Com. v. Kiadee, H.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
HUSSAIN KIADEE :
:
Appellant : No. 973 EDA 2020
Appeal from the Judgment of Sentence Entered September 28, 2018
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0007557-2016
BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED: MARCH 4, 2021
On October 21, 2016, Darby Borough Police discovered the body of
Fabine Siryone dead on her kitchen floor. Siryone had been stabbed thirty-
three times. Police quickly settled on Appellant, Hussain Kiadee, as the
primary suspect in Siryone’s murder. Kiadee ultimately confessed to the
murder while being interrogated by police. Kiadee now appeals from his
conviction for first-degree murder and associated crimes, challenging the
legality of his arrest, the voluntariness of his confession, and the admissibility
of statements in a police report filed by Siryone five months before her death.
After careful review, we affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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In his first two issues, Kiadee argues the suppression court erred in
denying his suppression motion. In his suppression motion, Kiadee sought
suppression of his confession.
Our review of a challenge to the denial of a suppression motion is
“limited to determining whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions drawn from those
facts are correct.” Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010).
Because the Commonwealth prevailed at the suppression hearing, “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.” Id. Where the suppression court’s factual findings are
supported by the record, we are bound by those facts and may reverse only
if the court’s legal conclusions are erroneous. See Commonwealth v.
Bryant, 67 A.3d 716, 724 (Pa. 2013).
Kiadee first argues that his confession should have been suppressed
because police lacked probable cause to arrest him. Specifically, Kiadee
contends that the facts possessed by police were insufficient to support a
finding of probable cause.
To be lawful, an arrest must be supported by probable cause. See
Commonwealth v. Wells, 916 A.2d 1192, 1195 (Pa. Super. 2007). “Probable
cause exists where the facts and circumstances within the officer’s knowledge
are sufficient to warrant a person of reasonable caution in the belief that an
offense has been or is being committed.” Commonwealth v. Gibson, 638
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A.2d 203, 206 (Pa. 1994). In determining whether probable cause exists, we
must examine the totality of the circumstances. See Commonwealth v.
Martin, 101 A.3d 706, 721 (Pa. 2014); see also Illinois v. Gates, 462 U.S.
213, 233 (1983).
Here, we conclude the suppression court properly determined that police
had probable cause to arrest Kiadee for Siryone’s murder. We note that the
suppression court found “the testimony provided by Detective Pitts to be
wholly credible and the testimony from [Kiadee] to be incredible.” Suppression
Court Order, 08/29/2017, at 6.
According to Detective Pitts’s testimony, Kiadee had a long history of
stalking and harassing Siryone. See N.T., Suppression Hearing, 08/15/2017,
at 11-16. Siryone often complained to friends and family that she received
unwanted phone calls and visits from Kiadee after she ended her relationship
with him. See id., at 19-25. There were even instances in which Kiadee
threatened to kill Siryone if he could not be with her. See id., at 16, 25. In
the end, the harassment and threats escalated to a point where Siryone
needed to file a police report. See id., at 11.
In addition, Detective Pitts testified about the video evidence linking
Kiadee to the murder scene. He specifically pointed to a surveillance video in
which a male, resembling Kiadee, entered Siryone’s apartment and left shortly
thereafter. See id., at 26-29. The video also showed Kiadee’s white Nissan
Maxima, with a black hood and black bumpers, driving away from Siryone’s
apartment moments later. See id., at 30.
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In sum, we cannot conclude the court erred in finding, under the totality
of the circumstances, that police had probable cause to arrest Kiadee for
Siryone’s murder. Detective Pitts’s testimony was sufficient to establish that
police had a reasonable basis for suspecting Kiadee had murdered Siryone.
Therefore, we find no basis to disturb the suppression court’s finding of
probable cause.
Kiadee next argues that his confession was involuntary and should have
been suppressed based on the totality of the circumstances. He also alleges
that he should have been re-warned of his constitutional rights before making
inculpatory statements.
When a defendant, like Kiadee, alleges his confession was involuntary,
we must examine the totality of the circumstances surrounding the confession.
See Commonwealth v. Yandamuri, 159 A.3d 503, 525 (Pa. 2017). The
question of voluntariness is not whether the defendant would have confessed
without interrogation, but whether the interrogation was so manipulative or
coercive that it deprived the defendant of his ability to make a free and
unconstrained decision to confess. See Commonwealth v. Fitzpatrick, 181
A.3d 368, 373 (Pa. Super. 2018). In doing so, a court should consider: “the
duration and means of the interrogation; the defendant’s physical and
psychological state; the conditions attendant to the detention; the attitude
exhibited by the police during the interrogation; and all other factors that
could drain a person’s ability to resist suggestion and coercion.” Yandamuri,
159 A.3d 525.
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After reviewing the record, we discern no error in the suppression court’s
conclusion that Kiadee’s confession was voluntary. Once again, we note the
court fully credited Detective Pitts’s testimony regarding the voluntariness of
Kiadee’s confession. See Suppression Court Order, 08/29/2017, at 6.
Detective Pitts testified that Kiadee was given Miranda warnings when
he entered the police station. See N.T., Suppression Hearing, 08/15/2017, at
33-34. Detective Pitts informed Kiadee of his right to remain silent and his
right to counsel. See id., at 35. He also told Kiadee that he could stop
answering questions at any time. See id., at 36. Kiadee voluntarily waived his
right to counsel and right to remain silent, as evidenced by his signature on a
Miranda waiver form. See Suppression Hearing Exhibit 5.
In addition, the suppression hearing transcript reveals that Kiadee
answered questions free of physical and mental restraint. Kiadee was not
handcuffed or physically threatened during the interrogation. See id., at 38.
There was also no evidence that Kiadee, a native of Liberia, had difficulty
understanding Detective Pitts during the interview. See id., at 108, 126-127.
Furthermore, the interrogation was not prolonged and exhaustive as
Kiadee suggests in his brief. Kiadee was initially questioned for approximately
one hour. See id., at 41. Detectives concluded the interrogation after Kiadee
had denied any involvement in murdering Siryone. See id., at 48. However,
the detectives had conclude that despite Kiadee’s denial, they had enough
circumstantial evidence to charge Kiadee with murder. They therefore started
to “process” him, which involved taking photographs and fingerprinting him.
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See id. There is no indication that he was being interrogated during this
process.
While being processed, Kiadee began making inculpatory statements.
See id., at 49. In fact, Kiadee requested the opportunity to speak with the
detectives again. See id. When detectives were informed, they brought
Kiadee back into the interrogation room, approximately seven and one-half
hours after his first interrogation. See id. They did not re-Mirandize him.
Kiadee immediately admitted to the murder, but argued that he did not intend
to kill Siryone. See id., at 49-50. He refused to have his confession recorded,
but did not ask for an attorney. See id., at 51-52.
As such, there was no basis to conclude Kiadee’s confession was
involuntary based on the totality of the circumstances.
As for Kiadee’s assertion that he should have been re-Mirandized
before the second interrogation, we note that Kiadee failed to fully develop
this argument with discussion and citation to relevant, legal authority. The
Rules of Appellate Procedure state unequivocally that each issue an appellant
raises must be supported by discussion and analysis of pertinent legal
authority. See Pa.R.A.P. 2119 (a). “[M]ere issue spotting without analysis or
legal citation to support an assertion precludes our appellate review of [a]
matter.” Commonwealth v. Martz, 232 A.3d 801, 811 (Pa. Super. 2020).
Therefore, we find this argument waived.
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However, even if Kiadee had developed this argument, it fails
nonetheless. Our Supreme Court has held that not every renewal of an
interrogation requires a repetition of Miranda warnings. See
Commonwealth v. Koehler, 737 A.2d 225, 353 (Pa. 1999). A court must
look at the circumstances of each case and determine whether previously
provided Miranda warnings have become stale. See id. The factors relevant
to such an inquiry are: (1) the length of time between the warnings and the
challenged interrogation; (2) whether the interrogation was conducted at the
same place where the warnings were given; (3) whether the officer who gave
the warnings also conducted the questioning; and (4) whether statements are
materially different from those made at the time of the warnings. See
Commonwealth v. Bennett, 282 A.2d 276, 280 (Pa. 1971).
Here, Kiadee received Miranda warnings roughly seven and one-half
hours prior to his challenged statement. See N.T., Suppression Hearing,
08/15/2017, at 47-49. His second interrogation occurred in the same room
where his first interrogation took place, and was conducted by Detective Pitts
who had given the initial warnings. See id., at 48. Furthermore, Kiadee’s
second statement was inculpatory. See id., at 50-51.
We recognize the time between the warning and the inculpatory
statements in this case was longer than other cases where our Supreme Court
held that repeated warnings were unnecessary. See Commonwealth v.
Gray, 374 A.2d 1285, 1289 (Pa. 1977) (holding warnings were not stale when
given over two hours before the inculpatory statement); see also
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Commonwealth v. Jones, 386 A.2d 495, 498 (Pa. 1978) (finding warnings
were not stale when an inculpatory statement was given three hours after the
warnings); compare Commonwealth v. Wideman, 334 A.2d 594, 599 (Pa.
1975) (finding warnings stale when materially different statement was given
twelve hours after warnings issued by different officers in a different room of
building). We also note that Kiadee offered a materially different statement
during the second interrogation.
However, there are other circumstances in this case that convince us
Kiadee did not need to be re-Mirandized. Detectives ended the first
interrogation after only an hour, accepting (but not believing) Kiadee’s denial
of involvement. Kiadee was then taken to be fingerprinted and photographed.
During this process, there is no indication that he was questioned or otherwise
encouraged to make inculpatory statements. Yet Kiadee allegedly made
several inculpatory statements, and explicitly requested to speak with
detectives again. He was returned to the same room where he received the
Miranda warnings, and spoke to the same detective. He demonstrated an
awareness of his rights by refusing to have his confession recorded, but
nonetheless provided a verbal confession.
Under these circumstances, we conclude the initial Miranda warnings
were not stale. While the time between the warnings and Kiadee’s inculpatory
statements is concerning, the unique circumstances presented here are
sufficient to affirm the trial court’s conclusion that Kiadee’s confession was
voluntary under all the circumstances.
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Therefore, after reviewing Kiadee’s first two issues, we find the court
did not err in refusing to suppress Kiadee’s confession.
Kiadee’s remaining claim asserts that the trial court abused its discretion
in admitting the victim’s statement to police accusing Kiadee of harassment
and terroristic threats. He argues that the victim’s statement was inadmissible
hearsay, because the statement did not qualify under the excited utterance
exception to the rule against hearsay. As such, Kiadee contends he was
prejudiced by the admission of this evidence at trial.
Before reaching the merits of Kiadee’s hearsay issue, we must first
determine whether he properly preserved it for our review. The
Commonwealth argues that Kiadee failed to do so because he did not object
to the victim’s statement at trial. While Kiadee concedes this fact, he contends
he preserved the issue by filing a pre-trial motion in limine, asking the trial
court to preclude the victim’s hearsay statement. In response, the
Commonwealth contends the trial court did not clearly and definitively rule on
Kiadee’s motion in limine, and therefore Kiadee was obliged to object to the
testimony during the trial.
“[A] motion in limine may preserve an objection for appeal without any
need to renew the objection at trial, but only if the trial court clearly and
definitively rules on the motion.” Commonwealth v. McGriff, 160 A.3d 863,
866 (Pa. Super. 2017). Therefore, “if the trial court defers ruling on a motion
in limine until trial, the party that brought the motion must renew the
objection at trial or the issue will be deemed waived on appeal.” Blumer v.
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Ford Motor Company, 20 A.3d 1222, 1232 (Pa. Super. 2011) (citations
omitted).
The record reveals the trial court did not definitively rule, on the record,
on Kiadee’s motion in limine to exclude the victim’s statement under the
hearsay rule. See N.T., Pre-trial Hearing, 02/16/2018, at 4-5; see also Trial
Court Order, 02/20/2018, at 1. Instead, the court’s order merely limited the
Commonwealth’s proffer of prior bad acts evidence to those witnesses who
had first-hand knowledge of such acts. Furthermore, a review of the trial
transcript reveals that Kiadee failed to renew his objection at trial. See N.T.,
Trial, 08/14/2018, at 203-209. As such, there appears to be some merit to
the Commonwealth’s position.
However, as Kiadee points out in his Reply Brief, the specific issue of
preservation of his hearsay claim was discussed during the hearing on Kiadee’s
post-sentence motion. There, defense counsel discussed the procedural
history of the issue, noting that the record was not entirely clear regarding
the court’s disposition of Kiadee’s motion in limine. See N.T., Post-Sentence
Motion Hearing, 1/30/2020, at 4-6. Counsel noted that the pre-trial transcripts
did not include an explicit ruling on the motion in limine, but suggested that
“off-the-record discussions … led the parties to particular conclusions.” Id., at
8-9.
Counsel subsequently stated, “[w]e came away from that proceeding
with the understanding the Court was going to allow” testimony based upon
the police report Siryone made five months prior to her death. Id., at 10. The
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trial court indicated that this was an accurate description of its ruling on
Kiadee’s motion in limine. See id., at 10-11. Under these circumstances, we
cannot conclude that Kiadee waived the issue. The trial court confirmed that
through off-the-record discussions, the parties were aware of the intent of its
order. Further, the record confirms that the parties operated under these
impressions at trial. Not only did the Commonwealth present testimony of the
detective who wrote the police report, but Kiadee did not object to it as
violating the order of February 2nd.
Addressing Kiadee’s third issue on the merits, we must now determine
whether the victim’s statement to police qualifies under the excited utterance
exception. Pennsylvania Rule of Evidence 803(2) governs the excited
utterance hearsay exception, defining an excited utterance as "a statement
relating to a startling event or condition made while the declarant was under
the stress of excitement caused by the event or condition." Although the
report states that the victim was scared after the alleged harassment, it also
reflects on events that took place prior to the harassing incident, which would
take the victim’s reporting statements outside of the excited utterance
exception.
In response, the Commonwealth contests that even if the victim’s
written statement does not qualify under the excited utterance exception, it
satisfies the business records exception because neither the victim nor the
officer created the record in anticipation of litigation and the statement was
introduced through the record’s author. Appellee’s Brief at 22. Pennsylvania
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Rule of Evidence 803(6) governs the business records hearsay exception,
which requires that a record custodian or “other qualified witness testify that
the record was made ‘at or near the time’ of the event recorded and that the
record was kept in the regular course of business.” There is a presumption
that police reports normally do not satisfy the business records exception
because they are generally created in anticipation of litigation. See
Commonwealth v. May, 195, 898 A.2d 559, 565 n.12 (Pa. 2006).
Although the victim did not want to press charges when she made the
report, there is no indication that she wanted to make the report for any other
reason than for possible use in a future investigation or litigation.
Consequently, the police report does not qualify under the business record
exception.
However, even if we agree with Kiadee that the police report does not
fall under the excited utterance or business record exception and the trial
court admitted the report in error, the error was harmless because the
overwhelming physical evidence of Kiadee's guilt presented at trial. The
Commonwealth bears the burden of establishing harmless error on appeal.
See Commonwealth v. Fitzpatrick, 204 A.3d 527, 533 (Pa. Super. 2019).
One way the Commonwealth can establish harmless error is by showing that
the prejudice caused by improper admission of hearsay evidence was so
minimal in comparison to the properly admitted and uncontradicted
inculpatory evidence that the hearsay evidence could not have contributed to
the verdict. See id.- 12 -
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Here, Detective Brian Pitts testified that Kiadee confessed to the murder.
See N.T., Trial, 8/15/18, at 253. Law enforcement found his DNA on the
victim’s clothing at the crime scene. See id., at 268-269. His vehicle is on the
video surveillance at the location and time of the murder. See id., at 215-
219. The testimony from family and friends painted the picture of Appellant's
jealousy and possessiveness of the victim after they ended their relationship.
See N.T., Trial, 8/14/18, at 29-30; 73-80; 89-92; 120-121; 141-152.
Measured against this overwhelming evidence, the prejudice caused by the
admission of the hearsay statements in the police report is truly minimal. If
the jury was inclined to find all of the inculpatory evidence incredible, we
cannot see how the admission of the police report would be the evidence that
caused them to change their minds. Even if the trial court abused its discretion
in admitting the victim’s report, it was harmless error. Kiadee’s third issue on
appeal offers no merit for relief.
Accordingly, for the reasons stated above, we affirm the decision of the
trial court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/21
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