Com. v. Postie, F. ( 2015 )

J-S78042-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
FREDERICK ANDREW POSTIE, :
:
Appellant : No. 17 MDA 2014
Appeal from the Judgment of Sentence entered on December 6, 2013
in the Court of Common Pleas of Schuylkill County,
Criminal Division, No. CP-54-CR-0001119-2012
BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 26, 2015
Frederick Andrew Postie (“Postie”), pro se, appeals from the judgment
of sentence imposed after a jury convicted him of four counts each of
burglary, criminal trespass, theft by unlawful taking, and receiving stolen
property, as well as two counts of criminal conspiracy.1, 2 We affirm.
The trial court set forth the procedural history and relevant facts
underlying this appeal in its Pa.R.A.P. 1925(a) Opinion, which we incorporate
herein by reference. See Trial Court Opinion, 3/25/14, at 1-5.
At the close of trial, the jury convicted Postie of the above-mentioned
offenses. Following Postie’s filing of a Notice of Appeal, and a pro se
Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal, the
1
See 18 Pa.C.S.A. §§ 3502(a), 3503(a)(1)(ii), 3921(a), 3925(a), 903(a)(1).
2
Postie currently has an unrelated appeal pending in this Court, at docket
number 2442 EDA 2014, concerning his separate criminal case in the Carbon
County Court of Common Pleas.
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trial court filed its Pa.R.A.P. 1925(a) Opinion. In response, Postie filed a pro
se Application for relief with this Court, requesting that we grant him
permission to file an Amended Rule 1925(b) Concise Statement with the trial
court. This Court granted Postie’s Application, after which Postie filed a pro
se Amended Rule 1925(b) Concise Statement, and the trial court filed an
Amended Rule 1925(a) Opinion.
On appeal, Postie presents the following issues for our review:
1) Did the trial court err when it denied suppression of
statements made by [Postie to police,] and [inculpatory
evidence seized from Postie’s] cell phone[,] where police,
lacking probable cause and acting outside of their territorial
jurisdiction, seized [Postie] and subjected him to a custodial
interrogation, coercing his statement[s] by confronting him
with illegally seized items?
2) Did the trial court err and deny [Postie] due process by not
conducting a hearing to address [Postie’s] Petition to
proceed in a self-representative role?
3) Did the trial court err when it denied [Postie’s] Motion to
dismiss the conspiracy charges pursuant to section 110 of
the Pennsylvania Crimes Code?
4) Did the trial court err by sentencing [Postie] for multiple
conspiracy charges, burglary[,] and the act in which the
burglarious entry resulted in[, graded] as felony 1’s[,]
where the facts only supported felony 2’s, and by improperly
failing to credit [Postie] for time spent in custody prior to
trial?
5) Did the trial court abuse it’s [sic] discretion by relying on a
deficient pre-sentence report during sentencing and then
failing to state its reason[s] [for the sentence imposed] on
the record?
6) Was [Postie] denied due process when the prosecuting
authorities failed to provide a video of the custodial
interrogation?
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Brief for Appellant at 4 (some capitalization omitted).3
First, Postie argues that the suppression court erred in failing to
suppress (1) his inculpatory written and oral statements made to police
officers (hereinafter “the interviewing officers”) during the interview
conducted at the Summit Hill Police Department on February 28, 2012; and
(2) inculpatory evidence seized from his cell phone. See id. at 13-35.
Postie points out that the suppression court ruled that evidence, found by
police when executing a search warrant of Postie’s residence a few days
before the February 28, 2012 interview, was inadmissible because the items
seized were not specifically identified in the search warrant. See id. at 30-
32; see also Suppression Court Opinion, 5/30/13, at 5 (stating that “[t]he
application for the warrant simply stated that [the police] were searching for
‘stolen items from several burglaries in Rush Township.’ … Pa.R.Crim.P[].
215 does require that the applicant specifically identify the property to be
searched and seized, and appellate court decisions have consistently held
that a warrant can be held to be unlawful if this requirement is not met.”
(citations to case law omitted)). Postie contends that the suppression court
should have suppressed his inculpatory statements, made to the
interviewing officers, because the interviewing officers coerced such
3
We observe that Postie’s Argument section is voluminous. See Brief for
Appellant at 13-63. Moreover, Postie concedes that his brief slightly exceeds
the word limit contained in Pa.R.A.P. 2135. See Brief for Appellant at 64;
see also Pa.R.A.P. 2135(a)(1) (providing that a principal brief shall not
exceed 14,000 words). However, we will overlook this minor defect.
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statements by confronting Postie with the illegally seized evidence from his
residence. See Brief for Appellant at 30-35. Moreover, according to Postie,
the suppression court erred in failing to rule that (a) the interviewing officers
lacked probable cause to conduct a valid custodial interrogation; and (b) the
warrant to seize Postie’s cell phone was not supported by probable cause.
See id. at 13, 16-18, 28-30.
Our standard of review of a denial of suppression is
whether the record supports the trial court’s factual findings and
whether the legal conclusions drawn therefrom are free from
error. Our scope of review is limited; we may consider only the
evidence of the prosecution and so much of the evidence for the
defense as remains uncontradicted when read in the context of
the record as a whole. Where the record supports the findings of
the suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal conclusions
based upon the facts.
Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa. Super. 2011) (en
banc) (citation omitted).
Initially, we observe that the evidence seized from Postie’s cell phone
pursuant to a warrant was not used at trial. Accordingly, this issue is moot.
Regarding the admissibility of Postie’s inculpatory statements to the
interviewing officers, the suppression court set forth the applicable law,
thoroughly addressed Postie’s challenge concerning this evidence, and
determined that the court properly refused to suppress Postie’s statements.
See Suppression Court Opinion, 5/30/13, at 6-14. Because our review
confirms that the suppression court’s thorough and cogent analysis is
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supported by the record and the law, we affirm on this basis with regard to
Postie’s first issue. See id.4
Next, Postie argues that the trial court erred by depriving him of his
constitutional right to proceed pro se at trial. See Brief for Appellant at 36-
43. Postie points out that, prior to trial, he sent the trial court judge a pro
se Petition invoking his right to represent himself (hereinafter “the Petition
for self-representation”).5 Id. at 37. Although Postie concedes that he
subsequently expressed that he wanted defense counsel to represent him at
trial, according to Postie, defense counsel “coerce[d] Postie into acquiescing
to his will.” Id.; see also id. at 41-42. Postie further argues that the trial
court erred in failing to conduct a hearing on the Petition for self-
representation. Id. at 39-41.
The trial court addressed Postie’s claim concerning the Petition for self-
representation in its Pa.R.A.P. 1925(a) Opinion, and properly rejected it,
reasoning that it is “disingenuous” based upon Postie’s subsequent
expression that he wanted to be represented by defense counsel at trial.
See Trial Court Opinion, 3/25/14, at 9. The trial court’s rationale is
4
As an addendum, to the extent that Postie challenges the jurisdiction of the
interviewing officers, he correctly observes in his brief that “[a]rgument
[regarding this matter] was not forwarded by [Postie’s] trial counsel as to
the Municipial Police Jurisdiction Act[, 42 Pa.C.S.A. § 8951 et seq.,] violation
and[,] thus, [this claim is] waived for purposes of this appeal.” Brief for
Appellant at 13; see also Pa.R.A.P. 302(a) (providing that “issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal.”).
5
Postie was represented by defense counsel when he filed the Petition for
self-representation.
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supported by the record, and we therefore affirm on this basis with regard to
this claim. See id. Moreover, we find no merit to Postie’s bald allegation
that defense counsel coerced Postie into being represented by counsel at
trial, nor do we discern any error or abuse of discretion by the trial court in
not conducting a full hearing on the Petition for self-representation.
In his third issue, Postie argues that the trial court erred when it
denied defense counsel’s oral Motion to dismiss the conspiracy charges
pursuant to the compulsory joinder rule, codified at 18 Pa.C.S.A. § 110.6
See Brief for Appellant at 44-45. Specifically, Postie contends that section
110 mandated dismissal of these charges because (1) he was previously
convicted of conspiracy in Northampton County; and (2) these conspiracies
were a part of the same criminal episode, and occurred during the same
6
Section 110 provides, in relevant part, as follows:
Although a prosecution is for a violation of a different provision of the
statutes than a former prosecution or is based on different facts, it is
barred by such former prosecution under the following
circumstances:
(1) The former prosecution resulted … in a conviction … and the
subsequent prosecution is for:
***
(ii) any offense based on the same conduct or arising from the
same criminal episode, if such offense was known to the
appropriate prosecuting officer at the time of the
commencement of the first trial and occurred within the same
judicial district as the former prosecution unless the court
ordered a separate trial of the charge of such offense[.]
18 Pa.C.S.A. § 110(1)(ii) (emphasis added).
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timeframe. See Brief for Appellant at 44 (arguing that “[t]he Northampton
[C]ounty charge allegedly took place on January 1, 2012, while the
Schuylkill [C]ounty charges allegedly occurred between the dates of
December 12, 2011[,] and January 13, 2012. Hence, it would be illogical to
assume these were separate conspiracies.”).
As noted above, the compulsory joinder rule only bars a subsequent
prosecution if all charges were within the same judicial district as the former
prosecution. See 18 Pa.C.S.A. § 110(1)(ii); see also Commonwealth v.
Miskovitch, 64 A.3d 672, 686 (Pa. Super. 2013). The compulsory joinder
rule is inapplicable in the instant case because Northampton and Schuylkill
Counties are different judicial districts. Therefore, this claim does not entitle
Postie to relief.
Postie’s fourth issue is actually comprised of several distinct sub-
issues, which we will address separately. First, Postie argues that the
sentencing court erred in failing to credit him for 59 days that he had served
in jail (hereinafter “the disputed time”) while awaiting sentence on the
instant charges. See Brief for Appellant at 46. According to Postie, the
disputed time was not credited to any of his other sentences imposed in
other counties. Id. We disagree.
At Postie’s sentencing hearing, after considering argument from both
parties concerning the disputed time, the sentencing court determined that
Postie was not entitled to have the disputed time credited toward the
sentence imposed in this case because he had served the disputed time,
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outside of Schuylkill County, toward a sentence imposed on another case.
See N.T., 12/6/14, at 8-9; see also Amended Trial Court Opinion, 5/30/14,
at 3 (stating that “[Postie] had no credit for the instant case[,] as he had
been serving a Carbon County sentence during his period of incarceration.”).
Accordingly, there is no merit to Postie’s claim for credit regarding the
disputed time. See 42 Pa.C.S.A. § 9760(4) (providing that credit for time
served on a sentence can only be granted when it has not already been
credited toward another sentence); see also Commonwealth v. Pardo, 35
A.3d 1222, 1231 n.14 (Pa. Super. 2011) (applying section 9760(4) and
concluding that the appellant was not entitled to credit for time that had
already been credited toward a sentence imposed in a different jurisdiction).
Also in his fourth issue, Postie contends that the sentencing court
erred in sentencing him for his two burglary convictions, graded as
first-degree felonies, because the burglarized buildings in question do not
meet the statutory definition of an “occupied structure.” See Brief for
Appellant at 48-51, 52-54. According to Postie, “[t]he facts only support a
finding of unoccupied structures in which no individual was present,
consistent with a charge of second-degree felonies.” Id. at 54.7
At the time that Postie was charged, the Crimes Code defined the
7
We observe that Postie does not challenge the sufficiency of the evidence
supporting the burglary convictions.
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offense of burglary,8 and set forth the grading of the offense, as follows:
(a) Offense defined.-- A person is guilty of burglary if he
enters a building or occupied structure, or separately secured or
occupied portion thereof, with intent to commit a crime therein,
unless the premises are at the time open to the public or the
actor is licensed or privileged to enter.
***
(c) Grading.—
(1) Except as provided in paragraph (2), burglary is a
felony of the first degree.
(2) If the building, structure or portion entered is not
adapted for overnight accommodation and if no individual
is present at the time of entry, burglary is a felony of the
second degree.
18 Pa.C.S.A. § 3502(a), (c); see also 18 Pa.C.S.A. § 3501 (defining
“occupied structure” as “[a]ny structure, vehicle or place adapted for
overnight accommodation of persons, or for carrying on business therein,
whether or not a person is actually present.”).
With this in mind, our review discloses that the trial court addressed
this claim in its Pa.R.A.P. 1925(a) Opinion and properly rejected it. See
Trial Court Opinion, 3/25/14, at 8. We affirm with regard to this claim based
on the trial court’s rationale. See id.
Additionally, Postie challenges the language of section 3502(c),
asserting that the phrase “adapted for overnight accommodation” is
unconstitutionally ambiguous. See Brief for Appellant at 48-53; see also 18
8
The burglary statute was amended after the charges were filed against
Postie.
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Pa.C.S.A. § 3502(c)(2). Postie has waived this challenge, since he did not
raise it in his court-ordered Rule 1925(b) Concise Statement. See
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that
“[a]ny issues not raised in a 1925(b) statement will be deemed waived.”);
see also Pa.R.A.P. 1925(b)(4)(vii) (providing that “[i]ssues not included in
the [Concise] Statement … are waived.”). Likewise, Postie has waived his
challenge to the trial judge’s jury instruction concerning the burglary statute
and the phrase “occupied structure,” see Brief for Appellant at 53-54, since
he did not raise this challenge in his Concise Statement. See Lord, supra.
Postie next contends that the sentencing court erred in imposing
separate sentences on his two convictions of conspiracy to commit burglary:
one, a first-degree felony for the burglary of 714 Claremont Avenue; and the
other, a second-degree felony for the burglary of 716 Claremont Avenue.
See Brief for Appellant at 44-45 (arguing that “[s]ince it would be illogical to
assume [that] these two separate conspiracies to burglarize both buildings
occurred at separate times[,] when the crimes themselves happened
simultaneously, they should be viewed as a single conspiracy to burglarize
both buildings.”). We disagree. The trial court properly sentenced Postie on
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both of his conspiracy convictions,9, 10
since the convictions concerned two
separate conspiracies, and burglaries of two different properties, which
occurred at different times. See, e.g., Commonwealth v. Andrews, 768
A.2d 309, 316 (Pa. 2001) (holding that the appellant was properly convicted
of, and sentenced on, two separate counts of conspiracy to commit robbery
where “the crimes involved different victims, were carried out at different
apartment buildings, in different parts of the city, and were separated by
three hours. In addition, the crimes were not interdependent, as where one
offense is a ‘necessary intermediate step’ to committing a later offense.”
(citation omitted)).
Finally, Postie argues that the sentencing court erred in failing to
merge his sentences for burglary with his sentences for criminal trespass,
since criminal trespass was the object of the burglaries. See Brief for
Appellant at 47-48;11 see also 18 Pa.C.S.A. § 3502(d) (providing that “[a]
9
Postie does not raise a challenge to the sufficiency of the evidence
supporting his separate conspiracy convictions. See Pa.R.A.P. 302(a)
(stating that a claim cannot be raised for the first time on appeal); see also
Lord, supra.
10
We additionally observe that the sentencing court ordered the sentence
imposed on Postie’s second count of conspiracy to run concurrently with the
sentence imposed on the first count.
11
Postie has failed to develop this claim in any meaningful fashion. See
Commonwealth v. Einhorn, 911 A.2d 960, 970 (Pa. Super. 2006) (stating
that “[t]his Court will not become the counsel for an appellant, and will not,
therefore, consider issues which are not fully developed in the brief. … An
issue that is not properly briefed … is considered waived ….” (citations
omitted)). Nevertheless, we decline to deem this claim waived because the
trial court concisely addressed it in its Pa.R.A.P. 1925(a) Opinion.
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person may not be sentenced both for burglary and for the offense which it
was his intent to commit after the burglarious entry or for an attempt to
commit that offense, unless the additional offense constitutes a felony of the
first or second degree.”).
The trial court concisely addressed this claim in its Pa.R.A.P. 1925(a)
Opinion and properly rejected it. See Trial Court Opinion, 3/25/14, at 8.
We affirm with regard to this claim based on the trial court’s rationale. See
id.In his fifth issue, Postie argues that the sentencing court committed
reversible error by relying upon a “deficient” pre-sentence investigation
report (hereinafter “PSI”), which was prepared without his having been
interviewed,12 and did not contain mitigating information concerning his
background. See Brief for Appellant at 55-59. Specifically, Postie contends
that the sentencing court failed to consider the following mitigating factors:
[Postie] is not a career criminal[;] Postie’s prior record score is a
one; he holds a Master Certification in automobile repair from
the Automotive Service Excellence Group; at the time of his
incarceration[,] he owned and operated his own small business
…; he is married and supported a family for more than 18 years;
he was currently completing his degree in Psychology[; and
Postie] is an avid volunteer in his community[.]
Id. at 56. Postie additionally asserts that the sentencing court abused its
discretion by failing to adequately state its reasons for the sentence imposed
on the record. Id. at 55, 58.
12
The record confirms Postie’s assertion that he was not interviewed before
the PSI was filed. See N.T. (sentencing), 12/6/14, at 21.
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Postie’s claim essentially raises a challenge to the discretionary
aspects of his sentence, from which there is no absolute right to appeal.
See Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013). Rather,
where the appellant has preserved the discretionary sentencing claim for
appellate review by raising it at sentencing or in a timely post-sentence
motion, the appellant must (1) include in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the discretionary
aspects of a sentence, pursuant to Pa.R.A.P. 2119(f); and (2) show that
there is a substantial question that the sentence imposed is not appropriate
under the Sentencing Code. Hill, 66 A.3d at 363-64.
Here, Postie included a Rule 2119(f) concise statement in his brief.
However, he has waived his claim that the sentencing court failed to set
forth adequate reasons on the record for the sentence imposed because he
failed to preserve it either at sentencing or in a post-sentence motion. See
Commonwealth v. Gibbs, 981 A.2d 274, 282-83 (Pa. Super. 2009)
(stating that “[i]ssues challenging the discretionary aspects of a sentence
must be raised in a post-sentence motion or by presenting the claim to the
trial court during the sentencing proceedings. Absent such efforts, an
objection to a discretionary aspect of a sentence is waived.”).
Concerning Postie’s allegation that the sentencing court erred by
relying upon a “deficient” PSI,13 and failing to consider certain mitigating
factors, such a claim does not necessarily raise a substantial question. See
13
Postie preserved this claim by raising it at sentencing.
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Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (noting
that a claim that the sentencing court failed to consider certain mitigating
factors generally does not raise a substantial question); see also
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (stating that,
where the sentencing court had the benefit of a PSI, an appellate court can
“presume that the sentencing judge was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.”). However, in the instant case, we deem
that Postie’s claim presents a substantial question, given that he was not
interviewed prior to preparation of the PSI to provide mitigating information.
See, e.g., Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 724-25 (Pa.
Super. 2013) (holding that an appellant’s claim that the sentencing court
abused its discretion by imposing sentence without ordering a PSI, or failing
to give a reason on the record for not ordering a PSI, presents a substantial
question).
Accordingly, we will address the merits of Postie’s claim, mindful of our
standard of review: “Sentencing is a matter vested in the sound discretion
of the sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion.” Commonwealth v. Bricker, 41
A.3d 872, 875 (Pa. Super. 2012) (citation omitted).
A review of the transcript from Postie’s sentencing hearing reveals that
Postie’s defense counsel, in fact, brought many of the above-mentioned
mitigating factors to the attention of the sentencing judge. See N.T.,
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12/6/14, at 5-6, 8-12, 25-26. Moreover, both Postie and his wife testified at
the sentencing hearing and presented mitigating information. See id. at 15-
25. Additionally, Postie stated his opinion to the sentencing judge that the
PSI “was a completely negative report done without my knowledge[,]” id. at
20, and, in response, the judge gave Postie an opportunity to offer any
mitigating information and/or contest anything in the PSI that he considered
erroneous. See id. at 20-25. In the trial court’s Amended Rule 1925(a)
Opinion, the court stated that “[t]he [sentencing] court considered all of the
material produced at the sentencing hearing prior to promulgating the
sentence that it did. None of the discrepancies [that Postie] identified in the
[PSI] played any part in his sentence.” Amended Trial Court Opinion,
5/30/14, at 2. Accordingly, we discern no abuse of discretion by the court in
sentencing Postie.
Finally, Postie argues that his due process rights were violated because
the Commonwealth failed to provide him with a copy of the video recording
of his confession to the interviewing officers. See Brief for Appellant at 60-
61;14 see also Trial Court Order, 5/30/13 (ordering the Commonwealth to
provide to Postie a copy of any recording of the police interview of Postie
conducted on February 28, 2012, if such recording existed).
14
Postie concedes, however, that “this [C]ourt [has] determined that ‘the
Pennsylvania Constitution does not require contemporaneous recording of
statements and that the adoption of a rule requiring contemporaneous
recording of custodial interrogation should be left to the Pennsylvania
Supreme Court or the General Assembly[.]’” Brief for Appellant at 61
(quoting Commonwealth v. Harrell, 65 A.3d 420, 429 (Pa. Super. 2013)).
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The trial court addressed this claim in its Amended Rule 1925(a)
Opinion as follows: “[N]o such video tape was entered into evidence at trial,
and no such video tape exists because the machinery used to attempt to
produce such a video malfunctioned. It was not possible to produce
something that did not exist.” Amended Trial Court Opinion, 5/30/14, at 3-
4; see also Trial Court Opinion, 3/25/14, at 9 (stating that “[t]his matter
was addressed at the suppression hearing[,] at which [one of the police
officers who interviewed Postie] testified that, although there were signs
informing individuals that interview sessions would be recorded, the tape
recording system was not functioning properly.”). Our review discloses that
the trial court’s rationale is supported by the record, and we therefore affirm
on this basis in determining that Postie’s final issue does not entitle him to
relief. See Amended Trial Court Opinion, 5/30/14, at 3-4; Trial Court
Opinion, 3/25/14, at 9.
For the foregoing reasons, we discern no abuse of discretion or error of
law by the trial court, and we therefore affirm Postie’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/2015
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IN THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY--CRIMINAL
COMMONWEALTH OF PENNSYLVANIA NO. 1119-2012
vs. ..)
, -,-
:"r:
c::
FREDERICK ANDREW POSTlE
r- ,-,j
Jennifer Lehman, Esq., Assistant District Attorney - for the CommonV'(~-alth 0
Christopher Hobbs, Esq., Public Defender - for the Defendant .::: U
OPINION OF COURT
DOMALAKES, J.
The Defendant is charged with fifty-one (51) counts, including Burglary, Criminal
Trespass, Theft by Unlawful Taking, Receiving Stolen Property, Criminal Mischief, and
Loitering and Prowling at Nighttime, which involved a series of burglaries in Rush
Township, Schuylkill County, Pennsylvania. He was also charged with a series of
burglaries in Carbon County. Defendant filed an Omnibus Pretrial Motion seeking
suppression of evidence found pursuant to a search warrant and also seeking
suppression of evidence seized as a result of a consensual search of the premises of
Kerry Hoffman and Michael Christman in Nesquehoning, Carbon County, Pennsylvania,
and is seeking suppression of verbal and written inculpatory statements given by him to
police. Defendant has also raised an issue in a pretrial request that his case be
severed from cases involving his Co-Defendants in this case. A hearing on his Motion
was held as scheduled on April 1, 2013, at which Kerry Hoffman and Michael
Christman, who are occupants of the premises at 68 West Center Street,
Nesquehoning, Carbon County, Pennsylvania; Lori Leinhard, a police officer with the
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Summit Hill Police Department; Timothy Wuttke, a police officer for the Nesquehoning
Police Department; Sergeant Duane Frederick, of the Rush Township Police
Department; and the Defendant all testified. The parties requested until May 1, 2013, to
file briefs. The Court granted the request. Both requested an extension of time for the
briefing schedule, to May 16, 2013, which extension was granted by the Court. Both
parties have filed same. The Court has reviewed the relevant record and the foregoing,
and the matter is now ripe for disposition.
The first issue raised by Defendant is that all evidence seized from the property
located at 626 Fairview Street, Tamaqua, Schuylkill County, Pennsylvania, pursuant to
Sgt. Frederick's February 21,2012, Search Warrant should be suppressed. The Court
finds, as relevant credible evidence on this issue, that a Search Warrant was issued
pursuant to an Affidavit of Probable Cause on February 21,2012, and that the search
was performed that particular day. The justification for the Search Warrant consisted of
statements Defendant himself had given to Sgt. Frederick specifically describing items
that had been stolen during the rash of burglaries. Prior to questioning, the Defendant
had been given his Miranda warnings. The questioning occurred when the Defendant
had been subject to a vehicle stop and had attempted to flee. During the conversation
with Sgt. Frederick, the Defendant had been bragging about his participation in the
burglaries and how he had gotten away with stealing so many items. Officer Frederick
testified that this conversation took place prior to February 21,2012, when he had an
opportunity to talk with the Defendant. One of those conversations was at the police
department in Rush Township. He said it was maybe a week or two or maybe even a
couple of weeks before a subsequent interview with Defendant at the Summit Hill Police
2
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Department on February 28,2012. He had picked Defendant up on a warrant from
another county. Defendant told Officer Frederick about burglaries. Officer Frederick did
not believe him at first, but then Defendant told Officer Frederick of specific items that
were stolen during the burglaries he was investigating. Defendant told Frederick that he
was involved with burglaries and fencing items, and it would go through one, two, three,
four, or five people, so the items could not be traced. He was in custody at the time
based on a retail theft warrant from Northumberland County. He was given his Miranda
rights prior to the police officer talking to him. Commonwealth's Exhibit #4 in the record
is the application for the search warrant of Defendant's residence at 626 Fairview
Street, Tamaqua, Pennsylvania. In the Affidavit of Probable Cause supporting that
application, Officer Frederick affirmed that, on February 20 th , he had spoken with
Defendant at the Rush Township Police Station. Defendant voluntarily gave Officer
Frederick information of which the public was unaware in reference to burglaries
committed in Rush Township. Defendant told Officer Frederick that he knew where
stolen items were from the burglaries. This is exactly what Officer Frederick had
testified to at the time of the hearing. The Affidavit of Probable Cause further contains
information that Frederick went to a 36 E. Ludrow Street, Apartment 2, Summit Hill,
Pennsylvania, where he spoke with one Kerry L. Frank. Frank did allow the officer to
search that residence. Frederick found a PP&L power meter in the basement where
Defendant stated it would be. Kerry Frank told Officer Frederick that Defendant did
bring the power meter to his apartment. Kerry Frank did further tell the officer that
Frank saw other stolen items from a burglary in Rush Township in his basement that
were brought and removed by the Defendant. The Affidavit of Probable Cause also
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contains information that Officer Frederick went to 68 West Center Street,
Nesquehoning, where he spoke to Michael Christman who told Officer Frederick that
Defendant had brought him a hot water heater and then dropped off copper pipes at a
later time. Officer Frederick had discovered, during the course of his investigation, that
the water heater was stolen from a burglary in Rush Township, and there were several
different sizes of copper pipes seized from his residence. Officer Frederick affirmed
that, in the evening hours of February 20, 2012, he and another officer tried to make
contact with Annette Postie by knocking at the front door. They knocked to no avail.
Then they knocked at the back door where they saw, in plain view, copper pipes that
were laying in the grass. At this point, they left the residence.
In reviewing the validity of an affidavit to determine if there was probable cause in
support of a search warrant, the viewing court does not look at each individual
circumstance but rather looks to the circumstances as a whole. Under that standard, a
magistrate is to make a practical common sense decision whether, given all the
circumstances set forth in the affidavit before him, including the veracity and basis of the
knowledge of the person supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place. Commonwealth v.
Hawkins, 45 A.3d 1123, appeal denied 53 A.3d 756 (Pa. Super. 2012). An affidavit
stating that police had been personally informed by a participant in the criminal act, as
to involvement of the defendant and location or storage place of fruits of illegal conduct
and specifically describing the premises to be searched supply probable cause for
issuance of the search warrant. Commonwealth v. Yohn, 414 A.2d 883 (Pa. Super.
1979). The Court concludes that the Affidavit of Probable Cause is adequate to support
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issuance of the search warrant. The information that had been received was from the
Defendant himself giving information about the burglaries of which the public was
unaware. The Defendant told Officer Frederick that one of the stolen items from the
burglaries would be a PP&L power meter, and, when Officer Frederick went to the home
in question, that of Kerry Frank, such an item was there. Frank, who was not an
informant in this case, but who is an independent witness, also told Officer Frederick
that Frank saw other stolen items from a burglary in Rush Township in his basement
that were brought and removed by the Defendant. The Affidavit also contains the
information from Michael Christman, who is an independent source and not an
informant, that Defendant is the one who brought him a hot water heater that had been
stolen, and dropped off copper pipes which had been stolen. The officer also personally
observed copper pipes at the residence of Defendant. This is sufficient, under the
applicable standards, to establish probable cause. However, the Search Warrant in this
particular case is attacked on another basis - that being a technical one - that the items
to be searched for and seized were not specifically identified in the Search Warrant.
Defendant is correct on this issue. The application for the warrant simply stated that
they were searching for "stolen items from several burglaries in Rush Township". The
Commonwealth in its Brief has agreed that the items were not identified specifically.
Pa. R.Crim.Proc. 215 does require that the applicant specifically identify the property to
be searched and seized, and appellate court decisions have consistently held that a
warrant can be held to be unlawful if this requirement is not met. See Illinois v. Gates,
467 U.S. 213 (1983); Roe v. Ramirez, 540 U.S. 51,124 Supreme Ct. 1284, 157 L.Ed.
2d 1068.
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The next issue raised by Defendant is that all statements, both verbal and
written, given to the members of the Rush Township Police Department, Nesquehoning
Police Department, and Summit Hill Police Department on or about February 28, 2012,
should be suppressed. On this issue, the Court finds the following information as
immediately hereinafter set forth as credible.
On February 28, 2012, Officer Leinhard and Sgt. Frederick drove to the
Northumberland County Prison to interview Defendant about a series of burglaries.
They had information on these burglaries from the Defendant, from a co-conspirator,
and from independent sources - that is people who had received stolen items from
Defendant. When the police officers arrived at the Northumberland County Prison, they
were told that the Defendant was attending another hearing. They waited for his return
to the prison. During their wait, they were informed that a Carbon County bench
warrant had been issued for Defendant's apprehension, and they had been requested
by Carbon County officials to transport him to the Carbon County jail. When he was
returned from the hearing, Defendant was informed of the bench warrant, handcuffed,
and placed into the rear of the police cruiser. He was not questioned about the
burglaries at this time, though he began to offer statements about them. Officer
Leinhard had testified that she advised him about the bench warrant in Carbon County
and advised him that she wanted to speak to him in reference to burglaries that
occurred in Carbon County and Schuylkill County (Hrg. Transcript 4/1/13, p. 20). The
Defendant told her that he'd answer any questions she wanted, and he'd be honest. In
the police car, he started to talk about things, and she told him she didn't conduct
interviews in police cars and that they'd wait until they got back to the station.
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Defendant was then transported to the Summit Hill Police Department interview room
which is located in Carbon County - approximately one hour and forty (40) minutes from
the Northumberland County Prison. Before being questioned, he was provided with the
Miranda warnings. He was interviewed about the series of burglaries and related
crimes by Officer Leinhard and Sergeant Frederick. He was not threatened nor coerced
in any manner. During the interView, he was brought pizza and soda, which he
consumed, and was permitted to repair his glasses. Defendant waived his Miranda
rights and executed a written waiver of same. (See Commonwealth's Exhibit #1.)
During the interview, he admitted to participating in the burglaries in Summit Hill and
Nesquehoning, Pennsylvania, both of which are in Carbon County, and burglaries in
Rush Township, Schuylkill County. The interview took approximately four (4) hours. At
some point during the interview, the Defendant was left alone in the interview room and
wrote a written statement in his own handwriting. Although he testified that he made
"vague" references to a lawyer during the interview, the Court finds the testimony of the
officers credible and does not credit the testimony of the Defendant. The officers
testified that he never requested counsel nor indicated that he wanted the interview to
stop. After the interview, Defendant was transported to the Carbon County Prison on
the bench warrant. It is noted that Defendant's written statement is in his own
,
handwriting, and he admitted signing it.
The testimony also established that there were signs posted in and about the
interview room informing individuals that the interview would be taped. Officer Leinhard
testified that there have been technical problems with the taping system. The Court
directs that a copy of the tape be provided to Defendant's counsel, if the tape exists.
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Defendant argues on this issue that all statements, both verbal and written, on
February 28, 2012, were obtained without probable cause and as a result of the
Defendant's illegal detention. Furthermore, such statements were obtained as a direct
result of the police wanting to question the Defendant based on the results of the illegal
search of Defendant's residence, thus are tainted and must be excluded. The
Defendant also argues that he only gave the statement to the police officers on
February 28,2012, because they told him they had found evidence at his residence as
a result of the search of February 21. The Defendant argues, therefore, that, since that
search was unlawful, his statement was the "fruit of the poisonous tree". The Defendant
also argues that he was made a promise of leniency by the police in return for giving his
statement. The Court finds that the verbal and written statements were not obtained
without probable cause because of any illegal detention. Before the police officers went
to Northumberland County Prison to retrieve the Defendant and to talk to him about the
burglaries in Nesquehoning, Rush Township, and Summit Hill, they had credible
information that he was involved in these burglaries from what they referred to as
"knock and talk" investigations as to the burglaries where they would go to different
homes, knock on the door, and then talk to the people about stolen items. This was
done in the case of Christman and Kerry Hoffman at 68 West Centre Street in
Nesquehoning, Carbon County, on February 20 or 21 st where a stolen water meter was
uncovered, and the owners and one of the residents, Mike Christman, told them that
Defendant is the one who brought the stolen water meter to that residence. The
information gathered from this home was with the consent of both Christman and
Hoffman, and Defendant has no standing to attack that search as will be hereinafter
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discussed. It was not an illegal search. The police officers testified that they had gone
to the residence of a Stephanie Keck and received a consent search for this residence.
This was located at 36 East Ludlow Street. Officer Frederick of Rush Township was
with Leinhard when the search was conducted. Officer Frederick had indicated to
Leinhard that some of the items found at the Keck and Kerry residence were items
missing from a Rush Township home burglary. Officer Frederick, of course, prior to
going to Northumberland County, also had the information that, from the February 20,
2012, contact with Defendant, that Defendant had information concerning the burglaries
committed in Rush Township which was confirmed to be accurate. Officer Frederick
had been told by Kerry Frank that Defendant brought a stolen power meter from a
burglary to the address at 36 East Ludlow, and that is what Defendant himself had told
the officer. Christman also said that Defendant brought him copper pipes to his
residence at 68 West Center Street, which pipes had been stolen from burglaries.
There certainly was sufficient information supplied to the police that they had reasons,
independent of any search at his home, to talk to him about these burglaries.
The statements therefore were not obtained as a direct result of the police
wanting to question the Defendant based on the results of an illegal search of the
Defendant's residence (emphasis added). The statements were obtained because the
police wanted to question the Defendant based on information independent of any
illegal search of the Defendant's residence that he was involved in these
burglaries. Officer Leinhard specifically testified (see pp. 29 and 30 hearing transcript)
that she did not go to the Northumberland County Prison to talk to Defendant based on
information received pursuant to the search of the Defendant's residence but on
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independent evidence that she had from Sgt. Frederick and from her own investigation
that he was involved in these burglaries. She testified Officer Frederick gave her
information about Defendant's involvement, but it was not solely based on this
information that she went to the Northumberland Prison to talk to him. She had not
received information from Officer Frederick that there were stolen items seized from
Defendant's residence. This was not the reason they were going to talk to him. She
had information that stolen items were in Summit Hill. She went to that residence,
conducted a consent search and found stolen items from thefts in Schuylkill and Carbon
Counties. This was at the Stephanie Keck and Kerry Frank residences.
Miranda warnings are required to be given by the police in the situation where
there is custodial interrogation. Commonwealth v. Gwinn, 723 A.2d 143;
Commonwealth v. Bess, 789 A.2d 757. In this case, the record supports a finding that
there was custodial interrogation. However, the Miranda rights accorded to a person
can be waived by the defendant. "It is the Commonwealth's burden to establish
whether the defendant knowingly and voluntarily waived his Miranda rights. In order to
do so, the Commonwealth must demonstrate the proper warnings were given and that
the accused manifested an understanding of these warnings." Commonwealth v.
Eichinger, 915 A.2d 1122 (2007), cited in Commonwealth v. Biez, 21 A.3d 1280 (Pa.
Super. 2011). In Biez supra., our Superior Court reviewed the case of Commonwealth
v. Bomar, 826 A.2d 831 (2003). In that case, before interrogating the defendant, the
police read the defendant the Miranda warnings. While the officer was administering
the warnings, the defendant interrupted him and told the officer that he understood his
rights. The officer explained that, he nevertheless, had to advise him of his rights. The
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officer proceeded to recite the warnings in their entirety from the start, and he did so.
He asked the defendant if he understood his rights. The defendant responded he
understood his rights, after which the officer then began to question the defendant. The
defendant never declined to speak with the officer nor did he request an attorney. The
Bomar court found that the defendant had manifested a desire to waive his Miranda
rights. The Biez court/ollowing Bomar]held that, after a defendant is given his Miranda
rights, a statement by the defendant that he understands those rights followed by the
answering of questions posed by the police constitute a sufficient manifestation of
defendant's intent to waive those rights as to satisfy state constitutional protection. The
Biez court also concluded this was so even though the defendant did not execute a
written waiver. In this case, the Court has found that the Defendant voluntarily executed
an acknowledgement that he had been given his Miranda rights and was waiving those
rights. On the question of the voluntariness of his statements, the burden is on the
Commonwealth to demonstrate that the will of the accused was not overborne - either
through physical or mental pressure in obtaining a confession and that it issued from
free choice. Commonwealth v. Jones, 322 A.2d 119 (Pa. 1974). Evidence showing,
inter alia, that a defendant was advised of his constitutional rights and that he stated
that he understood those rights and was willing to answer questions of his own free will
establish that the statements so made to the police were voluntary and, thus,
admissible. U.S. v. Glover, 394 F.Supp. 253, affirmed U.S. v. Choice, 523 F.2d 1051.
A confession will not be ruled involuntary where a suppression court's decision to credit
testimony of the officer whose version of the circumstances directly contradicted the
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version of the defendant was supported by the record. Commonwealth v. Subler, 436
A.2d 1376 (Pa. 1981).
On this issue of his voluntariness of verbal and written statements, the Defendant
argues that he only gave the statements because he was confronted with the illegally
seized evidence from his residence. In questioning the Defendant, Officer Leinhard did
not mention to him anything about the search of his own home. She did confront him
with evidence from independent sources of his involvement in burglaries and thefts she
had investigated, and, after that, he admitted his involvement in those. Officer Frederick
did state that, on one occasion during the questioning of Defendant, he mentioned that
stolen items had been recovered from Defendant's home. The relevant Pennsylvania
appellate court decisions on whether an illegal intrusion on the rights of a person taints
a subsequent confession by that person have laid out four (4) factors to be considered
by the courts in reviewing this issue. The cases deal mostly with illegal arrests, but the
principals enunciated are the same. Whether confessions or admissions secured from
an illegally arrested person are admissible depends on the facts in each case,
considering the following factors: (1) whether Miranda warnings were given; (2) the
temporal proximity of the arrest and confession; (3) the presence of intervening
circumstances; and (4) the purpose and flagrancy of the official misconduct.
Commonwealth v. Smith, 995 A.2d 1143,606 Pa. 127, certiorari denied, Smith v.
Pennsvlvania, 131 S.Ct. 518, 178 L.Ed. 2d 382. In the case at bar, the Court finds that
Miranda warnings were given. The illegal search was a week before the statement was
given by the Defendant. The intervening circumstances were the Defendant's own
actions and words. He wanted to talk about the burglaries in the automobile on the way
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to being interviewed and told police he would tell them the truth. They declined to
interview him in the car. He was confronted in questioning by Leinhard, not with
evidence seized from his own home, but with evidence from other burglaries. After he
was told this by Officer Leinhard, he confessed to those burglaries. When he was told
that items were taken from his own home that were stolen, his attitude was not of a sort
as if to say "Oh, my God, I am caught now", but, rather, wasn't "I clever in planning and
executing these thefts." Additionally, the Defendant expressed an interest in securing a
deal of some kind in the form of concurrent sentences. Finally, the search of the
Defendant's home was not one that was illegal because the Search Warrant lacked
probable cause in the Affidavit for it but, rather, that it was not sufficiently specific in
identifying items it sought. The "misconduct" of the police was failing to be specific.
They were not attempting to circumvent the probable cause requirements needed to
secure a search warrant. In fact, they complied with those requirements. This Court
finds that their purpose was not nefarious in any way nor was their conduct in any
manner to be described as flagrant. In the case of Commonwealth v. Wright, 332 A.2d
809 (Pa. 1975), it was held that statements following an illegal arrest must be excluded
from evidence only if they are causally related to an invasion of a suspect's rights, and,
if the statement is sufficiently an act of free will to purge the primary taint of unlawful
invasion or if the connection between the arrest and the statement is so attenuated as
to dissipate the taint, the statement need not be excluded. This Court finds, based on
credible evidence in the record, that the Defendant's statement to the police at the
Summit Hill Police Station was sufficiently an act of his own free will, and the connection
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"\
between the statement and any illegal search of his home was so attenuated as to
dissipate any taint from that search.
On this issue, the Defendant also argues that he was made a promise in return
for his confession in this case concerning his sentence. The Court finds that he was
made no such promise. What Officer Leinhard had indicated to him was that, if he was
offered concurrent sentences by the prosecutor from the District Attorney's Offico/. she
would not oppose that. That is not an offer of leniency coming from her. A promise
that, if he were given a concurrent sentence, the officer would not have any problem
with that is not a promise of leniency. Again, the Court finds that Defendant's
confession was not induced by any promise. In the case of Commonwealth v. Templin,
795 A.2d 959 (Pa. 2002), a defendant's obligation that, before he confessed to sexual
contact with a child, the officer had promised to recommend a release on recognizance
bail at arraignment, did not automatically invalidate defendant's confession as being
involuntary-rather involuntariness would be determined from the totality of the
circumstances.
The third issue raised by the Defendant is that all evidence seized from the home
of Michael Christman and Kerry Hoffman on or about February 21,2012, should be
suppressed. On this issue, the Court finds that the credible evidence produced at the
hearing on April 1, 2013, established that, on February 20,2012, Michael Christman
was the owner/occupier of the Nesquehoning residence where he resided with his
girlfriend, Kerry Hoffman, their child, and another child of Ms. Hoffman. On that date,
officers asked for permission to search the premises because they were looking for
stolen items. Christman and Hoffman gave permission to search the home. A stolen
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hot water heater was discovered in the basement. Neither Ms. Hoffman nor Mr.
Christman were threatened or coerced in any way into granting consent to search their
home. There was no evidence that Defendant had any interest in the property.
Therefore, he has no standing to object to the owner/occupier's consent to search.
Commonwealth v. Maldanado, 14 A.3d 910 (Pa. Super. 2012); Commonwealth v.
Peterkin, 513 A.2d 373 (Pa. 1986). An individual who lacks a reasonable expectation of
privacy in the place searched is foreclosed from invoking the protection on the Fourth
Amendment. U.S. v. Scott, 673 F.Supp. 331 (Middle Dist. 2009). Before a defendant
can challenge the seizure of physical evidence, he must demonstrate that he had both
the possessory interest in the evidence and a legally cognizable expectation of privacy
in the area where the evidence was seized. Commonwealth v. Bird, 987 A.2d 786 (Pa.
Super. 2009).
The next issue raised by Defendant is that all evidence seized from his cell
phone, including the phone itself, pursuant to Patrolman Wuttke's February 27,2012,
search warrant;should be suppressed. Officer Wuttke included the following information
in the affidavit of probable cause for the search warrant concerning Defendant's cell
phone. He noted that, in November and December of 2011, complaints of copper theft
were coming into the police departments of Carbon and Schuylkill County. On
November 25, Officer Blizzard of Nesquehoning handled the investigation of a burglary
of a vacant home at 134 Stock Street, Nesquehoning Borough. Blizzard had found that
the front door was kicked in, the PP&L meter wires were cut, and the alarm system was
smashed. During this burglary, copper piping and wiring from the downstairs basement
portion of the home were removed. On December 3, Officer Wuttke himself handled
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another burglary in the same home and found copper piping was removed from the
home. On February 20, Sergeant Frederick of the Rush Township Police Department
told Officer Wuttke that he had taken Defendant into custody on a warrant, and
Defendant had given him information on burglaries in the area, including the
Nesquehoning burglaries. On February 23, Officer Frederick of Rush Township told
Officer Wuttke that he had interviewed Stephanie Keck at the Schuylkill County Prison)
who was intimately involved with Defendant who was a suspect in the copper wire
thefts. Keck had information on the burglaries that occurred in Nesquehoning. Wuttke
went personally to the Schuylkill County Prison and spoke with Keck. Keck told Officer
Wuttke that Defendant committed the burglaries in Nesquehoning and gave detailed
information on them, including the smashed alarm system, the PP&L meter being cut,
the copper piping being taken, as well as other items, and the fact that he had to go
back on another day to remove the rest of the piping)las Defendant did not have enough
room to take everything in one trip. Keck also advised that she is the one that turned
the copper from the Nesquehoning burglaries into the scrap yard. She further stated
that Defendant wrote her a letter in prison, and, in one letter, he said "I wish we were
using this nice weather to add more homes to my list." She explained that Defendant
keeps a list of homes he "hit" on his phone. She advised that Defendant took pictures
on 'his cell phone of the inside of the home at 134 Stock Street, and she received text
messages from Defendant about the home while he was inside of it. He has an Apple
iphone. Defendant was going to go back into the home at 134 Stock Street, but found
the police at the home and took pictures of the patrol cars in the driveway with his cell
phone. On February 24, Wuttke spoke to Frederick and asked if Defendant had a cell
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phone on his person. Frederick said that he did when he was arrested and identified it
to be an Apple iphone, but it was in the custody of the Coal Township Police
Department. So, from this Affidavit, we can deduce that Wuttke knew from a police
officer that there had been a burglary at Stock Street; that PP&L metal wires were cut;
and copper piping and wiring from the downstairs basement portion of the home was
removed. When Wuttke talked to Keck in the prison, she gave him information that she
had received from Defendant that there was a smashed alarm system; that the PP&L
meter was cut; and that copper piping was taken. All of this was confirmed by the
independent information from Officer Blizzard. It has been held that for purposes of
establishing an informant's veracity)more than corroboration of a few minor elements of
the story is necessary, but police need not corroborate every detail of an informant's
report to establish sufficient evidence of veracity. U.S. v. Bush, 647 F.2d 357 (Ct. of
Appeals of 3 rd Circ. Pa. 1981). In that case, it was held that an informant's legitimate
basis of knowledge means in general that the informant either directly observed critical
facts or that he obtained those facts directly from one of the participants in the criminal
enterprise who, by revealing those facts, made admissions against penal interests.
U.S. v. Bush, 647 F.2d 357. An accomplice's statements which were used as the basis
for the affidavit for a search warrantJpursuant to which blood, hair, and spittle samples
were taken from the defendant, constitute declarations against the accomplice's penal
interest and were sufficient to ensure its reliability. Commonwealth v. Chumley, 394
A.2d 497, certiorari denied Chumlev v. Pennsylvania, 99 Supreme Ct. 1515 (Pa. 1978).
In this case, Stephanie Keck admitted that she took stolen copper secured by
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Defendant from the Nesquehoning burglaries to a scrap yard. That is definitely a
statement against her penal interests.
The last issue raised by the Defendant, Defendant, is that the instant matter be
severed from the cases involving the Defendant's Co-Defendants. The Court does find
that the Defendant may be prejudiced by the trying of his case with that of his Co-
Defendants. The Defendant's Co-Defendants implicate him in the crimes charged
against them. Any statements they gave to the police, if admitted against them, would
also implicate him. Pursuant to the case of Commonwealth v. Bruton, 391 U.S. 123,8
S.Ct. 1620,20 L.Ed 2d 476 (1968), a joint trial of all the defendants under the foregoing
circumstances would be generally prohibited. A redaction of the statements is, at times,
permitted, but, in this case, a joint trial, especially one before a jury, could be highly
prejudicial, for it would be very difficult, if not impossible, for the fact finders to only
consider the statements of co-defendants given to police against that co-defendant
when they also implicated the defendant.
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