Com. v. Crothers, M. ( 2018 )

J-S03045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
MATTHEW DYLAN CROTHERS :
: No. 266 EDA 2017
Appellant
Appeal from the Judgment of Sentence December 5, 2016
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000106-2016
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 28, 2018
This is an appeal from the judgment of sentence entered in the Court of
Common Pleas of Monroe County following Appellant Matthew Dylan Crothers’
conviction by a jury on the charge of voluntary manslaughter, 18 Pa.C.S.A. §
2503(b). Appellant presents seven issues for our review. After a careful
review, we affirm.
The relevant facts and procedural history are as follows: The
Commonwealth charged eighteen-year-old Appellant with a single count of
criminal homicide, 18 Pa.C.S.A. § 2503(b), in connection with the stabbing
death of his nineteen-year-old brother.1 On May 2, 2016, Appellant filed a
____________________________________________
1The Commonwealth also charged Appellant with a single count of possessing
an instrument of crime, 18 Pa.C.S.A. § 907; however, the Commonwealth
subsequently withdrew the charge.
____________________________________
* Former Justice specially assigned to the Superior Court.
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counseled pre-trial motion seeking to suppress the statements he made to
police. Specifically, Appellant contended that, despite his request to speak to
an attorney during the police’s questioning of him on June 9, 2014, the
troopers continued the custodial interrogation in violation of his constitutional
rights. By order and opinion filed on June 15, 2016, the trial court denied
Appellant’s motion to suppress.
Represented by counsel, Appellant proceeded to a jury trial at which the
Commonwealth presented the testimony of numerous witnesses. Specifically,
Trisha Moore testified she lived next door to Appellant’s family, and on June
9, 2014, at approximately 6:00 a.m., Appellant’s fifteen-year-old sister,
August Crothers (“August”), appeared at her front door, screaming for
someone to call 911. N.T., 9/8/16, at 81. Ms. Moore opened her front door,
and August said, “My brothers were in a fight.” Id. Appellant was standing
behind August and holding his hand, which was bleeding. Id. 81-82. Ms.
Moore noticed that Appellant, who was shirtless, had scratches on his back
and two deep bite marks on his shoulder/arm. Id. at 91. Ms. Moore called
911 at 6:30 a.m. seeking an ambulance for Appellant, and she told August to
go to school to take her final examinations. Id. at 88.
Thereafter, Ms. Moore sat with Appellant a few minutes and suddenly
realized that the other brother, David (“the victim”), was in the Crothers’
house injured. Id. at 84. Ms. Moore immediately ran over to the Crothers’
home, where the victim’s girlfriend greeted her. Id. Inside, she discovered
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the victim lying next to a staircase with his mother holding a tourniquet around
his leg. Id. at 85. The victim’s eyes were open, but he was not responsive;
his mother was frantic and covered in the victim’s blood. Id. Ms. Moore made
a second call to 911 at 6:40 a.m. and requested an ambulance for the victim.
Id. at 87. Ms. Moore made a third call to 911 at 6:45 a.m., and the police
arrived on the scene at 6:47 a.m.
Pennsylvania State Police Trooper Christopher Tomlinson was the first
officer to arrive at the scene. N.T., 9/9/16, at 44. He testified that, upon his
arrival, Appellant was sitting in a chair in the driveway, and Mrs. Crothers
informed him that her other son, the victim, was in the house and had been
stabbed. Id. at 45. He asked her who stabbed him, and she pointed to
Appellant saying, “My other son, Matt.” Id. Trooper Tomlinson approached
Appellant, noticed that he was bleeding, and asked him if he was “okay.” Id.
Appellant stated that his brother was bleeding. Id. He also said, “He hurt my
sister. We got into a fight, and we rolled around on a knife. I didn’t mean to
hurt him. He landed on the knife.” Id. Trooper Tomlinson handcuffed
Appellant, and when emergency technicians arrived, he followed them inside,
observing that the victim had wounds to his leg. Id. at 46-47. He found blood
in the hallway by the bottom of the staircase, as well as a blue-handled knife
and blood in a downstairs bedroom. Id. at 52.
Trooper Tomlinson travelled to the school to speak to August. Id. at
58. The trooper noticed no injuries, blood, or bruises on August; however,
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she had clearly been crying. Id. As Trooper Tomlinson transported August
to the police barracks, she told the trooper “her brothers got in an argument
over the victim’s girlfriend, Christina Collins, being at the house. And there
was an issue with them believing she was bringing drugs into the house.” Id.
at 59. August indicated the victim and Appellant “had gotten into a physical
fight [and] [a]t one point. . .[the victim] had threatened to hit her.” Id.
However, she did not indicate that the victim had, in fact, hit her. Id.
Loren Parker, an emergency medical technician, testified she responded
to the scene and found the victim in a “life-threatening-condition” due to
severe blood loss from lacerations and a puncture wound to his right leg. Id.
at 16-17. The victim remained unconscious throughout his treatment by Ms.
Parker, and he went into cardiac arrest several times. Id. at 26-27. The
emergency crew arrived at the Pocono Medical Center with the victim at 7:43
a.m. Id. at 30.
David Scaff, M.D., testified that he is a trauma surgeon at Pocono
Medical Center, and he treated the victim in the emergency room. He testified
the victim suffered three stab wounds: a puncture wound to the mid-portion
of the inside of his right thigh, a large laceration just below the inside of his
right knee, and a large laceration just above the inside of his right knee. N.T.,
9/8/16, at 116-18. By the time the victim was brought into the emergency
room, he had been receiving CPR for thirty-five minutes. Id. at 108. He
opined that the victim sustained a “massive injury” and lost “almost all of his
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blood volume.” Id. at 105. Thus, the victim had very little “blood in him to
circulate[,]” and he was non-responsive, resulting in Dr. Scaff giving the victim
large volumes of blood. Id. Dr. Scaff, as well as a vascular surgeon, operated
on the victim and repaired his femoral artery, which had been severed;
however, following the surgery, the victim remained critically ill, and
ultimately, on June 13, 2014, he died from his injuries. Id. at 130-47.
Robert Allen, the Monroe County coroner, testified he issued a death
certificate for the victim with the cause of death listed as “[s]harp force
injuries to the right lower extremity[,]” and the manner of death as
“[h]omicide.” N.T., 9/9/16, at 74.
David Wyke, DMD, who is a general dentist and forensic dentist, testified
he graduated from the Temple Dental School in 1998, worked with a forensic
dentist, and received specialized training in forensic dentistry in 1999. Id. at
85-86. He testified the police asked him to make dental impressions of the
victim, and he did so on June 16, 2014. Id. at 95. Dr. Wyke indicated the
procedure he used to make the dental impressions was “the normal dental
process” and a scientifically accepted procedure. Id. at 90. After he took the
impressions, he casted them and then compared them to photographs of bite
marks, which were on Appellant’s left arm. Id. at 94-105. Dr. Wyke opined
the bite marks on Appellant’s left arm were consistent with the impressions
he made of the victim’s teeth. Id. at 105.
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Trooper David Andreuzzi testified he took photographs of the people
present at the Crothers’ home on the day of the incident. Neither the victim’s
girlfriend, the victim’s mother, nor the victim’s sister had any visible signs of
injury, although the victim’s mother’s leg was covered in someone else’s
blood. Id. at 129-137. Appellant had an injury to his right hand, as well as
an injury to his arm, which Appellant indicated was a bite mark. Id. at 138-
39. He also had blood on his pants and shoes. Id. at 140. Trooper Andreuzzi
saw no visible sign of injury to Appellant’s head or back. Id. at 142-44.
Trooper Andreuzzi also photographed the Crothers’ home, noting the absence
of any indication of a struggle. Id. at 156-57. The trooper testified items
were not “knocked over” and there was no indication of a “knockdown, drag-
out fight[.]” Id. at 158. There was a large pool of blood near the staircase
and blood in Appellant’s room, as well as a knife. Id. at 157-61. Based on
his observation, Trooper Andreuzzi opined the following:
[T]he entire event occurred within a 3-foot by 6 foot section,
which is the hallway itself. I was advised that this was a violent
physical altercation. In that little, tiny 3-foot section there’s no
evidence of that type of altercation where there was a physical
knockdown, drag-out altercation. Because if that was the case,
there would have been a lot more of a stir in that area, damage
to the walls, items knocked down or toppled over. There wasn’t
any of that.
Id. at 166. Trooper Andreuzzi noted that he found marijuana and a marijuana
pipe in the victim’s bedroom; however, he found no such items in Appellant’s
bedroom. Id. at 168-69.
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Trooper Eric Porpiglia testified he interviewed Appellant at the police
station, and the interview was recorded. N.T., 9/9/16, at 189-90. The audio
of the interview was played in open court for the jury. Id.
Wayne Kenneth Ross, MD, a forensic pathologist, testified he prepared
a report based on the evidence in this case. N.T., 9/12/16, at 12-14. Dr.
Ross confirmed the victim’s cause of death was “sharp force injuries to right
lower extremity.” Id. at 15. He testified, to a reasonable degree of medical
certainty, that the victim was “stabbed and cut three times to his right lower
extremity[,]” he had “total blood loss at the scene[,]” and he went “into shock
and die[d].” Id. at 18-19. He testified the type of cuts at issue would have
“spurted out” blood and be “visible to persons who have witnessed the
event[.]” Id. at 22. Based on his examination of the wounds, Dr. Ross opined
they were “methodical and controlled. They’re not random. They’re not
accidental. They’re purposeful and they’re very specifically lined up with one
another and there’s three distinct motions that had occurred.” Id. at 31-32.
He indicated the victim’s wounds were “well controlled or thrust deeply or
thrust long and all line up together, which inferentially in looking at the science
here says there’s three distinct well-defined motions that occurred.” Id. at
32.
Dr. Ross testified the victim’s injuries to his leg were consistent with
defensive wounds, as well as being attacked from behind. Id. at 42. He noted
the victim would have been “surprised” as there were no defensive wounds to
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his palms. Id. He opined the Appellant’s hand wound was an “offensive sort
of wound” resulting from his hand slipping on the knife during the attack. Id.
at 44. Dr. Ross noted there was no sign of injury on Appellant consistent with
him being punched, hit, or kicked. Id. at 45-46. He noted the absence of
such injury was “consistent with [his] conclusion that the attack came from
behind the victim[.]” Id. at 46. He also noted there was no obvious sign of
a struggle at the Crothers’ house and the attacked was confined to a small
area (the hallway). Id. at 47-49.
Dr. Ross testified the bite marks on Appellant’s arm were consistent with
him attacking the victim from behind. Id. at 51. In this regard, he noted
“[Appellant] would have been behind [the victim], and the left forearm would
be up obviously near the face, near the jaw, near the mouth itself, and the
bite. . .[would be on] the arm.” Id.
The defense called Isidore Mihalakis, MD, a forensic pathologist, who
agreed the victim died as a result of a stab wound of the leg at the hands of
another. Id. at 81. However, he disagreed that “the person deliberately
stabbed the area knowing what he was doing.” Id. at 82. He testified that in
“nearly 50 years of practice, this is the first one that I’ve seen where a stab
wound of the leg is the single cause for someone’s death.” Id. at 86. He
opined the victim’s leg wounds occurred in close proximity in time. Id. at 89.
Dr. Mihalakis noted that, if Appellant intended to kill the victim, there would
have been more obvious places to stab him, including the chest or abdomen.
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Id. at 90. He testified that, if the stabbing had been to the outside of the
victim’s thigh, it would not necessarily have been fatal. Id. Upon cross-
examination, he agreed the victim was unarmed. Id. at 99.
August Crothers testified that, at around 6:15 a.m., she heard her
brothers arguing so she went downstairs. Id. at 106. Appellant was standing
outside of the victim’s bedroom, and the victim was lying on his bed with his
girlfriend. Id. at 107. Appellant and the victim were arguing over whether
the girlfriend should leave the home. Id. August took Appellant’s side during
the argument, resulting in the victim charging at her, pushing her against a
window, and grabbing her neck. Id. at 109. August ran for the stairs, but
the victim followed, pushing her onto her back and not letting her stand up.
Id. at 110. The victim “was just screaming in [her] face and screaming and
screaming at [her] [ ] close to her face, and [she] started punching his chest
because [she] just couldn’t get him off [her].” Id.
August testified that, at this point, Appellant grabbed the back of the
victim’s legs to pull him off August, and she ran upstairs. Id. at 110-11. Her
brothers continued to argue, and the victim taunted Appellant. Id. at 111.
August testified the victim attacked Appellant in the hallway, and their mother
tried to split them up. Id. at 112. The two brothers fell on the floor, with the
victim on top of Appellant. Id. The brothers wrestled while the mother tried
to separate them and then the victim screamed that he had been stabbed.
Id. at 113. August denied seeing the stabbing or a knife. Id. She confirmed
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that she ran to the neighbor’s house and, eventually, went to school. Id. She
testified that, immediately after the incident, Appellant was crying, “freaking
out[,]” and indicated “he didn’t know what he did.” Id. at 117.
Gabrielle Crothers, who is Appellant’s and the victim’s mother, testified
she heard her sons yelling, and she ran to investigate. Id. at 140-41. She
indicated Appellant was yelling at the victim’s girlfriend to leave and the victim
became very angry. Id. at 141. The victim grabbed Appellant, picked the
family dog up by the throat, and became violent towards August. Id. at 142.
The victim pushed August towards a window and, as August tried to run up
the stairs, the victim followed, pinning her on her back. Id. at 143. Mrs.
Crothers testified the victim “was berserk. He was a total lunatic.” Id.
Appellant tried to help his sister and pulled the victim off her. Id.
Mrs. Crothers testified the victim “became even more enraged[,]” and
Appellant tried to run into his room; however, the victim tackled him in the
hallway. Id. at 143-44. Appellant was “on the bottom” and the victim bit
him. Id. at 144. Mrs. Crothers testified she separated her sons and then left
the room. Id. When she came back in, Appellant was holding the knife down
to his side and told the victim he was going to call the police, which further
enraged the victim, who indicated he would “kill” Appellant. Id. at 145-47.
She testified the victim dove on top of Appellant and began punching him in
the head, at which point Appellant stabbed the victim. Id. at 145. The victim
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stood up, indicating he had been stabbed. Id. at 146. Mrs. Crothers
attempted to stop the bleeding, but she was unable to do so. Id.
The Commonwealth presented a rebuttal witness, Trooper Jesse D.
Bachman, who testified she interviewed August after the incident. She
indicated August relayed that her brothers were arguing, and the victim
pushed her against the wall and then pushed her down on the stairs. N.T.,
9/13/16, at 7. She denied that August indicated the victim had struck her.
Id. at 9. August told the trooper that her brothers began to wrestle with their
mother trying to separate them. Id. at 7. She indicated that, as they were
wrestling, Appellant stabbed the victim and Appellant “crawled out from under
[the victim.]” Id. at 8.
At the conclusion of the trial, the jury convicted Appellant of the offense
indicated supra, and on December 5, 2016, the trial court sentenced Appellant
to seventy-two months to one hundred and eighty months in prison. Appellant
filed a timely post-sentence motion, which the trial court denied, and this
timely appeal followed. All Pa.R.A.P. 1925(b) requirements have been met.
Appellant presents the following issues for our review, which we set forth
verbatim:
1. Did the Court abuse its discretion and commit reversible error
when the court did not allow the charge of involuntary
manslaughter to go to the jury because involuntary
manslaughter is a lesser included offense of murder, and
because the evidence would support an involuntary
manslaughter verdict whenever it would support a murder or
voluntary manslaughter verdict?
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2. Did the Court abuse its discretion by not suppressing
Appellant’s interview with state police when he asks for an
attorney and the interview was not stopped?
3. Did the Court abuse its discretion by allowing Dr. David Wyke
to testify as an expert in forensic odontology or dentistry?
4. Did the Court abuse its discretion by allowing Dr. David Wyke
to testify where his method was not shown to be generally
accepted in the scientific community?
5. Did the Court abuse its discretion by sentencing Appellant to
not less than 72 months nor more than 180 months where
mitigating factors outweighed the aggravating factors?
6. Did the Court abuse its discretion by not setting aside the
verdict of Voluntary Manslaughter because it was against the
weight of the evidence?
7. Did the Court abuse its discretion by not setting aside the
verdict of Voluntary Manslaughter because it was against the
sufficiency of the evidence?
Appellant’s Brief at 5-6.
In his first issue, Appellant contends the trial court erred in failing to
give the involuntary manslaughter jury instruction. We find this issue to be
waived.
Pennsylvania Rule of Criminal Procedure 647 provides that “[n]o
portions of the charge nor omissions from the charge may be assigned as error
unless specific objections are made thereto before the jury retires to
deliberate.” Pa.R.Crim.P. 647(C). Moreover, our Supreme Court has held
“the mere submission and subsequent denial of proposed points for charge
that are inconsistent with or omitted from the instructions actually given will
not suffice to preserve an issue, absent a specific objection or exception to
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the charge.” Commonwealth v. Pressley, 584 Pa. 624, 887 A.2d 220, 225
(2005).
Here, with regard to Appellant’s proposed jury instruction on involuntary
manslaughter, the record reveals the following exchange:
[DEFENSE COUNSEL]: But also then for the record, you were
denying adding the involuntary?
THE COURT: Yes. And we’re going to get to that.
[DEFENSE COUNSEL]: Okay.
***
THE COURT: So, I know that, [defense counsel], you have
something?
[DEFENSE COUNSEL]: Yes. Yesterday you also asked for the
inclusion of involuntary manslaughter and you asked for case law,
and I did send a couple of things that we were able to find.
THE COURT: Yes.
[DEFENSE COUNSEL]: And then when I did approach before doing
closings today and I asked if it was going to be included, you said
no. So I just wanted to make sure that it was on the record that
it was requested and denied.
THE COURT: And you accept that ruling?
[PROSECUTOR]: Yes.
[DEFENSE COUNSEL]: Yes.
THE COURT: And so that was requested and it is denied. I don’t
really—I don’t see it in the case as that. I know you were using
the term accident. Maybe you were using it in a different way that
there was not an intent to kill. But that the stabbing itself—I don’t
see the fact of the stabbing itself being an accident in the case.
N.T., 9/13/16, at 102-04.
Here, although Appellant included in his points for charge an instruction
on involuntary manslaughter, the trial court declined to give the instruction,
indicating that it didn’t “see it in the case[.]” Id. at 104. Defense counsel did
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not object to the trial court’s ruling; but rather, he indicated he accepted the
ruling. Id. Thereafter, defense counsel did not object to the trial court’s
instruction as given, and in fact, he indicated that he had nothing to add to
the charge. Id. at 147. Further, after the jury requested a supplemental
charge on the elements of homicide, and the trial court again did not instruct
on involuntary manslaughter, defense counsel indicated he was satisfied. Id.
at 167. Thus, Appellant’s claim is waived. See Pressley, supra.In his second issue, Appellant contends the suppression court erred in
failing to suppress Appellant’s interview with the Pennsylvania State Police.
Specifically, Appellant contends that, in the course of custodial interrogation,
Troopers Eric Porpiglia and Bruce Wesnak violated his constitutional rights
when they failed to halt the interrogation after Appellant indicated he wanted
to speak to an attorney. Consequently, Appellant argues his statements made
during the interrogation should have been suppressed.2
Initially, we note that we review the denial of a motion to suppress as
follows:
An appellate court’s standard of review in addressing a challenge
to the denial of a suppression motion is limited to determining
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2 We note that in ruling on Appellant’s suppression motion the trial court relied
upon two Commonwealth exhibits: an audio recording of Appellant’s June 9,
2014, interview, as well as a transcription of the interview. Although Appellant
attached a copy of the transcription to his brief as a reproduced record, neither
the audio recording nor the transcription were included in the certified record.
In any event, the trial court provided in its opinion extensive excerpts from
the exhibits, and the parties do not challenge the accuracy of the trial court’s
excerpts. Accordingly, we shall continue to review the merits of Appellant’s
suppression claim.
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whether the suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth prevailed before
the suppression court, we may 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 record[.]
Where the suppression court’s factual findings are supported by
the record, the appellate court is bound by those findings and may
reverse only if the court’s legal conclusions are erroneous. Where
the appeal of the determination of the suppression court turns on
allegations of legal error, the suppression court’s legal conclusions
are not binding on an appellate court, whose duty it is to
determine if the suppression court properly applied the law to the
facts. Thus, the conclusions of law of the courts below are subject
to plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa.Super. 2015)
(citations, alterations, and ellipsis omitted).
[R]elevant to our inquiry is the body of law concerning a
defendant’s invocation of his constitutional rights while in custody.
In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966), the United States Supreme Court declared that an
accused has a Fifth and Fourteenth Amendment right to have
counsel present during custodial interrogation, so as to ensure
that the defendant’s right against compulsory self-incrimination is
protected. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct.
1880, 68 L.Ed.2d 378 (1981), the High Court revisited its holding
in Miranda and adopted a prophylactic rule that “when an
accused has invoked his right to have counsel present during
custodial interrogation, a valid waiver of that right cannot be
established by showing only that he responded to further police-
initiated custodial interrogation even if he has been advised of his
rights.” Edwards, 451 U.S. at 484, 101 S.Ct. 1880. The High
Court explained that an accused, “having expressed his desire to
deal with the police only through counsel, is not subject to further
interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.” Id.at 484–85, 101 S.Ct. 1880 (emphasis added). The purpose
behind this rule is “to prevent police from badgering a defendant
into waiving his previously asserted Miranda rights.” Michigan
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v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 108 L.Ed.2d 293(1990).
The U.S. Supreme Court has held that in order “[t]o avoid
difficulties of proof and to provide guidance to officers conducting
interrogations,” the determination of whether the right to counsel
was invoked by the accused is an “objective inquiry.” Davis v.
United States, 512 U.S. 452, 458–59, 114 S.Ct. 2350, 129
L.Ed.2d 362 (1994). Effective assertion of the Fifth Amendment
right to counsel “requires, at a minimum, some statement that
can reasonably be construed to be an expression of a desire for
the assistance of an attorney in dealing with custodial
interrogation by the police.” McNeil v. Wisconsin, 501 U.S. 171,
178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (emphasis omitted);
see also Commonwealth v. Fears, 575 Pa. 281, 836 A.2d 52,
61 (2003) (quoting McNeil). However, if the accused makes an
ambiguous or equivocal reference that would lead an officer, in
light of the circumstances, to believe “only that the suspect might
be invoking the right to counsel,” police interrogation need not
cease. Davis, 512 U.S. at 459, 114 S.Ct. 2350 (emphasis in
original). The accused must “articulate his desire to have counsel
present sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be a request
for an attorney.” Id.Martin, 627 Pa. at, 655-57, 101 A.3d at 725-26.
In the present case, the suppression court initially concluded, and the
parties do not dispute, the following:
There is no dispute that [Appellant] was in custody when he spoke
with police on June 9, 2014. There is also no dispute that this
interaction with the police was an interrogation for the purposes
of Miranda. Furthermore, the police clearly advised [Appellant]
of his Miranda warnings. Finally, [Appellant] does not [ ]
challenge his initial waiver as unknowing or involuntary. See
[Appellant’s] Brief [in support of suppression], p. 2 (“Although
[Appellant] was read his Miranda Rights and signed a waiver, he
can still invoke his rights at any time during the interrogation.”).
The only issues that have been presented are whether [Appellant]
subsequently invoked his right to an attorney and, if so, whether
continued questioning by police violated his constitutional rights.
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Suppression Court Opinion, filed 6/15/16, at 2-3 (citations to exhibits
omitted).
Ultimately, the suppression court concluded that Appellant did not
clearly, unambiguously, or unequivocally invoke his right to counsel during
the interrogation. See id. at 4-10. We have carefully reviewed the
suppression court’s opinion and conclude the suppression court judge, the
Honorable President Judge Margherita Patti-Worthington, has thoroughly and
correctly analyzed Appellant’s suppression issue. See id. Thus, we rely upon
the well-reasoned suppression court’s opinion for purposes of this appeal.
In his third issue, Appellant contends the trial court abused its discretion
in allowing Dr. David Wyke to testify as an expert in forensic odontology or
dentistry. We find this issue to be waived.
Appellant’s entire appellate argument with regard to this issue is as
follows:
Dr. David Wyke testified to his background in dentistry and
forensic dentistry. While is [sic] experience and training in those
areas sound extensive, that training was a one-week course in
1999. (Notes of Testimony, September 9, 2016, p. 88). The
doctor has also never previously testified in court. Additionally,
he had only worked on three actual bite mark cases, and one (1)
of those was after his evaluation of the case at bar. (Id. at 89)[.]
So while there appears to be qualifications, these qualifications
are not practical as he only has worked on one (1) bite mark case
prior to the present case. Dr. Wyke never examined the body of
Appellant to see the actual bite marks, instead he relied on
photographs.
Q. Okay. Did you ever examine the bite victim?
A. No, I was not ever even accessed to those bites themselves.
(Id. at 107)[.]
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Dr. Wyke should not have been determined to be an expert
with regards to his testimony on bite mark evidence in that is [sic]
experience was only one (1) prior case involving bite mark
identification prior to the case at bar.
Appellant’s Brief at 20.
Appellant has waived this issue on appeal for failing to develop a
meaningful legal argument. See Commonwealth v. Johnson, 604 Pa. 176,
985 A.2d 915, 924 (2009) (reiterating that “where an appellate brief fails to
provide any discussion of a claim with citation to relevant authority or fails to
develop the issue in any other meaningful fashion capable of review, that claim
is waived”) (citations omitted)); Pa.R.A.P. 2119(a) (requiring that each point
treated in an argument must be “followed by such discussion and citation of
authorities as are deemed pertinent”). Moreover, our Supreme Court has long
held that it is not the appellate court’s obligation to formulate an appellant’s
arguments. See Commonwealth v. Williams, 557 Pa. 207, 223, 732 A.2d
1167, 1175 (1999) (noting that relief is unavailable based upon undeveloped
claims for which insufficient arguments are presented on appeal).
Accordingly, we decline to address Appellant’s undeveloped claim further.
In his fourth issue, Appellant contends the trial court erred in permitting
Dr. Wyke to testify to a method that has not been shown to be generally
accepted in the scientific community. Specifically, Appellant contends “[t]he
analysis of bite [ ] marks has not been accepted by the relevant scientific
community[,]” and, therefore, the trial court erred in permitting Dr. Wyke to
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opine the bite marks to Appellant’s arm were made by the victim. See
Appellant’s Brief at 21. We find this issue to be waived.
In its Rule 1925(a) opinion, the trial court relevantly indicated the
following:
Appellant next argues it was error for the Court to allow Dr.
Wyke to testify where his method was not shown to be generally
accepted in the scientific community. We do not, however, believe
Appellant properly preserved this issue for appeal. At trial,
defense counsel made an ambiguous objection to Dr. Wyke. N.T.,
9/9/16, [at] 91. After clarification by the Court, defense counsel
explained his objection as follows: “While I had the report, I did
not have a copy of the CV until today. And taking his testimony
prior to this case-it was six or seven years before-it doesn’t seem
what he is needed for here today is an expert as he is in
identification. I think for bit marks he’s not an expert.” N.T.,
9/9/16, [at] 92. The law remains that, in general, an [a]ppellant
who fails to objet timely and specifically before or at trial cannot
preserve the issue for appellate review by including the issue in a
Pa.R.A.P. 1925(b) statement of matters complained of on appeal.
Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278,
1287-89 (Pa.Super. 2004) (en banc); Glenbrook Leasing Co. V.
Beausang, 839 A.2d 437, 444 (Pa.Super. 2003) (“‘A party cannot
rectify the failure to preserve an issue by proffering it in response
to a [Pa.R.A.P. 1925(b)] order.’ A [Pa.R.A.P. 1925(b)] statement
of matters complained of on appeal is not a vehicle in which issues
not previously asserted may be raised for the first time. It is,
instead, the vehicle by which an appellant advises the trial court
of the previously preserved issues that the appellant will advance
on appeal so that the trial court may determine if it needs to write
an opinion and to direct the trial court to the issues for which an
opinion is needed.’”) ([quotation omitted])).
Trial Court Opinion, filed 3/24/17, at 8-9.
We have reviewed the relevant notes of testimony and agree with the
trial court’s waiver analysis. See Pa.R.A.P. 302(a) (providing that issues
which were not raised before the trial court are waived and may not be raised
- 19 -
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for the first time on appeal); Melendez-Rodriguez, supra (indicating an
appellant may not avoid waiver by raising claim for first time in Rule 1925(b)
statement).3
In his fifth issue, Appellant presents a challenge to the discretionary
aspects of his sentence. In this regard, Appellant acknowledges that he
received a standard range sentence, but argues the trial court did not
adequately consider the mitigating factors, including his abusive childhood,
his childhood relocation to Florida against his will, and his major depressive
disorder. See Appellant’s Brief at 26-27.
When an appellant challenges the discretionary aspects of his sentence,
we must consider his brief on this issue as a petition for permission to appeal.
Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa.Super. 1997). Prior to
reaching the merits of a discretionary sentencing issue,
[this Court conducts] a four[-]part analysis to determine: (1)
whether [A]ppellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether [A]ppellant’s brief
____________________________________________
3 In any event, assuming, arguendo, Appellant has not waived the claim, and
the trial court erred in permitting Dr. Wyke to opine the bite marks on
Appellant’s arm were made by the victim, we conclude any error was
harmless. Appellant’s mother testified without objection that the victim bit
Appellant. N.T., 9/12/16, at 144. Thus, Dr. Wyke’s testimony as to the source
of the bite marks on Appellant’s arm was merely cumulative. See
Commonwealth v. Levanduski, 907 A.2d 3, 21 (Pa.Super. 2006) (en banc)
(holding error harmless where erroneously admitted evidence was merely
cumulative of other untainted evidence which was substantially similar to the
erroneously admitted evidence).
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has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation
omitted).
Here, Appellant filed a timely notice of appeal and preserved his issue
in a motion for reconsideration under Pa.R.Crim.P. 720. Appellant failed to
include a separate statement in his brief pursuant to Pa.R.A.P. 2119(f);
however, as the Commonwealth failed to object to its omission, the defect is
not necessarily fatal. See Commonwealth v. Maneval, 688 A.2d 1198,
1199 (Pa.Super. 1997).
That said, as the Commonwealth suggests, a review of the argument
portion of Appellant’s brief reveals that he failed to raise a substantial question
concerning the appropriateness of his sentence.4 Appellant claims the trial
court did not adequately consider the mitigating factors. He does not claim
that his sentence was excessive; but rather, admitting that he was sentenced
in the standard range, he suggests “a mitigated range sentence would be
appropriate.” Appellant’s Brief at 27.
This Court has held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
____________________________________________
4 We note the trial court found that Appellant’s challenge did not raise a
substantial question. Trial Court Opinion, filed 3/24/17, at 11-12.
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our review. Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.Super. 2014)
(“[W]e have held that a claim that a court did not weigh the factors as an
appellant wishes does not raise a substantial question.”); Commonwealth v.
Disalvo, 70 A.3d 900, 903 (Pa.Super. 2013). Here, we find Appellant has not
presented a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).5
In his sixth issue, Appellant contends the jury’s verdict is against the
weight of the evidence. Specifically, he avers the jury “overlooked” evidence
revealing Appellant had no intention of killing the victim. Appellant’s Brief at
28. Upon the urging of the trial court, we find this issue to be waived.
Pennsylvania Rule of Criminal Procedure 607 provides, in relevant part,
the following:
(A) A claim that the verdict was against the weight of the evidence
shall be raised with the trial judge in a motion for a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607.
It is well settled that an appellant must present his challenge to the
weight of the evidence to the trial court for a review in the first instance. See
____________________________________________
5 In any event, it is clear the trial court had the benefit of a pre-sentence
investigation report. N.T., 12/5/16, at 2. Where the sentencing court had the
benefit of a presentence investigation report, the appellate court assumes the
sentencing court was aware of relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors. See Moury, supra.
- 22 -
J-S03045-18
Pa.R.Crim.P. 607(A); Commonwealth v. Griffin, 65 A.3d 932, 939
(Pa.Super. 2013). “Thereafter, appellate review of a weight claim is a review
of the exercise of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence.” Commonwealth v. Stiles,
143 A.3d 968, 980 (Pa.Super. 2016) (citation omitted).
In the case sub judice, Appellant did not present a weight of the
evidence claim in his post-sentence motion, nor did he challenge the weight
of the evidence either prior to or during his sentencing hearing.6
Consequently, waiver applies to this claim.7
In his final claim, Appellant contends the evidence is insufficient to
sustain his conviction for voluntary manslaughter.
Our review of a challenge to the sufficiency of the evidence is guided by
the following:
There is sufficient evidence to sustain a conviction when the
evidence admitted at trial, and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the
Commonwealth as verdict-winner, are sufficient to enable the
fact-finder to conclude that the Commonwealth established all of
the elements of the offense beyond a reasonable doubt. The
Commonwealth may sustain its burden “by means of wholly
circumstantial evidence.” Further, we note that the entire trial
____________________________________________
6 Appellant was advised of his post-sentence and appellate rights. N.T.,
12/5/16, at 41.
7 Appellant included his weight of the evidence claim in his Pa.R.A.P. 1925(b)
statement; however, absent the filing of an earlier motion, the issue is waived.
See Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483, 494 (2009).
We note the trial court declined to address the merits of the issue in its Rule
1925(a) opinion.
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record is evaluated and all evidence received against the
defendant is considered, being cognizant that the trier of fact is
free to believe all, part, or none of the evidence.
Commonwealth v. Martin, 627 Pa. 623, 101 A.3d 706, 718 (2014) (citation
omitted).
Here, Appellant was convicted of voluntary manslaughter under 18
Pa.C.S.A. § 2503(b), which provides the following:
(b) Unreasonable belief killing justifiable.--A person who
intentionally or knowingly kills an individual commits voluntary
manslaughter if at the time of the killing he believes the
circumstances to be such that, if they existed, would justify the
killing under Chapter 5 of this title (relating to general principles
of justification), but his belief is unreasonable.
18 Pa.C.S.A. § 2503(b) (bold in original).
Appellant contends that he did not “intentionally or knowingly kill” the
victim. In this regard, he specifically argues the following:
[T]here is [in]sufficient evidence to support the jury’s finding of
guilt beyond a reasonable doubt that Appellant acted with the
intent to kill. As previously argued, the evidence shows the victim
was stabbed in the leg, not an area someone would stab someone
with the intention to kill. There were no stab wounds to [the
victim’s] chest or neck areas, areas that would should [sic]
intention.
Appellant’s Brief at 31.
The term “voluntary manslaughter” contemplates an
intentional or voluntary act on the part of the defendant. [Our
Supreme Court has] stated “that where there is a nonmalicious
felonious killing with a specific intent either to kill or to seriously
injure, it is voluntary manslaughter.”. . .[The Supreme Court has]
indicated that a necessary element of both murder in the first
degree and voluntary manslaughter is the specific intent to kill.
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Commonwealth v. Mason, 474 Pa. 308, 378 A.2d 807, 808 (1977) (citations
and quotations omitted).
Here, the evidence reveals that Appellant and the victim argued and
then engaged in a physical fight, during which time Appellant stabbed the
unarmed victim three times in the leg. The Commonwealth’s forensic
pathologist, Dr. Ross, testified the three wounds were “methodical and
controlled. They’re not random. They’re not accidental. They’re purposeful
and they’re very specifically lined up with one another and there’s three
distinct motions that had occurred.” N.T., 9/12/16, at 31-32. He also noted
the wounds resulted from “deep” thrusts. Id. Further, in reconstructing the
fight, Dr. Ross testified the victim’s injuries were consistent with defensive
wounds, as well as being violently attacked from behind. Id. at 42. Moreover,
Dr. Scaff, the treating emergency room doctor and surgeon, testified that two
of the lacerations, one above and one below the knee, were “large,” meaning
five to seven inches long. N.T., 9/8/16, at 116-117. The laceration above the
knee, on the inside of the leg, was deep enough to expose muscle tissue. Id.
at 117. Mrs. Crothers’ testified that, immediately after the stabbing, the
victim had a “gash and the white artery was hanging out of his leg.” N.T.
9/12/16, at 145.
Viewing the evidence in the light most favorable to the Commonwealth,
as verdict winner, we agree with the trial court that there was sufficient
evidence supporting the jury’s verdict that Appellant “intentionally or
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J-S03045-18
knowingly killed” the victim as is required for voluntary manslaughter. See
Mason, supra.For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/18
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Circulated 02/08/2018 10:44 AM
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEAL TH OF PENNSYLVANIA
COMMONWEAL TH OF PENNSYLVANIA N0.106 CR 2016
vs.
MATTHEW DYLAN CROTHERS,
MOTION TO SUPPRESS
Defendant.
OPINION
This matter comes before the Court on Matthew Dylan Crothers's ("Defendant") Motion
to Suppress his statements to police in violation of his constitutional right to counsel. The
underlying facts and procedural history are summarized as follows:
On June 9, 2014, Defendant was interviewed by Pennsylvania State Police Troopers Eric
Porpiglia and Bruce Wesnak in relation to a stabbing incident involving Defendant and his
brother, David Cody Crothers (hereinafter "Victim"). On November 20, 2015, Troopers
Porpiglia and Wesnak filed a criminal complaint against Defendant alleging Defendant had
committed the crime of Criminal Homicide. The affidavit of probable cause relies, in relevant
part, on statements Defendant made during the June 9, 2014, interview. The affidavit states that
Defendant and Victim were engaged in a fight when Defendant stabbed Victim in the leg three
times. As a result of these injuries, Victim was transported to the hospital where he died on June
13, 2014, due to a severed femoral artery.
Defendant waived his preliminary hearing and on February 8, 2016, he was charged by
Criminal Information with Criminal Homicide' and Possession of an Instrument ofCrime.2 On
1
18 Pa. C.S.A. § 250 I (a).
Crothers, 106 CR 2016
May 2, 2016, Defendant filed the present Motion to Suppress the statements he made during the
June 9, 2014, interview. We held a hearing on May 23, 2016, where the Commonwealth
presented the following evidence: (1) an audio recording of Defendant's June 9, 2014, interview
with Troopers Porpiglia and Wesnak, (2) a transcription of said interview, and (3) a waiver of
rights form signed by Defendant. 3 At the conclusion of the hearing, we ordered counsel to file
briefs, which we timely received. Having reviewed the record, evidence, and briefs, we are ready
to dispose of this matter.
A criminal suspect must be apprised of his Miranda4 rights when he is (I) in police
custody and (2) under interrogation. Commonwealth v. Turner, 772 A.2d 970, 973 (Pa. Super.
2001 ). Police custody need not be formal arrest-if "the person is physically denied of 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," then that individual is in custody
for the purposes of his Fifth Amendment right to an attorney. Commonwealth v. Williams, 650
A.2d 420, 427 (Pa. 1994). Courts should look at the totality of the surrounding circumstances in
determining whether a custodial interrogation has occurred. See Commonwealth v, Mannion, 752
A.2d 196, 200 (Pa. Super. 1999). When a defendant alleges that evidence was obtained in
violation of his constitutional rights, the burden is on the Commonwealth to prove the defendant
knowingly and voluntarily waived his right. Commonwealth v. Kunkle, 79 A.3d 1173, 1180 (Pa.
Super. 2013 ).
There is no dispute that Defendant was in custody when he spoke with police on June 9,
2014. See Def.'s Br., pp. 1-2; Com.'s Br., pp. 1-2; Com.'s Ex. 2, 00:00:21---00:00:25; Com.'s
Ex. 3, p. 2. There is also no dispute that this interaction with the police was an interrogation for
2
§ 907(a).
3
These exhibits are cited throughout as "Com.'s Ex. I," "Com.'s Ex. 2," and "Com.'s Ex. 3," respectively.
4
Miranda v. Arizona, 384 U.S. 436 ( 1966).
2
Crothers, 106 CR 2016
the purposes of Miranda. See Def. 's Br., pp. 1-2; Com. 's Br., pp. 1-2. Furthermore, the police
clearly advised Defendant of his Miranda warnings. See Com. 's Ex. 1; Com's Ex. 2, 00:00:25-
00:01 :08; Com.'s Ex. 3, p. 2. Finally, Defendant does not seem to challenge his initial waiver as
unknowing or involuntary. See Def.'s Br., p. 2 ("Although [Defendant] was read his Miranda
Rights and signed a waiver, he can still invoke his rights at any time during the interrogation.").
The only issues that have been presented are whether Defendant subsequently invoked his right
to an attorney and, if so, whether continued questioning by police violated his constitutional
rights.
Courts have long held that "once a defendant has validly invoked [his] Miranda-based
right to have counsel present during questioning, interrogation must be suspended."
Commonwealth v. Bland, 115 A.3d 854, 855 (Pa. 2015) (citing Edwards v. Arizona, 451 U.S.
477, 484-58 (1981)). The constitutional rights protected by Miranda are indispensable to
ensuring that inherently compelling pressures do not "undermine the individual's will to resist
and ... compel him to speak where he would not otherwise do so freely." Miranda, 384 U.S. at
467. The United States Supreme Court has refined these rules by holding "that, after a knowing
and voluntary waiver of Miranda rights, law enforcement officers may continue questioning
until and unless the suspect clearly requests an attorney." Davis v. United States, 512 U.S. 452,
462 (1994). An inquiry into whether such a request has been made is an objective one.
Commonwealth v. Martin, IO l A.3d 706, 725 (Pa.2014) ( citing Davis, 512 U.S. at 458-59).
If an individual's request for an attorney is ambiguous or equivocal, questioning need not
cease. Davis, 512 U.S. at 459. Additionally, the Supreme Court's rulings do not require law
enforcement officers to ask clarifying questions about whether an individual has asked for an
attorney. Id. at 461. Thus, to invoke the right to counsel after previously waiving the same, an
3
Crothers, I 06 CR 2016
accused "must articulate his desire to have counsel present sufficiently clearly that a reasonable
officer in the circumstances would understand the statement to be a request for an attorney." Id.
at 459. Requiring officers to immediately cease questioning when they do not reasonably know
whether the suspect desires to have counsel present, "would transform the Miranda safeguards
into wholly irrational obstacles to legitimate police investigative activity," because in many
instances, an ambiguous reference would be made by suspects who do not actually desire
counsel's presence. Id. at 460 (quotation omitted). "[I]f a suspect makes a reference to an
attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances
would have understood only that the suspect might be invoking the right to counsel, our
precedents do not require the cessation of questioning." Id. at 459 ( citation omitted).
In the present case, the following portions of Defendant's conversation with Troopers
Porpiglia and Wesnak are relevant.'
Matthew Crothers - I just - I just wanna know what you're getting at.
Tpr. Wesnak - The only person that knows the truth is you.
Tpr. Porpiglia- Yea that's what we are getting at. We don't really know.
Matthew Crothers - I'm just scared to say anything 'cause I don't want to,
like, incriminate myself to something that is wrong, to something that is
not true.
Tpr. Wesnak - Well if you don't tell us the truth we are not going to
know.
Matthew Crothers - Well if I don't talk to somebody who's on my side
like a lawyer or something then I don't know what I'm supposed to say,
you know what I mean? I don't know what's going on.
Tpr. Wesnak- The only thing you're supposed to say -
� These portions of the taped conversation occur after Troopers Porpiglia and Wesnak read Defendant his Miranda
rights and after Defendant executed a waiver of same. Com's Ex. 2, 00:00:25-00:01 :21; Com's Ex. 3, pp. 2-3;
Com. 's Ex. I.
4
Crothers, I 06 CR 2016
Matthew Crothers - I don't know what's going on with my brother, I don't
know if he is dead or alive.
Tpr. Wesnak-The only thing you're supposed to say is the truth, that's
the only thing.
Tpr. Porpiglia - We are not going to force you to say anything. We are not
going to-
Tpr. Wesnak - The only person that can help you right now is you. I
mean, if you want to straighten out your life -
Matthew Crothers - Yea but the only person to screw me is me too. I
could screw me and I could help me. And I could screw me by trying to
help me. Do you understand?
Tpr. Wesnak - No.
Matthew Crothers - Well, I know either way I'm going to jail and I'm
going to sit there for a long-ass time probably. And it sucks 'cause I didn't
do anything.
Tpr. Wesnak -And you don't want to tell your side of the story, what
happened?
Matthew Crothers - I don't know. I don't know ifl can or not. I don't
know what to do. I'm scared. I'm scared.
Tpr. Wesnak- I understand you're scared. It's a very serious situation.
Matthew Crothers - I'm going to be completely honest with you. I didn't
do anything wrong. I - It was an accident.
Tpr. Wesnak - If you did nothing wrong, then you need to explain that to
us.
Matthew Crothers- Yea but I don't- I don't know. You just see this
crap on TV and stuff and it's like - I feel like I should talk to a lawyer
before I say anything to you people.
Tpr. Wesnak- Is this TV? This isn't TV.
Matthew Crothers - Yea but TV's real life too.
5
Crothers, I 06 CR 2016
Tpr. Wesnak - No it's not.
Matthew Crothers - Yea it is. People sitting in these chairs on TV. It's the
same thing.
Tpr. Wesnak- No it's not. TV is a fantasy land.
Matthew Crothers - I know, but -
Tpr. Wesnak- This is the real thing. This is your real life. This is our real
lives. This is your family's real life. Ok, it's not a game.
Matthew Crothers - I know but I just feel like -
Tpr. Wesnak - And you sit there and say I didn't do nothing wrong, I'm
an innocent person. Then you gotta tell us that. Explain why you think
you' re an innocent person. Because if you don't then I got to go with what
everybody else says. The part of trying to straighten up your life and
trying to get it together is, explain yourself and what's going on.
Matthew Crothers - Well the only this is I don't know-I don't want to
start saying anything because I haven't got it figured out in my head yet. I
don't know what happened because it was so quick and so crazy and I was
- and everyone's screaming. Everyone's yelling and - and -
Tpr. Wesnak- Why don't-
Tpr. Porpiglia - Why don't -
Matthew Crothers - Because I don't wanna - You know what? Listen,
listen, listen. Please don't- please don't interrupt me. Like, I tell my
Mom this all the time and it just ticks me off and it messes up my brain, it
messes up my organization. But I don't want to start telling what
happened because every single little word that I'm saying right now is on
that tape. And every single little word that I'm saying can be used against
me and can be used to screw me over. And I'm - You know what I
mean? Like, if I mess up- Like, 'cause I can't - I haven't figured it out
yet. I'm stressed out and I'm so freaked out right now-
Tpr. Wesnak - Uh huh.
Matthew Crothers - - by what happened. I haven't figured out what
happened, it was so quick and so fast and I'm rolling around on the floor
and I have no idea what's going on and then everyone is screaming and
flipping out and my brother is beating the crap out of me and I don't know
what's going on and I don't know- I haven't got it figured out in my
6
Crothers, I 06 CR 2016
own head so ifl don't have it figured out in my own head, how am I going
to explain it to you guys? Do you understand?
Tpr. Wesnak- Uh huh.
Matthew Crothers -And that's why I'm scared and that's why I don't
want to say anything cause I -
Tpr. Wesnak - Well do you sleep in the same room with your brother?
Matthew Crothers - No.
Com's Ex. 2, 00:10:33-00:15:55; Com's Ex. 3, pp. 9-13.6 From this point on, Defendant
continues to answer questions posed by Troopers Porpiglia and Wesnak about the events leading
up to and surrounding Victim's lethal injuries. Com's Ex. 2, 00:15:56-01 :03:35; Com's Ex. 3,
pp. 13-41.
Defendant argues that despite being read, and subsequently signing a waiver of his right
to an attorney.i his statements to police should nonetheless be suppressed because during the
interrogation, after he signed the waiver, he unequivocally requested an attorney. Def. 's Br., pp.
2-3. Defendant avers that this request should have halted all questioning by police until he was
provided with counsel as he had effectively invoked his constitutional right. Id. Defendant claims
that he requested an attorney twice during his interrogation. Def.'s Br., pp. 1-2 (citing Com's Ex.
3, p. 12 as reading "I should talk to a lawyer before I say anything to you."). Defendant further
avers that he was interrupted multiple times by the Troopers, showing the Troopers ignored his
6
These excerpts are corrected versions of the written transcript of Defendant's interview based on the audio
recording.
7
In his "Question Presented," Defendant asks whether his "Sixth Amendment right to counsel (was] violated" but
argues in his brief that his Fifth Amendment right to counsel was violated. Def.'s Br., p. 2. As Defendant had not
been charged with any crime at the time of the interview, his Sixth Amendment right to counsel had not yet
attached. U.S. CONST. amend. VI; PA. CONST. art. I,§ 9; see also Commonwealth v. Keaton, 45 A.3d 1050, I 065-66
(Pa.2012) (stating the Sixth Amendment right to counsel is "offense-specific ... and it only attaches at the
commencement of prosecution, i.e., when the criminal proceedings are initiated by charge, preliminary hearing,
indictment, information, or arraignment."). Thus, we only address Defendant's Fifth Amendment right to counsel
herein.
7
Crothers, I 06 CR 2016
clear request for an attorney and instead redirected the interrogation. Def.' s Br., p. 3 ( citing
Com's Ex. 3, p. 13).
The Commonwealth responds that under these circumstances, Defendant's two
statements regarding counsel were "equivocal at best." Com.'s Br., p. 8. The Commonwealth
avers that under the rules created by Davis, Defendant's statements were not clear requests for an
attorney and that the statements could, at most, lead a reasonable investigator to believe
Defendant might have been requesting counsel. Com. 's Br. pp. 6-9 (citing Davis, 512 U.S. 452;
Martin, 10 I A.3d 706). Furthermore, the Commonwealth points to the relaxed nature of the
interrogation with Troopers Porpiglia and Wesnak as showing Defendant was free to specifically
request an attorney at any time but failed to do so. Com. 's Br., p. 9-10.
After review of the audio recording and accompanying transcript, we find that Defendant
did not clearly request an attorney and, thus, did not effectively invoke his constitutional right to
counsel. Defendant mentions "a lawyer" twice during the interview with Troopers Porpiglia and
Wesnak: "Well ifl don't talk to somebody who's on my side like a lawyer or something then I
don't know what I'm supposed to say, you know what I mean?" and "I feel like I should talk to a
lawyer before I say anything to you people." Com. 's Ex. 2, 00: 10:51-00: 10:55, 00: 13 :45-
00: 13 :49; Com.' s Ex. 3, pp. 10, 12. When read in context, neither of these statements are
unequivocal requests for counsel.
The first time Defendant mentions "a lawyer" was not a clear request for an attorney. The
context of the situation objectively shows that Defendant's primary concern is being able to
accurately formulate his thoughts and statements. See Com.'s Ex. 2, 00:14:43-00:14:58; Com.'s
Ex. 3, p. 12. According to the totality of the exchange between Defendant and the Troopers,
Defendant does not base his ability to formulate those thoughts on speaking with an attorney.
8
Crothers, I 06 CR 2016
Defendant's statement that "[I]f I don't talk to somebody who's on my side like a lawyer or
something then I don't know what I'm supposed to say," is, at most, an objective indication that
he might want to speak with an attorney. See Davis, 512 U.S. at 459. We also note that
Defendant had previously demonstrated his understanding of his Miranda rights, generally, by
stating: "I'm just scared to say anything 'cause I don't want to, like, incriminate myself to
something that is wrong, to something that is not true." Com.' s Ex. 2, 00: I 0:40-00: I 0:48;
Com. 's Ex. 3, p. 9. Furthermore, Trooper Porpiglia immediately thereafter reminds Defendant
that "We are not going to force you to say anything." Com. 's Ex. 2, 00: 11 :06--00: 11 :08; Com.'s
Ex. 3, p. I 0. The tone of the conversation is heavy, as the subject is serious, but not over-bearing.
Indeed, Trooper Wesnak reinforces the seriousness of the situation, Com.'s Ex. 2, 00:13:32-
00: 13 :34; Com.' s Ex. 3, p. 11, but neither Trooper speaks in an over-bearing manner. See
generally, Com. 's Ex. 2. Under these circumstances, Defendant had not clearly made a request
for counsel and Troopers Porpiglia and Wesnak were not required to cease questioning. Thus, the
Troopers did not violate Defendant's rights by continuing the interrogation. Davis, 512 U.S. at
459.
Likewise, the second time Defendant mentions "a lawyer" was not a clear request for an
attorney. While reading Defendant's statement as he quotes it in his brief-"I should talk to a
lawyer before I say anything to you"-might, as quoted, lead to the conclusion that this
statement is an objective request for an attorney, Defendant's actual statement, in its entirety and
read in context, yields the opposite result. Defendant's full statement is "You just see this crap on
TV and stuff and it's like - I feel like I should talk to a lawyer before I say anything to you
people." Com.'s Ex. 2, 00:13:43-00:13:49; Com.'s Ex. 3, p. 12. Defendant's comment was said
in the context of referencing police interviews on television. Trooper Wesnak is quick to remind
9
Crothers, 106 CR 2016
Defendant that what he sees on television and what is happening between them at the station are
not identical situations, Com.'s Ex. 2, 00:13:49-00:14:06; Com.'s Ex. 3, p. 12, and he was not
required to ask Defendant for further clarification. See Davis, 512 U.S. at 461.
Furthermore, Defendant explains that his reluctance to speak is based on his ability to
formulate his thoughts surrounding the chaotic events and not the absence of counsel. Com. 's
Ex. 2, 00:14:43-00:15:48; Com.'s Ex. 3, pp. 12-13. To the extent Defendant argues the
interruptions by Troopers Porpiglia and Wesnak amount to compulsion, Def. 's Br., p. 4, we
disagree. Later in the conversation, Defendant shows he is capable of dealing with said
interruptions and explains to the Troopers that he does not appreciate, nor will he tolerate, being
cut off in conversation. Com.'s Ex. 2, 00:14:59-00:15:07; Com.'s Ex. 3, pp. 12-13. Defendant
calmly and articulately relates these preferences to the Troopers and after Defendant's
explanation, the Troopers refrain from speaking over or interrupting Defendant while he recounts
the altercation with Victim. Com.'s Ex. 2, 00:15:56-01:03:35; Com.'s Ex. 3, pp. 13-41. Thus,
Defendant's argument that the constant interruptions overbore his will is belied by the record
before us.
Under these circumstances, Defendant, again, had not clearly made a request for counsel
and Troopers Porpiglia and Wesnak were not required to cease questioning. Thus, the Troopers
did not violate Defendant's rights by continuing the interrogation. Davis, 512 U.S. at 459.
Having found that Defendant did not make any clear or unequivocal requests for counsel,
Defendant's statement was not obtained in violation of his constitutional rights and will not be
suppressed. Accordingly, we enter the following Order:
10
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
COMMONWEAL TH OF PENNSYLVANIA NO. 106 CR 2016
vs.
MATTHEW DYLAN CROTHERS,
MOTION TO SUPPRESS
Defendant
ORDER
AND NOW, this 14th day of July, 2016, upon review of Defendant's Motion to
Suppress, and in consideration of the record, the evidence presented at the hearing on said
motions, and the parties' subsequent briefings, Defendant's Motion to Suppress is DENIED.
A pretrial conference has been scheduled for August 5, 2016, at 1:30 p.m., in Courtroom
l, Monroe County Courthouse, Stroudsburg, Pennsylvania. Furthermore, this case shall remain
on the September 2016 Trial Term.
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