Com. v. Skidmore, N. ( 2014 )

J-A22029-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NATHAN LEE SKIDMORE, :
:
Appellant : No. 2113 MDA 2013
Appeal from the Judgment of Sentence Entered October 29, 2013,
In the Court of Common Pleas of Fulton County,
Criminal Division, at No. CP-29-CR-0000032-2013.
BEFORE: PANELLA, SHOGAN and FITZGERALD*, JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 08, 2014
Appellant, Nathan Lee Skidmore,1 appeals from the judgment of
sentence entered following his conviction of six counts of robbery, one count
of theft, and one count of possession of a controlled substance.2 We affirm.
The trial court summarized the history of this case as follows:
[Appellant] was charged with three counts of robbery
threatening serious bodily injury,2 three counts of robbery
* Former Justice specially assigned to the Superior Court.
1
We note that certain court documents list Appellant’s first name as Nathan,
and other documents list his name as Nathen.
2
Although in his notice of appeal Appellant purports to appeal from the
order denying his pretrial motion in limine, the appeal properly lies from the
judgment of sentence because pretrial orders denying a defendant’s motion
to suppress evidence are interlocutory and not appealable.
Commonwealth v. Strong, 825 A.2d 658, 667 (Pa. Super. 2003).
Therefore, we have amended the caption accordingly.
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threatening to commit any felony of the first or second degree,3
three counts of robbery fear of immediate bodily injury,4 three
counts of robbery by force,5 three counts of terroristic threats,6
one count theft by unlawful taking or disposition,7 and one count
possession of a controlled substance8 on February 3, 2013
related to an incident at MacDonald’s Pharmacy on February 2,
2013. The Information filed by the Fulton County District
Attorney on February 14, 2013, did not include the three counts
of robbery fear of immediate bodily injury, the three counts of
robbery by force, or the three counts of terroristic threats. On
February 19, 2013, [Appellant] signed a waiver of arraignment
and pled guilty to one count of robbery threatening serious
bodily injury. On March 3, 2013, [Appellant] filed a Motion to
Withdraw Plea of Guilty.9 The Motion to Withdraw Plea was
granted on April 17, 2013. The trial date was set for September
25 and 26, 2013, before Judge Angela R. Krom and the jury was
impaneled on July 22, 2013.
2
18 Pa.C.S. § 3701(a)(1)(ii).
3
18 Pa.C.S. § 3701(a)(1)(iii).
4
18 Pa.C.S. § 3701(a)(1)(iv).
5
18 Pa.C.S. § 3701(a)(1)(v).
6
18 Pa.C.S. § 2706(a)(1).
7
18 Pa.C.S. § 3921(a).
8
35 [P.S.] § 780-113(a)(16).
9
It appears that even though [Appellant] was
represented by Attorney Harper, he filed a pro se
Motion to Withdraw Plea of Guilty. Thereafter,
another Motion to Withdraw Plea of Guilty was filed
on April 9, 2013 by Attorney Harper.
[Appellant] filed a Motion in Limine on September 12,
201310 to suppress the written statement obtained on February
2, 2013 by the Pennsylvania State Police. [Appellant] asserts
that at the time the confession was obtained he was in a
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confused and less than lucid state of mind as the result of being
struck in the head by a metal pipe the morning of the
interrogation. Motion ¶¶ 4, 8. [Appellant] alleges that despite
knowledge of [Appellant’s] head injury and his confused mental
state, troopers proceeded to obtain [Appellant’s] confession.
Motion ¶ 9. Additionally, the written statement was obtained
approximately five hours after [Appellant] had been taken into
custody and before his preliminary arraignment. Motion ¶¶ 1, 5.
[Appellant] asserts that based on the totality of the
circumstances the confession was not voluntary and should be
suppressed. Motion ¶¶ 10, 11.
10
A Motion in Limine Amended was filed on
September 24, 2013. The Motion in Limine
Amended addressed the late filing of the Motion in
Limine, otherwise the content is the same as the
Motion in Limine.
The Commonwealth filed an Answer to [Appellant’s] Motion
in Limine on September 20, 2013. The Commonwealth denied
that [Appellant] has grounds to have the written statement
suppressed. Answer ¶ 1. The Commonwealth acknowledged
that [Appellant] appeared to be under the influence of drugs and
had difficulty focusing while writing the custodial written
statement; however, [Appellant] appeared to be oriented and
coherent, and willingly admitted his guilt. Answer ¶ 6. The
Commonwealth asserted that [Appellant’s] custodial written
statement was voluntary, that he received Miranda warnings,
and that in the document itself [Appellant] acknowledges that he
understood his rights and that he gave his statement voluntarily.
Answer ¶ 4. The Commonwealth asserts that [Appellant’s]
statement was voluntary, notwithstanding that [Appellant] was
suffering from an injury or under the influence of drugs, as
[Appellant’s] interrogation was not so manipulative or coercive
that it deprived [Appellant] of the ability to make a free and
unconstrained decision to confess. Answer ¶ 9.
Based on the Court’s schedule, a hearing on the motion
was held immediately before the trial began. At the hearing
Pennsylvania State Police Trooper Michael A. Sprague (“Trooper
Sprague”), Pennsylvania State Police Trooper Timothy Daniel
Lear (“Trooper Lear”), and [Appellant] testified. Trooper
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Sprague testified to [Appellant’s] demeanor on February 2,
2013. Trooper Sprague spoke to [Appellant] at his home and
the police station and described [Appellant] as very hyper, as if
he had drank several cups of coffee. N.T. p. 4. According to
Trooper Sprague, [Appellant] did not exhibit any behavior that
suggested he was not comprehending what was occurring. N.T.
p. 4-5. Within thirty minutes of being brought back to the
interview room, [Appellant] gave a verbal confession. N.T. p. 7.
Trooper Sprague testified that he did not threaten or intimidate
[Appellant], nor did he offer him leniency in exchange for his
cooperation. N.T. p. 8. Trooper Sprague was unable to testify
regarding the written statement as his shift was over and he
went home shortly after [Appellant] had given a verbal
confession. N.T. pp. 8, 10-11.
Trooper Lear also testified that [Appellant] was talkative
and that he did not appear to be impaired in any way. N.T. p.
16-17. Although Defendant attempted to negotiate lenient
treatment in exchange for providing information about drug
dealers in the area, Trooper Lear testified that he did not
threaten, coerce, or promise [Appellant] leniency. N.T. p. 18.
Trooper Lear was involved in obtaining a written custodial
statement from [Appellant]. Trooper Lear testified that he
initially left [Appellant] alone in the interrogation room to
complete the written custodial statement. N.T. p. 19. Trooper
Lear periodically checked on [Appellant] and gave him a new
piece of paper when he saw that [Appellant] had scribbled out
his entire statement. N.T. p. 19. While [Appellant] did
eventually write and sign a confession, the handwriting was
poor. In an attempt to clarify things Trooper Lear wrote a
question and had [Appellant] answer the question. N.T. p. 20.
Trooper Lear did testify he had referred to [Appellant’s] written
statement as an “attempt” at a written statement in the police
incident report that he authored; however, he stated this was
only in reference to the page that had been entirely crossed out.
N.T. pp. 23-24.
[Appellant] took the stand during the hearing and testified
that he can only remember parts of the day of February 2, 2013.
N.T. p. 31. [Appellant] remembers being hit over the head with
an iron pipe in the early morning hours, but he does not
remember being in the hospital for his injuries. N.T. p. 33.
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[Appellant’s] testimony was difficult to follow and he had to be
instructed by his attorney to slow down. [Appellant] testified
that he passed out on a bench at the police station and that the
troopers were laughing at him. N.T. p. 36-37. In regards to the
written statement, [Appellant] testified that he did not
remember what he wrote down, but he did remember passing
out and spilling coffee on the form. N.T. p. 37. [Appellant] did
not remember writing an answer to the question written by
Trooper Lear. N.T. p. 38.
The Court found that the Commonwealth had proven by a
preponderance of the evidence that based on the totality of the
circumstances, [Appellant’s] written confession was voluntary.
Therefore, by Order of Court dated September 25, 2013, the
Court denied [Appellant’s] Motion in Limine seeking suppression
of his written statement of February 2, 2013.
The case went to trial at which the Commonwealth
introduced the written statement as an exhibit. The jury found
[Appellant] guilty of three counts of robbery threatening serious
bodily injury, three counts of robbery threatening to commit
murder, one count of theft by unlawful taking or disposition, and
one count of possession of a controlled substance. [Appellant]
was sentenced on October 29, 2013, to a State Correctional
Institution for a period of not less than sixty-six (66) months nor
more than one hundred thirty-two (132) months on each [of]
the three robbery threatening serious bodily injury counts to be
served consecutively. [Appellant] was also sentenced to six (6)
to twelve (12) months on the possession of a controlled
substance count to be served concurrently with the first count of
robbery threatening serious bodily injury.
[Appellant] filed a Notice of Appeal on November 26, 2013
challenging the Order of Court entered on September 25, 2013,
denying [Appellant’s] Motion in Limine to suppress his written
statement. The Court ordered a concise statement of matters
complained of on appeal on November 27, 2013.
Trial Court Opinion, 1/21/14, at 1-6 (footnotes in original).
Appellant presents the following issue for our review:
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DID THE TRIAL COURT COMMITT [sic] ERROR IN DENYING
APPELLANT’S REQUEST TO SUPPRESS AN INCULPATORY
STATEMENT MADE BY APPELLANT WHILE IN POLICE CUSTODY
AND PRIOR TO PRELIMINARY ARRAIGNMENT WHERE THE FACTS
AND CIRCUMSTANCES INCIDENT TO THE STATEMENT INDICATE
THAT IT WAS NOT VOLUNTARILY GIVEN?
Appellant’s Brief at 3.
Appellant argues the trial court abused its discretion in denying
Appellant’s motion in limine seeking to suppress the written statement that
he provided to the police. Appellant asserts the Commonwealth failed to
meet its burden of showing that Appellant’s confession was voluntary
because he was not in a satisfactory physical or psychological condition to
make the written confession.
We begin by observing that a motion in limine is a procedure for
obtaining a ruling on the admissibility of evidence prior to or during trial, but
before the evidence has been offered. Commonwealth v. Freidl, 834 A.2d
638, 641 (Pa. Super. 2003). The basic requisite for the admissibility of any
evidence in a case is that it be competent and relevant. Id.
Furthermore, it is well settled that “[t]he admission of evidence is
within the sound discretion of the trial court, and will be reversed on appeal
only upon a showing that the trial court clearly abused its discretion.”
Commonwealth v. Miles, 846 A.2d 132, 136 (Pa. Super. 2004) (en banc)
(citing Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super. 1999)).
Abuse of discretion requires a finding of misapplication of the law, a failure
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to apply the law, or judgment by the trial court that exhibits bias, ill-will,
prejudice, partiality, or was manifestly unreasonable, as reflected by the
record. Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009).
Moreover, we are aware that Pennsylvania Rule of Criminal Procedure
581, which addresses the suppression of evidence, provides in relevant part
as follows:
(H) The Commonwealth shall have the burden . . . of
establishing that the challenged evidence was not obtained in
violation of the defendant’s rights.
Pa.R.Crim.P. 581(H).
The standard of review an appellate court applies when
considering an order denying a suppression motion is well
established. An appellate court may consider only the
Commonwealth’s evidence and so much of the evidence for the
defense as remains uncontradicted when read in the context of
the record as a whole. Commonwealth v. Russo, 594 Pa. 119,
126, 934 A.2d 1199, 1203 (2007) (citing Commonwealth v.
Boczkowski, 577 Pa. 421, 846 A.2d 75 (2004)). Where the
record supports the factual findings of the suppression court, the
appellate court is bound by those facts and may reverse only if
the legal conclusions drawn therefrom are in error. Id. It is
also well settled that the appellate court is not bound by the
suppression court’s conclusions of law. Id. (citing
Commonwealth v. Duncan, 572 Pa. 438, 817 A.2d 455
(2003)). However, [w]hether a confession is constitutionally
admissible is a question of law and subject to plenary review.
Commonwealth v. Nester, 551 Pa. 157, 160, 709 A.2d 879,
881 (1998).
Thus, this Court does not, nor is it required to, defer
to the suppression court’s legal conclusions that a
confession or Miranda[3] waiver was knowing or
voluntary. Instead, we examine the record to
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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determine if it supports the suppression court’s
findings of fact and if those facts support the
conclusion that, as a matter of law, Appellant
knowingly and intelligently waived his Miranda
rights. Preliminarily, we note:
Regardless of whether a waiver of
Miranda is voluntary, the
Commonwealth must prove by a
preponderance of the evidence that the
waiver is also knowing and intelligent.
Miranda holds that “[t]he defendant
may waive effectuation” of the rights
conveyed in the warnings “provided the
waiver is made voluntarily, knowingly
and intelligently.” The inquiry has two
distinct dimensions. First the
relinquishment of the right must have
been voluntary in the sense that it was
the product of a free and deliberate
choice rather than intimidation, coercion
or deception. Second, the waiver must
have been made with a full awareness
both of the nature of the right being
abandoned and the consequences of the
decision to abandon it. Only if the
“totality of the circumstances
surrounding the interrogation” reveals
both an uncoerced choice and the
requisite level of comprehension may a
court properly conclude that Miranda
rights have been waived.
Commonwealth v. Cephas, 522 A.2d 63, 65 (Pa.
Super. 1987) (emphasis in original).
In the Interest of T.B., 11 A.3d 500, 505-506 (Pa. Super.
2010).
***
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In examining the totality of circumstances, we also consider: (1)
the duration and means of an interrogation; (2) the defendant’s
physical and psychological state; (3) the conditions attendant to
the detention; (4) the attitude of the interrogator; and (5) “any
and all other factors that could drain a person’s ability to
withstand suggestion and coercion.” Nester, 551 Pa. at 164,
709 A.2d at 882.
Commonwealth v. Knox, 50 A.3d 732, 746 (Pa. Super. 2012).
The trial court offered the following analysis pertaining to Appellant’s
claim:
In considering the factors that are part of the totality of
the circumstances determination of the voluntariness of a
confession, on the record the Court emphasized the physical and
psychological state of [Appellant] as that was the focus of
[Appellant’s] Motion in Limine and his rationale for suppressing
the written statement. The Court stated on the record that it
found the testimony of Trooper Sprague and Trooper Lear to be
credible in their descriptions of [Appellant’s] behavior and
mental state on February 2, 2013. N.T. p. 44. The Court also
had the opportunity to assess [Appellant] and his demeanor.
[Appellant] appeared hyper and had to be redirected by his
attorney during his testimony. [Appellant] had difficulty
expressing his thoughts in a linear fashion on the stand and the
Court found that his written statement with all of its scribbles,
horrendous handwriting, and ambiguous content was consistent
with [Appellant’s] observed behavior. Id. There is nothing in
the record to suggest that based on the physical and
psychological state of the accused that he was manipulated or
coerced such that his written statement was not voluntarily
given.
While the Court focused its discussion on the record to the
physical and psychological state of the accused when
determining whether the confession was voluntary, the Court did
consider the other factors that are part of the totality of the
circumstances test. Regarding the duration of the interrogation,
the Court heard evidence that [Appellant] verbally confessed
after less than a half an hour in the interrogation room. At the
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hearing there was testimony from the troopers in regards to
their conduct during the interrogation. Both Trooper Sprague
and Lear testified that they did not threaten or coerce
[Appellant], nor did they offer [Appellant] leniency in exchange
for his cooperation. Additionally, [Appellant] was given Miranda
warnings twice. Considering all of the evidence presented at the
hearing there was nothing to suggest that under any of the
factors that the confession was not voluntary. Therefore, based
on the totality of the circumstances, the Court found that the
written statement was voluntary and denied [Appellant’s]
request that it be excluded.
Trial Court Opinion, 1/21/14, at 8-9. We are constrained to agree with the
trial court’s determination in this regard.
Our review of the record indicates that the totality of the facts support
the trial court’s decision to deny Appellant’s motion in limine seeking to
suppress his written confession. Appellant was present with the police at his
residence for several hours during the initial investigation of the robbery
prior to Appellant being taken to the police barracks. N.T., 9/25/13, at 4, 9-
10, 14. After Appellant was transported to the police barracks, Appellant
was twice given his Miranda warnings prior to making his written
confession. Id. at 5, 10-11, 14-16. Approximately one-half hour after
arriving at the police barracks, Appellant verbally confessed to the robbery.
Id. at 7. Both troopers who handled the interrogation of Appellant testified
that Appellant was never threatened; was never coerced; was never offered
lieniency for cooperation; was never verbally or physically intimidated; was
never held in an uncomfortable position; and they did not yell at him. Id. at
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8, 18. The record further reflects that after Appellant verbally confessed to
police, they asked him to write his confession, and they left the room while
Appellant did so. Id. at 18-19. It was only after Appellant had difficulty
drafting a written statement that Trooper Lear assisted Appellant. Id. at 19-
20. Specifically, Trooper Lear offered the following testimony in this regard:
Q. And at the end, to clarify things, did you write a question
and have him answer it?
A. Yes, sir.
Q. What was that question?
A. The question is, Did you go to MacDonald’s Pharmacy and
hand a note to the cashier stating you have five seconds to put a
Ritalin, comma, Adderall, comma, and Xanax in a bag, before I
kill you and everybody here. This is not a game, comma, test
me, explanation point.
Q. And did he respond to that?
A. Answer was yes, then he initialed it, and then signed it,
and then put the time.
Q. At any point in the process did [Appellant] appear to not
know what was going on?
A. No.
Id. at 20.
In light of these facts, it is our conclusion that the trial court did not
err in denying Appellant’s motion in limine seeking to suppress his
confession to police. Therefore, Appellant’s contrary claim lacks merit.
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Judgment of sentence affirmed.
Judge Panella joins the Memorandum.
Justice Fitzgerald Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/8/2014
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