Appeal from the Order Entered July 21, 2011 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000256-2011 CP38-CR-0001487-2010
The opinion of the court was delivered by: Bender, J.
BEFORE: STEVENS, P.J., BENDER, J., and GANTMAN, 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*fn1 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 Miranda*fn2 rights 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,*fn3 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]court 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]court 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 ...