United States District Court, W.D. Pennsylvania
BARRY FISCHER SENIOR UNITED STATES DISTRICT JUDGE.
before the Court is an Amended Motion to Suppress Evidence
(Docket No. 192) filed by Defendant Andrae Pride
(“Defendant”). The Government filed its Response
in opposition thereto, and the Court held a motion hearing on
March 5 and 18, 2019, the official transcript of which has
been filed of record and considered by the Court. (Docket
Nos. 196, 202, 203). At the Court's direction, the
parties submitted post-hearing proposed findings of fact and
conclusions of law, (Docket Nos. 204, 207), but did not file
responses thereto by the established deadline of June 3,
2019. (Docket No. 201). After careful consideration of all of
the parties' submissions and the credible evidence of
record, and for the following reasons, Defendant's
Amended Motion to Suppress is denied.
March 29, 2016, Defendant was charged in a three-count
Indictment with the following: possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1); possession with intent to distribute a
quantity of heroin in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C); and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A)(i), all for conduct occurring on
or about March 17, 2016. (Docket No. 1).
Melvin Vatz, who was Defendant's second court-appointed
counsel, filed numerous pretrial motions on his behalf,
including two suppression motions. (Docket Nos. 87-94,
126-128). Following a hearing and additional briefing, the
Court denied Defendant's suppression motions, ruled on
the other pretrial motions and scheduled trial to begin on
October 10, 2018. (Docket Nos. 84, 85, 103, 105, 114, 116,
117, 139, 144, 159). At Defendant's request, the trial
was rescheduled on December 3, 2018. (Docket Nos. 149, 153,
October 2018, the Court received correspondence from
Defendant, which was forwarded to Attorney Vatz, who then
filed a motion to withdraw as counsel. (Docket No. 162).
Following a status conference held on October 25, 2018, the
Court granted Attorney Vatz's motion to withdraw. (Docket
Nos. 163, 166). Attorney William McCabe, who is
Defendant's current counsel, was appointed to represent
him on October 30, 2018. (Docket No. 167).
Attorney McCabe's appointment, the Court held several
status conferences to get the case back on track and
reschedule a trial date. (Docket Nos. 170, 175, 183, 188). At
the conference held on January 15, 2019, Defendant expressed
his intent to file an amended motion to suppress to which
Government counsel objected. (Docket No. 183). The Court
granted Defendant's oral motion for extension of time to
file pretrial motions and ordered that the amended
suppression motion must be filed by February 15, 2019.
(Docket No. 185). As stated, the Court held oral argument on
Defendant's motion and all supplemental briefing is
complete, thus the matter is ripe for disposition.
discussed in more detail below, at issue here is whether
Defendant was given Miranda warnings before he made
statements in response to questioning by law
enforcement. At the hearing, the Government called City
of Pittsburgh Bureau of Police Detectives Matthew Lebedda and
Victor R. DiSanti, Jr., who testified that Defendant was
provided with Miranda warnings and waived his
Miranda rights. The Government also entered into
evidence the Miranda warning card carried by
Detective Lebedda and used by Detective DiSanti. (Docket No.
200-7). Defendant cross-examined those witnesses and also
called Parole Agent Martin Vojacek and entered into evidence
a number of exhibits. (Docket Nos. 200-2, 200-3, 200-4,
200-5, 200-6, 201-2, 201-3). In this Court's estimation,
based on their demeanor and testimony in response to the
questioning of the attorneys and the Court at the suppression
hearing, Detectives Lebedda and DiSanti and Agent Vojacek
offered credible testimony concerning their versions of the
events that unfolded on the date in question, despite the
defense's efforts to impeach them. See United States
v. Garcia, 521 Fed.Appx. 71, 73 (3d Cir. 2013) (quoting
Anderson v. City of Bessemer, 470 U.S. 564, 575
(1985)) (“‘[w]hen findings are based on
determinations regarding the credibility of witnesses ... for
only the trial judge can be aware of the variations in
demeanor and tone of voice that bear so heavily on the
listener's understanding of and belief in what is
said.'”). In addition, both Detectives Lebedda and
DiSanti and Agent Vojacek presented as experienced officers.
In that regard, Detective Lebedda testified that he has been
employed as a Pittsburgh Police officer for 25 years,
including 15 years as a detective, Detective DiSanti
previously testified that he has 21 years of law enforcement
experience, including 17 years with the City of Pittsburgh,
and Agent Vojacek previously testified that he has 19 years
of experience in law enforcement, serving the past 12 years
with the Board of Probation and Parole. (Docket Nos. 111 at
7-8, 88-89; 202 at 4).
of background and as set forth in the Court's prior
suppression opinion, Agent Vojacek was assigned to supervise
Defendant, who was on state parole. (Docket No. 116 at 3).
Defendant was authorized to reside at an apartment on Mt.
Vernon Road in the Homewood section of the City of Pittsburgh
with his then-girlfriend, Sherelle Clausell. (Id.).
In March 2016, Agent Vojacek received information from ATF
Agent Neil Carman that Clausell had purchased ballistic
vests, gas masks and three firearms at the Big Butler Gun
Show and that Defendant and another individual were with her
and had been observed handling firearms at the gun show.
(Id. at 5). Agent Vojacek and ATF Agent Carman
believed that the types of firearms purchased by Clausell
were not commonly utilized by women of her stature.
(Id.). In view of Defendant's criminal history
and relationship to Clausell, Agent Vojacek felt that
Clausell had purchased the firearms for Defendant and
believed that he had reasonable suspicion to search
Defendant's residence. (Id. at 6). Agent Vojacek
sought and obtained approval from his supervisors to conduct
a search and arranged to meet with Defendant at the apartment
on March 17, 2016. (Id.). A pat down search of
Defendant uncovered more than $2, 400 and a cell phone.
(Id.). During Agent Vojacek's search of the
two-room apartment, he observed an open gun safe in the
bedroom which contained a firearm and a bag of suspected
heroin. (Id. at 7). At that point, Agent Vojacek
stopped his parole search and contacted Detective DiSanti of
the Pittsburgh Police. (Id.; Docket No. 203 at 5).
to the testimony adduced at the hearings on Defendant's
pending amended suppression motion, Agent Vojacek testified
that he briefed Detective DiSanti about what he had found
after DiSanti arrived on the scene. (Docket No. 203 at 7).
Shortly thereafter, numerous Pittsburgh police officers and
other parole agents arrived. (Id.). Agent Vojacek
testified that he did not recall being in the living room
area of the apartment when Defendant was read his
Miranda rights, nor could he recall who was present
in the room at that time. (Id. at 7, 8, 10, 19).
According to Agent Vojacek, six parole agents were at the
apartment, four of whom indicated to Vojacek that they did
not know whether Defendant was read his Miranda
rights because they were in and out of the living room area
and in other locations during the relevant time period.
(Id. at 23, 24-26). This information is consistent
with Agent Vojacek's email dated February 14, 2019, to
Government counsel indicating that he “checked with the
Agents present during this incident. No. one including myself
can recall any Miranda Rights being read while in the
residence. The extent of our involvement ended once Pgh PD
showed up and Detective DiSanti and crew took over.”
(Docket No. 201-2; Docket No. 203 at 13).
Lebedda testified that he accompanied Detective DiSanti to
Defendant's residence after DiSanti received a phone call
from state probation and parole about a possible parole
violation. (Docket No. 202 at 6). When the detectives
arrived, Defendant and Clausell, who were both handcuffed,
were sitting near each other on a couch in the living room
area of the apartment. (Id. at 8, 16-17). Detective
Lebedda unequivocally testified that he was present when
Detective DiSanti read Defendant and Clausell their
Miranda rights from a card that he had given
DiSanti. (Id. at 8-9, 43-44; Docket No.
200-7). The Miranda rights card, which Lebedda
carries in his wallet, states the following:
1. You have the right to remain silent.
2. Anything you say can and will be used against you in a
court of law.
3. You have the right to talk to a lawyer and have him
present with you while you are being questioned.
4. If you cannot afford to hire a lawyer, one will be
appointed to represent you before any questioning, if you
5. You can decide at any time to exercise these rights and
not answer any questions or make any statements.
(Docket Nos. 200-7, 202 at 9). Detective Lebedda further
testified that after reading each statement, DiSanti
individually asked Defendant and then Clausell if they
understood and each responded, “yes.” (Docket No.
202 at 11-13, 33-34, 43). Detective Lebedda explained that
DiSanti did not move on to the next statement until both
Defendant and Clausell responded, and the entire process took
approximately five to seven minutes. (Id. at 12, 33,
34, 35). Detective Lebedda testified that Defendant seemed to
understand the statements and responded to each one.
(Id. at 12-13). Following that process, Detective
Lebedda testified that DiSanti read Defendant and Clausell
the search and seizure form, which they executed and thereby
gave consent to search the apartment. (Id. at 20-21,
to Detective Lebedda, he and Detectives DiSanti and Novac, as
well as three to five parole agents, were present when
Defendant and Clausell were given their Miranda
warnings. (Docket No. 202 at 18, 19, 27-28, 35). Detective
Lebedda testified that everyone who was in the room remained
while the Miranda warnings were administered, but he
did not watch to see what everyone was doing. (Id.
at 35, 44). Detective DiSanti read the Miranda
warnings loud enough loud enough for Detective Lebedda to
hear, so he assumed others could hear as well. (Id.
DiSanti also testified that he administered Miranda
warnings to Defendant in a normal tone of voice when
Defendant was seated on a couch in the living room area of
the apartment, which occurred after Detective DiSanti advised
Defendant that he was under arrest. (Docket No. 202 at 47,
61, 75). Detective DiSanti recalled that Detective Lebedda
was present when he gave Defendant his Miranda
warnings, and other officers and parole agents were in the
vicinity but they came and went. (Id. at 54, 61).
Detective DiSanti confirmed that he read Defendant his rights
using Detective Lebedda's Miranda rights card.
(Id. at 48). Detective DiSanti testified that he
read Miranda rights to both Defendant and Clausell
at the same time and each acknowledged that they understood