Com. v. Miller, O.

J-S61028-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OMAR MILLER :
:
Appellant : No. 350 EDA 2019
Appeal from the Judgment of Sentence Entered June 23, 2014
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004797-2013
BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED DECEMBER 17, 2019
Appellant, Omar Miller, appeals from the judgment of sentence entered
on June 23, 2014, as made final by the denial of Appellant’s post-sentence
motion on December 27, 2018. We affirm.
This Court previously summarized the facts and procedural posture
underlying Appellant’s convictions and sentence:
On May 5, 2013, [Appellant], Andre Collier, Rasheed Teel,
and Charles Freeman devised a plan to rob [19]-year-old
Kareem Borowy. Freeman drove the group to Borowy’s
house in Pottstown, Pennsylvania, and waited in the car while
[Appellant], Teel, and Collier entered the residence. Once
inside, Collier, armed with a .45 caliber Glock pistol,
demanded that Borowy hand over a large quantity of
marijuana and $3,000.00 in cash. Borowy pleaded with the
robbers, insisting that there was no money in the home.
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* Former Justice specially assigned to the Superior Court.
J-S61028-19
Sensing that the trio was growing impatient, Borowy falsely
told them that he kept his money in a “stash house” at a
different location. The men then took Borowy outside and
forced him into the getaway car. Freeman drove away from
the residence, presumably intending to travel to Borowy’s
contrived stash house. When the vehicle slowed down on a
rural roadway in Lower Pottsgrove Township, Borowy
managed to escape from the vehicle. Collier chased after
Borowy and shot him twice. When he returned to the vehicle,
Collier told the others that he saw Borowy fall to the ground,
and instructed Freeman to drive away.
Although severely injured, Borowy managed to crawl on his
hands and knees to the main roadway. A passing motorist
spotted Borowy [lying] beside the road a short time later and
called 911. When the police arrived, Borowy was
unresponsive. He was pronounced dead at the scene.
Four weeks later, on June 3, 2013, a team of federal, state,
and local law enforcement officers arrested [Appellant] on the
sidewalk outside of his uncle’s home in Philadelphia,
Pennsylvania. The officers took [Appellant] to the homicide
unit of the Montgomery County Detectives’ Bureau.
Detective Todd Richard brought [Appellant] into a conference
room and informed him of his right to remain silent and his
right to counsel. On July 4, 2013, at 12:49 a.m., [Appellant]
signed a written waiver of those rights.
Over the course of the next [11] hours, [Appellant] made four
separate on-the-record statements. Each time, Detective
Richard transcribed both his questions and [Appellant’s]
answers. [Appellant] then reviewed Detective Richard’s
transcriptions, agreed that they were accurate, and signed
them.
In [Appellant’s] first statement, which began at 1:01 a.m.,
he stated that he could not recall whether he was in
Pottstown on the day that Borowy was killed. [Appellant]
categorically denied participating either in the robbery or in
the murder. At 1:47 a.m., Detective Richard gave
[Appellant] a break to smoke a cigarette and to use the
restroom. At 2:22 a.m., Detective Richard resumed his
questioning. At that time, [Appellant] gave a second
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statement to Detective Richard, which concluded at 2:48
a.m.
[Appellant] gave a third statement to Detective Richard,
which began at 6:35 a.m. [Appellant] admitted that he
“didn’t tell [the detectives] everything” in his earlier
statements. [Appellant] went on to confess that, on the
afternoon of Borowy’s murder, he overheard Collier,
Freeman, and Teel planning a robbery. He also stated that
Collier was carrying a weapon, which [Appellant] described
as “a big ass black, semi-automatic with a clip sticking out.”
Still, [Appellant] denied that he had participated in either the
planning or the execution of the robbery.
After giving his third statement, [Appellant] asked for
something to eat. The detectives gave [Appellant] a breakfast
sandwich and apple juice. [Appellant] then asked to speak
with Detective Richard’s “boss.” Detective Richard left
[Appellant] in the conference room to finish his breakfast,
and told his supervisor, Lieutenant James McGowan, that
[Appellant] wanted to speak with him.
When Lieutenant McGowan entered the conference room, he
found [Appellant] with his head down on the table.
Lieutenant McGowan asked [Appellant] what he wanted to
discuss, and [Appellant] began crying. [Appellant] told
Lieutenant McGowan that he was at the scene of the murder
and that he saw Collier shoot Borowy. [Appellant] then
stated that he wanted to continue talking to Detective
Richard.
Detective Richard reentered the conference room and took
another statement from [Appellant]. In [Appellant’s] fourth
statement, which began at 11:08 a.m., [Appellant] confessed
that he was present during the robbery and the murder. He
told Detective Richard that “[Collier] killed that boy and I told
him not to.” [Appellant] was charged with homicide,
kidnapping, robbery, persons not to possess a firearm,
receiving stolen property, and false imprisonment. The
Commonwealth also charged [Appellant] with conspiracy to
commit each of those offenses.
On December 31, 2013, [Appellant] filed a motion to
suppress the inculpatory statements that he made to
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detectives on June 4, 2013. In his motion, [Appellant]
asserted two bases for suppression of his statement. First,
[Appellant] argued that, “[u]nder the totality of the
circumstances, [Appellant’s] inculpatory statements were not
made voluntarily.” [Appellant’s Motion to Suppress,
12/31/13, at 2]. Second, [Appellant] asserted that, “[d]uring
the course of questioning, [Appellant] made a request for
counsel, even naming such counsel, but detectives did not
then terminate the interrogation.” Id.
The trial court held a three-day hearing on [Appellant’s]
motion to suppress, which commenced on January 7, 2014.
At the beginning of that hearing, the trial court asked
[Appellant’s] attorney to state on the record the basis for his
suppression motion. He responded as follows:
[W]e have an issue about my client’s statement. My
client was arrested at about midnight, say 12:01 a.m., on
June 4th. The inculpatory statement came on the fourth
or fifth attempt of the officers to question him, and it was
ultimately given at 11:30, almost – in the morning – 12
hours later.
My primary issue is the right to counsel, as opposed to
the totality of the circumstances, although I will touch
upon them. But my primary issue is the violation of his
right to counsel during that process.
[N.T. Suppression Hearing, 1/7/14, at 20-21].
The Commonwealth presented testimony from Detective
Richard and Lieutenant McGowan at the hearing. That
testimony directly addressed the issues that [Appellant] set
forth in his suppression motion and reiterated on the record
at the beginning of the hearing, namely, (1) whether the
totality of the circumstances demonstrated that [Appellant’s]
statement was involuntary, and (2) whether the detectives
continued to question [Appellant] after he had invoked his
right to counsel. On April 10, 2014, the trial court denied
[Appellant’s] suppression motion.
The Commonwealth joined the cases against [Appellant],
Collier, and Freeman for trial.[fn.4] See Pa.R.Crim.P. 582
(“Defendants charged in separate indictments or
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informations may be tried together if they are alleged to have
participated in the same act or transaction or in the same
series of acts or transactions constituting an offense or
offenses.”). On April 21, 2014, following a five-day jury trial,
[Appellant] was convicted of second-degree murder, robbery,
kidnapping, conspiracy to commit kidnapping, and conspiracy
to commit robbery.[1] On June 23, 2014, the trial court
sentenced [Appellant] to life imprisonment.
[fn.4] Teel pleaded guilty to third-degree murder, and
agreed to testify for the Commonwealth at his
co-conspirators’ trial.
Commonwealth v. Miller, 134 A.3d 109 (Pa. Super. 2015) (unpublished
memorandum) at 1-6 (some citations and footnotes omitted).
Appellant filed a timely notice of appeal and raised one claim to this
Court: that the trial court erred when it denied his suppression motion
“because the initial warnings that Detective Richard read at 12:49 a.m. [had
become] stale.” Id. at 10. We held that Appellant’s lone appellate claim was
waived on appeal, as Appellant never raised the claim before the trial court.
Id.; see also Commonwealth v. Little, 903 A.2d 1269, 1272-1273 (Pa.
Super. 2006) (“appellate review of an order denying suppression is limited to
examination of the precise basis under which suppression initially was sought;
no new theories of relief may be considered on appeal”); Pa.R.A.P. 302(a)
(“[i]ssues not raised in the lower court are waived and cannot be raised for
the first time on appeal”).
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1 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 2901(a)(3), and 903, respectively.
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On July 8, 2016, Appellant filed a timely, pro se petition under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Within this
petition, Appellant claimed that his trial counsel “was ineffective because, the
Superior Court in its opinion affirming the trial court judgment, declared that
trial counsel had failed to properly preserve, and therefore had waived,
[Appellant’s] meritorious argument that the failure of the police to re-advise
[Appellant] of his Miranda[2] rights during subsequent interrogation sessions
was a violation of [Appellant’s] Constitutional rights.” Appellant’s Pro Se PCRA
Petition, 7/8/16, at 2 (some capitalization omitted).
The PCRA court appointed counsel to represent Appellant. However,
counsel filed a no-merit letter and a request to withdraw, pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The PCRA court granted
counsel’s petition to withdraw in an order entered October 11, 2016. PCRA
Court Order, 10/11/16, at 1-5.
After the PCRA court permitted counsel to withdraw, Appellant filed a
pro se motion and requested that the PCRA court provide him with the
transcripts of his case, so that he could prepare an amended PCRA petition.
See Appellant’s Pro Se Motion for Order of Discovery and Transcripts,
10/18/16, at 1-4. The PCRA court denied Appellant’s motion on October 26,
____________________________________________
2 Miranda v. Arizona, 384 U.S. 436 (1966).
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2016 and dismissed Appellant’s PCRA petition in an order dated November 29,
2016. PCRA Court Order, 10/26/16, at 1; PCRA Court Order, 11/30/16, at 1.
Appellant appealed the dismissal order and, on appeal, a panel of this
Court vacated the PCRA court’s order. We held that the PCRA court erred
when it refused Appellant’s pro se request to receive the transcripts in his case
– which Appellant filed after the PCRA court allowed his counsel to withdraw
and before the court finally dismissed the petition. We thus vacated the PCRA
court’s order, instructed the PCRA court to provide Appellant with all of the
transcripts in the case, and ordered that the PCRA court provide Appellant
with the right to file an amended PCRA petition. Commonwealth v. Miller,
178 A.3d 205 (Pa. Super. 2017) (unpublished memorandum) at 1-8.
On remand, Appellant filed an amended, pro se PCRA petition. See
Appellant’s Amended Petition for Habeas Corpus Relief and Statutory Post
Conviction Collateral Relief, 2/21/18, at 1-36. Appellant raised a number of
claims in this petition, including: “counsel rendered ineffective assistance by
failing to properly raise and litigate before the Superior Court [Appellant’s]
properly preserved meritorious issues of (1) under the totality of the
circumstances [Appellant’s] inculpatory statements were not made
voluntarily, and (2) during the course of questioning [Appellant] made a
request for counsel . . . but [the] detective did not terminate the
interrogation.” Id. at 16 (some capitalization omitted).
In an opinion and order entered May 31, 2018, the PCRA court granted
Appellant post-conviction collateral relief and reinstated Appellant’s right to
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file both a post-sentence motion and a direct appeal nunc pro tunc. Id. at
1-10. Citing to Commonwealth v. Rosado, 150 A.3d 425 (Pa. 2016), the
PCRA court concluded that Appellant’s prior counsel on direct appeal was
ineffective for filing an appellate brief that advocated a single, unpreserved
claim and abandoned claims that were otherwise preserved. See PCRA Court
Opinion, 5/31/18, at 6-9; Rosado, 150 A.3d at 426-427 (holding: “filing an
appellate brief which abandons all preserved issues in favor of unpreserved
ones constitutes ineffective assistance of counsel per se”). The PCRA court
ordered: Appellant was entitled to new counsel; new counsel was given time
to review the record, consult with Appellant, and draft a post-sentence
motion; and, counsel’s post-sentence motion was due on or before August 3,
2018. PCRA Court Order, 5/31/18, at 10. Through a succession of orders,
the trial court extended the due-date for Appellant’s post-sentence motion to
October 26, 2018. See Trial Court Order, 7/2/18, at 1-2; Trial Court Order,
9/4/18, at 1; Trial Court Order, 10/15/18, at 1.
Appellant, through counsel, filed the nunc pro tunc post-sentence
motion on October 26, 2018. Appellant raised a number of claims in this
post-sentence motion, including that the trial court erred when it refused to
suppress certain inculpatory statements he made during the custodial
interrogation. Specifically, Appellant claimed his statements should have been
suppressed because: 1) “[t]he detectives failed to honor [Appellant’s]
invocation of his right to counsel” during the interrogation and 2) “[t]he
totality of the circumstances indicate[] that [Appellant] did not knowingly,
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intelligently, and voluntarily waive his rights pursuant to Miranda.”
Appellant’s Nunc Pro Tunc Post-Sentence Motion, 10/26/18, at 2-3.
The trial court denied Appellant’s post-sentence motion on December
27, 2018 and Appellant filed a notice of appeal on January 22, 2019. Appellant
raises two claims on appeal:
1. Did the trial court err in failing to suppress statements
made to detectives following Appellant invoking his right to
counsel in violation of Article 1, Section 9 of the Pennsylvania
Constitution and the 5th, 6th, and 14th Amendments of the
United States Constitution?
2. Did the trial court err in failing to suppress [Appellant’s]
statements to detectives where waiver of his constitutional
rights was not knowing, intelligent, or voluntary because
Appellant continued to bleed from his head and suffer from
injuries of police tackling him, physically accosting him, and
deploying a taser to his head at the time of his arrest, prior
to admonishment and wavier of his constitutional rights in
violation of his due process rights protected under Article 1,
Section 9 of the Pennsylvania Constitution and the 14th
Amendment of the United States Constitution?
Appellant’s Brief at 4 (some capitalization omitted).
Before turning to the merits of this appeal, we must address two
preliminary claims raised by the Commonwealth, both of which challenge the
timeliness of this appeal. See Commonwealth’s Brief at 11-14; see also
Commonwealth v. Trinidad, 96 A.3d 1031, 1034 (Pa. Super. 2014) (“[i]t is
well settled that the timeliness of an appeal implicates our jurisdiction and
may be considered sua sponte. Jurisdiction is vested in the Superior Court
upon the filing of a timely notice of appeal”) (citations and quotations
omitted). First, within the Commonwealth’s brief to this Court, the
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Commonwealth faults the PCRA court for reinstating Appellant’s right to file a
post-sentence motion nunc pro tunc. See Commonwealth’s Brief at 12.
According to the Commonwealth, this portion of the PCRA court’s order was
erroneous because Appellant did not request the restoration of his
post-sentence motion rights in his pro se amended PCRA petition. See id.
The Commonwealth claims that, since the PCRA court erred when it reinstated
Appellant’s right to file a nunc pro tunc post-sentence motion, Appellant was
not entitled to file a post-sentence motion and his current appeal is untimely.
Id. at 12-13.
The Commonwealth’s contention is not well taken, given that the PCRA
court expressly reinstated Appellant’s right to file a post-sentence motion nunc
pro tunc, the Commonwealth did not file a notice of appeal from the PCRA
court’s order, and we are now on direct appeal. Simply stated, at this point
in the case, the Commonwealth has lost the right to complain about the relief
the PCRA court afforded Appellant. See Pa.R.A.P. 903(a) (generally providing
a party with 30 days in which to file a notice of appeal).
The Commonwealth raises a second claim as to why the current appeal
is untimely. See Commonwealth’s Brief at 11-14. The Commonwealth notes
that, in an order entered on May 31, 2018, the PCRA court reinstated
Appellant’s right to file a post-sentence motion and direct appeal nunc pro
tunc. Id. at 11. The Commonwealth claims that Appellant was required to
file his post-sentence motion within ten days of this order (or, by June 9,
2018) and to file his notice of appeal within 30 days of the order (or, by June
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30, 2018). Id. According to the Commonwealth, Appellant’s October 26,
2018 post-sentence motion and January 22, 2019 notice of appeal were both
untimely and we must quash the appeal.
The Commonwealth’s claim fails. First, and contrary to the
Commonwealth’s assertion, Appellant’s post-sentence motion was not due
within ten days of the PCRA court’s May 31, 2018 order. Rather, the PCRA
court’s May 31, 2018 order expressly declared that counsel’s post-sentence
motion was due on or before August 3, 2018. PCRA Court Order, 5/31/18,
at 10. Further, the PCRA court undoubtedly had the authority to tailor its
order to the circumstances of the case and to grant Appellant all appropriate
relief – including granting Appellant’s new counsel an extended time in which
to file the post-sentence motion. See 42 Pa.C.S.A. § 9546(a) (“[i]f the court
rules in favor of the petitioner, it shall order appropriate relief and issue
supplementary orders as to rearraignment, retrial, custody, bail, discharge,
correction of sentence or other matters that are necessary and proper”)
(emphasis added).
Following the PCRA court’s order, the trial court filed three successive
orders and, in these orders, explicitly extended the filing date for Appellant’s
post-sentence motion to October 26, 2018. See Trial Court Order, 7/2/18, at
1-2; Trial Court Order, 9/4/18, at 1; Trial Court Order, 10/15/18, at 1. These
orders, too, were proper, for this Court has held: a “trial court clearly ha[s]
the authority to grant or deny [a]ppellant an extension of time in which to file
his post-sentence motion.” Commonwealth v. Moore, 978 A.2d 988, 991
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(Pa. Super. 2009); see also Commonwealth v. Dreves, 839 A.2d 1122,
1128-1129 (Pa. Super. 2003) (en banc) (holding that the trial court possesses
discretion to allow a defendant to file a post-sentence motion nunc pro tunc).
Appellant filed his post-sentence motion on October 26, 2018 – which
was within the time the PCRA court and the trial court afforded him. The trial
court then denied the post-sentence motion on December 27, 2018 and
Appellant filed a notice of appeal on January 22, 2019, which was within 30
days of the date the trial court denied his post-sentence motion. We conclude
that, given the express orders of the PCRA court and the trial court in this
case, Appellant’s appeal was timely and we will consider the merits of the
appeal.3
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3 Further, we note that, even if the trial court had somehow erred in extending
the due-date for Appellant’s post-sentence motion, we would have still not
quashed this appeal, as the trial court’s orders would have constituted a
breakdown in the court system. See Commonwealth v. Anwyll, 482 A.2d
656, 657 (Pa. Super. 1984) (“[g]iven the trial court's misstatement of the
appeal period, appellant's failure to appeal on time would appear to be the
result of a breakdown in the court's operation. In these circumstances we
might remand with instructions to permit appellant to file his appeal nunc pro
tunc, but to save judicial time, we will not remand but will regard the appeal
as though filed nunc pro tunc and will consider it on the merits”) (citations
omitted); Commonwealth v. Wright, 846 A.2d 730, 735 (Pa. Super. 2004)
(“the order restoring Appellant's direct appeal rights did not inform Appellant
that he had 30 days to file the appeal. Accordingly, we will not fault Appellant
for failing to appeal within 30 days of the restoration of his direct appeal rights.
Therefore, we will not quash the instant appeal”); cf. Commonwealth v.
Hurst, 532 A.2d 865, 867 (Pa. Super. 1987) (“a trial judge must advise a
defendant on the record at the time of sentencing of the defendant's right to
file an appeal and the time within which that right must be exercised. In the
case at bar, the trial judge failed to inform Appellant of his appellate rights.
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Both of Appellant’s claims challenge the trial court’s denial of his motion
to suppress. As we have held: “[o]nce a motion to suppress evidence has
been filed, it is the Commonwealth’s burden to prove, by a preponderance of
the evidence, that the challenged evidence was not obtained in violation of
the defendant’s rights.” Commonwealth v. Wallace, 42 A.3d 1040,
1047-1048 (Pa. Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H). With
respect to an appeal from the denial of a motion to suppress, our Supreme
Court has declared:
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. When
reviewing [such a ruling by the] suppression court, we must
consider only the evidence of the prosecution and so much of
the evidence of the defense as remains uncontradicted when
read in the context of the record. . . . Where the record
supports the findings of the suppression court, we are bound
by those facts and may reverse only if the legal conclusions
drawn therefrom are in error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations
omitted). Further, “[i]t is within the suppression court’s sole province as
factfinder to pass on the credibility of witnesses and the weight to be given
their testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.
Super. 2006).
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By virtue of this fact, we shall not quash this untimely appeal”) (citations
omitted).
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First, Appellant claims that the trial court erred when it denied his
suppression motion, as the police continued to question him after he invoked
his right to counsel. Appellant’s Brief at 7.
We have summarized:
In Edwards v. Arizona, the [United States] Supreme Court
addressed the consequences of a suspect's invocation of the
right to counsel. The Edwards court held that “when an
accused has invoked his right to have counsel present during
custodial interrogation,” police may not conduct further
interrogations “until counsel has been made available to him,
unless the accused himself initiates further communication,
exchanges, or conversations with the police.” 451 U.S. [477,
484–485 (1981)]. If police conduct further interrogations
outside the presence of counsel, “the suspect's statements
are presumed involuntary and therefore inadmissible as
substantive evidence at trial, even where the suspect
executes a waiver and his statements would be considered
voluntary under traditional standards.” McNeil v.
Wisconsin, 501 U.S. 171, 177 (1991).
...
The inquiry into whether or not a suspect has invoked the
right to counsel is an objective one. [In Davis v. United
States, the United States Supreme Court] explained that a
suspect “must articulate his desire to have counsel present
sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement be a request
for an attorney.” [Davis v. United States, 512 U.S. 452,
459 (1994)]. However, if the statement is “ambiguous or
equivocal in that a reasonable officer in light of the
circumstances would have understood only that the suspect
might be invoking the right to counsel,” police are not
required to cease questioning. Id.
Commonwealth v. Champney, 161 A.3d 265, 272-273 (Pa. Super. 2017)
(en banc) (emphasis, parenthetical information, and some citations omitted).
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On appeal, Appellant argues:
After providing a statement to Detective Richard, [the
detective] confronted Appellant, telling Appellant that he
believed Appellant was lying. At this time, Appellant clearly
and unequivocally invoked his right to counsel. Appellant
even identified his attorney by name, who represented
Appellant at a previous, unrelated trial two years prior and
with which Detective Richard was involved. Detective
Richard told Appellant that his attorney represented a
co-defendant and did not permit Appellant contact [with] his
attorney.
Two other witnesses corroborated the fact that Appellant
invoked his attorney, by name. Appellant’s grandmother
recounted a conversation with him on the early morning of
June 4, 2013, wherein she instructed Appellant to wait for his
attorney prior to speaking with police. Appellant’s uncle
recounted a conversation with Appellant’s grandmother
where she told him that she informed Appellant not to say
anything to police until speaking with his attorney.
Appellant’s Brief at 8-9 (citations omitted).
According to Appellant, since the police continued to question him after
he invoked his right to counsel, all incriminating statements he made after
that point must be suppressed. Id.
Appellant’s claim on appeal necessarily fails, as it impermissibly views
the evidence presented at the suppression hearing in the light most favorable
to Appellant. To be sure, although Appellant testified that, during the custodial
interrogation, he told Detective Richard that he wished to speak to his
attorney, Detective Richard expressly testified that Appellant did not ask to
speak to an attorney at any point during the interrogation. N.T. Suppression
Hearing, 1/7/14, at 135-136 (“Q: Now, prior to you reading [Appellant] his
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rights, did he ever ask for a lawyer?; [Detective Richard]: He did not.”); 138
(“Q: Did you ever hear [Appellant] ask for a lawyer?; [Detective Richard]: Not
once.”); 141 (“Q: And during that last portion, did [Appellant] ever ask for a
lawyer?; [Detective Richard]: No.”); 148 (“Q: And your testimony is he never
asked for an attorney?; [Detective Richard]: He did not.”); 148 (“Q: So this
night when [Appellant] got arrested, he never asked to speak to [Attorney
Doug Breidenbach]?; [Detective Richard]: He did not.”); see also N.T.
Suppression Hearing, 1/10/14, at 17 (Lieutenant McGowan also testified that,
during their interaction, Appellant never asked to speak to a lawyer).
On this appeal from the denial of Appellant’s suppression motion, our
standard of review requires that we “consider only the evidence of the
prosecution and so much of the evidence of the defense as remains
uncontradicted when read in the context of the record.” Eichinger, 915 A.2d
at 1134. Viewed in this light, Appellant’s claim on appeal plainly fails: the
Commonwealth’s evidence supports the trial court’s conclusion that at no point
during the custodial interrogation did Appellant ever request to speak to a
lawyer.
Next, Appellant claims that the trial court erred when it denied his
suppression motion because he was involved in a physical confrontation with
the police prior to the custodial interrogation and, consequently, his waiver of
his constitutional rights was not knowing, voluntary, and intelligent.
Appellant’s Brief at 9-11.
Our Supreme Court has held:
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because of the inherently coercive nature of police custodial
interrogation, statements elicited from an accused in that
environment are inadmissible unless the accused was
informed of and, inter alia, voluntarily waived his privilege
against self-incrimination and the right to counsel. Waiver is
made voluntarily if the decision to make it is the product of a
free and unconstrained choice. In determining whether a
waiver is valid, a suppression court looks to the totality of the
circumstances surrounding the waiver, including but not
limited to the declarant's physical and psychological state,
the attitude exhibited by the police during the interrogation,
and any other factors which may serve to drain one's powers
of resistance to suggestion and coercion. On appeal, this
Court will reverse the suppression court's determination in
this regard only where it finds an error of law or finding of
fact without record support.
Commonwealth v. Lyons, 79 A.3d 1053, 1066 (Pa. 2013) (citations
omitted).
Appellant claims that the totality of the circumstances does not support
the trial court’s conclusion that he knowingly, voluntarily, and intelligently
waived his constitutional rights. Appellant argues:
Appellant was involved in a physical confrontation with
police[, while he was resisting arrest,] less than two hours
prior to being admonished of his constitutional rights. He was
bleeding from his head and police failed to obtain medical
treatment for him to determine whether his psychological and
physical state permitted him to speak to police. The
Commonwealth presented insufficient evidence at the
suppression hearing to sustain its burden in establishing that
Appellant knowingly, intelligently, and voluntarily waived his
constitutional rights in speaking with the police.
Appellant’s Brief at 11.
Again, Appellant’s claim fails because Appellant does not view the
evidence in the light most favorable to the Commonwealth. Certainly, during
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the suppression hearing, Detective Richard testified that he saw Appellant
immediately after the arrest and he did not “recall anything remarkable about”
Appellant’s physical status. N.T. Suppression Hearing, 1/10/14, at 9.
Detective Richard clarified: “[Appellant] may have had a cut on his head, a
small cut. But I mean, he was walking towards me, unassisted.” Id. Further,
Detective Richard specifically testified that, during the custodial interrogation,
Appellant did not “appear to have any injuries or any other physical ailments
that would [have] interfere[d] with his ability to understand what was going
on.” N.T. Suppression Hearing, 1/7/14, at 133.
Detective Richard’s above-summarized testimony is sufficient to support
the trial court’s conclusion that Appellant’s physical confrontation with the
police did not render his Miranda waiver unknowing, unintelligent, or
involuntary. Therefore, Appellant’s second claim on appeal also fails.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/19
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J-S61028-19
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