Commonwealth v. Garvin

• Decision Date: 30 May 2012
• Citation: 2012 PA Super 112,50 A.3d 694
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. David GARVIN, Appellant.
• Court: Pennsylvania Superior Court

50 A.3d 694

2012 PA Super 112

COMMONWEALTH of Pennsylvania, Appellee

v.David GARVIN, Appellant.

Superior Court of Pennsylvania.

Submitted April 23, 2012.

Filed May 30, 2012.

Karl Baker, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: STEVENS, P.J., GANTMAN, J., and FITZGERALD, J.^*

OPINION BY STEVENS, P.J.

David Garvin (hereinafter “Appellant”) appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County on March 31, 2011, at which time he received an aggregate sentence of six (6) months to twelve (12) months in prison ¹ along with two (2) years' reporting probation following his convictions of Prostitution ² and Criminal Solicitation.³ Upon our review of the record, we affirm.

The trial court summarized the procedural history and the testimony presented at the suppression hearing as follows:

STATEMENT OF THE CASE

On September 8, 2010, [Appellant] was arrested and charged with 1) Prostitution pursuant to 18 Pa.C.S.A. § 5902; 2) Promoting prostitution pursuant to 18 Pa.C.S.A. § 5902(b); 3) reckless Endangerment pursuant to 18 Pa.C.S.A. § 2705; and Criminal Solicitation pursuant to 18 Pa.C.S.A. § 902.

Prior to trial, [Appellant] filed an Omnibus Motion to suppress “anything said by [Appellant]” alleging involuntariness of the statements and violation of the right against self-incrimination due to the absence of Miranda[[⁴ warnings. On February 16th and 17th, 2011, this [c]ourt presided over the pre-trial suppression hearing. On February 17, 2011, the [c]ourt denied in part and granted in part [Appellant's] motion to suppress. Specifically, the [c]ourt denied suppression of [Appellant's] responses to the routine questions on the medical checklist. The Court granted the motion to suppress [Appellant's] responses to police follow-up questions not listed on the medical form.

Following the suppression hearing, [Appellant] was found guilty of Prostitution pursuant to 18 Pa.C.S.A. § 5902(a)(1) by the Honorable Daniel Anders on February 17, 2011. Prostitution pursuant to 18 Pa.C.S.A. § 5902(a)(1) constitutes a felony in the third degree “if the person who committed the offense knew that he or she was human immunodeficiency virus (HIV) positive”. Additionally, [Appellant] was found guilty of Criminal Solicitation pursuant to 18 Pa.C.S.A. § 902(a)(1)(iv). [sic]

On March 31, 2011, [Appellant] was given a mitigated sentence by Judge Anders of six (6) to twelve (12) months in county prison on the charge of Prostitution followed by two years['] reporting probation. The Criminal Solicitation charge was merged with the Prostitution charge for sentencing purposes. Immediate parole was granted.

On April 20, 2011, [Appellant] filed the instant appeal to the Superior Court of Pennsylvania. The sentencing court filed and served on [Appellant] an Order pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, directing [Appellant] to file and serve a Statement of Errors Complained of on Appeal, within twenty-one days of the Court's Order. In his Statement of Errors Complained of on Appeal, filed May 16, 2011, and served on the trial judge, Appellant raises one issue contending;

“a. The court erred in denying suppression of [A]ppellant's statements where [A]ppellant had not received Miranda warnings and made the statements in response to police questioning that was reasonably likely to elicit incriminating responses.” ¹

EVIDENCE AT SUPPRESSION HEARING

Officer Joseph Ferrero, the undercover officer solicited by [Appellant], testified that on the evening of September 8, 2010, at approximately 6:55 p.m., [Appellant] was arrested for “prostitution violations”. (N.T. 2/16/2011, pg.6). Upon arrest, [Appellant] was transported to the 6th Police District for processing. Inside the 6th District processing area, Officer Ferrero assisted his partner, Officer Blackburn, in preparing routine booking forms necessary to process [Appellant]. Specifically, Officer Ferrero helped prepare “the detainee's medical checklist”, form 75–605, by reading the questions on the form while Officer Blackburn wrote down [Appellant's] responses. In addition, to the medical checklist, Officer Ferrero was also “preparing the original 48, which is basically the police report” and the 75–229 which contains [Appellant's] biographical information. (N.T. 2/16/2011, pg.12)

Officer Ferrero read the medical questions aloud to [Appellant] directly from the “Detainee's Questionnaire”. (N.T. 2/16/2011, pg.8) Question number seven asks “Are you receiving any type of treatment?” to which [Appellant] responded, “Yes”. (N.T. 2/16/2011, pg.9) Officer Ferrero stated that he did not immediately ask [Appellant] any follow-up questions to his response. [Appellant], however, volunteered additional information by stating he was receiving treatment for “HIV and thyroid disorder” which were written down in the remarks portion of the medical form. (NT. 2/16/2011, pg.9)

After [Appellant] disclosed his HIV status, Officer Ferrero asked “You knew you had HIV, and you were going to have sex with me anyway?” and “Do you know that's how HIV is spread?” (N.T. 2/16/2011, pg.10) [Appellant] responded “Yes” to both questions. (N.T. 2/16/2011, pg.10) Officer Ferrero acknowledged these questions were not part of the medical form.

Officer Ferrero testified that the Detainee's Medical Checklist, 75–605, is a standard form used in the booking process, along with the 75–48 and 75–229, which is “prepared for everyone” arrested. It applies to every person equally regardless of the offense, “anywhere from a summary to a felony this is prepared for everyone”. (N.T. 2/16/2011, pg.11) Officer Ferrero further testified that the questions on the form were “designed so that we could basically get whatever detainee medical treatment they need, if they need it at the time”. (N.T. 2/16/2011, pg.20)

Trial Court Opinion filed, 8/4/11 at 1–4.

Appellant filed a timely notice of appeal on April 20, 2011. On April 25, 2011, the trial court directed Appellant to file a concise statement of the errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On May 16, 2011, Appellant complied. Also on that date, Appellant filed a Request for Extension of Time to File a Supplemental Statement of Errors Upon Receipt of All Notes of Testimony wherein he requested that the trial court grant him an additional twenty-one (21) days in which to file a supplemental statement upon the receipt of the transcripts. The trial court granted Appellant's petition, though Appellant did not file a supplemental statement.⁵

In his brief, Appellant presents the following issue for our review:

Did not the lower court err in failing to suppress statements made by [A]ppellant in response to custodial interrogation, where the interrogating officer knew or had reason to know that the questions, though biographical in nature, were reasonably likely to elicit an incriminating response?

Brief for Appellant at 3. The Commonwealth has not filed a brief.⁶

Our Supreme Court recently set forth the well-settled standard of review of a suppression ruling as follows:

Our review is limited to determining whether the record supports the findings of fact of the suppression court and whether the legal conclusions drawn from those findings are correct. Commonwealth v. Mistler, 590 Pa. 390, 396, 912 A.2d 1265, 1268 (2006). When it is the defendant who appeals an adverse suppression ruling, we may consider only the evidence presented for the Commonwealth and that of the defense which remains uncontradicted when fairly read in the context of the entire record. Commonwealth v. Pruitt, 597 Pa. 307, 325, 951 A.2d 307, 317 (2008). We are bound by the factual findings of the suppression court, which are supported by the record, but we are not bound by the suppression court's legal rulings, which we review de novo. Commonwealth v. Snyder, 599 Pa. 656, 664, 963 A.2d 396, 400 (2009).

Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291, 320–21 (2011), cert. denied,––– U.S. ––––, 132 S.Ct. 267, 181 L.Ed.2d 157 (2011).

18 Pa.C.S.A. § 5902 reads as follows:

§ 5902. Prostitution and related offenses(a) Prostitution.—A person is guilty of prostitution if he or she:

(1) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business; or

(2) loiters in or within view of any public place for the purpose of being hired to engage in sexual activity.

(a.1) Grading of offenses under subsection (a).—An offense under subsection (a) constitutes a:

(1) Misdemeanor of the third degree when the offense is a first or second offense.

(2) Misdemeanor of the second degree when the offense is a third offense.

(3) Misdemeanor of the first degree when the offense is a fourth or subsequent offense.

(4) Felony of the third degree if the person who committed the offense knew that he or she was human immunodeficiency virus (HIV) positive or manifesting acquired immune deficiency syndrome (AIDS).

18 Pa.C.S.A. § 5902.

In addition, we note that not every statement made by an individual during a police encounter constitutes an interrogation. Commonwealth v. Williams, 941 A.2d 14, 30 (Pa.Super.2008).Miranda rights are required only prior to a custodial interrogation. Commonwealth v. Housman, 604 Pa. 596, 986 A.2d 822, 839 (2009), cert. denied,––– U.S. ––––, 131 S.Ct. 199, 178 L.Ed.2d 120 (2010). “Custodial interrogation is ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of [his] freedom of action in any significant way.’ ” Commonwealth v. Gonzalez, 979 A.2d 879, 887–88 (Pa.Super.2009), quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Furthermore, volunteered or spontaneous utterances by an individual are admissible without the administration of Miranda warnings. Id. See also, Commonwealth v. Cornelius, 856 A.2d 62, 75 (Pa.Su...