J-S12024-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : ANDRZEJ MUSZAK : No. 2035 EDA 2023
Appeal from the Order Entered July 11, 2023 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0002231-2022
BEFORE: DUBOW, J., SULLIVAN, J., and BENDER, P.J.E.
MEMORANDUM BY SULLIVAN, J.: FILED NOVEMBER 25, 2024
The Commonwealth appeals from the trial court’s order suppressing
statements made by Andrzej Muszak (“Muszak”). 1 We affirm.
Prior to trial, Muszak filed a motion to suppress statements he made: 1)
prior to receiving Miranda warnings, 2) immediately after receiving those
warnings, and 3) later at police headquarters. See Omnibus Pretrial Motion,
12/8/22, at unnumbered 4.2 The Commonwealth conceded at the suppression
____________________________________________
1The Commonwealth is permitted to appeal as of right from an order that does not end the entire case where, as it did here, it certifies that the order will substantially handicap the prosecution. See Pa.R.A.P. 311(d).
2 The parties agree the police Mirandized Muszak twice, once at the scene
and once at the police station. See N.T., 5/2/23, at 20, 24, 29-30, 36-37, 44. Although the parties do not agree about the timing of some of the questions Muszak was asked and his responses, they do agree: 1) Muszak was in custody after officers drew their guns and handcuffed him at approximately (Footnote Continued Next Page) J-S12024-24
hearing Muszak was “in custody” at the time of the pre-Miranda statements
at approximately 11:28 p.m., which renders inadmissible any statements he
made pre-Miranda. As discussed below, the Commonwealth abandons on
appeal any claim the statement Muszak made at police headquarters was
admissible. Accordingly, we focus substantively only on the admissibility of
the statements Muszak made immediately after the administration of
Miranda warnings at approximately 12:04 a.m.
In May 2023, the court held an on-line (virtual) hearing on Muszak’s
suppression motion,3 at which the Commonwealth presented one witness:
Police Officer Martin Ksepka (“Officer Ksepka”). As an examination of the
record demonstrates, Officer Ksepka gave noticeably inconsistent testimony
11:28 p.m., see N.T., 5/2/23, at 53, 2) Muszak was initially Mirandized at 12:04 a.m., see id. at 20, 29-30, 36-37, 44, and 3) Muszak was transported to the police station and Mirandized a second time and questioned, see id. at 24, 43. Thus, at suppression three “sets” of statements were initially at issue: the pre-Miranda questions initially put to Muszak, the immediately post-Miranda questions, and the statements given at the police station when Muszak had been re-Mirandized.
3 The court also briefly addressed a separate habeas corpus motion not at issue in this appeal. See N.T. 5/2/23, at 6-11.
-2- J-S12024-24
on direct examination and cross-examination, 4 which the trial court found
raised credibility questions. See N.T. Decision, 7/7/23, at 9.5
On direct examination, Officer Ksepka testified late one evening in July
2022, he arrived at a residence and saw a person (“the victim”) lying in the
driveway. See N.T., 5/2/23, at 17-18. Officer Ksepka entered the residence
and encountered Muszak, a Polish speaker6, holding his arms behind his back.
See id. at 14, 16-17. He testified Muszak did not respond to the officer’s
commands to show his hands, and later learned Muszak’s non-responsiveness
may have been the result of a language barrier. See id. at 17. Officer Ksepka,
who speaks and understands Polish, testified he and three other officers,
Corporal Jeff Papi, Officer Zach Swingle, and Officer Covert (“the additional
officers”),7 took Muszak out of the residence, sat him at a picnic table, and
began to ask him questions. See id. at 14-17. Officer Ksepka testified Muszak
4 Although the parties referred in passing at the suppression hearing to the
preliminary hearing testimony, see N.T., 5/2/23, at 5, 7-9, 55, and assumed familiarity with the evidence presented at that hearing, they did not seek to admit testimony from that hearing. Thus, under our standard of review, we confine our discussion to the officer’s testimony at the suppression hearing and review it in the order the parties elicited it.
5 The court did not announce its suppression on the date of the hearing; it did
so on July 7, 2023.
6 At the time of initial entry into the residence, it was unclear that there was
a language barrier, and Ksepka only discovered it sometime after Muszak was escorted outside the residence. See N.T., 5/2/23, at 46-47.
7 The record does not contain Officer Covert’s first name.
-3- J-S12024-24
understood his questions and did not indicate confusion, although he appeared
intoxicated. See id. at 18-20. Officer Ksepka testified he administered
Miranda warnings to Muszak in Polish at 12:04 a.m.,8 and had not previously
asked Muszak any questions about the “specifics of the case.” See id. at 20.9
On cross-examination, however, Officer Ksepka offered noticeably
different testimony. He initially testified he could not recall if Corporal Papi or
Officer Covert had drawn their guns, see id. at 27, but later in the cross-
examination admitted both he and Officer Covert had drawn their guns and
he and the additional officers took Muszak into custody at gunpoint with the
threat of pepper spray at 11:28 p.m., handcuffed him, and thereafter took
him to the picnic table. See N.T., 5/2/23, at 27-28, 34, 37-38. Officer Ksepka
testified he asked Muszak fewer than ten minutes of non-“guilt-seeking”
questions concerning whether there was anyone else in the house before
giving him Miranda warnings at 12:04 a.m. See id. at 28-30, 32-33.10
8 Officer Ksepka is not a certified Polish-English interpreter. See N.T., 5/2/23, at 26.
9 Muszak was handcuffed; Officer Ksepka did not have him sign or initial the Miranda warnings. See N.T., 5/2/23, at 44.
10 On the record, the court paused the Zoom hearing during the cross- examination of Officer Ksepka because it perceived he was looking down and to his right during questioning. The court ascertained Detective Ryan Venneman was in the room with him. Officer Ksepka denied the detective had passed him a note or had shown him anything during his testimony, but the suppression court made a note of its observations on the record. See N.T., 5/2/23, at 29.
-4- J-S12024-24
Officer Ksepka admitted that after the officers placed Muszak in custody
at 11:28 a.m.,11 they “had to guide him to the picnic table, because he was
stumbling around.” See id. at 38. Officer Ksepka also stated Muszak had
“bloodshot and red, glossy eyes,” was slurring his speech and mumbling
incoherently, and had sustained some injuries for which he had not received
treatment. See id. at 38, 45, 48. Initially, Officer Ksepka testified that while
outside the residence with Muszak, but before he administered Miranda
warnings, a cell phone rang somewhere in the grass near the picnic table, and
Muszak asked the officer to retrieve the phone. See id. at 41-47. Officer
Ksepka testified he asked Muszak, “What happened to the phone?” see id. at
40-43, 46, and Muszak said the victim had thrown it there. See id. at 41-43.
Officer Ksepka later contradicted this testimony and asserted it was after
receiving Miranda warnings that Muszak said he and the victim had fought
and the victim threw the phone into the grass. See N.T., 5/2/23, at 49.
Officer Ksepka testified he readministered Miranda warnings later that
morning at the police station prior to taking another statement from Muszak
to “document and reinforce the same statement” he had previously given.
See id. at 24, 44.
At the conclusion of the hearing, the court held the matter under
advisement. It announced its decision two months later. The court granted
11The Commonwealth conceded the officers placed Muszak in custody at 11:28 p.m. See N.T., 5/2/23, at 37.
-5- J-S12024-24
Muszak’s motion to suppress “any statements” Muszak made to the police.
See N.T. Decision, 7/7/23, at 11.12 The court articulated at length the specific
credibility issues it perceived with the officer’s testimony:
At first, [Officer Ksepka] doesn’t remember if guns were drawn and then . . . when [defense counsel] got him on cross- examination and I asked him, I said, [“Y]ou got to give me an honest picture of what was going on[”], and all of a sudden he remembered, yep, he had a gun pulled. Everybody had a gun pulled.
[A]s I said then[,] I’ll say it now, I’m pretty sure an officer will remember when they pulled their weapon. I think this is a pretty memorable event. It happened here because . . . unbeknownst to the officer[]s presen[t,] there was a language barrier and [Muszak] was being instructed to show his hands and he didn’t understand anybody.
*****
But there was over 30 minutes of time where [Muszak] was at a picnic table in the back of the yard and there were questions being asked of him. And again, the officer’s testimony was all over the place in the hearing before me about what happened, what did he remember, [and] what he didn’t remember.
So[,] he testified something along the lines of page 17: My first chance to speak with [Muszak] was when we were giving him verbal commands[] because his hands were still behind his back inside the residence when we came into contact with him.
[S]o that left me with the impression that he had to find [Muszak] and then it was like minutes later he testified that at the ____________________________________________
12 At the decision hearing, the court again mentioned its zoom hearing observations on the record and noted it had perceived that Detective Ryan Venneman, who was with Officer Ksepka during his Zoom suppression testimony, “was trying to either alert [Ksepka] to certain things or was passing him information maybe just to help.” See id. at 4. The court declared such conduct is not permitted during testimony, and “did not help the credibility assertions.” See id. at 4-5.
-6- J-S12024-24
time they didn’t understand there was a language barrier but that’s what it was.
And then on page 27 when he [was] asked whether Corporal Papi pulled out his gun, his answer was, I don’t recall. He was then asked if Officer Covert pulled his gun. “I don’t recall”.
But when he was shown Officer Covert’s report, which apparently indicates that firearms were drawn, he all of a sudden remembered. And then I asked him: Did you pull out your gun? And he remembered. So, again, it was from [“]I don’t know[”] to [“]I don’t remember[”] to [“]yeah[”].
We had a gentleman who was taken into custody under threat, pepper-sprayed, and then guns were drawn. He was in custody. And then it was interesting. The officer kept saying: Well, I wasn’t asking truth-seeking questions. That’s not the standard. I think it would have been fair game to ask who all was in the house, was anybody else armed in the house to make sure that safety was ascertained. Those I think were all appropriate questions, but that’s not what’s going on.
So, I’m going to suppress the statements[] because, unfortunately, in this case, given the circumstances of the officer’s testimony, it’s all over the place. I can’t -- I don’t know what to believe about what he said. It’s back and forth.
[I] struggled just to figure out how long he was in custody and how long the questioning was going on. At first, the officer didn’t recall . . . . And then the Commonwealth could see [Muszak] was in custody at 11:28 [p.m.] and I believe was not Mirandized despite the conversation that occurred with questions being asked until 12:04 a.m.
With the phone -- again, I can’t assess what accurately happened with the phone based on my questions about truthfulness and honesty from the officer and the story being less than consistent. So[,] I will suppress [Muszak’s] statement.
Id. at 6-9 (punctuation and capitalization corrected).
-7- J-S12024-24
The Commonwealth timely appealed the grant of suppression and
certified pursuant to Pa.R.A.P. 311(d) the court’s order would substantially
handicap its prosecution. The Commonwealth and the trial court complied
with Pa.R.A.P. 1925.
On appeal, the Commonwealth raises the following issue for our review:
Did the [trial] court commit error in its decision granting [Muszak’s] motion to suppress post-Miranda statements requiring said decision to be reversed?
Commonwealth’s Brief at 4 (capitalization standardized).
When the Commonwealth appeals an order granting a defendant’s
motion to suppress, this Court considers only the evidence from the defense
witnesses13 together with the evidence of the prosecution that when read in
the context of the entire record remains uncontradicted. Commonwealth
v. Dales, 820 A.2d 807, 812 (Pa. Super. 2003). A reviewing court is bound
by the trial court’s findings of fact if they are supported in the record but
conducts plenary review to determine if the court properly applied the law to
the facts. See Commonwealth v. Dunkins, 263 A.3d 247, 252 (Pa. 2021);
Dales, 820 A.2d at 812. Finally, a reviewing court must accept the
suppression court’s credibility determinations supported by the record. See
Commonwealth v. Carver, 318 A.3d 386, 390 (Pa. Super. 2024).).
13 Muszak presented no evidence.
-8- J-S12024-24
The Commonwealth argues the suppression court’s decision is “wholly
unsupported” by the record. See Commonwealth’s Brief at 9. It asserts that
Muszak implicitly waived Miranda, and the suppression court erred by failing
to conduct an implicit waiver analysis. For support, the Commonwealth notes
the facts of record show “it is uncontradicted that [Officer] Ksepka testified
he read [Muszak] his Miranda rights in Polish, which was the crux of the
motion to suppress.” See id. at 9-11. The Commonwealth also claims the
lower court failed to make the findings of fact and conclusions of law required
by Pa.R.Crim.P. 581 (I). See Commonwealth’s Brief at 11-13.14
A person is entitled to Miranda warnings when he is subjected to a
custodial interrogation, and custody occurs when a person “is physically
denied his freedom of action in any significant way or is placed in a situation
in which he reasonably believes that his freedom of action or movement is
restricted by the interrogation.” Commonwealth v. Cooley, 118 A.3d 370,
376 (Pa. 2015). In making an objective assessment under the totality of the
circumstances whether a detention has become so coercive as to constitute
the functional equivalent of arrest, a court considers: the basis for the
detention; its length; its location; whether the suspect was transported
14 The Commonwealth’s brief asserts the court erred in granting Muszak’s motion “to suppress blood results.” See Commonwealth’s Brief at 8. No blood results are at issue in this case. It also asserts the testimony Muszak put forth is “inconsistent and inconclusive. . .” See id. at 8-9. Muszak offered no testimony.
-9- J-S12024-24
against his or her will, how far, and why; whether restraints were used;
whether the law enforcement officer showed, threatened or used force; and
the investigative methods employed to confirm or dispel suspicions. See
Commonwealth v. Witmayer, 144 A.3d 939, 948 (Pa. Super. 2016).
Furthermore, when the Commonwealth seeks to introduce a statement
given after an initial Miranda violation, the prosecution must demonstrate
facts “sufficient to insulate the [second] statement from the effect of all that
went before.” See Commonwealth v. Burno, 154 A.3d 764, 789 (Pa. 2017)
(quoting Clewis v. Texas, 386 U.S. 707, 710 (1967)). As the United States
Supreme Court otherwise framed the inquiry, the relevant question is
whether “granting establishment of the primary illegality, the evidence to
which objection is made has been come at . . . by exploitation of that illegality
or instead by means sufficiently distinguishable to be purged of the primary
taint.” See Burno, 154 A.3d at 788 (quoting Wong Sun v. United States,
371 U.S. 471, 486 (1963)). To assess whether the original taint has been
sufficiently purged, courts consider whether Miranda warnings were given,
the temporal proximity of the illegal conduct to the confession, the presence
of intervening circumstances or events, and the purpose or flagrancy of the
official misconduct. See Burno, 154 A.3d at 789 (citing Commonwealth v.
Green, 581 A.2d 544, 550-51 (Pa. 1990)).
As it relates to the first set of statements (prior to initial Miranda
warnings), the Commonwealth conceded Muszak was in custody prior to
- 10 - J-S12024-24
Officer Ksepka’s initial Miranda reading; thus, any statements Muszak made
before Officer Ksepka read him his Miranda rights at 12:04 a.m. are
inadmissible.15 As it relates to the third set of statements (post second
Miranda warnings at the police station), the Commonwealth offered no
evidence at suppression to show that the taint of the original violative
custodial questioning was purged. In fact, the only testimony offered
regarding the questioning at the police station indicates that the purpose of
the interview was simply to memorialize on video the answers Muszak
previously gave when questioned at the picnic bench. See Wong Sun v.
United States, 371 U.S. at 486; Burno, 154 A.3d at 788-89. The
Commonwealth does not argue on appeal that the court erred in suppressing
the statements at the police station. 16 Accordingly, we assess only the
admissibility of Muszak’s statements made when he sat at the table
immediately after Officer Ksepka read his Miranda rights to him at 12:04
a.m.
15 Nor could the Commonwealth argue this successfully. Statements made during custodial interrogation prior to the administration of Miranda warnings are inadmissible. See, e.g., Commonwealth v. Cooley, 118 A.3d 370, 379 (Pa. 2015); Commonwealth v. Seeney, 316 A.3d 645, 650 (Pa. Super. 2024).
16 In this regard, we note Officer Ksepka testified he took the statement at the
police station to “document and reinforce the same statement [Muszak had already given],” see N.T. 5/2/23, at 24, 44, which undermines the possibility, which the Commonwealth does not in any event assert, that intervening actions purged the original taint.
- 11 - J-S12024-24
In light of the Commonwealth’s concession that Muszak was “in
custody” at 11:28pm, the suppression court found Officer Ksepka subjected
Muszak to custodial interrogation without Miranda warnings. See N.T.
Decision, 7/7/23, at 8, 9 (rejecting the implication that interrogation is
permissible if it does not include “truth-seeking questions”). The court also
found Officer Ksepka’s testimony, including his initial, professed inability to
recall whether he drew his gun, raised questions about his truthfulness and
honesty, and as a consequence the court did not know “what to believe about
what he said. It’s back and forth.” See id. at 6-9. In other words, Officer
Ksepka’s testimony lacked credibility and for those reasons, the court
suppressed all Muszak’s statements.17
Upon review of the record in conjunction with the suppression court’s
findings, we perceive no legal error in the trial court’s ruling. It has long been
clear that a court need not accept as true even uncontradicted testimony.
See In re Estate of Grigg, -- A.3d ---, ---, 2024 WL 4194635 at *4 (Pa.
Super, filed September 16, 2024). See also Aaron v. Strausser, 59 A.2d
910, 912 (Pa. 1948) (holding that even where direct evidence contradicting
a witness’s testimony is lacking, the court may reject that testimony where
it contains inherent improbabilities that furnish a ground for concluding it is
17 This Court is not free to reverse a suppression court’s findings that have
record support. See Commonwealth v. Carmenates, 266 A.3d 1117, 1123 (Pa. Super. 2021) (en banc). Nor can we disturb the suppression court’s credibility determinations. See Commonwealth v. Carver, 318 A.3d at 390.
- 12 - J-S12024-24
untrue). See also Carmenates, 266 A.3d at 1123 (stating a suppression
court is free to believe all, some, or none of the evidence presented at the
suppression hearing). Further, the Court must only accept testimony which
when read in the context of the entire record remains uncontradicted. See
Dales, 820 A.2d at 812.
Here, as an initial matter, the court found Officer Ksepka’s testimony
so internally inconsistent and contradictory it did not know what to believe.
See N.T. Decision, 7/7/23, at 8. It specifically noted its difficulty believing
the officer’s original testimony on direct examination that he could not recall
if he drew his gun when he admitted on cross-examination he did. Further,
based on the officer’s own testimony, the court determined Officer Ksepka
committed an initial illegality by conducting custodial interrogation without
Miranda warnings during the period between 11:28 p.m. and 12:04 a.m.
See id. at 9. Thus, any statement Muszak made before 12:04 a.m. 18 was
illegally obtained and properly suppressed, a ruling the Commonwealth does
not challenge on appeal.
The court also correctly suppressed Muszak’s post-Miranda statements
made immediately after Officer Ksepka informed him of his Miranda rights.
18 Notably, even within his testimony on cross examination Officer Ksepka’s
was inconsistent regarding what Muszak said before 12:04 a.m. He originally testified Muszak told him before the administration of Miranda warnings that victim had thrown his phone, see N.T., 5/2/23, at 42-43, then testified Muszak first made that statement after receiving Miranda warnings, see id. at 49.
- 13 - J-S12024-24
The Commonwealth asserts the officer read Muszak his Miranda rights in
Polish and Muszak was “clearly cognizant of what was happening when he
waived Miranda and spoke to officers.” See Commonwealth’s Brief at 11.
Officer Ksepka’s own testimony substantially undermined this assertion of a
knowing and intentional waiver. The officer testified he and the other officers
took Muszak into custody at gunpoint, and Muszak had to be helped to walk
because he had “bloodshot and red, glossy eyes,” slurred his speech and
mumbled incoherently, and had sustained some injuries for which he had not
received treatment. See N.T., 5/2/23, at 38, 45, 48. Thus, because Officer
Ksepka’s own testimony established a Miranda violation in Muszak’s
questioning prior to 12:04 a.m., the relevant inquiry is whether the
prosecution’s evidence was sufficient to insulate the statement given
immediately after Muszak was read his Miranda rights from the statements
given prior to Miranda. See Clewis, 386 U.S. at 710; Burno, 154 A.3d at
789.
The Commonwealth fails to discuss how much time ensued between the
Miranda violation that occurred when Officer Ksepka conducted custodial
interrogation between 11:28 p.m. and 12:04 a.m., and the statement
Muszak gave immediately after being informed of his Miranda rights. It
presented no evidence below to satisfy its burden to prove the purging of the
original taint: i.e., how much time passed between the original illegal
questioning, and whether any intervening circumstances or events occurred,
- 14 - J-S12024-24
or the purpose or flagrancy of the official misconduct. See Burno, 154 A.3d
at 789; Green, 581 A.2d at 550-551. Thus, nothing of record permits us to
conclude Muszak’s statement immediately post-Miranda was purged of the
primary taint. See Wong Sun, 371 U.S. at 471; Burno, 154 A.2d at 788.
The suppression court also emphasized several inconsistencies in
Officer Ksepka’s testimony relating to the timing of his discussion with Muszak
concerning the phone and the victim’s throwing of the phone. Compare N.T.,
5/2/23, at 42-43 (Officer Ksepka testifies Muszak’s statement the victim
threw his phone occurred prior to 12:04 a.m.), with N.T., 5/2/23, at 49-50
(Officer Ksepka testifies Muszak’s statement the victim threw his phone was
“definitely post-Miranda”). The suppression court’s factual findings and
credibility determinations have clear record support, defeating the
Commonwealth’s contrary assertion. Nor does the Commonwealth explain
how an “implicit waiver” analysis could render valid a statement made
immediately following a violation of Miranda with no intervening
circumstances. Accordingly, we affirm the court’s suppression order.
Order affirmed.
Date: 11/25/2024
- 15 -