Commonwealth v. Rush
|24 October 2022
|215 EDA 2022
|287 A.3d 890 (Table)
|COMMONWEALTH of Pennsylvania v. Brian Keith RUSH, Appellant
|Pennsylvania Superior Court
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:
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:
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...
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