Commonwealth v. Rush

• Decision Date: 24 October 2022
• Docket Number: 215 EDA 2022
• Citation: 287 A.3d 890 (Table)
• Parties: COMMONWEALTH of Pennsylvania v. Brian Keith RUSH, Appellant
• Court: Pennsylvania Superior Court

287 A.3d 890 (Table)

COMMONWEALTH of Pennsylvania

v.Brian Keith RUSH, Appellant

No. 215 EDA 2022

Superior Court of Pennsylvania.

Filed October 24, 2022

MEMORANDUM BY KUNSELMAN, J.:

Brian Keith Rush appeals from the judgment of sentence of 27 to 60 months’ imprisonment entered following his conviction for possession of controlled substance contraband by inmate, possession of a controlled substance, and use or possession of drug paraphernalia.¹ We affirm.

The trial court described the factual history:

In October of 2019, [Rush] was an inmate at Bucks County Correctional Facility and was being housed in the Men's Community Corrections Center while participating in the work release program. [Rush] resided by himself in cell C-2 of the C module at the Community Corrections Center. On October 28, 2019, at approximately 6:00 p.m., Corrections Officers Marco Semilia and Jacen Buono conducted a tour of the C module. While conducting the tour, Officer Semilia looked into the window of cell C-2 and saw [Rush], along with another inmate, Cody Bruce, in the cell together. Cody Bruce did not reside in cell C-2 with [Rush]. Officer Semilia observed [Rush] holding what appeared to be a green leafy substance contained in a plastic wrap type of material. Officer Semilia suspected that the substance was contraband, so he attempted to open the cell door. He found the door to be locked. Officer Semilia directed [Rush] to drop the suspected contraband and unlock the door, but [Rush] refused to obey his commands. Instead, [Rush] put the plastic wrap material containing a green leafy substance down the front of his pants.

Officer Semilia used his own key to unlock the cell door and proceeded to order [Rush] to lie on the floor and Cody Bruce to put his hands on the wall. Officer Semilia handcuffed [Rush] and then called for backup on his radio. Officer Buono overheard the call for help and ran across the C module to cell C-2 to assist Officer Semilia. Lieutenant [Nick] Minasian and Officers [Arthur] Malindi and [Patrick] Rooney also arrived at cell C-2 following Officer Semilia's call for help.

Officer Buono removed [Rush] from cell C-2 and began to escort him to a holding cell while Officer Malindi took custody of Cody Bruce. Officer Semilia locked cell C-2 in order to prevent anyone from tampering with possible contraband or other evidence. As the officers were walking [Rush] to the holding cell, Officer Semilia noticed a green leafy substance on the floor.

When [Rush] reached the holding cell, Officer Buono performed a quick pat-down search. While performing the pat-down search, Officer Buono and Lieutenant Minasian noticed more of a leafy green substance falling out of [Rush's] pant legs and onto the floor. Officer Semilia and Lieutenant Minasian collected the green leafy substance that fell onto the floor into a brown paper bag. Officer Buono then discovered a plastic wrapped baggie containing a green leafy substance in [Rush's] left pant pocket. The baggie found by Officer Buono as well as the brown paper bag used to collect the green leafy substance which had fallen on the floor was turned over to Lieutenant Minasian. Lieutenant Minasian placed the plastic wrapped package into the brown paper bag and later photographed the contraband, placed it in an evidence bag and stored it in a safe in a secure room [to] which only lieutenants have access.

[Rush] was then taken to the unclothed body search room where he removed his clothing. Officer Buono inspected [Rush's] pants and found a white latex glove containing a green leafy substance. Once again the green leafy substance was handed over to Lieutenant Minasian who placed it in the brown bag. Lieutenant Minasian later photographed the substance, placed it in an evidence bag and stored it in the evidence safe.

Officers Rooney and Semilia went back to search cell C-2. When they unlocked the door, Officers Rooney and Semilia found more of a green leafy substance on [Rush's] bed. In addition, the officers found a pair of jeans in a plastic bag in front of [Rush's] locker. Inside the jeans pocket was a blue glove which contained an unopened Suboxone strip. The Suboxone strip was also turned over to Lieutenant Minasian who placed it in the brown paper bag with the other evidence collected. Lieutenant Minasian later took photographs of the strip, placed it in an evidence bag and secured it in the evidence safe.

Trial Court Opinion, 3/14/22, at 1–3 (record citations omitted). Officers also secured Rush's black sock, which had the same green substance that had fallen from Rush's pant leg on it.

The next morning, October 29, 2019, Investigator Daniel Onisick retrieved the evidence, took additional photographs, and sealed it in clear plastic evidence bags. Investigator Onisick sent the two balls of suspected K2, the loose substance from the floor, and the Suboxone strip to NMS Labs for testing. Laboratory chemical analysis later confirmed that the substances were K2 and Suboxone.

On October 31, 2019, three days after the incident, Investigator Onisick attempted to interview Rush. He took Rush to the investigations unit office and advised Rush that he was likely to face criminal charges for possessing contraband. Investigator Onisick repeatedly attempted to advise Rush of his Miranda rights; however, Rush angrily interrupted. Rush said that he found the items in the bathroom and was showing them to Cody Bruce and that the jeans on the floor were not his because he hangs his jeans up. As Investigator Onisick kept trying to tell Rush his Miranda rights, Rush complained that the items were not yet tested, and he asked what Cody Bruce had told Investigator Onisick. Investigator Onisick ended the attempted interview because he knew that Rush did not want to be Mirandized . This interaction lasted "a couple of minutes" and was not recorded.

On December 9, 2019, Rush was charged in connection with the incident. On July 1, 2021, following the appointment of conflicts counsel, Rush filed a motion (1) to exclude evidence of the drugs based on a defective chain of custody, (2) to dismiss the case because the Commonwealth did not provide exculpatory evidence pursuant to Brady v. Maryland , 373 U.S. 83 (1963), (3) to suppress evidence of Rush's statements based on a violation of Miranda v. Arizona , 384 U.S. 436 (1966), and (4) to compel discovery. The trial court heard and denied Rush's motions before trial on August 4, 2021.

The case proceeded to trial on August 4 through 6, 2021, and the jury found Rush guilty of the above offenses. On October 20, 2021, the trial court sentenced Rush to serve 27 to 60 months of imprisonment for the contraband offense, with no additional penalty on the other offenses. Rush moved to reconsider, the trial court denied the motion, and Rush appealed. Rush and the trial court complied with Pennsylvania Rule of Appellate Procedure 1925.

Rush now raises five issues for our review:

A. Did the trial court err when it denied [Rush's] suppression motion and permitted [Rush's] statements to be admitted at trial when those statements were made during an in-custody interrogation and where [Rush] did not receive Miranda warnings?

B. Did the trial court err when it denied [Rush's] motion to dismiss the case as the prosecution failed to produce and preserve several pieces of evidence in violation of Brady v. Maryland ?

C. Did the trial court err when it denied [Rush's] motion to compel discovery, which should have been produced pursuant to Rule 573?

D. Did the trial court err when it failed to declare a mistrial when the discoverable material was produced mid-trial?

E. Did the trial court err in denying [Rush's] suppression motion relating to controlled substances when the evidence did not meet the requirements of Pennsylvania Rule of Evidence 901 ?

Rush's Brief at 5.

A. Suppression of Statements

Rush first argues that the suppression court should have suppressed his statements to Investigator Onisick based on a violation of Miranda v. Arizona , 384 U.S. 436 (1966). Rush's Brief at 28–33. There being no dispute that Rush was in custody, the issue is whether Investigator Onisick subjected him to an interrogation.

We review Rush's claim according to these well-settled principles:

our standard of review for the denial of a suppression motion is de novo and is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Our scope of review is to consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the suppression record as a whole.

Commonwealth v. Green , 265 A.3d 541, 550–51 (Pa. 2021) (citations and quotation marks omitted).

The suppression court found that although Investigator Onisick attempted to interrogate Rush, he "did not actually begin interrogation" because Rush "did not allow himself to be given Miranda rights." N.T., Hearing, 8/4/21, at 43. Specifically, the court found based on Investigator Onisick's testimony from the pretrial hearing that:

on October 31, 2019, [Investigator Onisick] interviewed [Rush] and informed him that he was possibly facing criminal charges for possession of synthetic marijuana and Suboxone. Investigator Onisick also told [Rush] that he wished to advise him of his Miranda rights. At the time, [Rush] was very animated and angry. [Rush], not allowing Investigator [Onisick] to Mirandize him, spontaneously blurted out that he had found the items in the bathroom and that he was showing them to Cody Bruce when the officers came into his cell. Investigator [Onisick] continued to try to Mirandize [Rush], but [Rush] continued to talk over him. [Investigator Onisick] ended the interview because he did not believe [Rush] wished to be advised of his Miranda rights.

Trial Court Opinion, 3/14/22, at 10. The court found that Rush's statements were spontaneous, not in response to any...