J-S51037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

RYAN HORNING,

                            Appellee                 No. 2646 EDA 2015


                      Appeal from the Order July 31, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0006140-2014


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED AUGUST 15, 2016

        The Commonwealth appeals from the trial court’s order granting the

motion to suppress evidence filed by Appellee, Ryan Horning.1 We affirm.

        We take the following relevant facts and procedural history from the

trial court’s October 28, 2015 opinion, and our independent review of the

certified record.     On March 1, 2014, the victim, Christopher Miller, was

robbed after he left the SugarHouse Casino. The next day, police brought

Appellee in for questioning because the casino’s videotape surveillance

footage suggested his involvement in the robbery. Detective Dominic O’Neill

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The Commonwealth has certified that the court’s order terminates or
substantially handicaps its prosecution of this case. See Pa.R.A.P. 311(d).
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interviewed Appellee and provided Miranda2 warnings.           When Appellee

invoked his right to remain silent, Detective O’Neill ended the interview and

asked him no further questions.

        Police then received additional information implicating Appellee in the

robbery, including Miller’s identification of Appellee as his assailant in a

photo array. On March 13, 2014, Detective O’Neill called Appellee and asked

him to come into the police station, and Appellee arrived with his father,

James Horning (James). Detective O’Neill placed Appellee under arrest for

the robbery and took him to an interrogation room while James waited in the

lobby.

        Approximately six minutes later, Detective O’Neill returned to James

and advised him of the charges against Appellee.       James asked Detective

O’Neill if he could “do [him] a favor, would you please go ask [Appellee]

what he wants me to tell his mother and how he wants me to tell his mother

because I really don’t like giving her all this bad news.” (N.T. Suppression,

6/05/15, at 53 (testimony of James Horning)). Detective O’Neill agreed to

relay this to Appellee, and returned a few minutes later.      He told James:

“[Appellee] wants you to tell his mother the truth. You don’t have to tell her




____________________________________________


2
    Miranda v. Arizona, 384 U.S. 436 (1966).




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the whole truth and he wants you to contact his attorney for him.” (Id. at

53-54).3

       Instead of waiting for Appellee’s attorney to arrive, Detective Ted

Wolkiewicz interviewed Appellee approximately seven hours later. Detective

Wolkiewicz Mirandized Appellee, who did not invoke his right to remain

silent or to counsel.          Detective Wolkiewicz then proceeded with the

interrogation, during which Appellee gave a statement confessing to the

Miller robbery.

       On May 28, 2015, Appellee filed a motion to suppress evidence. The

court held a hearing on June 5, 2015, and took the matter under

advisement.     On July 31, 2015, following review of the parties’ briefs and

argument, the court entered its order granting Appellee’s motion to

suppress. This timely appeal followed.4

       The Commonwealth raises one question for our review: “Was

[Appellee] legally incapable of waiving his right to counsel and giving a
____________________________________________


3
  At the suppression hearing, Detective O’Neill testified that he did not recall
Appellee making this request regarding an attorney. (See N.T Suppression,
at 22-23). The trial court did not credit the detective’s testimony, and
instead credited the testimony of James, “based upon the consistency of his
testimony, his demeanor and manner of testifying and [Appellee’s] prior
invocation of his right to [remain silent].” (Trial Court Opinion, 10/28/15, at
2 n.1; see also N.T. Suppression, at 73-74). Appellee’s testimony on this
issue was consistent with that of James. (See N.T. Suppression, at 57).
4
  The Commonwealth filed a concise statement of errors complained of on
appeal contemporaneously with its notice of appeal. The court entered an
opinion on October 28, 2015. See Pa.R.A.P. 1925.



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voluntary statement because he had asked his father to contact an attorney

at the time of arrest, seven hours before police attempted to question him?”

(Commonwealth’s Brief, at 3).

            When the Commonwealth appeals from a suppression
      order, we follow a clearly defined standard of review and
      consider only the evidence from the defendant’s witnesses
      together with the evidence of the prosecution that, when read in
      the context of the entire record, remains uncontradicted. The
      suppression court’s findings of fact bind an appellate court if the
      record supports those findings.         The suppression court’s
      conclusions of law, however, are not binding on an appellate
      court, whose duty is to determine if the suppression court
      properly applied the law to the facts.

Commonwealth v. Miller, 56 A.3d 1276, 1278-79 (Pa. Super. 2012),

appeal denied, 70 A.3d 810 (Pa. 2013) (citation omitted). “Further, [i]t is

within the suppression court’s sole province as fact finder to pass on the

credibility of witnesses and the weight to be given their testimony.”

Commonwealth v. Gillespie, 103 A.3d 115, 118 (Pa. Super. 2014)

(citations and internal quotation mark omitted).

      In its issue on appeal, the Commonwealth argues the trial court erred

in granting the motion to suppress because Appellee waived his right to

speak to a lawyer before police questioned him.        (See Commonwealth’s

Brief, at 9). It contends that, from an objective standpoint, Appellee did not

clearly invoke his right to counsel. (See id. at 12). We disagree.

      In Miranda, supra, the United States Supreme Court declared
      that an accused has a Fifth and Fourteenth Amendment right to
      have counsel present during custodial interrogation, so as to
      ensure that the defendant’s right against compulsory self-
      incrimination is protected. In Edwards v. Arizona, 451 U.S.


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      477 (1981), the High Court revisited its holding in Miranda and
      adopted a prophylactic rule that “when an accused has invoked
      his right to have counsel present during custodial interrogation,
      a valid waiver of that right cannot be established by showing
      only that he responded to further police-initiated custodial
      interrogation even if he has been advised of his rights.”
      Edwards, supra at 484. The High Court explained that an
      accused, “having expressed his desire to deal with the police
      only through counsel, is not subject to further interrogation by
      the authorities until counsel has been made available to him,
      unless      the     accused      himself    initiates    further
      communication, exchanges, or conversations with the
      police.” Id. at 484–85 (emphasis added). The purpose behind
      this rule is “to prevent police from badgering a defendant into
      waiving his previously asserted Miranda rights.” Michigan v.
      Harvey, 494 U.S. 344, 350 (1990).

             The U.S. Supreme Court has held that in order “[t]o avoid
      difficulties of proof and to provide guidance to officers
      conducting interrogations,” the determination of whether the
      right to counsel was invoked by the accused is an “objective
      inquiry.”    Davis v. United States, 512 U.S. 452, 458–59
      (1994). Effective assertion of the Fifth Amendment right to
      counsel “requires, at a minimum, some statement that can
      reasonably be construed to be an expression of a desire for the
      assistance of an attorney in dealing with custodial interrogation
      by the police.” McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)
      (emphasis omitted).      However, if the accused makes an
      ambiguous or equivocal reference that would lead an officer, in
      light of the circumstances, to believe “only that the suspect
      might be invoking the right to counsel,” police interrogation
      need not cease. Davis, supra at 459 (emphasis in original).
      The accused must “articulate his desire to have counsel present
      sufficiently clearly that a reasonable police officer in the
      circumstances would understand the statement to be a request
      for an attorney.” Id.

Commonwealth v. Martin, 101 A.3d 706, 725–26 (Pa. 2014), cert. denied

sub nom. Martin v. Pennsylvania, 136 S.Ct. 201 (2015) (one citation

omitted; emphasis in original; citation formatting provided).

      Where . . . an accused invokes his Fifth Amendment rights
      during a custodial interrogation but later provides an

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     incriminating statement, this Court reviews the voluntariness of
     the accused’s statement by examining whether authorities
     refrained from further interrogation until counsel has been made
     available to him, unless the accused himself initiates further
     communication, exchanges, or conversations with the police.
     See Commonwealth v. Keaton, 45 A.3d 1050, 1067 (Pa.
     2012) (invocation of Fifth Amendment right to counsel shields
     arrestee from further interrogation until counsel is present,
     unless arrestee initiates further conversation with police). In
     Commonwealth v. Hubble, 504 A.2d 168 (Pa. 1986), this
     Court held that a confession given after a defendant invokes his
     right to counsel need not be suppressed where the defendant:
     “(1)    initiated  further    communication,     exchanges,     or
     conversations with the police, and (2) knowingly and intelligently
     waived the right to counsel.” Id. at 175.

Commonwealth v. Poplawski,           130   A.3d   697, 711-12    (Pa.     2015)

(footnote, some quotation marks, and some citations omitted; citation

formatting provided).

     Furthermore, “[an a]ppellant’s subsequent cooperation [with police]

cannot be used to cast doubt on the validity of his initial assertion of the

right to counsel.” Commonwealth v. Zook, 553 A.2d 920, 923 (Pa. 1989),

cert. denied, 493 U.S. 873 (1989) (citation omitted) (holding appellant

clearly invoked his rights under Miranda to secure counsel where, during

police interview, he requested to use phone to call his mother to see if she

could get him an attorney).

     Here, the trial court found that upon arriving in the interrogation room,

Appellee unequivocally asked Detective O’Neill to tell his father to call his

attorney, whom he had already secured.      (See Trial Ct. Op., at 4).     This

“statement [could] reasonably be construed to be an expression of a desire

for the assistance of an attorney in dealing with custodial interrogation by


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the police.”    Martin, supra at 725; see also Zook, supra at 923; (N.T.

Suppression, at 53-55, 57-58, 62, 66). Detective O’Neill testified that he did

not recall Appellee’s request for an attorney. (See N.T. Suppression, at 22-

23). The trial court credited the testimony of Appellee and his father. (See

id. at 74).      We are bound by these credibility determinations. 5     See

Gillespie, supra at 118. The trial court found that “[Appellee’s] phrasing

was unambiguous and clearly indicated that he was invoking his right to

counsel.” (Trial Ct. Op., at 5).

       There is no indication that “[Appellee] himself initiate[d] further

communication, exchanges, or conversations with the police,” thereby

subjecting himself to further interrogation by the authorities. Martin, supra

at 725; see also Poplawski, supra at 711-12. Instead, the record shows

that Detective O’Neill did not attempt to ascertain any information regarding

Appellee’s representation, and that he allowed another detective to

interrogate Appellee without his attorney present. (See N.T. Suppression,

at 23, 25).     Thus, upon review, we conclude that the trial court properly

granted Appellee’s motion to suppress evidence.       See Miller, supra at

1278-79. Accordingly, we affirm the order of the trial court.

       Order affirmed.
____________________________________________


5
  Besides crediting the consistent testimony of Appellee and his father that
Appellee requested an attorney, the trial court noted that this finding was
not contradicted by Detective O’Neill because he had no memory of whether
the statement was made. (See Trial Ct. Op., at 2 n.1).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2016




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