J-S67003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JORDAN ADONIS RAWLS                        :
                                               :
                       Appellant               :   No. 720 MDA 2019

          Appeal from the Judgment of Sentence Entered April 5, 2019
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0000089-2017


BEFORE:      OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                              FILED JANUARY 10, 2020

        Appellant, Jordan Adonis Rawls, appeals from the judgment of sentence

entered on April 5, 2019, following his jury and bench trial convictions. We

affirm.

        The facts and procedural history of this case are as follows. On October

31, 2016, two victims, Kristine Kibler and Shane Wright, were shot and killed

in their residence on Poplar Street in Williamsport, Pennsylvania.           On

November 10, 2016, law enforcement authorities filed a criminal complaint

against Appellant, charging him with two counts of criminal homicide and

other, related crimes arising from the aforementioned incident. The next day,

Appellant voluntarily reported to the Williamsport Police Department after

learning of media reports linking him to the Poplar Street homicides. N.T.
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S67003-19



Pre-Trial Hearing, 4/26/18, at 14.             At the time Appellant reported to the

Williamsport Police Department, he was unaware that he was criminally

charged. Id. The Williamsport police arrested Appellant upon arrival. Id. at

13-14. The police then took Appellant to an interview room, read him his

Miranda1 rights, and asked that he sign a waiver form, which he did. Id. at

15. After five and one-half hours of questioning, Appellant gave a statement

to police admitting his involvement with the incident at Poplar Street. Id. at

36.

        Thereafter, on April 2, 2018, Appellant filed an omnibus pre-trial motion,

which included a motion to suppress his November 11, 2016 statement to

police. Appellant’s Omnibus Pre-Trial Motion, 4/2/18, at 1-31. In his motion,

Appellant asserted that his statement was obtained in violation of his Fifth,

Sixth, and Fourteenth Amendment rights.               Id.    The trial court, however,

denied Appellant’s motion to suppress on August 13, 2018. Trial Court Order

and Opinion, 8/13/18, at 1-13.

        The   Commonwealth        subsequently       filed   a   motion   for   discovery

requesting Appellant to disclose any experts he intended to use at trial.

Commonwealth’s Motion for Discovery, 11/21/18, at 1-3.                    The trial court

granted the Commonwealth’s motion on December 6, 2018. Trial Court Order,

12/6/18, at 1. On February 7, 2019, the Commonwealth filed a motion to

preclude      Appellant’s    expert,     Dr.     Richard     Ofshe,   from      testifying.

____________________________________________


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

                                           -2-
J-S67003-19



Commonwealth Motion, 2/7/19, at 1. The Commonwealth alleged that Dr.

Ofshe would proffer opinions on the “phenomenon of false confessions” and

“police interrogation techniques” which “[are] not admissible in Pennsylvania”

as they “constitute[] an invasion of the jury’s role as the exclusive arbiter of

credibility.” Id. On February 27, 2019, Appellant filed a motion in limine also

seeking, inter alia, to preclude the Commonwealth’s expert, Sergeant Elwood

Spencer, from testifying at trial. Appellant’s Motion in Limine, 2/27/19, at

3-4.     Appellant contended that Sergeant Spencer’s testimony regarding

firearms and toolmark examination did not “possess the general acceptance

to warrant admission” or the “reliability required under the structure of

[Pa.R.E.] 403.” Id.         On March 29, 2019, the trial court granted the

Commonwealth’s motion, but denied Appellant’s motion in limine. Trial Court

Order, 3/29/19, at 1.

        Appellant’s trial commenced on April 1, 2019. On April 5, 2019, the jury

convicted     Appellant    of   first-degree   murder,2   second-degree   murder,3

robbery,4 criminal conspiracy to commit robbery,5 criminal attempt to commit



____________________________________________


2   18 Pa.C.S.A. § 2502(a).

3   18 Pa.C.S.A. § 2502(b).

4   18 Pa.C.S.A. § 3701(a)(1)(iii).

5   18 Pa.C.S.A. §§ 903 and 3701(a)(1)(iii).




                                           -3-
J-S67003-19



robbery,6 and possession of an instrument of a crime.7 Appellant then waived

his right to a jury trial for the remaining charges. Following a brief, ensuing

bench trial, the court convicted Appellant of persons not to possess firearms8

and firearms not to be carried without a license.9 On that same day, the trial

court sentenced Appellant to consecutive life sentences for his first and

second-degree murder convictions.              Trial Court Opinion, 7/5/19, at 1.

Appellant did not file a post-sentence motion. This timely appeal followed.10

        Appellant raises the following issues on appeal:

          I.   Whether the trial court committed reversible error by
               denying [Appellant’s] pre-trial motion to suppress [] where
               [certain challenged] statements were unlawfully obtained
               [in violation of Appellant’s Fifth, Sixth, and Fourteenth
               Amendment rights?]

         II.   Whether the trial court committed reversible error by
               granting the Commonwealth’s motion to preclude the expert
               testimony of Dr. [Richard] Ofshe[?]

        III.   Whether the trial court committed reversible error by
               denying [Appellant’s] motion in limine to preclude the
____________________________________________


6   18 Pa.C.S.A. §§ 901(a) and 3701(a)(1)(iii).

7   18 Pa.C.S.A. § 907(a).

8   18 Pa.C.S.A. § 6105(c)(2).

9   18 Pa.C.S.A. § 6106(a)(1).

10 Appellant filed a notice of appeal on April 29, 2019. On May 8, 2019 the
trial court filed an order directing Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1). After securing an
extension from the trial court, Appellant timely complied. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on July 5, 2019.



                                           -4-
J-S67003-19


              Commonwealth from introducing [the testimony of Sergeant
              Elwood Spencer] where such evidence lacked [the] general
              acceptance necessary to warrant admission [and, as such,
              its probative value was outweighed by the danger of unfair
              prejudice under Pennsylvania] Rule of Evidence 403?

        IV.   Whether the trial court committed reversible error by failing
              to hold a Frye11 hearing regarding the admissibility of
              [Sergeant Elwood Spencer’s testimony?]

         V.   Whether the trial court abused its discretion by failing to
              give a “consciousness of innocence” instruction[?]


Appellant’s Brief at 4 (superfluous capitalization omitted) (footnote added).

        We have reviewed the briefs of the parties, the relevant case law, the

certified record, the notes of testimony, and the opinion of the able trial court

judge, the Honorable Nancy L. Butts.             We conclude that Appellant is not

entitled to relief in this case and that Judge Butts’s July 5, 2019 opinion, which

also incorporates her August 8, 2018 opinion, adequately and accurately

disposes of Appellant’s issues on appeal. Specifically, we agree that the trial

court did not err in admitting Appellant’s November 11, 2016, statement to

police because Appellant executed a valid waiver of his Miranda rights and in

turn, waived his Sixth Amendment right to counsel.12 See Trial Court Opinion,
____________________________________________


11   Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

12 While we adopt Judge Butts’s opinions, we note the following. Herein,
Appellant alleges that the trial court erred by denying his motion to suppress
because the police obtained his statement in violation of his Sixth Amendment
right to counsel. Appellant’s Brief at 18-25. A defendant’s Sixth Amendment
right to counsel attaches at “the initiation of adversary proceedings” which
includes the filing of a criminal complaint. Commonwealth v. McCoy, 975
A.2d 586, 590 (Pa. 2009).        A defendant, however, may waive his Sixth



                                           -5-
J-S67003-19




____________________________________________


Amendment right to counsel. Indeed, if “a defendant [] is admonished with
the warnings set forth in Miranda” he “has been sufficiently apprised of the
nature of [his] Sixth Amendment rights, and thus, a waiver of [his] Miranda
rights may [also] constitute a waiver” of his Sixth Amendment right to
counsel. Montejo v. Louisiana, 556 U.S. 778, 786 (2009). Nonetheless, a
defendant must execute a voluntary, knowing, and intelligent waiver. Id.
“The determination [of] whether [a defendant] has knowingly and voluntarily
waived his constitutional rights depends on the facts of each particular case.”
Commonwealth v. Kunkle, 79 A.3d 1173, 1182 (Pa. Super. 2013), citing
Fare v. Michael C., 442 U.S. 707, 724-725 (1979). “These circumstances
include the background, experience, and conduct of the accused.” Kunkle,
79 A.3d at 1182. Herein, Appellant’s chief complaint is that, because the
police failed to specifically inform him that he was criminally charged with the
Poplar Street homicides, his Miranda waiver was invalid, i.e., it was made
unknowingly and unintelligently. We disagree. At the suppression hearing,
the Commonwealth demonstrated that, at the time Appellant entered the
Williamsport Police Department, he knew that law enforcement was “looking
for him” because “his picture [was] in the media in an attempt to identify him
in relationship to the homicide on Poplar Street.” N.T. Pre-Trial Hearing,
4/26/18, at 14. The Williamsport police then advised Appellant that there was
an arrest warrant for him, took him into custody, and read him his Miranda
rights. Id. at 13. Before Appellant waived his Miranda rights and before
police commenced any questioning, police also specifically informed Appellant
that the arrest warrant was issued in conjunction with a police investigation
of a criminal homicide. Id. at 33. Accordingly, we agree with the trial court’s
determination that the mere fact that the police did not inform Appellant that
he was criminally charged did not render his subsequent Miranda waiver
unknowing or unintelligent. See Riddick v. Edmiston, 894 F.2d 586, 591
(3d. Cir. 1990) (holding that the defendant executed a valid waiver of his
Miranda rights, and in turn, his Sixth Amendment right to counsel, even
though law enforcement failed to specifically advise the defendant that he had
been indicted on a murder charge); See Commonwealth v. Carr, 580 A.2d
1362, 1365-1366 (Pa. Super. 1990) (explaining that a suspect “need not have
knowledge of the ‘technicalities’ of the criminal offense involved” to execute a
valid waiver of his Miranda rights, “rather, it is necessary only that he be
aware of the ‘transaction’ involved.”).         Thus, while Appellant’s Sixth
Amendment right to counsel attached upon the filing of the criminal complaint,
the trial court correctly found a valid waiver of that right after Appellant
received Miranda warnings and executed a waiver form.

                                           -6-
J-S67003-19



8/8/18, at 2-7. We further agree that the trial court properly precluded Dr.

Ofshe’s proffered expert testimony because it violated the province of the jury,

that the trial court did not err by admitting Sergeant Spencer’s expert

testimony on firearm and toolmark examination without a Frye hearing, and

correctly concluded that the circumstances of this case did not warrant a

consciousness of innocence instruction. See Trial Court Opinion, 7/5/19, at

1-4. Therefore, we affirm on the basis of Judge Butts’s opinions and adopt

them as our own. In any future court filings that address this ruling, the filing

party shall attach copies of Judge Butts’s opinions filed on August 8, 2018 and

July 5, 2019.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/10/2020




                                      -7-
                                             Received 11/14/2019 12:56:57            Pe;raim
                                                                           4'd
                                                 File'                    19 12:56:00 PM Su          iddle Distri t
                                                                                                    20 M DA 20 9


IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA

                                                                          CR-89-2017
JORDAN RAWLS,
         Defendant                                                        Omnibus Pretrial Motion

                                      OPINION AND ORDER

          Defendant, Jordan Rawls filed an Omnibus Pretrial Motion on. April 2, 2018. A hearing

on the Motions took place on April 26, 2018. Several of the issues were disposed of by the Court

during the hearing. A briefing schedule was set to address a number of the remaining issues

raised. The Court ordered a transcript of the hearing be provided to the Commonwealth and

Defendant to assist with the preparation of briefs. The final briefs were due on July 6, 2018.

Faclual Background

          Jordan Rawls is charged with. Criminal Homicide (two open counts);1 Criminal

Conspiracy (criminal homickle),2 Robbery;3 Criminal Conspiracy (robbery);4 Criminal Attempt

(robbery);5 Persons not to Possess Pirearrns;6 Firearms not to be Carried without a License;7 and

Possessing Instruments of a Crime,8 The charges arise from a shooting that occurred on October

31,.201.6, at 613 Poplar Street in Williamsport, PA.




1   .18Pa.C.S.   § 2501(a).
                                               tt-tEr,51
2   18 Pa.C.S.   § 903(a)(1).                                  '3
3   18 Pa.C.S.   § 3701(a)(1)(ii ).
4   18 Pa.C.S.   § 903(a)(1).                                       -.V
5   18 Pa.C.S.   § 901(a).                      D1S-1-1-1t01
6   18 Pa.C.S.   § 6105(a)(1).
7   18 Pa.C.S.   § 6106.
8   18 Pa.C.S.   § 907(b).




                                      Exhibit. A
Discussion


Did Defendant voluntarily waive his Miranda rights
        Defendant first alleges that the statements that he gave at the police station should
                                                                                              be
suppressed as they were obtained by the police in violation of his Fifth, Sixth and
                                                                                    Fourteenth
Aniendment rights, The Commonwealth argues that there Was "nothing sinister employed
                                                                                     by the
t.A) gents"   from the Williamsport Bureau of Police prior to the Defendant waiving his
                                                                                        Fifth
Amendment right. This Court agrees with the Commonwealth.


        In order for a waiver of Miranda rights to be valid, the waiver must have been
                                                                                          knowing
and voluntary. Berghuts v. Thompkins, 560 U.S. 370, 383 (2010);.1forth Carolina
                                                                                v. Butler, 441

U.S. 369, 3:73 (1979). The Court in Miranda emphasized that its decision was "not
                                                                                  intended to
hamper the traditional function of police oftkers investigating a crime." Miranda v.
                                                                                     Arizona, 384
U.S. 436, 476 (1966). Rather, the safeguards of the Miranda warnings were put
                                                                              into plaee to
advise an accused of his righth. Berghuis, 560 U.S. at 385; Davis v:'United States,
                                                                                    512 U.S. 452,
460 (1994); Moran v, Burbine, 475 aS. 412,427 (1986). Therefore, an individual
                                                                               who is taken
into custody must be informed of, and have the opportunity to exercise, his Miranda
                                                                                    rights, but
may knowingly and intelligently choose to wave these tights and make any statements he

desires. Id. In order for an accused to voluntarily waive his right to remain silent, the accused

must riot: have been threatened, tricked, or cajoled by police officers into the waiver. Miranda,

384 U.S. at 476. Further, officers may not mislead a suspect or induce a waiver with the
                                                                                         promise
of a lower charge or special consideration. Commonwealth     v.   Gibbs, 553 A.2d 409, 411 (Pa.
              70

1989). An officer also may not persuade an individual who has invoked his Miranda
                                                                                  rights to


                                                  2
 retract his position. Commonwealth. v. .Weaver, 418 .A.2d 565, 568' (Pa. Super, 11980). In order
                                                                                                  to

invoke:. the right to rernainsilent an:accused must .makei an. unambiguous, affirmative
                                                                                        statement.
 Berghais,   5.60.        380: A suspect must also unambiguously request counsel; if he does not,

the...police have no obligation to cease questioning, Davis, '.512' U.S:..at 459.. Ploys to
                                                                                            mislead a
 suspect or lull him into a false sense. of security that do not rise to the level of compulsion
                                                                                                 or
 coercion to speak are not within Miranda's concernS../MitoiS v Perkins, 496 U.S.,
                                                                                   292,.297
(1990). After infOrming an.accused of his Miranda ights, Officers, tut perinittedio.engage
                                                                                           in a
pre -waiver interrogation andAnyslilbseple*ConfeSSion acts as an implied waiver of
                                                                                   Miranda
rights. Bergintis 560 U.S.. at 372.


          In this' case, Defendant appeared at the Williamsport Bureau of Police headquarters
                                                                                              after
hearing his photograph was"being circulated lathe media, :alerting the public..tat.he was wanted

for questioning in connection with a double hornicide, which occurred.on.Poplar Street,.

Defendant. was .arrested by Agent Trent Peacock of the Williamsport.Bureau of Police and
                                                                                         read.
the. Miranda warnings verbatim. Defendant. was encouraged to        talk to the agents but then
.reminded againthat he did not have .tOtalk to them .ot answer any questions, And.that by
                                                                                          Waiving.

his Mirandarights, Defendant was agreeing to anSWer. questions without an attornerOment.

Defendant signed a waiver minUtes.later and was subsequently interviewed. There is nothing.to.

indicate from the video or:'the conversation that.Defendant was incapable, of understanding the.

rights. explained Whim. No.evidence was presented that the agents coerced Defendant, promised

.Defendant a lesseror harsher §6ritence based on a waiver, or threatened or harmed Defendant.

*The   agents..statements priotto 'obtaining:Defendant' s waiver did 'not rise to a level of coercion

that would he .conderimedby Miranda, rather they.Were nothing more than an attempt to lull




                                                    .3
 Defendantinto..a.congenial attitude, Further,:as the agents would have been permitted to
                                                                                          engage
 impre-waiver interrogation, it can be .extrapolated that they ar also within their right
                                                                                          .to..inake tin-
 coercive statements prior to obtaining a waiver. Miranda was not intended to
                                                                              hamper:normal
 police functions, into which category the officer's statements undoubtedly.fall,.as:
                                                                                      common
 police tattles: Defendant asserted Olathe 'understood his rights   m1441.1111*   occasions and
 expressed that he had no, issue talking.to the agents. At no point did the
                                                                            Defendant state he would
 likatoinvoke his right t1.2.rmain silent:or .speak.to. an attorney. Defendant's argumentdiat:

respectful police conduct is inherent.to cajoling andtrickery, and thus respectful
                                                                                   condirctmust.
cause a statement. to be involuntary is tmfounded and over-reaching.


          Further, the Supreme Court of the United States has held that an accused
                                                                                   does not have to
know all possible subjects of questioning in advance of interrogation in order
                                                                               to voluntarily,
knowingly, and intelligently waive his Fifth Amendment privilege. Colorado v.
                                                                              Spring, 479 U,S.
564:,   577 (1987). Further, a valid waiver "does not require that an individual be
                                                                                    informed of all
information 'useful' in making his decision or all information that `might
                                                                                   affec[t] his decision
to confess."' Jd.at576 (quoting Moran, 475 U.S. at 422). Miranda
                                                                 warnings are intended to
convey the constitutional, privileges afforded to an individual and the
                                                                        consequences of
abandoning them. Id. at 577. Therefore, the failure of police officers to inform a
                                                                                   defendant of the
subject matter of an interrogation does not affect the defendant's decision to
                                                                                   waive his Fifth
Amendment privilege in a constitutionally significant Manner. Id. at 566.


         Here., Defendant asserts..that because he,was not. specifically informed Of
                                                                                     thecharges.
against him prior to his Mfranda.warnings being read, his waiver of his Miranda
                                                                                rights was' not.
valid. This Court finds:this. assertion to be unfounded. Defendant discoveredihat
                                                                                  he. was wanted.



                                                  .4
    for questioningin relation to the homicides, which had occurredon.Qctober 31., 201.6,
                                                                                          after
    beconning awarcthat his picture. was being circulated throtigh the 'media.   Ma result, Defendant
    voluntarily reported to the police station. on November 11, 2016. Defendant informed the
                                                                                             police
    officers that.he: Was. already aware Ofthe:Aootingdeaths as he had' previously reaclabont
                                                                                              the
.




    incident on.facebOok. The court finds that Defendant was:adequately aware of the

    circumstances surrounding his .arrest and subsequent                 at the time he: waived his

    Miranda rights, It is not necessary that Defendant know 'all the possiblestibjects of the

    interrogation to validlywaive his Miranda rights or relinquish his right to remain silent:.

    Rowevor,the officers, did.not.stray into a discussionof any other primes, butconsistently kept

    their questions related to the events Ofthenightin question, Defendant was supplied the
                                                                                            Miranda
    warnings and thereby informed' of the constitutional privilegeSaffOrded to him:Defendant was

fully.apPrised of, and expressly waived,      his. Miranda rights.   Therefore, Defendant's waiver of
    Miranda. was-inowingty and. intelligently. made..


    Did befendant waive his Sixth Antendment right to counsel

            Defendant also asserts that the. failure. of police to inform him of the crimes with which 'he

was being charged is aNiolation of his Sixth knendinent right: to cotinsel. The Commonwealth

argues that the Deferidantwas aware both from. the media reports and statementS.rnadeby
                                                                                        'Agent
Trent.P.eicoek that the police were investigating a homicide and:that he was, a person of interest

    in the. investigation..


             The Supreme Cont of the United States has held on multiple occasions that when,
                                                                                             an
    accused voluntarily waives his Miranda rights, he also waives his Sixth Amendment right to

counel..Montejo v. Louisiana, 556 U.S. 778, 786 (2009); Patterson v. Illinois, 487 U.S. 285, 293
 (1988). The court reasoned that an accused who is given ildirancla warnings has been
                                                                                      sufficiently
 apprised of the nature of his Sixth Amendment rights and the consequences of abandoning
                                                                                         such
 rights, therefore a knowing and intelligent waiver of Miranda also applies to the Sixth

 Amendment right to counsel. Patterson, 487 U.S. at 296. Further, the Court has held that
                                                                                          the
 Sixth Amendment right to counsel may be waived by a defendant, so long as
                                                                           relinquishment of
 the right is voluntary, knowing, and intelligent. Montejo, 556 U.S. at
                                                                        786; Patterson, 487 U.S. at
 292 'n. 4; Johnson v. Zerbst, 304 U.S. 458,464 (1938), The Supreme Court
                                                                          of Pennsylvania has
 also held that a waiver of Miranda rights is sufficient to waive an accused's Sixth
                                                                                     Amendment
right to counsel. Commonwealth v. Woodard, 129 A.3d 480, 501 (Pa. 2015) (reasoning
                                                                                   that the
appellant was informed of his right to counsel and chose to give a statement without
                                                                                     counsel
present, thus nothing more. is required under the law).


        Defendant asserts that his waiver of Miranda rights was not valid and therefore was.

insufficient to waive Defendant's. Sixth Amendment right tO Counsel: However, as
                                                                                 discussed
Previously, this Court has found that.Defendant!awaiver of his Miranda rights was valid.

.Defendant argues that he. was unaware of the magnitode,.of the accusations
                                                                            againsthim and
therefore. cotildnot ha.Vevalidly waived his .7ight. touounsel. However, Defendant
                                                                                   was admittedly
aware that the incident which he was wanted fOt questioning in connection to was
                                                                            :
                                                                                 theshooting
death of two people.. Defendint.arguably.understood the gravity of his arrest due to
                                                                                     this
knowledge. Further, DefendantWasinfOrmed of the rights afforded to him and the
                                                                               consequences..
cfaVanclottirig such..rights hutehose to waive them regardless, 'Therefore; Defendant's waiver
                                                                                               of
his Miranda rights was voluntary, knowiug, andintelligent-thus, itWas sufficient
                                                                                 to waive..

Defendant' s.S ixth Amendment right. to .counseL




                                                   6
 Were Defendant's .0aiements on.Navember 11,201,6 madevoluntartly


          Thenextissueraised by the Defendant Is, that his statements made to.Ihe polkewi

November       L1 201.6, were..   not 'made vOluntarily.. Defendant spoke to the police. on this, first

 occasion after discovering. thathe was a person' of interest. Agents Peacock and Kontz..then
                                                                                              led
Defendant to.art interrogation room and placed him. under artest An interview video was'

prepared of the conversation between the. Defendant and the agents. Commonwealth asserts that

a review ofthe video establislies.that the statements were. voltintarilyniade.


         To determine voluntariness; a court mustcorisider the totality of the "circumstances

surrounding:a.given .statement....cbmmonw.ea/th v. Templin, 795 A.24959,9.61 (Pa. 2002);
                                                              .




Arizona   v.   Fultninante, 499 U.S. 279285 0994 Relevant factors include the defendanes'age,

.intellectual capacity,. the         CifdAy,   and ntinner:of questioning. See Kentucky    v.   Cane, 47611S:
683, 691 (19861 Circumstances regarding *the Manner Of questioning include the
                                                                               duration"and
'means of the questioning, the, nature.ofthe detentiOn,. the"defendant's physical and.
                                                                                       psychological
state,. the conditions of the interrogations, and the :conduct of the police Officers.. Payne
                                                                                              v.

Arkansas', 356 US. 560 (1958); see Templini 795 A.2d at 966; Commonwealth v, Perez, 845

A.2d. 779..(Pg:.          The duration of.an interrogation ia not.deteribitiative on:the issue. of

Voluntariness; 'officers may. OW.an accused the opportunity to:detail his side of the story' before

'arraigning him.. commonwealth v.         D"14 mate,   526 A.2d 300.308. (Pa. 1987). Additionally, the.

threat of physical violence, orthe promise of protection from physical violence, is, a.televant

factor. Fli/mlizatge, 499 U.S.. at 487-88.         'Pennsylvania, a confessionis involuntary when.ati

*interrogation is:so. manipulative. or coercive that, it deprives the.defendatit of his ability to:make.a




                                                          7
free and unoonstrained:deeiaion to confess. COrrirOtiweiaith..V. Nester,709 A.2d .819,...882 (Pa,

1998),


          DefendantargueS that the. Statements. made:to the.pblice.officets following. Defendant's

waiver of Miranda rights .were..involuntary and Must be suppressed. The Court disagrees.

Defendant is twerity-four years Old and has had priorexperience With the police.Deferidant does

not allege that his intellectual capacity is diminished. On November 11.3.2016, Defendant. arrived

at the .police :station .at epPrcacimately .1    p.m', and was subsequently. placed.underarrest.

:Defendant was taken to artinterragation room .at.approximately 2:03 p.m. and the police officers

commenced .questioning; Defendant was then questioned .on and off until approximately 7:40

p,rn. During this time span, Defendant was given over two hours of breaks from interrogation,

which included                  cigarette breaks.and a dinner break. The length of Defendant's

interrOgation cannot be .seenas.e4cessivein.length, Additionally, the police officers did not

threateri,..deceive,   olr   promise anything to Defendant at any   pintin time, hut.rather. encouraged
him to be honest and emphasized the seriousness of the situation, Defendant may have been held

incommunicado or without the opportunity to speak to others for the duration of the interrogation

only in. the sense that Defendant's relatives or any others did not request to see him and thns

were not denied the opportunity to do so. The actual facts of this case are in direct contrast to

eases upon which the. Defetclantrelies. Moreover, each sdf the Cases which Defendant relies upon
      :




to assert that the statements were invOluntarily. Made involved defendantiwhO WeredepriVedof

food,,:sleeP, and breaks or threatened with physical .harm. The .shOrt time span inwhiCh

Defendant was actually interrogated, the accommodations made for his cotafort considering the
circumstances, arid the demearior.Ofthe police officers all suggest that Defendant's statements,

were completely voluntary.


       .   Defendant also argues that the police. officers were in eorriplete.control..of Defendant's

liberties; however, the record,Showsthat the Offieers.granted Defendant's requests to pause or

smoke. Counsel for Defendant insinuates that the off-screen.breaks in which.D.efendant

requested to smoke rceigarette mayhave been aceonipanied.bY improper policebehavior and that

the officers! comments "smack of damage control" however, Defendant himself has made no

claims of threats; violence, or coercion from the officers at any time. Additionally, any delay in

*taking Defendant to a Magistrate forwraignment is not determinative of the voluntariness of his

confession. Officers allowed Defendant the time to detail his version of the events on the night in

question; the interview was in fact prolonged by Defendant's refusal to admit to known facts

even when.faced with evidence. in support .of them.


           In reviewing the totality of the circumstances, the Court finds that the interrogation was

not so manipulative or coercive as to deprive Defendant of his ability to make free and

unconstrained statements. Therefore, Defendants statements on November 11, 2016 were made

voluntarily.


Were Defendant's statements on November 16, 2016 made voluntarily

           Defendant was subsequently interviewed on November 16, 2016. Defense Counsel

alleges that the questioning was neither preceded by adequate Miranda warnings nor proof of an

appropriate waiver and should be suppressed.




                                                     9
          Under Pennsylvania law, not every renewal of the interrogatiOn:prOcesS requires the

repetition of Miranda warnings. Commonwealth        v.   Proctor, 585 A.2d 454) 459..(Pa.1.9.1), The

*courts   must 1(101o:the eircumstances of each. C.aseto determine whether a Warning has become.

stale, The faCtors.to be-evaltiatedliare;.

           [T]he length of time between the warnings and the challengedinterrogation, Whether the
          interrogation was conducted at the 'Same place Where the warnings. were. given, whether
          the officer Who. gave the warnings also conducted the questioning, and whether
          statements obtained are materially different from..other statements: that:may have :been
          made .atthe. time of the. warnings.

Id. Additionally, a Fifth', Amendment waiver may still be valid, even if .not given in the exact.

tbrin described in Miranda; if the defendant is provided with a "fully effective: equivalent" to the

verbatim.warning DoblovOrth         .D4414.492 U.S.. 195.; 202.(1989).


          In this eaSe,, theft was.ative...day lapsebetween the'first warnings and the second,

interrogationythe second...intetrogatiOn was. conducted in the.same room as his firstinterview;. the

interrogation, was conducted by, the same two officers as the November 11 .questioning; and

Defendant did notprovide any 'new information or materially different statements, his statements

Were conSisterit.With.those given at the prior interrogation..ljefehdant was giveti:en abbreviated

version Of the Miranda warning, including the right to.remain silent, the. right. to .an attorney, and

the right te stop ..answering..questions atony.tirne..Defendant affirined his understanding of those

rights. Therefore, Defendant's original...Mfranda waiver coupled. with the truncated 'reminder was

sufficient to totidet the.stibsequent staternerits:as voluntary. Therefore, Defendant's statements. on

November t6, 2016 were made voluntarily.




                                                   JO'
 Is the Defendant entitled. tO ingieachment.evidence and theaomplete criminal history
                                                                                      of the
 Commonwealth's witnesses
        Under the Brady rule, the prosecution has, a duty to disclose all exculpatory
                                                                                      evidence to a
 defendant prior to trial, See Brady v. Maryland, 373 U.S. 83 (1967); Commonwealth
                                                                                   v. Strong,

 761 A.2d 1167, 1171 (2000). Impeachment evidence also falls within the
                                                                        Brady rule. United
States v. Bagley, 473 U.S. 667. Impeachment evidence includes "any potential
                                                                             understanding
between the prosecution and a witness, ,because such information is relevant to
                                                                                the witness's
credibility." Commonwealth v. Weiss, 81 A.3d 767, 783 (2013). Further, a witness's
                                                                                   criminal
convictions, arrests, and parole or probation status are relevant impeachment
                                                                              evidence,   Davis'.'.
Alaska, 415 U.S. 308,'316 (1974). A witness's criminal record has long been held
                                                                                 as a necessary
and valuable tool for defense, Commonwea/th v. Copeland, 723 A.2d
                                                                  1049, 1051-52 (Pa. Super.
1998); see Davis, 415 U.S. 308; Commonwealth v. Baxter, 640 A.2d 1271 (Pa.
                                                                           1994). A
witness's critnen filsi convictions, actual agreements with prosecution, and
                                                                             hopes for leniency
are all relevant to determine his pr, her potential bias. Copeland, 723
                                                                        A.2d at 1052..

       The Third Circuit has held that a criminal record, which arguably could
                                                                               have been
discovered by defense counsel, is suppressed if not disclosed by the prosecution.
                                                                                  Dennis v.   Seey,
Pennsylvania Del* of Corp., 834 F.ld 263, 292 (3d Cir. 2016) (citing Wilson v. Beard, 589 F.3d

651, 663-64:'(3d Cir. 2009)). Further, the Ninth Circuit has held that the fact
                                                                                that a defendant
could and should have discovered Brady evidence, did not absolve the
                                                                     prosecution of their chit),
to disclose the evidence. Gantt v. R04, 389 F.3d 908, 913. (9th Cir. 2003).
                                                                            Favorable evidence to
the defendant is material evidence under Brady. Bagley, 473 U,S. at 678.




                                                 11
          It. is well, settledtbat that   a criminal defendant is entitled to know.any information That

May affect the reliability of the witnesses against him. Commonwealth v. Moose, 602 A:2d 1265:,

 1272..(pa., 1992) (nondisclosure of.eVidence.affecting.reliebility falls within Brady'S general

rtile). Copeland, 723. A,24 at 1051., :It is not within the..Commo.nwealth.'s power todetennine

what areas of a witness's criminal history may or maynot be relevant for Brady purposes,.

Contrary'to the Commonwealth's.assertion, or/menfalsi convictionsarenot the.only information.

to which. the Defendantis entitled: Rather, any, evidence.whieh is favorable to the defense must

.be   disclosed since there are   a   variety   of reasons why'a Witness's Critninaltecord. is relevant.to his
other potential bias, including an agreement with prosecutors on open charges; hopes -for

leniency in sentencing, and prior dealings with law' enforcement as an informant. See

Commonwealth v, Dawson, 702 4,2d 864 (Pa. Super. 1997) (aetualagre.ements, as.well as. a

witnesses hopes for a deal are proper subjects ofcrosS-eXarnination).; sec also Commonwealth

.Borders, 560 A.,2d 758 (Pa. 1989). (even pendingJuvenile.charges may he. hrought out on cross-

'examination to show-bias). 'therefore, 'this Court' finds the Third Circuit's reasoning persuasive,.

choosing. to recognize. that such crimiriathistorieS, even these diSeOverableby.Defendarit, may be

suppressed by the Court if the Commonwealth fails to disclose the .infoxitation,
                                        ORDER

                 AND NOVV, this ID day of August, 2018 after hearing and argument
                                                                                  on
 Defendant's Omnibus Pretrial Motion, the Defendant's Motion to Suppress Statements is
                                                                                       hereby
 DENIED.


         Defendant's Omnibus Pretrial Motion to Compel Disclosure of Existence       dud
 Substance of Promises of Immunity,, Leniency, or Preferential Treatment and the
                                                                                 Complete
 Criminal History of Commonwealth Witnesses is hereby GRANTED. It is ORDERED
                                                                             AND.
 DIRECTED that the Criminal histories of all Commonwealth witnesses to be called
                                                                                 to testify at
 trial be provided to Defense Counsel no later than thirty (30) days prior to jury
                                                                                   selection.




ICc:      A
        E.J. Rymsza, Esq.




                                                 13
                                             Received 11/14/2019 12:56:57aManriffic,81.16,MiMeapi§ct

                                                    Filpd 11/14/2019 12:56:00 PM.SupertcrCourt.:71Acigh!)17i§ ict
                                                                                                         A 2 19


    IN TI-JE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA

COMMONWEALTH OF. PENNSYLVANIA,
                                                                                               .S1

        v.                                                        CR 89-2017

                                                                                               Vi     arrq
JORDAN RAWLS,                                                     CRIMINALJ:0110 N7-;                0   Z.11



         Appellant                                               APPEAL            CI)
                                                                                         rri

       OPINION IN SUPPORT OF ORDER IN COMPLIANCE WITH RULE 1925(a)
                  OF THE RULES OF APPELLATE PROCEDURE

        Appellant appeals his judgment and sentence, which was rendered on April 5, 2019. This

Court requested a Concise Statement of Matters Complained of on Appeal on May 8, 2019.

Appellant filed for an extension of time to file, which this Court granted. Appellant filed his

Statement of Matters Complained of on Appeal on June 28, 2019. In his Statement of Matters

Complained of on Appeal Appellant claims that this Court erred: (1) in not suppressing

Appellant's statements to police;1 (2) in granting Commonwealth's Motion to Preclude the

testimony of Dr. Richard Ofshe; (3) in denying Appellant's. Motion         in.   Limirie to preclude the

testimony of Elwood Spencer an expert in firearms and toolmark examination; (4) in not

conducting a.Friie hearing for the admissibility of Elwood Spencer's expert testimony; (5) failing

to give a consciousness of innocence jury instruction; and (6) by failing to give a jury instruction

on various omissions in the police investigation.

improper Preclusion of Dr. Richard Ofshe

        Appellant claims this Court erred in precluding the testimony of Dr. Richard Ofshe

"whose testimony would have educated the jury on influences during police interrogation,

coercive techniques utilized by the police to elicit a confession and overbear an individual's will,


I This issue was addressed in this Court's Opinion and Order dated August 13, 2018, on which
this Court will rely for the purposes of this Opinion.



                                    Exhibit B
and generally how interrogations work,' Appellants Statement of Matters Complained of on

APpeal...6/28/1.9,.at   1.   This niiitors Appellant's representation to the Court.regarding the matter at

the Match 5,.201.9 hearing Appellant claiins. that. commonwealth v Alieia.**red expert.

testimony on false cOrilessiens.and.tiot.ConpoliCetechniqueS. and theories of.coerced confessions,

N.T. 3/5/19, rit.6-8. This Court disagrees with Appellant and finds that the proffered testimony

would have been no different than that.Which was prohibited in Alicia.

        The Pennsylvania Supreme Court in Alicia determinedthat, even after barring an expert

from.giying an   fial opinion on the issue of whether aconfession was false or.not; "[g]eneral
expert testimony that..certaininterrogatiOn techniques have the potential to induce .false

confessions improperly invites the jury,to determinp that those partiatilar interrogatiOn

techniques vvere.usedtoelleittheconfession in question, arid hence to concludethrit:it should not

be considered reliable," ComplaivealMy. Alicia; 92 A.34 753, 764 (Pa.            2014. The
Pennsylvania Stipierne.Courtfotind.thetestimony was therefore.not permissible becauseit would

be "an impermissible itiVasion.of the jury's role .a.S.the exclusive .arbiter of ciedibili67." Id. As in

Alicia, whether an individue.S.confession is coereed "is best left to die. jury's common sense and.

life experience, after proper development.of relevantissues related to... the..particular

circumstances surrounding the elicitation of his confession, using the traditional and time,

honoredtechniqueS of cross-examination and argument." Id

Failure to Preclude the Testimony of Eiwood.Spencer

       :Appellant contends that this Court erred in two ways, by not precluding the testimony of

Elwood Spencer and. by: not holding a Frye hearing on the issue. 7Frye is potimplicated every

time science comes into the CourtrOorn; rather, it applies only to proffered expert testimony

involving nov4seienee."..ctwnopwciath. v, Dengler, 890 A.24 372, 382 (Pa:. 2005). At trial,

Elwood Spencer testified as an..expertin *field of firearms andtnolmark examination,


                                                       2
Firearms and toolmark examination is afield which Pennsylvania Courts have time and time

again found to not be novel, See commonwealth -v, Whitacre, 878 A.2d 96, 101 (Pa. Super, 2005)

("As the technique [used in firearms and toolmark examination] has been in use since the 1930's,

it is neither new nor original, but rather is..of the sort. thatis offered...all.the time."); see also

Commonwealth          v,   Ovatios, 144. A.3d 957, 963 (Pa. Super, 2016) (expert testimonyof firearms

and toolmark examiner provided at trial); COmmonweallh. v. Frein, 206 A.3.d. 1049; 1061 (Pa,

2019) (expert toolmark evidence used asevidence atrial). Since the methods used by El.woo.d.

Spencer. are not novel and are commonly accepted by Pennsylvania Courts thiS.Court did not

precludehislestimony or hold.a Frye heatingtodetertnine if the methods of examination were

uovel,

Court's Failure to Give Pertinent itnyjnstruciion.$

              Appellant argues this Court shouldhave givert.thcjiny..a coicioüsnessofinnOcence

instruction because he self-reported to the police. station for questioning. One: Of the few

Pennsylvania.cases dealing with a cOnstiousneSsofinnOcencejury instruction is: Commonwealth
     .    .



V.       Thomas. The Pennsylvania Supreme: Court recognized that. other jurisdictions which have

addressed consciousness of innocence jury instruction "uniformly have.concluded that a

dele.ndarit is..notentitled tosuch an instructim"..Commonkg/0 v. Thomas, 54 A.34 332, 342.

(Pa, 201.2), Although it did notall together -bar a trial. courtft-om giving a consciousness of

innocence jury inStruction,..the Pennsylvania Supreme Cowl stated '"tt]hernatter is:properly one

of argument to the jury;" 14 This Court found, as            in Thomas,   Appellantharl ample opportunity to

Address theissue on cross examination and iii argument while closing. Appellant took foil:

advantage of his opportunity:to data. N.T..4/4/19, at-23, 29, 31434.. Appellant would have. this

Court instruct a jury on consciousness of innoeence every titno.a defendant oat-nein for,




                                                        3.
questioning of. their. own accord, which as a singular. action is not enough to trigger the necessity

for such an instruction.

        Lastly Appellant argues this Court erred when itfailed to instruct.thelury based.on

"various omissions in the polle.einvestigatien...Where thelack of scientific testing and/or

otherwise following police procedures during the investigation Of the .rntirderS was a .relevant

factor in evaluating the COmmonwealth's evidence." Appellant's Staternentof Matters

Complained of On -Appeal 6/28/19at 2. Appellant presented this Court with the Criminal Model

Jury instructions for ..Massachusetts.3 .140,, Omissions in :Police InVestigations, asking it be read
                                                         .




to the ..jury, See N.T. 4/4/19, at15-16..Aa PennsylVaitiaCOurts have notrecognized such an

instruction,.this Court did.not allow the instruction toread to the jiary. The Court noted that the

juryis: already instructed to find. based on.the evidence "or the. Wk. thereof'..and permitted

counsel for both sidesito.argue the issueinclosing. ja. at 16.17, 78-19, Defense counsel did

argue the isSue adamantly in his closing. Id, at 35,40. To have allowed the instruction. would

have taken focus away 'from the jury's primary task to determine Whether the Commonwealth

had proved the entirety.of its case beyond a-reasonable. doubt.. The jury -would have instead.been      :




directed to focus on what efforts created the. evidence. as Opposed to the evidericeittelf, Which
                                  .




would be in err.



DATE:       July 5, 2019                                       By the Court,




                                                               Nancy L Butts,. .resident JUdge   .




xc:     DA (MW)
        Edward J. Rymsza, Esq.

NLB/kp


                                                   4
