and observed Defendant at the stove with the digital scale containing a large quantity of what appeared to be cocaine just to the right of where he was standing. After he checked Defendant’s identification and found that he had an outstanding warrant from Lancaster County, Detective Mong arrested Defendant on that warrant. He then left Defendant with Detective Minnick.
At the Drug Task Force Office, all three officers remained in the room with Defendant. Detective Mong gave Defendant the written waiver of rights form and asked Defendant if he had any questions. Defendant was also asked to give consent to a search of two cellphones which were found in the apartment. Detective Mong believes that he advised that he would obtain a search warrant if Defendant did not give his consent. Defendant gave both oral and written consent to a search of the cellphones. The written forms he signed specifically provided that “I have been advised of my right to refuse to give consent for the search of and or forensic examination of the electronic device and waive that right.” At the time he was no longer handcuffed, but was still in custody and in leg shackles.
Detective Mong explained that, with regard to the PWID and/or Manufacture charge, it was his opinion, through his expertise and experience with the Drug Task Force, that the cocaine was intended for delivery. In reaching this conclusion, he noted the bulk weight of the cocaine – seventeen (17) grams, the presence of the scale for weighing it out, and the fact that no paraphernalia for personal use was found on Defendant’s person. Detective Mong further explained that crack cocaine was manufactured by mixing cocaine with water and baking soda. It was also his opinion that Defendant was in the process of manufacturing crack cocaine due to the presence of the boiling water, the Pyrex container and the fact that Pifath had informed him that his drug supplier was inside the apartment. Detective Mong acknowledged that Pifath was the tenant of the apartment and that Defendant did not reside there. He also acknowledged that, although no ingestion paraphernalia was found on Defendant, a cocaine pipe was found in the bedroom.
Miranda warnings are required when an individual is subject to custodial interrogation. Commonwealth v. McAliley, 919 A.2d 272 (Pa. Super. 2007). An interrogation for Miranda purposes is defined as questioning initiated by law enforcement authorities, where the police should know that their words or actions are reasonably likely to elicit an incriminating response from the defendant. Commonwealth v. Gwynn, 723 A.2d 143 (Pa. 1998). If a defendant has been advised of his rights prior to making a voluntary and knowing statement, such evidence is admissible at trial. Commonwealth v. Walker, 36 A.3d 1 (Pa. 2011). In considering an individual’s waiver of Miranda rights, the following are to be considered: (1) whether the waiver was voluntary, in the sense that the defendant’s choice was not the end of governmental pressure; and (2) whether the waiver was knowing and intelligent, in the sense that it was made with full comprehension of both the nature of the right being abandoned and the consequence of that choice. Commonwealth v. Pruitt, 951 A.2d 307 (Pa. 2008).
Voluntariness is determined from the totality of the circumstances surrounding the confession. The question of voluntariness is not whether the defendant would have confessed without interrogation, but whether the interrogation was so manipulative or coercive that it deprived the defendant of his ability to make a free and unconstrained decision to confess. The Commonwealth has the burden of proving by a preponderance of the evidence that the defendant confessed voluntarily.
Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998) (citations omitted).
In assessing voluntariness pursuant to the totality of the circumstances, a court should consider: the duration and means of interrogation, the physical and psychological state of the accused, the conditions attendant to the detention, the attitude of the interrogator, and any other factors that could drain a person’s ability to withstand suggestion and coercion. Nester at 882. An individual who is read his rights, indicates that he understands those rights, and then makes a statement can be found to have given an express waiver of his Miranda rights even though he does not specifically state that he waives his rights. See, Commonwealth v. Hughes, 639 A.2d 763 (Pa. 1994); Commonwealth v. Baez, 21 A.3d 1280 (Pa. Super. 2011). Unsolicited statements made by a defendant are not required to be preceded by Miranda warnings. Commonwealth v. King, 721 A.2d 763, 775 (Pa. 1998).
Defendant first contends that the statements he made to Detective Minnick should be suppressed. We disagree. Defendant was given his Miranda warnings by Detective Minnick and verbally indicated his understanding of those rights. He then made several statements to Detective Minnick. At first, Defendant denied ownership of the cocaine, but then indicated that it belonged to both himself and Pifath. Of his own accord, Defendant began to yell at Pifath for permitting the police to enter the apartment and asking Pifath if he was going to take responsibility for the cocaine. When Defendant ceased answering Detective Minnick’s questions, he never specifically asked for counsel or stated that he did not want to speak with the officers. Defendant was given his Miranda warnings again once he had been transported to the Drug Task Force office. He also signed a written waiver after being given an opportunity to review the form. He indicated that he could read and write and said that he had no questions upon his completion of his review of the form.
We find nothing in these circumstances to suggest that Defendant’s waiver was anything but voluntary. There is no indication of any coercive and/or manipulative conduct on the part of the officers such that Defendant would have been unable to make an unconstrained decision to waive his rights. Moreover, Defendant’s statements to Pifath were not the result of any questioning on the part of the officers, but were voluntary assertions made spontaneously due to his apparent anger/frustration with Pifath for consenting to the officers’ entering the apartment. Defendant clearly indicated that he understood what the officers told him and asked no questions which would point to any confusion or feelings of oppression on his part. For these reasons, we will deny Defendant’s request to suppress this evidence.
Defendant next complains that his consent to search of the cellphones was not given freely and voluntarily because he was in custody, handcuffed, and under the supervision of several detectives at the time his consent was given. We likewise reject this contention.
If consent is voluntarily given and the person consenting has authority to consent, a warrantless search is proper. Commonwealth v. Latshaw, 392 A.2d 1301, 1304 (Pa. 1978). Where the underlying encounter is found to be lawful, voluntariness becomes the exclusive focus. Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000). The Pennsylvania Supreme Court has set forth the following guidelines for determining whether consent is voluntary:
While there is no hard and fast list of factors evincing voluntariness of consent to search, some considerations include (1) the defendant’s custodial status, (2) the use of duress or coercive tactics by law enforcement personnel, (3) the defendant’s knowledge of his right to refuse to consent, (4) the defendant’s education and intelligence, (5) the defendant’s belief that no incriminating evidence will be found, and (6) the extent and level of the defendant’s cooperation with the law enforcement personnel.
Commonwealth v. Gillespie, 821 A.2d 1221, 1225 (Pa. 2003). The fact that a defendant’s consent is given at a time that he knows the search will reveal evidence of a crime does not necessarily make the consent involuntary. Commonwealth v. Strickler, supra.
Here, Defendant had already been given his Miranda warnings two times and had reviewed and signed a written waiver of those rights. He was given two written forms for consent to search his cellphones. Both forms specifically informed him that he did not have to give his consent. After reviewing the forms, however, he signed them and gave the passwords to the detectives so they could access the phones. No evidence of undue duress on the part of the detectives or of any compromising factors regarding Defendant’s maturity or intelligence was presented at the hearing such that his consent could be considered involuntary. Thus, we find that Defendant’s consent was given freely and knowingly and will, therefore, deny his request for relief on this basis.
Defendant lastly argues that the Commonwealth has failed to establish a prima facie case with regard to the PWID and/or Manufacture charge against him. We also find this argument to be without merit.
To demonstrate the existence of a prima facie case, the Commonwealth must produce evidence of every material element of the charged offense as well as the defendant’s complicity therein. Commonwealth v. Dantzler, 135 A.3d 1109, 1114 (Pa. Super. 2016). The Commonwealth’s burden at this stage falls short of proof beyond a reasonable doubt. Commonwealth ex rel. Lagana v. Commonwealth Office of Attorney General, 662 A.2d 1127, 1129 (Pa. Super. 1995), citing Commonwealth v. Lacey, 496 A.2d 1256 (Pa. Super. 1985). The proof need only be such that, if the evidence were presented at trial and accepted as true, the trial judge would be warranted in allowing the case to go to the jury. Id. To meet this burden, the Commonwealth may utilize the evidence produced at the preliminary hearing and may also submit additional proof. Commonwealth v. Dantzler, supra.
The Controlled Substance Act prohibits “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance.” 35 P.S. §780-113(a)(30). Defendant is charged with PWID and/or Manufacture of a controlled substance – cocaine/crack cocaine. Pifath, the resident of the apartment, stated to the detective that his supplier was inside. Defendant was found standing in front of a pot of boiling water on the stove next to a large pile of cocaine on a digital scale on the counter. Next to those items, he had his cellphone plugged into the wall for charging. Detective Mong noted that the items found in close proximity to Defendant were commonly used to cook cocaine into crack cocaine. Defendant’s statements indicated that the cocaine belonged to him and Pifath. Taking all these factors into consideration, Detective Mong gave his expert opinion that the cocaine was possessed with the intent to deliver and/or manufacture. Giving the Commonwealth the benefit of the reasonable inferences based on this evidence, we find that it has established a prima facie case of PWID and/or manufacture of a controlled substance and we will deny Defendant’s Petition for Writ of Habeas Corpus.
We will enter an appropriate Order and direct Defendant to appear for the next scheduled Call of the List.

(1) Counts 1 through 3, 35 P.S. §780-113(a)(30), 35 P.S. §780-113(a)(16), and 35 P.S. §780-113(a)(32), respectively.

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