Com. v. Miller, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JASON R. MILLER
Appellant No. 3750 EDA 2015
Appeal from the Judgment of Sentence November 16, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0001170-2014
BEFORE: BOWES, OTT AND SOLANO, JJ.
MEMORANDUM BY BOWES, J.: FILED JANUARY 18, 2017
Jason R. Miller appeals from the aggregate judgment of sentence of
fifteen to forty years incarceration imposed following a stipulated non-jury
trial resulting in convictions on two counts of rape of a child. The sole issue
on appeal pertains to the trial court’s denial of the motion seeking to
suppress a statement given on January 21, 2014. We affirm.
The stipulated facts were introduced through incorporation of
testimony from the suppression hearing, the affidavit of probable cause, and
an audio recording, with corresponding transcription, of Appellant’s
statement. The victim, A.S., is the daughter of Appellant’s ex-paramour
Phyllis. Sometime in May of 2010, when A.S. was eleven years old,
Appellant, while visiting Phyllis, pushed A.S. onto her bed and vaginally
raped her. Appellant was thirty-four years old.
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In October of 2010, Phyllis and A.S. moved to Corona, California,
where Appellant primarily resided. During her stay, A.S. was forced to
participate in numerous sexual encounters. She and Phyllis moved back to
Pennsylvania in June of 2011. Appellant visited in July of 2011 and again
sexually assaulted A.S. He maintained communication with A.S. through
2013 via email and text messages.
In July of 2013, A.S. confided to her boyfriend about these events,
who in turn assisted A.S. with notifying officials at her school and the Lower
Merion Township Police. As a result, warrants for Appellant’s email accounts
were prepared and executed, with the fruits corroborating a sexual
relationship.
On January 21, 2014, Corona Police Department served an arrest
warrant at Lower Merion’s request. Appellant was taken to the police
station, where he gave the following account. Appellant met Phyllis on a
dating website during a time period when he and his wife were experiencing
marital difficulties. The relationship ended when Phyllis insisted that he
leave his wife. Phyllis and A.S. moved in with him and his wife in California
because Phyllis needed to get away from her ex-husband. Appellant told his
wife about the affair, but convinced her that Phyllis needed their help. He
denied any sexual contact with A.S., and denied any continuing contact with
A.S. after she returned to Pennsylvania with her mother.
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When confronted with evidence of the communications occurring after
A.S. returned to Pennsylvania, including emails to A.S., Appellant stated
someone must have hacked his account. He attributed the allegations to the
fact that Appellant would not leave his wife.
The detectives then informed Appellant they possessed an audio
recording, made by A.S., of a phone conversation between the two in
February of 2013. At this point, Appellant admitted to having sex with A.S.
on multiple occasions. He claimed A.S. threatened to tell her mother that
Appellant raped her if he did not have sex with A.S.
For these crimes, Appellant was charged at criminal case number
2014-1170 with forty separate crimes, thirty-eight of which the
Commonwealth nolle prossed prior to the stipulated trial. On May 30, 2014,
Appellant filed a motion to suppress, which was denied following an
evidentiary hearing on April 24, 2015. The denial of that motion is the sole
issue presented on appeal:
Whether the trial court erred in denying [A]ppellant’s Motion to
suppress his statement because it was not voluntary due to the
fact that [A]ppellant was suffering from significant physical pain
at the time of the interrogation, and his ability to give a
voluntary statement was overborne by his medical condition?
Appellant’s brief at 4.
Where the denial of a defendant’s suppression motion is at issue, we
are subject to the following standard of review:
[An appellate court's] standard of review in addressing a
challenge to the denial of a suppression motion is limited to
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determining 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 as a whole.
Commonwealth v. Witmayer, 144 A.3d 939, 948 (Pa.Super. 2016)
(citation omitted).
In the present case, the suppression court took testimony regarding
Appellant’s physical condition during the arrest and subsequent statement.
That hearing revealed the following. Between 7:00 and 8:00 a.m., Corona
Police officers proceeded to Appellant’s residence. N.T. Suppression,
4/24/15, at 10. Dispatchers spoke to Appellant on the phone and told him
to go outside, where he was handcuffed and told to sit on the ground. Id. at
14. Appellant requested alternative arrangements due to back pain, and
Sergeant Daniel Dunnigan of the Corona Police accommodated this request
by allowing Appellant to sit on the bed of a truck. Id. at 15. Other officers
drove Appellant to the police station while Sergeant Dunnigan conducted
further investigation at the residence. Id. at 17.
At 10:33 a.m., Sergeant Dunnigan interrogated Appellant at the police
station. Appellant was read Miranda1 warnings and signed an
accompanying form reflecting he understood those rights. While Appellant
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1
Miranda v. Arizona, 384 U.S. 436 (1966).
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complained of pain several times during the interview, Sergeant Dunnigan
opined that Appellant did not appear to have any difficulties understanding
the proceedings. Id. at 8. The sergeant further testified that Appellant
never expressed any desire to stop speaking for any reason. Id. at 7. The
interview lasted a little over an hour. Id. at 25.
Appellant testified that he has bulging disks in his back, which cause
numbness and severe pain in his lower back and legs. Id. at 28. He took
narcotics to manage the pain and normally wore a back brace. Id. at 29,
37. He averred that he was in extreme pain during the interview and felt he
had no choice but to give a statement. Id. at 42. He stated that he told
multiple officers prior to his interrogation that he was in extreme pain,
wanted to speak to a lawyer, and needed medication. Id. at 41. He
answered the questions without specifically mentioning those matters on the
tape because he felt it was clear that the police were not willing to allow him
any medical attention. Id. at 54.
Following argument, the suppression court issued findings of fact
crediting the testimony of Sergeant Dunnigan. The suppression court
emphasized that Appellant was read his Miranda warnings, signed a
corresponding form, stated “I have nothing to hide” before answering
questions, and did not appear to have any problems understanding what
was being asked. The court discredited Appellant’s testimony that he asked
questioning to cease, whether due to pain or to speak to a lawyer, finding
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there was nothing in the transcript of the audio statement to support that
allegation. Id. at 68-73.
There is no dispute that Appellant was in pain. However, the question
is whether, under the totality of the circumstances, the confession was a
free choice. Pain is but one factor in assessing voluntariness. “There is of
course no single litmus-paper test for determining a constitutionally
impermissible interrogation. . . . [T]he ultimate test of voluntariness is
whether the confession is the product of an essentially free and
unconstrained choice . . . we must consider the totality of the circumstances,
including the accused's mental and physical condition.” Commonwealth v.
Johnson, 107 A.3d 52, 93 (Pa. 2014) (quotation marks and citations
omitted). We are guided by the following non-exclusive list of factors in
assessing totality of the circumstances:
the duration and means of interrogation, including whether
questioning was repeated, prolonged, or accompanied by
physical abuse or threats thereof; the length of the accused's
detention prior to the confession; whether the accused was
advised of his or her constitutional rights; the attitude exhibited
by the police during the interrogation; the accused's physical and
psychological state, including whether he or she was injured, ill,
drugged, or intoxicated; the conditions attendant to the
detention, including whether the accused was deprived of food,
drink, sleep, or medical attention; the age, education, and
intelligence of the accused; the experience of the accused with
law enforcement and the criminal justice system; and any other
factors which might serve to drain one's powers of resistance to
suggestion and coercion.
Commonwealth v. Bryant, 67 A.3d 716, 724 (Pa. 2013) (citing
Commonwealth v. Perez, 845 A.2d 779 (Pa. 2004)). Whether the
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confession is voluntary is a question of law subject to de novo review.
Commonwealth v. Nester, 709 A.2d 879, 881 (Pa. 1998). However, the
underlying factual and credibility determinations pertaining to the
circumstances are owed deference and must merely be supported by record.
Nester, supra; see Miller v. Fenton, 474 U.S. 104, 117 (1985) (“Of
course, subsidiary questions, such as the length and circumstances of the
interrogation . . . often require the resolution of conflicting testimony of
police and defendant.”).
Appellant avers that his physical pain rose to the level that his will was
overcome. He primarily relies upon Commonwealth v. Perry, 379 A.2d
545 (Pa. 1977), and Commonwealth ex rel. Gaito v. Maroney, 220 A.2d
628 (Pa. 1966) as authorities supporting reversal. We find both cases
readily distinguishable.
In Perry, the defendant suffered a self-inflicted gunshot wound to the
chest as he fled from the police. Id. at 546. He was taken to the hospital,
given a pain drug, and guarded by a police officer stationed near the room.
Approximately thirteen hours later, he was interviewed and gave a
statement. The Perry Court set forth the circumstances surrounding the
interrogation as follows.
During the interview appellant was lying in bed and was alone in
the room with the interrogating detective. During the interview
he complained to the detective of pain and was experiencing
discomfort from a catheter inserted through the penis into the
bladder in order to monitor for any abnormal bleeding indicating
injury to the bladder, urinary tract or kidney. At one point during
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the interview, when the appellant complained of pain, he asked
the detective to call the nurse. When the nurse arrived, the
appellant informed her that he was in pain and wanted some
type of medication. Medication, however, was refused.
Throughout the interview, appellant was being fed through an
intravenous tube. The catheter remained in the appellant for
over two days and the intravenous feeding continued constantly
for about four days. At one point during the interrogation,
appellant was asked by the detective if he wanted to continue
the interrogation and the appellant answered that he “didn't
care.”
Id. at 547. Applying the totality of the circumstances test, the Court
concluded that because the appellant was being fed intravenously, had a
catheter causing much discomfort, was under police guard and denied
medication for pain, and had not seen any familiar face for more than twelve
hours, the confession was not a free and unconstrained choice.
In Maroney, the appellant was found at approximately 3:00 a.m. by
the entrance of a hospital with a bullet wound in his abdomen. He was
immediately rushed into surgery, during which he received transfusions of
blood equaling approximately 40% of his entire blood supply, and was
administered multiple medications. Id. at 630. Approximately four hours
after surgery, an assistant district attorney investigating the crimes in
question spoke to the appellant for approximately thirty minutes and elicited
incriminating statements. Id. In a note made in a hospital record one hour
after the confession was obtained, the appellant was described as “very
incoherent.” Id. Additionally, the Commonwealth’s own expert, who
testified that the effects of the drugs administered during surgery would
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have been dissipated by the time of the confession, admitted on cross-
examination that “the totality of the circumstances cast doubt on appellant's
ability to understand, to reflect upon, and to form intelligent answers to the
questions propounded during the interview.” Id. Thus, “When the pertinent
circumstances are considered . . . the probability that appellant's confession
was the product of a rational intellect and a free will appears remote.” Id.
at 632.
The present circumstances are markedly different from Perry and
Maroney. First, neither case involved chronic pain. Appellant herein has
suffered from back pain for approximately three to four years. N.T.
Suppression, 4/24/15, at 29. When discussing his back issues with the
detectives, Appellant noted, “It’s just, I got to live with this type of pain.”
Transcript of Statement, 1/21/14, at 10. Appellant’s back pain was thus a
facet of life that he coped with on a daily basis, and not comparable to the
traumatic gunshot wounds in Perry and Maroney. Additionally, Perry
attached significance to the fact the statement occurred in a hospital,
stating, “The legislature has recognized in another context that statements
made by injured persons in a hospital setting raise very serious questions as
to whether such statements should be recognized as valid by the law.” Id.
at 547. This statement, given at a police station, is clearly not of like kind.
Moreover, there is no indication, as in Maroney, that Appellant was
incoherent in any way. We have reviewed the audiotaped statement
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transcript and it is clear that Appellant had no trouble answering questions.
He spoke about numerous aspects of his life, including his prior employment,
his difficulties obtaining insurance coverage for additional back surgeries, his
relationship with Phyllis and his wife, and the crimes. He answered all
questions without difficulty, and exhibited no signs of a compromised mental
condition or clouded judgment. He initialed and completed a Miranda form.
These facts are countervailing considerations in the totality of the
circumstances. See Commonwealth v. Poplawski, 130 A.3d 697, 712–13
(Pa. 2015) (noting that defendant completed a Miranda form without
difficulty, spoke coherently while in hospital, and was responsive during
hospital room arraignment, thus “demonstrat[ing] both his capacity to know
what he was saying and his freely exercised will to say it”).
Finally, as the suppression court noted, Appellant originally denied any
inappropriate contact and specifically denied communications with A.S.
occurring after her return to Pennsylvania. Later, when confronted with
evidence he had sent emails to her, Appellant changed his story and
admitted to having sex with the victim, but blamed her for his actions. As
the trial court stated, this “calculated attempt” to deceive police “shows that
he was of clear mind.” Trial Court Opinion, 1/21/16, at 7.
We agree. Our Courts have found that such deceptive and misleading
statements are relevant to the totality of the circumstances inquiry. In
Commonwealth v. (Roderick) Johnson, 727 A.2d 1089 (Pa. 1999), our
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Supreme Court discussed this concept. Johnson, while in an ambulance en
route to a hospital for emergency surgery to treat a gunshot wound to the
stomach, was asked by police, who had no reason to suspect Johnson was
involved in any crime, who shot him. Johnson gave a false story and later
sought to suppress the statement as a noncustodial interrogation that
resulted in an involuntary confession, claiming his physical condition was so
impaired as to render him incapable of giving any kind of statement. The
Court discounted the effect of the pain and traumatic injury on his capacity
to give a voluntary statement, stating that
the result of this initial questioning was not a “confession” by
[Johnson] of participation in the murders, but rather a false
story designed to mislead police concerning the circumstances of
[Johnson]’s shooting. While [Johnson] contends that he was
incapable of voluntarily giving statements to the police due to his
“delirium,” his presence of mind in fabricating a story about his
shooting seriously undermines that claim. Considering the
totality of the circumstances, we do not find that this
noncustodial interrogation resulted in an involuntary confession.
...
Id. at 1099. See Commonwealth v. (Christopher) Johnson, 107 A.3d
52, 94 (Pa. 2014) (citing (Roderick) Johnson for proposition that having
the presence of mind to lie warrants inference of capacity to respond
voluntarily to an interrogator).
Accordingly, we discern neither an abuse of discretion in finding the
facts nor an erroneous application of law to those facts in deeming
Appellant’s confession the product of a free and unconstrained choice.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/18/2017
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