Com. v. Foster, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KEITH LAMAR FOSTER : No. 519 WDA 2022
Appeal from the Order Entered April 18, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0006450-2021
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: JUNE 22, 2023
The Commonwealth appeals from the trial court’s April 18, 2022 order
granting Appellee’s, Keith Lamar Foster (hereinafter “Foster”), pretrial motion
to suppress statements he made during a police interview. After careful
review, we reverse the order and remand for further proceedings.
The trial court summarized the pertinent background of this case, as
follows:
This is a Commonwealth appeal of this [c]ourt’s grant of a motion
to suppress [Foster’s] statements. During the course of an
investigation into a sexual assault, Detective Brian Sellers of the
City of Pittsburgh Bureau of Police obtained a search warrant for
a buccal swab of [Foster’s] DNA. In the affidavit of probable cause
submitted in support of that search warrant, Detective Sellers
represented to a judicial officer that probable cause existed to
obtain [Foster’s] DNA based on the fact that male DNA was
recovered from the alleged victim and [Foster] was alone with the
alleged victim on the evening of the alleged sexual assault.
Shortly after obtaining the search warrant, Detective Sellers
summoned [Foster] to police headquarters and interviewed
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[Foster]. [Foster] was not placed in handcuffs or other restraints
and he was not provided with Miranda[1] warnings. Detective
Sellers specifically informed [Foster] that he was not under arrest
and [stated that Foster] … was not a suspect in the sexual assault
of the victim. He then interviewed [Foster].
Trial Court Opinion (TCO), 11/22/22, at 1.
During Foster’s interview, he stated that he did not know the victim and
did not have sexual intercourse with her. See N.T. Suppression Hearing,
4/18/22, at 15-16; Reply Brief in Support of Motion to Suppress, 3/29/22, at
4. At the close of the interview, Foster consented to his DNA being taken, and
it was subsequently found to be a match to male DNA found during the victim’s
sexual assault examination, thus demonstrating that Foster did have some
sort of sexual contact with the victim. See Reply Brief in Support of Motion
to Suppress at 5. Consequently, the Commonwealth intends to use Foster’s
statements to Detective Sellers, in which he denied knowing the victim or
having any contact with her, against Foster at trial by showing that he lied to
the detective. See N.T. Suppression Hearing, 4/18/22, at 5-6.
Foster filed a pre-trial motion to suppress his statements to Detective
Sellers, arguing that his statements were not voluntary, given the totality of
the circumstances. See Reply Brief in Support of Motion to Suppress at 9.
Specifically, Foster claimed that his “choice to give a statement to Detective
Sellers was not free and unconstrained since Detective Sellers misrepresented
the fundamental nature of the interaction” by telling Foster he was not a
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1 Miranda v. Arizona, 384 U.S. 436 (1966).
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suspect. Id. According to Foster, “[w]ithout knowing he was a suspect, [his]
capacity for self-determination was critically impaired.” Id.The trial court conducted a bifurcated suppression hearing, with
testimony being offered on February 15, 2022, and argument by the parties
occurring on April 18, 2022. At the close of the hearing on April 18th, the court
found that Foster’s statements were involuntary based on the
misrepresentation by Detective Sellers that Foster was not a suspect, despite
Detective Foster obtaining a warrant for Foster’s DNA prior to the interview.
Specifically, the court reasoned:
[The Court]: We don’t issue warrants to take evidence for criminal
cases on the basis that we want to eliminate somebody from
criminal conduct. Well, let’s see, I know that Mr. Jones over here
didn’t do it; I want to get his DNA to prove it. We don’t do that.
We say, I think Mr. Jones is a viable suspect in this case, and I
want his DNA because I think it’s going to turn out to be the DNA
that was on the victim. That’s the whole point of it.
And by the way, I don’t think Detective Sellers was trying to be a
wise guy, but he misunderstood what he was doing. He tells a
[j]udge in the Affidavit of Probable Cause, I think this guy is a
viable suspect for this terrible crime. Here’s why. The [j]udge
agrees with him. He tells [Foster], no, you’re not a suspect; if
you say something that changes that I’ll let you know.
And it’s the nature of the misrepresentation that troubles me. It’s
not, hey, one of the boys that came out after you, they saw you
get in the car; they saw you put your hands on her; they saw her
resisting you. Let’s say that’s all a lie; they can do that. They can
tell him that they have facts they don’t have.
But to tell him, you’re not a suspect, and I want you to make a
valid decision on asserting your rights or not, that’s a different
kind of misrepresentation that goes to the voluntariness of the
statement. Is it something that’s prejudicial against him? Yes,
you want to use it. It’s not neutral.
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So[,] on the basis of everything that we discussed, the motion to
suppress [Foster’s] statements that he didn’t know the victim and
didn’t have any interaction with her prior to him being Mirandized
are suppressed, because it goes to voluntariness, not to the
custodial interrogation. It goes to voluntariness. Motion granted.
N.T. Suppression Hearing, 4/18/22, at 14-16.2
That same day, the court issued an order granting Foster’s motion to
suppress. The Commonwealth filed a timely notice of appeal, and certified
that the court’s order substantially handicaps its prosecution of this case. See
Pa.R.A.P. 311(d). It then timely complied with the trial court’s order to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The
court filed its Rule 1925(a) opinion on November 2, 2022. Herein, the
Commonwealth states the following issue for our review: “Whether the trial
court erred in granting the motion to suppress?” Commonwealth’s Brief at 5.
To begin, we recognize that,
[i]n appeals from orders granting suppression, our scope of review
is limited to the evidence presented at the suppression hearing.
In the Interest of L.J., … 79 A.3d 1073, 1088–89 ([Pa.] 2013).
Thus, we may consider only the evidence from the appellee’s
witnesses together with the Commonwealth’s evidence that, when
read in context of the record at the suppression hearing, remains
uncontradicted. Id.; Commonwealth v. Whitlock, 69 A.3d 635,
637 (Pa. Super. 2013). As for the standard of review, we apply
no deference to the suppression court’s legal conclusions.
Whitlock, 69 A.3d at 637. In contrast, we defer to the
suppression court’s findings of fact, “because it is the fact-finder’s
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2 We note that Foster also argued, in his motion to suppress, that he was
subject to a custodial interrogation that required Miranda warnings. See
Omnibus Pre-Trial Motion at 3. The court’s statements at the close of the
suppression hearing indicate that it did not find that Foster was subject to a
custodial interrogation. For the reasons set forth infra, we discern no error in
the court’s determination. See footnote 3, infra.
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sole prerogative to pass on the credibility of the witnesses and the
weight to be given to their testimony.” Id.Commonwealth v. Davis, 102 A.3d 996, 999 (Pa. Super. 2014) (footnote
omitted).
Instantly, the Commonwealth challenges the trial court’s determination
that Foster’s statements to Detective Sellers were involuntary based on the
detective’s telling Foster that he was not a suspect in the case, although the
detective had obtained a warrant for Foster’s DNA. Specifically, in its Rule
1925(a) opinion, the court explained its decision to grant Foster’s motion to
suppress, as follows:
This [c]ourt granted suppression because it believed [Foster’s]
statement was not voluntary. “[T]he ultimate test for
voluntariness is whether the confession is the product of an
essentially free and unconstrained choice by its maker.”
Commonwealth v. Fleck, 471 A.2d 547, 549 (Pa. Super. 1984).
“[T]he voluntariness of a confession is determined by the totality
of the circumstances.” Commonwealth v. Templin, 795 A.2d
959, 963-[]64 (Pa. 2002) (citation omitted). In Templin, the
Pennsylvania Supreme Court … explained as follows:
In determining voluntariness, the question 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. “By the same
token, the law does not require the coddling of those
accused of crime. One such need not be protected against
his own innate desire to unburden himself.”
Commonwealth v. Graham, … 182 A.2d 727, 730-31
([Pa.] 1962). Factors to be considered in assessing the
totality of the circumstances include the duration and means
of the interrogation; the physical and psychological state of
the accused; the conditions attendant to the detention; the
attitude of the interrogator; and any and all other factors
that could drain a person’s ability to withstand suggestion
and coercion.
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Id. at 966 (some internal quotation marks and citations omitted).
It is this court’s view that the circumstances of [Foster’s]
interrogation deprived [him] of making a free and unconstrained
choice to undergo an interview relative to the sexual assault of
the alleged victim. [Foster] was not restrained or informed that
he was not permitted to leave[,] and the interview did not appear
coercive. However, Detective Sellers misrepresented to [Foster]
that he was not a suspect in the sexual assault of the victim prior
to interviewing him. It is this [c]ourt’s belief that Detective
Sellers’ misrepresentations were designed to[,] and did[,] induce
[Foster] to speak with Detective Sellers. This [c]ourt firmly
believes that had Detective Sellers been truthful with [Foster],
Detective Sellers would have informed [Foster] of his Miranda
rights and [Foster] would have been in a position to knowingly
and intelligently make a decision as to his constitutional rights.
This [c]ourt does not believe that [Foster’s] decision to speak with
Detective Sellers was a product of an informed and conscious
choice. On the contrary, his decision to speak with Detective
Sellers was borne solely from Detective Sellers’ affirmative
misrepresentation that [Foster] was not a suspect in a sexual
assault. This assurance manipulated [Foster] to believe that he
was exposed to no jeopardy by agreeing to the interview.
For the foregoing reasons, the suppression motion was properly
granted.
TCO at 2-3.
On appeal, the Commonwealth argues that, “[d]espite referencing the
proper ‘totality of the circumstances’ test, the trial court actually used the
disavowed ‘but for’ test, focusing only on the incorrect statement that [Foster]
was not a suspect” in concluding that his statements were involuntary.
Commonwealth’s Brief at 17. The Commonwealth stresses that Foster
traveled to the police station on his own. He was not locked into
the interview room. He was not handcuffed or restrained in any
way. He was not badgered or demeaned. He was informed that
he wasn’t a suspect and that if he did start to give incriminating
information, he would be given his Miranda rights ([TCO] at []1;
Appendix B at B-1). [The trial court] watched the interview and
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found that there was “nothing coercive in the detective’s manner,
demeanor, or anything like that[.]” [N.T. Suppression Hearing]
at [] 28. What caused the court to suppress the statement was
the sole factor that [Foster] had been misled about being a
“suspect”:
THE COURT: I agree. So far what I’ve seen there is nothing
coercive in the detective’s manner, demeanor, or anything
like that, I agree. It is one thing to say your buddy is over
there ratting you out, that is total misrepresentation, that is
acceptable and legal. It’s another thing on the issue of
voluntariness to mislead unintentionally somebody by
saying you’re not a subject. The officer, the detective, could
have believed that he was not a subject because he didn’t
have enough to go on but the fact is that he represented to
a judge that [Foster’s] DNA is important to this criminal
investigation so on that[, the] particular representation “you
are not a suspect of this investigation yet,” that is
misleading. That goes to the voluntariness, not as to some
fact, some collateral fact. That is the part I am having
trouble with.
Id. at 17-18 (quoting N.T. Suppression Hearing, 2/15/22, at 28-29).
The Commonwealth contends that the court erred in concluding that
Detective Sellers’ misrepresentation to Foster that he was not a suspect was
sufficient, in and of itself, to render his statements involuntary. It points out
that “a statement can be obtained when police make intentional
misrepresentations, so long as the totality of the circumstances goes to show
that the statement was voluntary.” Commonwealth’s Brief at 19-20 (citing
Commonwealth v. Roberts, 969 A.2d 594 (Pa. Super. 2009)). In Roberts,
a Philadelphia detective obtained a statement from Roberts after a woman
accused Roberts of sexually abusing her 20 years earlier. Id. at 595-96. At
the conclusion of the interview, the detective told Roberts that “he believed
that prosecution was not possible, because the statute of limitations period
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had passed, but stated he would give the information to the Philadelphia
District Attorney’s Office and would speak with police in Florida, where the
[victim] resided.” Id. at 596. Thereafter, officers from Florida interviewed
Roberts in the living room of his home. Id. Although the officers were
carrying their service weapons, they wore plain clothes and were driving an
unmarked car. Id. “At some point during the interview, [the officers]
informed [Roberts] that the Commonwealth of Pennsylvania was not going to
prosecute him because of the statute of limitations issue.” Id. Roberts
subsequently admitted that the allegations made against him were true. Id.Ultimately, the Philadelphia District Attorney’s Office concluded that the
statute of limitations had been tolled for various reasons, and they filed
charges against Roberts. He moved to suppress his statement to the Florida
officers, and the trial court granted that request, concluding that although the
Florida officers’ “statement that [Roberts] would not be prosecuted … had
been made in good faith, … the statement rendered [Roberts’] confession
involuntary.” Id. The Commonwealth appealed, and we reversed the trial
court’s order. Initially, we noted:
Pennsylvania looks at the totality of the circumstances when
assessing the voluntariness of a confession. When reviewing
voluntariness pursuant to the totality of the circumstances, we
should look to[,]
the duration and means of the interrogation; the physical
and psychological state of the accused; the conditions
attendant to the detention; the attitude of the interrogator;
and any and all other factors that could drain a person’s
ability to withstand coercion.
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Commonwealth v. Nester, … 709 A.2d 879, 882 ([Pa.] 1998).
Further, the Pennsylvania Supreme Court has specifically
disavowed the use of a narrow “but-for” test when determining
voluntariness. Commonwealth v. Templin, … 795 A.2d 959,
964 ([Pa.] 2002).
Id. at 599. We then explained:
In the instant matter, it appears that the trial court employed the
disavowed approach, focusing solely on the ultimately incorrect
statement that [Roberts] would not be prosecuted in Pennsylvania
and concluding that he would not have confessed but-for that
statement. The trial court did not make an examination of the
totality of the circumstances or look at the factors highlighted
above in rendering its decision. This was error.
In examining the totality of the circumstances in this matter, we
first note that this is not a case where either the Philadelphia or
Florida police attempted to deliberately mislead … [Roberts],
employ subterfuge, or otherwise engage in fabrication to induce a
defendant to confess. The record clearly demonstrates that the
police believed the statement to be accurate at the time it was
made. The detectives thought that Pennsylvania authorities could
not prosecute because the statute of limitations period had run.
It was not until later that the Philadelphia District Attorney’s Office
decided that three circumstances unique to [Roberts’] situation,
the age of his alleged victims, his employment as a fireman while
residing in Philadelphia, and his moving out of the jurisdiction,
when combined could serve to toll the statute of limitations.
Further, we are not dealing with a quid pro quo situation where
detectives told [Roberts] that he would not be prosecuted if he
confessed.
Instead, the record reflects that the interview was conducted by
two plainclothes detectives in [Roberts’] living room. It lasted
approximately fifteen to twenty minutes. The detectives spoke to
[Roberts] in calm voice and the questioning never got “heated or
accusatory.” [Roberts’] freedom of movement was never
restricted. The detectives stated that [Roberts] was calm and
quiet throughout the interview. Lastly, [the officer’s] recollection
of [Roberts’] demeanor during the interview belies the assertion
that [Roberts] was coerced. [The officer] testified that when he
read a portion of one of the alleged victim’s statements and asked
[Roberts] if it was true, [Roberts] was:
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… quiet. I mean, he brought his hands up to his face, I’ve
got in my report, like a praying position. His head was
bowed. He seemed like a lot was going through his mind.
He was quiet. He didn’t seem angry. He didn’t seem
nervous. He just seemed very somber, if you will.
Id. at 599-600 (emphasis in original; internal citations to the record omitted).
The Roberts panel also found that the facts before it were “far less
coercive than those allowed in [Commonwealth v.] Hughes[, 555 A.2d 1264(Pa. 1989)].” Id. at 600. In that case,
the police took [Hughes,] a juvenile[,] into custody and
questioned him for over five hours on one day and over five and
one-half hours on the second day concerning the sexual assault
of one child and the murder and sexual assault of a second child.
[Hughes] had been arrested, taken into custody from his
bedroom, and driven to police headquarters. [Hughes] was
questioned in the presence of two uncles and given a lie detector
test. After [Hughes] and his uncles were told that he failed the lie
detector test, the police and his uncles “prodded” him to confess.
On the first day, [Hughes] gave both oral and written statements
confessing to the sexual assault of the first child and the murder
and sexual assault of the second child. The next day, after further
interrogation, [Hughes] made additional admissions regarding the
murder. On appeal, [Hughes] challenged the voluntariness of the
confession arguing that his free will was overborne by the
prodding of the police and his uncles and by the later-discovered
to be mistaken statement that he had failed the polygraph. The
record disclosed that the detective questioning the defendant had
been given inaccurate information by the polygraphist that the
defendant had failed the test, when, in fact, the results were
inconclusive. The Pennsylvania Supreme Court held, after
examining the totality of the circumstances, that [Hughes’]
confession was voluntary.
Roberts, 969 A.2d at 600 (internal citations to Hughes omitted).
Comparing the facts in Hughes to those in Roberts, the Roberts panel
found that the circumstances were “far less coercive….” Id. We explained
that,
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as in Hughes, there was no subterfuge by police; rather there
was good faith reliance on information that later proved to be
incorrect. There is simply nothing in the record to support a
finding that, when the voluntariness issue is properly examined in
light of the totality of the circumstance, the circumstances were
so inherently coercive as to deprive [Roberts] of his free will. We
thus hold that the trial court erred in excluding the confession.
Our conclusion that [Roberts’] confession was voluntary is
buttressed by the fact that the Pennsylvania Supreme Court has
found confessions to be voluntary even in cases where the police
made intentional misrepresentations, so long as the remaining
circumstances suggest that the confession was voluntary. In
Commonwealth v. Jones, … 322 A.2d 119 ([Pa.] 1974), the
Pennsylvania Supreme Court found a confession to be voluntary
even though, after the defendant gave an initial exculpatory
statement, the detective falsely claimed that a co-conspirator had
implicated him. Jones, 322 A.2d at 126. The Pennsylvania
Supreme Court explained that it did not believe that the alleged
fabrication was either likely to cause an untrustworthy confession,
nor was it so reprehensible as invalidate the confession by
offending basic notions of fairness. Id. See also,
Commonwealth v. Williams, … 640 A.2d 1251, 1259 ([Pa.]
1194) ([finding that the a]ppellant’s claim that police falsely
stated that they had located a gun sold by [the a]ppellant which
was of the same caliber used in the crime, was not sufficient to
render a confession involuntary absent other coercive
circumstances). Here, [the officer’s] mistaken statement was
more likely to cause a trustworthy confession rather than an
untrustworthy confession, and we do not find the mistake to be
reprehensible so as to offend basic notions of fairness.
Roberts, 969 A.2d at 600-01 (emphasis in original; footnote omitted).
Based on our discussion in Roberts, and our Supreme Court’s decisions
in Jones and Williams, we conclude that the misrepresentation made by
Detective Sellers in the present case did not render Foster’s statements
involuntary. Initially, however, we disagree with the Commonwealth that the
trial court failed to consider any of the pertinent factors under the totality-of-
the-circumstances test. The court recognized that Foster “was not restrained
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or informed that he was not permitted to leave[,] and the interview did not
appear coercive.” TCO at 2. However, the court made no mention of the
duration of the interview, Foster’s psychological state, or the conditions
attendant to his detention. See Roberts, 969 A.2d at 599. The
Commonwealth elaborated on these factors in its brief in opposition to Foster’s
suppression motion, stating:
Once he arrived at police headquarters, [Foster] was escorted to
an interview room without the use of handcuffs or leg shackles.
He was permitted to retain and use his phone. He waited alone in
the room, with the door unlocked, for approximately five minutes.
During that time, he used his phone to make phone and video
calls. After five minutes, Detective Sellers entered the interview
room and shut the door but did not lock it. He was dressed in
plainclothes with his service weapon on his hip. Detective Sellers
began by telling [Foster] he was not a suspect and that the
questions he would be asking were to determine the events of the
night of January 25[], 2019. Detective Sellers did not read
[Foster] his Miranda warnings as he was not under arrest at the
time, but told him that it was possible that information could come
out during the course of the interview that would require the
reading of [Foster’s] Miranda rights. Detective Sellers told
[Foster] that if that happened, he would pause the interview and
read [Foster’s] Miranda rights. [Foster] stated he understood,
and during questioning, [Foster] stated that he did not know the
[v]ictim before that evening, but that he did pick her up after she
wrecked her car. He also stated that he had never had sex with
the [v]ictim. The interview lasted approximately twenty minutes,
at which point [Foster] was allowed to leave the station. Prior to
leaving, [Foster] provided a DNA sample.
Commonwealth’s Brief in Opposition of Motion to Suppress, 3/16/22, at 3-4.
In sum, it is apparent that Foster willingly came to the police station for
the interview. He was not handcuffed or locked in the room, he was permitted
to use his cell phone during the five minutes he waited for the interview to
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commence, and the duration of the interview was brief. The trial court
expressly found that Detective Sellers’ manner and demeanor during the
interview was not coercive. See N.T. Suppression, 2/15/22, at 28.3 The
totality of these circumstances establish that Foster’s statements were
voluntary.
Moreover, given the decisions in Roberts and Hughes, we do not agree
with the trial court that Foster’s statements were rendered involuntarily simply
because of Detective Sellers’ misrepresentation to Foster that he was not a
suspect in this case. While in Roberts the defendant was mistakenly told, by
two different interviewing officers, that he could never be prosecuted for the
crimes about which he was being questioned, here, Foster was simply told
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3 We note that, in his appellate brief, Foster does not develop an argument
that he was subject to a custodial detention but, based on the totality of these
circumstances, we would find no error in the trial court’s conclusion that he
was not. Based on the factors just discussed, it is clear that Foster was not
“physically deprived of his freedom in any significant way” and he was not
“placed in a situation” where he would have “reasonably believe[d] that his
freedom of action or movement [was] restricted by such interrogation.”
Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999) (citations
omitted). In other words, “the totality of the circumstances,” or “the
conditions and/or duration of the detention” were not “so coercive as to
constitute the functional equivalent of arrest.” Id. (citations omitted). While
Foster was interviewed at the police station, he came there voluntarily, he was
not restrained, Detective Sellers did not use or threaten force, and the
duration of the interview was brief. See id. (setting forth factors to utilize in
determining whether a detention has become so coercive as to be the
functional equivalent of an arrest) (citation omitted). Thus, we would agree
with the court that Foster was not subject to a custodial interrogation requiring
Miranda warnings.
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that he was not a suspect at that time. Notably, Detective Sellers informed
Foster that if he said anything inculpatory, he would be provided with Miranda
warnings, thereby indicating that Foster could become a suspect depending
on what he said during the interview. Further, as in Roberts, the trial court
in this case found that the misrepresentation to Foster was unintentional and
simply a misunderstanding on the part of Detective Sellers. See N.T.
Suppression Hearing, 4/18/22, at 14-15 (“I don’t think Detective Sellers was
trying to be a wise guy, but he misunderstood what he was doing.”). Unlike
in Hughes, Foster was not pushed to confess, or subject to multiple, hours-
long interviews. Therefore, the circumstances of this case are less coercive
than those in Roberts and Hughes.
Accordingly, we conclude that the totality of the circumstances
demonstrates that Foster’s statements to Detective Sellers were voluntary,
despite the misrepresentation to Foster that he was not a suspect.
Consequently, the trial court erred by granting Foster’s motion to suppress.
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2023
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