Com. v. Dixson, S.

J-S11001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHILEE DIXSON,
Appellant No. 234 WDA 2015
Appeal from the Judgment of Sentence of January 12, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008633-2011
BEFORE: OLSON, J., RANSOM J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED JUNE 9, 2017
Appellant, Shilee Dixson, appeals from the judgment of sentence
entered on January 12, 2015 in the Criminal Division of the Court of
Common Pleas of Allegheny County. We affirm.
Following a nonjury trial held on September 29 and 30, 2014, the
court found Appellant guilty of second-degree murder (count one; 18
Pa.C.S.A. § 2502(b)), one count of robbery – inflict serious bodily injury
(count two; 18 Pa.C.S.A. § 3701(a)(1)(i)), one count of criminal conspiracy
(count three; 18 Pa.C.S.A. § 903(c)), and one count of possession of
firearm by a minor (count four; 18 Pa.C.S.A. § 6110.1(a)). On January 12,
2015, the court sentenced Appellant at count one to 30 to 60 years of
incarceration; at count two to a concurrent sentence of five to ten years’
*Former Justice specially assigned to the Superior Court.
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incarceration; at count three to a concurrent sentence of three to six years’
incarceration; and no further penalty at count four.
The issues in this appeal arise from the following facts, which the trial
court aptly summarized.
This matter arises out of the shooting death of Malachi Urbini on
May 8, 2011 while he was being robbed of his I-Pad in an alley in
McKees Rocks, [Pennsylvania]. During the robbery[,] Urbini was
shot three times, twice in the back and once in the abdomen.
One of the bullets that entered his back pierced his heart
resulting in his death. Based on the investigation conducted by
Allegheny County homicide detectives, [Appellant] was identified
as the shooter and a warrant was issued for his arrest. After his
arrest[,] [Appellant] gave a confession admitting to his
involvement in the shooting. Prior to trial[, Appellant moved to
suppress] his confession on the basis that he was under the age
of 18 at the time of the confession, that he was not permitted to
speak to his parents or [another] interested adult before waiving
his Miranda[1] rights[,] and that he did not knowingly and
voluntarily waive his right to remain silent.
A suppression hearing was held on September 9 and 10, 2014 at
which the Commonwealth presented the testimony of Detective
Patrick Kinavey who testified that[,] on May 10, 2011[,] he and
his partner went to [Appellant’s] house to arrest him having
obtained a warrant for his arrest for Urbini’s murder.
[Appellant’s] mother informed the detectives that [Appellant]
was not home[. She then called Appellant] and determined that
he was at [a] T-Station in [downtown] Pittsburgh. [Appellant]
agreed to wait for the detectives to pick him up. His mother
described what he was wearing and indicated that he would be
waiting outside the T-Station. Approximately 15 minutes later,
at 10:45 a.m.[,] the detectives located [Appellant] and, after
advising him that they had a warrant for his arrest for criminal
homicide, he was handcuffed and transported to the detectives’
headquarters. After a 10-15 [minute] ride to headquarters,
[Appellant] was taken to an interview room and shackled to the
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1
Miranda v. Arizona, 384 U.S. 478 (1966).
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floor. The interview room is approximately 8 feet by 10 feet with
one window. [Appellant] was left alone for approximately 30-45
minutes. When initially interviewing [Appellant], the detectives
knew that [Appellant] was only three days shy of his 18 th
birthday. [Appellant] was presented with a Rights Warning
Waiver Form which set forth his Miranda rights which
[Appellant] read and initialed indicating that he understood his
rights and that he was willing to speak to the detectives.
Detective Kinavey indicated that [Appellant] told them that [he]
had two children, [one] age four and [the other eight] months,
and that he was in the process of completing the twelfth grade.
Detective Kinavey testified that [Appellant] did not appear to
exhibit any confusion or inability to understand why he was []
taken into custody or the content of the waiver form that was
presented to him. Detective Kinavey testified that no promises
were made to [Appellant] nor was he threatened in anyway.
Detective Kinavey testified that from the time they spoke with
[Appellant’s] mother until the time that they picked [Appellant]
up and started the interview process it was approximately an
hour and forty-five minutes. Detective Kinavey testified that
[Appellant] did not ask for an attorney, never asked that the
questioning be stopped[,] and never asked to speak to a parent
or adult about waiving his rights or to be present during the
interview. In addition, there was no [indication] that [Appellant]
had any type of diminished capacity or any type of health
problems. After the initial questioning, [Appellant] indicated that
he was willing to give a recorded statement at which time he
was transferred to another room and a recorded statement was
taken beginning at 2:06 p.m. During the statement, which was
played at the suppression hearing, [Appellant] stated that he
had [spoken] with Taivon Cunningham on May 7, 2011, who had
previously sold heroin to the victim in exchange for an I-Pod,
and that Cunningham told [Appellant] that the victim then
wanted to exchange his I-Pad for some more heroin.
Cunningham then gave [Appellant] a handgun and told him to
meet the victim in the nearby alley and rob him. [Appellant]
took the gun and proceeded to the alleyway[. When Appellant
pulled the gun out, the victim grabbed it. At that point,
Appellant’s] finger slid across the trigger and the gun went off[,
striking] the victim. [Appellant] then returned to Cunningham’s
apartment leaving the I-Pad and the gun[. The following day,
however, Appellant] retrieved the gun and initially hid it but then
gave it to a relative. [Appellant] stated that he did not intend to
shoot the victim, thinking that the safety was on, but the gun
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discharged when the victim grabbed at [it]. During the recorded
statement, [Appellant] did not sound confused or distressed.
Detective Kinavey also testified that [Appellant] consented to
give a buccal swap and consented to a search of his phone and
that he executed a form evidencing his consent.
On cross[-]examination Detective Kinavey testified that
[Appellant] did not ask for an opportunity to speak with his
parents. In addition, although Detective Kinavey did not know
that [Appellant’s] father had come to the headquarters, he would
not have allowed [Appellant] to speak with him in any event
because [Appellant] was so close to the age of 18 and he was in
custody pursuant to the arrest warrant. Detective Kinavey
further testified that based on [Appellant’s] age and the other
background information that they had concerning him and, after
consulting with the district attorney’s office, it was determined
that [Appellant] could be interviewed alone.
During the suppression hearing, [the parties] stipulated that
[Appellant] had one prior involvement in the juvenile system
related to a theft but there was no evidence that [Appellant] had
[received Miranda warnings] at the time of that incident.
[Appellant] presented the testimony of his father, Donnie Lee,
who testified that upon being made aware that his son was being
arrested he proceeded to the police station and asked to speak
to his son. He testified that he was never allowed to see his son
and only spoke to him as he was being led from the police
station.
An order was entered on September 15, 2014 denying the
motion to suppress[. The trial court found that,] under the
totality of the circumstances[, Appellant] knowingly and
voluntarily waived his Miranda rights. After a nonjury trial held
on September 29 and 30, 2014, during which [Appellant’s]
confession was admitted into evidence, [Appellant] was found
guilty as set forth above[.]
Trial Court Opinion, 6/20/16, at 1-5.
Appellant filed a timely notice of appeal on February 9, 2015.
Thereafter, on February 10, 2015, the trial court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to PA.R.A.P.
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1925(b). After the trial court extended the filing deadline, Appellant
preserved the issues he now raises on appeal by including them in his
concise statement filed on January 19, 2016.
Appellant lists two claims for our consideration:
I. Did the trial court abuse its discretion in denying
[Appellant’s] motion to suppress on the grounds that
[Appellant] did not knowingly, intelligently and voluntarily
waive his Miranda rights or voluntarily give an
inculpatory statement to the police?
II. Did the trial court err in denying [Appellant’s] motion
to suppress on the grounds that [Appellant] did not
knowingly, intelligently and voluntarily consent to the
search of his cell phone?
Appellant’s Brief at 4 (complete capitalization omitted).
Appellant asserts that the trial court erred in denying his pretrial
motion to suppress evidence. We apply the following standard and scope of
review to such challenges.
Our standard of review of an order denying a motion to suppress
evidence is limited to determining whether the findings of fact
are supported by the record and whether the legal conclusions
drawn from those facts are in error. Commonwealth v.
Crompton 682 A.2d 286 (Pa. 1996); Commonwealth v.
Chambers 598 A.2d 539 (Pa. 1991). In making this
determination, this [C]ourt may only consider the evidence of
the Commonwealth's witnesses, and so much of the witnesses
for the defendant, as fairly read in the context of the record as a
whole, which remains uncontradicted. Id. If the evidence
supports the findings of the trial court, we are bound by such
findings and may reverse only if the legal conclusions drawn
therefrom are erroneous. Id.-5-
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Commonwealth v. Freeman, 128 A.3d 1231, 1240 (Pa. Super. 2015),
quoting Commonwealth v. Jones, 758 A.2d 228, 229 (Pa. Super. 2000).
Appellant’s position is that the evidence adduced at his suppression
hearing, even when viewed in the light most favorable to the
Commonwealth, fails to show that he knowingly, intelligently, and voluntarily
waived his right to the presence of a parent and/or counsel or that he
knowingly and intelligently gave incriminating statements in response to
police interrogation.2 Appellant identifies several circumstances surrounding
his interrogation to support his claims. Specifically, Appellant notes that, as
a juvenile, he was: (1) placed in an interrogation room and shackled to the
floor; (2) asked to sign a waiver of his rights less than an hour after police
placed him in custody; (3) never told he could have a parent or other
interested adult present during the interrogation; and, (4) subjected to
police custody for almost three hours before making a taped statement.
Appellant’s Brief at 24. Appellant also alleges that the police prevented
contact with his father at the police station, that he had only one prior
contact with the juvenile adjudication system and no prior contact with the
adult criminal justice system, and that he never had Miranda rights
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2
The argument section of Appellant’s brief does not address his second
claim alleging that the trial court erred in refusing to suppress information
obtained from his cellular telephone. Hence, we deem this issue to be
abandoned and waived. See Commonwealth v. Roche, 153 A.3d 1063,
1072 (Pa. Super. 2017) (failure to properly develop a claim in appellate brief
renders an issue waived).
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explained to him previously. Id. at 25. Under these circumstances,
Appellant concludes that the Commonwealth failed to prove a valid waiver of
Miranda rights by a preponderance of the evidence and that the trial court,
therefore, erred in refusing to suppress his statement to police.
It is well settled that the police must administer Miranda warnings to
all individuals subjected to custodial interrogation.
It is a fundamental precept of constitutional law that a suspect
subject to a custodial interrogation by police must be warned
that he has the right to remain silent, that anything he says may
be used against him in court, and that he is entitled to the
presence of an attorney. Miranda, 384 U.S. at 469. If an
individual is not advised of those rights prior to a custodial
interrogation, any evidence obtained through the interrogation is
inadmissible at trial. In re K.Q.M., 873 A.2d 752, 755 (Pa.
Super. 2005). The Miranda safeguards are triggered “whenever
a person in custody is subjected to either express questioning or
its functional equivalent.” Rhode Island v. Innis, 446 U.S.
291, 292 (1980).
Freeman, 128 A.3d at 1240 (parallel citations omitted).
In deciding whether a juvenile voluntarily, knowingly, and intelligently
waived his Miranda rights before giving an incriminating statement to
investigators, we consider the following principles.
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 the juvenile 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
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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.
A determination of whether a juvenile knowingly waived his
Miranda rights and made a voluntary confession is to be based
on a consideration of the totality of the circumstances, including
a consideration of the juvenile's age, experience,
comprehension, and the presence or absence of an interested
adult. 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. We
acknowledge that the per se requirement of the presence of an
interested adult during a police interview of a juvenile is no
longer required. Nevertheless, it remains one factor in
determining the voluntariness of a juvenile's waiver of his
Miranda rights.
In re V.C., 66 A.3d 341, 351 (Pa. Super. 2013) (citation and internal
quotation marks omitted), appeal denied, 80 A.3d 778 (Pa. 2013).
The trial court offered the following rationale in determining that
Appellant voluntarily, knowingly, and intelligently waived his Miranda rights
before confessing to detectives.
In this case, considering the totality of circumstances, it is clear
that [Appellant] not only voluntarily, but knowingly and
intelligently, waived his Miranda rights. In fact, other than the
fact that [Appellant] was three days shy of his 18th birthday,
there would be no evidence at all on which to base a claim that
his Miranda rights were not voluntarily, knowingly, and
intelligently waived. There is absolutely no evidence of any
coercion or deception on the part of detectives in obtaining the
waiver. The detectives spoke with [Appellant’s] mother who was
advised that they had an arrest warrant for her son and she
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voluntarily made arrangements for his arrest. Shortly
thereafter[, Appellant] was taken into custody, advised of why
he [was arrested,] and was promptly transported to the
detectives’ headquarters. Detective Kinavey testified that they
arrested [Appellant] at approximately 10:45 a.m. and the
[w]aiver [f]orm was signed at 12[:00] p.m. During the
approximate [one] hour and 15 minutes between his arrest and
the execution of the [w]aiver [f]orm, [Appellant] was
transported to headquarters and was left alone in the
interrogation room for approximately 30 minutes. There is no
evidence that he was coerced, threatened or subject to any
intimidating actions or activity designed to affect his ability to
make a voluntary waiver of his rights. The [w]aiver [f]orm
clearly and explicitly advised him of his right to remain silent, his
right to an attorney and the fact that he voluntarily consented to
speak to the detectives. [Appellant] knowingly acknowledged
these rights and voluntarily gave a recorded statement that was
taken at approximately 2:06 p.m. and lasted for approximately
[nine] minutes. Detective Kinavey indicated that [Appellant]
was given some food and water and was given the opportunity
to use the bathroom. Although he was shackled to the floor,
which was standard procedure for a person in custody, there is
absolutely no evidence to indicate that the duration and means
of the interrogation was improper or was used to overcome
[Appellant’s] ability to make a knowing and voluntary decision
concerning the waiver of his rights. There is no evidence to
show that there was anything about [Appellant’s] physical or
psychological state that would affect his ability to make a
knowing and intelligent waiver. There is no evidence that
Detective Kinavey intimidated or threatened [Appellant] or
[conducted the interrogation in any other manner] designed to
drain [Appellant’s] ability to withstand suggestion and coercion.
Although [Appellant] was three days shy of his 18 th birthday, the
evidence establishes that he was in the process of completing
the 12th grade and there was no evidence of any diminished
intellectual or emotional capacity. Listening to the recorded
interview, [Appellant] did not express any confusion or
misunderstanding regarding the questions being put to him nor
did [he] express any doubt in his responses. [Appellant] used
the opportunity to give a statement to explain that the gun
discharged accidentally when the victim grabbed at [it] and that
[Appellant] didn’t realize that the safety [mechanism was
disengaged]. Although [Appellant’s] father was present at the
headquarters and asked to see his son, there is no evidence that
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[Appellant] asked to see one of his parents or another adult
because he did not understand the process or the rights that he
was waiving. Although the age of a minor may be one factor in
determining the voluntariness of a juvenile’s waiver, there is no
evidence to support the contention that [Appellant’s] age in this
case had any influence on the waiver of his Miranda rights. The
fact that Detective Kinavey acknowledged that even if he knew
that [Appellant’s] father was present at the headquarters that he
would not have allowed him to see his son does not, in and of
itself, indicate either the use of coercion to obtain the waiver or
that the waiver was not knowing, voluntary, and intelligent[.]
Trial Court Opinion, 6/20/16, at 6-8.
We have carefully reviewed the transcript of Appellant’s suppression
hearing. Based upon our review, we conclude that the record supports the
trial court’s factual findings and that the court’s rulings are consistent with
pertinent case law. Because the Commonwealth proved, by a
preponderance of the evidence, that Appellant voluntarily, knowingly, and
intelligently waived his Miranda rights, we see no reason to disturb the trial
court’s admission of Appellant’s statement to detectives.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2017
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